The increasing role of human rights law in extradition and deportation cases
25 May 2010
Human rights challenges to deportation and extradition seem to be constantly in the public eye. Gary McKinnon’s battle against extradition has caught the public, as has the now notorious “Pathway Students” terrorist deportation case. An examination of three recent decisions highlights the various ways in which the courts approach the human rights arguments in such cases.
There have been a steady stream of high-profile deportation and extradition decisions in the past few weeks, none more controversial than the “Pathway students” case, where two suspected terrorists were saved from deportation to Pakistan as they were thought to be at risk of torture or death upon their return. The Daily Telegraph reports that the Human Rights Act is being invoked in a growing number of asylum and immigration case, although it does not say whether the number of successful uses of the Act has increased.
Gary McKinnon’s case has rumbled on since 2002, and he may finally be saved from extradition to the United States on computer hacking charges by the new Government. Liberty, the human rights organisation, have welcomed the Coalition Government’s plans to “review the operation of the Extradition Act – and the US/UK extradition treaty – to make sure it is even-handed“.
Unpopular but clear law
However controversial and unpopular such decisions are, the current law is clear. Article 3 of the European Convention on Human Rights prohibits “inhuman or degrading punishment”. The article has a long history, expressly evoking the 1688 Bill of Rights, which prohibits “cruell and unusuall punishments”.
Unlike other rights, Article 3 is unqualified, which means that a State is not permitted to justify a breach on any grounds. It is now uncontroversial (in the courts, at least) that to return a person to a country where there is a real risk that they will be in danger or torture, loss of life or inhuman or degrading treatment would breach Article 3. Therefore, the courts have no choice but to prevent any extradition or deportation which would put a person at serious risk.
Last chance for Gary McKinnon
Whilst a breach of Article 3 represents a complete bar to deportation or extradition, in practice it is difficult and relatively rare to successfully invoke it in court, as Gary McKinnon has found out to his detriment in a series of judgments against him since 2002.
One of Teresa May’s first acts as Home Secretary has been to announce an adjournment of McKinnon’s extradition case, providing him with a last-minute reprieve against extradition. McKinnon was indicted by a US court in November 2002 for hacking into 97 computers in the US Defence Department and NASA. He has fought a 7-year legal battle, arguing that he shouldn’t be extradited as his Asperger’s Syndrome caused an obsession with UFOs.
McKinnon’s legal battle has included a number of appeals to the Administrative Court, which is often the court of last resort in extradition claims. In July 2009 Lord Justice Burnton rejected his claim that due to his mental condition, his detention would involve inhuman or degrading treatment or punishment which would, if committed in this country, infringe Article 3. The judge held that the bar for inhuman and degrading treatment had been set high in previous cases, and stated that
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.
McKinnon also claimed under Article 8, the right to private and family life, but this was also rejected, as his extradition was found to be a lawful and proportionate response to his alleged offending. Unlike Article 3, Article 8 is a qualified right, which means that it can be overrided if there is a strong public interest in doing so.
The case has now been adjourned by the Home Secretary so she can consider the medical evidence afresh. Geoffrey Robertson QC calls this a test case for principles and suggests that the Home Secretary’s “main difficulty will be to override her Home Office advisers who have for years fought an unremitting, expensive and merciless battle against this poor man and his indomitable mother” But the signs are good for McKinnon, as in opposition Nick Clegg called the case a “travesty of justice” and David Cameron said that he saw “no compassion in sending him to America”. Some say that the case highlights the unfair and unbalanced extradition agreement that the UK has with the US.
However, if McKinnon is spared extradition, it is likely to be through extra-judicial intervention, and as such may neither help nor hinder other such cases of alleged inhuman and degrading punishment in the future, except to demonstrate the importance of a well fought publicity campaign. It may well lead to a change in the law, as foreshadowed by the new Government.
Russian justice system not up to scratch in Dudko
Another way of fighting extradition is via Article 6, the right to a fair trial. The UK cannot allow a person to be sent back to a judicial system which is likely to breach their rights to a fair and public hearing.
In a judgment released last week, a judge seriously doubted whether the Russian judicial system was up to scratch. In Dudko v The Government of the Russian Federation  EWHC 1125 (Admin), Russia had requested the extradition of Mr Dudko on charges of illegal dealings involving his furniture business.
