Ronald Whelan v Court of Appeal in Paris, France

This is an oral renewal hearing of an application for permission to appeal against the decision of District Judge Leong on 27 June 2025 to order extradition of the applicant, Mr Ronald Whelan.

The extradition of the applicant was sought pursuant to an extradition arrest warrant issued by the Respondent, the Public Prosecutor at the Paris Court of Appeal to execute a six year sentence imposed following the applicant’s conviction in his absence on 28 May 2010 for two offences. Namely, the unauthorised acquisition of 20 kilograms of cocaine, and participation in a criminal organisation. The offences took place between March and August 2006.

The extradition arrest warrant was issued on 22 August 2024 and certified by the National Crime Agency on 30 August 2024. The applicant was arrested on 27 November 2024 and was remanded into custody. On 4 December 2024, he was remanded on conditional bail, on which he remains.

The applicant’s application for permission to appeal was filed and served on 3 July 2025. Following service of Perfected Grounds of Appeal on 15 August 2025, and a Respondent’s Notice on 29 August 2025, Collins-Rice J refused the applicant permission to appeal by an Order dated 12 March 2026, having also refused the applicant’s applications dated 5 September 2025 and 10 September 2025 to adduce fresh evidence regarding prison conditions in France.

The applicant now applies to renew his application for permission to appeal on one ground only, namely that District Leong erred in concluding that the applicant’s extradition is compatible with his rights under Art 3 of the ECHR.

By way of a preliminary application, the applicant applies to adduce fresh evidence in the form of the 2026 CPT report published on 22 January 2026.

Section 27(4) of the Extradition Act permits the court to consider evidence that was not adduced at the extradition hearing. It was established in Szombathely Court v Fenyvesi [2009] EWHC 231 (Admin) at [35], however, that even if the evidence was not available at the time of the first instance hearing:

“...the court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.”

The fresh evidence that the applicant seeks to adduce in this context comprises updated statistics in relation to the overcrowding rate in French prisons and the CPT report published on 22 January 2026, which is provided alongside the government response. I have considered the evidence de bene esse in the process of determining the application for permission to appeal.

On 23 November 2006, the examining magistrate at the Paris Tribunal de Grande Instance issued an arrest warrant for the applicant. On 28 May 2010, the Paris Court of Appeal upheld the warrant. The warrant relates to two offences. First, the unauthorised acquisition of 20 kg of cocaine worth around €500,000. Second, participation in a criminal organisation. The offences occurred during 2006 and ended at the end of August 2006.

It was alleged that in March 2006, the authorities received a tip about importation of cocaine involving a Colombian organisation and French criminals. Police investigations identified that “buyers of some of the drugs” were British. It was alleged that on 27 June 2006, the applicant and a Mr Lance Martin Norman met with two members of the French organisation, Mr Mezouar and Mr Lenertz. They met them again on 7 July 2006 in Paris, with the drugs allegedly due to arrive on 8 July 2006. It is said that on 7 July 2006, the applicant and Mr Norman made a round trip from Malaga to Paris.

The drugs, 136 kilograms of cocaine, arrived at Roissy-Charles de Gaulle on 22 July 2006. It is alleged that on 27 July 2006, Mr Mario Hornec was sent to Malaga by Mr Mezouar. He was in Malaga until 1 August 2006 and was alleged to have informed Mr Mezouar that the applicant and Mr Norman, or their emissary, would soon be travelling to Paris to “check the quality of the merchandise”. On 31 July 2006, Mr Moustafa Chaker carried out the verification in Paris and on 10 August 2006, 20 kilograms of cocaine were handed over to Mr Chaker in exchange for €500,000.

The applicant was convicted in his absence by the Paris Court of Appeal of the acquisition of 20kg of cocaine, and participation in a criminal organisation by allegedly agreeing to purchase the 20kg of cocaine. The sentence imposed was 6 years of imprisonment, all of which remains to be served. The applicant is also currently a subject of a suspended sentence in the UK imposed on the 11 November 2024 at Liverpool Crown Court for possession of a knife in public and inflicting GBH with that knife.

