Charles v Mugla Chief Public Prosecution Office Republic of Turkey

This is an appeal from the decision of Senior District Judge Riddle to send the Appellant’s case to the Home Secretary with a view to extradition to Turkey. The first hearing before Senior District Judge Riddle was on 8 January 2015. The case was adjourned part heard until 28 May 2015 when the hearing concluded. A reserved judgment was handed down on 2 July 2015.

On 12 December 2006, the Appellant was convicted in his absence of rape of another man. The offence took place in Turkey on 5 August 2004. The Appellant had been arrested shortly after the alleged offence and had remained in custody in Turkey until January 2005. He was at that stage granted bail, on condition that he returned to the United Kingdom pending trial but would return to Turkey for his trial. He returned to the UK but failed to return to Turkey: hence the trial in his absence. The Appellant’s conviction was finalised by a higher appeal court on 13 December 2011. Given the time spent in prison on remand, the Appellant faces an unexpired term of seven years and sixteen days, with conditional release after he has served two years, six months and twenty-three days.

The Secretary of State ordered the Appellant’s extradition on 15 August 2015.

This appeal has a very long procedural history. No fewer than eight extensions of time were granted up until April 2016. Permission to appeal was granted by the Divisional Court (Lloyd Jones LJ and Thirlwall LJ) on 13 May 2016 in relation to two Grounds. Further extensions of time were allowed, principally so that the Appellant could seek further evidence. The case was fixed for hearing before the Divisional Court on 6 December 2016, but the matter was not ready. The Court (Burnett LJ and Nicol J) adjourned the case once more, giving permission to the Appellant to rely on expert opinions of Dr Cornelius Katona (psychiatrist) and Professor Rod Morgan (prison expert). The Appellant already had permission to rely on the expert permission of Dr Halari (psychologist). Finally, the matter came before this Court on 4 April 2017.

The Appellant has permission to appeal on two Grounds, firstly pursuant to Section 87 of the Extradition Act 2003 [“the 2003 Act”] whether the extradition is compatible with Article 3 of the ECHR, in that it is said by the Appellant that his extradition would expose him to a real risk of inhuman and degrading treatment. Secondly, he has leave to appeal pursuant to Section 91 of the 2003 Act, on the Ground that the Appellant’s mental condition is such that it would be oppressive to extradite him to Turkey. In each case, a central issue is the conditions under which he would be held in the Turkish prison system if extradited.

At the conclusion of the hearing, we informed the parties that the appeal has succeeded. I now proceed to give reasons.

Before SDJ Riddle, the sole Ground of Challenge was the Article 3 point. The Judge identified the problem as follows:

“He says there is a real risk of inhuman and degrading treatment in a Turkish prison because he is of mixed race, Christian, foreign, and a homosexual prisoner convicted of raping a Turkish male.”

SDJ Riddle had evidence from two expert witnesses and from the Appellant. Saniye Karakas is a qualified criminal and human rights lawyer in Turkey, now living and working as an academic in England. She gave evidence concerning prison conditions, particularly as they affect lesbian, gay, bisexual, transsexual [“LGBT”] prisoners. SDJ Riddle did not doubt the “commitment and sincerity of Ms Karakas, however there are clear limitations to her expertise”. The Judge identified those limitations and concluded that, overall, he was unable to attach much weight to the opinions of Ms Karakas.

It is fair to interpose that the Appellant submits subsequent events have shown Ms Karakas to be correct in a number of respects.

Professor Morgan is the Professor Emeritus of Criminal Justice in the Department of Law, University of Bristol. He has been instructed in this case jointly by the parties. He has been formerly a Home Office adviser to the five Criminal Justice Inspectorates for England and Wales, is a former Chairman of the Youth Justice Board for England and Wales, and formerly HM Chief Inspector of Probation for England and Wales. He is a long-standing and senior expert on prison conditions internationally and an ad hoc expert advisor on custodial conditions in prison and processes to the Council of Europe Committee for the Prevention of Torture [“CPT”] and to other international bodies. Professor Morgan had visited Turkey before preparing the report which was before SDJ Riddle. In particular, he had visited and assessed conditions in the Maltepe No 2 L type closed prison, Istanbul, the prison which at that stage it was thought would receive the Appellant on his extradition. Professor Morgan did not give oral evidence before SDJ Riddle, but his written evidence was clearly very important in the decision.

