England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/04/2010

This is the judgment of the Court

Introduction:

1. Before the inception of the Extradition Act 2003, the Secretary of State had a general discretion to make an order for the return of an alleged offender to a foreign state. The discretion was circumscribed by section 12(2)(a) of the Extradition Act 1989, which provided that the Secretary of State should not make an order if it appears to him that it would, having regard to all the circumstances, be unjust or oppressive to do so by reason of the trivial nature of the relevant offences or by reason of the passage of time since the person is alleged to have committed the offences.
2. Elizabeth Prosser challenges in these judicial review proceedings decisions of the Secretary of State of 19^th December 2008 and 2^nd July 2009 to extradite her to the United States. Her extradition is sought for offences alleged to have been committed there in 1997 and 1998. In August and November 1997, she is alleged to have procured $6,750 from a former employer by fraud. She is alleged to have accepted money for fictitious advertisements placed in a magazine. She denies these offences. She is also charged with the unlawful abduction of her daughter in contravention of a child custody order in favour of the daughter's father. She accepts that she did unlawfully abduct her daughter on 10^th March 1998. She claims to have done this because she believed that she was about to be arrested for lack of necessary immigration status enabling her to work. She believed that she would then be deported without her young daughter.
3. These are not trivial offences. But the passage of time since they were committed is 12 years or so since the warrant for her arrest on 11^th March 1998 and her arrest in this jurisdiction on 2^nd September 1998, following which she spent 4½ months in custody. The long delay is not her fault. Some of it, between 2002 and 2004, is accepted to be the fault of the Secretary of State. Much of the time has been spent in a laboriously slow process of obtaining medical reports. On one view, the delay has taken the edge off the seriousness of the offences. The daughter is now aged 18 or so. She lives in the United States with her father, who is reconciled with Mrs Prosser. The daughter is planning to come to Wales for university education. The unlawful abduction does not appear to have had enduring ill effects. Counsel for both parties tended to suppose at the hearing of this application that convictions in the United States were unlikely to result in custodial sentences.
4. The main burden of Mrs Prosser's case is that the Secretary of State was wrong to order her extradition in that she suffers from such a combination of physical and psychiatric illnesses that extradition would compromise her rights under Articles 3 and 8 of the European Convention on Human Rights so that it would be unjust and oppressive to extradite her.
5. On 25^th January 2000 representations were submitted to the Secretary of State to the effect that Mrs Prosser should not be extradited. Further representations were made by invitation on 23^rd October 2002. There was further correspondence in 2004. On 12^th October 2004, the Secretary of State made an order for Mrs Prosser's extradition to the United States. She challenged this in judicial review proceedings. The Secretary of State's decision was quashed by consent on 18^th March 2006, the Secretary of State accepting that further medical evidence required a reappraisal of the decision.
6. There were delays while the Secretary of State obtained expert medical reports. The reports thus obtained included a report from Dr Moyles, a consultant psychiatrist, and a report from Dr Hollingworth, a consultant rheumatologist. Thereafter further assurances were sought from the United States authorities. On 1^st July 2008, the US Department of Justice gave a number of assurances which included that the Pennsylvanian authorities would provide Mrs Prosser with appropriate medical care and treatment. On 19^th December 2008, the Secretary of State wrote stating that a decision had been taken to proceed with Mrs Prosser's extradition and giving reasons. On 20^th January 2009, Mrs Prosser's solicitors wrote sending a report from Mr Shafi Ahmed, a consultant general, laparoscopic and colorectal surgeon, and a report from Mrs Prosser's General Practitioner, Dr Keith Thomas. Subsequently, Mrs Prosser's solicitors obtained a report from a consultant psychiatrist, Dr Wilhelm Skogstad. On 2^nd July 2009, the Secretary of State wrote confirming the decision to extradite Mrs Prosser. These proceedings were then started. Langstaff J gave permission on 2^nd October 2009.