With respect to the decision of District Judge Leong to order the extradition of the applicant, the issues raised at the extradition hearing were passage of time pursuant to s.14 of the Act, the applicant’s physical or mental condition, pursuant to s.25 of the Act and Arts 3 and 8 of the ECHR.

During the course of this hearing, the argument concentrated on the prisons at Bois d’Arcy and Nanterre (Hauts-de-Seine). For the purposes of the present hearing, it is the approach by the District Judge to the question of prison conditions at Bois d’Arcy and Nanterre that are relevant.

In particular, the District Judge rejected the applicant’s arguments with respect to Art 3 because she considered that the information from the Contrôleur général des lieux de privation de liberté (hereafter “the CGPL”) relied on by the applicant, amongst other evidence with respect to conditions in France, adopted an approach which reduced its reliability and was not from “an internationally recognised source”. Accordingly, the District Judge did not consider that that evidence satisfied the threshold of clear, cogent and compelling evidence to rebut the presumption that parties to the ECHR, including France, are willing and able to fulfil their obligations under Art 3.

Extradition was ordered on 27 June 2025 and the applicant lodged his appeal on 3 July 2025. Perfected grounds of appeal were filed on 28 July 2025 and a Respondent’s notice was filed on 29 August 2025. The applicant relied on the following grounds of appeal, only the first of which is now renewed:

Permission was refused on the papers by Collins-Rice J, who also refused applications made on 5 September 2025 and 10 September 2025 to adduce fresh evidence with respect to French prison conditions.

Collins-Rice J considered that the District Judge correctly addressed herself to the relevant authorities in cases of a challenge to prison conditions in a country that is a signatory to the ECHR and, in accordance with those authorities, had made a “notably careful” evaluation of the evidence that explained why she was unable in all the circumstances to find the presumption of compliance adequately rebutted. Collins-Rice J was satisfied that the District Judge’s approach revealed no error of law and that the finding made were open to her.

In refusing to admit fresh evidence regarding prison conditions in France, and as I have noted, Collins-Rice J referred to Divisional Court authority of A and Another [2021] EWHC 2543 (Admin) holding that overcrowding can be no more than a general indicator of individual space and did not consider the material passed the test in Fenyvesi, it not being arguable that the material must have resulted in a different decision.

As I have also noted, the pleaded renewal grounds seek to revisit only the first ground of appeal. The applicant contends, in sum, that the District Judge Leong’s decision evidences arguable errors in that she should have, but did not, make factual findings regarding the conditions at Bois d’Arcy and Nanterre; should have treated the reports of the CGPL as clear, cogent and compelling evidence to rebut the presumption that France is willing and able to fulfil their obligations under Art 3 in circumstances where the CGPL is the National Preventative Mechanism in France (hereafter “the NPM”); and should have, but did not, rule whether the conditions combined with 3-4m² of space gave rise to an violation of Art 3.

To make good his submission that the District Judge was wrong to order extradition, on behalf of the applicant, Mr Stansfeld concentrated his submissions on seeking to demonstrate errors in the District Judges approach to the weight given to the reports from CGPL. The applicant argues that it was not open to the District Judge to decline to place weight on the reports based simply on the criticisms made by the respondent of the CGPL’s method. Those criticisms being its method of calculating available cell space without applying the test in Muršić v Croatia (7334/13) (2016) 65 EHRR 1 with respect to Bois d’Arcy and applying that test incorrectly in respect of Nanterre. During the course of his oral submissions, Mr Standfeld sought to demonstrate the credibility of the calculations undertaken by the CGPL by reference to the baseline size of the relevant cells as set out in the reports and made submissions on the conclusions he submits the District Judge should have drawn had she accorded proper weight to those. Mr Stansfeld further submitted that it was arguably wrong for the District Judge to conclude that the CGPL is not an “internationally recognised source” in circumstances where it is the National Protection Mechanism for France set up pursuant to France’s obligations under OPCAT.

