AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

The Claimant’s Statement of Facts and Grounds (at [116]-[118]) points out that the SSHD is a public authority and alleges that the SSHD’s “failure to take into account” the Claimant’s human rights was in breach of section 6 of the 1998 Act. Various articles of the ECHR are referred to and it is also alleged that insofar as the SSHD’s policy was not to take into account human rights, that policy is unlawful and contrary to the 1998 Act. The Claimant’s skeleton argument also appeared to be putting this Ground on the basis that the alleged breach of section 6 was the SSHD’s failure to take into account his human rights: see [83] and [84] of that document.

At the hearing I expressed doubts to Mr Cooper about whether failure to take into account human rights is capable, in itself, of amounting to a breach of section 6 of the 1998 Act. The issue under section 6(1) is whether the public authority has acted or is acting “in a way which is incompatible with a Convention right” rather than whether it considered whether it was acting incompatibly with a Convention right or considered human rights more generally. Mr Cooper said that in fact his case was that it was incompatible with the Claimant’s Convention rights for the SSHD to order that the Warrant be deferred in favour of the Request. He also said that the only Convention right relied on by him was Article 8 ECHR.

Mr Cooper’s argument was that section 70(11) only prohibits consideration by the SSHD of the question whether complying with an individual extradition request would be contrary to section 6 of the 1998 Act. This is why the section refers to “the extradition”. He referred to the Scott Baker Review at [11.72] and submitted that Section 70(11) was enacted for a specific purpose, namely to prevent Ministers from having to duplicate consideration of Convention rights which the courts are required to address, and to ensure that fresh evidence of human rights issues in relation to that same single request should go before a court instead of the Minister. In contrast, section 179 is concerned with a comparison of competing requests and, argued Mr Cooper, the relative impact on human rights of the these requests. Section 70(11) does not bite on this question.

Mr Cooper submitted that section 70(11) therefore does not prevent SSHD from weighing the proportionality of competing requests based on Convention rights and principles, pursuant to Article 8 ECHR. He relied on Soering v United Kingdom 14038/88 at [110]-[111], albeit this was an Article 3 case, where, he submitted, the possibility of a trial in the defendant’s home country was held to be a relevant circumstance for the purposes of the overall assessment. Similarly, he argued, it might be proportionate for the purposes of Article 8 for a requested person to be extradited to country A absent any alternative, but disproportionate if there is an alternative trial forum which is more compatible with the requested person’s Article 8 rights. As a public authority, the SSHD was required by section 6 of the Human Rights Act 1998 to determine this question if it arose.