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

One element that is common to both of the claims before us is that they depend on the recent diagnosis of AS. The extradition request of the USA was considered by District Judge Nicholas Evans in May 2006 and upheld. The contention that the Secretary of State should not have ordered his extradition was upheld by the Divisional Court in April 2007 and by the House of Lords in its decision in July 2008. That the Secretary of State on the information before her in July 2006, when she made her decision, and the information then available to the Claimant, was entitled to order his extradition is res judicata.

Similarly, as long ago as 2002 the CPS decided not to prosecute the Claimant, on the basis that he would be extradited to and prosecuted in the USA. The decision was explained in the letter dated 15 October 2003. In 2005 his solicitors threatened judicial review proceedings to challenge that decision. The CPS summarised the reasons for its refusal to prosecute in the letter dated 27 June 2005. No judicial review proceedings were then brought. It is now far too late to challenge that decision, and the Claimant does not seek to do so. I would add that the decision as explained in those letters was in my judgment indubitably lawful, and could not have been successfully challenged.

The Claimant challenges the decisions contained in the letters of 26 February and 8 June 2009, but it seems to me that he can do so only on the basis of material that could not have been put before the DPP in June 2005. Again, that boils down to the diagnosis of AS and his expressed willingness to plead guilty to offences under the Computer Misuse Act. To put it differently, if the decisions made by the DPP in 2009 were quashed, the decision made in 2005 would stand, unless the Court ordered the DPP to reconsider it; and the only justification for doing so is that there is now information before him that was not before him when he made that decision.

Since much of Mr Fitzgerald’s submissions centred on the proposition that the Claimant could and should be prosecuted in this country, it is convenient to consider first the challenge to the decision of the DPP.

As mentioned above, Mr Fitzgerald contends that the Claimant could and should be prosecuted in this country. Whether this country or the USA is (apart from considerations of the Claimant’s Convention rights) the more appropriate forum for his prosecution was addressed by the Divisional Court in its first decision. Maurice Kay LJ said:

36.

The third point raised by Mr Lawson is to the effect that it would be disproportionate to remove Mr McKinnon to face trial in the US when he could be tried for equivalent offences in this country and, if convicted, could be sentenced in a way which would not amount to such an interference with his Article 8 rights. Of this point the District Judge said:

“The CPS did consider whether to launch a prosecution in the UK and for good reason decided against it. The defendant intentionally targeted computers in the US; his actions resulted in criminal damage being suffered there, as well as causing very considerable disruption to the workings of those computers resulting in interference and disruption to military activities in the US. It is not my task to determine which state has the better right to prosecute, but for what it is worth my view is, unquestionably, if the defendant is to face prosecution, it should be in the US.”

37.

We agree with that analysis. Submissions similar to those advanced by Mr Lawson were advanced on behalf of the appellant in Bermingham. There, neither the fact that the appellants were United Kingdom nationals nor anything else about their circumstances brought them within the scope of exceptionality. We agree with Mr Summers that, if anything, the US links in the present case are stronger than they were in Bermingham and the UK links are weaker. …

With respect, I entirely agree. It is true that the Claimant’s offending conduct took place in this country. However, it was directed at the USA, and at computers in the USA; the information he accessed or could have accessed was US information; its confidentiality and sensitivity were American; and any damage that was inflicted was in the USA. The witnesses who can address the damage done by his offences are in America. Moreover, because the information was sensitive, it will be far more difficult for it to be put before a judge in this country than before a US judge.

However, it is not for this Court to decide where he should be prosecuted. The decision is that of the DPP. As appears from the preceding paragraphs of this judgment, he cannot be faulted for considering that, other things being equal, the Claimant should be prosecuted in the USA. His opinion that the criminality of the Claimant’s offending cannot fully be investigated here cannot be challenged: it is not said to be perverse, and I cannot see any basis on which it could be challenged as such.

Moreover, it would be manifestly unsatisfactory in the extreme for the Claimant to be prosecuted and sentenced on the basis of what he is prepared to admit in this country rather than on the basis of what could be proved in the USA. In this connection, it is noteworthy that the Claimant did not, in his solicitors’ letter of 23 December 2008, admit any offence under section 3 of the 1990 Act. The allegations made in the US criminal proceedings do involve an intention to cause damage that is a constituent of the offence created by section 3 but not that created by section 2, to which the Claimant expressed a willingness to plead guilty. As correctly stated in the CPS letter of 26 February 2009, the Claimant was then denying any malicious intent or being responsible for causing any damage.

In her letter of 26 February 2009, Ms Saunders stated that the evidential test had not been met because the CPS was unable, on the material in its possession, to frame charges that fully reflect the totality of the Claimant’s offending as alleged by the US authorities. That was in my judgment for the reasons set out in the letter a justifiable, if not inevitable, conclusion. Moreover, it is well established that judicial review of a prosecutorial decision is a highly exceptional remedy: see, e.g., Bermingham at [63] and R (Ahsan) v Director of Public Prosecutions and Tajik v Government of the United States of America [2008] EWHC 666 at [39].

