Coleiro v The Court of Magistrates Malta

The Appellant is a citizen of Malta who was born in Luqa on 7 February 1964.

Malta is a Category 1 territory pursuant to section 1 of the Extradition Act 2003 and thus Part 1 of the Act applies.

He is subject to two European Arrest Warrants (‘EAW’s) issued by Mr. Joseph Sacco, Director of the Law Courts of Malta (the ‘Judicial Authority’). The first EAW, issued on 5 January 2010 and certified by the Serious Organised Crime Agency (‘SOCA’) on 11 April 2010, concerns 17 alleged offences of dishonesty that are characterised in the EAW as 7 offences of misappropriation, 8 offences of fraud, 1 offence of promoting an organisation of two or persons with a view to committing criminal offences and 1 offence of belonging to a criminal organisation of two or persons with a view to committing criminal offences. The conduct said to comprise the offences concerns the carrying on of a fraudulent enterprise with another named person.

The second EAW, which was issued on 13 April 2010 and certified by SOCA on 15 April 2010, various alleged offences, namely, 1 offence of using forged debentures or documents, 1 offence of forging and using of public, commercial or private bank documents by a person not being a public officer, 1 offence of making false declarations or information of a public authority, 1 offence of obtaining money or property by false pretences, 2 offences of making false statements to the Customs Department and 2 offences of evading VAT due on importation. The conduct said to comprise the offences concerned a conspiracy to import mobile telephones from Sicily into Malta and undervaluing the value of the imported goods for the purpose of evading VAT.

The Appellant was arrested on 20 April 2010.He was brought before a District Judge at the City of Westminster Magistrates’ Court on 21 April 2010. He was an accused person and his extradition was sought by the Judicial Authority for the purpose of conducting a criminal prosecution. If convicted, the penalty could extend to several years imprisonment.

A fully contested extradition hearing took place before District Judge John Zani at the City of Westminster Magistrates’ Court. His decision was dated 2 December 2010 in which the Appellant’s extradition was ordered.

The basis of his resistance to extradition is reflected in the following extract from the District Judge’s judgment.

“11.

… He says that, whilst in his native Malta, he owed money to a criminal gang there. He struggled to repay the debt as a result of which he has suffered emotionally and financially. He took on extra work to try to help pay off what was owed. He was threatened repeatedly by members of a criminal organisation leaving him with no option but to flee the country. He says that there is a real risk that he will be severely injured or even killed by members of the criminal gang if he were to return to Malta and that the Maltese authorities will be unable to protect him.”

The District Judge referred to other aspects of the evidence given in support of the Appellant’s case in this way:

“12.

In evidence [the Appellant] said that there is only one prison in Malta. It houses approximately 800 inmates. The criminal gang that has threatened him has also threatened his family in Malta and has further threatened him on the telephone since he has been in the United Kingdom. He added that the gang also has contacts who work as prison guards and gang members as inmates in prison. Mr Richard Murkin also gave live evidence on behalf of [the Appellant]. Mr Murkin is a former branch bank manager who said that he had engaged [the Appellant] to do some tiling work at his sister’s home sometime in 2008. Mr Murkin overheard a telephone conversation between [the Appellant] (who had received the call on his mobile telephone) and an unknown caller. Albeit much of the conversation was in a foreign language, Mr Murkin also overheard threats as they were in English, including threats to kill [the Appellant] who as a result was visibly upset and appeared frightened by what he had heard. I found that Mr Murkin was an impressive witness and I have no reason to doubt what he told me. The requesting state say that it may well have been from one of the victims of the fraud involving [the Appellant].

13.

[The Appellant] has also put into evidence for affidavits from friends and members of his family supporting threats made in the past and further anticipated threats to [the Appellant’s] life were he to return to Malta and then fail to pay what is owed to the criminal gang. Apparently the main protagonists of these threats a Mr Anthony Borg was killed in Malta in February 2010. I have been shown newspaper cuttings which appear to show that [he] was a ruthless moneylender seriously involved in criminal activity with others. The question is, put shortly, whether the Maltese authorities can properly protect [the Appellant] in the event of extradition.”