Mrs Prosser's medical and psychiatric problems

7. The Secretary of State considered the medical evidence at length in the decision letters of 19^th December 2008 and 2^nd July 2009. Mrs Prosser suffers from a combination of a number of conditions which appear to be interrelated and have stress as an important component. She suffers from (a) severe depression, with possible post traumatic stress disorder; (b) fibromyalgia; (c) Crohn's disease; and (d) shingles. Fibromyalgia is one of a spectrum of disorders which include chronic fatigue syndrome, ME, irritable bowel syndrome and learned breathlessness which do not appear to have an organic cause. It is associated with musculoskeletal pain. She is recorded as being severely disabled, requiring a stair lift, a bath lift, a special motor vehicle and a specialist wheelchair.
8. Mrs Prosser's Crohn's disease required a subtotal colectomy in December 2007 and a permanent ileostomy. Mr Ahmed's opinion, following the surgery, is that there is a 70% risk of Mrs Prosser developing further Crohn's disease in the next 15 years, and a 25% risk of further surgery in the next 10 years. He also notes the link between stress and Crohn's disease and points out that the symptoms of the disease are aggravated by stress. He concludes that Mrs Prosser's condition will require intensive surveillance. If she does not obtain appropriate medical care, she will undoubtedly suffer more stress and it is quite likely that her condition may be exacerbated and that this will further affect her quality of life and treatment options.
9. Since the Secretary of State's extradition order, Mrs Prosser has been admitted for further management and it appears that the Crohn's disease has flared up with multiple fistulas around the stomal area. She was due to be seen by a consultant colorectal surgeon on 13^th July for further refashioning and appropriate surgery as needed. On 11^th March 2010, the Secretary of State was informed that Mrs Prosser had recently entered hospital for a period on account of the exacerbation of her Crohn's disease. It appears that her oral pain relief had also been ineffective and she started on a new treatment of weekly injections of methrotrexate, which is a standard medication given to sufferers of Crohn's disease, and which controls the prognosis of the disease and thus the associated pain.
10. As to the fibromyalgia, Dr Hollingworth reported widespread body pain and related impairment of function which appears to have no organic pathology. He reported that fibromyalgia is part of a spectrum of related disorders which include chronic fatigue syndrome, ME, irritable bowel syndrome, learned breathlessness and many others. The features common to these conditions are pain, fatigue, emotional distress and a poor sleep pattern. Since these symptoms have no discernable organic pathology, they are manifest solely as symptoms reported by an individual. There are no absolute confirmatory signs. Standard laboratory investigations exclude other causes. Dr Hollingworth explained that the management of fibromyalgia is difficult, although cognitive behaviour therapy has proved to be effective as well as the use of small doses of amitriptyline, an anti-depressant, as a sleep modifier, as well as pacing the patient's activities.
11. Considering the necessary travel arrangements for surrender, Dr Hollingworth stated that, if Mrs Prosser's assertions are correct that travel for more than 20 miles in a car is painful, then the journey to a major airport and the transfer to America, even if she is escorted, would cause extreme pain. If her account is to be believed, she would require a stretcher. She would require an increased dose of morphine, which might carry with it the risk of affecting her breathing, so that any medical attendant escorting her would need to be able to cope with this possibility. Apart from causing her pain and worsening of her symptoms for some days afterwards, travel to the United States would cause no long term consequences.
12. Dr Hollingworth stated that he could not know absolutely if Mrs Prosser was telling him the truth. He was well aware that she would escape extradition and imprisonment should the Secretary of State accept his opinion. She had every reason to mislead deliberately. He had carefully considered all the issues in the case and had concluded that, on the balance of probabilities, Mrs Prosser's symptoms were substantially as she describes them, but he could not exclude a degree of exaggeration. He concluded that she suffers from fibromyalgia, which is recognised as a genuine condition presenting with pain and functional impairment. She could be escorted to the United States, undergo a trial and be imprisoned, without these processes being substantially adverse to her health, provided the United States authorities furnish her with the conditions and medical support which he had referred to.
13. As to her mental state, depression and suicide risk, Mrs Prosser has suffered from a major depressive disorder, including post traumatic stress disorder, since at least September 1998, although there are differences of opinion as to the severity of this and as to the related risk of suicide. Dr Moyles' report of November 2006 expressed his opinion thus:

"17. Elizabeth Prosser suffers from a recurrent depressive disorder of varying severity and characterised by episodes of low mood, loss of self-esteem, poor appetite, poor concentration, disturbed sleep pattern and negative thoughts about the future. She also has thoughts of suicide and in the past has attempted it … At interview I felt at worst she was mildly depressed although this diagnosis was complicated by the fact that she had deteriorating physical health and was involved in the ongoing legal proceedings which she found very traumatising.

18. Elizabeth Prosser in my opinion shows features of post traumatic stress disorder in that she suffers from recurrent nightmares, intrusive distressing thoughts and intrusive distressing daytime imagery (flashbacks) on a recurrent basis and of variable frequency…

19. Given that Elizabeth Prosser in my opinion suffers from recurrent depression and possibly post traumatic stress disorder, combined with her failing physical health, means in my opinion that she is highly likely to suffer from further episodes of major depression. I would have serious concern for her mental health were she to be extradited and stand trial as I believe that this would be highly likely to result in a serious deterioration in her condition. She would certainly present a high risk of suicide given her diagnosis were this to occur.

20. Were she to be extradited then it would be imperative that those involved were fully aware of the risks and that these should be managed appropriately."

14. Dr Skogstad met Mrs Prosser for one consultation in February 2009. He noted that her mood did not appear initially to be obviously low, but this changed dramatically when he questioned her about her emotional state. She then seemed to collapse into a depressed and a distressed state. In his opinion, she suffers from a complex mixture of a severe psychological condition, serious physical illness and an interdependence between them. She suffers from a severe depressive state marked by her particular personality characterised by a drivenness and a tendency for a high level of activity, and by her preoccupation with and immersion in her physical illness.
15. Dr Skogstad's opinion as to the likely effect of extradition was as follows:

"5.4.1 In my opinion Mrs Prosser suffers from a serious mental and physical condition; she is at serious risk that a deterioration in her external situation will tip her current fragile balance in a disastrous way, towards a serious deterioration in her physical condition as well as towards suicide. She has two important factors that keep her going at the moment, a devoted and caring husband, and the renewed contact with her daughter with the hope to be reunited with her. But her limited well-being depends almost entirely on these factors.

5.4.2 A definitive and irreversible decision to extradite her to the United States would, in my view, be experienced by her as a complete catastrophe. It would mean that the only things that provide her with hope and meaning in her life now, would be lost and she would see nothing to live for anymore. I take her determination to kill herself, should this situation arise, absolutely seriously I am convinced that she would do everything in her power to prevent an extradition by ending her life.

5.4.3 If the extradition was managed in a way that Mrs Prosser would not be able to end her life and to prevent extradition, it is my opinion that her condition would deteriorate very significantly. Firstly, she would become even more severely depressed than she is now. Second, the severe emotional impact of the loss of significant relationships and meaning in her life, would have a serious impact on her already severe physical condition and would exacerbate it further.

5.4.4 The assurances given by the authorities in the United States are in my view completely inadequate … .

5.4.5 On the other hand, if the decision was made to stop the extradition process and give her the definite right to remain in this country, her mental state would, in my opinion, clearly improve. It is also likely that this would have a beneficial effect on her physical condition and at least prevent further exacerbations; it may even lead to a stabilisation, due to the effect of her improved psychosocial situation."

