McLean v High Court of Dublin, Ireland

Extradition is incompatible with articles 2 or 3 where substantial grounds establish a real risk to life or of ill-treatment in the receiving state and, where the risk comes from non-state agents, the state would fail to provide reasonable protection. The assessment considers the general situation, the individual circumstances and the protection realistically available on return. Evidence of serious violence does not itself establish a Convention breach where effective protective arrangements are reasonably available. Article 8 requires a proportionality assessment giving great weight to the legitimate aim of honouring extradition treaties; striking and unusual facts are required before extradition will be disproportionate.

The appellant appealed under section 26 of the Extradition Act 2003 against a district judge’s order for his extradition to Ireland to face a robbery charge. He alleged that non-state agents posed a real threat to his life and that the Irish prison authorities could not protect him during remand. He also relied on articles 2, 3 and 8 of the European Convention on Human Rights. The central issues were whether the evidence established a Convention risk and whether the protection available in Irish custody was sufficient.

1. The appeal was dismissed. The court accepted that the appellant had shown a real threat to his life and safety in Ireland. The threat came from non-state agents.
2. Under article 3, the appellant had to establish substantial grounds for believing that extradition would expose him to a real risk of treatment contrary to article 3. The assessment required consideration of the foreseeable consequences of extradition, the general situation and his personal circumstances. Because the risk came from non-state agents, he also had to show that Ireland would fail to provide a reasonable level of protection, applying R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38.
3. The evidence did not establish that the Irish authorities would fail to provide reasonable protection. The prison authorities knew of their obligations under article 2, had introduced security measures, and had a system of protected status, separation and transfer. The appellant’s particular circumstances made it highly likely that he would receive protection and that relevant information would be available to the prison governor.
4. The court considered whether article 2 required essentially the same real-risk test as article 3. It was unnecessary to decide the point, but the court favoured that approach in the extradition context. In any event, the appellant would fail on the protection issue even if that test applied.
5. The article 8 claim failed. Although extradition would interfere with the appellant’s private and family life, that interference was proportionate to the legitimate aim of honouring extradition treaties. The approach in Jaso and others v Central Criminal Court No.2, Madrid [2007] EWHC 2983 (Admin) was applied.

• High Court (Administrative Court): dismissed the appeal against the order for extradition made by District Judge Nicholas Evans on 22 November 2007.