AC-2023-LON-002337 - [2025] EWHC 1985 (Admin)

The Applicant's third ground of appeal and the second issue identified by Mr Fitzgerald is that the SDJ erred in finding that extradition would be compatible with Article 14 ECHR, read in conjunction with Article 3 ECHR. It is submitted that the SDJ misdirected himself as to the applicable law at [296] where he said:

“296.

Considering the cases referred to above the conclusions on the protections and safeguards under the Article 3 ECHR challenge I am bound to find that the Article 14 ECHR challenge fails also.”

For myself I doubt that this paragraph bears the weight of the argument that the Applicant seeks to erect upon it. In the preceding paragraph the SDJ refers explicitly to the argument that the SHU would be a disproportionate means of protecting him and that he would be treated differently to prisoners who are not gay. At [296] the SDJ was referring back to the extensive consideration he had given to the Article 3 arguments and, necessarily, to the question of whether the use of the SHU was disproportionate or discriminatory. The SDJ’s reference to authorities in relation to Article 14 [65-70] also indicates that he was well aware of the principles which the Applicant now says he ignored.

The essence of the Applicant's argument under Article 14 was that he would face differential treatment, and indeed worse conditions of detention, in the United States prison system due to his sexual orientation and effeminate demeanour. This, he asserted, would necessitate his confinement in protective custody, such as an SHU and that this was the only way to protect a homosexual prisoner from sexual violence; that is to say by subjecting them to isolation in an SHU; itself a disproportionate response to the risk.

Article 14 ECHR provides for the enjoyment of Convention rights without discrimination on various grounds, including sexual orientation. It is well-established that Article 14 has no independent existence; it has effect solely in relation to the rights and freedoms safeguarded by other substantive provisions of the Convention. However, for Article 14 to become applicable, it is sufficient that the facts of a case fall within the ambit of another substantive provision, even if a breach of that provision is not ultimately established. As the European Court of Human Rights stated in X v Turkey (App. No. 24626/09, 27 May 2013):

“Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them”. This principle was reiterated in Carson and others v United Kingdom (2010) 51 EHRR 13, which noted that Article 14 “applies also to those additional rights, falling within the general scope of any article of the Convention, for which the state has voluntarily decided to provide”.”

The Respondent submitted that the Applicant must show a “flagrant denial” of his Article 14 rights to establish a bar to extradition (a test which Mr Fitzgerald accepted on reflection, although not in initial submissions). In R (Ullah) v Special Adjudicator [2004] AC 323, Lord Bingham of Cornhill, in discussing reliance on articles other than Article 3 in an expulsion case, stated that “successful reliance demands presentation of a very strong case,” requiring a “flagrant denial or gross violation of the relevant right”. Lord Steyn further noted that “where other articles may become engaged, a high threshold test will always have to be satisfied. It will be necessary to establish at least a real risk of a flagrant violation of the very essence of the right”. Lord Carswell, agreeing with this approach, cited the Immigration Appeal Tribunal's criterion in Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, that the right in question would be “completely denied or nullified in the destination country”.

Applying these principles, Mr Smith submitted that the Applicant would not face detention in an SHU or other protective unit because he is homosexual. Rather, any such placement would be due to his vulnerability to inter-prisoner violence, a risk that could apply to any inmate regardless of sexual orientation. He argued, and I agree, that the relevant question is whether a vulnerable homosexual inmate would be treated differently to a vulnerable heterosexual inmate. On the evidence, the answer to that question was plainly ‘no’.

Any differential treatment, if it were to occur, would, in any event, be in pursuit of a legitimate aim, namely, preventing the risk of inter-prisoner violence. It would be inconsistent for the Applicant to assert his vulnerability while simultaneously claiming that protective measures taken in response to that vulnerability constitute discrimination. The SDJ had found that the US prison estate offers a reasonable level of protection, including housing in an I-Unit or SHU, and that these measures were not unusual and would provide reasonable protection from sexual violence.

The Applicant's argument that isolation in an SHU is a disproportionate response therefore loses much of its force in circumstances where such measures are a recognised and, on the SDJ's findings, reasonable means of protecting vulnerable prisoners. The SDJ expressly rejected the contention that detention in an SHU would be inhuman or degrading, finding that the risk of the Applicant being held alone in an SHU for a significant period was “vanishingly small” and that, even if he were, the necessary protections would be available.

It follows, in my view, that the differential treatment claimed by the Applicant, even if established, would relate to protective measures taken due to vulnerability, and not as a result of a discriminatory intent or practice based on his sexual orientation. Such measures, as assessed by the SDJ, are not inhuman or degrading and serve a legitimate purpose withing the US penal system.

As Mr Smith pointed out in argument there is a dearth of authority in relation to the application of Article 14 in the context of extradition explained by the fact that the 2003 Act contains express provisions at section 81 relating to prejudice by reason of nationality or sexuality. In its submissions for the hearing before the SDJ the Respondent observed:

“The Requested Person does not cite any examples of extradition being held to amount to a breach of article 14 of the ECHR. The lack of such authorities can be explained by the fact that the Extradition Act 2003 contains within it a specific bar to extradition that allows the court to consider challenges of this kind...

This court frequently considers submissions that an individual will be “punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions”. If the court has determined that extradition is not barred by reason of extraneous considerations. there is no basis upon which the court could then find that extradition amounts to a breach of article 14 of the ECHR. Accordingly, reference to article 14 in the present case is otiose and the court ought to consider whether the Requested Person’s submission engages section 81(b) of the 2003 Act.”