Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE HOLROYDE
MRS JUSTICE McGOWAN
Between:
NUNO MIGUEL DUARTE | Appellant |
- and - | |
THE COMARCA DE LISBOA (A PORTUGUESE JUDICIAL AUTHORITY) | Respondent |
Robin Tam QC and Myles Grandison (instructed by Lansbury Worthington Solicitors)
for the Appellant
Mark Summers QC and Florence Iveson (instructed by the Crown Prosecution Service)
for the Respondent
Hearing dates: 11th October 2018
JUDGMENT
Lord Justice Holroyde:
This is an appeal against the decision of District Judge (Magistrates’ Courts) McPhee (“the DJ”) on 7th September 2017 ordering that the appellant Nuno Duarte be extradited to his native Portugal to serve a sentence of 6 months’ imprisonment.
The proceedings in Portugal:
The offence in respect of which extradition was sought was committed in Lisbon on 30th March 2010, when the appellant drove a car without a driving licence. Under the relevant provisions of Portuguese criminal law, he committed an offence which carries a maximum of 12 months’ imprisonment. The appellant, then aged 38, had committed similar offences on four previous occasions between about 2005 and 2009. In February 2007 he was sentenced to 12 months’ imprisonment, suspended. In October 2007 he was fined. In November 2007 he was again fined. In October 2009 he was fined, with a sentence of 133 days imprisonment in default of payment. He had also been convicted in Portugal, between 1996 and 2008, of 14 dissimilar offences and had received several suspended sentences of imprisonment.
In relation to the offence committed on 30th March 2010, the European Arrest Warrant (“EAW”) and further information provided by the Portuguese judicial authority show that the course of proceedings in Portugal was as follows. The appellant was questioned by the police in Portugal on 8th June 2011. He had to fill in a statement of identity and residence and was under an obligation not to change his place of residence, or to be absent from it for more than 5 days, without reporting the change to the police. Notice of prosecution was served upon him at his nominated address on 15th June 2011 and 28th June 2012. The appellant did not attend his trial. He came to this country in July 2012, without reporting his change of address. His partner and their two children followed him in October 2012, and the family have lived in England since that time. The children are now aged 16 and 9. Meanwhile, the prosecution in Portugal proceeded in his absence. His interests were represented by a lawyer. On 24th January 2013 he was convicted and sentenced in his absence to 6 months’ imprisonment. Inquiries into his whereabouts resulted in the Portuguese authorities discovering that he was in this country. On 27th May 2015 notice of his conviction was served upon him personally in this country, by way of mutual legal assistance. He did not initiate any appeal. The judgment became final on 29th June 2015. A subsequent attempt by the appellant, in September 2015, to appeal against the judgment was dismissed on the ground that it was out of time.
The appellant’s return to Portugal is accordingly sought so that he may serve the 6 months’ imprisonment imposed upon him following his conviction.
The extradition proceedings:
The Portuguese judicial authority issued the EAW on 27th January 2016. It was certified in this country by the National Crime Agency on 21st February 2016 and served on the appellant on 27th April 2017.
In the extradition proceedings, issues were raised on behalf of the appellant in relation to potential breaches of his rights under articles 3 and 8 of the European Convention on Human Rights (hereafter, “article 3” and “article 8”). As to article 3, issues were raised as to the conditions in which the appellant would serve his sentence if extradited to Portugal. In that regard, the DJ wrote to the Portuguese judicial authority on 5th July 2017. It is necessary to set out in full the terms of his letter, and the terms of the reply.
The DJ in his letter requested the following supplementary information:
“1. If surrendered to Poland [sic] has a prison been identified or can a prison now be identified where save for any short period of time and to a minor extent be guaranteed at least 3msq of personal space.
2 If it is to be Lisbon Central Prison will this be for assessment and allocation only, and will this be limited to a guaranteed period of 21 days with a likely timescale of 8 to 15 days? If not, what is the likely timescale for assessment?
3 Subject to any such assessment is there a real possibility that the person surrendered would have to serve the whole of his sentence in Lisbon Central Prison?
4. Under Portuguese law what are the circumstances for early release by way of remission of the sentence?
5 Can you provide detail of the current occupancy rate in Lisbon Central Prison?
6 Can you provide detail of the current occupancy rate in any other prison to which the surrendered person is likely to be allocated to serve the sentence?
7 Please provide an assurance of the minimum square metres of personal space Mr Duarte will be afforded within his cell, excluding toilets.
8 Please confirm the arrangements for Mr Duarte to use toilets in all facilities in which he may be held. Please confirm whether these are in cell facilities and if so whether they are partitioned or separated from other prisoners or what measures are taken to guarantee his privacy and dignity.
9 What period of time per day are prisoners allowed out of their cells?
10 What provision will be made for Mr Duarte to engage in out of cell activities?
11 Will Mr Duarte be housed in a cell with direct access to daylight and a possibility for natural ventilation?”
In response to those enquiries, an official of the Portuguese Directorate-General for Prison Services and Reintegration (“DGRSP”) wrote on 17th August 2017 in the following terms:
“- If the citizen Nuno Miguel Duarte is extradited to Portugal, he will be placed in Lisbon’s Prison Facility, whose individual cells have a housing area greater than 7m2.