The Claimant sought to meet the lack of any evidence in this country justifying a prosecution under section 3 of the 1990 Act by the submission, during the hearing of the application for permission to apply for judicial review of the DPP’s decisions, of a further witness statement containing further admissions. Quite apart from the point that the decisions of the DPP cannot be challenged on the basis of facts or evidence that were not before him when he made the decisions under challenge, the production of this witness statement serves to emphasise that, as asserted in the letter of 8 June 2009, the proceedings against the DPP were being used in order to make a collateral challenge to the Secretary of State’s extradition decision. The witness statement, dated 14 July 2009, contains admissions that the Claimant knew that his computer activities would have impaired the US computers he accessed, and that that would cause the temporary shutdown of those computers; he states that he did not intend to delete any files belonging to US computers. For present purposes, I assume that these admissions of knowledge of the consequences of his actions do amount to an admission of the specific intent required by section 3 of the 1990 Act.

In Wright v Scottish Ministers [2005] Scots CS CSIH 40, the Lord Ordinary said:

Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with a view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.

This statement was cited with approval by Laws LJ (with whose judgment Ouseley J agreed) sitting in the Divisional Court in R (Bermingham and others) v The Director of the Serious Fraud Office [2006] EWHC 200 (Admin) at [126]. In that case too there was an attempt to avoid extradition by seeking investigation and prosecution in this country. Laws LJ said at [65]:

The request to investigate in effect invited the Director [of the Serious Fraud Office] to constitute himself the judge of the proper forum for the defendants’ trial and to decide the issue in favour of trial here and not the United States: and thereby to pre-empt the statutory extradition process. Such a function cannot conceivably be found in s. 1(3) of the [Criminal Justice Act 1987].

In my judgment there is no conceivable relevant difference between the duty imposed by the 1987 Act on the Director of the Serious Fraud Office and the duties of the DPP.

Mr Fitzgerald sought to distinguish Wright and Bermingham on the basis that in those cases there had been no relevant criminal investigation, whereas in the present case there has been: the Claimant was interviewed and has made relevant admissions of criminal offences. The fact remains, however, that the full evidence of the Claimant’s offending and its consequences is in the USA, not in this country, and in my judgment those cases are authority, with which I respectfully agree, for the proposition that the DPP can be under no duty to seek to investigate these matters further, assuming he could do so.

Was it appropriate for the DPP to have regard to the Convention rights of the Claimant? Where there is a significant issue that a prosecution of a defendant in this country would infringe his Convention rights, I would accept that that is a matter to which the DPP should have regard. I note that the Code for Crown Prosecutors at paragraph 10.7 mentions the fact that a defendant is suffering from significant mental or physical ill health as a consideration to be taken into account at the public interest stage that may lead to a decision not to prosecute in a case in which the offence is not serious. Equally, I would accept that the DPP must take into account the interests of the victim of an offence and, particularly where the offence has led to the death of the victim, his or her family, and is entitled to take into account their wishes, and that he must take into account the interests and Convention rights of those who may be the victims of further offending. But it is very different to require the DPP to consider the Convention rights of the offender himself when the DPP has decided, or is minded, not to prosecute him. In a wholly domestic case, I see no basis for such a duty. In argument, Mr Perry QC gave the example of a homeless person who commits an offence and seeks prosecution so that he may be given accommodation in a police cell or in a prison. I agree that the CPS owes such a person no duty to prosecute, even if the failure to prosecute will lead the offender to be homeless and destitute to such an extent that his Article 3 rights would be engaged. The support of the homeless is not a duty of the DPP or the CPS, but of the public (principally local) authorities responsible for social care and social security.

In my judgment, the position is not different in the context of extradition. It is not for the DPP to take account of the Claimant’s Convention rights: it is for the Secretary of State, and the Courts, as part of the extradition process under the Extradition Act 2003, in compliance with section 6 of the Human Rights Act 1998, to address those rights and to determine whether his extradition would infringe those rights. If his Convention rights would be infringed, he cannot be extradited; if not, there is no reason for the DPP to seek to prevent his extradition by prosecuting him here and he is under no relevant duty to do so. In Bermingham, Laws LJ said:

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… To the extent that action taken by [the Director of the Serious Fraud Office] might touch the Convention rights of any affected person – most obviously, anyone the subject of an investigation instituted by him – he was clearly right to do so. It is I suppose possible to envisage circumstances in which that would arise in practice, perhaps where the effects of an investigation upon an especially vulnerable person would be particularly severe. Indeed in such a case the Director's duty would not merely be to have regard to the ECHR but to take a decision which would vindicate the Convention right in question. I cannot, however, envisage any circumstances in which a decision not to investigate might offend the relevant person's Convention rights. At all events, given we are dealing only with investigation, I apprehend that cases in which the director's decision might touch Convention rights would be very rare, and exhibit very special facts. And this is not the basis of what is suggested here. My question can only be answered in the affirmative, and thus in the defendants' favour, if s.1(3) is construed so as to impose a positive obligation on the Director to embark upon an investigation so that he might pre-empt the potential trial venue in favour of this jurisdiction (by proceeding to prosecute here) if it appears that the Convention rights of a suspected person might be violated by trial elsewhere.

71.

This would be an entirely fanciful construction of s. 1(3). It obviously cannot be got out of the subsection's words, which only confer a power to investigate. More than this: it would usurp the role of the District Judge under ss.21 and 87 of the 2003 Act. As I have shown those provisions impose on the judge an express obligation to decide whether the relevant person's extradition would be compatible with his Convention rights, and to order his discharge if he concludes that it would not. Thus Parliament has distinctly allocated the task of determining complaints under the ECHR to the courts. As is submitted at paragraph 1.5 of the skeleton argument for the Director prepared by Mr Burnett QC and Mr Perry, the defendants' argument, if correct, "would enable a request to be made… when the extradition process was well advanced, with a view to halting it or interrupting it with collateral challenges to the decisions of investigating or prosecuting bodies". In my judgment that would be a wholly unacceptable state of affairs. I shall address s.87, and the judge's consideration of it in this case, when I come to the statutory appeals. But I may state at this stage that it is in the material provisions of the 2003 Act that all necessary protection of a defendant's Convention rights in the extradition context is in my judgment to be found.

