R (McKinnon) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Stanley Burnton,Mr Justice Wilkie
Judgment Date31 July 2009
Neutral Citation[2009] EWHC 477 (Admin),[2009] EWHC 2021 (Admin),[2009] EWHC 170 (Admin)
Docket NumberCO/9914/2008,CO/9914/2008 and CO/4801/2009
Date31 July 2009

[2009] EWHC 170 (Admin)





Lord Justice Maurice Kay

Mr Justice Simon


Gary Mckinnon
Secretary of State for the Home Department

Edward Fitzgerald QC and Ben Cooper (instructed by Kaim Todner) appeared on behalf of the Claimant

Hugo Keith (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

(Approved by the court)


: This renewed application for permission to apply for judicial review arises in an extradition case. The extradition request from the United States of America fell to be processed by reference to Part 2 of the Extradition Act 2003. The statutory appeal procedure has run its course. The District Judge has sent the case to the Secretary of State pursuant to section 92, the Secretary of State has ordered extradition pursuant to section 93, this court dismissed the claimant's statutory appeal (see [2007] EWHC 762 (Admin)) and the House of Lords dismissed his further appeal on 30th July 2008 (see [2008] UKHL 59). The factual background is set out in those cases and, this being a permission application, we do not propose to rehearse it in this judgment. Within 4 weeks after the decision of the House of Lords, the claimant was diagnosed as suffering from Asperger's syndrome, to which we shall refer as AS. Until then it had not been suspected. It seems that late diagnosis is not uncommon. That, along with other material, became the subject of further representations, on behalf of the claimant, to the Secretary of State. She considered them in detail but by a decision letter of 13th October 2008, she rejected those representations and indicated her intention to proceed to extradition. That prompted the present application for permission to apply for judicial review of the Secretary of State's decision. The proposed grounds of challenge will be apparent from what follows.


On behalf of the claimant, the first submission of Mr Fitzgerald QC is that there is a manifest legal error on the face of the Secretary of State's decision letter. He refers to paragraph 6 of it, which is in these terms:

“The Secretary of State accepts that, in principle, a supervening event, arising after the conclusion of appellant proceedings, may… potentially engage a Convention right. Only in these 'very limited' circumstances is the Secretary of State, as a public body for the purposes of section 6 of the Human Rights Act 1998, required to consider whether extradition is incompatible with the Convention… The Secretary of State does not accept the contention (in your representations dated 8 th September 2008) that she has, as you appear to describe it, a 'residual' discretion in relation to 'health'.”


Mr Fitzgerald submits that there is, even at this stage, a residual discretion in relation to the claimant's health and the effect of extradition upon it, over and above any protection afforded by Convention rights. We are entirely satisfied that this is not correct, even on an arguable basis. It is clear from the structure and the detailed provisions of Part 2 of the 2003 Act that, whilst physical and mental conditions rendering extradition unjust or oppressive are matters for due consideration in the statutory appeal process (section 91), once the appropriate judge sends the case to the Secretary of State for her decision as to whether a person is to be extradited, the Secretary of State must order extradition unless she is prohibited from so doing by one of the matters specified in section 93(2) or one of the matters referred to in section 93(4) is in play. It is plain that none of the matters specified or referred to in those provisions arises in this case. Whatever the position may have been under earlier legislation, the 2003 Act does not preserve or create a residual discretion. Indeed, by the language of section 93, it is inconsistent with one. This is because the policy of the Act is to put an end to serial applications seeking to raise issues which have already been, or should have been, raised in the proceedings. On the other hand, as the 2003 Act does not remove the obligation of the Secretary of State, as a public authority, to respect the Convention rights of the individual, exceptionally she is duty-bound to consider fresh evidence in limited circumstances such as those described in McKinnon 1 at paragraph 63. We shall refer to the fresh evidence about AS shortly.