- If the defendant Nuno Miguel Duarte is handed over to the Portuguese authorities, he will remain in Lisbon’s prison facility for the time strictly necessary, but never exceeding 21 days, in order to carry out the initial assessment for the allocation to another prison facility, according to the criteria laid down in section 20 of Act Number 115/2009 of 12 October.
- In the absence of a legal definition as to cubic content of the housing spaces, national and international recommendations have been followed, using as criteria the 7m2 for individual lodging, and 4m2, by inmate for collective lodging. It also takes into account, in respect of the dignity of the inmate, the habitability conditions, in particular with regard to hygiene, natural light, ventilation and furniture.”
In his judgment of 7th September 2017 the DJ addressed the article 3 and article 8 issues. As to the former, he noted the submission made on behalf of the appellant that the response of 17th August 2017 failed to answer several of the DJ’s enquiries. He referred to a report dated 26th November 2013 by the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in relation to conditions in Lisbon Central Prison in May 2013. He noted that the report indicated that prison overcrowding was a major issue; in some wings, walls were damp with crumbling plaster; there were indications of rat infestation; and the toilets in multi-occupancy cells were not partitioned. He further noted that in a response to that report the Portuguese government had accepted the criticism of the physical conditions in some wings, and had said that efforts were being made to deal with the problem of overcrowding and to improve condition in Lisbon Central Prison. The DJ took the view that he could not rely on such old information in a fast-changing world. The deficiencies seen in 2013 would plainly have failed the test laid down by the Grand Chamber in Mursic v Croatia. He could not however judge whether those deficiencies were still present: the government had promised action in 2013, and some 4 years later no more up-to-date information had been provided to him. In those circumstances he did not find any real risk of a breach of the appellant’s article 3 rights if he were extradited to Portugal.
It is not necessary to say more about the DJ’s judgment on the article 3 issue, as it is common ground between the parties that the judgment has to a substantial degree been overtaken by subsequent events.
As to article 8, the DJ referred to the familiar decisions in Norris v Government of the United States [2010] 2 AC 487, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551. He accepted that the appellant has an established family life in England and that the article 8 rights of not only the appellant but also his partner and their children were engaged. He also accepted that the appellant’s personal input into the businesses which he runs is important, and that the businesses may well suffer if the appellant is extradited. He noted however that the appellant’s partner would care for their children during the short period of time when the appellant would be absent. He noted three factors against extradition: the new life which the appellant has made in this country; the effect on his businesses; and the effect on his family life. He noted four factors in favour of extradition: the importance of the UK maintaining treaty obligations; the need for the UK to avoid being a safe haven for those accused of crime in other countries; the strong public interest in extradition; and the respect to be afforded to Portugal’s judicial system. He concluded that the factors in favour of extradition outweighed the factors against, and that extradition would not be disproportionate.
The appeal:
Notice of appeal was issued on 12th September 2017. The appeal was subsequently adjourned to await the outcome of the two Mohammed cases to which I refer below, and the grounds of appeal were later amended in the light of the decision in the second of those cases.
Two grounds of appeal are now advanced:
that, pursuant to section 27(3) of the Extradition Act 2003 (“the Act”), the DJ ought to have decided differently the question of whether extradition would be compatible with article 3 of the ECHR. Had he done so, he would have been required to order the appellant’s discharge.
that, pursuant to section 27(3) of the Act, the DJ ought to have decided differently the question of whether extradition would be compatible with the appellant’s and his family’s rights under article 8 of the ECHR. Had he done so, he would have been required to order the appellant’s discharge.
On 23rd May 2018, Sir Wyn Williams, sitting as a High Court Judge, granted permission to appeal on the second of those grounds, the article 8 issue. He did not grant permission to appeal on the article 3 issue, indicating in his written reasons that the Declaration of Commitment dated 6th April 2018 (to which I refer at [28] below) “constitutes a sufficient assurance that the applicant will not serve his sentence in conditions which would give rise to a real risk of treatment contrary to article 3 ECHR”. At a subsequent oral renewal hearing, William Davis J granted permission to appeal on the article 3 ground also.
The legal framework:
Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The relevant legal principles are not in dispute, and for present purposes can be summarised briefly.
Ill-treatment must attain a minimum level of severity in order to offend article 3. Ill-treatment which does attain that level of severity usually involves actual bodily harm or intense physical or mental suffering. However, even in the absence of such harm, degrading treatment may fall within the article 3 prohibition: see Mursic v Croatia (2017) 65 EHRR 1 at [97-98].