For the respondent, Ms Bostock submits that the District Judge was fully entitled to come to the conclusions she did on the weight that should be accorded to the evidence from CGPL when considering the extent to which the applicant had provided clear, cogent and compelling evidence to rebut the presumption. Ms Bostock relies on what she submits are a number of errors in the reports from CGPL, as identified by the judge, and by the fact that reports do not appear to evidence an understanding of the baseline for the operation of the presumption as articulated in Muršić. Ms Bostock contends that the applicant’s analysis based on the CGPL reports is flawed in that it misstates the number of double cells at Nanterre and provides therefore no evidential basis for the claim that detainees at Nanterre receive less than 3 m² of personal space. In relation to Bois d’Arcy, Ms Bostock contends that it is erroneous to suggest that the District Judge should have inferred personal space from an inaccurate and outdated CGPL analysis referring to conditions four years ago.

Overall, on behalf of the Respondent, Ms Bostock submits that the Applicant has not displaced the presumption with clear, cogent, and compelling evidence, asserting that the material relied upon remains outdated and legally insufficient.

Under section 26 of the Extradition Act 2003, a requested person may appeal to the High Court against an order for his extradition. The Court’s powers are provided under s. 27 of the Act:

“27 Court’s powers on appeal under section 26

(1)

On an appeal under section 26 the High Court may—

(a)

allow the appeal;

(b)

dismiss the appeal.

(2)

The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3)

The conditions are that—

(a)

the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b)

if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4)

The conditions are that—

(a)

an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b)

the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c)

if he had decided the question in that way, he would have been required to order the person's discharge.

(5)

If the court allows the appeal it must—

(a)

order the person's discharge;

(b)

quash the order for his extradition.”

The test at the permission stage is whether any Ground of Appeal is ‘reasonably arguable’ (Crim PR r. 50.17(4)(b)). The test on appeal under s 27 EA 2003 is whether the Judge’s decision was wrong, in the sense that they erred in such a way that they ought to have answered the statutory question differently (see Surico v Italy [2018] EWHC 401 at [30-31]). In Love v USA [2018] 1 WLR 2889 at §26, this Court reminded that:

“The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”

Art 3 of the ECHR provides as follows with respect to the prohibition against torture:

“Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Art 3 prohibition against is torture or inhuman or degrading treatment or punishment is an absolute norm without any exception and without regard to the victim’s conduct, extenuating circumstances or budgetary constraints. Following Soering v United Kingdom [1989] 11 EHRR 439 at [91], Art 3 of the ECHR will operate to prevent extradition:

“Where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the requesting country.”

In this case, the grounds relied on centre on the issue of overcrowding. In Muršić it was held that each prisoner must receive at least 3m² of personal space. The court considered that detention with less space gives rise to a “strong presumption” of Art 3 ECHR breach unless the State can cumulatively prove that (i) the reductions are “short, occasional and minor”, (ii) the reductions are accompanied with “sufficient freedom of movement” outside the cell and (iii) the prison conditions are generally appropriate. In A v France, the Court said at [136] that “

“Overcrowding can be no more than a general indicator of individual personal space. In Shumba No. 2, the occupancy rate at Fresnes MA was as high as 192% but this did not establish that individual personal space was less than 3m2”

In Shumba & Others v France [2018] EWHC 1762 (Admin) the Divisional Court noted in Art 3 cases that:

“37.

There is a presumption that parties to the ECHR, such as France, are willing and able to fulfil their obligations, in the absence of “clear, cogent and compelling” evidence to the contrary. However, that presumption can be rebutted where that evidence comes from an internationally recognised source or is specific to an individual.”

In Jane v Prosecutor General’s Office, Lithuania [2018] EWHC 1122 Admin at [17] to [18] it was held that

“Because of the principle of mutual trust between member states, membership of the Council of Europe is a highly relevant factor in deciding whether an extradited person would, in fact, be likely to suffer treatment contrary to article 3 if extradited to another member state …[the] presumption may be rebutted by clear, cogent and compelling evidence, something approaching an international consensus…For example, if there has been a pilot judgment of the European Court of Human Rights (”ECtHR”) against the requesting state identifying structural or systemic problems the presumption will be rebutted... Where the presumption is rebutted, the burden of proof shifts to the requesting state…”

I am satisfied that the ground of appeal advanced by the applicant is not reasonably arguable and that, accordingly, permission to appeal should be refused. My reasons for so deciding are as follows.

