Stern v Director of Public Prosecutions & Anor

LORD JUSTICE MAURICE KAY: This is an urgent application for injunctive relief. Mr Stern is the subject of an extradition order. It appears that he sought to challenge extradition by appeal to this court, but failed in that. He was contemplating the possibility of an appeal to the House of Lords, but in January he communicated that he was no longer doing so. In other words, the extradition proceedings are over. All that remains is the implementation of extradition.

Under the 2003 Act, time ran from the point at which Mr Stern abandoned his interest in the House of Lords and will expire next Monday, 18th February. If not returned by then, he would be entitled to discharge unless reasonable cause were shown. However, Mr Hardy, on instructions, tells us that Mr Stern undertakes not to raise any point about that time limit.

The urgency has arisen because earlier this week (possibly Tuesday) Mr Stern was informed that he is booked to fly to Washington on a flight tomorrow. The anticipated arrival time in Washington is 3 o'clock tomorrow afternoon in local time. His anxiety arises because he is an Orthodox Jew and his religious beliefs do not allow him to travel on the Sabbath. We are told in the evidence that the Sabbath in Washington runs from 5.27pm tomorrow until 7.04pm on Saturday local time.

In his witness statement Mr Stern says in general no Orthodox Jew would travel after 12 noon if the travel involves flying or a long journey, to ensure that the journey is completed before sundown. He is concerned that he will be forced into breach of his religious obligations by the travel arrangements.

Therefore this application is made on Mr Stern's behalf to restrain his removal, so as to avoid travel on the Sabbath, either on departure, in transit, or on arrival, or the risk thereof. The application is made against the Crown Prosecution Service and/or the Serious Organised Crime Agency, as public authorities. The submission is that removal as planned would breach Mr Stern's rights under Article 9 of the European Convention on Human Rights.

In his concise submissions, Mr Hardy postulated three questions for us. The first goes to the issue of interference under Article 9. The second and third go to justification, if interference there be.

In my judgment, Mr Hardy fails at the first hurdle. He poses the question: is the degree of risk of a violation of Article 9 rights too high? In my judgment, the clear answer to that is that it is not. The planned journey is expected to result in arrival in Washington some two and a half hours before the commencement of the Sabbath. I acknowledge, of course, that not all flights arrive on time and sometimes when they are late they can be late by more than that period of time. However, in relation to a London/Washington flight I do not think the risk of substantial lateness can be assessed as "too high".

Even if the unexpected materialises, it is unlikely to encroach upon the Sabbath by more than a de minimis amount. Notwithstanding the absence of evidence about the precise terms of religious obligation one way or the other, I would be reluctant to find that a very minor and unscheduled encroachment in relation to an involuntary journey could be classified as an interference for the purpose of Article 9. Be that as it may, as I have said, I take the view that the application fails at a prior stage.

In those circumstances, it is unnecessary to investigate the subsequent questions as to whether the proposed journey is necessary in a democratic society and whether it is proportionate. Miss Dobbin, on behalf of the Crown Prosecution Service, has explained something of the background, but I do not think it appropriate or necessary to make any further findings.

Accordingly, I would refuse the application for injunctive relief.

MR JUSTICE WALKER: I agree.

LORD JUSTICE MAURICE KAY: Thank you both.