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

In extradition proceedings, an Article 8 claim is assessed by balancing the public interest in prosecution in the appropriate jurisdiction against the interference with private and family life. A claimant need not establish “striking and unusual facts” merely because that issue was certified in another case. Article 3 requires assessment of the seriousness of the treatment faced against the high threshold imposed by that provision. A failure to seek assurances cannot itself establish an Article 3 breach where the anticipated treatment would not breach Article 3 even without those assurances.

The claimant sought certification of points of law of general public importance and permission to appeal following the Divisional Court’s earlier judgment concerning his proposed extradition. He also sought an oral hearing on those applications.

The court considered whether its conclusions on Articles 8 and 3 of the European Convention on Human Rights raised certifiable points or disclosed grounds for permission to appeal. The central issues were the correct approach to the Article 8 claim, and whether the absence of assurances concerning bail and repatriation affected the Article 3 assessment.

1. Applications determined. The court refused a further oral hearing, declined to certify any point of law of general public importance, and refused permission to appeal.
2. Article 8. The court’s decision did not depend on requiring “striking and unusual facts” or satisfaction of a “high threshold”. The court balanced the public interest in prosecution in the appropriate jurisdiction against the interference with the claimant’s Article 8(1) rights. It concluded that extradition was a lawful and proportionate response and that there was no real prospect of the Article 8 arguments succeeding.
3. The certified question in Norris v United States of America [2007] EWHC 71 (Admin) did not require a different approach. The court stated that, but for the grant of permission to appeal in that case, it would have refused permission to apply for judicial review on the Article 8 ground.
4. Article 3. The court applied the conventional assessment of the seriousness of the treatment likely to be faced against the high threshold under Article 3. On the evidence, extradition would not involve or result in treatment breaching Article 3. The absence of assurances concerning bail and repatriation therefore did not affect the conclusion. If absolute assurances were unnecessary to avoid an Article 3 breach, a failure to seek them could not itself create such a breach.
5. The Article 3 arguments did not raise the proposed points of general public importance. Permission to apply for judicial review on the Article 8 ground was refused, and permission to appeal was consequently refused.

1. Divisional Court, Administrative Court: an earlier judgment handed down on 31 July 2009 rejected the claimant’s Article 8 and Article 3 arguments concerning extradition. The present judgment refused certification and permission to appeal.