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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McIntyre v Government of the United States of America and the Home Secretary  EWHC 1886 (Admin) (10 June 2014)
Cite as:  2 All ER 415,  WLR(D) 259,  1 WLR 507,  EWHC 1886 (Admin),  WLR 507
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
| David McIntyre
|- and -
|Government of the United States of America
The Home Secretary
Ben Watson (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Hearing date: 18 March 2014
Crown Copyright ©
Lord Thomas of Cwmgiedd, CJ:
This is the judgment of the court.
(a) The Human Rights jurisdiction of the Home Secretary
(b) The proposals for reform
(c) The new provisions
i) S.70 (10) and (11) were added; they provide that the Secretary of State is not to consider whether extradition would be compatible with the requested person's human rights under the Convention at any time after the issue of the certificate under s.70 that there is a valid extradition request.
ii) s.108 was amended to insert s.108 (5) –(8). S. 108 (5) and (6) provide that, if the permitted period for bringing an appeal of 14 days from the date of the decision of the Secretary of State has expired and the requested person has not been extradited (as is the case here), the person can only appeal on human rights grounds. S.108 (7) provides:"Where notice of an appeal is given in accordance with sub-sections (5) and (6) the High Court is to consider the appeal only if it appears to the High Court that –(a) the appeal is necessary to avoid real injustice, and(b) the circumstances are exceptional and make it appropriate to consider the appeal."
The effect of these amendments has been to divest the Secretary of State of her human rights jurisdiction under the so called McKinnon or "long stop" jurisdiction.
"(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless –
(a) it is necessary to do so in order to avoid real injustice
(b) the circumstances are exceptional and make it appropriate to re-open the appeal; and there is no alternative effective remedy.
(c) there is no alternative effective remedy."
The Rules governing extradition appeals later this year, probably from 6 October 2014, will be contained in the Criminal Procedure Rules; the corresponding provision to CPR 52.17(1) will be Crim PR 17.27.
(d) The submissions of the parties
i) Mr Fitzgerald QC on behalf of the appellant accepted that there generally had to be some supervening development after the conclusion of the appeal for the court to be able to exercise the jurisdiction under s.108 (5)-(8). However the court should not be prescriptive beyond this; it should look to the justice of the case. A supervening event could take the form of new evidence which had not been before the court on a previous occasion and there was good reason to consider it. The court should not import the requirement that the requested person had acted with reasonable diligence. It should look simply to the avoidance of injustice.
ii) Mr Watson, who appeared for the Home Secretary, submitted that as the new provision followed the terms of CPR 52.17 (1) (a) and (b), the court ought to interpret the provisions in the light of the case law in respect of CPR 52.17 together with that concerning the Home Secretary's former McKinnon or "long stop" human rights jurisdiction. He referred us to the decisions in Ignaoua, McKinnon and Navadunskis v Serious Organised Crime Agency  EWHC 1292 (Admin).
(e) Our conclusion on the applicable principles
i) It is well established that all issues relating to the extradition of a requested person under Part 2 of the 2003 Act should be raised at the extradition hearing before the District Judge.
ii) On any appeal to the Divisional Court the court only considers such issues as have been raised, subject to s.106(5) (a) and (b) of the 2003 Act, as explained by Sir Anthony May PQBD in Hungarian Judicial Authorities v Fenyvesi  EWHC 231 (Admin) at paragraphs 32-35 in relation to the equivalent provision in Part 1 (s.29(4) (a) and (b)).
iii) The decision on the extradition hearing (if there is no appeal) or of the Divisional Court or Supreme Court (if there is an appeal) is intended to bring finality to the extradition proceedings; the Home Secretary is thereafter under an obligation to extradite within strict time limits.
iv) Exceptionally events can occur after the decision on the extradition hearing (if there is no appeal) or of the Divisional Court or of the Supreme Court (on any appeal) which would make extradition incompatible with the requested person's human rights.
v) It was determined by Parliament that it is not apposite that the jurisdiction to determine these issues should remain with the Home Secretary.
vi) The provisions of s.108 (5)-(8) are therefore intended to permit the determination of such issues by the courts by way of an appeal. The express language of the new provisions makes it clear a court can only consider such an appeal if it is both necessary to avoid a real injustice and the circumstances are exceptional and make it appropriate to consider the appeal.
vii) It is not necessary to embellish that language. It is evident from the statutory purposes that a requested person will ordinarily have to establish that the issue arises as a result of a supervening development or event. It will also be necessary to provide a reasonable explanation why the issue was not anticipated at the extradition hearing or on any appeal.
viii) Any application under s.108 (5) - (8) must be brought promptly. The evidence relied on should be filed with the application or within a period immediately thereafter to be measured in days, not weeks. The court must make arrangements for the rapid hearing of the application. It may be desirable for appropriate directions to be given immediately in writing by the Master of the Administrative Court. Strict compliance with the directions must be observed (or a variation sought from the court). The matter should generally be determined at a single hearing to avoid delay. However, though such applications will be rare, the practice we have outlined should be reviewed in the light of experience.
ix) Applications under the new provisions must not be used to bring about undue delay to the process of extradition.
