McKinnon, R (on the application of) v Secretary of State for Home Affairs

In extradition cases, Article 3 requires an objective assessment of whether removal creates a real risk of treatment reaching the exceptionally high threshold of inhuman or degrading treatment. The court must consider the seriousness of the anticipated treatment, the medical condition of the person concerned, detention conditions, bail, repatriation and the availability of appropriate care. Assurances from the requesting state may materially reduce the risk. The possibility of prosecution in the United Kingdom is relevant, but it does not require prosecution here where the Director of Public Prosecutions has lawfully concluded that the requesting state is the appropriate forum. The Secretary of State has no general duty to obtain assurances where, even without them, there is no real risk of an Article 3 violation.

Two judicial review claims concerned Gary McKinnon’s extradition to the United States and the refusal of the Director of Public Prosecutions to prosecute him in the United Kingdom. The extradition decision had already been upheld by the Divisional Court and the House of Lords. Following a later diagnosis of Asperger syndrome and further psychiatric evidence, the Secretary of State maintained her decision to extradite, relying on assurances concerning medical care in the United States. The DPP likewise maintained that the available evidence did not support charges reflecting the alleged criminality and that the United States remained the appropriate forum. The central issues were whether extradition created a real risk of treatment contrary to Articles 3 or 8, and whether the DPP was required to prosecute in the United Kingdom to avoid that risk.

1. Claim against the DPP. The challenge was unarguable. The DPP was entitled to conclude that the available evidence did not adequately reflect the alleged criminality, particularly because the evidence concerning the consequences of the hacking was principally in the United States. Judicial review of a prosecutorial decision is highly exceptional. The claimant could not use a later witness statement to challenge the decisions on material not before the DPP.
2. The DPP had no duty to prosecute the claimant in the United Kingdom in order to protect his own Convention rights or to pre-empt the extradition process. Responsibility for deciding whether extradition would be compatible with Convention rights lay with the Secretary of State and the courts under the Extradition Act 2003 and section 6 of the Human Rights Act 1998. The principle aut dedere aut judicare did not confer a private right to prosecution.
3. Claim against the Secretary of State. After the statutory extradition remedies had been exhausted, the Secretary of State had an implied power, derived from section 6 of the Human Rights Act 1998, to withdraw an extradition order where genuinely new evidence established that extradition would breach a Convention right. The question for the court was objectively whether the evidence established a real risk of such a breach.
4. Article 3 has a particularly high threshold in an extradition case, especially where the anticipated harm arises from mental illness, detention conditions or limitations in the receiving state’s resources rather than deliberate infliction by state agents. The court considered the diagnosis, the risks of detention and suicide, the assumed refusal of bail, the real risk that repatriation would not occur, and the United States assurances. Those assurances had substantial value and were inconsistent with treatment approaching Article 3 severity. The claimant’s case, although serious, did not reach that threshold.
5. There was consequently no duty to seek further assurances concerning bail or repatriation. Article 8 did not provide a separate basis for relief: extradition was a lawful and proportionate response to the alleged offending. The claim against the Secretary of State was dismissed, and permission to apply for judicial review of the DPP’s decisions was refused.

The judgment records that the claimant’s extradition had previously been upheld by the Divisional Court in [2007] EWHC 762 (Admin) and by the House of Lords in [2008] UKHL 59. The present Divisional Court dismissed the renewed challenge based on later medical evidence.