The increasing role of human rights law in extradition and deportation cases

25 May 2010 by

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 sawno 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 [2010] 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 [2010] 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.

Read more:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: