Case No: CO/3968/2014
Neutral Citation Number: [2015] EWHC 28 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/01/2015

Before :

LORD JUSTICE AIKENS
MR JUSTICE OUSELEY
MR JUSTICE MITTING
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Between :

	MOHAMMED ELASHMAWY	Claimant	
	- and -		
	Court of Brescia, Italy

FABIO RIVA

And

Court of Taranto, Italy	Defendant

First Interested Party

Second Interested   
                   Party	
			
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Alun Jones QC and Martin Henley (instructed by Lloyds PR Solicitors) for the Claimant
John Hardy QC and Hannah Hinton (instructed by CPS Special Crime and Counter Terrorism Division) for the Defendant
Edward Fitzgerald QC and Aaron Watkins (instructed by BCL Burton Copeland) for the First Interested Party
Peter Caldwell and Saoirse Townshend (instructed by the CPS) for the Second Interested Party

Hearing dates: 05 & 06/11/2014
Further written submissions and evidence:  13 and 17/11/12.
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Judgment
Lord Justice Aikens : 
1.	This is the judgment of the court to which all of us have contributed. 
Background to the appeal: the appellant Mohammed Elashmawy.
2.	The appellant is an Egyptian national,  born on 21 March 1972.   For some years he conducted several businesses in Italy.   In 2005 Zhang Ling was employed by the appellant to work at a call centre that he ran.  She was then 15 years old.   The appellant allowed Ms Ling the use of a flat.     Ms Ling alleged that on 25 July 2005 the appellant let himself into her flat and raped her violently after he had given her a “date rape” mixture to drink so that she became incapable of defending herself against his unwanted advances.  She suffered injuries as a result of the attack.   The appellant was charged,  tried and convicted of Ms Ling’s rape at the Court in Brescia,  Italy.  The first part of the criminal procedure took place in the appellant’s absence,  although his lawyer was present.  The process led to the appellant’s conviction and a sentence of 7 years imprisonment.   The Court of Appeal of Brescia dismissed an appeal from that conviction.    Subsequently the Court of Cassation remitted the case to a different section of the Court of Appeal in order that it should hear from various defence witnesses.  However, under Italian criminal procedure the prosecution witnesses were not recalled and the appellant did not give evidence at that new hearing.   Having followed this course,  on 4 February 2011 the Court of Appeal of Brescia issued a judgment which affirmed the appellant’s conviction and imposed a sentence of 6 years 6 months imprisonment.  A further attempted appeal to the Court of Cassation was declared inadmissible on 26 October 2011.   The appellant has accepted  the conclusion of Deputy Senior District Judge Arbuthnot (“the judge”) that he is a “fugitive” from  his sentence.  All of it remains to be served.
3.	On 24 October 2013 the respondent Judicial Authority (“JA”) issued a European Arrest Warrant (“EAW”) requesting the surrender of the appellant to Italy so that he could serve his sentence.  Italy has been designated a Category 1 territory for the purposes of the Extradition Act 2003 (“the EA”) so that Part 1 of the EA applies to this case.   The EAW is what is often called a “conviction” warrant,  because it seeks the surrender of the appellant to serve a sentence for an offence of which he has been convicted and sentenced.  The EAW was certified by the National Crime Agency on 25 October 2013.   The appellant was provisionally arrested on 24 October 2013 when he was at Stansted Airport upon his arrival to the UK from Sweden.   He has remained in custody ever since then.  
4.	The appellant did not consent to his surrender to Italy and so a full extradition hearing was started by the judge on 24 January 2013.   The hearing continued over a further four days between May and August 2014.  Judgment was given by the judge on 18 August 2014.   The judge dismissed all the grounds of challenge raised by the appellant and ordered his extradition to Italy.
5.	There were before the judge and there are before us three grounds on which the appellant resists his surrender.  The first is,  (in summary),  that he was absent from his original trial in 2008,  upon the advice of his lawyer that his attendance was not necessary and that the hearing would be formal.  There were two appeals.  The appellant does not accept that he was present at the first in 2009,  but he accepts that he was present and properly represented at the second appeal before the Brescia Court of Appeal in 2011.   However,  because he was not present at the “trial” where he was convicted in 2008 and because it is accepted that he would have no right to a retrial upon his surrender to Italy,   the appellant argues that he should be discharged pursuant to section 20(7)  of the EA.    We will call this ground of appeal  “the trial in absentia ground”.   Secondly,   if this first argument does not succeed,   the appellant argues that the trial as a whole was flagrantly unfair,  because he was unable to cross-examine prosecution witnesses or otherwise challenge their evidence at any stage in the proceedings leading to his original conviction or thereafter.   Accordingly,  any surrender of the appellant to serve a sentence following a trial that was in flagrant breach of his rights under Article 6 of the European Convention on Human Rights (“ECHR” or “the Convention”) would make the surrender to serve the prison sentence a breach of his Convention rights under Article 5.   That is because the imprisonment would constitute unlawful detention as the prior trial process had been in flagrant breach of the  appellant’s Convention rights.    Therefore,  it is argued,   the appellant should be discharged pursuant to section 21(2) of the EA.   We will call this ground  of appeal “the Articles 5 and 6” ground.  
6.	The final ground of appeal is that the prison conditions in Italy are systemically so appalling that detention in them would constitute inhuman or degrading treatment or punishment, so if the appellant were surrendered to serve his sentence in an Italian prison there would be a real risk that his Article 3 ECHR rights would be infringed.   Moreover,  the various assurances given by Italian authorities as to where and in what conditions the appellant would be detained are insufficiently precise or reliable to overcome this systemic inadequacy.  Therefore the appellant should be discharged,  again  pursuant to section 21(2) of the EA.   We will call this ground of appeal “the Article 3 and prison conditions” ground. 
Background to the first interested party:  Fabio Riva.
7.	Fabio Riva,  the First Interested Party,  (“Mr Riva”) is the subject of two “accusation” EAWs issued by JAs in Italy.  The first was issued by the Court of Taranto.   That EAW seeks the surrender of Mr Riva to face a criminal prosecution in respect of alleged offences of conspiracy to commit public health and safety offences and offences against public administration and trust whilst he was Vice Chairman of the Board of Directors of Riva SpA.   Mr Riva challenged that EAW before District Judge Zani on several grounds.  One of them was the Article 3/ prison conditions ground.    District Judge Zani promulgated his Ruling on 26 February 2014.   He rejected all the challenges made to what has been called “the Taranto EAW”.     In relation to the  Article 3/prison conditions ground DJ Zani heard expert evidence.  He concluded that “the Italian authorities are not only well aware of their Convention obligations but that they will abide by them”:   para 167.  
8.	The second EAW was issued by the Court of Milan: “the Milan EAW”.  That is also challenged.   A full extradition hearing before the Magistrates’ Court is pending.   The Milan EAW is also challenged by Mr Riva on the Article 3/ prison conditions ground.   
9.	At a case management hearing on 6 October 2014,  Aikens LJ ordered that the parties in the appeal of Riva against the Court of Taranto should be joined as Interested Parties in the appeal of the appellant Elashmawy,  in order that counsel acting respectively for Mr Riva and the Court of Taranto could present arguments on the legal principles and the facts concerning the Article 3/ prison condition issue.   There are other issues in the Taranto EAW appeal,  but they were not the subject of argument at the hearing of Mohammed Elashmawy’s appeal.    Meanwhile proceedings in the  Milan EAW case have been stayed pending the outcome of this appeal.
10.	On 5 and 6 November 2014,  we heard oral argument from Mr Alun Jones QC and Mr Edward Fitzgerald QC on behalf, respectively, of the appellant Elashmawy and the First Interested Party,  Mr Riva,  Mr John Hardy QC on behalf of the respondent and Mr Peter Caldwell on behalf of the Second Interested Party.    Mr Jones complained that some material relied on by the respondent had been produced for the first time at the appeal before this court and also that it had been served on the appellant very late.   We ordered that Mr Jones could make further written submissions on the new material and adduce further evidence if so advised and that Mr Hardy could respond to that,  in accordance within a timetable that we laid down.   
11.	We therefore reserved judgment.
The history of the criminal proceedings in Italy against the appellant in more detail.
12.	The history of the proceedings,  as found by the judge and as supplemented by the material which we were shown (without objection),  is as follows:  there were preliminary investigations by the Italian authorities until June 2006.  On 11 June 2006  a notice of their conclusion (in Italian) was given to the appellant at a police station and he signed it.   Before the judge there was a dispute about whether the appellant had signed that document and whether he understood it.  The judge dismissed the appellant’s allegation that the Italian authorities had forged his signature and she found that he understood the document.  There is no appeal from those conclusions.    The document set out the allegations against the appellant,  required him to state an address for the service of documents,   informed him that he should appoint a lawyer to defend himself or,  if not,  one would be appointed for him and also stated that he and his lawyers could view and copy the evidence obtained by the Public Prosecutor.   The document indicated that the appellant had a right to an interpreter.  From that point onwards the appellant formally acquired the status of “defendant”.   The judgment of the Court at Brescia following the hearing on 14 February 2008 stated that the appellant “had nothing to say during the investigation stage”.
13.	The judge also found that the appellant’s main defence to the charge had been one of alibi.  The judge found that one of the rights indicated in the document handed to the appellant on 11 June 2006 was that he could render declarations to the Public Prosecutor and could provide a list of alibi witnesses. 
14.	Until the first court hearing of the Brescia Court in February 2008 the appellant was represented by his company lawyer, Avv. Canali.  As part of the preparation for the trial,  the defence team was required to serve a list of the witnesses that it wished to call.  The judge found (para 61) that Avv Canali had pressed his client three times during 2007 to produce a list of alibi witnesses,  but the appellant had not provided it.  The appellant was also pressed for the list at a meeting on 4 February 2008 between the appellant, Avv Canali and Avv Pollini.  (The latter advocate was,  however,  only formally instructed by the appellant in June 2008,  that is after the first court hearing).   In the result,  no list of defence witnesses was served until after the deadline for doing so had been passed.   
15.	The first hearing of the Court in Brescia took place on 14 February 2008.   Mr Canali did not attend, but  instead sent along another lawyer,   whom the judge characterised as “inexperienced and ill-prepared”:  see judge’s ruling para 69.  The appellant was informed (by Avv Canali) that he need not attend the hearing.   He was not informed that defence witnesses needed to be present that day or that he could give evidence himself.    The judge found: “it was [the appellant’s] choice not to attend but I accept that his lawyer was negligent and was rightly reprimanded for not knowing that it was an important hearing at which the prosecution witnesses would be heard”: para 68.   At the February 2008 hearing the complainant’s evidence was examined by the court in detail.  The appellant’s lawyer did not have a copy of the prosecution evidence in her possession at that hearing and she did not cross-examine the prosecution witnesses who gave evidence.  The judge commented,  perceptively, that as the appellant’s defence was alibi,   any cross examination of the complainant and other witnesses would have been short and,  essentially,  limited to the suggestion that someone else had been responsible for the rape and the complainant’s injuries that were found by the doctor.     
16.	The judgment of the Court at Brescia found that the facts gathered at the preliminary investigation stage were “fully sufficient” to demonstrate the allegation against the appellant.   It held that the complainant’s  account passed “the credibility and reliability tests to which it was necessarily subjected” and that her evidence was also supported by “external corrobatory (sic) facts”.    The court described the evidence of the specialist sexual offences doctor who had examined the complainant some 34 hours after the incident as being “irreproachable testimony”.   The court accepted the doctor’s findings of an “array” of injuries which were “completely inconsistent with consensual sexual relations”.  The complainant’s mother had also given evidence,  of what in England and Wales would be called “recent complaint”.    At various points in the judgment the court commented on the fact that the evidence of the doctor was not challenged;  that the appellant was not present at the hearing and that “no alternative version as a defence” was presented by the appellant  “during the trial”.  It sentenced the appellant to 7 years imprisonment.   The judge concluded that the court “came to conclusions that were open to it on the evidence they had heard”:  para 69.  
17.	The appellant then appealed the Court of Brescia’s decision,  on the ground that the incompetence of his legal representation meant that he had not been able to present his defence properly.   It was said that the appellant had wished to call six witnesses who could prove his alibi.    On 1 October 2009 the Criminal Division of the Brescia Court of Appeal dismissed the appeal and confirmed the judgment of 14 February 2008.   However,  in a judgment of 13 May 2010,  the Court of Cassation overturned the appeal court’s decision and referred the matter back to a different division of the Brescia Court of Appeal.  At the hearing before the latter court the appellant was represented by two lawyers:  Avv Boni and Avv Pollini.  
18.	The judgment of the Brescia Court of Appeal,  Criminal Division 2 (the “second appeal”) was given on 4 February 2011.   This noted that,  before the Court of Cassation,  “the appellant had not proposed any reconstruction of the facts as an alternative to that which had been put forward…but had wanted to prove – by means of witnesses – that he was not the perpetrator of the actions in question”.   At this second appeal the Brescia Court of Appeal heard evidence from three defence witnesses but not the appellant himself.    It did not rehear any evidence either from prosecution witnesses or from the complainant herself.   It had transcripts of her evidence and that of the doctor,  neither of whom,   of course,  had been cross-examined at the original hearing in 2008.  
19.	The court rejected the second appeal.  It said that its conclusion had been “reached objectively after a careful and comparative critical assessment of the statements provided by the injured party and those provided by the witnesses named for the defence”.   The court characterised the narrative of the complainant as being “absolutely linear, [and] devoid of any intrinsic contradictions”.  The court reviewed the complainant’s evidence,  that of the doctor’s examination of the complainant and that of the mother.  It concluded that this “hefty probative compendium” led to the “reasonable belief that a non-consensual sexual act [had] taken place”.  Given that the appellant did not seek to challenge that underlying conclusion,  the court held that: 
“…any verification process set against the established credibility of the injured party in terms of the material nature of the [behaviour] perpetrated against her,  must,  therefore be aimed at subjecting the statements given by the witnesses for the defence to particularly rigorous scrutiny….precisely because the sexual assault and, consequently,  the reliability of the young girl on the point [of the sexual attack] cannot be challenged objectively here in order to discredit her with reference to the attribution of the said assault to the conduct of the accused,  any evidence for the defence requested in this regard must be rock solid and reassuring”.  
20.	The Court then considered the evidence of the witnesses tendered by the defence,  which was aimed at demonstrating that the appellant was,  throughout the evening and night of the assault,  at the home of a friend celebrating the Egyptian national holiday.  The Court held that this evidence had to be “subjected to careful and watchful critical assessment”.  It concluded that the evidence was not reliable,  was contradictory and suggested conduct on the part of the appellant “which is barely plausible”.   It also concluded that two of the witnesses had colluded in reconstructing an episode “in terms ever more favourable” to the appellant.   The Court therefore rejected the alibi evidence and the appeal on conviction.  However,  it allowed an appeal on sentence,  which was reduced to 6 years 6 months.  This judgment became final on 26 November 2011.  
Ground 1:  trial “in absentia”.  The arguments,  analysis and conclusion. 
21.	On behalf of the appellant,  Mr Alun Jones QC submitted that the “trial” of the appellant consisted of the hearing before the Court at Brescia resulting in the judgment of 14 February 2008,  by which the appellant was convicted.  As a result of the negligence of the appellant’s legal team the appellant was not told that the hearing would be an effective one at which prosecution witnesses would be called and could be cross-examined;  that  defence witnesses should be present and that he,  the appellant,  should also be present and give evidence if he wished to do so.   The result was that the appellant was not present at his trial,  but,  equally importantly,  the evidence of the complainant,  the doctor and the other prosecution witnesses was untested.   Mr Jones relied upon a report prepared by the Bergamo Bar Association which criticised the conduct of the appellant’s company lawyer,  Avv Canali,  and which found that he had acted negligently and so was to be reprimanded.   Mr Jones also submitted that the JA was bound by the statement in box (d) of the EAW that the “decision was rendered in absentia”.  Further,  because the appellant had been materially misinformed about the nature of the hearing in 2008,  his absence was not deliberate. 
22.	On behalf of the respondent JA,  Mr John Hardy QC accepted that the appellant was not physically present at what he described as “the first stage of the trial process”.    The result of the appeal process was that the trial was re-opened and the appellant was effectively present at all the stages after the first one.  Upon authority the “trial” constituted the whole process from beginning to end.  The appellant was either present or was,  for the first hearing,  deliberately absent,  as the judge below found.   
23.	Section 20 of the EA provides:  
“20. Case where a person has been convicted.
(1)	If the judge is required to proceed under this section (by virtue of Section 11) he must decide whether the person was convicted in his presence.
(2)	If the judge decides the question in sub-section (1) in the affirmative he must proceed under Section 21.
(3)	If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4)	If the judge decides the question in sub-section (3) in the affirmative he must proceed under Section 21.
(5)	If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6)	If the judge decides the question in sub-section (5) in the affirmative he must proceed under Section 21.
(7)	If the judge decides that question in the negative he must order the person’s discharge…”
24.	Section 20 was enacted to give effect to Article 5.1 of Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between member states (2002/584/JHA), which we will call “the FD 2002”.  Article 5.1 stated:
“The execution of the European Arrest Warrant by the executing judicial authority may, by the law of the executing member state, be subject to the following conditions:
1.	Where the European Arrest Warrant has been issued for the purpose of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European Arrest Warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment.”
25.	Article 5.1 was deleted with effect from 28 March 2009 by Article 2.2 of Council Framework Decision 2009/299/JHA of 26 February 2009,  which we will call “FD 2009”.   However,  that was not before Article 5.1 was able to provide assistance for the House of Lords on the nature of the Italian criminal process in Caldarelli v. Court of Naples Italy [2008] 1 WLR 1724.  An Italian judge had issued an “accusation warrant” in a case in which the requested person had been tried and convicted of a drug offence by the First Criminal Section of the Court of Naples and he had then appealed.  At the time of the extradition hearing his appeal remained outstanding.  Under Italian law the first-instance judgment and the sentence were neither final nor enforceable until the criminal appeal process had been concluded.  The House of Lords held that the requesting authority was right to issue an accusation EAW (i.e. one which contained the statement and information required by section 2(3) and (4) of the EA) and not a conviction EAW (i.e. one which contained the statement and information required by section 2(5) and (6)).  Lord Bingham of Cornhill explained why at [24]: 
“Here, as is common ground, the foreign judge has treated the appellant as an accused and not a convicted person.  This seems strange to an English lawyer, familiar with a procedure by which a defendant sentenced to imprisonment at the end of a jury trial goes down the steps from the dock to the cells.  But such is not the practice in Italy where the trial is indeed a continuing process, not yet finally completed in this case, and not an event.”
26.	It is not suggested that Italian criminal procedure has changed materially since the decision of the House of Lords in Caldarelli.  English extradition law has changed, but only marginally.  Section 2(5)(a) of the EA as originally enacted and as considered by the House of Lords in Caldarelli provided: 
“The statement is one that – (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant…”
Since 15 January 2007, the words “is alleged to be unlawfully at large after conviction” have been deleted and “has been convicted” inserted.  So section 2(5)(a) now reads:  
“The statement is one that –
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant…”
We are satisfied that the change in wording has not produced any material change in meaning: what would have been recognised as a “conviction” before the change is now what is comprised in the phrase “has been convicted”.
27.	It seems that the House of Lords in Caldarelli was not referred to observations of this Court in Government of Albania v Bleta  [2005] 1 WLR 3576.   That  was a Part 2 case.  It turned upon a different question,  which was whether or not a requested person who had fled before criminal proceedings were in train had deliberately absented himself from trial under section 85(3) of the EA,  which is the equivalent,  in a case governed by Part 2 of the EA,  of section 20(3) in a Part 1 case.  At paragraph 48F, Pill LJ, with whom Cox J agreed, said: 
“The expression “his trial” contemplates a specific event and not the entire legal process.”
In our view, despite the fact that Bleta was not cited in Caldarelli, we are bound by, and would in any event,  follow the reasoning of Lord Bingham in Caldarelli.   This means that we must acknowledge that a criminal “trial” in a civil law system such as that obtaining in Italy “is indeed a continuing process”.
28.	On the facts of the appellant’s case, that process started when the appellant was served with notice of the conclusion of the investigations on 11 June 2006, which was when the appellant was given the status of “defendant”.  It was concluded when the judgment of the Court of Appeal of Brescia in the second appeal became final on 26 November 2011,  as is stated in box (b) of the EAW.  
29.	Mr. Jones submitted that the word “convicted” in section 20(1) does not necessarily have the same meaning as the same word in section 2(5)(a).  To a very limited extent, we accept that submission. Section 2(5)(a) (and section 11(4)) identify the precise date on which a requested person ceases to be an accused person and becomes a convicted person, by reference to a single event – typically the judgment of a Court becoming final. It is obvious that the draftsman cannot have meant in section 20(1) that a requested person who had been absent throughout criminal proceedings which resulted in his conviction would nevertheless to be treated as having been convicted in his presence, if, by chance, he happened to be present when the decision announcing his conviction was handed down or he was present (only) at the time of taking the administrative step of issuing a document recording the fact that his conviction had become final.  The meaning of “convicted” in section 20(1) must draw some colour from the now deleted Article 5.1 of the FD 2002, which required that the requested person be summoned in person or otherwise informed of the date and place “of the hearing which led to the decision” i.e. the substantive hearing on the merits, in consequence of which the final decision to convict was made.
30.	On the facts found by the Judge, “the hearing which led to the decision” was the second appeal hearing before the Brescia Court of Appeal in February 2011.  It is not disputed that at that hearing the appellant was present, and that  at that hearing some at least of the alibi witnesses upon whom he wished to rely were examined and cross-examined.  
31.	Mr. Jones submitted that the judge was not entitled to reach that conclusion, because of the description of the proceedings in box (d) of the EAW and the course which the proceedings in fact took.  The EAW is not easy to construe unaided.  In box (b) it identifies the enforceable judgment as that issued by the office of the Prosecutor General of Brescia “regarding the judgment number 222/2011 delivered by the Court of Appeal of Brescia on 22/3/2011 (final on 26/11/2011).”  If the wording had stopped there, it would have been plain, beyond argument, that the hearing which resulted in the conviction of the appellant was the second appeal.  But, Mr. Jones argued, that impression is dispelled by box [d], 
“Decision rendered in absentia and:
X the person concerned has been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia”.
That is clearly a reference to the hearing at first instance on 14 February 2008.  We accept that these two entries create an ambiguity which, under Article 15.2 of the FD 2002 Framework, the executing judicial authority (i.e. the UK judicial authority) was entitled to ask the requesting judicial authority to clarify.  The Italian Prosecutor General did so in his note of 13 January 2013.  That note made the position clear: the appellant was notified, at the home address which he had given, of the “first instance trial date” and, in any event knew it, because he maintained that he had not attended it on his lawyer’s advice.  The note of 13 January 2013 said that the appellant attended both appeals,  but on the Judge’s findings he did not attend the first appeal,  although as a matter of his own choice. 
32.	What the requesting JA was seeking to do in box [d] of the EAW was to preclude any submission that Article 4(a) of the FD 2002, inserted by Article 2.1 of the FD 2009,  would permit the United Kingdom to refuse to surrender the appellant.   Article 4(a) of the FD 2002 provides:  
“Decisions rendered following a trial at which the person did not appear in person
1.	The executing judicial authority may also refuse to execute the European Arrest Warrant issued for the purpose of executing a custodial sentence or detention order if the person did not appear in person at the trial resulting in the decision unless the European Arrest Warrant states that the person in accordance with further procedural requirements defined in the national law of the issuing member state:
a)	In due time:
i)	either was summoned in person and thereby informed of the scheduled date and place of the trial which resulted in the decision, or by other means actually received official information of the scheduled date and place of that trial in such a manner that it was unequivocally established that he or she was aware of the scheduled trial;
and
ii)	he was informed that the decision may be handed down if he or she did not appear for the trial;
or
b)	being aware of the scheduled trial, had given a mandate to a legal counsellor, who was either appointed by the person concerned or by the state to defend him or her at the trial and was indeed defended by that counsellor at the trial…”
Thus the requesting JA was saying that the appellant had attended two of the substantive hearings constituting the criminal process and had been duly summoned to attend the third, (although the first in time),  but had deliberately decided not to.    The FD 2009 is not a part of UK domestic law and the EA precedes it,  but,  in our view,  the construction which we give to section 20 does not contradict anything in the new Article 4(a) of the FD 2002.
33.	On the basis that what must be established is that the appellant attended the substantive hearing which resulted in his conviction,  viz.  the second appeal,  the appellant was “convicted in his presence” for the purpose of section 20(1) of the EA.  If he was convicted in his presence,  it is still open to the requested person to argue that his rights under Article 5 ECHR would be infringed if he were to be surrendered to serve a sentence of imprisonment following a trial that involved a flagrant breach of Article 6 of the ECHR:  that is one of the issues which an extradition judge may be required to address next under section 21.  However, that is a different point.  
34.	If our construction of the words “was convicted in his presence” in section 20(1)  is too narrow,  then it is necessary to consider the whole process which resulted in the appellant’s conviction.  As already stated, it involved three substantive hearings.  It is not disputed that he did not attend the first instance hearing in 2008, even though he was notified of it.  The judge found that “it was [the appellant’s] choice not to attend”, although she accepted that his lawyer was negligent and was rightly reprimanded for not knowing it was an important hearing at which prosecution witnesses would be heard.  There was a dispute about whether or not the appellant attended the first appeal in 2009.  In paragraph 13 of his witness statement of 18 December 2013, prepared for the purposes of the extradition hearing, the appellant said that he had attended that hearing.  The lawyer that represented him on that occasion, Avv Pollini,  confirmed in his evidence that the appellant had attended it.  When the appellant gave evidence in the extradition hearing (after Avv Pollini) he said,  for the first time,  that he had not done so.  The  judge was prepared to accept that he had not done so, because Avv Pollini sent a note to say that he had been mistaken.  Nevertheless, the judge did not believe the appellant’s evidence that he had not been informed of the hearing and she was satisfied that Avv Pollini must have told him about the appeal date.  On the Judge’s finding, it therefore follows that the appellant was deliberately absent from that first appeal hearing.  As already noted, he was present at the second appeal hearing in 2011; and the judge found that he could have participated personally in that hearing had he wished to do so.
35.	On the judge’s findings, which we accept, the appellant was present at the final determinative substantive hearing and deliberately absent from the first and second.  There appears to be some possible conflict in the approach of this court to a case where a requested person has deliberately absented himself on the advice of his lawyer.  In Deputy Public Prosecutor of the Court of Appeal of Montpelier v Wade [2006] EWHC 1909 (Admin),  the requested person had attended his first instance trial and had been acquitted and then had been dissuaded from attending the hearing of a prosecution appeal on the erroneous advice of his lawyer.   He was held not to be deliberately absent from the prosecutor’s appeal.   In Atkinson v Supreme Court of Cyprus [2010] 1 WLR 570,  the requested persons did not attend a prosecutor’s appeal against acquittal because their lawyer had advised that prosecutor’s appeal was hopeless,  but their lawyer did attend.   Collins J (with whom Maurice Kay LJ agreed) held that a person was deliberately absent if he made a conscious decision not to attend even if that conscious decision was based on erroneous advice or information from his lawyer:  see [24].   We find the reasoning in Atkinson more persuasive.   On the facts of this case, the appellant had no reason to be confident that the summons to attend the first instance hearing did not mean what it said.  He did deliberately absent himself from that hearing.  
36.	In a case involving more than one substantive hearing which together constitutes the “trial”,  an extradition judge may not be able to answer the simple binary questions posed by section 20(1)(iv), but may have to give a compendious answer.  If so, on the facts of this case, the compendious answer had to be that the appellant attended the determinative part of his “trial” but deliberately absented himself from the remainder.
37.	We therefore dismiss this ground of appeal.  
Ground 2:  Articles 5 and 6.  The argument,  analysis and conclusion.
38.	The appellant’s case before the judge and in his written submissions was that she should have ordered his discharge under section 21(2) of the EA because his right to a fair trial under Article 6 had been infringed.  Mr. Jones now accepts that this was an inapt way of framing the challenge.  In a “foreign” case such as this, the test is whether or not a person facing extradition or deportation “risked suffering a flagrant denial of justice in the requesting country”:  see the judgment of the European Court of Human Rights (“ECtHR”) in:  Othman v. UK [2012] 55 EHRR 1 at [258], applying the principle first established in an extradition case, Soering v. UK [1989] 11 EHRR 439 at [113].  However, even this principle is not directly relevant because there is no question of a retrial in Italy.  That does not mean that a requested person whose extradition is sought on a “conviction” EAW to serve a term of imprisonment imposed after a “flagrantly unfair” trial is without recourse.  He may be able to establish a breach of Article 5. Thus:   
“A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial.” (See: Othman [233]).
It is clear that the requested person must establish that his trial was flagrantly unfair, not merely that it contravened Article 6.  Mr. Jones expressly accepted as much in his argument before us.  
39.	Article 6 provides: 
“Article 6 – Right to a fair trial
(1)	In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
(2)	Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
(3)	Everyone charged with a criminal offence has the following minimum rights:
(a)	to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)	to have adequate time and facilities for the preparation of his defence;
(c)	to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d)	to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e)	to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
40.	In this appeal, Mr Jones focussed upon Article 6(3)(d) and, to a lesser extent,  Article 6(2)  and Article 6(3)(c).  He submitted that the appellant was not afforded the right to examine or have examined the witnesses against him, the complainant and the doctor (Dr. Kustermann) and to obtain the attendance and examination of witnesses on his behalf under the same conditions in which the witnesses against him had been heard.  He also submitted that at the second appeal, the burden of proof was reversed,  because,  effectively,  it was up to the appellant to prove his alibi  in order to demonstrate that he did not commit the rape.  
41.	There is nothing in any of these complaints.  The appellant had chosen Mr Canali to represent him.   Mr Canali left the first hearing to an inexperienced lawyer.   That was not as a result of any default by the Italian State,  but,  if anything,  was the result of Mr Canali’s decision.   If there is a point at all it is on Article 6(3)(d).   It is the obligation of a contracting state under Article 6(3)(d) to give an accused person the opportunity to examine or have examined the witnesses that are against him.  Thus, a conviction based solely or to a decisive degree on depositions made by a person when that opportunity has not been afforded is incompatible with Article 6: see the judgment of the ECtHR in PS v Germany [2003] 36 EHRR 61 at [24].  In this case, the appellant was afforded that opportunity at the first hearing in 2008 but, for the reasons explained by the judge, he did not take it.  There was no lack of opportunity for the appellant to cross-examine witnesses;  to call his own witnesses (including alibi witnesses) and to give evidence himself.  Any negligence on the part of the lawyer does not erase the fact that the opportunity existed.   Given the opportunities, there could be no breach of Article 6(3)(d) by the Italian State.  The Judge’s conclusion that there was a breach of Article 6 was,  with respect,  wrong.   Thereafter, there was no further obligation on the Italian judicial authorities to afford the appellant and his lawyers a second opportunity to cross-examine the complainant, whom the judicial authorities were entitled to treat as a vulnerable young woman.
42.	Nor was there any infringement of the appellant’s rights to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.  Mr. Jones complains that his alibi witnesses were not questioned before a court until 5 ½ years after the event, unlike the complainant, who was questioned 2 ½ years after it.  It is, of course, true that the alibi witnesses were not questioned until February 2011, but, for the reasons given by the judge, that was entirely the responsibility of the appellant and his lawyers.  He could  (and should) have provided the names of his witnesses to his own lawyer  in good time to enable him to give the names to the Public Prosecutor within the timetable allowed and then made the witnesses available for questioning before the first hearing,  thereby securing the admission of their evidence at that hearing.  Whether the failure to give the names of witnesses was the fault of the appellant, his lawyer or both,  is not to the point.  The Italian judicial authorities themselves were not in breach of Article 6(3)(d), because they afforded every opportunity to the appellant to have his witnesses examined under the same conditions and witnesses against him.  
43.	Before the judge, the appellant contended that he was not able to give evidence in his own defence.  She rejected that submission and it has not been pursued on appeal.  It is, however, to be noted that if he had given evidence in accordance with his proof of evidence dated 18 December 2013, he would have undermined the alibi evidence which he called.  Far from leaving his friend’s home between 5 and 9 am on 23 July 2005 to go to Milan Malpensa Airport to collect his cousin as they said, he stated: 
“I left about midday on 23rd and returned to my place of work.   I went straight to the call centre, this was the first thing I did after leaving my friend’s house.”
He then gave a detailed description of what he found when he arrived there – no complainant and  €2000 worth of calling cards missing.  
44.	As to the allegation that the Brescia Court of Appeal at the second appeal hearing reversed the burden of proof, this is an unfair reading of the reasoned judgment of the court.  All that it did was to subject the alibi evidence to critical scrutiny and conclude, as it was entitled to do, that it contained inconsistencies and contradictions which undermined that evidence and that the alibi evidence supported an implausible proposition,  viz.  that the appellant would have slept on a sofa at his friend’s home, rather than in a bed at his own home which was significantly nearer to the airport.  
45.	Even if it were possible to discern one or more respects in which the detailed requirements of Article 6 had been infringed at some stage in the proceedings, it would be impossible to conclude that any infringements were, taken as a whole, in flagrant breach of Article 6. 
46.	Accordingly,  we must reject this ground of appeal also.   
Ground 3:  Article 3 and prison conditions in Italy.
47.	This ground potentially raises points of importance concerning the circumstances in which a requested person can raise allegations of poor prison conditions and  breach of Article 3 as a bar to surrender to a Part 1 territory and the extent to which problems of prison conditions in a requesting Part 1 JA can be overcome by particular assurances that are proffered on behalf of the requesting JA.    We will start with some general legal propositions.  Then we will consider the factual situation concerning prison conditions Italy as it is today.  Under this heading we will have to consider the extent to which the JA can adduce “new evidence” that was not before the judge.   Finally we will give our conclusions on the arguments raised.   Insofar as we reach conclusions of law they will bind the First and Second Interested parties in this court;  as will our conclusions on facts concerning the situation in the Italian prison estate as it appears to us from the material put before us at the hearing and thereafter in written submissions. 
Article 3 and prison conditions:  the legal framework
48.	Article 3 of the Convention provides:  
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
49.	A number of general propositions are very well established by ECtHR case law and accepted by the courts of England and Wales in relation to Article 3 and its application to prison conditions in the context of extradition.   We think that they can be summarised as follows:  (1)  the extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue,  which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought.    (2)  If it is shown that there are substantial grounds for believing that the requested person would face a “real risk” of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person.   (3)   Article 3 imposes “absolute” rights,  but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity.  In general,  a very strong case is required to make good a violation of Article 3.  The test is a stringent one and it is not easy to satisfy.   (4)  Whether the minimum level is attained in a particular case depends on all the circumstances,  such as the nature of the treatment,  its duration,  its physical and mental effects and, possibly, the age, sex and health of the person concerned.   In that sense,  the test of whether there has been a breach of Article 3 in a particular case  is “relative”.   (5)  The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention.  But lawful detention does not deprive a person of his Article 3 rights.  Indeed,  Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity,  that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention.    The health and welfare of prisoners must be adequately assured.   (6)    If it is alleged that the conditions of detention infringe Article 3,  it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant.   (7)  Where prison overcrowding reaches a certain level,  lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3.   As a general rule, if the area for personal space is less than 3 metres2 , the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3: (see the ECtHR judgment of Ananyev v Russia (Applications Nos 425/07 and 60800/080910) of January 2012,  referred to at [9] of Florea v Romania [2014] EWHC 3538 (Admin)(“Florea”).   (8) However,  if overcrowding itself is not sufficient to engage Article 3,  other aspects of the conditions of detention will be taken into account to see if there has been a breach.   Factors may include:  the availability for use of private lavatories,  available ventilation,  natural light and air,  heating,  and other basic health requirements.  
50.	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. 
Prison conditions in Italy:  the ECtHR’s  “pilot judgment” in Torregianni.
51.	Italy is,  of course,  a founding member of the Council of Europe and what is now the European Union.  The principles set out in the two preceding paragraphs therefore apply with full force to allegations concerning prison conditions in that country and whether they are a bar to extradition from the UK under either type of  EAW (“accusation or “conviction”).     However,  there can be no dispute that in recent years there have been very considerable concerns about the conditions for prisoners in (at least) certain Italian prisons.   This is evidenced by the fact that the ECtHR  invoked the “pilot judgment” procedure in respect of seven applicants who all complained about the conditions under which they had each been held in two Italian prisons:  Busto Arsizio and Piacenza.   This resulted in the decision in Torreggiani and others v Italy (2009) App. No 43517/09 (“Torreggiani”).  In its judgment in that case the ECtHR noted,  at [89],  that there were “several hundreds” of requests directed against Italy which all alleged a breach of Article 3 “for inadequate conditions of detention related to overcrowding in different Italian prisons” which were pending before the Court;  and it noted that the number was increasing.      
52.	The ECtHR introduced the “pilot judgment” procedure  (which was codified in the new Rule 61 in 2011)  to deal with situations “where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given or may give rise to similar applications”:  Rule 61(1).    Rule 61(3) stipulates that if the ECtHR decides to adopt the “pilot judgment” procedure in a particular case then in the “pilot judgment” itself the Court must “identify both the nature of the structural or systemic problem or other dysfunction as established” and it must also identify “the type of remedial measures which the Contracting Party concerned is required to take at the domestic level”  as a result of the judgment. 
53.	In Torreggiani  the ECtHR was concerned with two issues:  first,  whether the applicants were detained in the two prisons for long periods in conditions that were contrary to Article 3.  Secondly,  if that were so,  whether Italy had “effective remedies” in the sense that it had effective means “in practice” to avoid prisoners from continuing to be detained in conditions that were contrary to Article 3 and to ensure an applicant’s physical conditions of detention.   In relation to the first issue,  the main argument concerned alleged overcrowding in prison cells.    The applicants said that they shared cells with two other occupants and the total space was 9m2 which included the space taken up by furniture,  so the net “living area” for each prisoner was less than 3m2 .  The ECtHR concluded that the applicants “did not benefit from a living area consistent with the criteria that it has considered acceptable in its case-law”,  the norm for “habitable space in collective cells” being 4m2 per person:  see [76].   This situation was “further aggravated” by other factors:  the lack of hot water in the two institutions for long periods (which the government recognised) and insufficient lighting and ventilation in the cells in Piacenza prison:  see [77].   The Court concluded that there had therefore been a breach of Article 3 of the Convention in the case of all the applicants:  see [78].   It went on to hold that there was “structural and systemic” prison overcrowding,  which was the result of “a chronic malfunction particular to the Italian penitentiary system which has affected and is likely to affect again in the future many people”,  which overcrowding was “a practice incompatible with the Convention”:  see [87] and [88].   
54.	The ECtHR then had to consider the consequences of this conclusion.    It noted that,  under Article 46 of the ECHR,  a defendant state had the legal obligation,  under the control of the Committee of Ministers,  to implement the general or individual remedies necessary “to safeguard the applicant’s rights of which the Court has found the infringement”.   Such measures had to be taken in respect of any other persons in the same situation as the applicant:  see [83].   This applied to a “pilot judgment” where the Court had to identify clearly “the existence of the structural problems behind the infringements and indicate the particular measures or actions that the defendant State will have to take to deal with them”.   However,  in adopting this approach,  the Court had to take “due account of the respective powers of the organs of the Convention”,  noting that under Article 46(2) it was for the Committee of Ministers to evaluate the implementation of individual or general measures taken in execution of the Court’s judgment.
55.	The Court recalled that its judgments were declaratory and that,  whilst it could encourage a state to take various steps to deal with the problems highlighted in the case,  it could not advise States on either their penal policies or the organisation of their prison systems:  see [91]-[94].   The State had to provide “internal remedies”,  which would be “preventative”,  in the sense of enabling prisoners to be detained in future in conditions which did not breach Article 3 and “compensatory” in the sense of compensating prisoners for past breaches:  see [97].   
56.	 The conclusion of the court is recorded at [99] which,  in the English language version,  is somewhat incoherent in part and at odds with the original French language version.  We have attempted to retranslate the French language version  as follows:  
“[The Court] concludes that the national authorities must,  without delay,  put in place a remedy or a combination of remedies,  both  preventative and compensatory,   which genuinely guarantee effective redress for the violations of the Convention resulting from prison overcrowding in Italy.  The remedy(ies) must conform to the principles of the Convention,  as contained in particular in this judgment (see inter alia paragraphs 50 and 95 above) and be introduced within one year of the date on which this judgment becomes definitive…”
57.	Then,  in [101] of the judgment,  the Court decided to adjourn all cases which were only concerned with allegations of prison overcrowding and had not yet been communicated to Italy,  as defendant State.  But others which had been communicated to Italy would continue to be dealt with.   The Court also awarded sums of damages to the seven applicants.
58.	The upshot of the decision,  therefore,  is that the ECtHR found that there was prison overcrowding in Italy of a “structural and systemic nature”,  resulting from a “chronic malfunction” of the Italian penitentiary system.  The Court gave Italy one year to instigate effective “internal remedies”,  by which it meant a system whereby any prisoner whose complaint of overcrowded prison conditions that were in breach of Article 3 could have an effective remedy.   The ECtHR noted that there was no effective remedy at present because,   although a prisoner could complain to the sentencing judge under articles of the Law concerning the prison service,  that appeal was ineffective because “it does not make possible a quick end to imprisonment in conditions contrary to Article 3 of the Convention”:  see [55] and [97].    Nor could prisoners who suffered non-compliant imprisonment obtain any form of compensation for the infringement suffered:  [97].    
59.	In paragraph 4 of its formal ruling the ECtHR stipulated that:
“the defendant State will,  within the period of one year from the date of this judgment becoming definitive…establish one or more internal reorganisation plans to provide adequate and sufficient redress for cases of prison overcrowding,  in accordance with the principles of the Convention as established in the case law of the Court”.
	In short,  Italy was given one year in which to provide effective mechanisms whereby any prisoner who complained that the prison conditions under which he was detained were contrary to Article 3 could seek redress through legal proceedings and be sure that if he his complaint was upheld he would thereafter be detained in Article 3 compliant conditions.   Italy’s application to refer the matter to the Grand Chamber was refused so that the judgment became final on 27 May 2013,  that is just over 18 months ago.  
The Divisional Court decisions in Badre v Court of Florence,  Italy [2014] EWHC 614 (Admin) (“Badre”) and the Florea case.
60.	This case followed Torreggiani and indicated the approach that the English court could take to the argument that a person should not be surrendered under an EAW to Italy to face the prospect of being detained in an Italian prison.  An “accusation” EAW issued by the Court of Florence sought the surrender of Hayle Abdi Badre  to face one charge of “unauthorised financial activity”.   Mr Badre challenged the EAW on several grounds, but the only relevant one is that his surrender would constitute a breach of his Article 3 rights “in view of the prevailing prison conditions in Italy (see Torreggiani v Italy)”:  [2] of the judgment of McCombe LJ.   The appeal was allowed on two grounds,  one of which was the “Article 3 and prison conditions” ground.  McCombe LJ gave the principal judgment. 
61.	At [36] and following,  McCombe LJ referred to the ECtHR’s decision in Torreggiani.  He held,  at [43],  that the judgment provided,  in relation to prison conditions and compliance with Article 3,  “…a very clear rebuttal of the presumption that might otherwise apply to this court’s view of extradition to Italy as a member state of the Council of Europe and the European Union”.     He added,  at [44],  that when there was evidence that the risk of a breach of Article 3 existed,  “it was for the requesting state to dispel any doubts”,  referring to [129] of Saadi v Italy (2009) 49 EHRR 30.   At the hearing before the Divisional Court,  (on 26 February 2014),  counsel for the Italian Judicial Authority conceded that there was a continuing problem “in the Italian prison estate”.  This concession appears to have been based particularly on a letter dated 15 November 2013 sent to the UK Liaison Magistrate in Italy.  This reported (amongst other things) the fact that the President of Italy had invoked an exceptional procedure under Article 87 of the Italian Constitution to send a message to Parliament inviting the legislature promptly to consider the Torreggiani decision and to proceed “to an internal remedy which may offer a restoration (sic) for the overcrowding conditions already suffered by prisoners…”:  see [45].  
62.	In order to discharge the burden that the court held was on the respondent state to “provide evidence to satisfy the court that the relevant risk of incarceration in conditions contrary to Article 3 did not arise in the case of [Mr Badre]”, the Italian Judicial Authority relied on a letter of November 2013 from the Italian Ministry of Justice to the UK Liaison Magistrate in the British Embassy in Rome which gave an assurance concerning the conditions in which Mr Badre would be kept should he be surrendered pursuant to the EAW (“the Badre assurance”).     We should set out the terms of the Badre assurance as they are relied upon (in a negative sense) by the appellant and the First Interested Party in the present appeal.    It stated:  
“RE: ABDI BADRE Hayle, born on 24 October 1960.  European Arrest Warrant
Our Ministry assures you that should the Somali national ABDI BADRE Hayle be surrendered by the Authorities of the United Kingdom of Great Britain and Northern Ireland under the European Arrest Warrant, he will be kept in conditions complying with the provisions of Article 3 of the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950 as modified on 11 May 1994.
Following his surrender ABDI BADRE Hayle shall not be necessarily incarcerated in the Detention Institution of Busto Arsizio or Piacenza in that he can be imprisoned in other correctional institutions”.
63.	The court then analysed the nature of the Badre assurance by reference to the tests set out in the ECtHR’s judgment in Othman (Abu Qatada) v UK (2012) 55 EHRR 1.   In that case the ECtHR was considering whether the UK was entitled to deport Mr Othman to Jordan,  where it was alleged that he would face a “real risk” of torture.   The UK government argued that it was entitled to rely on assurances given by the Jordanian government in a Memorandum of Understanding (“MOU”) signed on behalf of both the Jordanian and UK governments that Mr Othman would be treated in accordance with his Article 3 rights if he were to be deported by the UK to Jordan.   
