Most people will readily agree that criminal investigations and trials (to say nothing of punishment) are highly disagreeable experiences for defendants and their families. Adverse consequences for private and family life are part and parcel of the criminal process. So far, these effects have not been used to argue that any decision by prosecutors to bring defendants to trial must be tested against Article 8 ECHR. But what if the prosecution is brought by a foreign state with which the United Kingdom has entered into an extradition agreement? Is extradition different?

Extradition on the basis of a bilateral extradition treaty is now governed by the Extradition Act 2003, and requires the judge in an extradition hearing to “decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998”. In Norris v. Government of the United States of America (No. 2) [2010] UKSC 9, [2010] 2 W.L.R. 572, the appellant, a former chief executive officer of a company, was in 2004 indicted by a Pennsylvania Grand Jury on charges of price-fixing and obstructing justice (the latter charge arising from his alleged efforts to destroy evidence of price-fixing). As one of a small number of employees not to benefit from a plea bargain struck by his former employer with the United States' prosecutorial authorities, the appellant in 2008 succeeded in resisting his extradition on charges of price-fixing on the basis that price-fixing was, at the relevant time, not a criminal offence in the UK (Norris v. Government of the United States of America [2008] UKHL 16, [2008] A.C. 920, noted by O'Keefe [2009] C.L.J. 9). He then challenged his extradition on the remaining charge of obstructing justice on the basis that his standing trial in the USA would amount to a disproportionate interference with his right to family life, given his wife's fragile health and her consequent inability to follow him to the USA, should he be extradited there. The Supreme Court held that the appellant could be extradited. In applying the relevant provision of the Extradition Act, however, the Court stressed that the legal test was not whether the appellant's case was an exceptional one. While successful challenges to extradition on grounds of Article 8 would be rare in light of the weighty public interest in the suppression of crime by, inter alia, supporting the prosecutorial efforts of third states, the legal test was the familiar one of proportionality.

In clarifying the legal position, the Court drew heavily on a line of cases concerning the removal of unwanted aliens, where it was held that Article 3 is not the only Convention right that can be relied on in “foreign” cases, that is, cases where the applicant seeks to establish a breach of the Convention because of the treatment that he fears he will receive in a third country, to which a Convention state proposes to send him. Despite the fact that the Divisional Court suggested in a previous extradition case (R (Bermingham) v. Director of the Serious Fraud Office [2006] EWHC 200 (Admin), [2007] Q.B. 727), that this classification could not “cast much light on the stringency of the test for violation of Article 8 which the Court should apply”, the Supreme Court saw the expulsion cases as confirming its view that exceptionality cannot be required. In coming to this conclusion, the Court parted company with Strasbourg case law which imposes a higher threshold for what constitutes an arguable violation of a Convention right in extradition cases and reaches a result that goes beyond the protection that a person faced with the possibility of extradition is likely to receive by Strasbourg itself.

Unlike the UK courts, the European Court of Human Rights does not categorise cases as either “foreign” or “domestic”. Instead, it focuses on the context in which the possibility of a person's forced removal to another jurisdiction arises. The Strasbourg case law which prompted the more generous approach now taken by the UK courts in “foreign cases” (for instance, Boultif v. Switzerland (2001) 33 E.H.R.R. 1179 and Üner v. The Netherlands (2006) 45 E.H.R.R. 421) concerned the expulsion of aliens who have made their permanent home in the expelling state, and is best understood as mapping out intensified protections for settled migrants who are facing the possibility of deportation after the criminal process in their state of residence has run its course. It is not applicable in the context of extradition.

The ECtHR's approach in extradition cases was settled in the seminal case of Soering v. United Kingdom (1989) 11 E.H.R.R. 439, where the Court accepted that the Convention does not contain any “general principle to the effect that, notwithstanding its extradition obligations, a Contracting State may not surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention”, at [86]. Since then it has repeatedly held that “it will only be in exceptional circumstances that an applicant's private or family life in a Contracting State will outweigh the legitimate aim pursued by his or her extradition” (e.g. King v. United Kingdom, Appl. No. 9742/07). In other words: Strasbourg clearly requires a certain kind of “exceptionality”.

This is done for good reason; the person whose extradition is sought has laid himself open to prosecution on foreign soil by, it is alleged, committing a crime within the jurisdiction of that state. He cannot expect that, merely by absconding from the scene of his crime and arriving in a Convention state, said Convention state will (indirectly) have to insist that Convention standards be met, in respect of the applicant's prosecution for a crime over which the requesting state has jurisdiction, by a state which is not a party to the Convention. It is entirely appropriate that the affected person's extradition is incompatible with the Convention only in the exceptional cases where it goes against the most fundamental values of Convention states to expose an individual to what is, in principle, appropriate prosecution in another state. Surely, it is more than just strange that, post Norris, it will arguably be easier to resist one's extradition on Article 8 grounds than it would be to object against one's prosecution on UK soil. The clear message from Soering and King is that, if anything, it should be the other way round.