McKinnon v The United States of America & Anorr

The House of Lords considered whether prosecutorial plea bargaining by a requesting state, including the indication that support for a prisoner-transfer application would be withheld if the accused resisted extradition, could amount to an abuse of process requiring the extradition proceedings to be stayed. The court held that prosecutorial plea bargaining and predictions about sentencing do not, save in wholly exceptional cases, amount to an abuse of process disentitling a requesting state to pursue extradition. The court distinguished the present case from the Canadian authorities USA v Cobb and USA v Shulman on the facts, noting (a) that the threats in those cases involved far more extreme conduct and (b) that here the alleged refusal to support transfer had been repudiated by the US Attorney's Offices. The court accepted that the District Judge had jurisdiction under the Extradition Act 2003 to consider abuse of process and Convention rights under the Human Rights Act 1998 but found that articles 5(4) and 6 of the Convention added nothing to the abuse argument. The appeal was dismissed.

The appellant, a British citizen, was accused of unauthorised access to and damage of 97 United States government computers. The United States sought his extradition under the Extradition Act 2003 (category 2, Part 2). Prior to the extradition request the appellant had been interviewed and two indictments had been returned in US federal courts. During pre-trial discussions US prosecutors indicated that a timely guilty plea and voluntary surrender would be likely to attract a substantially lower sentence (predicted 37–46 months) and favourable support for transfer to the United Kingdom to serve part of the sentence, whereas contesting extradition and subsequent conviction might result in a materially longer sentence (8–10 years) and no support for transfer.

The appellant sought a stay of the extradition proceedings (and discharge) on the ground that the plea bargaining and the threat to withhold support for repatriation amounted to an abuse of process and an interference with his Convention rights. The District Judge certified compatibility with Convention rights under section 87 of the Act and sent the case to the Secretary of State, who ordered extradition. The Divisional Court dismissed appeals against the sending and the Secretary of State's decision and certified a point of law under section 114(4) of the Act. The House of Lords granted leave to appeal on the certified question.

The issues before the House were:

• whether prosecutorial plea bargaining including indicated differences in likely sentence depending on cooperation could, in themselves, amount to an abuse of process requiring permanent stay and discharge in extradition proceedings;
• whether an indicated or expressed refusal by the requesting authority to support a transfer of sentenced persons application (repatriation) if the defendant resisted extradition amounted to an abuse of process or an unjustified interference with Convention rights.

The court analysed relevant domestic authority (including R v Goodyear), comparative practice in the United States and the Canadian decisions relied upon by the appellant (notably USA v Cobb and USA v Shulman). The Lords emphasised that plea discounts and prosecutorial negotiation exist in English practice and that the mere existence of a disparity between the likely outcomes of cooperation and non-cooperation will not normally render extradition an abuse. The court found the present case materially different from Cobb, where judicial threats and highly improper prosecutorial statements had been made. The Lords also took into account a later affidavit by US prosecutors disavowing any intention to withhold support for transfer in the circumstances alleged. The court concluded that only in an extreme case of unconscionable pressure (for example, threats of unlawful conduct or comparable misconduct) would an abuse of process stay be appropriate; this case did not meet that threshold. Relief sought (a stay and discharge) was therefore refused and the appeal dismissed.

This was an appeal against extradition which the House of Lords dismissed. The court held that prosecutorial plea bargaining and predictions about sentencing, including conditional indications about support for prisoner-transfer applications, do not ordinarily constitute an abuse of process disentitling the requesting state to pursue extradition. Only in wholly exceptional circumstances involving unconscionable pressure or threats (as in USA v Cobb) would a stay and discharge be appropriate; the facts here did not reach that threshold. The appellant's Convention rights added nothing further to his abuse of process claim.

District Judge Evans at Bow Street Magistrates' Court sent the case to the Secretary of State on 10 May 2006; the Secretary of State ordered extradition on 4 July 2006. The appellant appealed to the Divisional Court (Maurice Kay LJ and Goldring J), which dismissed the appeals on 3 April 2007 ([2007] EWHC 762 (Admin)) and certified points of law under section 114(4) of the Extradition Act 2003. Leave to appeal to the House of Lords was granted and the appeal was dismissed by the House ([2008] UKHL 59, 30 July 2008).