The extradition hearing and the appeal in 2012-3
(a) The appellant
(b) The US criminal proceedings
(c) The extradition hearing
(c) The events leading to an appeal to the Divisional Court
i) The appellant's evidence should be lodged by 29 January 2013.
ii) Any evidence from the Government of the United States should be provided by 5 February 2013.
(d) The dismissal of the appeal by the Divisional Court on 19 February 2013
"6. … These are important proceedings in the Divisional Court, and for that matter in relation to Administrative Court matters generally, because they provide an opportunity for controlling what would otherwise be the slow, wandering process leading up to a hearing. They are orders made by Master Egan in order properly to control proceedings in this court. When, following such a hearing, orders are made, they are orders of the court and they are to be obeyed. Failure to obey them will no doubt lead to the end of the case.
"7. … These were important directions, vital for the proper conduct of this case. They were disobeyed. It is with some dismay that I observe that the solicitors, no doubt under pressure from the appellant, took the view that, rather than obey those directions, rather than apply to Master Egan for a variation, they could leave the matter until the hearing of the case today. That was far too late."
The events leading to the present appeal
(a) The report of Colonel McAllister in March 2013
(b) The application to the Home Secretary
(c) The bringing of the present appeal
(d) The case management hearing in November 2013
(e) The service of the evidence
Has the appellant met the conditions set out in s.108 (7)?
(a) The evidence of Colonel McAllister
(b) The evidence of Mr Sickler
(c) The submissions of the parties
i) In the present case no argument or submissions had been made to a court in relation to the appellant's PTSD, the risk of suicide and the conditions to which he would be subject in the United States of America. There was a good explanation as to why this had not been put before the court, as the diagnosis of PTSD was supervening – it had not been made until 1 March 2013 which was after the dismissal of the appeal on 19 February 2013.
ii) On the evidence provided as to conditions in the United States of America and the high risk of suicide, there were substantial grounds for believing, applying the case law in relation to suicide set out in Richen Turner v USA  EWHC 2426 (Admin) at paragraph 28, that the extradition of the claimant to the United States of America would give rise to a real risk of inhuman or degrading treatment in the United States of America of such severity as to put the UK in breach of its obligations to the claimant under Article 3.
iii) Furthermore, in all the circumstances extradition would not be proportionate under Article 8, given the circumstances, particularly the risk of suicide and the fact that the appellant could be tried in the UK
(d) Our conclusion
i) The Home Secretary or those responsible for the appellant ensure that full and proper steps are taken to put proper preventive measures in place to address the risk of suicide from the time a decision to extradite him is communicated to him. We would have had no doubt that such steps could be taken prior to the decision being communicated to him. We would have therefore restricted the manner in which this draft judgment could be used and we so restrict it, but give liberty to apply immediately if the intervention of the court is required.
ii) We note the concerns that have been expressed by Mr Sickler about transfer to the United States of America; such concerns have been expressed in other cases and have not always been addressed by the United States authorities. It must be and is the responsibility of the Home Office (or other UK authorities acting on behalf of the Home Office) to satisfy themselves that in the arrangements made for transfer from the UK to the United States of America proper preventive measures are in place to address the risk of suicide during the journey to the United States of America and that the medical records and reports accompany the appellant. This is not a matter solely for the United States authorities. We would therefore have been satisfied that the issues on transfer could have been addressed and will be addressed by the Home Office.
iii) After arrival in the United States of America, we do not consider the evidence before us would have given rise to a real risk of inhuman or degrading treatment in the United States of such severity as to put the United Kingdom in breach of its obligations to the claimant under Article 3. The evidence does not establish either that the risk of suicide cannot be properly addressed by the United States authorities or that the treatment that will be afforded to him would fall below a standard that might put the UK in breach of its obligations under Article 3.
Observation: The importance of compliance with the Orders of the court.