True it is that, as mentioned above and as appears from what Laws LJ said, the Court in Bermingham was concerned with a case in which there had been no investigation in this country. For reasons I have given, that is not, in my judgment, a reason to treat his statement as inapplicable to the present case. What is particularly striking is that what Laws LJ described as “a wholly unacceptable state of affairs” is precisely the state of affairs in the present case, and to my mind it is indeed unacceptable.

The Claimant seeks to rely on the principle aut dedere aut judicare – extradite or prosecute. It is a principle of public international law, which cannot of itself confer a private right on the Claimant. It is applicable to specified offences under obligations accepted by this country under international treaties, and it is not clear that it is applicable to the Claimant’s offending. In any event, however, the Secretary of State seeks to extradite, and if extradition proceeds, there can be no obligation to prosecute in this country. The principle is irrelevant.

In my judgment, the fact that different decisions were made by the DPP in other cases does not assist the Claimant: other cases, different facts. In any event, it is inherent in the concept of executive discretion that there may be different decisions in different cases.

In my judgment, for the reasons I have given above, the Claimant’s challenge to the decision of the DPP is unarguable. It has no real prospect of success. The authorities referred to in paragraph 49 above fortify my conclusion. Having heard full argument, and with respect to all that has been so cogently and forcefully submitted by Mr Fitzgerald, I endorse what Maurice Kay LJ in the Divisional Court said when giving permission to apply for judicial review against the Secretary of State:

We regard as fanciful the suggestion that, in the circumstances of this case, the claimant might successfully challenge a decision not to prosecute him by way of an application for judicial review.

In the circumstances, it is unnecessary to consider whether, if the claim against the DPP were meritorious, the Claimant would be shut out from relief by reason of delay in commencing the second proceedings.

For these reasons, I would refuse permission to apply for judicial review of the DPP’s decisions.

This claim must be viewed in its legal context. As a result of the rejection of the Claimant’s appeal by the House of Lords, the Secretary of State came under a statutory duty, under section 118 of the 2003 Act, to extradite the Claimant. Normally, the powers of the Secretary of State, even at the earlier stage when the District Judge sends a case to him for his decision whether a person is to be extradited, are limited by section 93, which requires him to order the person to be extradited unless one of the specified exceptions applies, none of which is relevant to the present Claimant. The issue whether the Convention rights of the person whose extradition is sought would be infringed by his extradition is normally determined by the District Judge at the first stage of the extradition process: see section 87.

The principal contention of the Claimant is that, because he suffers from Asperger Syndrome, his removal to the USA, his detention there pending trial and his detention under sentence will breach his rights under Article 3. If his diagnosis had been made earlier, that question would have been determined by the District Judge in May 2006.

The Secretary of State has accepted that he has an implied power to withdraw any extradition order where, as here, something new has arisen exceptionally between the exhaustion of the statutory remedies under the 2003 Act of the person whose extradition is sought and his actual removal. This proposition has the authority of the first judgment of the Divisional Court [2007] EWHC 762 (Admin) at [61] to [63]. The basis for this implied power is section 6 of the Human Rights Act 1998, which renders it unlawful for the Secretary of State, as a public authority, to act in a way which is incompatible with a Convention right. It follows that the “something new” must be evidence that that person’s Convention rights would be infringed by his extradition. The Secretary of State also accepts that his decision in such circumstances is susceptible of judicial review.

The Divisional Court at the permission stage of the present proceedings rejected the contention that, apart from the power arising from section 6 of the 1998 Act, the Secretary of State has a general discretion not to effect extradition in the present circumstances. The Claimant has not sought to renew that contention as a ground for judicial review. In any event, I respectfully agree that any such discretion would be inconsistent with the provisions of the 2003 Act.

In my judgment, it follows from the basis of the implied power of the Secretary of State that is the subject of these proceedings that the question for the Court is not whether the Secretary of State properly exercised her discretion, or reached a sustainable decision, but whether objectively the evidence before the Secretary of State established a real risk that the Claimant’s extradition would infringe his Convention rights, and in particular his right not to be subjected to treatment that would contravene Article 3.

It is well recognised that Article 3 applies to conduct of the most serious and severe kind. It is particularly difficult for a person to establish a breach of his Article 3 rights where the conduct that is envisaged is, as in the present case, not the deliberate infliction of harm by agents of a foreign state but neglect or a lack of resources on the part of that state.

The severity required for treatment to infringe Article 3 is well demonstrated by the decision of the House of Lords in N v Home Secretary [2005] 2 AC 296, [2005] UKHL 31. N was a failed asylum seeker suffering from HIV. If returned to Uganda, her country of nationality, she would die in a matter of months by reason of the lack of appropriate medication; if she remained here, she could live for decades. Lord Hope summarised her condition:

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The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak. It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering.

Nonetheless, the House of Lords held that her removal to Uganda would not infringe Article 3. Baroness Hale put the matter shortly:

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In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case.

