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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Nisbet v Secretary of State & Ors [2007] EWHC 1768 (Admin) (29 June 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/1768.html Cite as: [2007] EWHC 1768 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		29 June 2007

1. MR JUSTICE TREACY: This appellant, Stanley Nisbet, challenges the decision of the Secretary of State for the Home Department on 30 March 2007 extraditing him to Canada, pursuant to a sending by District Judge Evans, sitting at the City of Westminster Magistrates' Court, on 8 January 2007, on a request from Canada dated 17 July 2006 for offences of dishonesty arising from the appellant's work in Canada as an accountant. The letter of 30 March 2007 was a second letter sent by the Secretary of State so as to enable the appellant to retain his statutory liberty to appeal.
2. The appellant's extradition is sought by Canada, pursuant to the provisions of the Extradition Act 2003. Canada is a designated state for the purposes of Part 2 of the Act. The case was sent to the first respondent, the Secretary of State, by District Judge Evans on 8 January 2007. It appears that no submissions were made at that hearing by or on behalf of the appellant in relation to human rights or in relation to issues concerning his physical or mental condition. Nonetheless it was incumbent upon the district judge to have regard to Section 87 of the Act and to decide whether the appellant's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. The District Judge, in sending the matter, stated that he was satisfied that the appellant's extradition was not barred within the meaning of the Extradition Act 2003 and that his extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998.
3. On 15 February 2007 the appellant wrote to the first respondent making representations as to why he should not be extradited. Those representations, very substantially, mirror matters which are raised before this court. In his letter of 30 March 2007 the first respondent notified the appellant of his decision to order extradition. He said that he had taken into account the appellant's representations, but concluded that they were not matters which engaged his discretion in making the order for extradition since they fell outwith the provisions of Section 94 and Section 96 of the Extradition Act 2003. None of the barriers to extradition contained in those three sections arise. So the Secretary of State for the Home Department was bound by Section 93 (4) to make the extradition order.
4. The position of the Secretary of State before us is that in those circumstances the appeal as against the Secretary of State as first respondent is misconceived. We agree. The position is that as a public authority the first respondent is bound by Section 6 of the Human Rights Act 1998, but he is not required to consider afresh whether the appellant's extradition was incompatible with his Convention rights. That was a matter for consideration by the District Judge who was best placed to consider the evidence relied upon in relation to human rights. In this instance no such material had been put forward. In those circumstances - if no material is put forward to the District Judge in the first instance or if it has been considered at first instance, but an appellant wants to rely on it at appeal - it is open to him to raise, on appeal, matters of that sort. It is not in ordinary circumstances a matter which is within the ambit of the Secretary of State's consideration.
5. A person who wishes to appeal against a ruling on human rights grounds must wait until the Secretary of State has ordered his extradition (see Section 103 (9)). A person may raise an issue on appeal that he did not raise at the extradition hearing (see Section 104(4)). It follows therefore that this appellant, notwithstanding the fact that the Secretary of State is not an appropriate respondent to these proceedings, may nonetheless raise human rights and related issues on the appeal before this court. There may be circumstances where it is appropriate for the Secretary of State to consider human rights issues, but they do not arise in the circumstances of this particular case (see McKinnon v United States of America and Others [2007] EWHC 762 Admin, particularly paragraphs 61 to 63).
6. The matters which are raised before us today by Mr Nisbet for our consideration can be divided into four separate categories. The first issue relates to his ill health. He has provided material to support the assertion that he suffers from depression and anxiety. He submits that his condition would be made worse if he were to be returned to Canada. Moreover he has had a long-standing condition in his knee which is susceptible to surgery by way of a knee replacement operation. It appears from information he has provided to us that there is the prospect of surgery taking place in this country in the next few weeks. He submits to us, particularly in relation to that aspect of the matter, that there is no certainty that he will be able to avail himself of such an operation if he is returned to Canada.
7. In this context we bear in mind Section 91 (1) and (2) of the Act which provides initially that if at any time in the extradition hearing it appears to the judge that the condition in sub-section (2) is satisfied, and that the condition is such that it would be unjust or oppressive to extradite him by reason of physical or mental condition, the judge must order the person's discharge or adjourn the extradition hearing until those conditions no longer apply.