64.	In relation to the issue of whether reliance could be placed on an assurance of a receiving state concerning a deportee’s treatment if returned,  the ECtHR summarised its previous case law by stating:  
“[188]. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human-rights situation in the receiving state excludes accepting any assurances whatsoever.  However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances.
189. More usually, 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:
(1) whether the terms of the assurances have been disclosed to the Court;
(2) whether the assurances are specific or are general and vague;
(3) who has given the assurances and whether that person can bind the receiving state;
(4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;
(5) whether the assurances concerns treatment which is legal or illegal in the receiving state;
(6) whether they have been given by a Contracting State;
(7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;
(8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;
(9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human-rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(10) whether the applicant has previously been ill-treated in the receiving state;
(11) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State”.
65.	In Badre,  McCombe LJ said,  at [48],  that questions (1),  (2),  (4),  (6),  (7) and (8) “at least” were of some assistance in the context of Article 3 and prison conditions.    However,  McCombe LJ concluded that the Badre assurance was too general and did not give any guarantee that Mr Badre would not be housed in the two prisons that were the subject of the Torreggianni  “pilot judgment”.  The failure to give that specific assurance was,  he said,  “a serious weakness,  reflecting on the letter as a whole”.  
66.	McCombe LJ summarised his view at [52] and [53] as follows:
“52. I am far from saying that in no case can a court in this country safely order an extradition to Italy.  Like [counsel for the appellant], I do not call into question for one minute the good faith of the Italian authorities in writing the letter that they did.  However, it seems to me that, on the specific facts of this present case, the judgment of the European Court, together with the acknowledgment of a continuing systemic problem in the Italian prison system, has rebutted the presumption of compliance with the Convention which would normally arise in the case of a member state of the Council of Europe and of the European Union.  This state of affairs, therefore, raises substantial grounds for believing that there is a real risk of treatment contrary to Article 3 and the Respondent has not produced sufficient material to dispel that belief.
53. For my part, I would have expected at least some information as to whether bail might be available to the Appellant in Italy and on what terms, and, if not available or if not likely to be granted, some information as to the specific institution or type of institution in which the Appellant would be confined and some information as to the prevalent conditions in that institution or those institutions”. 
67.	Hickinbottom J gave a concurring judgment.   At [66] he stated: 
“Whilst of course every case will be fact specific,  in my view,  in the face of a pilot judgment identifying a systemic failure of a state’s prison system,  a simple assurance from that state that the Article 3 rights of an individual (who if returned is at risk of being detained)  will not be breached,  will,  without more,  rarely if ever be sufficient to persuade a court that there is not a risk of such a breach”. 
68.	 In Florea this court followed the approach laid down in Badre.    Florea concerned a request by a Romanian Judicial Authority for the surrender of a citizen of Romania on a “conviction” EAW.    In the judgment of the court,  given by Blake J,  it was noted that the Supreme Court had held in R(EM) (Eritrea) v Home Secretary [2014] 2 WLR 409 at [41] and [58],   that the test in relation to EU states was not whether the violation of Article 3 rights was “systemic” or “systematic” in a country,  but simply whether it is shown that there were substantial grounds for believing that there was a real risk that the person surrendered would suffer treatment contrary to Article 3.    In the very recent ECtHR decision of Tarakhel v Switzerland [2014] ECHR 1185 on alleged Article 3 breaches because of conditions in Italian refugee centres,  the Court noted the Supreme Court’s reasoning and,  effectively,  agreed with it:see [52] and [104].   The effect of these decisions is that a breach of Article 3  is likely only to be found if  either there are systemic violations in the institutions of a Contracting State that is under attack or there is proof of individual problems sufficient to support a conclusion of substantial grounds for a belief in a real risk of Article 3 ill-treatment despite the starting point of the presumption of compliance in an EU state. 
The evidence before the judges in both the appellant’s case and that of the First Interested Party concerning the state of prison conditions in Italy and the Assurances offered.
69.	The judge had expert evidence on prison conditions in Italy from two witnesses.  For the defendant/appellant,  the judge heard oral evidence from Alessio Scandurra,  who is a researcher in the field of detention and who has been involved in a number of studies of prison conditions in Italy and elsewhere in the EU.   He had produced a report dated 20 January 2014.  The judge also heard oral evidence from Marco Perduca,  a Senator from April 2008 to March 2013,  who had been secretary of the Special Commission on Human Rights of the Senate of the Italian Republic.   He gave a joint statement with Giuseppe Rossodivita,  a criminal lawyer and member of the Regional Council of Lazio.  Mr Perduca’s evidence was given on behalf of the appellant.   
70.	The judge’s findings concerning prison conditions in Italy at the time of the extradition hearing before her are set out at [41] to [45].   It is easiest if we set them out here:  
“41. Overcrowding is dealt with at page 20; it is explained by three factors: the number of non Italians in custody, harsh penalties for drugs offences and high levels of remand prisoners.  In his report at p29 he outlines what the government has been doing since the delivery of the Torregiani judgment.  Mr Scandurra accepted that the government has good intentions and that change would happen eventually.  He explained that some prisons or wings of prisons are closed for refurbishment but then the money runs out.  He gave as an example the prison in Arezzio.  He did not anticipate that there would be new prison buildings in the next few years.  He accepted that refurbishment might be carried out as there was money for that now.
42. As to the conditions in the prisons, the prisoners spend six to eight hours outside their cells and they can play sports such as football and basketball.  Work is supposed to be available by law but the reality is very different.
43. The most up-to-date witness called in relation to prison conditions was Mr Perduca.  His report is at tab 10 of the defence bundle.  His evidence echoed the evidence I had heard earlier from Alessio Scandurra.  He had been a member of the Senate from 2008 to 2013 and had written a report on prisons in 2011.  He had visited between 28 and 90 prisons between 2008 and 2013.  His last visit to a prison had been to one in Florence on 15th August 2013.  The deadline to adopt the remedies to the problems described in the pilot judgment of Torregiani was 27th May 2014.  Italy has since asked for another 12 months to adopt the recommendations.
44. The Government had hoped to be compliant within 12 months but their proposals had been diluted by Parliament.  Mr Perduca said the number of inmates dropped for a few months then stopped.  The figures at the end of May 2014 were the same as five or six months ago.  58 to 59 thousand are incarcerated and the Government says it has capacity of 48 to 49 thousand.  He explained that although new prisons had been promised none yet had been built.  In his experience of the prison system it would take years and years to upgrade the whole system.
45. In terms of individual prisons he knows that the Turin one has always 30% to 50% overcrowding.  Recently he has spoken to the regional Ombudsman and to Parliamentary members.  The overcrowding went down but it is still over capacity.  The present policy appears to be to move prisoners around to less crowded prisons”. 
71.	Also before the judge were two assurances.  The first is dated 24 January 2014  and is from Maria Antonietta Ciriaco,  Director of the department of Criminal Justice in the Italian Ministry of Justice.  The second is dated 13 May 2014 from Giovanni Tamburino,  the Director General of Detention and Treatment of the Department of Prisons within the Ministry of Justice.   We have set out the terms of these two assurances in the Appendix to this judgment.
72.	  We should also note the terms of the assurance dated 17 December 2013,   which had been given by the Italian authorities in the case of Mr Riva for the purposes of the hearing before DJ Zani in January 2014.  This stated that his Article 3 rights would be respected and that he would not be sent to either of the two prisons that were the focus of the Torreggianni judgment:  (see [160] of DJ Zani’s Ruling).  Since then a further assurance,  dated 22 September 2014, has been furnished by the Head of Department of the General Directorate of Detention and Treatment in the Department for the Administration of Prisons in the Italian Ministry of Justice.   Its terms are also set out in the Appendix to this judgment. 
73.	Returning to the case of the appellant,  the judge concluded that there were substantial grounds for believing that the appellant, if extradited,  would face a real risk of being subjected to treatment contrary to Article 3.  On the evidence she had heard,  that risk was more than fanciful:  Ruling paragraph 49.   The judge also found that there was “no evidence of sustainable change in the conditions of the prison in Italy since the evidence relied on in [Badre]”:  Ruling paragraph 50. 
74.	The judge then considered the assurance.   She concluded that it was specific and went beyond that given in Badre.  She noted that the assurance stated that the appellant would not be held at the two prisons (Busto Arisizio and Piacenza),  which were specifically criticised in the Torreggianni  decision of the ECtHR.  The judge held that she was satisfied that the assurance of Mr Tamburino,  a former judge who had worked in both Venice and Turin, could “bind the prison authorities” and that the court could expect “the prison authorities to be bound by the assurance given”:  Ruling  paragraph 55.   The judge was also satisfied that the assurance could be monitored in a number of ways,  in particular through the UK “Liaison Judge” (in fact a CPS lawyer) working at the UK Embassy in Rome.   
75.	The judge therefore concluded that she could rely on the assurance and that if the appellant were to be extradited he would be held in prison conditions that would not breach Article 3.  
76.	In the case of Mr Riva,   DJ Zani had before him evidence from Professor Maffei and Avvocato Annamaria Alborghetti.  The latter had visited Taranto prison  where it was anticipated that Mr Riva would be housed if returned.    DJ Zani noted events since the Torreggiani decision,  in particular the call by the Italian President to both Chambers of the Italian Parliament to take action on prison conditions and also a seven page letter dated 17 December 2013 from the Italian Ministry of Justice which set out the measures taken and those in train to improve conditions within the Italian prison estate.   This letter (which we do not have in our bundles)  contains exactly the same material as in the letter of 4 December 2013 that is in the bundle of “new” material produced by the respondent for Mr Elashmawy’s appeal,  although we were informed that this letter was in fact adduced before the judge at the hearing concerning the appellant’s case.   The 4 December 2013 letter was prepared as supplementary information in another case,  that of Domenico Rancadore.
Should this court admit the further evidence sought to be admitted before it?  How should this court apply the “Fenyvesi principles”?
77.	Before us,  the Respondent and Second Interested Party Judicial Authority wished to introduce further material concerning the current prison conditions in Italy.   In summary,  this material consisted of:  (1) a statement of the head of the department of Penitentiary Administration in the Directorate General of Prisoners and Treatment in the Italian Ministry of Justice dated 5 November 2014 with a document attached;   (2) a letter dated 2 October 2014 from the Director General of the same department in response to a “request for information” from the UK Liaison Magistrate in Rome (Ms Sally Cullen) dated 1 October 2014;   (3)  a copy of a letter dated 4 December 2013 from Maria Antonietta Ciriaco,  “head of the office” of the office of the Director General of Criminal Justice in the Italian Ministry of Justice,  to the UK Liaison Magistrate in Italy, (although we were told that a letter in identical terms dated 15 November 2013,  which had been produced in Mr Badre’s case,  had been before the judge at the appellant’s extradition hearing);   (4) copies of documents prepared on 8 April 2014 by the Secretariat of the Committee of Ministers of the Council of Europe for a meeting of the Committee on 3 – 5 June 2014;  (5) various witness statements of Ms Sally Cullen,  dated 5 and 17 November 2014 concerning proceedings in the Swiss courts relating to the extradition of a person from Switzerland to Italy,  which had been resisted on the grounds of prison overcrowding and breach of Article 3.    As noted above,   the Respondents and Second Interested Party had not sought prior permission to introduce this evidence before us: it was simply produced as a separate bundle to the court at the hearing on 5 November 2014.   Mr Alun Jones QC somewhat tentatively objected to this material in opening his appeal,  but he firmly and formally did so in reply,  after we had been taken though it by Mr Caldwell on behalf of the Respondents and Second Interested Party.   Mr Jones submitted that if the new material was to be relied on by the respondent,  then the appellant should be given time to respond to it and,  if so advised,  to obtain a further report from Mr Perduca commenting on the documents.   A further report from Mr Perduca was thereafter obtained.    We set a timetable for further written submissions to be made.  