SDJ Riddle heard oral evidence from the Appellant himself. This evidence focussed on his treatment in custody between August 2004 and his release in January 2005. The Judge summarised this evidence as follows:

“He told me that because he is gay both prison guards and other prisoners assaulted him physically and emotionally. He was called names and beaten because he was deemed to be unclean and sinful. He was called derogatory terms in Turkish and people would shout “homosexual” at him. He gave an example of an occasion when he was given a toothbrush to clean the floor, and while doing so he was kicked and punched and called “gay, homo, girl”. He was attacked almost every day by guards and privileged prisoners. He was locked outside his cell on four occasions and forced to sleep in a small yard outside the cell. The nature of the allegation against him was known to prison guards and they passed it on to other prisoners. Apart from the daily assaults, food was taken away from him. He was given contaminated food. Cleaning materials caused burns to his hands and knees. He slept in a toilet for three months. He then provided details of a forced conversion to Islam. He was required to read Arabic writing with a transliteration next to it. He was beaten by a guard with a stick if he made a mistake and made to repeat again and again. He received quite significant injuries – two black eyes and bruising to his shoulder, knees and face. A fellow prisoner said that conversion meant that he was no longer a dirty and was officially Muslim. Other people were cheering.

Racist name-calling started on his arrival at the prison. He was kicked and punched to the floor. Prison guards, soldiers and other inmates were all responsible. He heard “monkey noises” and was called “capra goat” and was told that as he was filthy he had to do filthy work.”

The Judge went on to note that the Appellant described contact with the British Consul and how, when he complained to consulate staff of his treatment, he was advised not to complain to the Turkish authorities on the ground that his life would be at risk. The Appellant produced correspondence he had written from prison at the time, consistent with his complaints.

The Judge reached a favourable view of the Appellant as a witness, which he expressed as follows:

“All in all, Ross Charles was a sympathetic and credible witness. He is clearly intelligent and has an air of vulnerability. I believed his accounts that he was beaten in prison and regularly abused by staff and other prisoners. I believed his account of the rather bizarre religious ceremony, apparently a conversion. I believe he was humiliated and hungry and in extremely crowded conditions. His evidence was moving and affecting. It was corroborated by the contemporaneous account he gave in letters to his friend.”

Against that background, SDJ Riddle went on to consider the report of Professor Morgan.

SDJ Riddle accepted that Professor Morgan was a reliable leading expert on prison conditions. He noted the account of Professor Morgan that Turkey has been visited by the CPT on 28 occasions, much more frequently than any of the other 46 State party members of the Council of Europe, a reflection of the “serious concerns that the Committee had had regarding Turkey”. Turkey has twice been the subject of formal statements of sanction from the CPT. In more than 1000 cases, the ECtHR has found against Turkey for breaches of Article 3.

Professor Morgan outlined the changes within the Turkish prison system over the last 20 years or so. There has been a dramatic increase in the prison population and a move away from the traditional Turkish prison accommodation of dormitories with prisoners of mixed age and type, to cellular or small, multi-occupied accommodation. Professor Morgan noted that categories of prisoners are at particular risk in the Turkish prison system, principally from other inmates, but also from staff. In respect of this Appellant:

“He doesn’t speak Turkish, he is Christian not Muslim, he is black, he is avowedly gay and he stands convicted of male rape. That is, he is about as not run of the mill as can be imagined.”

Professor Morgan reported that ill-treatment as described by the Appellant was consistent with the findings from the most recent inspection by the CPT.

Professor Morgan visited Maltepe No 2 prison. The prison was substantially under-occupied. The LGBT prisoners were gathered together in a single unit but were each able to have a room to themselves. They had a reasonable degree of freedom of movement within the unit and could associate with each other. Turkish prison authorities do not provide individual prisoners with materials for basic personal hygiene, a particular problem for LGBT prisoners who have no opportunity to earn money in the prison, since they are sequestrated from the main body of prisoners. The LGBT prisoners could not be employed or participate in most programmes and their regime was “disproportionately impoverished”. There is no way of constructively occupying their time. However, Professor Morgan went on to comment:

“… all the evidence made available to me suggests that LGBT prisoners at Maltepe are treated properly by prison staff and that the prison is safe – that is, that LGBT and prisoners generally are not at risk of serious harm from fellow prisoners.”

Professor Morgan then went on to conclude that conditions in Maltepe No 2, despite the “impoverished regime for LGBT prisoners”, would not be considered in breach of Article 3.

The Court below was in receipt of assurances, given on behalf of the Turkish government, bearing directly on this Appellant. Judge Altintas is a representative in London of the Turkish Justice Minister. He wrote to the Court in May 2015, giving the assurance that the Appellant would serve the entirety of his sentence, before any possible transfer back to the UK, at Maltepe No 2 prison. He went on to say that if an occasion should arise for the Appellant to be moved to another prison, “that other prison will take cognizance of his status as a foreign LGBT prisoner and will have other LGBT prisoners”. SDJ Riddle rejected the suggestion that those assurances were unclear or equivocal. He accepted that the assurance was clear and intended to bind the Turkish authorities. There was no evidence that Turkey had breached similar assurances in the past and SDJ Riddle was satisfied that the assurances could be objectively verified. The Court accepted that the Appellant had been previously ill-treated in a different prison and found the Appellant’s reluctance to accept assurances understandable. However, SDJ Riddle found the assurances reliable and on that basis concluded that there was no reason in relation to ECHR Article 3 preventing the extradition.

