McKinnon v USA & Anor

In extradition proceedings, delay bars extradition only where it would make extradition unjust or oppressive. Unjustness primarily concerns prejudice to the fairness of the trial; oppression concerns hardship caused by changed circumstances, although the concepts overlap.

Article 8 may exceptionally prevent extradition for serious offences committed in the requesting state, but ordinary family disruption, a longer foreign sentence, and lawful prison conditions are insufficient. A court may recognise abuse of process in extradition proceedings, including abusive conduct by the requesting state, but lawful plea incentives and refusal to support repatriation do not necessarily constitute abuse. A free-standing human-rights challenge to the Secretary of State is principally available only where circumstances arise after the statutory appeals have concluded.

The appellant was sent for extradition by Bow Street Magistrates’ Court on 10 May 2006 and the Secretary of State ordered extradition on 4 July 2006. He appealed against both decisions under sections 103 and 108 of the Extradition Act 2003.

The United States alleged that he had unlawfully accessed and damaged numerous US Government computers from London. The live issues concerned political opinions, passage of time, compatibility with Convention rights, abuse of process arising from alleged delay and plea-bargaining conduct, and the scope of any human-rights challenge to the Secretary of State’s decision.

1. Appeals dismissed. None of the statutory grounds for allowing the appeals against the District Judge or the Secretary of State was established.
2. Political opinions. Section 81(b) required evidence that the appellant’s political opinions might cause prejudice at trial or punishment, detention or restriction of liberty. The fact that the prosecution relied on politically expressed comments, or that the conduct embarrassed the United States, did not establish that risk.
3. Passage of time. Applying the approach in Kakis v The Government of the Republic of Cyprus (1978) 1 WLR 779, the court treated injustice as directed primarily to trial prejudice and oppression as directed primarily to hardship resulting from changed circumstances. The five-year period was substantially explained by the investigation, mutual legal assistance, negotiations, preparation of the extradition request and proceedings. The electronic evidence and admissions meant that no identifiable trial prejudice or oppressive circumstance had been shown. Kociukow v District Court of Bialystok [2006] EWHC 56 (Admin) was materially distinguishable.
4. Article 8. Extradition engaged private and family life, but, following the exceptional-circumstances approach in Launder v United Kingdom (1997) 25 EHRR CD 67 and Bermingham v Director of the Serious Fraud Office [2006] EWHC 200 (Admin), the interference was proportionate. Family circumstances were ordinary; the alleged offences were serious; the United States had the stronger prosecutorial connection; and neither a potentially longer lawful sentence nor the evidence concerning prison devices reached the required threshold. The court found the reasoning in Ferras v United States of America [2006] 2 SCR 77 a useful yardstick, including its reference to sentences that would shock the conscience.
5. Abuse of process. The court accepted that an extradition court has jurisdiction to prevent abuse, as explained in Bermingham. However, the evidence did not establish deliberate or abusive delay. The proposed plea agreement offered lawful benefits, including possible sentence reductions and support for repatriation, rather than threatening unlawful punishment. United States of America v Cobb [2001] 1 SCR 587 and United States of America v Shulman [2001] 1 SCR 616 were distinguishable because they involved coercive threats of unlawful consequences.
6. Secretary of State. In principle, section 6 of the Human Rights Act 1998 may permit a human-rights challenge to the Secretary of State. Ordinarily, however, the human-rights case stands or falls on the appeal concerning the District Judge. A free-standing challenge may arise after the statutory appeals, for example following a supervening illness before removal.

• High Court (Administrative Court): the appeals against the Bow Street Magistrates’ Court decision of 10 May 2006 and the Secretary of State’s decision of 4 July 2006 were dismissed.