78.	In the appellant’s further written submissions of 10 November 2014,  Mr Jones’ starting point was that the court should apply the principles in Three Hungarian Judicial Authorities v Fenyvesi [2009] EWHC 231 (Admin) (“Fenyvesi”),  and should refuse to permit any of this new material to be adduced on this appeal.   If,  however, the new material could be adduced,  then this court should consider Mr Perduca’s response.   
79.	In Fenyvesi the appellant judicial authorities wished to adduce fresh evidence on the treatment of Romas in the justice system in Hungary in order to counter findings of the District Judge that (very broadly) the three defendants would be prejudiced at their trials and face prison conditions in Hungary in breach of Article 3 on account of their race.  The District Judge therefore discharged the three defendants.   The Hungarian Judicial Authority appealed.  This court analysed the basis on which “fresh evidence” could be adduced and what effect it could have on an appeal against discharge under Part 1 of the EA.   For this purpose the court had to construe section 29(4)(a) and (b) of the EA,  which sets out the conditions for allowing an appeal from a decision to discharge a defendant,  when a Judicial Authority raises an issue on appeal or it makes evidence “available” on appeal that was “not available at the extradition hearing” (section 29(4)(a)) and that “issue or evidence would have resulted in the judge deciding the relevant question differently”: section 29(4)(b).   
80.	The judgment of the court was given by Sir Anthony May,  President of the Queen’s Bench Division.    The court considered the position of both Judicial Authorities (under section 29(4)) and defendants,  for whom the relevant equivalent provision in Part 1 is section 27(4).   The conclusions of the court on the construction of section 29(4)  (and its parallel,  section 27(4)) and the issue of when “fresh evidence” can be adduced before a court on appeal from a decision of the District Judge under Part 1 of the EA can be summarised as follows:   (1)  sections 27(4)(a) and (b) and 29(4)(a) and (b) do not establish  conditions for admitting evidence on appeal but conditions of allowing an appeal based on evidence that was “not available at the extradition hearing”:  our emphasis.    (2)  Subject to human rights considerations,   the court will not,  however,  spend time (and expense) in admitting and considering evidence if it was plain that it was “available at the extradition hearing”.    (3)  Evidence was not “available at the extradition hearing” if that evidence either did not exist at that time or was evidence which was not at the disposal of the party wishing to adduce it on appeal and which that party could not,  with reasonable diligence,  have obtained for the hearing below.   (4)  A party seeking to persuade a court that evidence proposed to be adduced on appeal was “not available” below should normally serve a witness statement explaining why it was not available.   (5)    The appellate court has to decide whether,  if the evidence had been adduced below,  the result would have been different (either way).  In order to do so,  the appellate court may have to consider that evidence with some care,  short of a full rehearing.    Effectively,  the “fresh evidence” must be “decisive”.   (6)  For defendants,  but not for Judicial Authorities,  the rigour of the terms of section 27(4) can be mitigated by Human Rights considerations by a “modulation” of section 27(4) by reference to section 3 of the Human Rights Act 1998.   But even then the threshold remains high.   For Judicial Authorities section 29(4) is of “no avail” if they are unable to come within its terms.   (7)  It is doubtful whether evidence of foreign law was a “significant parliamentary concern” underlying sections 27(4) and 29(4).  The court will naturally wish to be properly informed as to relevant legal principles of the law of a foreign state.  
81.	Are these principles to be applied in the present case,  where  “fresh” evidence  is sought to be introduced in order to uphold a decision below?   We note the following:   first,  that there was no evidence either from the respondent Judicial Authority,  or from the appellants on the issue of precisely what was before the judges at first instance,  or on the “availability” of the “new” material at the time of the hearing before the judge.    It would have been more satisfactory if we could have been given a fuller explanation of precisely what was and was not before the judge and why the new material was not,  rather than leaving us to work this out for ourselves.   Secondly,  it is clear that some material was before the judge concerning the evolution of prison conditions in Italy following Torreggiani.   Thus,  in the Core Bundle before us,  at tab 24 there are records of the minutes of the 1193rd meeting of the Committee of Ministers on 6 March 2014 concerning the Torreggianni case in which the ministers made comments on the lack of progress in Italy and said that they would reconsider the matter in the meeting in June 2014.   In that tab there is also a minute of the June 2014 meeting and “notes” of that meeting.  As we understand it the minutes and notes of the June 2014 meeting were before the judge.  We were informed by counsel that although the documents prepared on 8 April 2014 by the Secretariat General of the Committee of Ministers (which we will call “the April 2014 CoM material”) were not physically before the judge,  elements from those documents were put to the expert witnesses in cross-examination.  Therefore the substance of that evidence was before the judge.   Thirdly,   within the April 2014 CoM material there is a document headed “Progress of the Action Plan submitted to the Department for the Execution of Judgments of the ECtHR” that was prepared by the Italian Ministry of Justice.  In it there is an explanation of the “official” basis on which prison capacity is calculated,  at footnote 1 of page 6.   It is,  broadly,  the same explanation as that given in the letter of 5 November 2014 in the first of the “new” documents.  The “Progress” document also contains other material about prison numbers and overcrowding.   Fourthly, the letter of 2 October 2014 details the total number of prisoners held in Italian prisons as at 30  September 2014,  so could not have been available at the time of the hearing before the judge.  Fifthly,   there is a further “new” document dated 5 November 2014 showing that prison capacity is 49,323 and the number of detained persons is 54,280,  ie.  the prisons are at 110% of capacity,  using the “official” basis for calculating capacity.   Sixthly,  although the letter of 4 December 2013 plainly could have been available before the judge but,  apparently,  was not,  it seems that the Badre letter of 15 November 2013 in identical terms was before her. Lastly,  various witness statements of Sally Cullen,  dated 5 and 17 November 2014,  deal with the decision of the Federal Court of Switzerland dated 12 May 2014.   That decision could have been made available before the judge and there is no explanation of why it was not.  However,  the essential document is a judgment of the Swiss court and its attitude to extradition to Italy post the Torreggiani case.   There is another witness statement of Sally Cullen dated 17 November 2014 (in response to Mr Perduca’s further report  of 13 November 2014),  which deals with the calculation of the prison capacity issue.  It also refers to a news report that the ECtHR had rejected 3,564 cases based on overcrowding in Italian prisons,  on the ground that the claimants had not exhausted domestic remedies. Those rejections must have been a consequence of the ECtHR’s decision in Stella and others v Italy (Application No 49109/09:  “Stella”) in which the Court noted (at [44]) that approximately 3,500 requests concerning overcrowding in Italian prisons had been received by the Court.   In Stella the ECtHR reviewed the current position in Italian prisons and concluded that there were domestic remedies available to all the applicants in that case. 
82.	It seems to us that the circumstances of this case cannot be equated exactly with those in Fenyvesi or other cases in which one side or another attempts to put in “new” material in the hope of succeeding on appeal on the basis of that material.   Nonetheless,  we think that the analysis in the Fenyvesi decision is consistent with the concept that the appellate court should not allow parties carte blanche to adduce new material to bolster an existing decision in that party’s favour,  particularly if the material was “available” in the court below in the sense discussed in Fenyvesi.    Taking that as our test,  the letter of 4 December 2013 dealing with the Rancadore case was available to be put before the judge.  We would have been inclined to exclude it but for the fact that it appears that a letter in identical terms dated 15 November 2013 dealing with the Badre case was before the judge and a further identical letter dated 17 December 2013 was before DJ Zani in Mr Riva’s case.  Thus both the judge (in the appellant’s case) and DJ Zani were able to take the contents of those letters into account in assessing the conditions in Italian prisons.   So far as the remainder of the “new” material is concerned,  either it was,  in substance,  before the judge (the April 2014 CoM material) or it could not have been,  as in the case of all the statistics of prisoner/capacity produced after the judge’s Ruling was handed down.   The important material concerning the meeting of the Committee of Ministers in June 2014 was  before the judge and is not new.   
83.	If this were a true Fenyvesi case,  we would have to go on to consider whether the new material is “decisive”.  Because,  in this case,  the material is adduced  not so that the appeal will be allowed,  but so that it will be upheld,  perhaps on different grounds,  the rigorous “decisive” test may not be applicable.  But,  obviously, we have to examine the material to see whether it has persuasive evidential value.     We must do so in the context of the arguments of the parties.   
84.	Both Mr Jones and Mr Fitzgerald accepted that the court must be entitled to take account of both the law and facts as set out in the most recent ECtHR case on Italian prison conditions and Article 3,  viz.   Stella.  
The argument of the parties on the prison conditions/Article 3 issue.  
85.	Mr Fitzgerald QC,  for the First Interested Party took the lead in arguing this point and Mr Jones QC for the appellant adopted Mr Fitzgerald’s argument.   Mr Fitzgerald accepted that there is a strong presumption in the case of Council of Europe states that they will comply with their Article 3 obligations and that,  in order to rebut the presumption,   “clear and cogent evidence” is needed.   He submitted that the Badre case demonstrated that the Torreggiani Pilot Judgment was sufficiently clear and cogent to rebut that presumption in the case of Italy in relation to prison overcrowding.    Therefore,  the burden shifted to Italy to “dispel the doubts” as to its ability to comply with its Article 3 obligations.   It could only do so by providing assurances.   But an assurance will only dispel the doubts if it is sufficiently specific and reliable and neither can be presumed.  The assurance must be tested in accordance with the Othman criteria.    It was clear from Badre that a general assurance was insufficient.   The assurance given by Italy in Mr Riva’s case before DJ Zani will not do,  as it took the same form as that found to be insufficient in Badre.    The new assurances proffered in Mr Riva’s two cases remain insufficiently precise, both with regard to pre-trial detention and (if convicted) post-trial imprisonment.   Moreover,  the explanation of the figures and the basis on which prison capacity was calculated was unsatisfactory.  There remains a real risk that Mr Riva would be placed in a prison that is not Article 3 compliant.  
86.	In relation to the material that was before the Committee of Ministers,   Mr Fitzgerald submitted that the comments of the Committee of Ministers in June 2014 was equivocal and,  in any case,  did not have the same status as the decision of a court such as those in Torreggiani or Badre.     As for the Stella decision of the ECtHR,  although it refers to improvements in the Italian prison system, it was on admissibility only and was concerned with the non-exhaustion of domestic remedies.   It is insufficient to “dispel the doubts”.  
87.	Mr Jones emphasised the fact that the respondent Judicial Authority had not challenged the finding of fact of the judge,  at [49] of her Ruling in the appellant’s case,  that he would face a real risk of being subjected to treatment contrary to Article 3 if surrendered to Italy.  Mr Jones submitted that the two assurances given in relation to Mr Elashmawy (on 24 January and 13 May 2014) were insufficiently precise to satisfy the Othman tests.    The new material,  if relevant,  was not sufficient to “dispel the doubts”.   
88.	Mr Caldwell,  for the Second Interested Party,  led the arguments for the Judicial Authorities on this issue.   He submitted that the Torreggiani case was no longer the starting point and it did not now rebut the presumption as far as Italy was concerned.  Therefore Badre had to be reconsidered.    The reason why the ECtHR took Torreggiani as a Pilot Judgment case was the lack of effective remedies for the alleged breaches of Article 3 in relation to Italian prison conditions:  see the ECtHR’s judgment at [96] – [99].  The remedies have now been put into effect,  as is demonstrated by the Stella decision.  There is now no longer a “real risk” that extradition would result in the requested persons being incarcerated in breach of their Article 3 rights because there would be an effective remedy:  both for any past breach and as to the future.    The record of the “Decisions” of the Committee of Ministers of 5 June 2014 showed the progress made by Italy.  Moreover,  the number of prisoners as at 5 November 2014 showed that the prison population was now at 110% capacity and that calculation was based on the official figures for space per person of 9m2  plus 5m2 per additional person per cell,  whereas the ECtHR minimum space was 3m2 . 
