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Appeal under section 26 of the Extradition Act 2003 by AB against The Lord Advocate (High Court of Justiciary)
Anonymised Summary of Opinion
Factual and Procedural Background
Judge Matthews delivered the opinion in an appeal under section 26 of the Extradition Act 2003 by the Appellant against the Respondent (the Requesting State). The Appellant faces two warrants from the Requesting State: an accusation warrant alleging complicity in fraudulent obtaining of US$33,750 by impersonation and related offences, and a conviction warrant requiring service of a 30‑month sentence for embezzlement of scaffolding.
The Appellant first appeared at the Sheriff Court on 26 September 2023 and was refused bail. Over the course of 2024–2025 multiple procedural steps occurred: Case and Argument documents were lodged asserting incompatibility with ECHR Articles 2, 3 and 8; applications for bail and for commission and diligence were refused or opposed; several hearings were adjourned for various reasons (including investigation into the death of a person in the Requesting State and availability of counsel and interpreters); the Appellant gave evidence and called family members as witnesses regarding threats and long‑standing health conditions.
The sheriff held a full hearing, found insufficient evidence of a real risk to the Appellant's life or of serious mistreatment in the Requesting State, found Article 8 grounds insufficient to outweigh the public interest in extradition, but noted concerns about fitness to travel and sought assurances and medical information. Medical letters from prison healthcare staff deemed the Appellant fit to fly and the Requesting State provided assurance that a qualified medical professional would accompany him. On 22 January 2026 the sheriff ordered the Appellant's extradition. The Appellant sought permission to appeal and appeared before the Appeal Court seeking an adjournment and renewal of several grounds; permission to appeal was refused.
Legal Issues Presented
- Whether extradition would be incompatible with the Appellant's rights under ECHR Article 3 (risk of death or ill‑treatment) given allegations of threats and the contested circumstances surrounding a death in the Requesting State.
- Whether extradition would be incompatible with the Appellant's rights under ECHR Article 8 (private and family life) given his family and health connections in the forum State.
- Whether the Appellant was fit to be removed by air and whether the medical assessment relied upon was adequate.
- Whether procedural fairness was afforded in relation to disclosure of documents, commission and diligence applications, interpreter availability and the conduct/availability of legal representatives.
- Whether the Appellant satisfied the statutory tests in section 27(3) and (4) of the Extradition Act 2003 such that permission to appeal should be granted.
Arguments of the Parties
Appellant's Arguments
- Extradition would breach Articles 2 and 3 because the Appellant faced a real risk of violence in the Requesting State arising from affiliations and the contested death of a person said to have incriminating information.
- Extradition would breach Article 8 because of family ties and his health and care needs in the forum State.
- Key documents seized on arrest were not returned, preventing effective defence; the sheriff erred in refusing Commission and Diligence.
- Procedural unfairness: inadequate consideration of bail; ineffective legal representation undermining his case; absence of an interpreter at a hearing; late disclosure of medical evidence.
- His medical fitness to fly was improperly based solely on an NHS nurse's opinion rather than independent expert evidence.
- He sought an adjournment in the Appeal Court to obtain representation and to add family/medical material to his Note of Appeal.
Respondent's Arguments
- The evidence did not establish the necessary threshold of a "real risk" under Article 3; allegations that the person was murdered were second‑hand and an official investigation had been described as one of medical error.
- The Requesting State could provide protection to the Appellant and there was a presumption that the Appellant's medical needs would be met in custody (citing relevant authority).
- Article 8 claims were weak given the Appellant's limited time in the forum State and absence of exceptional hardship to family.