SDJ Riddle suggested that the necessary arrangements should be put in place before extradition was put into effect. He also expressed a wish that, if it was to be the case that arrangements would in due course be made for the return of the Appellant to a British prison, such steps should be expedited.

On that basis, extradition was ordered.

On 12 May 2016, the Appellant served an expert report from Dr Halari, the psychologist. This was the basis of the grant of permission to appeal on two grounds (Article 3 and the Appellant’s mental state) given the following day. On 15 September 2016, the Appellant served a report from Dr Katona, dated 27 August. Dr Katona is a well-known psychiatrist with a special interest in the effects of mistreatment and torture.

In December 2016, Professor Morgan was approached unilaterally by the Appellant’s solicitors. It is to be recalled that he had previously been instructed jointly. For reasons which are addressed below, the Appellant’s solicitors had become aware that the LGBT unit in Maltepe No 2 had been broken up and the prisoners moved away. Professor Morgan was thus concerned that the specialised unit at Maltepe No 2 prison might no longer exist. He was also concerned that previous assurances provided by the Turkish authorities might not now be reliable. However, he indicated that he was unable to reach any firm conclusion without reassessing matters at first hand.

In late February 2017, Professor Morgan was instructed by the Crown Prosecution Service on behalf of the Respondent to visit Turkey once more, and to inspect Maltepe L Type No 3 prison, where it was now proposed the Appellant would serve his sentence if extradited. Professor Morgan agreed, and visited the Maltepe No 3 Prison on 14 March 2017. Before departure he was once more instructed by the Appellant and therefore travelled to Turkey with joint instructions. As on his previous visit, Professor Morgan emphasises that he was given full cooperation and wide access by the Turkish authorities. He had a first class interpreter and was able to speak to prisoners on a totally confidential basis. I will address the outcome of his visit shortly. He reported on his visit on 16 March 2017 and in a finalised report of 24 March.

Following the availability of Professor Morgan’s latest report, Professor Katona prepared an addendum psychiatric report on 24 March, addressing the impact of conditions in the Turkish prison on the Appellant’s mental health.

In his “final skeleton argument” of 26 March, Mr Cooper for the Appellant seeks to add a further Ground of Appeal. This Ground is a submission that extradition is barred by Section 81 of the 2003 Act on the basis that the Appellant “might be punished, detained or restricted in his personal liberty by reason of his …. sexual orientation” and would constitute a breach of ECHR Article 14. The skeleton argument avers that although permission was not granted on this Ground, the evidence “now advanced by both parties justifies the Court granting permission and barring extradition on these additional Grounds”.

In the early part of his second substantive report of 24 March, Professor Morgan explains how developments since 2016 will affect the Appellant. He says that what he then described as the “LGBTI unit” (Lesbian, Gay, Bisexual, Transsexual and Inter-sexual unit) which he inspected in 2015 within Maltepe No 2 prison no longer exists, and the prisoners have been dispersed. Hence the assurance that the Appellant would serve his term in those conditions no longer applies. The unit in Maltepe No 3 prison is of a different nature. Maltepe No 3 is now intended to hold Turkey’s foreign national prisoners. Alongside Maltepe No 2 and other prisons it forms part of a cluster of prisons within a secure perimeter wall on the edge of Istanbul. The internal configuration of the prison is very similar to Maltepe No 2.

The Turkish prison population has grown very considerably since the failed coup of July 2016. This LGBTI unit is small. The corresponding unit in Maltepe No 2 had 20-25 prisoners at any one time. The Maltepe No 3 unit has six prisoners. Five of the current prisoners are transgender aspirants or achievers (male to female). The sixth prisoner is a gay male. The reason for the segregation is security. Such prisoners as these would not be safe if placed with the “straight” prison population.

Professor Morgan was concerned about the quality of the undertaking given by the Respondent. The undertaking given in 2015 was a guaranteed promise that the Appellant would serve in the unit within Maltepe No 2. Professor Morgan was concerned that “the undertaking now appeared to be conditional”. His informants Judge Sik, and the public prosecutor, both of whom spoke directly to him, were adamant that the undertaking was not conditional. This Appellant was a very unusual case given his personal characteristics and he would be certain to go to the LGBTI unit.

The unit is a ward on the second floor of the building. Professor Morgan describes the accommodation as follows:

“…a day room and, along the entrance corridor within the ward, three cells each with two bunk beds, thereby offering accommodation for six prisoners. Each cell has an entirely closed off hole-in-the-floor lavatory on one side of the ablutions cubicle, a wash-basin in the middle and a shower area on the other side. The entrance to the ablutions cubicle has a curtain. The ablutions cubicle provides hot and cold water, though I was told by the prisoners that the plumbing of the prison was very irregular and on many days there was no hot water. The supply of hot water was allegedly dependant on the use of hot water in other parts of the prison.”

