McLean v High Court of Dublin, Ireland

The appellant is the subject of a European arrest warrant issued by the respondent judicial authority in connection with a charge of robbery. He appeals under s.26 of the Extradition Act 2003 against an order for his extradition made by District Judge Nicholas Evans on 22 November 2007. The one issue raised before the district judge and pursued on appeal is whether extradition would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998. In particular, it is said that his life is under threat from non-state agents in Ireland and that the Irish authorities would be unable to provide him with a reasonable level of protection in prison.

The appellant relies primarily on articles 2 and 3 of the European Convention on Human Rights, which provide:

“Article 2

1.

Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

…

Article 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

It is convenient to start with article 3, where there is common ground as to the relevant test. It is well established that a person subject to an extradition request must show substantial grounds for believing that there is a real risk of his being subjected to treatment contrary to article 3 in the receiving country if he were extradited. For a recent statement of the principle, Mr Brandon cited the judgment of the European Court of Human Rights dated 28 February 2008 in Saadi v Italy (Application no. 37201/06), at paras 124 ff. In the same passage it is stated that to determine whether there is a risk of ill-treatment, it is necessary to examine the foreseeable consequences of sending the person to the receiving country, bearing in mind the general situation and his personal circumstances.

Where the risk of ill-treatment emanates from non-state agents, it must also be shown that the state would fail to provide a reasonable level of protection against such ill-treatment. That is the approach laid down in R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38, [2005] 2 AC 668, a case decided in the context of immigration but equally applicable to extradition. As Lord Brown of Eaton-under-Heywood expressed it at para 24:

“The plain fact is that the argument throughout has been bedevilled by a failure to grasp the distinction in non-state agent cases between on the one hand the risk of serious harm and on the other hand the risk of treatment contrary to article 3. In cases where the risk ‘emanates from intentionally inflicted acts of the public authorities in the receiving country’ (the language of D v United Kingdom 24 EHRR 423, 447, para 49) one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the proscribed treatment. Where, however, the risk emanates from non-state bodies, that is not so: any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts. … Non-state agents do not subject people to torture or the other proscribed forms of ill-treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the state’s failure to provide reasonable protection against it.”

The test under article 2 is less clear and more contentious. In Launder v United Kingdom (Application no. 27279/95, decision of 8 December 1997), the European Commission of Human Rights considered the application of article 2 in a case where the applicant claimed to be at risk of the death penalty if extradited. It stated (at pp.19-20):

“The Commission recalls that Article 2 … contains two separate though interrelated basic elements. The first sentence of paragraph 1 sets forth the general obligation that the right to life shall be protected by law. The second sentence of this paragraph contains a prohibition of intentional deprivation of life, delimited by the exceptions mentioned in the second sentence itself and in paragraph 2 ….

The Commission finds nothing to indicate that the extradition of the applicant would amount to a violation of the general obligation contained in the first sentence of paragraph 1.

As regards intentional deprivation of life the Commission further recalls its case-law according to which it is not excluded that an issue might be raised under Article 2 … in circumstances in which an expelling State knowingly puts the person concerned at such high risk of losing his life as for the outcome to be a near-certainty. However, there must be a ‘near-certainty’ of loss of life to make expulsion an ‘intentional deprivation of life’ prohibited by Article 2 .... Allegations of the existence of a ‘real risk’ only fall to be examined under the prohibition of inhuman treatment as enshrined in Article 3 ….

The Commission considers that a similar approach is justified not only in cases of expulsion, but also of extradition.”

That approach has been followed in other cases and was submitted by Miss Lindfield to represent the correct test under article 2 in the present case. Mr Brandon, on the other hand, relied on the judgment of the European Court of Human Rights dated 8 August 2006 in Bader v Sweden (Application no. 13284/04) as revisiting the “near-certainty” test and adopting essentially the same approach under article 2 as under article 3. In Bader the applicant claimed to be at risk of the death penalty if deported to Syria. The court stated:

“41.

… However, the deportation of an alien by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to deport the person in question to that country ….

42.