This case concerns the application of article 3 in the context of complaints as to the prison conditions in a requesting state. It is well established that if there are substantial grounds for believing that there is a real risk that, if extradited, a person will be subjected to torture, inhuman or degrading treatment in breach of article 3, then his extradition must be refused and an order made for his discharge under section 21 of the Extradition Act 2003. Where extradition is requested by the judicial authority of a state which is a member of both the Council of Europe and the European Union, there is a strong, but rebuttable, presumption that that state will comply with its article 3 obligations. If cogent evidence is adduced that there is a real risk that it will not (such evidence ordinarily being in the context of “something approaching an international consensus to that effect”: cf Krolik v Poland [2013] 1 WLR 490) extradition must be refused unless the requesting judicial authority can give an assurance which is sufficient to dispel the real risk: see, eg, Marku v Nafplion Court of Appeal, Greece [2016] EWHC 1801 (Admin) and Elashmawy v Italy [2015] EWHC 28 (Admin).
It is to be assumed that an assurance amounting to a solemn diplomatic undertaking has been given in good faith and will be honoured: see Jane v Prosecutor General’s office, Lithuania [2018] EWHC 1122 (Admin). The criteria by which the sufficiency of an assurance will be assessed were laid down by the European Court of Human Rights in Othman v UK (2012) 55 EHRR 1 at [189]:
“… the Court will assess first, the quality of assurances given and, second, whether in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard inter alia to the following factors:
(i) whether the terms of the assurances have been disclosed to the Court …;
(ii) whether the assurances are specific or are general and vague …;
(iii) who has given the assurances and whether that person can bind the receiving State;
(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;
(v) whether the assurances concern treatment which is legal or illegal in the receiving State; …
(vi) whether they have been given by a contracting State; …
(vii) the length and strength of bilateral relations between the sending and receiving State, including the receiving State’s record in abiding by similar assurances; …
(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; …
(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; …
(x) whether the applicant has previously been ill-treated in the receiving State; and …
(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State… .”
In the context of overcrowding, the ECtHR in Mursic confirmed that for the purposes of a finding under article 3 there is a minimum requirement of 3m2 of floor space per detainee in multi-occupancy accommodation: see [110]. The in-cell sanitary facility should not be counted in the overall surface area of the cell, but space occupied by furniture should be included in the calculation of the available surface area: see [114]. When the personal space available to a prisoner in multi-occupancy accommodation is less than 3m2, there is a strong presumption of a violation of article 3, which may be rebutted by the requesting government demonstrating factors capable of compensating for the scarce allocation of space: [124-126].
In Criminal proceedings Aranyosi and Caldararu [2016] QB 921 (in particular at paragraphs 83-96 and 104) the CJEU held, with reference to article 4 of the Charter of Fundamental Rights of the European Union (which, like article 3 ECHR, prohibits torture or inhuman or degrading treatment or punishment) -
Where an executing member state is in possession of evidence of a real risk of inhuman and degrading treatment for those returned to a requesting state, an assessment of the risk must be made such that return does not result in inhuman and degrading treatment.
The executing member state must initially rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing member state and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention.
However, a finding of a real risk of a breach of article 4 in a requesting state as a result of the general conditions of detention cannot in itself lead to a refusal to execute an EAW: the key issue is whether there are substantial grounds to believe in the case of the specific person before the court that there is a real risk of an article 4 breach.
Should such substantial grounds exist, the requested state must urgently seek supplementary information as to the conditions in which the requested person would be detained: this request may include inquiries regarding national or international procedures in existence for monitoring conditions of detention.
If in light of the information provided it is still found that a real risk of inhuman treatment of the requested person exists, then the extradition request must be postponed until the executing judicial authority obtains supplementary information which allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end.
As to article 8, the cases referred to by the DJ establish that the issue is always whether the interference with the private and family lives of the requested person and his family is outweighed by the public interest in extradition. There is a constant and weighty public interest that persons convicted of crime should serve their sentences, that the UK should honour its treaty obligations to other states, and that there should be no safe havens to which offenders can flee in the belief that they will not be sent back. That public interest will always carry great weight, but the weight to be given to it in a particular case may vary according to the nature and seriousness of the relevant offending. Delay on the part of the requesting state may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
On an appeal to this court, it is clear from Celinski that the only question is whether the DJ made the wrong decision:
“Findings of fact, especially if evidence has been heard, must ordinarily be respected. In answering the question whether the district judge, in the light of those findings of fact, was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome, that is on the decision itself. Although the district judge’s reasons for the proportionality decision must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong.”
Developments since the DJ’s decision:
Since the DJ’s decision, other cases concerning prison conditions in Portugal have come before this court. Particular reference has been made to Mohammed v Comarca De Lisboa Oeste [2017] EWHC 3237 (Admin) and Yaser Mohammed v Comarca De Lisboa Oeste Portugal [2018] EWHC 225 (Admin), to which I shall refer for convenience as to “Mohammed 1” and “Mohammed 2” respectively.
In Mohammed 1 this court considered evidence including CPT reports relating to visits to Portuguese prisons in 2012 and 2013, and the Portuguese government’s responses. The second of those reports had noted that very limited progress had been made since the first visit, especially at Lisbon Central Prison. This court assessed the information before it as providing objective, reliable, specific and up-to-date information about deficiencies in Lisbon Central Prison and about “a real risk of inhuman or degrading treatment by reason of conditions of detention in parts of that prison, in particular the basement areas”. In judgments handed down on 12th December 2017, before the latest CPT report was published, the court emphasised that it was a finding of specific conditions in a particular prison, not a finding of systemic deficiencies. The court concluded that it must move to the second stage indicated in Aranyosi, and so addressed a number of questions to the Portuguese authorities.