Given the matters that have formed the subject of the arguments before me, I should record that those representing the Appellant before the District Judge placed no evidence before him about conditions in the only prison in Malta (see paragraph 17 et seq below), but, of course, the Appellant himself had raised concerns about his safety in prison (see paragraph 12 of the District Judge’s decision quoted in paragraph 8 above) and his then Counsel appears also to have mentioned it.

The District Judge’s conclusion is reflected in the following paragraph (paragraph 18):

“I have considered the entirety of the evidence placed before me by the requested person as well as his own oral testimony but I am of the opinion that he has failed to persuade me that there are substantial grounds for believing that there is a real risk that he will be subject to the inhuman or degrading treatment as he asserts or that his life would be endangered. I find that the assurances given by the Maltese authorities ... satisfies me that the requesting judicial authority will adhere to its obligations. The challenges raised ... in respect of Articles 2 and 3 ECHR are rejected. [Counsel for the Appellant] also made passing reference to what she says are unacceptable prison conditions in Malta. I have considered the evidence provided in support thereof, including a report by Mrs Zarif Bahtiyar but any challenge in respect thereof is rejected ….”

In paragraph 17, the District Judge had said this:

“Malta is a signatory to the European Convention on Human Rights and, importantly, has been designated a Part 1 territory. This Court must start from the premise that unless and until the contrary is demonstrated, Malta will fulfil its obligations in relation thereto.”

Miss Corinne Bramwell, who did not appear below but now represents the Appellant, had argued in her Skeleton Argument that the District Judge based his decision on District Judge Evans’ conclusions in the Agius case (see paragraph 13 below) in which District Judge Evans followed a line of authorities in the Administrative Court (Dabkowski v. District Court in Gruzow, Poland [2010] EWHC 1712 (Admin); Jan Rot v. District Court of Lublic, Poland [2010] EWHC 1820 (Admin) and Ardas Klimas v. Prosecutor General’s Office of Lithuania [2010] EWHC 2076 (Admin)) in which Mitting J had held that the District Judge was not required to address the question of prison conditions, save in exceptional circumstances.

Mr Toby Cadman, who appeared for the Respondent in Agius and in the present case, recognised that when the case of Marcellus Agius v. Court of Magistrates, Malta [2011] EWHC 759 (Admin) reached the Divisional Court,the Divisional Court (Sullivan LJ and Maddison J) took a different view and followed Toulson LJ in Targosinski v Poland [2011] EWHC 312 (Admin) and the European Court Grand Chamber’s decision in MMS v Belgium & Greece (App No. 30696/09 21 January 2011). It was held that the previous approach in went too far and that it was necessary to consider whether extradition was compatible with the Appellant’s Convention rights. Sullivan LJ also said that the test of ‘exceptional circumstances’ was not to be followed, even though in practice it would be only exceptional cases that meet the high threshold. Sullivan LJ put the matter thus:

“I have no doubt that the proposition that there is no need to undertake enquiries, save in wholly extraordinary circumstances, goes too far. Section 21(1) imposed an obligation on the District Judge to reach a decision as to whether extradition would be compatible with the appellant’s Convention rights. A judicial decision is made only after the judge has undertaken a proper inquiry.

In the light of the Grand Chamber’s decision in MSS, the position is, in my judgment, as set out by Toulson LJ in Targosinski. The starting point for any inquiry for the purpose of making a decision under section 21(1) is the assumption (or presumption, it matters not) that the requesting state is able to, and will, fulfil its obligations under the Convention. Given the underlying objective of the EAW scheme, that assumption is not easily displaced. However, it is capable of being rebutted by clear and cogent evidence, which establishes that, in any particular case, extradition would not be compatible with the defendant’s Convention rights.