Moreover, the Court has not in earlier cases excluded the possibility that a Contracting State’s responsibility might be engaged under Article 2 of the Convention … where an alien is deported to a country where he or she is seriously at risk of being executed, as a result of the imposition of the death penalty or otherwise ….”

…

48.

Thus, having regard to all the circumstances of the case, the Court considers that there are substantial grounds for believing that the first applicant would be exposed to a real risk of being executed and subjected to treatment contrary to Articles 2 and 3 if deported to his home country. Accordingly, the Court finds that the deportation of the applicants to Syria, if implemented, would give rise to violations of Articles 2 and 3 of the Convention.”

In its conclusion in that case the court does appear to have applied the same test of “real risk” in relation to article 2 as in relation to article 3 (though it also referred in para 42 to “serious risk” in the context of article 2). It did not, however, refer to Launder or provide any reasoned explanation of why it was adopting a different approach from the “near certainty” test in Launder. A possible basis for the difference in approach lies in the fact that the “near certainty” test in Launder was formulated in the context of the second sentence of article 2(1) (expulsion amounting to an intentional deprivation of life), where it makes good sense, whereas the first sentence of article 2(1), although not relied on for this purpose in Launder, is potentially broader in scope. The first sentence imposes on the state a positive obligation to protect life. Its scope is illustrated by Osman v United Kingdom (1998) 29 EHHR 245, which concerned the fatal shooting of Mr Osman and the wounding of his son in circumstances where it was alleged that the police had been warned that the killer posed a threat to their safety but had failed to protect them. The European Court of Human Rights stated at para 115 of its judgment that article 2 may imply a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. As to the scope of that obligation, it stated in para 116:

“... In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person …, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. … For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge ….”

R (Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724, illustrates the application of such reasoning in the specific context of the protection provided to a prisoner against the criminal acts of third parties. In that case the Court of Appeal did not consider it necessary to qualify “risk to life” by the words “real and immediate” (which are to be found in the passage I have quoted from Osman), but that appears to have been on the basis that the qualifying adjectives did not add anything for the purposes of article 2 rather than because of any difference of view as to the substantive test. I think it unnecessary to consider the details of the case for present purposes.

The same general line of reasoning can be applied without undue difficulty to the extradition context, so that it will be a breach of article 2 for a state to extradite a person if there is known to be a real (or real and immediate) risk to his life in the receiving country. Where the risk to life is from non-state agents, it will be necessary to show in addition a lack of reasonable protection in the receiving country, in accordance with the principles in R (Bagdanavicius) v Secretary of State for the Home Department (see above).

The adoption of essentially the same test in relation to article 2 as in relation to article 3 has obvious attractions to it. It is very unsatisfactory to apply a higher threshold in the case of a risk to life than in a case where the risk is of less serious harm (albeit sufficiently serious to fall within article 3). True, the point may be devoid of practical significance since Launder shows that article 3 can be relied on even where the risk is to life; but it is strange to have to rely on article 3 where the subject matter falls more naturally under article 2.

I have thought it right to deal with this issue because it was covered in argument before us. In the event, no final decision is needed on it, not only because it is common ground that the appellant is entitled to rely on the “real risk” test under article 3, but also because, as explained below, he fails to meet that test on the facts and would equally fail to meet the “real risk” test if it did apply under article 2. For the reasons I have given, however, I lean towards acceptance of Mr Brandon’s argument that, in a context of the kind that arises here, essentially the same test of “real risk” should be applied in relation to article 2 as in relation to article 3.

In his witness statement for the hearing before the district judge the appellant recounted the history of threats against him as follows. He said that in December 2006, when he was living in Dublin, he was informed by the Irish police that there was confidential intelligence to suggest that his life was in danger. Less than a week later a police officer visited his mother at her home and advised her in relation to security precautions. A few days before Christmas his partner, Aoife Dunne, had her car set on fire while it was parked outside her father’s house in Ballymun. On 26 January 2007, there was an incident outside the home of the appellant’s friend Mark Murphy, in which a man aimed a handgun at the appellant and pulled the trigger twice but the gun failed to go off and the man ran away. The appellant said that after this incident he was petrified for himself and his family. He was due to attend court in relation to the robbery charge against him on 9 February, but the day before the hearing he travelled to the United Kingdom with Ms Dunne and their seven year old son. Ms Dunne and the son returned to Dublin in April to visit her family. While she was there, her car window was smashed with a hammer. Her sister also received a telephone call from an unknown woman saying that somebody intended to kidnap Ms Dunne and the son in an attempt to find out where the appellant was.