The information provided in response to those questions was considered in Mohammed 2. Not all the court’s questions had been answered, and the answers which had been given were “generalised and vague assurances about the conditions of detention”. An application by the judicial authority for more time to obtain further information was refused. Sir Wyn Williams, with whom Beatson LJ agreed, took the view that the information provided “comes close to being an acceptance that conditions at Lisbon Central Prison still give rise to a real risk of inhuman or degrading treatment for inmates”. The court allowed the appeal against the order for extradition and discharged the appellant.
A further important development since the date of the DJ’s judgment, and a consequence of the decision in Mohammed 2, is that on 6th April 2018 the Director General for Reintegration and Prison Services in Portugal issued a Declaration of Commitment, applicable to all existing and future cases of surrender of persons from the UK to Portugal, in which he guaranteed the following:
“a. Inmates shall be detained in cells that provide at least 3m2 of personal space.
b. Inmates shall be detained in cells that contain a self-contained sanitary facility (and which is separated from the remainder of the cell).
c. Inmates shall not be detained in the basement areas of wings B, C, D and E of the Lisbon prison or any room which lacks artificial light.
d. The commitments herein shall be recorded in the inmates’ personal penitentiary files.
e. Should any temporary reduction in minimum personal space become necessary, as a result the prisoner’s own conduct, or in order to protect the health and safety of the prison population, the principles set out in Mursic v Croatia (7334/13, Grand Chamber Judgment of 20th October 2016) will be applied to ensure that conditions remain compatible with Article 3 ECHR.
f. During the short periods of time that the inmates remain to the custody of others entities (eg on Court or Police cells), the DGRSP will transmit them the Recommendations and principles set out in Mursic v Croatia to ensure those conditions remain compatible with Article 3 ECHR. In particular:
• Any such reduction in personal space will be short, occasional and minor;
• Any such reduction will be accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities;
• For the duration of such reduction the extradited person will be confined in an appropriate detention facility with no other aggravating aspects of the conditions of his or her detention.”
The fresh evidence:
The appellant has very recently applied for permission to rely, in support of the appeal, on fresh evidence comprising a CPT report to the Portuguese government setting out findings on a visit to Portugal in late September and early October 2016, together with the response of the Portuguese government to that report. Those documents were only published in early 2018, months after the DJ gave his judgment (a factor to which the appellant attaches importance, submitting that the date of publication was within the control of the Portuguese government which, by inference, deliberately delayed it). They are obviously important in providing the more up-to-date information about Portuguese prisons which the DJ lacked. It is unsatisfactory that the application for permission to rely on this evidence was only filed 2 days before this hearing. However, the appellant is able to rely on T v Circuit Court in Tarnobrzeg, Poland [2017] EWHC 1978 (Admin), [2017] 4 WLR 137 as authority for the proposition that a court hearing an extradition appeal pursuant to section 27 of the Act must make its own determination on the basis of all the material available at the time of the appeal. Moreover, the respondent realistically accepts that the evidence is admissible under Fenyvesi principles, and that it is right for this court to have regard to this further material.
Both parties were able to make detailed submissions to the court about this report and response. It is in my judgment clearly appropriate that this material should be admitted as fresh evidence in this appeal.
I would summarise the relevant features of the CPT’s report of its 2016 visit as follows:
The high level of overcrowding within the Portuguese prison system remained a serious problem. In some establishments there was extreme overcrowding: Caxias was operating at 160% of its official capacity, Lisbon Central at 150%, Porto at 180% and Setubal at 200%. About 13 smaller regional prisons were operating at 140% or more of official capacity. Such overcrowding affected not only the material conditions but also the regime, staff-inmate relationships and good order. The CPT referred to the government’s 10-year plan to upgrade some existing establishments and build several new prisons (including one to replace Lisbon Central), and recommended that it should be accompanied by measures to limit the number of people being sent to prison.
Living conditions in parts of some establishments were “totally unsuitable to hold prisoners and may amount to inhuman and degrading treatment”. At p6, the report said:
“For instance, in the basement areas of Lisbon Central Prison the cells were cold, dark and damp with crumbling plaster and rats were entering the cells via the floor-level toilets. Other parts of the prison remained in a state of advanced dilapidation. The conditions for certain vulnerable prisoners at both Caxias and Setubal Prisons were particularly poor, with less than 3m2 of living space per prisoner and inmates confined to their cells for up to 23 hours per day. The authorities are urged to provide all prisoners with a minimum of 4m2 of living space in multiple-occupancy cells and urgently to renovate the abovementioned deficiencies. At Lisbon Central Prison, prisoners should be transferred out of the basement areas of B, C, D and E Wings until such time as they have been properly renovated.”
Criticisms were made of the impoverished regime offered to prisoners at most of the establishments visited.