The applicant’s argument is, in essence, that the District Judge was wrong in her conclusion as to the weight to be attached to the reports of the CGPL. Weight is a matter for the judge. In circumstances where, in weighing the evidence, there is no canon and the weight of evidence depends on rules of common sense (Lord Advocate v Blantyre (1879) 4 App. Cas. 770 at 792) an appellate court will be slow to interfere in the judge’s conclusions as to weight.

It is clear from reading the judgment as a whole that the District Judge was well aware that, to rebut the presumption, the applicant had to satisfy the court with clear, cogent and compelling evidence. The District Judge approached her evaluation of the information from CGPL in that context.

With respect to the reports from the CGPL, it is plain from the judgment that the District Judge carefully analysed that evidence in order to determine what weight she could attach to it in the context of the test she had to apply. It is instructive to set out the analysis undertaken by the District Judge in full:

“[124] I consider first the reports prepared by the Inspector General as set out above as well as the report by the Observatoire International Des Prisons. I note that these organisations are domestic institutions with responsibilities that include monitoring prison conditions.

[125] I consider whether the reports from such organisations carry such weight that I can conclude that they provide clear and compelling evidence of a violation of Article 3 rights so much so that stage 1 of the Aryanosi test is reached.

[126] I consider the bundle of authorities amounting to 706 pages of which the vast number of cited cases concern judgments on whether Article 3 rights have been breached. Mr Stansfeld submits that much has been said of the use of the phrase “international consensus” and indeed made reference to the authorities where the High Court in various cases considered the meaning of such a phrase.

[127] In Elashmawy v Italy, 2015 EWHC 28 Admin, Aitkens LJ said at §50 that:

‘The legal principles with regard to extradition, prison conditions in Contracting States to the ECHR and Member States of the EU and whether Article 3 is engaged, have been recently restated by this court in Krolik (and others) v Several Judicial Authorities in Poland [2013] 1 WLR 490. There is no need to reconsider earlier authorities in this area. We can summarise the relevant principles as follows: (1) member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary. (2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful. However, Mr Fitzgerald, for the First Interested party, questioned whether a requirement of “something like an international consensus” (see [7] of Krolik) is a useful test to apply on the question of whether the presumption had been rebutted.’

[128] In Jane v Lithuania 2018 EWHC 1122 Admin, the High Court said at §17:

‘Because of the principle of mutual trust between member states, membership of the Council of Europe is a highly relevant factor in deciding whether an extradited person would, in fact, be likely to suffer treatment contrary to article 3 if extradited to another member state, see Targosinki v Poland [2011] EWHC 312 (Admin) at paragraph 5. There is a general presumption that a member state will comply with its international obligations, including those arising from article 3 of the ECHR. That presumption may be rebutted by clear, cogent and compelling evidence, something approaching an international consensus, see Krolik v Poland [2012] EWHC 2357; [2013] 1 WLR 490 at paragraph 3. For example, if there has been a pilot judgment of the European Court of Human Rights (“ECtHR”) against the requesting state identifying structural or systemic problems the presumption will be rebutted. Such judgments have recently been issued against states including Italy and the Russian Federation. Where the presumption is rebutted, the burden of proof shifts to the requesting state, which must, on the basis of clear and cogent evidence, satisfy the Court that, in the case of the requested person, extradition will not result in a real risk of inhuman or degrading treatment.’