16. Mr Southey explained his understanding that Dr Skogstad considered that the assurances were inadequate because they could not replace the emotional support provided by Mrs Prosser's husband. The assurances were however to provide all appropriate physical and medical treatment in transit and on arrival in the United States. Mrs Prosser has not received much in the way of treatment or medication for her depression. She was not in January 2009 receiving any anti-depressant medication from her General Practitioner.
17. The case for Mrs Prosser is that the process of extradition to and a trial in the United States would severely exacerbate her depressive state, not least because she would lose the support of her husband. The journey would cause her extreme pain both in travelling to and from airports and on the plane. She would require to be held in custody in the United States, if only because she would have nowhere else to be and because only thus could she receive the necessary care and treatment. There would be a severe risk of her suicide. This would all comprise inhuman and degrading treatment both domestically and in the United States in contravention of Article 3 of the European Convention on Human Rights and there would be disproportionate invasion of her private and family life in contravention of Article 8. Extradition would be unjust and oppressive under section 12(2)(a) of the 1989 Act in the context of alleged offences now 12 years old of moderate seriousness only.

Article 3

18. As to the domestic element of the Article 3 case, Mr Southey submits that detention within this jurisdiction which causes extreme suffering is capable, depending on the circumstances, of amounting to a violation of Article 3, and should be regarded as so doing in this case. The Secretary of States submits that the extreme pain which Dr Hollingworth says is likely to result from Mrs Prosser's transfer does not reach the necessary degree of seriousness or the minimum level of severity required for a violation of Article 3. Article 3 only provides protection against the most serious ill treatment, which is why it is incapable of justification. The effect of Mrs Prosser's transfer on her fibromyalgia cannot meet the Article 3 threshold when Dr Hollingworth says that the extreme pain can be mitigated by the use of a stretcher and an increased dosage of morphine.
19. As to the foreign element of the Article 3 case, it is accepted that the Article 3 threshold is particularly high, and even higher when the alleged treatment is not, as here, the direct responsibility of public authorities of the receiving state, but flows from naturally occurring illnesses - see J v Secretary of State for Home Department [2005] Imm AR 409. Mr Keith points out that the European Court of Human Rights and domestic courts have only ever found removal or extradition barred on Article 3 grounds in the most exceptional circumstances where the humanitarian case against removal was compelling. He points to D v United Kingdom (1997) at 24 EHRR 423; N v Secretary of State for Home Department [2005] 2 AC 296 at paragraphs 50, 69, 70, 80, 81 and 94; N v United Kingdom (2008) 47 EHRR 39 at paragraphs 42-43; J v Secretary of State for Home Department [2005] EWCA Civ 629; and RA (Sri Lanka) v Secretary of State for Home Department [2008] EWCA Civ 1210.
20. In principle a claim based upon a risk of suicide is capable of meeting the Article 3 threshold. But Mr Southey accepts that there is only one reported case based on the risk of suicide where extradition has been successfully resisted. That case was Jansons v Latvia [2009] EWHC 1845 (Admin), where not only had the claimant recently actually attempted to commit suicide on account of his threatened extradition while he was in prison and very nearly succeeded; but also uncontradicted expert opinion was that he would commit suicide if he were extradited. It was not expressed merely as a risk. Jansons was in fact decided under Article 8.