In J v Secretary of State for Home Department [2005] EWCA Civ 629, the Court of Appeal considered the case of a Tamil who threatened to commit suicide if returned to Sri Lanka. It had been accepted by the Home Secretary that he suffered from post traumatic stress disorder and depression. The medical evidence was that

His prognosis (was) presently extremely uncertain. … he had attempted suicide. Though the shock of being refused asylum had been a precipitant, the significant predisposing factors relate to his traumatic experiences. These had then led to his depressive illness the onset of which could be established to the period when he was detained by the Sri Lankan army. … He continues to present with a risk of suicide. This could be aggravated if he had to return to Sri Lanka. Such risk would be high as a result of his knowing that the Home Office would return him to Sri Lanka.

A later medical report stated:

if [J] is sent back to Sri Lanka the risk of exacerbating his existing suicidal ideation is greatly increased because he is likely to have lost all hope. Hopelessness has a serious, significant association with completed suicide.

In my opinion, if he does not manage to kill himself in the UK there is a high risk that he would try to commit suicide en route and may therefore pose a threat to other passengers in his desperation to kill himself.

If he is prevented from killing himself either in the UK or while being returned I think it is likely that he would commit suicide upon his arrival in Sri Lanka to avoid falling into the hands of the authorities from whom he perceives he is in mortal danger.

Despite these severe prognoses, the claim under Article 3 failed. Giving the judgment of the Court, Dyson LJ referred to so-called foreign cases, that is, cases in which it is not claimed that the state complained of has violated the applicant's Convention rights within its own territory, but where it is said that the conduct of the state in removing a person from its territory to another territory will lead to a violation of the person's Convention rights in that other territory: see Lord Bingham in Ullah v Secretary of State for the Home Department [2004] UKHL 26, [2004] 2 AC 323 at [7] and [9]; J at [16]. Dyson LJ said:

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In our judgment, there is no doubt that in foreign cases the relevant test is, as Lord Bingham said in Ullah, whether there are strong grounds for believing that the person, if returned, faces a real risk of torture, inhuman or degrading treatment or punishment. It should be stated at the outset that the phrase "real risk" imposes a more stringent test than merely that the risk must be more than "not fanciful". The cases show that it is possible to amplify the test at least to the following extent.

26.

First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment": see Ullah paras [38-39].

…

28.

Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.

These statements of principle have obvious application in the present case.

More recently, the Court of Appeal considered a perhaps even more serious case in RA (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1210. The medical evidence relating to the appellant was summarised by Richards LJ as follows:

7.

There was a body of evidence before the senior immigration judge on the subject of the appellant's mental health. It is sufficient to refer to a report by Dr David Bell, a consultant psychiatrist, who was in agreement with earlier diagnoses and gave a full assessment of the appellant's condition. Dr Bell said that the appellant was suffering from severe depressive disorder, with typical symptoms of objective features of depression, pervasive apathy, pervasive depressed mood, very poor appetite, guilt and self-blame, history of suicide attempts, disturbed sleep and morbid existential preoccupations. There were also typical symptoms of post-traumatic stress disorder, with a typical pattern of intrusive thought, noise sensitivity, flash-back phenomena, hallucinatory experiences, nightmares, avoidance of stimuli that might trigger anxiety attacks, and paranoid ideation.

A consultant psychiatrist had reported:

There is already a history of three suicide attempts and currently there is evidence of suicidal thinking. There is therefore a significant risk of suicide or self-harm currently, and I would regard that risk as moderate ….

… the threat of immediate return to Sri Lanka would bring about a "serious and precipitated deterioration" in the appellant's psychiatric state, … The deterioration in his psychiatric state would be associated with an immediate change in the risk of self-harm/suicide, from moderate to being very high. The increased suicide risk would take place from the moment he heard of a negative determination [of his asylum claim] and would remain very high while he was awaiting removal, during removal and indefinitely thereafter.

… [the appellant] has formed very secure attachments to those immediately around him and these attachments are not of a promiscuous nature, and the figures supporting him could not be easily replaced.

… apart from the fact that appropriate psychiatric resources are not likely to be available in Sri Lanka, it is my view that [the appellant] would be most unlikely to be able to make use of them. This is because he is likely to view psychiatric personnel as agents of the state and therefore is likely to be distrustful of them.

… Given the degree of profound apathy and self-neglect that is a feature of his psychiatric state, it is also possible that in Sri Lanka his situation would deteriorate to a severe state of self-neglect and inanition and that he would die of some intercurrent infection (i.e. a less manifest suicide).

I have also been specifically asked if [the appellant] were returned to Sri Lanka whether he would be able to explain himself to the Sri Lankan authorities if he were questioned by them. It is clear to me that [the appellant] would be in such a deteriorated psychiatric state that he would be quite unable to explain himself and would also be likely to be extremely fearful of such authorities, indeed to be frankly paranoid. He would be likely to respond to questioning, however straightforward this is in reality, in an acutely paranoid way.

The Immigration Judge had in fact found that there would be appropriate psychiatric care for the appellant in Sri Lanka. Richards LJ addressed the requirements of Article 3 in paragraphs 47 and following of his judgment:

47.

The senior immigration judge was also right to stress the particularly high threshold that has to be crossed for a claim of this nature to succeed under article 3. One of the cases to which she referred was D v United Kingdom, but since the date of her decision the principles in D v United Kingdom have been reaffirmed by the European Court of Human Rights in N v United Kingdom (application no. 26565/05, judgment of 27 May 2008), which was the Strasbourg follow-up to the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296. The court in N v United Kingdom began its assessment as follows:

"29.

According to the Court's constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 …. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible …."

After examining the previous case-law at some length, the judgment continued:

"42.