Each cell is approximately 2.5m square, very sparsely furnished with bunk beds and a small table and stool. A metre square window opens at the end. The day room measures 7m x 5m. Professor Morgan’s description continues:

“[The day room] is Spartan in the extreme, the only furniture comprising a small square plastic table in the middle of the room and two plastic chairs. Along one wall is a sink for washing, eating utensils and clothes. A clothes line had been strung up across the room for drying clothes. There was no evidence of other provisions (games, books, exercise equipment, etc) in the day room though each cell contained a television and all the prisoners appeared to have a fairly large array of personal possessions, all of which they kept in the cells.”

At the time of Professor Morgan’s visit the six bed ward accommodated only three prisoners. All three were Brazilian nationals; one on remand and two sentenced. Two of these prisoners were dressed as women. The three other occupants of the LGBTI unit were accommodated in single cells on an adjacent landing, because of conflict within the unit. The three excluded prisoners were two Brazilians and one Azerbaijani. They were not allowed contact with the other unit occupants. Professor Morgan was clear that “the prisoners, both those within and those without the ward, were agreed that they could not tolerate being housed together”. He noted that all of the accounts of these prisoners were consistent. The prisoners were agreed that they could not be accommodated with each other and that there had been fighting within the unit. They all felt physically safe within the unit as matters were currently organised. They felt generally treated well by the uniformed prison staff, however there was a good deal of staff turnover and a minority of staff were disrespectful or abusive of them.

Staff were not normally present within the unit, coming in when food was delivered, to supervise movements, or when specifically called. The prisoners were free to follow their own devices during the day. They were free to go to the exercise yard when they chose if staff were available to supervise them. The segregated prisoners, that is to say those in the single cells, were unable to communicate with each other. If they took exercise they took it alone. The exercise yard is a concrete area 15m x 4m, without any exercise equipment, seat or covering of any kind. Other than any exercise period they spent the entire day in their locked cells.

The prisoners in the unit had no possibility to engage in any work or activities, including education, either within or without the unit. There were no programmes for them to attend and no materials were provided to them. There was no possibility of learning Turkish, because no classes were provided and there was no contact with Turkish prisoners. None of the prisoners had any recall of any outside monitoring or any outside observation or visit, save for one prisoner who was in Maltepe No 2 at the time of Professor Morgan’s previous visit. Prisoners were allowed to telephone home for ten minutes each week by means of a phone card, for which the prisoner had to pay. Since these prisoners were not allowed to work, they had no opportunity to generate any earnings.

One of the prisoners explained the dilemma he had faced in moving to the LGBTI unit. This prisoner was the gay male, who dressed as a man. Whilst in the male dormitory for 4½ years he had suffered several assaults and frequent abuse at the hands of fellow prisoners. Reluctantly he had sought entry to the LBGTI unit, feeling he had no option. Within the unit he felt safe, but there was nothing to do and he had access to no programmes, therefore losing access to education, employment, regular sporting and exercise opportunities. Three of the six prisoners had previously been in Maltepe No 2 and they all agreed that their situation there had been much superior. It was a larger unit of 20-25 prisoners, with a greater range of contacts. It had accommodated Turks as well as foreign nationals and thus it was possible to seek to learn Turkish. There had been opportunity for exercise in a better physical environment. The uniformed staff at Maltepe No 2 had been dedicated to the LBGT unit. The prisoners had got to know them and trust them, and the staff had been respectful of them.

Professor Morgan was very critical of the healthcare in Maltepe No 3, which he describes as “grossly inadequate”, with one full-time doctor and one nurse, two unqualified nurses, three psychologists and one social worker for a prisoner population of over 1800. There is however a prison hospital within the same broad complex, with a very large healthcare team. Professor Morgan discussed matters with one of the psychologists on the staff, asking how the prison would deal with an inmate suffering from post traumatic stress disorder or serious depression. The response was that they would seek to make sure that the prisoner was not isolated and was with other prisoners, they would provide counselling and if necessary organise transfer to the prison hospital. The prison had experienced several suicide attempts in the last year, but no successful suicide.

Professor Morgan considered the question of oversight of the prison. He began with the fact that in 2011 Turkey ratified the Optional Protocol to the United Nations Convention against Torture. This requires, inter alia, that Turkey should nominate a body to act as its National Preventive Mechanism, in other words an independent body capable of inspecting all custodial sites in Turkey. As Professor Morgan had observed in his 2015 report, none of the officials spoken to on that occasion were aware of this obligation, or of the existence of any Turkish NPM. No such inspection of the Maltepe penal complex had taken place. On his later visit Professor Morgan raised the same questions and received what he described as “blank incomprehension”. Neither Judge Sik nor the public prosecutor for Maltepe knew anything of such arrangements.