Ms Dunne made a statement supporting the appellant’s account and giving further details. She said that on the occasion in April when her car window was smashed with a hammer, two men had come to her mother’s house screaming about the appellant and saying they were going to petrol bomb the house. It was they who smashed the car window, and it was two days later that her sister was informed of the intended kidnap. Ms Dunne stated further that on 12 October three police officers attended her mother’s house and informed her that there was a serious threat to Ms Dunne’s life. Ms Dunne then spoke to an officer who told her that the police had received intelligence that she was back in Ireland and there was a threat to her life. On the same day her aunt’s car was set on fire while parked outside the aunt’s house in Dublin. There had also been other car burnings and threats to the family.

There were also supporting statements from Ms Dunne’s mother and from the appellant’s father. The father’s statement included reference to an incident in May 2007 when he and his wife heard an explosion in their driveway. It transpired that a pipe bomb had exploded underneath their car.

Key elements of the evidence given by the appellant and his family are supported by letters from the Irish police. They have confirmed that in early December 2006 the appellant was informed of a threat to his life. This was based on confidential information received from a secret and sensitive source. The police have also confirmed that they received a report relating to an exploded pipe bomb device in the driveway of the appellant’s parents’ home on 20 May 2007, which was subject to ongoing investigations. There were also reports from the family about cars being set on fire on other occasions. Certain of those matters were under investigation. The police visit to the home of Ms Dunne’s mother in October 2007 has also been confirmed. The purpose of the visit is stated to have been to inform Ms Dunne that a threat existed and to impart crime prevention advice to her.

The appellant, Ms Dunne, her mother and his father all gave evidence before the district judge, adopting their witness statements. The appellant’s friend Mark Murphy also gave supporting evidence in relation to the incident on 26 January 2007.

By reference to the notes of the evidence before the district judge, Miss Lindfield has pointed to features of the appellant’s account which, she suggests, should cause the court to be sceptical about the existence of a real risk to him. The appellant said that he did not think of reporting the incident on 26 January 2007 to the police. He ran away to a friend’s house. He did not call the police because he was frightened that the perpetrators would come back and shoot him. If he could turn back time he would have gone to the police that night because they would have protected him. He accepted that the police went out of their way to notify him of the dangers in December 2006. He also accepted that at that time the police asked him whether he would consider moving and that he did not accept this protection. They did not tell him where he would be moving. He said that he knew that around Dublin there were people who knew people who would find him. He did move, to the United Kingdom. If extradited to Ireland, at the conclusion of proceedings and release from custody he would come straight back to the United Kingdom.

In my view those points do little to weaken the main thrust of the appellant’s factual case as to the existence of threats to his life. Their relevance to the steps that the Irish authorities would take to protect him is a matter addressed later.

The agreed note of the judgment given by the district judge records:

“Mr McLean is wanted in Ireland to face an allegation of robbery. It is a serious allegation likely to result in a substantial term of imprisonment. After the robbery incident, he was arrested and bailed. He then fled to England. He says that it was not to avoid his trial, but that he was scared that his life was in peril.

I am prepared to act on the basis that everything he said did happen, and I will act on the basis that the bombs, burnt out cars and shootings did occur. I am also prepared to accept that in his community in Ireland his life would be in danger and that there is no way security can be provided in that scenario. But that is not the plan. The plan is to extradite in custody and for him to remain in custody during those proceedings. I have read the report about the Irish prison system and the protection that can be offered in prison. Indeed the Irish authorities will have a duty to ensure that he is kept safe and there is nothing to suggest that he would not.

There is nothing to prevent the order for his extradition.”