In summary, the Court observes that since D v United Kingdom it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling ….

45.

Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment, which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost."

49.

There has been some debate in our domestic case-law as to the extent to which cases of mental illness, in particular where it is said that removal will give rise to a risk or increased risk of suicide, are analogous to cases of physical illness for the purposes of the application of article 3: see J v Secretary of State for the Home Department [2005] EWCA Civ 629, para 42; R (Tozlukaya) v Secretary of State for the Home Department [2006] EWCA Civ 379, para 62; AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736, para 15; and CN (Burundi) v Secretary of State for the Home Department [2007] EWCA Civ 587, paras 25-26. Mr Mackenzie contended that a material difference exists between the two types of case, since in the suicide risk case the very act of expulsion causes or may cause a deterioration in the applicant's condition whereas in the HIV/AIDS situation it is the loss of assistance or services currently enjoyed that gives rise to the issue under article 3. Whilst there may be factual differences between the two types of case, the passage I have quoted from N v United Kingdom makes clear, as it seems to me, that the same principles are to be applied to them both. Nor do I detect any important difference of approach in the domestic cases on suicide risk. In the present case the senior immigration judge relied both on the line of domestic authority beginning with J v Secretary of State for the Home Department and on the line of Strasbourg authority beginning with D v United Kingdom. In my view that resulted in a perfectly coherent approach, in line with the statement of principles now to be found in N v United Kingdom.

50.

In any event I am satisfied that the senior immigration judge was entitled to conclude that the appellant's removal to Sri Lanka would not have such adverse consequences for the appellant's psychiatric condition as to reach the article 3 threshold: on her findings of fact, this could not be said to be a very exceptional case where the humanitarian grounds against removal are compelling. She was similarly entitled to conclude that his removal would not be in breach of article 8.

These cases were concerned with the expulsion of aliens, asylum seekers for whom this country had not accepted responsibility, rather than British nationals or residents, for whom the state does have responsibility. The position in the context of extradition was considered by the House of Lords in R (Wellington) v Home Secretary [2008] UKHL 72 [2009] 1 AC 335, in which the Appellate Committee considered the contention that the mandatory full life sentence faced by the claimant if extradited to the USA and convicted of the murder charges he faced there constituted inhuman or degrading punishment that would infringe Article 3 such as to make it unlawful for the Secretary of State to have ordered his extradition. The contention was rejected. Lord Hoffman, giving the leading opinion, said:

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The next question is the application of this construction of article 3 to cases in which the whole life sentence is not imposed in the United Kingdom but is likely to be imposed in a country to which the prisoner is extradited. The leading authority on this question is the decision of the ECHR in Soering v United Kingdom (1989) 11 EHRR 439. That case concerned a decision by the Home Secretary to extradite the applicant (a German citizen) to Virginia to face charges of capital murder, for which the penalty was death. The applicant did not submit that the death penalty was in itself a violation of article 3 (as the Court noted at paragraph 101, that would have been difficult to reconcile with the language of article 2(1)) but complained that the manner in which it was implemented in Virginia, namely, after long delays, was inhuman or degrading. The court accepted this submission. The Privy Council later reached a similar conclusion in Pratt and Morgan v Attorney-General for Jamaica [1994] 2 AC 1.

21.

The United Kingdom nevertheless submitted that the Convention required it only to refrain from imposing inhuman or degrading punishments in the United Kingdom. It was not responsible for what happened in Virginia after the applicant's lawful extradition. The court accepted (in paragraph 86) that the engagement undertaken by a Contracting State was confined to securing Convention rights within its own jurisdiction and that it could not require a Contracting State, notwithstanding its extradition obligations, not to surrender an individual unless satisfied that the conditions awaiting him in the country of destination are in full accord with each of the safeguards of the Convention:

"Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in preventing fugitive offenders from evading justice cannot be ignored in determining the scope of application of the Convention and of Article 3 in particular." (emphasis added)

22.

I have emphasised the last few words of this passage because they make it clear that in cases of extradition, article 3 does not apply as if the extraditing State were simply responsible for any punishment likely to be inflicted in the receiving state. It applies only in a modified form which takes into account the desirability of arrangements for extradition. The form in which article 3 does apply must be gathered from the rest of the judgment and subsequent jurisprudence.

23.

In paragraph 88 the court distinguished between torture and other "inhuman or degrading treatment". Torture attracted such abhorrence that it would not be compatible with the values of the Convention for a Contracting State knowingly to surrender a fugitive to another State if there were substantial grounds for believing that he was in danger of being subjected to torture, "however heinous the crime allegedly committed". The position in relation to inhuman or degrading treatment is more complicated. What amounts to such treatment depends upon "all the circumstances of the case": paragraph 89. The court went on:

"Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person but also tend to undermine the foundations of extradition. These considerations must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases."

24.

The passage makes it clear that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the "minimum level of severity" which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.

25.

The relevance of the desirability of extradition in deciding whether article 3 has been infringed is shown by the weight which the court attributed to the fact that Mr Soering, as a German citizen, could be tried in Germany. It said (at paragraph 110) that —

"[T]he Court cannot overlook either the horrible nature of the murders with which Mr Soering is charged or the legitimate and beneficial role of extradition arrangements in combating crime. The purpose for which his removal to the United States was sought, in accordance with the Extradition Treaty between the United Kingdom and the United States, is undoubtedly a legitimate one. However, sending Mr Soering to be tried in his own country would remove the danger of a fugitive criminal going unpunished as well as the risk of intense and protracted suffering on death row. It is therefore a circumstance of relevance for the overall assessment under Article 3 in that it goes to the search for the requisite fair balance of interests and to the proportionality of the contested extradition decision in the particular case."