In his conclusions, Professor Morgan emphasised that the current situation facing the Appellant if extradited is markedly different from that outlined in his previous report. He reiterated the key features of the Maltepe No 3 unit, describing it as “even more impoverished and discriminatory than that which existed in the Maltepe No 2 LGBTI unit”. Were the Appellant to be extradited there would appear to be a question as to whether he would be “found acceptable to whichever prisoners were living in the LGBTI ward” and if he were to be housed there “he would almost certainly have to share a cell and sleep in a bunk bed in what is a very small, congested living space area of approximately 6.25m²”. His conditions would be less than the CPT considers ideal for one prisoner and markedly less than the recommended space for a shared cell. Professor Morgan continues:

“This is a space allocation too physically restrictive for prisoners subject to such social restrictions.”

In the view of Professor Morgan these conditions may be a substantial part of the explanation for the tensions within the unit. It is worth quoting the concluding paragraphs of Professor Morgan’s opinion:

“5.8

I am not certain that the CPT, were the Committee to inspect the Maltepe No 3 Unit, would describe the restricted space and impoverished regime in the main ward as inhuman or degrading. I have no doubt that the Committee would be sharply critical of the arrangements but I can think of no exact precedent with which to compare the Maltepe Unit and the Committee’s findings. Were the CPT to employ the term inhuman or degrading it would almost certainly be in relation to the three prisoners currently held in isolation whose regime and lack of contacts is not dissimilar to that of some life or long-term prisoners held in other jurisdictions which the CPT has described as inhuman and degrading.

5.9

I come to the same conclusion as that above regarding the likely response of the ECtHR were the Court asked to adjudicate on the arrangements at Maltepe No 3.

5.10

I am not a medical expert and therefore not in a position to judge how well Ross Charles would cope, were he extradited, with conditions in the Maltepe No 3 Unit, either that in the ward or in the isolation cells. However, my lay conclusion, in the light of Professor Katona’s past and most recent assessment of Ross Charles is that were he extradited to Turkey and held in the Maltepe No 3 Unit, his existing, adverse mental health condition would be greatly exacerbated. He would be both physically and socially isolated. He would be the only British prisoner and English speaker in the Unit. He would not receive tuition in Turkish. And he would be very unlikely to receive the support he would need within the Unit. What care and support he would receive if transferred to the Maltepe Prison Hospital or an outside, closed, state psychiatric hospital I am not in a position to say. However, prisoner D’s distressed psychological condition and the apparent lack of support provided for her is relevant here. There is no psychiatrically qualified mental health team within Maltepe No 3 prison and prisoner D is being held in isolation in the prison: she has not been transferred to either the Maltepe Prison Hospital or an outside psychiatric hospital despite her distressed state.

5.11

Finally, once allocated to the Maltepe NO 3 LGTBI Unit Ross Charles would effectively be physically and reputationally trapped. It was made very clear to me that once known as an LGBTI Unit occupant he could not subsequently be transferred to “straight” Maltepe No 3 Prison accommodation. It would not be judged by the authorities to be compatible with security. Prisoner C’s experience is relevant here: he is now trapped within the Unit having previously lived in a standard male prisoner dormitory in the same prison.”

The Appellant was first seen by Dr Halari on 8 May 2016. He had completed a range of questionnaires on a previous occasion, the scores indicating moderate symptoms of depression and severe anxiety, as well as PTSD. In discussion with Dr Halari, the Appellant outlined his account of the ill-treatment he had suffered on remand in Turkey and indicated in strong terms his fear of the Turkish prison system. He had nightmares and flashbacks and a high level of anxiety, but when he saw Dr Halari he was not on any psychotropic medication. He claimed that his GP had told him that he should try to do without medication “so that he can keep a clear mind, given that he is going through current court proceedings”. However, he immediately told Dr Halari that he found it very difficult to concentrate or keep a clear mind. Dr Halari assessed the Appellant as being straightforward and honest in his account of his history and his feelings. There was no evidence that the Appellant had a personality disorder. Dr Halari confirmed that he was suffering from PTSD, anxiety and depression in the moderate to severe range. Dr Halari’s opinion was that extradition to Turkey would be likely to exacerbate the symptoms of depression. The Appellant was “at high risk of suicide” a risk which might be increased by extradition.

Professor Katona saw the Appellant on 22 August 2016. He had available to him a range of the relevant documents, including the report of Dr Halari. He found the Appellant to be “very dejected and anxious” with marked distress when describing his periods of imprisonment in Turkey. Using a range of questionnaires and his own clinical observation, Professor Katona concluded that the Appellant had PTSD, which he described as “complex PTSD”. He also diagnosed a Major Depressive Episode with significant and disabling anxiety symptoms. As to the latter, Professor Katona considers them to be secondary to the PTSD and major depression.