With specific reference to Lisbon Central Prison, the report noted that at the time of the visit, in autumn 2016, there were 1,253 prisoners, against an official capacity of 886. Only F wing offered acceptable conditions. In other wings the delegation found broken windows, a foul odour emanating from toilets, an absence of partitions for toilets in cells occupied by two prisoners and mattresses which were “thin, worn, dirty and falling apart”. Inmates complained that cells were particularly cold in the winter, with no heating system. Many cells had no artificial lighting. The call bells generally did not function. The staff/prisoner ratio was inadequate, creating an insecure and potentially dangerous situation for both staff and prisoners.
In its response to that report, the Portuguese Ministry of Justice reiterated its commitment to solve the problem of overcrowding, both by taking measures designed to reduce the prison population and by increasing the capacity of the system. It said that very significant results had already been produced, which would be even more important “in the near future (eg in 2018)”. There had been a steady and very significant decrease in the prison population since the CPT’s visit, including significant decrease in the population of the prisons mentioned in the report: as at 31 December 2017 the occupancy rates were 145% in Caxias, 111% in Lisbon Central, 166% in Porto and 185% in Setubal. On the basis of the existing trend, further reduction would take place in the following months. The government proposed to close 8 prisons, including Lisbon Central, but would nonetheless carry out significant improvements pending closure. The basements in Wings A, B, D and F had been closed, and those in C and E were only used for compliance with disciplinary sanctions.
The response concluded in relation to overcrowding by saying –
“… we believe that the CPT recommendations have been fully respected, that the results obtained are very significant and that, above all, they show that in the very near future the (correctly) formulated criticisms shall become pointless.”
The submissions:
In relation to ground 1, the appellant’s principal submissions are as follows:
In Mohammed 1 this court found that the first part of the test in Aranyosi had been met.If Mohammed 1 had been decided before the DJ reached his decision in this case, the DJ would have been compelled to reach the same conclusion as in that case. Given the inadequacy of the respondent’s response to the DJ’s enquiries, he would then have reached the same conclusion as did this court in Mohammed 2, namely, that the Portuguese authorities had failed to dispel concerns that there would be a real risk of a breach of article 3 if the appellant were held at Lisbon Central Prison.
Subsequent to Mohammed 2, the most recent CPT report (published less than 3 weeks after the judgments in Mohammed 2) has indicated continuing problems of overcrowding, understaffing and poor material conditions. It has also indicated that the staffing problem was most dramatic at Lisbon Central Prison. The response of the Portuguese government lists a number of improvements at Lisbon Central Prison but accepts that not all the renovations have been undertaken. It is submitted that in the context of prison conditions, the stance of the Portuguese government is always one of promising “jam tomorrow”. It is further submitted that the promises made in the past have proved ineffective, and that there remains a real risk that the appellant’s article 3 rights would be breached if he were returned to Portugal.
The only further material to counter those concerns is the Declaration of Commitment, which is wholly inadequate. It is not suggested that the Declaration was not given in good faith, but it is insufficient to allay concerns and insufficient to meet the problems identified by the evidence. Given that the risk has not been dispelled despite the passage of time, this extradition process should be brought to an end.
It is apparent that the appellant would initially be detained at Lisbon Central Prison. An assurance has been given that such detention would not be for more than 21 days, but it is submitted that even if the risk of breach of article 3 is limited to a short period, extradition should still be refused. In this regard, the appellant relies on the decision of the CJEU in Criminal proceedings against ML (Case C-220/18 PPU).
The Portuguese authorities have not indicated to which prison the appellant would be allocated after his initial detention in Lisbon Central Prison. They have not even indicated to which prisons he will not be allocated. There is therefore a real possibility that he may be allocated to one of the prisons criticised in the CPT 2016 report. It is submitted that it is significant that the latest CPT report shows that serious problems are not confined to Lisbon Central Prison and that visits to prisons which had not previously been visited found that they too had serious problems. Relying on Badre v Court of Florence, Italy [2014] EWHC 614 (Admin), a case in which a generalised letter of assurance was held not to be sufficient to dispel the real risk of a breach of article 3, the appellant submits that in a case such as the present, one would expect the requesting authority to give an assurance that the requested person would be detained at a prison which did not suffer from the problems recorded in the CPT report. However, no such assurance has been given in the appellant’s case.
Although the Declaration of Commitment provides for at least 3m2 of personal space in a shared cell, it is not clear whether the 3m2 includes sanitary fittings. In any event, that space is less than the 4m2 which is recommended in the CPT’s Standards, and which was promised in the response to the DJ’s enquiries. The appellant points out that the DJ’s decision stated that he should respect by way of mutual trust the indication that the prisoner would have at least 4m2 of personal space.
The Declaration is silent as to the material conditions in which the appellant will be held, and does not answer all the questions asked of the Portuguese authorities by the court in Mohammed 1. One of the questions posed in that case asked what mechanisms would be in place to monitor the conditions in which the requested person would be held. That question was not answered in Mohammed 2, and it is not answered by anything in the Declaration. Even at this stage, questions 4, 5, 6, 9 and 10 posed by the DJ remain unanswered. That is particularly important, it is submitted, because Mursic does not prescribe that 3m2 of cell space is conclusive of compliance with article 3: 3m2 of space is a minimum requirement, but other factors relevant to the conditions of detention must also be considered.