Lord Justice Thomas was presented with an argument on a different footing to the McKinnon case, on the grounds that the judicial system in Russia was too corrupt, and would not guarantee the claimant a fair trial if he were to be extradited. The judge decided the case on a separate technical point, but had sympathy with the corruption argument.
A District Judge had previously examined the facts of the case, and had expressed serious concerns that the claimant’s business was targeted “at best involving mixed motives”, that the official involved attempted to exhort him and had possibly acted in league with the case investigators. He held that the extradition could only take place if the system allowed for the claimant’s allegations of corruption to be considered in full.
Lord Justice Thomas explained that in order for the claimant to succeed, it was necessary to show that “the deficiencies in the process were such that the trial he would face on his return would be so fundamental as to amount to a nullification or destruction of the very essence of the rights [Article 6] guaranteed.”
Mr Dudko argued that it was a fundamental requirement of justice that a prosecution could not validly be brought if it was based on trumped up or fictitious charges or rooted in the corruption of the prosecutor in that case, and that a legal system which denied the right of a defendant to raise that issue in the trial of charges where there was credible evidence of corruption of was a system where there would be a flagrant denial of justice.
The court held that the most worrying aspect of the Russian system was that it was not possible to seek documentation in relation to the trumped up nature of the charges and the corrupt nature of the prosecution nor to raise those matters at all in the trial of the charges. The judge concluded that, contrary to the arguments put by the Russian state
There would appear to be no public interest grounds that could be advanced as a justification for withholding information. The question would arise as to how there could be confidence in the reliability or truth of evidence presented by the prosecutor where there was no right to examine whether the evidence was being put forward by a prosecutor who was acting in bad faith or who was corrupt.
Ultimately, the case was decided on other grounds, but the judge made a strong statement which will be useful to anyone being extradited to Russia in the future, observing that
These questions raise important issues in relation to the role and accountability of the prosecutor in relation to the fairness of a criminal trial which requires more detailed examination than was possible. In the light of my conclusion the appellant be discharged because the offence was not properly specified, it would not be desirable to express a view on whether on the facts of this case, the Russian system violates Article 6 or does so in such a way as to amount to a flagrant denial of justice.
Khan – difficult to show abuse of process
The judge in Dudko was sympathetic to the Article 6 arguments in relation to the Russian justice system. But attempting similar arguments in respect of more established legal systems, such as the US, is much more difficult, as can be seen in another recent extradition case, Khan v Government of the United States of America  EWHC 1127 (Admin) (19 May 2010).
Mr Khan had been indicted in the US on offences of conspiracy to export cocaine to the UK. The Government of the United States of America requested his extradition. He argued, amongst other things, that the courts should stay his extradition as it was predicated on the misconduct of foreign police officers acting in the UK, who had entrapped him. The misconduct, it was argued, constituted an abuse of process and breached the defendant’s Article 6 Convention rights. The judge rejected the abuse of process argument, stating that
Authority is clear – the abuse of process jurisdiction is residual in nature; it applies only when the issues raised cannot be addressed by the statutory protections…It follows there are no grounds for distinguishing Symeou. It matters not that the misconduct alleged took place in this jurisdiction rather than the United States. The submission that the protection afforded by section 87 is on the basis of a prospective flagrant denial of justice at trial in the requesting state and has no application to the misuse of power by the Baltimore police officers in entrapping the defendant is, if I may say so, somewhat artificial.
He went on to observe that “There is a fundamental presumption that a requesting state is acting in good faith and the burden of showing an abuse of process rests upon the person asserting such an abuse with the standard of proof on the balance of probabilities. In my judgement the evidence relied upon by the appellant … taken at its highest, does not raise a suspicion of entrapment”.
An increasingly difficult task for the courts
The McKinnon, Dudko and Khan cases demonstrate the significant strain placed on courts which must not only protect people within the UK’s borders against breaches of their human rights, but also ensure that if the State is to extradite or deport them, they will not be sent to other States which will not so protect them.
This means courts making difficult judgments on complex political and legal systems, often on the basis of incomplete evidence. However, whilst this may place a strain upon our own legal system and generate unpopular decisions as in the case of the Pathway students, the alternative, where the courts would be causing serious human rights breaches effectively through omission, is surely less desirable.