McCaughey v United States of America & Anor

In extradition cases, a serious medical condition does not automatically make removal unjust or oppressive, or breach Article 3. The court must assess the individual risk and the extent of the danger involved. Relevant evidence may include the person’s previous travel without serious mishap, current medical evidence and assurances concerning medical assessment, supervision and treatment during removal. A failure to comply with the procedural duty to inform a person of the right of appeal does not necessarily invalidate the extradition decision. Its effect depends on the circumstances and whether the omission has caused a relevant consequence.

The claimant appealed under section 103 of the Extradition Act 2003 against District Judge Evans’s decision to send his case to the Secretary of State following a request by the United States. He was accused of offences involving indecent photographs of children. He relied on morbid obesity, chronic obstructive pulmonary disease and the risks of long-distance air travel, arguing that extradition would be unjust or oppressive under section 91 and incompatible with Article 3 of the European Convention on Human Rights.

He also challenged the assessment of the evidence, the sufficiency of United States assurances and the District Judge’s failure to inform him of his right of appeal under section 92(2).

1. The appeal was dismissed. The High Court held that the medical risk did not by itself establish that extradition would be unjust or oppressive under section 91 of the Extradition Act 2003, or incompatible with Article 3 of the European Convention on Human Rights. The applicable threshold was high. The court had to assess the particular risk and the extent of the danger involved.

2. The District Judge was entitled to consider that the claimant had previously travelled by air while suffering from the same condition, without serious mishap, together with the up-to-date medical evidence. The fact that the earlier journey had involved a self-imposed risk did not make it irrelevant. The District Judge was entitled to assess all the evidence and give appropriate weight to it.

3. The assurances from the United States were material to the risk assessment. They provided for a pre-flight assessment by a physician experienced in aviation medicine, continuous access to supplemental oxygen, monitoring of blood oxygen levels and medical assistance during transport. There was sufficient material to support the conclusion that removal would not breach the claimant’s human rights.

4. The failure to comply with section 92(2) was a breach of an important procedural safeguard, but it was not a precondition to the power to send the case to the Secretary of State. In this case the claimant was represented, knew of his right of appeal and had exercised it. The omission therefore had no relevant consequence. Different considerations might arise where implementation followed before the person knew of the right to appeal.

5. The remaining grounds, including the challenge to the weight given to the assurances, disclosed no separate issue. The order sending the case to the Secretary of State stood.

• High Court (Administrative Court): appeal against District Judge Evans’s decision at Bow Street Magistrates’ Court dismissed. No lower-court citation was stated in the judgment.