McKinnon v Secretary of State for the Home Department

Under Part 2 of the Extradition Act 2003, the Secretary of State has no residual health discretion once a case has been sent to her. She must order extradition unless a statutory bar applies or Convention rights require a different outcome.

Fresh evidence may nevertheless require consideration where it raises a possible Convention breach. The threshold under Article 3 is stringent: the claimant must show strong grounds for believing that extradition creates a real risk of torture or inhuman or degrading treatment. Issues already raised, or which should have been raised, in the extradition proceedings will generally not qualify as supervening matters. A newly diagnosed condition may justify substantive consideration where its significance could not reasonably have been addressed earlier.

The claimant faced extradition to the United States under Part 2 of the Extradition Act 2003. The District Judge sent the case to the Secretary of State, who ordered extradition. The claimant’s statutory appeal was dismissed by the High Court ([2007] EWHC 762 (Admin)) and his further appeal was dismissed by the House of Lords ([2008] UKHL 59).

After the House of Lords decision, the claimant was diagnosed with Asperger’s syndrome and made further representations concerning his mental health, possible detention at ADX Florence, and Convention rights. The central question was whether those matters disclosed an arguable basis for judicial review of the Secretary of State’s decision.

1. Permission and scope. The renewed application was granted only to the limited extent that the claimant’s Article 3 case based on the newly diagnosed Asperger’s syndrome required substantive consideration. Article 8 was excluded, subject to related points concerning pre-trial bail and post-sentence repatriation insofar as they concerned the diagnosis.
2. No residual discretion. The structure and language of Part 2 of the Extradition Act 2003 showed that, after a case had been sent to the Secretary of State, she was required to order extradition unless one of the matters specified in section 93(2), or referred to in section 93(4), applied. The Act did not preserve a general discretion based on health. Its policy was to prevent serial applications raising matters already raised, or capable of being raised, in the extradition proceedings.
3. Convention obligation and fresh evidence. The statutory scheme did not remove the Secretary of State’s duty as a public authority under section 6 of the Human Rights Act 1998 to respect Convention rights. Exceptionally, fresh evidence or a supervening matter could require consideration after the statutory appeal process. The newly diagnosed Asperger’s syndrome, supported by medical evidence concerning possible serious deterioration and suicide risk, was capable of engaging that exception and therefore merited full argument.
4. ADX Florence. The evidence concerning the likelihood of detention at Florence did not disclose an arguable ground. The Secretary of State was entitled to regard the Human Rights Watch letter as assuming, rather than reasonedly establishing, detention there, and to reject the changed and generalised evidence of Mr Loflin. In any event, the issue had been addressed by the District Judge, was not challenged in the earlier appeal, and the underlying material had been available from the outset. It was not a supervening matter. Applying the stringent Article 3 threshold stated in Ullah v Special Adjudicator [2004] 2 AC 323, the claimant had no arguable case on this issue.
5. The substantive hearing was ordered to be expedited and listed for the first available date after 16 March 2009.

• House of Lords: Further appeal dismissed on 30 July 2008, [2008] UKHL 59.
• High Court (Administrative Court): Statutory appeal dismissed, [2007] EWHC 762 (Admin).
• Present proceedings: Renewed application for permission to apply for judicial review. Limited permission granted.