89.	Mr Hardy QC, for the respondent, adopted Mr Caldwell’s submissions.   Mr Hardy emphasised that the Judicial Authority had not accepted,  before the judge, that Italian prison conditions were not Article 3 compliant.   He submitted that if the judge had had all the evidence now before the court, together with the ECtHR decision of Stella and perhaps the Swiss court decision,  she would have decided differently the issue of fact on whether the Italian prison conditions were in breach of Article 3.   As for the new assurance,  it identified the prisons to which the appellant would be sent;  stated that they were not overcrowded and that the position could be monitored.  
Assessment of the materials and conclusions on the Article 3/prison conditions ground.
90.	The Article 3 test in the context of extradition is whether there are substantial grounds for believing that there is a real risk that the person extradited would be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions upon his return and (if convicted) during any imprisonment.    To make a conclusion based on this test the court has to examine the present and prospective position as best it can on the materials now available.   In “prison condition” cases the factual position is unlikely to be static.   There may be new evidence about the conditions in a country generally or a particular prison where the position has already been considered by a court.   The view of any court,  even the ECtHR,  on prison conditions in a country or a particular prison at any time is only definitive at the time that the view is expressed.    If cogent evidence is adduced which demonstrates that the view a court took previously about prison conditions generally or in a particular prison can no longer be maintained,  then the court must review again the evidence about the relevant prison conditions.   Evidence is unlikely to be treated as cogent unless it demonstrates something approaching an international consensus that the position has changed.   To adopt a lower threshold would introduce an unacceptable degree of uncertainty in the area.  But,  an obvious example where the test may well be satisfied is where the Strasbourg or Luxembourg courts have held a Contracting or Member State to be in breach of its Article 3 obligations regarding prison conditions,   has required that remedial measures be undertaken,  which have then been implemented and upon which the Committee of Ministers or the ECtHR have then indicated views.  
91.	It must follow that,  even assuming that the ECtHR’s pilot judgment in Torreggiani could rebut the presumption that Italy will conform to its Article 3 obligations with regard to prison conditions at the time that this court was considering the matter in Badre,  it cannot do so now;  events have moved on.   We have to consider the evidence now before us which we regard as cogent.  In our judgment the evidence before this court,  consisting of both the material that was before the judge (and before DJ Zani) and the “new” material,  is decisive in proving that the situation is now very different from what it was when the ECtHR pronounced Torreggiani. Therefore,   unlike the court in Badre,  this court cannot and so must not now treat Torreggiani as the starting point or “bench mark”.    Nor can this court be bound by the factual findings made in Badre.  We have to assess what the cogent evidence before us establishes the position is on prison conditions in Italy now and what they are likely to be in the near future.  
92.	First,  the Italian Ministry of Justice “Action Plan” document submitted to the Committee of Ministers in April 2014 (after their meeting in March 2014) demonstrates that Italy had introduced new laws to provide both effective “preventive” and “compensatory” remedies for any Article 3 violations because of prison conditions.   The document also indicates that there had by then been a significant decrease in the number of prisoners:  6000 less than at the time of the Torreggianni judgment.   Further,  it shows that Italy had taken steps to introduce alternative measures which would reduce the prison population even more.     There was still overcrowding (an occupancy rate of 1.24 as at 21 March 2014) but that was on the official parameter of 9m2 per person,  not the ECtHR minimum figure of 3m2 per person.   
93.	Secondly,  the “Notes” on the Torreggiani case for the June 2014 meeting of the Committee of Ministers record that the new “preventive” measure introduced by the Italian state would enable a prisoner to make a complaint to a supervisory judge about breaches of Italian penitentiary law,  including overcrowding.   There were also new enforcement procedures,  which were reinforced by a decision of the Constitutional Court underlining the obligation of the penitentiary authorities to respect such orders.  The Committee of Ministers also noted the intention to introduce a compensatory remedy.   Finally,  it is noted that “as of 19 May 2014 the number of prisoners has decreased below 60,000 (59,555) and that at present no prisoner enjoys a vital space of less than 3m2 .”   The “Decision” of the Committee of Ministers welcomed all these steps and decided to reconsider the Torreggiani and associated cases again in June 2015.   
94.	Although we take Mr Fitzgerald’s point that these are not the findings of a court such as the ECtHR,  nonetheless,  the Committee of Ministers’ acceptance of these points carries great weight.   As the ECtHR recognised in its judgment in Torreggiani,  under Article 46(2)  of the ECHR it is for the Committee of Ministers to evaluate the implementation  of individual or general measures taken in execution of the Court’s judgment.     If the Committee of Ministers concludes that there has been progress,   this court can hardly question that view. 
95.	Thirdly,  the Stella admissibility ruling of the ECtHR is important,  not least because it is actually the decision of a court that considered up to date relevant facts.  All 11 applicants reported being held in overcrowded cells and had living space of 3m2  and suffered from poor cell ventilation,  lighting and heating.   The judgment sets out the steps taken by the Italian government since Torreggiani.    It noted the current prison numbers in Italian prisons,  viz. 54,252 and it noted that the capacity figure of 49,797 was based on a personal living space of 9m2  per inmate plus 5m2 for each additional person in a cell.    At [24] of the judgment it states:  “Finally,  according to information provided to the Court by the Italian government,  there is currently no prisoner in Italy who has less than 3 square metres of personal living space”.    
96.	The issue before the court was whether there were any effective domestic remedies whereby a prisoner who complained of overcrowding could obtain practical redress.    The ECtHR concluded that the new appeal procedures available to prisoners who complained of overcrowding were effective,  not least because the current situation in the Italian prison system seemed to offer the competent administrative authorities “a more favourable context for the effective implementation of judicial decisions”.    The Court summarised the new legislative measures taken regarding penal policy and the steps taken to renovate existing and build new prisons.   The ECtHR emphasised that the Committee of Ministers was responsible for evaluating the measures taken by a defendant state to fulfil its obligations.  However,  it summarised the ECtHR’s own view of the current state of Italian prisons at [53] as follows:  
“…the Court can only be pleased with the Defendant State’s commitment.  It appreciates the significant results obtained up to now through the considerable efforts made by the Italian authorities on many levels and notes that the problem of prison overcrowding in Italy,  although it still exists,  is now much less dramatic.   The Court can only encourage the Defendant State to continue this positive trend in continuing the efforts made thus far to resolve the contentious issue and to ensure that each inmate’s living conditions are consistent with the Convention’s principles”.
97.	The ECtHR’s conclusion was that there was an effective route of appeal to enable prisoners to obtain redress in cases of alleged overcrowding and appropriate living conditions:  the so-called “preventive” remedy.   The Court also concluded that there were effective “compensatory” remedies in the form of a reduction in sentence and monetary compensation. 
98.	Fourthly,  the letter of 2 October 2014 from the Ministry of Justice  confirms that Law 117/2014 had been passed,  providing for compensation for breaches of Article 3 rights.   In addition there had been changes to various criminal law provisions with the consequence that prison numbers were reducing.   The official statistics for the prison population on 5 November 2014 shows that the prison  numbers were 54,280,  compared with an official capacity of 49,323.  The latter figure is based on the official space allowance of 9m2 per person.  
99.	Fifthly,   there is the decision of the Swiss Federal Court of 12 May 2014.    In that case the Federal Office of Justice had appealed against an order of the Criminal Court of Appeal which (in the light of Torreggiani)  had imposed a condition on the order for the extradition of a requested person from Switzerland to Italy that “in case the request for extradition should be granted,  the requested person shall be granted prison conditions compliant with the provisions of  Article 3 of the ECHR”.    The judgment was promulgated before the Committee of Ministers’ meeting in June 2014.   However, after  the Swiss court had reviewed all the measures that had been taken by Italy following the Torreggiani decision,   it concluded that there was “no serious doubt” that Italy would do its best,  even without any express request for formal safeguards,  to ensure that prison conditions respected “human dignity for persons to be prosecuted whose extradition was being sought from Switzerland”:  para 4.5.  The court held that the extradition to Italy could take place without the need for any “formal safeguards on the side of Italy”:  para 5.1.  
100.	We have considered carefully the additional statement of Mr Perduca served on 13 November 2014.    The principal point he makes is that the official number for the legal capacity of Italian prisons of 49,327 is over-stated because some 5,000 places must be subtracted from that figure to take account of “transitional situations”.     Mr Perduca also states that there is no up to date information on the state of renovation and  restoration works in Italian prisons,  so therefore no accurate figure of the number of places actually available.   He points out that the situation in Italian prisons was considered at the UN Council on Human Rights at the end of October 2014 and none of the delegations congratulated Italy on having reached “definitive results”  in this area.    Mr Perduca also notes that the “compensatory” remedy that has been instigated is for only €8 rather than €20 as suggested by the Strasbourg court and it is not automatic but subject to a judicial process.    Lastly,  he states that neither the Committee of Ministers,  nor the ECtHR,  nor yet the Italian government itself has said that Italy “is in compliance” with its Article 3 obligations so far as prison conditions is concerned.  
101.	We take note of that evidence.    We are prepared to accept that prison numbers are higher than the official capacity,  but that is based on a higher figure for personal space than the bare minimum required by the ECtHR.   We also accept that prison conditions in Italy remain problematic and that many more reforms may well be necessary.  However,  the task of this court is simpler.   We have to decide,  in the first place,  whether there are substantial grounds for believing that there is a real risk that the appellant,  if surrendered,  will be subjected to inhuman or degrading treatment or punishment by reason of the prison conditions in Italy.   Taken overall,  and bearing in mind the high threshold,  we are satisfied that the evidence demonstrates  that there are not substantial grounds for believing that there is a real risk that the appellant,  or Mr Riva,  would face prison conditions that were in breach of Article 3 upon extradition to Italy.  Either the presumption is restored that Italy,  as an EU state,  will fulfil its Article 3 obligations;   or Italy has proved,  by cogent evidence,  to relieve the doubts.   
102.	That makes it unnecessary to consider whether the assurances that have been proffered in both the appellant’s and Mr Riva’s case are sufficiently precise.    They are not needed.    But,  in the light of all the other evidence of the progress made in Italian prison conditions since Torreggiani,   we regard the fact that these assurances  have been given by the responsible authorities as yet further evidence of the good faith of the Italian authorities.   
103.	We therefore dismiss this ground of appeal.   We also hold that,  so far as the First Interested Party is concerned,  there are no substantial grounds for believing that there is any real risk that he would suffer breaches of his Article 3 rights if extradited to Italy.   That conclusion will bind him,  unless there is some quite unforeseen change of circumstances by the time of the hearing of his appeal in the Taranto court matter,  which we do not envisage there will be.   The remaining grounds of appeal will have to be dealt with at a further hearing,  for which the parties to that case should seek directions.
104.	This judgment must be regarded as definitive of the issue of Article 3/prison conditions in Italy unless and until cogent further evidence impels a review of the position or demonstrates that the general conclusions we have reached cannot apply to the particular circumstances of an individual case,  for which a particular,  specific assurance may be needed.    We doubt very much that a single expert report could impel such a review.    It will, in general,  require something like an international consensus or the considered view of the ECtHR or that of the Committee of Ministers.  
Disposal
105.	We dismiss the appellant’s appeal on all three grounds.  