26.

The inference I would draw from this passage is that if Mr Soering could not have been tried in Germany and the court had been left with the stark choice of extraditing him to Virginia or allowing him to escape justice altogether, it would not necessarily have decided that, in the context of extradition, the method of implementing the death penalty in Virginia made the punishment sufficiently severe to be inhuman or degrading treatment.

27.

A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers 2005 SC 229 that in Scotland the practice of "slopping out" (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries poorer than Scotland, where people who are not in prison often have to make do without flush lavatories.

28.

Treating article 3 as applicable only in an attenuated form if the question arises in the context of extradition or other forms of removal to a foreign state is consistent with the ECtHR's jurisprudence on the applicability of other Convention articles in a foreign context. These authorities were discussed at some length by the Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and led to his conclusion, at para 24, that

"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case."

….

35.

… even if the sentence is irreducible and might therefore contravene article 3 if imposed in the United Kingdom, there remains the question of whether it would contravene article 3 as interpreted in the context of extradition. In my opinion it would only do so if one would able to say that such a sentence was likely, on the facts of the case, to be clearly disproportionate. In a case of extradition we are not concerned, as the Canadian Supreme Court was in Smith v The Queen [1987] 1 SCR 1045, with the constitutionality of the law under which the mandatory sentence is imposed. In such a case, it is sufficient to invalidate the law that it would be bound in some cases to produce disproportionate sentences. In extradition, however, one is concerned with whether in this case the sentence would be grossly disproportionate. The fact that it might be grossly disproportionate in other cases is irrelevant.

Baroness Hale and Lord Carswell agreed with Lord Hoffman’s opinion that the desirability of extradition is relevant to the assessment of whether punishment will be such as would infringe rights under Article 3.

Wellington, and indeed Soering, are authority for the proposition advanced by Mr Fitzgerald that the possibility of prosecution of the present Claimant in this country is relevant to the assessment of the conditions he will face if extradited with his Convention rights. However, its relevance must be considered in the light of the decision of the DPP, which I consider to be both lawful and unchallengeable, not to prosecute him here, and the view of the DPP and indeed myself that the USA is the appropriate forum for his prosecution. Those facts, and the fact that his extradition would, subject only to his Convention claims, be in accordance with the extradition treaty between this country and the USA, mean that this case approaches the circumstances of Wellington. On the other hand, it would be unrealistic to assume that if the Claimant is not extradited, the DPP will not reconsider whether he should be prosecuted in this country. I propose to assume, therefore, that this is not a case in which the only possible prosecution of the Claimant would be in the USA. The USA is the preferable forum, but not the only forum.

I add that the distinction between extradition and expulsion cannot be taken too far. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, [2004] UKHL 26, Lord Steyn said:

33.

Undoubtedly the purpose of the two procedures (extradition and expulsion) is different. The procedures serve different public interests. But in the context of the possible engagement of fundamental rights under the ECHR the Strasbourg court has not in its case law drawn a distinction between cases in the two categories: see Cruz Varas v Sweden (1991) 14 EHRR 1, 34, para 70. For my part I would also not do so.

See too Lord Bingham at [33].

In considering the medical evidence concerning the Claimant’s AS, it is important to place it in perspective. As the Secretary of State points out, despite having had AS in childhood his condition has, so far, not necessitated any type of treatment or medical intervention. He is aged 42. He faced arrest and interview by the police, arrest on an extradition warrant, an extradition hearing, the order for his extradition, and litigation in the High Court and House of Lords, all no doubt deeply stressful events without this leading to any acute events requiring intervention. Although the symptoms of his undiagnosed AS would have been manifested throughout the proceedings, there was no suggestion (until very recently) that the act of ordering, or effecting, extradition would give rise to any type of acute event (as has been the case in some of the cases dealing with severe depression). Neither the symptoms of his disorder, some of which were apparent to his close family and loved ones, nor his depression (which, according to his mother, was diagnosed “some time ago”) have, until very recently, led to the Claimant being treated or to being the subject of investigation or of medical reports, let alone to an application under section 91 of the 2003 Extradition Act.

The difficulties encountered by the Claimant “not being able to cope with sharing a cell or fitting in with a group and being traumatised by the loud noise” apply to “many adults” with AS, yet they too may face the possibility of prison. According to the National Autistic Society, 1 in 100 children has ASD, and over 300,000 adults in the UK have ASD (which includes more serious disabilities than AS). The availability of appropriate expertise is patchy in this country, and it is not to be supposed that a prison sentence served by the Claimant in this country would not present him with difficulties. The availability of appropriate expertise here is described as “patchy”, and the same is probably true of the USA; and in both countries, it is likely that services in prison are not as well resourced as those in the community.

Furthermore, statements such as “suicide and self harm can be associated with the disorder” (see the witness statement of Mark Lever on behalf of the National Autistic Society at paragraph 20) go far short of establishing a risk of infringement of Article 3, or indeed of Article 2. Dr Juli Crocombe, a consultant psychiatrist with extensive knowledge of ASD, has made a witness statement in which she shares the concern of the NAS that the Claimant’s AS should be taken into account by the Court in these legal proceedings. She made her statement under the assumption that all or part of his sentence would be served in a supermax prison, which is not the case. What she says about the vulnerability, isolation, and the possibilities of his developing depression are relevant, but do not approach Article 3.