The basement areas of C and E wings at Lisbon Central Prison continue to be used “for compliance with disciplinary sanctions”: in the absence of any explanation of what that means, there is a real risk that the appellant will at some stage be accommodated in one of those areas.
In summary, it is submitted there are 5 causes for concern: it is not known where the appellant would be held after initial detention at Lisbon Central Prison; 3m2 of cell space is on the borderline of sufficiency, and it cannot be assumed that it excludes sanitary fittings; there can be no confidence about other conditions in any prison to which the appellant may be allocated; the role of the Ombudsman does not extend to monitoring compliance with the Declaration of Commitment; and the reference to the use which may be made of basements at Lisbon Central Prison is an ill-defined derogation from the Declaration.
For those reasons, it is submitted that there is more than sufficient evidence to show that conditions at Lisbon Central Prison remain in breach of article 3, and there is a clear risk that the appellant would be held in such conditions. The test of an international consensus as to prison conditions is satisfied by the series of CPT reports, all of which are relevant to what improvements can realistically be expected to be achieved in practice. In those circumstances, although improvements have been made, this court cannot yet be satisfied that there is no real risk that the appellant’s article 3 rights will be breached.
The respondent’s principal submissions on this first ground are:
The respondent accepts that in Mohammed 1 it was found that there was evidence of a systemic problem in Lisbon Central Prison, such that the first stage of the Aranyosi approach should be decided in the appellant’s favour. It is not submitted that the latest report paints such a dramatically different picture of Lisbon Central Prison that the first stage should now be differently decided. The respondent therefore accepts that this court should proceed to the second stage and consider whether there are substantial grounds for believing that the appellant would be at a real risk of an infringement of his article 3 rights.
In view of the concerns which have been expressed about Lisbon Central Prison, where the appellant will initially be detained, it is right for this court to consider the conditions in which he will be kept. However, the DGRSP’s Declaration of Commitment was a response to the decision in Mohammed 2, and sufficiently answers the concerns. That is confirmed by the response to the CPT’s report of its 2016 visit, in which the Portuguese authorities demonstrate a substantial reduction in the prison population and the ability to make good their commitment to allow at least 3m2 of personal space for each prisoner in a multi-occupancy cell. Taken overall, the Declaration shows that the Portuguese authorities are well aware of the requirement in Mursic that the sanitary facility must be excluded from the measurement of personal space. The Declaration further makes clear that if for a short period that minimum space cannot be guaranteed, the principles in Mursic will be applied to ensure that the appellant’s rights are not breached.
The concerns of the CPT were strongest in relation to the basement areas at Lisbon Central Prison. The appellant is not at any risk of being detained in any of those areas. Other parts of the prison have not been said by the CPT to carry a real risk of a breach of article 3; and in any event, there has been a significant improvement in material conditions at the prison since 2016.
There is no evidence in the CPT reports to provide substantial grounds for believing that the appellant would be at real risk of a breach of his article 3 rights in any other prison to which he might be allocated. The CPT report identified deficiencies in some prisons in 2016, and showed overcrowding at about 15 prisons, but did not provide evidence of systemic problems at Portuguese prisons generally and does not amount to an international consensus. In any event, the Portuguese government’s response to the report shows that matters have moved on since 2016, and that the commitment to reduce overcrowding is being implemented. Thus the first stage of the Aranyosi enquiry should be resolved against the appellant.
In the alternative, if the second stage of the Aranyosi enquiry is reached, the Declaration of Commitment provides a sufficient answer at the second stage. At that second stage, the requesting state can specify the prison at which the requested person will be held, but need not necessarily do so: an assurance applicable to all prisons may be sufficient to avoid any real risk of a breach of article 3, as can be seen from GS v Central District of Pest, Hungary [2016] 4 WLR 33 and Court in Mures, Romania v Zagrean [2016] EWHC 2786 (Admin). Here, the Declaration of Commitment applies to all prisons in Portugal, and there has been a clear improvement in conditions since 2016.
The Declaration must be assumed to have been given in good faith, and it must be assumed that it can and will be honoured. The fact that the assurance has been given will be recorded in the prisoner’s personal file and will therefore apply at every prison where the appellant might be detained. Portugal has in 2013 appointed an Ombudsman to act as the National Preventive Mechanism in relation to the UN Convention against Torture, and the Ombudsman carries out unannounced monitoring visits. Persons detained in Portuguese prisons are able to complain to an inspection service operated by the DGRSP and coordinated by a judge. The appellant had a lawyer acting for him in Portugal, and is represented in these proceedings, so he will be able to raise with them any complaint of a failure to comply with the assurances given. There is no evidence that Portugal has previously breached a commitment such as the Declaration: cf Fuzesi v Budapest-Capital Regional Court, Hungary [2018] EWHC 1885 (Admin). Sir Wyn Williams was accordingly correct to refuse permission for the reason which he gave.