In this context it is important to bear in mind paragraph 24 of Lord Bingham’s speech in Ullah. There must be strong grounds for believing that any ill-treatment will be so serious as to cross the high Article 3 threshold. In the context of Article 6 there must be substantial grounds for believing that there is a real risk of a flagrant denial of a fair trial. In practical terms, therefore, the burden of displacing the assumption will be a heavy one, and it may well be the case that as a matter of fact successful reliance on section 21(1) will be the exception rather than the rule, but that does not mean that there is a legal obligation on an appellant relying on section 21(1) to demonstrate ‘exceptional circumstances’.”

The foregoing judgment was given on 15 March 2011 and was therefore not available to District Judge Zani when he considered the present case. Although Mr Cadman accepted that he appeared to suggest that he was following the previous line of authority, in fact the test he applied (set out in paragraph 11 above) is very close to the test that now has to be applied. Indeed, arguably, the test he applied was more liberal than the test to be derived from the way it was formulated in Agius. If that is so, and I think that it is, then this particular ground of appeal cannot succeed.

It follows, therefore, that the issue is whether the CPT report (see paragraph 20 et seq below), if it had been available, would have made any difference. I will deal with that issue below.

Reverting, for the moment, to the reasons given by the District Judge, his reference to “the assurances given by the Maltese authorities” is a reference to submissions made by the judicial authority in response to the Appellant’s challenge to extradition. The Appellant had said in advance of the hearing before the District Judge as follows:

“(7)

What is different about this case is that the [Appellant] has direct evidence from family members in Malta as to the threats which have been made to them that the [Appellant] will be seriously harmed or killed in Malta. Evidence has also been adduced as to the murder of Anthony Borg who was a member of the same gang who have threatened the life of the [Appellant].

(8)

It is submitted on behalf of the [Appellant] that there is a real risk that he will be seriously harmed or killed if he is returned to Malta. He will give evidence as to the contact he and his family have had with the Maltese police, about the threats to which the [Appellant] has been subjected. He will give further evidence as to why his life will remain at risk if he is imprisoned.”

The Maltese authorities, in addition to dealing with general matters and to asserting that the murder of Mr Borg was not related to his money lending activities, said this in relation to the Appellant himself:

“It is however worth [pointing] out that [the Appellant] and his family had, for some time, been subject to some insults and harassment by a number of persons, namely victims of [the Appellant] himself. These persons were owed huge amounts of money by [the Appellant] and sometimes, instead of taking the necessary criminal or civil measures, chose to call the residents of [the Appellant and his family] to demand payments of their monies.

Again, whenever reports of such incidents were received by the district police who are in charge [of] investigating such acts, these reports were attended to immediately and whenever the culprits were identified [they] were also charged in court accordingly.

In his submissions, [the Appellant] also seems to imply that he was not allowed to work following his arraignment.

With respect to the earning of living in Malta, the fact that [the Appellant] became subject to criminal proceedings did not preclude him from carrying out any form of work, this preclusion was only in force during the time he spent in preventive custody, otherwise when he was released on bail, he could carry out whatever work he wanted in Malta. As part of his bail conditions, [the Appellant] was prohibited [from leaving] the country without prior permission from the courts, for fear of fleeing the country, as he actually did. Had he the intention of seeking employment outside the Maltese islands, this intention had to be duly communicated to the courts by way of application, and after due consideration by the court, permission or otherwise would have been given.

As for the capability of the Maltese authorities to provide [the Appellant] with a reasonable level of protection while in prison, the Maltese authorities would like to submit that the Maltese correctional facility is capable of offering the adequate level of protection for [the Appellant] in a number of ways. The maximum security section at the section for vulnerable persons within the same facility have been purposely set up for such circumstances.

Furthermore, if [the Appellant] feels threatened in some way or another at the prison facilities, this fact can be communicated immediately to the prison authorities, headed by a police superintendent, and the necessary action will be taken to ensure that the inmates are separated and do not have contact between themselves.”

