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||Neutral Citation Number:  EWHC 2449 (Admin)
||Case No: CO/9914/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE
|| THE QUEEN ON THE APPLICATION OF GARY MCKINNON
||- and -
||SECRETARY OF STATE FOR HOME AFFAIRS
Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner LLP) for the Claimant
Hugo Keith QC (instructed by the Treasury Solicitor) for the Secretary of State for Home Affairs
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Stanley Burnton :
- Following the handing down of judgment in this case and on the Claimant's application for permission to apply for judicial review against the Director of Public Prosecutions, we gave directions for the parties to file and to serve written submissions on the Claimant's application for certification of points of law of general public importance and for leave to appeal. In addition, the Claimant sought an oral hearing in the event that the Court was minded to refuse his applications.
- It is unusual for the Court to have an oral hearing of applications for certification and leave to appeal. In the present case, in addition to the detailed submissions considered by us in our judgments, we have the advantage of full written submissions, which we have carefully considered, together with the representations made by Liberty in their letter dated 5 October 2009. We do not consider that a further oral hearing is necessary or that it could affect our decision, and we refuse the application for a further hearing. Nonetheless, we have decided that in the particular circumstances of this case it is appropriate to hand down a short judgment giving in brief summary our reasons for refusing to certify and, it follows, for refusing leave to appeal. This is the judgment of the Court.
- As is made clear in my judgment handed down on 31 July 2009, with which Wilkie J agreed, but for the grant of leave to appeal in Norris v United States of America  EWHC 71 (Admin) we should have refused permission to apply for judicial review of the Secretary of State's decision to extradite the Claimant on the ground of alleged infringement of his rights under Article 8 of the European Convention on Human Rights. The question certified in Norris is whether an appellant must show "striking and unusual facts" or reach "a high threshold" if his Article 8 claim is to succeed. We did not decide that it was appropriate to refuse permission on the basis that the Claimant had to show such facts or reach such a threshold. We balanced the public interest in the prosecution of the Claimant in the appropriate jurisdiction against the interference with his rights under Article 8.1, and reached the clear conclusion that the former interest outweighed the latter. As I said in paragraph 93 of my judgment, his extradition is a lawful and proportionate response to his alleged offending. It was and is our judgment that there was and is no real prospect of the Claimant's Article 8 arguments succeeding. We therefore refuse permission to apply for judicial review on the Article 8 ground and, it follows, there cannot be a certificate on a point of law on Article 8. In these circumstances, no question of leave to appeal on this ground arises.
- The Claimant also seeks a certificate in relation to his Article 3 claim. Again, however, the basis of our decision was a conventional consideration of the seriousness of treatment that the Claimant faces if extradited as against the high threshold involved in Article 3. We do not see how the fact that the Secretary of State has not sought assurances as to bail and repatriation affects this question. Indeed, the question the Claimant seeks to have certified does not address the position if the Secretary of State is under the alleged duty and fails to obtain the assurances in question. If in the absence of absolute assurances there is no breach of Article 3, as we have held (see paragraph 89 of my earlier judgment), we do not see how a failure to seek assurances can give rise to a breach of that provision.
- For the same reason, i.e. that the extradition of the Claimant will not, on the evidence before us, involve or result in treatment that will breach his rights under Article 3, we do not consider that his case raises the points of general public importance suggested by the Claimant in paragraph 1.5 of his submission dated 22 August 2009.
- In these circumstances, we refuse permission to apply for judicial review against the Secretary of State on the ground of alleged breach of the Claimant's rights under Article 8, and we decline to certify any point of law of general public importance. It follows that we refuse permission to appeal.
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