8. We bear in mind that there is plainly an overlap with the need to consider human rights under Section 87. We have seen the material submitted by the appellant, but we have also taken account of an affidavit submitted on behalf of the second respondent, the Government of Canada. It shows what we might perhaps expect, that appropriate medication would be available to this appellant in Canada for any condition of depression from which he suffers and that there are arrangements in place which would enable consideration to be given as to the need for knee surgery were he to be returned.
9. In our judgment the conditions to which Mr Nisbet has drawn our attention are insufficient to make his extradition unjust or oppressive under Section 91 (2) and insufficient to engage his Convention rights. Put briefly, they are simply not of a nature or of an order which cross the necessary threshold.
10. We turn to consider the second broad category of matters raised with us. Mr Nisbet submits that the reason he left Canada in October 2004 and came to the United Kingdom was not to escape prosecution from any offences he may have committed, as the Canadian Government suggest, but because his fiancée and his mother were ill. This aspect of the matter seems essentially to be an historical one and not primarily a matter for consideration in this court in looking at the 2003 Act. It does not appear to us that there is any assertion here of a breach of human rights, and there is nothing that can be argued that would avail the appellant.
11. We move on therefore to issue number 3. The appellant says he got engaged in November 2006; that in May 2005 his fiancée bought a house; that, in part, she depends on the appellant's income and that that house is at risk of being lost if he is returned to Canada or at the very least she would suffer hardship. The appellant, in additon, says that he has a job in the United Kingdom and that if he is returned to Canada it will not be easy for him to find employment over there or, indeed, to find employment in this country if he returns here after proceedings in Canada.
12. It may be that these considerations raise matters for consideration under Article 8. But if there is any interference with Article 8 rights, in my judgment, it is entirely proportionate and justified. The circumstances outlined are in no way exceptional. I am satisfied that on the relevant case law there would need to be a demonstration of exceptional circumstances in relation to these matters if extradition was to be refused. These matters simply do not fall within the necessary category.
13. The final general area of consideration raised by Mr Nisbet relates to his assertion that he now has no business records left to enable him to mount a defence against criminal charges pursued against him in Canada. The first consideration must be what process would take place before any court in Canada. It would undoubtedly be open to the appellant to raise the absence of paperwork and business records before a Canadian court, as a consideration for, and reason as to why the case should not proceed against him. That would be a matter for a Canadian court to evaluate in considering whether a fair trial could be conducted.
14. It does not seem to me in those circumstances that there is any reason to suspect that this appellant is at risk of flagrant denial of a fair trial, which is the test to be applied when issues of this sort are raised. Again in common with the other issues which are raised, I do not consider that these matters come anywhere near crossing the appropriate threshold. In this case the rights of the appellant to be considered are those under Article 6. In my judgment they are not in any realistic sense engaged.
15. It follows therefore that each of the matters raised before us for our consideration in this appeal does not provide any reason whatsoever as to why the order which was made by the District Judge on 8 January 2007, and which is confirmed in the order of extradition notified by letter on 30 March 2007 by the Secretary of State would be altered. There is no ground upon which this appeal can be allowed.
16. I would therefore dismiss this appeal.
17. LORD JUSTICE HUGHES: I agree. It is important to record that the scheme of the Extradition Act 2003 is to remove much of the decision making process where applications are made from the Secretary of State and vest it instead in a court.
18. The Act places upon the district judge the responsibility, among other matters, for considering (a) whether extradition is compatible with the European Convention on Human Rights, and (b) whether the physical or mental condition of the person sought is such that it would be unjust or oppressive to extradite him. These, and other factual considerations, are no longer for the Secretary of State, and deliberately so. It is only in the very limited circumstances contemplated in McKinnon v Government of the United States of America [2007] EWHC 762 Admin that human rights question could fall for consideration by the Secretary of State. It is for that reason that it is ordinarily wrong for the Secretary of State to be made a respondent to an appeal brought under Section 103 of the Act.
19. As to the factual matters raised by the appellant, they are entitled to consideration here even though they were not raised before the district judge. For reasons so clearly given by my Lord, they cannot begin to approach a basis for allowing an appeal. This appeal is accordingly dismissed.
20. I take it that there is no other application.
21. MISS DOBBIN: No.
22. LORD JUSTICE HUGHES: Mr Nisbet, this application must fail.
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