[129] In A v France [2021] EWHC 2543 Admin, the High Court said at §87 that:

‘First, the reference to “an internationally recognised source” has been variously interpreted. In Krolik v Poland [2012] EWHC 2357, at paragraphs 4, 6 and 7, this Court referred to the need for “clear, cogent and compelling evidence” and “something approaching an international consensus”, namely “a significant volume of reports from the Council of Europe, the UNHCR and NGOs”. In Criminal Proceedings against Aranyosi [2016] QB 921, the ECtHR expanded this category to include its own judgments and judgments of courts of the issuing state. Further, in JMB v France [2020] ECHR 91, promulgated on 30th January 2020), the ECtHR appeared to draw inferences from France’s failure to rebut what was described as the “credible and reasonably detailed” information provided by the various applicants in that case. Ms Malcolm QC for the Respondent pointed out that JMB was not a “pilot judgment”; Mr Keith QC for the Appellants characterised it as a “quasi-pilot judgment”. In our view, this terminological debate does not really assist (c.f. the decision of this Court in Brazuks v Latvia [2014] EWHC 1021 (Admin)). JMB is undoubtedly an important decision from these Appellants’ perspective because of the obvious saliency of the evidence (or perhaps the lack of it) under scrutiny…’

[130] I consider what was detailed within the reports on Bois D’Arcy and Nanterre where overcrowding and personal space were concerned.

[131] Where Bois D’Arcy was concerned, the Inspector General said that single cells have a measurement of 9.98 m2 and they have been converted into either a two person or a three-person cell thus giving 2.92 m2 space per person in a two-person cell or 1.4m2 space per person in a three-person cell. There is no information on whether the Inspector Controller had subtracted the toilet facilities as well as the furniture to arrive at this figure. I agree with Miss Bostock that the report of September 2022 bore no explanation on how those measurements were undertaken.

[132] Where Nanterre was concerned, the report was more recent and dated December 2023. At page 2321, the Inspector General said that single cells were 9.5m2 which were equipped with one or two bunk beds. Double cells that were 13.2m2 were equipped with three or four beds. She said that most prisoners would have less than 3 m2 of cell space if the sanitary facilities, equipment and furnishings were subtracted (my emphasis). She said an inmate sharing a single cell would have 2.39m2. An inmate in a double cell with two others would have 2.09m2. An inmate in a cell with three others would have a personal space of 1.57m2.

[133] In Mursic, at para 114, the Grand Chamber of the ECHR said that the in-cell sanitary facility should not be counted in the overall surface of the cell but the calculation of the available surface area should include space occupied by furniture. The Inspector General in her report of Nanterre did include the furniture or equipment and furnishings when she should not have done so.

[134] By contrast, Further Information on Nanterre was provided to and accepted by the High Court in Shumba v France ( no 2) [2018] EWHC 3130 (Admin) at §6 (ix) and (x) detailed that

‘(ix) Nanterre: there are 415 single cells measuring 8 to 9m2 excluding sanitary facilities, meaning that there is a minimum of 4m2 for the one to two detainees. The double cells measure from 10 to 11m2 excluding sanitary facilities i.e. 5m2 per person. The 57 cells (as of 27 August 2018) with three detainees have at least 3m2 per prisoner; (x) In all of these institutions, prisoners are able to move freely between furniture placed against each wall, either side of the door and window, and have a sanitary area separated from the rest of the cell by a low wall or partition.’

[135] The information provided by the Inspector General in her reports demonstrates that she has not applied Mursic correctly with these two prisons. I note that similar errors or ambiguities were apparent in previous High Court cases when such reports were relied upon to establish a breach of Article 3 rights.

[136] I agree with Miss Bostock that such reports are not an internationally recognised source. The findings of these organisations do not carry the same weight as reports from the Council of Europe, the UN Refugee Agency or UNHCR or the CPT especially when there appears to be a lack of understanding of the Mursic principles at a domestic level.”

In asking herself whether the applicant had provided clear, cogent and compelling evidence capable of rebutting the presumption operating in this case, something approaching an international consensus, the District Judge evaluated the weight she could attach to the reports from the CGPL in the context of the other evidence before the court, by reference to the applicable legal principles and by reference to the specific terms of the reports relevant to the individual prisons under consideration.