- The Appellant had ample opportunity to secure representation and to obtain medical records; procedural complaints did not demonstrate error warranting discharge or permission to appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| KK (Article 3, Standard of Proof, Non-State Actors) [2001] UKIAT 18 | Defines "real risk" as a relatively low threshold, more than a mere possibility; comparable to "reasonable chance" or "serious possibility". | The sheriff highlighted this authority; the court observed that, applying that standard, there was insufficient evidence to establish any real risk to the Appellant. |
| Lodhi v Secretary of State for the Home Department [2010] EWHC 567 (Admin) | In extradition contexts "real risk" requires more than a mere possibility. | Referenced by the sheriff in explaining the standard for Article 3; the court accepted that standard and found the evidence fell short. |
| Lord Advocate (United Arab Emirates) v Black [2017] 11 WLUK 425 | Application of the "real risk" standard in extradition cases (see paragraph 69 of that judgment as cited). | Used by the sheriff to frame the Article 3 assessment; court applied the same approach and found no real risk established. |
| W v Spain [2020] EWHC 2278 (Admin) | Supports a presumption that the medical needs of an individual in custody in the requesting State will be met appropriately (paragraphs 64–65). | The procurator fiscal relied on this authority to support the view that medical care would be provided; the sheriff accepted medical and diplomatic assurances and ordered extradition. |
| Ireland v United Kingdom (1978) 2 EHRR 25 | Authoritative European Court of Human Rights material cited in connection with Article 3 analysis. | Referenced by the sheriff as part of the Article 3 context; the court applied conventional Article 3 principles and found no incompatibility. |
| R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38 [2005] 2 AC 668 | Relevant authority for Article 3 considerations in extradition/extradition‑related proceedings. | Cited by the sheriff in framing the Article 3 argument; the court treated it as part of the established authorities and concluded the evidence did not meet the required threshold. |
| Dean v Lord Advocate [2017] UKSC 44, 2018 SC (UKSC) 1 | Addresses Article 3 issues and the role of systemic protection by the requesting State. | The sheriff noted that if the requesting State offers systemic protection, extradition will not generally be incompatible; the court accepted that proposition and found no Article 3 breach. |
| Marcoci v The Lord Advocate [2026] HCJAC 1 | Authority noted regarding the effect of an asylum claim on removal (an asylum claim prevents removal until resolved). | The court observed that while an asylum claim would prevent removal in practice, it did not affect the merits of the appeal for permission; Marcoci was cited for that limited proposition. |
| Anderson v HM Advocate 1996 SCCR 114 | Standard for appeals alleging defective representation (requires showing the effect was that the appellant's case was not put before the decision‑maker). | The court applied the Anderson principle to the Appellant's complaints about representation and found the sheriff had investigated the allegations and rejected them; no basis for appeal under that test was shown. |
Court's Reasoning and Analysis
The court reviewed the sheriff's factual findings and legal approach. The sheriff had applied established authorities on the Article 3 "real risk" threshold and noted that even a real risk can be compatible with extradition where the requesting State provides systemic protection. The evidence relied upon by the Appellant (largely second‑hand assertions about the death of a person in the Requesting State and witness accounts from abroad) did not, in the sheriff's assessment, establish a real risk of death or serious mistreatment.
The sheriff also found Article 8 assertions insufficiently strong to outweigh the public interest in extradition, and those findings were not challenged on appeal. Procedural complaints (failure to return seized documents, refusal of Commission and Diligence, interpreter absence, and alleged ineffective representation) were considered: the sheriff had investigated representation complaints and afforded opportunities; the absence of an interpreter caused no substantive hearing to proceed; no application had been made to secure medical records and the Appellant had the opportunity to obtain his own medical evidence. Medical letters from prison healthcare staff deemed the Appellant fit to fly and the Requesting State gave assurance that a qualified medical professional would accompany him; on that basis the sheriff proceeded to order extradition.
Finally, the court applied the statutory criteria in section 27(3) and (4) of the Extradition Act 2003 and concluded the Appellant produced nothing to show that the sheriff ought to have decided any question differently such that discharge would have followed, nor that new evidence or issues not before the sheriff would have led to discharge. Accordingly permission to appeal was refused.
Holding and Implications
Holding: Permission to appeal refused.
Implications: The sheriff's extradition order remains in force subject to any other procedural bars to removal (for example, an outstanding asylum claim preventing removal in practice). The court did not identify or establish any new legal precedent; it applied existing authorities and concluded that the Appellant's evidence and procedural challenges did not meet the statutory or legal thresholds required to secure permission to appeal.
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