It is relevant to note that a similar commitment has been given by Portugal to the Netherlands, and the Dutch authorities have subsequently extradited a requested person to the Lisbon Central Prison.
The DJ’s decision was not wrong.
In relation to ground 2, the appellant submits that the DJ, in conducting the balancing exercise required of him by Celinski, wholly failed to consider three relevant factors: the age of the offence (more than 8 years), its relative lack of seriousness (bearing in mind that an equivalent offence in the UK would only be punishable by way of a fine) and the conditions in which the sentence would be served (which, even if not found to contravene article 3, would clearly be deplorable). That was a material failure, because when those factors are taken into consideration, and weighed against the effects of extradition on the family life of the appellant and his family, it is clear that extradition is a disproportionate interference with their article 8 rights. The appellant relies on the principles (mentioned at [11] above) stated by Baroness Hale at paragraph 8 of HH:
“That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.
… the delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life …”
The respondent’s submissions as to ground 2 are:
Although an analogous offence under English law would not carry imprisonment, the DJ was correct to say that he must have respect for the sentencing regime in Portugal. Moreover, the appellant has previous convictions for similar offences, and it would have been wrong for the DJ to substitute a different view as to the seriousness with which the Portuguese authorities regarded this offence. The respondent points to Celinski, in which the court said at [13] –
“It will therefore rarely be appropriate for the court in the UK to consider whether the sentence was very significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been.”
The DJ took into account the delay and the fact that the sentence is short. But the evidence shows clearly that the Portuguese authorities viewed this sentence as important and acted diligently. This is not a case in which there was delay capable of giving rise to an inference that the requesting state does not regard the matter as particularly serious. Moreover, the principle that the UK should not be seen as a safe haven applies even if the sentence is a short one.
Furthermore, the evidence shows that the appellant is a fugitive. He left Portugal knowing of the prosecution, and deliberately evaded the trial process. That does not debar him from relying on article 8, but it is a powerful factor in the balance against him because of the public interest in discouraging foreign criminals from seeing the UK as a place which will protect fugitives from justice. The respondent relies in this regard on T v Circuit Court in Tarnobrzeg, Poland.
There is of course an impact on the family life of the appellant and others, in particular the children who have lived in the UK for a substantial part of their young lives. It is however relevant to take into account that the separation of the appellant from his family will only be for a short period of time. The DJ was not wrong, and was indeed correct, to conclude that the interference with the article 8 rights of the appellant and his family was not so severe as to outweigh the strong public interest in extraditing the appellant.
Discussion:
The DJ – whose judgment was of course given before the decisions in Mohammed 1 & 2 – asked pertinent questions of the Portuguese judicial authority. The response, noted in [8] above, was unsatisfactory, with a majority of the questions left unanswered. As the DJ observed in his judgment, the real information provided to him as to prison conditions came in the CPT report of its visit to Lisbon Central Prison in May 2013, and the Portuguese government’s response to that report. The DJ was entitled to take the view that in the absence of any more up-to-date information being provided to him on behalf of the appellant, he could not say whether the deficiencies noted in 2013 still existed in 2017. He was also entitled to rely, in accordance with mutual trust, on the contents of the government’s reply to the report.
I agree with the parties that the article 3 issue now falls to be considered in the light of the fresh evidence. I have reflected on that evidence in the light of the approach indicated by Aranyosi.
In my judgment, at the first stage of the enquiry, the CPT report provides objective, reliable and specific evidence that in autumn 2016 there were deficiencies affecting a number of prisons in Portugal, in particular because of a continuing serious problem of overcrowding and unacceptable living conditions in parts of some prisons. The evidence does not go so far as to show that there was a systemic problem affecting the whole of the prison estate, but the first stage of the enquiry required by Aranyosi may be satisfied by reference to deficiencies which affect certain places of detention. As to whether the evidence is also “properly updated” (as Aranyosi at [89] requires), I bear in mind that not only does the report itself indicate some improvements since 2013, but also the response of the Portuguese government provides clear evidence of significant improvements being made in reducing overcrowding and improving conditions. I have considered whether that evidence of a trend of improvement both before the CPT’s 2016 visit, and in the months between then and the publication of the report, means that the appellant is unable now to point to up-to-date evidence of a real risk of inhuman or degrading treatment by virtue of general conditions. I have concluded that it does not. I accept the submission of the respondent that the Portuguese government is making genuine efforts to tackle the problems shown in the 2016 report. In my view, however, the scale of those continuing problems was such that it is unlikely that they have been resolved by now.
As Aranyosi makes clear at [93], this conclusion as to the first stage of the enquiry does not necessarily imply that in this specific case the appellant will be subjected to inhuman or degrading treatment if surrendered to Portugal. I therefore move on to the second stage of the enquiry and consider whether there are substantial grounds to believe that this appellant will be exposed to a real risk of breach of his article 3 rights if he is returned to serve his sentence.
