The Supreme Court handed down judgment in the case of Norris v Government of United States of America [2010] UKSC 9 on 24th February 2010. The case, heard on the 30th November and 1st December 2009 concerned an extradition hearing pursuant to Part 2 of the Extradition Act 2003 c. 41 (‘the Act’).

Extradition proceedings were commenced by the respondents on 28th September 2004 following the indictment of Mr. Norris by a Grand Jury on one charge of price-fixing and three charges of obstructing justice. The appellant resisted the proceedings on the ground that the conduct he was charged with was not criminal under English law. The House of Lords in Norris v Government of United States of America [2008] UKHL 16 held that the conduct relating to the obstruction of justice would have been criminal if carried out in this jurisdiction and was therefore an extraditable offence.

Section 87 of the Act provides that the judge in an extradition hearing “must decide whether the person’s extradition would be compatible with the Convention rights”. The appellant contended in the present case that the extradition would interfere with his exercise in this country of his right to respect for private and family life under article 8 of schedule 1 of the Human Rights Act 1998 c. 42. The critical question for the court was whether the interference was necessary in a democratic society for the prevention of crime or disorder. In order to justify the extradition it must fulfil a “pressing social need” and be proportionate to the “legitimate aim” being pursued.

The appellants challenged the decision of the Divisional Court, with counsel submitting that the judge had erred in law by holding that an article 8 claim could only prevail on facts that met a high threshold of exceptionality. Dismissing the appeal the Supreme Court held, applying AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 that the legal test remains proportionality not exceptionality. The court emphasised that extradition cases would not fall into a special category of case which diminishes the need to examine how the process interferes with the appellants article 8 rights. The court went on to indicate however, that in reality it would only be in exceptional circumstances that extradition would not be proportionate to the legitimate aim of preventing crime and disorder by honouring international extradition arrangements. The bilateral Extradition Treaty of 1972 between the United Kingdom and the United States was an example of such an arrangement.

Responding to the subsidiary issues raised by counsel the court rejected the notion that the gravity of the offence can never be relevant to the application of the proportionality test. Applying the cases of Boultif v Switzerland (2001) 33 EHRR 50and Üner v The Netherlands (2007) 45 EHRR 14 the court also held that it was entitled to consider the interference in respect of family rights not only from the viewpoint of the Extraditee but also from the viewpoint of other members of his family who are affected.

In the present case there was no exceptionally compelling feature other than the delay brought about by the appellant’s resistance to the extradition application, to indicate that the interference would not be proportionate to the objective that extradition serves.