Mr Brandon submits that the first sentence of the second paragraph of the judgment amounts to a finding of fact in the appellant’s favour. I view it not as an actual finding of fact but as a factual assumption in the appellant’s favour. But I do not think that this matters, since, on the evidence and having regard in particular to the matters confirmed by the Irish police, I would accept that the appellant has shown the existence of a threat to his life and safety in Ireland, sufficient to meet the “real risk” test subject to the issue of sufficiency of protection. There was some evidence before the district judge about the source of the threat, but it is enough to record that it comes from non-state agents.

It is therefore necessary to consider whether, as the district judge held, there will be sufficient protection for the appellant in prison in Ireland. That is the question to which I now turn.

The appellant’s case in relation to sufficiency of protection within the Irish prison system rests primarily on a report by Mr Liam Herrick, Executive Director of the Irish Penal Reform Trust. Mr Herrick’s report draws extensively from a Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) on a visit to Ireland in October 2006, a copy of which has also been placed before us, as well as from a report of the Irish Inspector of Prisons. The Irish Prison Service has provided a response to Mr Herrick’s report, and Mr Herrick, in turn, has made some further comments on that response.

None of that material was available to the district judge, because the appellant had been unable at the time to obtain public funding for an expert’s report. Miss Lindfield confirmed that no objection was taken by the respondent to this court considering all the material now available and forming its own view, in the light of that material, on whether the Irish authorities will provide a reasonable level of protection for the appellant in prison.

In his report Mr Herrick observes that there is a general trend of rising violent crime in Ireland, and in particular Dublin, where the homicide rate is double the national average. The killings include gang-related murders. There has been a corresponding increase in violence within prisons, and the conviction of key gang figures has led to the transfer of inter-gang tension and violence to the prison system. Two specific incidents are highlighted. One is the murder of Gary Douch in Mountjoy Prison in August 2006, by a cell-mate with a history of mental illness and violence: this occurred notwithstanding that Mr Douch had been placed in a protection cell after informing the prison authorities that he feared for his safety. The other incident is the murder of Derek Glennon-Kennedy by a fellow-prisoner in Mountjoy Prison in June 2007, which is believed to have related to a feud between rival drugs gangs. More general concerns are expressed about the level of security in prisons, the widespread availability of drugs, weapons and mobile telephones, the lack of individualised risk and needs assessment for all prisoners, and conditions of overcrowding. There appears to have been a dramatic increase in the number of prisoners seeking protection and therefore the use of protective custody. It is suggested that this is an indication of the general levels of dangerous violence in the prisons, and also that the demands that it places on the system may cause the effectiveness of protection of high-risk prisoners to be undermined in practice.

It is likely that if the appellant were extradited he would be detained pending trial in Cloverhill Prison, which is a remand prison. Mr Herrick’s report gives specific information about Cloverhill. It refers to security issues highlighted in the report of a visit in 2005 by the Inspector of Prisons, including a concern that contraband was being thrown into the prison from an adjacent open space; and it also refers to difficulties in relation to the flow of information about prisoners between the various authorities, leading to inadequate awareness of matters such as rivalries between groups and dangers to individuals.

The Irish Prison Service’s response to Mr Herrick’s report cites from its response to the CPT report. It acknowledges that the manner in which organised criminal groups operate outside prison is now being mirrored on the inside and represents a significant challenge. It states that, in response to the challenge and to ensure safe and secure custody, significant efforts are being made by the prison authorities on a continuous basis to prevent the flow of contraband into prisons. Efforts to date are said to have gone a long way to thwarting the flow. But the response also refers to a range of new initiatives for which government approval has recently been secured, including a pilot drug detection scheme, the introducing of security screening for all personnel entering closed prisons, the establishment of an Operational Support Group, and the opening of a new remand segregation unit for serious drug and criminal gang members. Those measures are currently being rolled out across the prison estate. The response details the number of prisoners on protection at each prison and the way in which those on protection are dealt with. It states that the number of prisoners on protection is regarded by the authorities as an indicator of the steps taken to ensure in so far as possible the safety of prisoners. On committal, all prisoners are interviewed by the governor and a decision is made as to where a particular prisoner will be accommodated (involving in some cases a transfer to another establishment). Every effort is made to keep opposing gang factions separate. The Prison Service is fully conscious of the aim to provide safe and secure custody for all prisoners, and if the authorities have any concerns they will move a prisoner to another safe area.