On this issue, I accept the submissions on behalf of the respondent. True it is that some of the DJ’s questions remain unanswered, and that no specific assurance has been given as to where the appellant will be detained, or even as to where he will not be detained. It is however clear from the case law to which I have referred that a general assurance applicable to all potential places of detention may suffice to exclude a real risk of inhuman or degrading treatment, and in my view the Declaration of Commitment does so in this case. It is applicable to all prisons in Portugal, and in my view it is sufficient to meet the Othman criteria. It is accepted on behalf of the appellant that the Declaration was given in good faith. That concession, properly made, is in my view important. Given that there is no evidence of a systemic problem affecting all parts of all Portuguese prisons, it is clearly possible for the Portuguese authorities to detain the appellant in a prison, or part of a prison, which does not risk breaching his rights; and the principle of mutual trust requires this court to assume that the Portuguese authorities will do so. There is in my view nothing in the evidence and submissions before this court which displaces that assumption. I accept that it is likely that the appellant will initially be detained for a short period at Lisbon Central Prison. I further accept that if a real risk of a breach of article 3 is shown, the fact that it will only exist during a short period would not assist the Portuguese judicial authority. There is however no ground for saying that there is a real risk that the appellant would be detained in a part of Lisbon Central Prison which has been condemned by the CPT, and other parts of that prison have not been said to carry a real risk of breach of article 3. There is clear evidence of actual improvement, in particular in the reduction of the level of overcrowding, and a clear statement of intent – which must be respected – to achieve further improvements at that prison and elsewhere in the prison estate; and there is a clear assurance that any prison to which the appellant is allocated will house him in conditions which comply with the Mursic principles and meet the minimum standards set out in the Declaration of Commitment.
It is in my view important in this regard to note that there is no evidence that Portugal has ever acted in breach or in disregard of an assurance of this nature. It is also important to note that in addition to the role of the Ombudsman, there is a system of prison inspection coordinated by a judge and that there are routes by which a prisoner can complain about the conditions of his detention.
My conclusion, taking into account all of the evidence now available, is that there are no substantial grounds to believe that this appellant, if returned to Portugal to serve his sentence, will be at real risk of a breach of his article 3 rights, either during the probable initial period of detention at Lisbon Central Prison or at any other prison to which he may be allocated. It follows that I reject the ground of appeal based on article 3.
Turning to the second ground of appeal, I am unable to accept the submission that the DJ failed to consider all or any of the three matters on which the appellant relies. It is true that the DJ might have dealt with them at greater length than he did; but I cannot accept that he failed to have regard to the age of the offence, to the relative lack of seriousness of the offence or to the conditions in which the sentence is likely to be served. In any event, the reality, as it seems to me, is that those points do not, even collectively, add any significant weight to the appellant’s submissions to the DJ.
The age of the offence has to be seen in the context of the steps taken by the Portuguese authorities to prosecute the charge, and the steps taken by the appellant to avoid the consequences of his wrongdoing. In the circumstances of this case, it cannot be said that the passage of time provides any indication that the judicial authority has shown a lack of interest in prosecuting the appellant. Nor can it be said that the article 8 claims of the appellant and his family have been significantly strengthened by his living in this country for a number of years in the knowledge that he was being prosecuted, convicted and sentenced in his home country and had only avoided those proceedings by leaving Portugal in breach of his obligation to notify any change of address.
As to the seriousness of the offence, the sentencing policies of other States must be respected. Portugal is entitled to regard such offending as justifying a sentence of up to 12 months’ imprisonment; and it cannot be said that a sentence of 6 months’ imprisonment for a man with a number of previous convictions is so repugnant to justice that this court should seek to substitute a different view.
There is no reason to think that the DJ, having focused on prison conditions when dealing with the article 3 submissions, lost sight of that aspect of the case when dealing with the article 8 submissions. The prospect that the sentence will be served in difficult conditions is a factor which in my view can properly be taken into account in assessing the proportionality of the interference with article 8 rights; but it is only one factor.
There were undoubtedly other factors in the appellant’s favour, to which the DJ was clearly alive. The appellant is obviously a hard-working man. He cares for his family, and has no convictions in this country. His family are settled in this country, and his partner would find it difficult to manage in his absence, though it is not said she would be driven to return to Portugal.
The DJ recognised that the appellant’s businesses may well suffer in his absence. It is not suggested that the businesses would collapse, but it is said they would suffer losses such as to impact upon the continued employment of at least some of his 23 employees. If that does indeed happen, despite the shortness of the sentence to be served, it will be very unfortunate for those concerned; but that misfortune does not form part of the article 8 rights of the appellant and his family.
The factors in the appellant’s favour which militated against extradition had to be balanced against the strong public interest considerations and the fact that the appellant had left Portugal in breach of his obligations. The DJ concluded that extradition would not be a disproportionate interference with the article 8 rights which are engaged. That was a conclusion which he was clearly entitled to reach, for the reasons which he gave, and it is not possible to say that he was wrong. On the contrary, I find it difficult to see what other conclusion he could have reached.
The second ground of appeal therefore also fails.
Conclusion:
I would therefore dismiss the appeal. It follows that in my judgment the extradition must proceed.
Mrs Justice McGowan DBE:
I agree.