Professor Katona considers that the Appellant should be given trauma-focussed CBT and may require more individually tailored psychotherapy. Extradition would have a considerable impact, resulting in “marked worsening of his already severe PTSD and depressive symptoms and associated anxiety”. Professor Katona thought that forced return to Turkey would be associated with a very high risk of suicide and indeed considered the Appellant would be at high risk of suicide in the UK once he had lost hope of avoiding extradition.

Professor Katona was asked to give a further report in March 2017, following sight of the updated report from Professor Morgan. His conclusions are as follows:

“a.

Professor Morgan’s report provides further justification for the concerns expressed in my original report on Mr Charles and in my subsequent addendum report.

b.

I share Prof Morgan’s concern that being ‘physically and socially isolated’ (as Prof Morgan concludes Mr Charles would be), is likely to have a significant adverse effect on his mental health. The lack of ‘facilities or means of occupation’ and in particular of ‘access to all occupational, educational and recreational activities, other than half an hour each week in an outdoor sports arena’ would be likely to worsen Mr Charles’ depressive symptoms considerably.

c.

Prolonged periods of solitary confinement would be likely to aggravate Mr Charles’s PTSD symptoms.

d.

I also share Prof Morgan’s concern at the apparent lack of a ‘psychiatrically qualified mental health team’ able to meet Mr Charles’s complex mental health needs. This is particularly crucial in the context of the mental deterioration (and associated escalation in suicide risk) that he is likely to experience.”

Mr Cooper for the Appellant sought to put matters very widely. In one or two respects, it appears to me he sought to put his case far higher than the evidence would bear. Early in his oral submissions, it appeared that it was his submission that SDJ Riddle had reached a finding that the Appellant had been raped in prison by the Turkish authorities. When pressed that there was no such explicit finding, it became clear that Mr Cooper was referring to the medical examination conducted by the prison doctor, including anal examination, for which the Appellant himself had said he could find no good reason. Given that SDJ Riddle generally accepted the Appellant’s evidence, and specifically accepted the matter set out in paragraph 11 above, Mr Cooper submitted this constituted a finding of rape. There was no medical evidence to support this proposition. This was, in my view, a significant over-statement of the case.

There is no issue as to the psychiatric and psychological evidence advanced by the Appellant. Ms Townshend agreed, therefore, that the mental health of the Appellant as there described, with the vulnerabilities and risks of self harm and suicide as described, form the context for considering whether the Article 3 threshold is passed, and whether extradition would be oppressive so as to satisfy the test under Section 91. Although the characterisation of the Appellant’s past mistreatment may have been overstated in argument, there is no doubt it was significant. The historic mistreatment might satisfy the test for torture, and certainly satisfies the test of inhuman and degrading treatment.

Ms Townshend accepts that a return to those conditions, or to circumstances where there is a real risk such mistreatment might be repeated, would represent a bar to extradition. Thus the case for extradition depends on the reliability of the assurances of the Requesting State that the Appellant will be housed in Maltepe No 3 in the LGBTI Unit, and then on the conditions he would face there. I turn first to the assurances.

As Ms Townshend correctly points out, Turkey is a member of the Council of Europe and starts with the benefit of a presumption that the Turkish authorities will protect prisoners from breaches of Article 3. Mr Cooper points to the Open Source Material bearing on Turkish prisons, to material dealing with the changes in Turkey following the recent failed coup and its significant effects on the Turkish prison system, to the evidence of Ms Karakas and, in general terms, to cases concerning Turkey before the ECtHR. He cites decisions of other national Courts concerning Turkish prison conditions and he relies on decisions of the English Courts, in particular Konuksever v Turkey [2012] EWHC 2166 (Admin), Turkey v Akgul (2014), Turkey v Aksoy (2016) and Turkey v Talay (2016), the latter three cases being decisions in the Westminster Magistrates’ Court. In my view, these cases all turn on their facts. The last three do not, of course, form any kind of authority for this Court. I am not convinced it is helpful to enter into a process of building general “character evidence” in respect of a given Requesting State from previous decisions based on different facts.

In this case, the Appellant has suffered significant ill-treatment previously in a Turkish prison. He is particularly vulnerable and in need of protection, for reasons already made clear. The case was and is advanced by the Respondent on the basis of specific assurances. In such a case, the Court will be vigilant to see that the assurances are reliable and meet the established principles laid down in Othman v UK (2012) UK EHRR 1.

The previous assurances were critical to the decision of SDJ Riddle, as the passages quoted above make clear. Without his confident reliance on those assurances, it is plain his decision would have gone the other way. I have set out above the dates of that hearing and the judgment. The hearing was concluded on 28 May 2015 and the judgment handed down on 2 July. Yet by the time of that judgment, the Turkish authorities had begun to break up the LGBT Unit in Maltepe No 2. This was not volunteered by the Turkish authorities. The sequence is clear from the material before us. Prisoner correspondence alerted Ms Karakas to this change, and the Appellant’s solicitors were made aware. It was this concern that led the solicitors to seek further help from Professor Morgan in around December 2016.

