Bary & Anor, R (on the application of) v Secretary of State for the Home Department

In deciding whether extradition would expose a person to treatment contrary to article 3 of the ECHR, the court must assess the particular circumstances and apply a stringent real-risk threshold. The safeguards available in the requesting state must be as effective as the Convention standard. The importance of international co-operation and facilitating extradition may be relevant, especially where the person would otherwise escape trial. Harsh Supermax prison conditions, special administrative measures and life imprisonment without parole did not, on the evidence, cross the article 3 threshold because the regime was subject to individualised placement, progression through a step-down system and effective judicial remedies.

The claimants challenged decisions by the Secretary of State authorising their extradition to the United States under the Extradition Act 1989. They were accused of involvement in the conspiracy connected with the 1998 bombings of the United States embassies in Nairobi and Dar es Salaam.

The principal issue was whether extradition would create a real risk of treatment contrary to article 3 of the ECHR, particularly through special administrative measures, detention at ADX Florence, harsh conditions and life imprisonment without parole. The claimants also relied on trial in the United Kingdom, refoulement, diplomatic assurances and the designation of one claimant as a global terrorist.

1. Permission and outcome. Permission to apply for judicial review was granted on all grounds pursued, but judicial review was refused. The Secretary of State’s decisions authorising extradition therefore stood.
2. Article 3 required the court to assess whether substantial grounds established a real risk of treatment reaching the necessary minimum level of severity. The burden remained on the claimants. The inquiry had to focus on what was likely to happen to these claimants in their particular circumstances.
3. The safeguards in the requesting state had to be as effective as the Convention standard. The United States’ judicial and administrative remedies, including access to federal courts to challenge unlawful conditions of confinement, were material. The court accepted that the step-down system at ADX Florence linked the stringency of conditions to the prisoner’s individual risk and permitted progression.
4. Special administrative measures and life imprisonment without parole did not, on the evidence, breach article 3. Although the conditions at ADX Florence were extremely harsh, they did not amount to inhuman or degrading treatment, either alone or in combination with the other features of detention. Complete sensory isolation coupled with total social isolation could not be justified, but that was not the regime established on the evidence.
5. In applying Wellington [2009] 2 WLR 55, the court held that the importance of facilitating extradition was relevant to the article 3 threshold, particularly because the claimants would not realistically be tried in the United Kingdom. Had there been no prospect of entry into the step-down procedure, the threshold would have been crossed; the evidence did not establish that position.
6. A trial in the United Kingdom was neither viable nor appropriate. The United States’ assurances that the claimants would not face the death penalty or military commission, and would be returned to the United Kingdom in the specified circumstances, could be relied upon with complete confidence. Refoulement was not established.
7. The designation of Al Fawwaz as a global terrorist did not create a material risk of a flagrant denial of a fair trial or prejudice by reason of nationality. Any prejudice arising from publicity was a matter for the trial court to address.

Not stated in the judgment.