21. In our judgment, Mrs Prosser's case does not reach the level of severity necessary for a violation of Article 3 either as a domestic or as a foreign case. Certainly Dr Hollingworth acknowledged that Mrs Prosser would suffer extreme pain travelling to the airport and in transit to the United States. But he considers that, if her account is to be believed, she would require a stretcher and an increased dosage of morphine. Thus the pain is capable of being alleviated. The pain and worsening of her symptoms would be temporary and cause no long term consequences. His opinion was essentially the same for the process of a trial in the United States. Her pain is not founded in any organic pathology. We note that Dr Hollingworth acknowledges the possibility that Mrs Prosser's account of her pain might not be believed or might be exaggerated, but we proceed on the basis that the account which he reports is genuine. We note also that the fibromyalgia and associated pain are in combination with quite serious physical conditions. Nevertheless, the Article 3 threshold is high and Dr Hollingworth's essential opinion is that Mrs Prosser's condition is manageable in transit and upon arrival in the United States and that these will not cause long term consequences.
22. There is a risk of suicide but, as in, for instance, R (Tozlukaya) v Secretary of State for Home Department [2006] INLR 354, the risk in our judgment does not bring the case near the high Article 3 threshold, even if the risk is regarded as severe and likely to continue. In the present case, although Dr Skogstad is of the opinion that, on account of the combination of severe depression and serious physical illness, there is a definite determination in Mrs Prosser to kill herself, if it is decided that she should be extradited, Dr Moyles' view is that her depressive disorder has been episodic and of varying severity and that care and professional medical assistance would substantially reduce the risk of a suicide attempt. Since in the context a successful actual suicide attempt would necessarily constitute an extreme violation of Article 3 if it were caused by factors for which the Secretary of State should be regarded as responsible, the court is logically concerned with evaluating the risk that a threatened suicide would eventuate and succeed. A very high risk would doubtless be capable of achieving the Article 3 threshold. Our evaluation is that Mrs Prosser's risk falls significantly short of achieving that threshold.
23. As to the specifically foreign element of the Article 3 case, similar principles apply and the public interest in extradition carries special weight in Article 3 cases, as in Article 8 cases (see e.g. R (Wellington) v Secretary State for the Home Department [2009] 1 AC 335 at paragraphs 24, 27, 30, 51 and 57-58; and Norris v The Government of United States of America [2010] UKSC 9 to which we refer below). A high threshold or a very strong case is required where, as here, the direct responsibility for inflicting harm does not lie with the receiving state (see Bensaid v United Kingdom 33 EHRR 219 at paragraph 40 and R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraphs 9, 10 and 24). The test is stringent and not easy to satisfy (Saadi v Italy app. No. 3720/06 at paragraph 148; AS and DD v Secretary of State for Home Department [2008] EWCA Civ 289 at paragraphs 65-67). The existence of assurances is of considerable relevance (see Saadi v Italy at paragraph 148; J v Secretary of State for Home Department at paragraph 3) and in the present case, where it is not alleged that Mrs Prosser would be ill treated in the United States, there is no reason to question the assurances that have been given. Mr Keith submits that the facts in the present case do not measure up to those in Bensaid v United Kingdom where the European Court of Human Rights eventually found that there was no violation of Article 3. He submits that the risk of Mrs Prosser suffering a serious mental deterioration with an associated risk of suicide is said to derive from the act of extradition and/or the process of prosecution in the United States, all of which are lawful processes not otherwise violating Article 3. The consequences, said to amount to ill treatment, fall towards the lower end of the Article 3 spectrum, at the higher end of which is state-sponsored violence. We agree. The case for violation of Article 3 is not made out.