Whilst Mr Stansfeld sought in his written and oral submissions to re-do that exercise by emphasising aspects of the reports that served the applicant’s case, that exercise does not equate to a reasonably arguable case that the District Judge’s own analysis was wrong. Rather it serves to emphasise why weight is a matter for the judge. On the information available, in evaluating the weight that could be attached to the CGPL reports in deciding whether the applicant had provided clear, cogent and compelling evidence the District Judge was entitled to conclude that the CGPL had not consistently applied the same test to measure cells, that there were ambiguities in the way the cells were measured and that the approach was at times not consistent with Mursic. She was further entitled to conclude that this reduced the weight she could accord to the information from the CGPL when applying the test of clarity, cogency and compulsion.

I likewise do not consider that it is reasonably arguable that the District Judge was wrong in concluding that the CGPL was not an “internationally recognised source” or did not represent an “international consensus”. By comparison to, for example, a pilot judgment of the European Court of Human Rights against the requesting state identifying structural or systemic problems, the CGPL is the National Preventative Mechanism in France (emphasis added). It is not reasonably arguable that the District Judge was wrong to conclude that the reports relied upon by the Applicant were not from an internationally recognised source having regard to the guidance of both the ECHR and the Divisional Court.

Once again, weight is a matter for the judge who has considered all of the evidence. The District Judge was entitled to weigh the reports of the CGPL as she did for the reasons she gave when deciding whether the applicant had discharged the burden on him to rebut the presumption. In these circumstances, I am not satisfied that it is reasonably arguable that the District Judge was wrong to find that the applicant, upon whom the burden rested, had not displaced that burden with the requisite clear cogent and compelling evidence demonstrative of an ‘international consensus’. Nothing in the challenges mounted by the applicant demonstrate it would be proper for an appellate court to hear argument with a view to substituting its own view on weight to be attached to the CGPL material.

As noted, I have considered the fresh evidence comprising updated statistics in relation to the overcrowding rate in French prisons and the CPT report published on 22 January 2026 de bene esse. I am satisfied that it does not take matters any further.

The applicant contends that the evidence supports the argument that the increased overcrowding in the prison at Nanterre means detainees were being held in less than 3m² of personal space, giving rise to a presumption of an Art 3 violation. The increased overcrowding, it is said, also materially heightens the risk of a breach of Art 3 risk at the prison at Bois d’Arcy. However, as noted by Collins-Rice J when refusing permission to adduce fresh evidence on the applicant’s two applications from September 2025, having regard to the decision of the Divisional Court in A and Another at [136], evidence in respect of overcrowding generally is not determinative of the issue. Further, in the context of this case, I note that Nanterre and Bois d’Arcy were not locations visited during the CPT’s latest inspection.

Whilst not argued before the District Judge, Mr Stansfeld also now relies on behalf of the applicant on conclusions drawn in the CPT report published on 22 January 2026 with respect to Fresnes prison, in circumstances where Fresnes is one of the prisons that the applicant may be detained in during his re-trial. That argument received only brief attention in the applicant’s Skeleton Argument and oral submissions.

As set out above, I have considered the 2026 CPT report de bene esse for the purposes of determining the application for permission to appeal. When published in January 2026, the CPT report recorded “degrading” conditions at Fresnes encompassing damp, decayed and unhealthy cells and infestations of rodents and insects. The CPT report further noted that, as it had done in its 2017 report on Fresnes, that the cells at Fresnes are “about” 9m² including wash facilities and are overcrowded with bunks for three people in some of the 9m² cells, which the CPT stated equated to “just three square metres per detainee”. The occupancy rate at Fresnes was said to be approximately 148% at the time of the visit. Overall, the report noted that prison overcrowding across the French prison estate “has risen alarmingly” and the cumulative effect of those overcrowded conditions “could be tantamount to inhuman or degrading treatment”.