Because of communications from the Appellant’s lawyers, the CPS, representing Turkey, requested further information from the Turkish judicial authority on 5 December 2016. There had been no communication from the Respondent altering or amending the assurance that the Appellant would be housed in Maltepe No 2. Naturally enough, the request for information, set out in a sequence of questions from the CPS, was directed to reception into Maltepe No 2 and conditions in that prison. The further information takes the form of quite extensive and detailed answers.

For much of the document, questions in respect of Maltepe no 2 are simply answered in respect of Maltepe No 3. On the penultimate page of the document, in answer to a direct question on the point, the Turkish response confirms that “Lesbian Gay, Bisexual, Trans and Inter-sexual prisoners in Prison No 2 were transferred to other penal institutions”. This had not been volunteered. Had the Appellant failed to challenge the decision of the Court below, he would have been returned to Turkey to serve his sentence other than in the institution which had been closely examined in the hearing, and in respect of which clear assurances had been given. That is not to say that the Turkish authorities would have ignored the risks to this Appellant of being placed once more in the general prison population. In my view they would have been likely to place him in an LGBTI unit, probably Maltepe No 3 as is now proposed. But the matter does raise genuine concern.

There is another aspect of concern about the current assurances. Professor Morgan put the matter as follows:

“The Undertaking that Ross Charles will be housed in the Maltepe No 3 LGBTI Unit

4.10

I understand that the Turkish authorities have given a new undertaking that, if extradited, Ross Charles will be accommodated in the Maltepe No 3 LGBTI Unit. Was there, I asked Judge SIK and the Public Prosecutor, a clear undertaking to that effect?

4.11

A somewhat “angels on the head of a pin” type discussion followed in which the judge, a psychologist and the Public Prosecutor for Maltepe participated. It was explained to me that following his receipt in Turkey, Ross Charles would be taken to Maltepe No 3 Prison and would there be assessed by the Maltepe No 3 medical and psychology team, it would be a psycho-social assessment. The assessment team would determine whether he was gay and, if gay, whether he wished to be known as gay and allocated accordingly. It would also be assessed whether he would be comfortable living in the LGBTI Unit and, most importantly, whether his presence would be acceptable to the other prisoners living in the LGBTI Unit.

4.12

I suggested that this position represented a change from the undertaking given in 2015, when Ross Charles’ allocation to the Maltepe No 2 LGBTI Unit was apparently guaranteed. The undertaking now appeared to be conditional. Judge SIK and the Public Prosecutor were adamant that this was not so. The undertaking was not “conditional”. Ross Charles was a very unusual case (given his personal characteristics). What they had been describing was “normal procedure”. Ross Charles would be certain to go to the LGBTI Unit. “Security”, the Public Prosecutor emphasised, was the Turkish authorities’ first priority. An openly “gay” prisoner could not be allocated within the “straight” population: it would be prejudicial to security.”

A number of concerns arise from this. The matter which featured “most importantly” in the proposed assessment would be whether the Appellant’s presence would be acceptable to the existing prisoners. Given the extremely strained and volatile relations already existing amongst this tiny group of prisoners, in very close proximity with each other and with no continuous staff presence, this appears to me to introduce a real degree of uncertainty. The arrival of the Appellant, as a matter of logistics, will mean either that he has to share a cell with an existing prisoner, or that one of those already in a single cell would have to make way for him. The latter appears not to be feasible, for the reasons already spelled out. It is a little difficult to see how Turkey can give a definite assurance of housing the Appellant in this unit.

It follows that when considering the principles laid down in Othman paragraph 189, I find myself in some doubt as to whether the current assurances can be relied upon. The discrete factors laid down by the European Court of Human Rights in that paragraph are the means by which the Court will assess the reliability of assurances. Taking all the matters I have touched on above into consideration, it seems to me that there may be a real risk that the Appellant would not be held in the LGBTI unit of Maltepe No 3 prison for the duration of his time in custody in Turkey. If the existing group of prisoners objected to his presence, the Appellant might not necessarily be maintained in this unit, at least other than under the conditions of effective solitary confinement currently undergone by three of the six prisoners in the unit.

If a placement in this unit broke down altogether, I accept that the Turkish authorities would not place the Appellant back with the general prison population. The Court can be confident from all that has been said that the Turkish authorities well understand the risks of such a placement and would place the Appellant in an LGBTI unit somewhere else in the prison estate. Were the Appellant to have been a man in good mental health and without the specific vulnerabilities of this Appellant, such an assurance would probably have been sufficient. However, those are not the facts of this case.