Article 8

24. As to Article 8, Mrs Prosser's extradition would clearly amount to an interference with her private and family life, and the question is whether this interference would be in accordance with law, necessary in a democratic society and proportionate to achieve a legitimate aim. Extradition generally is in accordance with the law and fulfils a legitimate aim in a modern democratic society. So the court's enquiry is whether Mrs Prosser's extradition is necessary and proportionate. Of relevance to these questions are all the facts which bear on the Article 3 case, which we have already summarised. These include the long delay, the seriousness of the offences both originally and with the passage of time, and the suggestion that Mrs Prosser's conviction now might well not result in a custodial sentence. She would, however, probably have to be detained upon arrival in the United States pending her trial.
25. Norris v Government of the United States of America [2010] 2 WLR 572 is the leading recent case on the court's approach to alleged infringement of Article 8 in extradition cases. The defendant, aged 65, was charged in the United States with conspiring to operate a price fixing agreement and with three counts of obstructing justice by tampering with witnesses and causing a person to alter, destroy, mutilate or conceal an object with intent to impair its availability for use in an official proceeding. It was held that the price fixing count would not, if committed in England, have constituted an English offence. It was then contended that the ill health of the defendant and his 64 year old wife and their interdependence and the effect that his extradition would have on her depressive illness made the interference with their Article 8 rights disproportionate to the public interest in his extradition for subsidiary charges. It was held that, although there could be no absolute rule that any interference with Article 8 rights as a consequence of extradition would be proportionate, there was a compelling public interest in extradition as part of the process of insuring the prevention of disorder and crime. Since the likelihood of interference with family life was inherent in the process of extradition, the consequences of interference with those rights had to be exceptionally serious before they could outweigh the public interest in giving effect to requests for extradition so as to make extradition of the individual disproportionate. On considering the proportionality of a particular extradition, the judge could take account of the relative gravity of the offence and the effect of extradition on members of the extraditee's family. The offences of obstructing justice with which the defendant remained charged were, notwithstanding the withdrawal of the price fixing charge, offences of significant gravity. The consequences of extradition on the defendant's close family ties and dependencies, the severity of which had increased by reason of the delay brought about by his asserting his legal rights in regard to the price fixing charge, were not so excessive as to render that extradition disproportionate to the public interest in the prevention of crime which it served. Accordingly the decision to extradite the defendant would be upheld.
26. Lord Phillips of Worth Matravers referred to a number of Strasbourg authorities. He noted in paragraph 31 the situation where, in a domestic case, breach of Article 8 rights within the territory of the respondent state is advanced as a bar to extradition. There is, he said, in fact no reported case in which such a complaint has succeeded or even been held admissible where not joined with other allegations of breach. He referred to a series of domestic decisions, including Huang v Secretary of State for the Home Department [2007] 2 AC 167 and Ruiz v Madrid [2008] 1 WLR 2798, where Dyson LJ said at paragraph 57:

"It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's Article 8 rights."

Lord Phillips also referred to Tajik v Government of the United States of America [2008] EWHC 666 (Admin), where Richards LJ recognised the practical reality that Article 8 will only rarely provide a ground for refusing extradition; and to Wellington which underlines the weight that the desirability of extradition carries as an essential element in combating public disorder and crime.

27. The case advanced in Norris was that the approach to the impact of Article 8 should be the same in extradition cases as in deportation or expulsion cases. Lord Phillips agreed at paragraph 51 that there could be no absolute rule that any interference with Article 8 rights as a consequence of extradition would be proportionate. The public interest in extradition nonetheless weighs very heavily indeed. He said at paragraph 52 and 54:

"It is of critical importance in the prevention of disorder and crime that those reasonably suspected of crime are prosecuted and, if found guilty, duly sentenced. Extradition is part of the process for ensuring that this occurs, on a basis of international reciprocity. It is instructive to consider the approach of the Convention in dealing with criminals or suspected criminals in the domestic context. Article 5 includes in the exceptions to the right to liberty (i) the arrest of a suspect, (ii) his detention, where necessary, pending trial and (iii) his detention while serving his sentence if convicted. Such detention will necessarily interfere drastically with family and private life. In theory a question of proportionality could arise under Article 8(2). In practice it is only in the most exceptional circumstances that a defendant would consider even asserting his Article 8 rights by way of challenge to remand in custody or imprisonment: see R (P) v Secretary of State of the Home Department [2001] 1 WLR 2002, para 79, for discussion of such circumstances. Normally it is treated as axiomatic that the interference with Article 8 rights consequent upon detention is proportionate.

…

There is an analogy between the coercion involved in extradition and the coercion involved in remanding in custody a prisoner reasonably suspected of wishing to abscond. In either case the cohersion is necessary to ensure that the suspect stands his trial. Each is likely to involve a serious interference with Article 8 rights. The dislocation of family life that will frequently follow extradition will not necessarily be more significant, or even as significant, as the dislocation of family life of the defendant who is remanded in custody. It seems to me that, until recently, it has been treated as axiomatic that the dislocation to family life that normally follows extradition as a matter of course is proportionate. This perhaps explains why we have been referred to no reported case, whether in Strasbourg or in this jurisdiction, where extradition has been refused because of the interference that it would cause to family life."