As the assurances from the DOJ expressly state, any sentencing court will be bound to have regard to the Claimant’s condition and to any appropriate recommendations. In an affidavit of 3 June 2009, Mr Michael Nachmanoff, a Federal Public Defender for the Eastern District of Virginia, states:

With respect to the likely sentence that Mr. McKinnon may face if convicted in the United States District Court for the Eastern District of Virginia, it is difficult to predict with certainly what the term of imprisonment would be. The court will sentence Mr. McKinnon pursuant to 18 U.S.C § 3553(a), which directs the Court to impose a sentence that is “sufficient but not greater than necessary” to comply with the purposes of sentencing. In determining the appropriate sentence, the Court is required to consider the nature and seriousness of the offense, the history and characteristics of the defendant, the need to avoid unwarranted disparities in sentencing, the United States Sentencing Guidelines, the need for protection of the public, deterrence, and rehabilitation of the defendant.

Apart from the reference to the US Sentencing Guidelines, these principles are not different from those that would apply in this country. There is no real doubt, in my judgment, that the sentence that will be imposed by the US Courts will take account of his diagnosis of AS and the difficulties that he will in consequence face in a US prison. In addition, if, as I assume, the US authorities will not agree to his repatriation, that is a matter that should be taken into account by the sentencing judge.

The Claimant submits that the delay in his extradition since 2002 is to be taken into account. However, that delay has largely been due to his own action in resisting extradition. While, of course, infringement of his Article 3 rights cannot be justified by delay, that delay cannot, in these circumstances, cause extradition that would not otherwise infringe his Convention rights to infringe those rights.

The evidence of Phillip S. Wise, a retired Assistant Director of the Federal Bureau of Prisons, in a statement dated 9 April 2009 filed on behalf of the Claimant, is also significant. He points out that there is no officially sanctioned specific protocol for the treatment of AS. He noted that neither Dr Berney nor Prof Baron-Cohen provided a treatment plan or outline of services that are now required by the Claimant or would be required by him when detained in the USA, and the somewhat variable nature of the evidence of the risks said to be engendered. Mr Wise gives considerable detail of the assistance that would be available. He said:

The mental health professionals on staff in other BOP facilities are generally doctoral level psychologists and/or treatment specialists associated with specific treatment programs. In addition, most facilities have access to psychiatrists through contract with local practitioners who are willing to treat inmates. Inmates are initially screened by medical staff within 24 hours of arrival at a facility, and if mental illness is apparent, are referred to psychology services. Within two weeks, new arrivals are screened by a member of the psychology services department. Bureau of Prisons policy requires that:

Psychology Services staff are responsible for the assessment and treatment of mentally ill inmates. This responsibility is shared with other trained mental health staff, such as a psychiatrist, if one is available. A treatment plan should be formulated and executed for all inmates diagnosed with significant mental disturbance.

(Bureau of Prisons Program Statement 5310.12 Psychology Services Manual, March 7, 1995)

Referring to the treatment for the Claimant in prison, he said:

Should Mr. McKinnon be committed to a Bureau of Prisons facility, he would arrive with the diagnosis of Asperger’s Syndrome, which would be noted both at intake screening by medical staff and at screening by psychology staff within the first two weeks of incarceration. Though some initial assessment of his deficits is likely through document review and interview, it is unlikely that the full assessment as described by the Yale guidelines, including neuropsychological assessment and assessment by a communications special would be undertaken. A treatment plan providing for crisis intervention, brief counseling, and supportive assistance with practical behavioural issues as they arise through the course of conferment is likely. Such intervention would be geared primarily to assisting with adaptation to the correctional environment specifically relating to institution rules, disruptive or potentially disruptive behaviour, and functioning within the prison culture, particularly communication issues within the prison setting. It may well be determined that Mr. McKinnon will need to learn a completely different set of communication strategies for the prison setting compared with the normal social setting.

The experience of Mr Bermingham, set out in his witness statement of 14 May 2009, must be taken as possibly qualifying that of Mr Wise. He states that during his detention in the Federal Correctional Institution in Lompoc, California, he was not aware of any inmate receiving treatment for medical or psychological conditions. Nonetheless,

… the common perception of murder, extreme violence and gang rape is not an accurate portrayal of Federal Prisons and particularly not at the lower end of the security spectrum. During my time in Lompoc I am not aware that any inmate was sexually assaulted and violent incidents were not commonplace.

He adds:

However, more than one inmate had to be placed in the Special Housing Unit for their own protection at various times.

We also have the evidence of Joel Sickler, an American criminologist working in the field of corrections. His cogent evidence would undermine the assurances given by Ms Warlow, but it is difficult to reconcile it with the evidence of Mr Wise. Perhaps more importantly, Mr Sickler’s evidence was served too late for the Secretary of State to be able to respond to it.

In assessing, as Mr Fitzgerald asks us to do, whether the Claimant’s extradition would risk his being subjected to treatment that would infringe his Article 3 rights, we must of course have regard to the likely length of his sentence if convicted, the possible circumstances of his incarceration, his health and mental condition, and the possibilities of the grant of bail pending trial and of repatriation after sentence to serve his sentence in this country, where he would be closer to family, friends and his partner. As to these, the House of Lords assumed a sentence following conviction of eight to ten years or more in a US high security prison with remission of only 15%. As I have mentioned, it is now accepted that he would not have to serve his sentence in a supermax prison. More importantly, it is by no means certain that if extradited the Claimant will not plead guilty to one or more of the charges against him. I accept that, given his resistance to his extradition, this Court should assume that the Claimant would not be granted bail pending trial in the USA.