Whilst the 2026 CPT report was not before the District Judge, the District Judge was referred to the evidence in respect of the prison at Fresnes, including that provided by the experts Mr Arnaud and Mr Tugushi. The latter opined that Fresnes is one of eight possible remand prisons to in which the applicant might initially be sent and, if his sentence set after a re-trial is up to two years imprisonment, he might serve his sentence. Mr Tugushi stated that the occupancy rate of Fresnes as at 1 February 2025 was 151.7% and most of the prisoners were held in twos or threes in cells designed for one person and measuring 9 or 10m² including sanitary annexes. His evidence therefore broadly reflected the contents of the 2026 CPT report on the question of space. The District Judge referred in her judgment to the visit by the CPT to Fresnes between 23 September 2024 and 4 October 2024, that it recorded significant challenges linked to overcrowding at Fresnes and that the report was expected by the end of 2025.

In her judgment, the District Judge also set out the passage of the judgment in A v France at [136] regarding the significance of general evidence concerning overcrowding, in which reference is made to Shumba v France (No. 2) [2018] EWHC 3130 (Admin). The court in Shumba (No1) [2018] EWHC 1762 (Admin)had available to it the CPT report published in 2017. From the judgment, as at the date of the inspection visit in 2015 Fresnes had an occupancy rate of 150%, with many detainees held in cells of less than 10m² in groups of two or three. The Divisional Court also had other evidence before it regarding the overcrowding at Fresnes, including an Inspector General’s report that described the overcrowding as of “massive and durable character”. A report from the International Observatory of Prisons put the occupancy rate at Fresnes at 214% as at 18 April 2017. At the hearing before the Divisional Court an updated occupancy rate for Fresnes 197.1% was given.

Having requested further information from France, in Shumba (No2), the Divisional Court held at [6] that, despite concerns about overcrowding, conditions in Fresnes do not breach Art 3. The information provided by France included that the occupation rate at Fresnes was then 192%, that the appellants would spend at least their first few days at Fresnes (or Villepinte), that the likelihood of transfer depended on their prison status, and the appellants would have a minimum of 3m² excluding sanitary facilities.

I am not able to accept the submission that the 2026 CPT Report provides materially significant evidence of the worsening of conditions and overcrowding at Fresnes that clearly establishes an arguable case of a real risk of an Article 3 violation.

Once again, the District Judge was well aware that, to rebut the presumption, the applicant had to satisfy the court with clear, cogent and compelling evidence. As I have noted above, having regard to the decision of the Divisional Court in A and Another at [136], evidence in respect of overcrowding generally is not determinative of the issue. Further, and as noted in the report itself, the 2026 CPT report reflects difficulties with overcrowding and conditions that have been noted consistently in relation to Fresnes and which appeared in the expert report of Mr Tugushi provided to the District Judge.

I acknowledge that, whilst his Skeleton Argument concentrates at paragraphs [27] and [28] on the import of the overcrowding and conditions in Fresnes per se, Mr Stansfeld also suggests on behalf of the application that the CPT report for 2026 demonstrates that, if a standard 1m² is deducted for the sanitary facilities, the application would have less than 3m² of personal space, giving rise to a presumption of an article 3 violation per Muršić v Croatia. However, whilst it is the case that the report states that Fresnes provides 3m² per detainee including sanitary provision based on three people in a cell, it does not give precise measurements for the cells and in particular, it does not distinguish between the smaller single 9m² cells and the larger 10m² cells that are distinguished in previous reports with respect to Fresnes, in the report of Mr Tugushi and in the judgment in Shumba v France (No. 2) at [6].

In circumstances where, for reasons that are obvious, overcrowding per se can be no more than a general indicator of personal space, I am not satisfied that the information contained in the 2026 CPT report would have been “decisive” in the applicant’s case in that it would have resulted in the District Judge deciding the question of whether there existed with clear, cogent and compelling evidence to rebut the presumption differently. This is particularly the case where Nanterre and Bois d’Arcy were not locations visited for the CPT report and, therefore, the report could be no more in that context than further evidence of a general issue of overcrowding in the French prison system. I am also satisfied that the same conclusion pertains in relation to Fresnes, for the reasons I have set out.

For the reasons I have given, I am not satisfied that the applicant’s single ground of appeal is ‘reasonably arguable’ for the purposes of the Crim PR r. 50.17(4)(b)). In the circumstances, permission to appeal is refused.