He added at paragraph 55 that the interference with human rights will have to be extremely serious if the public interest is to be outweighed; and at paragraph 56 that the reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves.

28. Lord Phillips considered at paragraph 63 that the gravity of the extradition offence could be of relevance; and at paragraph 64 that the impact of extradition on other family members could also be of relevance. At paragraph 65, he envisaged a situation of an offence of no great significance in relation to someone who had sole responsibility for an incapacitated family member.
29. Having considered the facts of the case, Lord Phillips concluded at paragraph 82:

"In a case such as this it is the exception that proves the rule. One has to consider the effect on the public interest in the prevention of crime if any defendant with family ties and dependencies such as those which bind Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing. The answer is that the public interest would be seriously damaged. It is for this reason that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest that it serves. This is not such a case. Unhappily the delay that has been caused by Mr Norris' efforts to avoid extradition to the United States has increased the severity of the consequences of that extradition for his family life. But those consequences do not undo the justification that exists for that interference."

30. Lord Hope of Craighead began his judgment in paragraph 87 saying that it would not be right to say that a person's extradition can never be compatible with his right to respect for his family life under Article 8 of the European Convention on Human Rights; but resisting extradition on this ground is not easy. The issue was entirely one of proportionality. Having referred to Huang, he said at paragraph 91 that the cases in which an argument of the kind advanced in Norris will succeed are likely to be very few. He was in full agreement with Lord Phillips, as was Lord Brown who said at paragraph 95 that it would be only in the rarest cases that Article 8 would be capable of being successfully invoked under section 87 of the Extradition Act 2003. Lord Brown contrasted extradition cases with deportation cases, saying in paragraph 96 that the public interest in extradition was altogether more compelling. He referred to Huang where in non-extradition cases the House of Lords contemplated Article 8 succeeding only in a very small minority of cases. Lord Mance, Lord Collins and Lord Kerr gave concurring judgments.
31. Although the emphasis in Norris was rather on the family life aspect of Article 8 than the private life aspect, it is plain that equivalent considerations apply to each. There is of course a family life aspect to Mrs Prosser's case. But greater emphasis is placed on the private life aspect of the effect of extradition on her mental and physical health and well being. Equally the risk of suicide brings Article 8 into play, as it did in Jansons. We have to weigh on the one hand the very strong public interest in giving proper effect to extradition treaties, as emphatically described in Norris, and taking account of the delay and the moderate seriousness of the offences with the undoubtedly deleterious effect that extradition will have on Mrs Prosser's well being, taken with the disruption of her family life and that of her husband. We have assessed the effects on her well being and the risk of suicide in our consideration of her Article 3 claim. We note that detention and transfer to the United States and a probably remand in custody in the United States are likely to take effect in much the same way as if Mrs Prosser were to be remanded in custody pending trial in this jurisdiction – circumstances in which an Article 8 plea could scarcely expect to succeed. Certainly transfer to and detention in a foreign jurisdiction would be likely to be more damaging, both psychologically and physically, and also because of the greater degree of separation from her husband. But Dr Hollingworth is of the opinion that the process of transfer, including the risk of suicide, can be managed, and proper assurances have been given by the US authorities as to her care and treatment.
32. We have concluded that Mrs Prosser's extradition to the United States would not be disproportionate in Article 8 terms, and that it serves the necessary democratic aim of preventing crime and maintaining public order by adhering to extradition treaties. Mrs Prosser's case does not, in our judgment, have striking and unusual features leading to the conclusion that it would be disproportionate to interfere with her Article 8 rights.
33. For these reasons, the claim for judicial review fails.