Both sides have made reasonably extensive submissions as to how the Court should treat the conditions as outlined by Professor Morgan. Unless and until one of the three prisoners currently living singly in one of the three two-person cells, communicating with the day room and the rest of the unit, leaves the unit, this Appellant could only be accommodated as a second prisoner in a two-person cell. I have already summarised the volatile history and conditions in the unit. He would speak no common language with any of the other prisoners. He would be likely to share a two-person cell with a transgender prisoner. There is no basis for saying he would be of any real risk of direct physical attack, and in my judgment the question of torture does not arise. I note the conclusions of Professor Morgan that the conditions within the unit, at least for those in the single cells, would probably be thought by the CPT to satisfy the definition of inhuman and degrading circumstances. I bear in mind Ms Townshend’s submission that Professor Morgan was not himself reaching that conclusion. However, in my view this simply reflects Professor Morgan’s care not to exceed the proper bounds of comment by an expert witness.

The Turkish authorities have indicated throughout that solitary confinement is used by them only for disciplinary purposes. That clearly does not in fact apply to this unit. Those who are in the three solitary cells are not being disciplined. They are placed in those conditions as a way of managing the conflicts which have arisen between the different prisoners in this already very small unit.

These conflicts were managed without resort to effective solitary confinement when the prisoners were in the larger LGBT unit in Maltepe No 2, mixing with gay and transgender Turkish prisoners. Were this Appellant to be headed for the conditions as outlined to SDJ Riddle, it seems to me the Appellant would fail to establish a real risk of inhuman and degrading treatment. As matters now stand, it seems to me that there is such a risk. At best he will be in a two-person cell in a unit with others who do not speak any common language with him, who do not have staff presence more than from time to time and in the “impoverished” conditions described. It might be doubtful even then that such circumstances would constitute “inhuman and degrading treatment”. However, it seems to me there is a real risk if the Appellant is placed in this unit that he may end up, for a period of months at least, effectively in solitary confinement. Under those conditions, it seems to me that his treatment would clearly cross the threshold of inhuman and degrading treatment.

I therefore find that the Appellant’s extradition is not compatible with ECHR Article 3 and thus Section 87 of the Extradition Act 2003.

Given my finding on Ground Two, consideration of the other grounds is academic. However, it may be helpful briefly to address this further Ground. The Appellant’s acknowledged significant mental health problems do require an effective system of healthcare. I have carefully considered the evidence of Professor Morgan as to the inadequate provision of medical and other healthcare within Maltepe No 3. The ratios are poor. No doubt those staff are very stretched. The position of prisoner D as described by Professor Morgan is very troubling. However, within the same prison complex there is, on unchallenged evidence, a fully equipped prison hospital with significant additional staffing and physical facilities if needed. Were the conditions under which the Appellant would be living in Maltepe No 3 acceptable, I would not find that the level of mental health care provision meant that the incarceration of the Appellant was oppressive.

Mr Cooper for the Appellant emphasises the high risk of suicide identified by the expert evidence. Once again, viewed in isolation from the conditions under which the Appellant would live in Maltepe No 3, the overall level of mental health provision in this complex of prisons would, I would hold, be sufficient to permit extradition. The real point in this case is that the Appellant may have to live under conditions which are inherently inhuman and degrading and would be so for any prisoner, but which in his case carry a very real risk of severe deterioration in his mental health and a real risk of suicide without effective intervention by prison staff or prison health staff. Those are the practicalities. Therefore I conclude that the evidence which is sufficient to establish Ground 2 (ECHR Article 3), would itself, because of the impact on his mental health, be sufficient to make the Appellant’s extradition oppressive pursuant to Section 91 of the 2003 Act.

The Appellant seeks leave to add a Ground under Section 81(b) on the basis that he “might be … punished, detained or restricted in his personal liberty by reason of his … sexual orientation”.

I would not give leave to add this Ground. The Appellant’s detention and any restrictions in his personal liberty do not arise causally from his sexual orientation but from the need to protect him. In my view, this Ground is not arguable. However, for reasons already made clear, the point is academic.

For the reasons given, I would allow this appeal.

I agree.

At paragraph 44 above, Irwin LJ raises the question whether the treatment the Appellant suffered when detained in Turkey in 2004-5 amounted to torture. That treatment, which is described in paragraph 11 of the judgment, was undoubtedly ill-treatment of a nature which brought it within art 3 ECHR. But in my judgment, it did not constitute torture.

“Torture” is defined by the Rome Statute of the International Criminal Court as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused…”. The same definition is adopted in schedule 8 to the The International Criminal Court Act 2001. The casual, but appalling, treatment which the Appellant says was inflicted on him in 2004-5 does not meet that test.

In my view, there is a real risk of devaluing the expression “torture” by using it too readily and in respect for treatment falling short of that definition. The particular opprobrium attached to the use of that term should be reserved for cases which meet that definition.