The reference to the report by Mrs Zarif Bahtiyar (of the Tilburg University in the Netherlands) was to an expert report produced by her when instructed on behalf of the appellant, Marcellus Agius, in proceedings that were at one stage considered to be extradition proceedings parallel to those concerning the Appellant in this case.At that stage that case, as I have already indicated, had been dealt with by District Judge Nicholas Evans in which it was argued that detention in the one prison in Malta, namely, the Corradino Correctional Facility (‘CCF’), would result in the appellant in that case being kept in conditions that amounted to inhuman and degrading treatment such that his Article 3 rights would have been contravened. In his judgment dated 10 September 2010 District Judge Evans said that it had not been established that there were any substantial grounds to believe that the appellant in that case was at real risk of being subjected to Article 3 ill-treatment if held in the CCF. Mr Cadman, who as I have said appeared in that case also, put Mrs Bahtiyar’s report before the District Judge in the present case.

The concluding paragraph of her report (which I understand was not based on any personal visits to the prison by Mrs Bahtiyar) was in these terms:

“The ECtHR has never ruled against Malta regarding Article 3 ECHR. According to the CPT and other organisations in the public domain, the over whole detention conditions at Corradino are acceptable. According to these bodies, this does not mean there are no issues to be improved. It should be mentioned that the reports published by these organisations are quite dated and do not represent the current situation regarding the detention conditions at Corradino. I do not have a perception of the present situation at Corradino as there are no recent reports in the public domain and I have not been able to witness the circumstances by myself. On the basis of the currently available data in the public domain, it cannot be stated that the prison conditions at Corradino would breach Article 3 ECHR. However, as already mentioned, there are reliable notes which state the report on the 2008 CPT visit to Corradino to be critical concerning the conditions in certain divisions of the prison. This could be an indication that the current conditions at Corradino contrast with the previous CPT findings.”

As will appear below, reference to the ‘CPT’ is reference to the Council of Europe Committee for the Prevention Torture and Inhuman and Degrading Treatmentor Punishment.

It is fair to say, therefore, that the issue of the Appellant’s safety in prison was raised and the District Judge received some evidence, in the form of the report to which I have referred, of conditions there. The District Judge’s conclusion is set out in paragraph 10 above.

Since then the CPT 2011 Report was promulgated on 17 February 2011. It related to the period from 19 to 26 May 2008, but was not published until February this year.Miss Bramwell submits, in accordance with section 27(4)(a) of the Extradition Act, that this CPT Report is admissible as fresh evidence because it was not available at the extradition hearing since it had not been published at the time. As such, it was not at the disposal of the Appellant at the relevant time and it could not, with reasonable diligence, have been obtained. Mr Cadman does not challenge that and concedes that even with the exercise of reasonable diligence, this evidence would not have been available to the Appellant at the extradition hearing. However, he submits that the Appellant failed to act with reasonable diligence and that by failing to put before the District Judge any evidence capable of corroborating his suggestion that the prison system in Malta would fail to meet his Article 2 and 3 rights I should not now admit the CPT 2011 Report.

Whilst it might be a fair criticism that no worthwhile material was placed before the District Judge on this issue, putting before him previous CPT reports could well have been said to be of no great assistance because they would have been out of date. However, I do not think that this argument requires any very sophisticated analysis. In my judgment, the hurdles necessary for the admission of the recent report at the appellate stage have been surmounted and, accordingly, I have considered its implications.

The question is whether, as Miss Bramwell contends, consideration of the report would have resulted in the District Judge deciding the question of the Appellant’s extradition and its compatibility with Articles 2 and 3 differently. Mr Cadman contends that this has not been demonstrated. The essential issue is accepted to be whether there are “substantial grounds for believing that there is a real risk of ill-treatment” in the requesting state.

Miss Bramwell drew attention to a number of aspects of the report which, she argued, demonstrated the inadequate nature of the regime within the CCF including concerns about lack of resources. Those features which are arguably more specific to the Appellant’s position are those concerning personal safety. The relevant paragraphs appear to be as follows (omitting irrelevant features):

“86.