I also accept that the affidavit of Mr Wiechering does not contain any express assurance that the US authorities will agree to the Claimant’s repatriation following conviction and sentence; and his repatriation would require their agreement, and not merely their lack of objection. Moreover, it does not exclude an objection being made to repatriation on grounds other than his refusal to consent to extradition. I think it may be over-cynical to read his affidavit as indicating that the US authorities will preclude repatriation by insisting that they only undertook not to object, and did not undertake to agree, to repatriation. Nonetheless, there is clearly a real risk that he will not be repatriated.

Despite the comments of Dr Berney and Mr Sickler, in my judgment the Court should treat the assurances given by the US Department of Justice in Ms Warlow’s letter of 26 February 2009 as having substantial value. Certainly, the Secretary of State was and is entitled to do so. Of course, these assurances do not amount to cast-iron guarantees of appropriate care during the Claimant’s sentence. But they are the considered assurances of a friendly state, indeed of a state with which this country has close relations. They are wholly inconsistent with his treatment approaching the severity to which Article 3 applies.

Ultimately, I have to weigh the impressive medical evidence adduced by the Claimant against the severity involved in Article 3. I have no doubt that he will find extradition to, and trial and sentence and detention in the USA, very difficult indeed. His mental health will suffer. There are risks of worse, including suicide. But if I compare his condition with those considered in the authorities to which I have referred above, even taking full account of the (in my view undesirable) possibility of his being prosecuted in this country, his case does not approach Article 3 severity.

There remains the question whether, as Mr Fitzgerald submits, the Secretary of State was and is under a duty to seek assurances from the US authorities as to the grant of bail pending trial and a clearer and more reliable assurance of repatriation after conviction. He submits that the Secretary of State is under that duty in order to reduce the risk of an infringement of Article 3 rights.

I readily accept that if it were shown that without an assurance of bail pending trial there would be a real risk of an infringement of Article 3, the Secretary of State would be under a duty not to extradite unless that assurance were forthcoming; and the same applies to repatriation. But I see no basis for a duty to seek an assurance which might or might not be forthcoming. And since I have concluded that even without bail and repatriation, there is no real risk of an infringement of Article 3, there is no basis for the duty contended for by Mr Fitzgerald.

In these circumstances, I do not consider that the Secretary of State’s decision letter contained any error of law. As I have mentioned, much of the letter was in any event concerned with the now abandoned contention that the Claimant would have to serve his sentence in a supermax prison.

The Divisional Court refused the Claimant leave to apply for judicial review on the ground of breach of Article 8. He seeks to renew that application. He has difficulties in doing so, for procedural reasons: he requires permission under CPR Part 54.15, which normally, but not necessarily, will be granted only if there has been a change in circumstances since the permission hearing: see Smith v Parole Board [2003] EWCA Civ 10. In any event, however, I agree with the conclusion of the Divisional Court on the permission application that, having failed under Article 3, the Claimant cannot succeed under Article 8, because his extradition is justified under Article 8.2 and is a lawful and proportionate response to his alleged offending. I am fortified in this conclusion by what was said by Lord Carswell (with whom Lord Steyn and Baroness Hale agreed) in Ullah:

68.

The ECtHR has consistently stated that before any article of the Convention other than article 3 could be regarded as engaged, it would require an extremely serious breach of the provisions of that article. In Soering v United Kingdom it said at p 479, para 113 of its judgment:

"The Court does not exclude that an issue might exceptionally be raised under article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country."

69.

The adjective "flagrant" has been repeated in many statements where the Court has kept open the possibility of engagement of articles of the Convention other than article 3, a number of which are enumerated in paragraph 24 of the opinion of Lord Bingham of Cornhill in the present appeal. The concept of a flagrant breach or violation may not always be easy for domestic courts to apply - one is put in mind of the difficulties which they have had in applying that of gross negligence - but it seems to me that it was well expressed by the Immigration Appeal Tribunal in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1 at p 34, para 111, when it applied the criterion that the right in question would be completely denied or nullified in the destination country. This would harmonise with the concept of a fundamental breach, with which courts in this jurisdiction are familiar.

See too Lord Bingham at [24].

The refusal of permission to apply for judicial review on the Article 8 ground would preclude any appeal to the Supreme Court (as it will be) on that ground. The grant of permission with a dismissal of the claim would permit the Claimant to apply to us to certify a point of law of general public importance and to apply to this Court or to the Supreme Court for leave to appeal. Since the hearing of the Claimant’s application for judicial review the House of Lords has granted leave to appeal to Ian Norris, the claimant in Norris v the Government of the USA and the Secretary of State for the Home Department [2009] EWHC 995. The Divisional Court in that case had certified a point of law of general public importance, namely:

Is the public interest in honouring extradition treaties such as to require, in any extradition case, that an appellant must show ‘striking and unusual facts’ or reach ‘a high threshold’ if the Article 8 claim is to succeed?

But for the grant of leave to appeal in Norris, I would have refused to grant permission to apply for judicial review on the Article 8 ground. However, in these unusual circumstances, we propose to allow the parties to present further submissions on the question whether we should grant permission for judicial review on Article 8, while refusing judicial review on that ground.

For the above reasons, I would dismiss the claim for judicial review of the Secretary of State’s decision.

I agree.