In his submissions, Mr Brandon has acknowledged the importance of providing information specific to the individual rather than of a generalised nature (see Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin), para 11). He says that in this case it is the Prison Service which has dealt with the matter in generalities, whereas Mr Herrick has provided specific information relevant to the current situation at the prison where the appellant is likely to be detained. Moreover, what matters is the risk to the appellant in the period following his return. The fact that the Prison Service is taking a number of new security initiatives does not address that risk: future improvements or existing pilot projects in other prisons are of no assistance in the short term. The present reality, it is submitted, is that very little stands in the way of individuals attacking and killing the appellant while in custody, regardless of any protective prisoner status he might be afforded.

Thus the focus of the submissions is on the position with which the appellant would be faced while in custody on remand upon his return to Ireland. As to the longer term, Mr Brandon accepted that it was more difficult to foresee the circumstances and to show that the authorities would be unable to provide sufficient protection to the appellant if he remained in prison. As soon as he was released from prison he would return to the United Kingdom, as he himself said in his evidence to the district judge.

In my judgment, the evidence falls well short of establishing that the Irish authorities would fail to provide the appellant with reasonable protection, either while in custody on remand or in the longer term. The prison authorities are plainly well aware of their obligations under article 2 of the Convention, and the steps they are taking to improve security within the prison system are directed towards the proper discharge of those obligations. The incidents referred to in Mr Herrick’s report do not reveal any systemic failure of protection. Whilst problems exist and have been acknowledged, efforts have been made and continue to be made to address them. Nor can it be said that improvements at Cloverhill Prison lie only in the future. It is a reasonable inference that the efforts made to date have had a beneficial impact there; and one of the new initiatives referred to, namely the new remand segregation unit, is stated to be in operation already at Cloverhill.

Within that general context, the appellant’s particular circumstances point to his receiving sufficient protection. It is striking that the police alerted him in the first place to the risk to his life and provided further advice to him and his family, as he accepted in his evidence to the district judge. Of course, the prison authorities are not bound by the approach adopted by the police (see, for a domestic parallel, R (Bloggs 61) v Secretary of State for the Home Department, cited above); but the prison authorities can be expected in practice to adopt the same responsible approach. It is highly likely that the appellant would be given protected status and would be accommodated in a place and under conditions that would keep him apart from those who, on the information available, would seen to represent a particular risk to him. Any wider problem there may be about the flow of information to the prison authorities has no application in his case, since the prison authorities are already aware of his situation and detailed information about it will be provided by the police and can be communicated by the appellant himself to the governor when he is interviewed following his remand to prison.

Whether the matter is considered in terms of risk of ill-treatment contrary to article 3 or of risk to life under article 2 (and even assuming for that purpose as favourable a test under article 2 as under article 3), the appellant has failed to persuade me that extradition would give rise to a breach of his Convention rights. I have accepted the existence of a risk, but I am not satisfied that the Irish authorities would fail to provide him with a reasonable level of protection while in prison.

I would therefore reject the appellant’s case under articles 2 and 3.

In the grounds of appeal and Mr Brandon’s skeleton argument a case was also advanced under article 8. That case was not elaborated orally at the hearing. In my view it is plainly unsustainable. The relevant test is as stated in Jaso and others v Central Criminal Court No.2, Madrid [2007] EWHC 2983 (Admin), at para 57:

“What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights.”

I accept that he appellant’s extradition would interfere with his private and family life under article 8. In particular, it would separate him from his partner and his young son, who, because of the risk to their own safety, might be unable to visit him in prison in Ireland. I am satisfied, however, that such interference would be proportionate to the legitimate aim of extradition.

For the reasons given I would dismiss this appeal.

I agree.