In order for a requested person to succeed with an appeal under the “long stop” provision for appeals to avoid real injustice in exceptional circumstances in section 108(5)–(8) of the Extradition Act 2003 it would ordinarily be necessary to establish that the issue arose as the result of a supervening development or event and that there was a reasonable explanation for failing to anticipate the issue at the extradition hearing or on any earlier appeal.

The Divisional Court of the Queen’s Bench Division so held in dismissing the appeal of David McIntyre under section 108(5) of the Extradition Act 2003 against a decision of the Secretary of State for the Home Department on 15 July 2013 to confirm his extradition to the United States of America, a category 2 territory, notwithstanding provision of renewed evidence of the appellant’s severe psychiatric disability.

The appellant was a former officer of Royal Military Police who had run a security company which provided services to US clients in Iraq. It was alleged that he had paid a bribe to a US organisation in Iraq so as to obtain a contract. The US authorities accordingly sought his extradition. On 12 September 2012 District Judge Nicholas Evans ordered that the appellant’s case be sent to the Secretary of State, who ordered the appellant’s extradition on 10 November 2012. The appellant appealed to the Divisional Court on the grounds of psychiatric ill health but his appeal was dismissed on 19 February 2013. On 1 March 2013 a psychiatric report was issued diagnosing post traumatic stress disorder (“PTSD”) with depressive symptoms and a high suicide risk. The PTSD arose out of the time the appellant had been in Iraq and the events that he had witnessed there. The report said that if the appellant was given leave to remain in the UK, it would be possible to offer treatment for the appellant’s PTSD. In a follow up report on 9 April 2013 it was noted that the appellant’s condition had deteriorated and that he presented a high risk of suicide. On 15 July 2013 the Secretary of State further declined to accept the new psychiatric information as a basis for declining the appellant’s extradition. The appellant appealed on human rights grounds under section 108(5) of the 2003 Act.

The Extradition Act 2003 provides by section 108: “(5) … notice of an appeal under this section may be given after the end of the permitted period if it is an appeal on human rights grounds. … (7) Where notice of an appeal is given in accordance with subsections (5) and (6), the High Court is to consider the appeal only if it appears to the High Court that— (a) it is necessary to do so in order to avoid real injustice, and (b) the circumstances are exceptional and make it appropriate to re-open the appeal. …”

LORD THOMAS OF CWMGIEDD CJ, handing down the judgment of the court, said that there was an inevitable temptation to impose on section 108(5)–(8) of the 2003 Act the case law that was decided before the provision was enacted. The court should simply give effect to the statutory language having regard to its statutory context and purpose. (i) It was well established that all issues relating to the extradition of a requested person under Part 2 of the 2003 Act should be raised at the extradition hearing before the District Judge. (ii) On any appeal to the Divisional Court the court only considered such issues as had been raised. (iii) The decision on the extradition hearing (if there was no appeal) or of the Divisional Court or Supreme Court (if there was an appeal) was intended to bring finality to the extradition proceedings; the Home Secretary was thereafter under an obligation to extradite within strict time limits. (iv) Exceptionally events could occur after the decision on the extradition hearing (if there is no appeal) or of the Divisional Court or of the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights. (v) It was determined by Parliament that it was not apposite that the jurisdiction to determine these issues should remain with the Secretary of State for the Home Department. (vi) The provisions of section 108(5)–(8) were therefore intended to permit the determination of such issues by the courts by way of an appeal. The express language of the new provisions made it clear a court could only consider such an appeal if it was both necessary to avoid a real injustice and the circumstances were exceptional and made it appropriate to consider the appeal. (vii) It was not necessary to embellish that language. It was evident from the statutory purposes that a requested person would ordinarily have to establish that the issue arose as a result of a supervening development or event. It would also be necessary to provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal. (viii) Any application under section 108(5)–(8) had to be brought promptly. The evidence relied on should be filed with the application or within a period immediately thereafter to be measured in days, not weeks. The court had to make arrangements for the rapid hearing of the application. It might be desirable for appropriate directions to be given immediately in writing by the Master of the Administrative Court. Strict compliance with the directions had to be observed (or a variation sought from the court). The matter should generally be determined at a single hearing to avoid delay. However, though such applications would be rare, the practice Their Lordships had outlined should be reviewed in the light of experience. (ix) Applications under the new provisions were not be used to bring about undue delay to the process of extradition.

It had been clear from at least September 2012 that there was an issue in relation to the extent to which the appellant was suffering from PTSD, the availability of treatment for his PTSD in the USA and the risk of suicide and the steps that could be taken to prevent it. Although there was no proper explanation as to why those issues were not raised at the extradition hearing before the district judge, it was clear that this court was prepared to consider those issues in the appeal brought in November 2012. Although it was obviously important to obtain both the evidence and evidence as to how the USA would deal with treatment of the appellant and the risk of suicide, no proper steps were taken to obtain the evidence or to obtain a variation of the timetable for the service of evidence, prior to the hearing of the appeal on 19 February 2013. In the circumstances, there was nothing that could not and should not have been raised during the appeal. There was no reasonable explanation why those matters were not raised as the issues were so obvious. There were therefore no exceptional circumstances in relation to matters that should have been raised and there was no injustice. Even though that was sufficient to determine this appeal, the new evidence would not have enabled the appellant to establish a breach of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.