At the very outset, the CPT would like to state that the findings made by the Committee’s delegation during its three-day visit to the CCF in May 2008 were of such scope and seriousness that the Committee considers it essential for the Maltese authorities to commission an independent and comprehensive audit of the Maltese prison system and, in particular, of the CCF. In the CPT’s opinion, this exceptional step - subsequently followed by appropriate measures - is the only appropriate response to a situation that could otherwise rapidly become unmanageable.

87.

The most important findings of the CPT can be summarised as follows:

- the CCF is currently headed by an Acting Director who is a trained police inspector and who does not meet the criteria set out in Rule 84 (1) of the European Prison Rules. In particular, he does not have suitable professional training and experience;

- the post of Manager of the Correctional Services has been vacant for a very long time;

- the number of qualified and trained prison staff is too low for the number of inmates currently held in the establishment, which is prejudicial for the security of both staff and prisoners as well as for the latter’s’ treatment;

- informal power structures are given free rein to develop, placing numerous inmates in a submissive position vis-à-vis gang-type practices and allowing a considerable amount of drug trafficking to take place within the prison;

- the formal disciplinary system has collapsed;

- a genuine allocation and classification system for prisoners is absent;

- the very limited use of written and established procedures within the CCF has brought about an environment where insecurity and arbitrariness prevail.

88.

In the CPT’s opinion, these findings fully justify mandating a group of independent experts to carry out a comprehensive audit of the CCF (and of the prison system in general). The terms of reference this multidisciplinary group should cover all aspects of the running of the CCF, and take into account the relevant external factors pertaining to criminal and health policy. Some of the experts should have considerable experience in prison matters and preferably have served as Prison Director in an establishment of at least the size of the CCF. Further, support should be obtained from experts with a good knowledge of the local and regional specificities.”

The emphasis I have added appears to be the most relevant observation by the CPT so far as the appellant’s position is concerned. It is, of course, to be noted that the observation was made on the basis of a visit in May 2008. The proceedings before the District Judge and this appeal are being considered 2½-3 years later.

In order to complete the relevant picture, I should record what had been said in paragraphs 91-93 of the CPT report:

“91.

The delegation received an allegation of a very recent and serious case of inter-prisoner violence involving a former police officer held in Division XII at the time of the visit. The prisoner concerned alleged that, on 18 and 19 May 2008, he had been subjected by fellow prisoners to death threats, then to attempted strangulation with a tie and suffocation by placing a plastic bag over his head, as well as beatings with a broom handle. His allegation was supported by medical evidence recorded in the prisoner’s medical file, as well as by an examination carried out by a medical member of the delegation.

The prisoner reported these incidents to the prison officers in charge the following day; however, the delegation noted that the alleged victim, although having changed cell, was still accommodated in the same Division, in direct contact with the alleged perpetrators. Furthermore, nothing had been registered in the “occurrence book” of Division XII (even if preliminary disciplinary reports were said to have been established). The delegation made an immediate, observation under Article 8, paragraph 5, of the Convention, requesting the Maltese authorities “to immediately take measures to provide this prisoner with a safe environment within the CCF”.

Further, the delegation sought confirmation by 16 June 2008 at the latest that the above request had been complied with, adding that, in its opinion, this incident was worthy of a preliminary investigation.

92.

On 16 June 2008, the Maltese authorities informed the CPT that “the person in Division XII has now been properly accommodated, though he had refused the opportunity to move out of this Division”. The CPT takes note of the above statement and would like to know whether apreliminary investigation has been initiated and, if so, whether any conclusions have been reached. Furthermore, it would like to know the outcome of the above-mentioned disciplinary proceedings.

Finally, it is axiomatic that any allegation of inter-prisoner violence made by a prisoner to staff should be duly recorded and immediately acted upon.

93.