The second proposed challenge to the latest decision of the Secretary of State is that she did not do justice to the representation that, if convicted, the claimant faces a real risk of imprisonment in the so-called supermax federal prison at Florence, Colorado. The case for the claimant on this is that (1) there is a real risk that he would be detained at Florence, in which he event (2) he would be subjected to conditions which would infringe his Convention rights. The second stage only arises if the first is established. As to that, the claimant relies on the statement of Thomas Loflin III, dated 27th August 2008 and a letter from Human Rights Watch dated 27th August 2008. The former quantifies the likelihood of the claimant being detained in Florence as “a virtual certainty”. The first paragraph of the latter states:

“It is my further understanding that one of the issues presented by this application is Mr. McKinnon's incarceration at the United States Penitentiary, Administrative Maximum, located in Florence, Colorado… In view of the seriousness of the offenses alleged by the US and emphasized by the House of Lords and High Court in London there is a real and substantial risk that Mr McKinnon if extradited to the United States and ultimately convicted will be detained in a supermax high security prison such as ADX.”


In her decision letter, the Secretary of State said at paragraph 38:

“Neither the Human Rights Watch material nor the evidence from Professor Rovner [which went to the conditions in Florence rather than the likelihood of incarceration there] addresses whether there is a real risk that Mr. McKinnon would be sent to ADX Florence, the conditions that he would be likely to encounter were he to be transferred there, or the length of time that he would remain there.”

She later added at paragraph 44:

“Nor does the Secretary of State consider that Mr. Loflin's evidence demonstrates that Mr. McKinnon is at a real risk of being sent to ADX Florence.”

Then at paragraph 48:

“… Mr Loflin's evidence, which is generalised in nature, does not provide a basis upon which the Secretary of State could conclude that Mr. McKinnon is at real risk of being detained at ADX Florence.”


Mr Fitzgerald submits that the Secretary of State misdirected herself in relation to the Human Rights Watch letter because it did in terms address the real risk of detention at Florence. We are not persuaded that this can properly or arguably be described as a misdirection. The Human Rights Watch letter is quite lengthy. It addresses prison conditions in some detail. The only reference to the likelihood of the claimant being sent to Florence is in the introductory paragraph, where its appearance is entirely consistent with its being an assumption upon which the rest of the letter is based. It is certainly not a reasoned statement.


The latest statement by Mr Loflin was carefully considered by the Secretary of State over several paragraphs in her letter. She refers to the fact that Mr Loflin's opinion purports to be supported by reference to other specified persons who have been detained in Florence. The Secretary of State concluded that the specified persons were very different from Mr McKinnon, they being persons who stood convicted, either of homicide committed in the course of terrorist acts or, in one case, of a grave offence of espionage, the person in question being a high-level Russian spy.


We share the conclusion of the Secretary of State on this issue. Moreover, we consider it pertinent that Mr Loflin's evidence appears to have undergone significant mutation in the course of the history of this matter. His original statement, made in advance of the extradition proceedings, said at an early stage:

“McKinnon will likely be in county jails with no bail pending trial, in a super max or maximum security federal prison upon conviction.”

Later in the same document, Mr Loflin stated that the claimant:

“… will be assigned to a prison at the discretion of the Federal Bureau of Prisons, which will take into account whether he has a prior record of imprisonment; whether he has been convicted of a crime of violence; whether he is an escape risk; the length of his sentence; and whether he needs to be subjected to SAMs.”

SAMs are special administrative measures and it is common ground that that is no longer an issue in this case. Mr Loflin then “predicted” that the claimant, if convicted, would be sentenced to either supermax incarceration “or—at best—medium security federal prison”. In other words, in that first statement there is nothing approaching a certainty as to where the incarceration would occur. In the further statement, made in August 2008, Mr Loflin returned to the subject and, on this occasion, quantified the prospect of the claimant being incarcerated at Florence as “a virtual certainty”. His reasoning is closely related to the specified other persons, to whom we have already referred. It seems to us that the Secretary of State, on any basis, was entitled to take the view that she did of Mr Loflin's evidence.


We do not consider that it is...

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