Appendix
Assurance of 24 January 2014 in relation to Mohammed ElAshmawy.
RE: ELASHMAWY Mohamed Born on 21 March 1972.
The Ministry reassures that also in case of surrender for European Arrest Warrant to the Authorities of the United Kingdom of Great Britain and Northern Ireland the Egyprian national ELASHMAWY Mohamed shall be held in conditions compliant with the provisions laid down in articole 3 of the European Convention for the protection of Human Rights and fundamental freedoms, signed in Rome on 4.11.1950 and amended on 11.5.1994.
Following his surrender, Mr ELASHMAWY Mohamed will have not necessarily be held in custody in the penitentiary institutions of Busto Arsizion or Piacenza, as he may also be restricted in other penitentiary institutions”.

Assurance of 13 May 2014 in relation to Mohammed ElAshmawy.
Re: European arrest against ELASHMAWY Mohamed born in El Menoufa (Egypt) on 21/03/1972

I hereby assure the competent authorities of the United Kingdom that in the event that ELASHMAWY Mohamed is surrendered to the European arrest warrant issued by the Office of the Prosecutor General of the Republic attached to the Court of Appeal in Brescia on 24.10.2013, he will commence and serve his sentence at the prisons of C.C. Torino or Biella, which are now not overcrowded, and will not serve his sentence at Busto Arsizio or Piancenza or any prison that is not compliant with Article 3 of the ECHR.

Assurance of 22 September 2014 in relation to Fabio Arturo RIVA
Re: European Arrest Warrant for Riva Fabio Arturo born in Milano on 20/07/1954

I hereby assure the competent authorities of the United Kingdom that in the event that Fabio Arturo Riva is surrendered pursuant to the European Arrest Warrants issued by the Preliminary Investigations Judge at the Court of Taranto on 16/01/2013 and by the Preliminary Investigations Judge at the Court of Milan on 21/02/2014, if he is remanded in custody, he will be held at the prison of Pavia or Milano Opera or Lecce or Taranto or Perugia and will not be held at Buso Arsizio or Piacenza or any remand centre that is not compliant with Article 3 of the ECHR.

If he is later sentenced to a custodial term, he will commence and serve his sentence at the prison of Milano Opera or Lecce or Perugia which are now not overcrowded, and will not serve his sentence at any prison that is not compliant with Article 3 of the ECHR.