In the CPT’s opinion, timely and effective measures were not taken to protect the prisoner concerned from other inmates. In addition, the fact that the prisoner refused to move out of Division XII should not be interpreted as a confirmation that the incident has been settled in a satisfactory way.

The CPT recommends that the Maltese authorities draft and implement a comprehensive policy concerning inter-prisoner violence at the CCF … tackling, in particular, the issues of early detection of possible cases of inter-prisoner violence, secure custody and care, classification and distribution of prisoners, and staff training.”

The Maltese Government provided a response to the CPT report in July 2009. The paragraphs that respond to the paragraphs referred to above were in the following terms:

Miss Bramwell submits, notwithstanding this response, that however willing the Maltese authorities may be to address the issues, they are unable to deal with the risk that the Appellant faces. She submits that he will be particularly vulnerable to failings within the prison system in Malta and that the report does raise evidence of a real risk.

Mr Cadman accepts that there is some evidence of, and indeed a recognition by the Maltese authorities of, difficulties in recruiting suitable personnel because there is a limited pool from which suitable personnel can be drawn. However, he submits that the burden is on a State to organise its prison system in accordance with its Convention obligations and says that there is no material here upon which it could be said that the Appellant’s Article 2 and Article 3 rights would not be met if he was to return to face trial.

He also submits that the there is nothing “vulnerable” about the Appellant. He is, it is suggested, simply someone who may be considered to be generally at risk from non-state agents. This is so because of the nature of the offences he committed, with the victims being aggrieved by his conduct, and the nature of those from the criminal fraternity who he says have been issuing threats against him.

I will not extend this judgment with a full citation of what Richards LJ said inMcLean v. Ireland[2008] EWHC 547 (Admin), but he made the point graphically when he said that where “someone is beaten up and seriously injured by a criminal gang, the member state will not be in breach of article 3 unless it has failed in its positive duty to provide reasonable protection against such criminal acts …”.

Mr Cadman submits that the Appellant has failed to provide any evidence to establish the allegation that Malta is not capable of providing reasonable protection against ill-treatment from non-state agents. That, it seems to me, is a well-founded submission. Certainly, as it seems to me, there is nothing in the CPT report which would operate as evidence of sufficient strength to displace the assumption or presumption that Malta will meet its Convention obligations to the Appellant on his return. In Agius, Sullivan LJ said this of the CPT report:

“In my judgment that later report is not realistically capable of altering the overall conclusion in [Mrs Bahtiyar’s] report. It is perfectly true that the latest report does make a number of criticisms of certain aspects of the CCF, but it is also important to note that the report says in paragraph 102:

“To sum up, significant efforts continued to be made by the Maltese authorities to increase the quality of prisoner accommodation at the CCF. However, much remained to be done in several parts of the establishment.”

In my judgment that does not provide an adequate foundation for the proposition that there is a real risk of treatment contrary to Article 3.”

That comment appears to have been made without sight of, or certainly specific reference to, the response of the Maltese government to the report. That response provides further reassurance that the kind of concern that the Appellant may have if he returns is one that the Maltese authorities recognise and intend to deal with if raised.

In my judgment, even had the District Judge had the CPT report available, he would not have reached any different conclusion from the conclusion that he did reach.

As an alternative submission, Miss Bramwell invited me to adjourn the appeal to permit Mrs Bahtiyar to provide a new report to the court which, apparently, she had expressed a willingness to do, but would be unable to do so for about 4 weeks or so. If I had been told that Mrs Bahtiyar’s view was that there were significant adverse matters to report on the kind of problems that it has been argued that the Appellant would face, I might have been persuaded to grant the adjournment. But no such indication was given and even if it had been, it would have been difficult to say that it overrode conclusions to be drawn from the response of the Maltese authorities to the CPT report and the response to the Appellant’s position in the extradition proceedings before the District Judge to which I referred in paragraph 17 above. In my judgment, no case for an adjournment has been made out.

In those circumstances, this appeal must be dismissed.

I would express my appreciation to Miss Bramwell and Mr Cadman for their succinct and helpful submissions.