England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		5 December 2008

Thursday 5 December 2008

LORD JUSTICE SCOTT BAKER:

1. This appellant was the subject of a European Arrest Warrant issued by the District Court in Pribram, Czech Republic. He was surrendered by the United Kingdom to that judicial authority on 23 July 2007. The appellant was wanted to serve a two year custodial sentence for an offence of attempted rape committed on 7 November 1997. He is presently in the Czech Republic serving that sentence.
2. The present appeal arises out of an application by Judge Kolarova of the District Court in Strakonice that the appellant now serve a three year sentence relating to a conviction for a rape committed on 14 August 1999. The conviction on which that three year sentence is based is dated 26 February 2001.
3. The British Court's consent is required because of the Specialty Rule, the purport of which is that the person extradited should ordinarily only be dealt with by the extraditing state for those offences for which he was returned, or which are disclosed by the facts on which his surrender was based. But the requesting state is entitled to ask permission for it to deal with the extradited person for another offence not covered by its original request, provided the offence is extraditable. That is what happened here.
4. Article 27 of the Framework Decision is headed "possible prosecution for other offences". It provides in subsection (4):

"A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after the receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein."

5. The relevant United Kingdom legislation is to be found in sections 54 and 55 of the Extradition Act 2003. Section 54 deals with the request for consent. Section 55 deals with the questions for decision at the consent hearing.
6. On 5 October 2008, in the City of Westminster Magistrates' Court, having gone through all the necessary steps, District Judge Nicholas Evans gave his consent under section 55(6). The only issue before the District Judge was the appellant's contention that, were he returned, there would be a breach of his Article 3 rights. It is true that there is no specific provision in the Extradition Act 2003 that requires the court to consider the appellant's human rights in the circumstances of this case. Section 21, which does require a judge to consider whether a person's extradition would be compatible with Convention rights, only applies where the judge is required to proceed under section 11 or section 20 and not where, as here, the person has already been extradited.
7. That, however, is not the end of the matter because section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a human right. To give consent to the request that the appellant be permitted to serve three years for rape if the result would be likely to subject him to inhuman or degrading treatment would in my judgment be unlawful.
8. The appellant's argument is that the prison conditions under which he is serving his present sentence, and under which he would serve the additional sentence, amount to a violation of Article 3. The District Judge rejected that contention.
9. The first question before this court is whether there is any jurisdiction to hear an appeal under the Extradition Act in respect of the District Judge's decision. Section 26 provides a right of appeal against an extradition order under Part 1. Part 1 of the Act covers sections 1 to 68 and relates to European Arrest Warrants. This is a Part 1 case. Section 26 provides as follows:

"(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) But subsection (1) does not apply if the order is made under section 46 or 48.

(3) An appeal under this section may be brought on a question of law or fact.

(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made."

Sections 46 and 48 there referred to cover cases where the person has consented to his extradition. In the present case the appellant has already been extradited. It seems plain to me that the case is not covered by section, 26 which is quite specific. The problem is this. Section 34 of the Act provides that a decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part. The judge's consent given under section 55(6) is plainly a decision under this Part. But search as one may, I can find no right of appeal against that decision. The rights of appeal and the court's powers on hearing an appeal are clearly set out in sections 26-33 and do not cover the circumstances of this case.

Without formally conceding the point, Mr Ben Lloyd accepts that it is very difficult for him to advance any argument to the contrary.

10. This is not the first occasion on which this court has run into problems because of the lack of a statutory right of appeal under the Extradition Act. An early example is R(Nikonovs) v Governor of Brixton Prison [2006] 1 WLR 1518, and another is Akaroglu v The Government of Romania [2007] EWHC 367 (Admin). It is also pertinent to look at the observations of Keene LJ in Ignaoua and Others v The Judicial Authority of the Courts of Milan and Others [2008] EWHC 2619 (Admin) at paragraphs 18 and 28. In short, where no right of appeal is provided, the court has in some circumstances been prepared to entertain an application for judicial review. In my judgment, if this were a case where the appellant had a real Article 3 claim then the right course would have been not for him to appeal under the Extradition Act, because in my judgment there is no right of appeal, but to have challenged the decision of the District Judge by way of judicial review. If the court was of the view that there was any real substance in Mr Lloyd's contentions, no doubt we would entertain sympathetically an application for leave to apply for judicial review and for an extension of time.
11. Bearing in mind the perceived difficulty on the question of jurisdiction, we have nevertheless heard, de bene esse, argument from Mr Lloyd on the Article 3 point. The starting point is the test as set out by Lord Bingham of Cornhill in R(Ullah) v Special Adjudicator; Ullah v Immigration Appeal Tribunal [2004] 2 AC 323 at paragraph 24: whether there are strong grounds for believing that the appellant faces a real risk of being subjected to torture or inhuman or degrading treatment if the order is made.
12. The appellant's case is that he is being subjected to inhuman and degrading treatment in the prison in which he is now serving his sentence and that that is likely to continue for a further three years if he is required to serve this further sentence. His contention can be summarised under five headings: (1) inadequate diet, which has caused a dramatic weight loss; (2) prison overcrowding (fourteen people in a single cell with only two toilets for their use); (3) only sporadic provision for proper exercise; (4) inadequate medical treatment (he suffers from hepatitis and has not been given appropriate medication); and (5) severe punishment for infringing the rules and subjection to solitary confinement. Mr Lloyd submits that when all these factors are taken together, they cross the threshold of ill-treatment and breach Article 3.
13. The leading authority in respect of a person detained in prison is Kalashnikov v Russia (2006) 36 EHRR 587. This case is authority for the proposition that prison conditions violate Article 3 if it can be shown that the minimum threshold has been passed. The Court there found that there had been a breach of Article 3 where the appellant had been detained in conditions which included severe overcrowding, shift-sleeping due to the overcrowding (aggravated by the constant lighting and television), lack of privacy in the use of a toilet in full view of other inmates and guards, lack of ventilation, passive smoking, infestation of cockroaches and the contraction of a variety of skin diseases, fungal infections and exposure to the risk of contraction of tuberculosis and syphilis. At paragraph 95 the Court noted that it had considered the treatment to be inhuman because, inter alia, it was premeditated; it was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering; and it was degrading because it was such as to arouse in the victims a feeling of fear, anguish and inferiority capable of humiliating and debasing them: see, for example, Kudla v Poland [GC], no 30210/96, paragraph 92, ECHR 2000-XI. The Court continued:

"In considering whether a particular form of treatment is 'degrading' within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, the Raninen v Finland judgment of 16 December 1997, Reports of Judgments and Decisions, 1997-VIII, pages 2821-22, paragraph 55). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, for example, Peers v Greece, no 28524/95, paragraph 74, ECHR 2001-III). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention."

14. Before the learned District Judge the appellant had put in his proof of evidence. Although he did not give evidence personally because he was detained in Czechoslovakia, the District Judge considered carefully his proof and in my judgment correctly rejected that the conduct there described crossed the Article 3 threshold.
15. Miss Amelia Nice, who has appeared for the respondent before us, points out that the contentions in the appellant's statement were unsupported by any other material.
16. The position has moved on since the hearing before the District Judge. A number of questions were asked of the respondent. They were as follows:

"Please confirm:

(1) What proper provision is made for diet of prisoners?

(2) Please comment on the information that the cells are overcrowded.

(a) What measures, if any, are in place to ensure there is no overcrowding?

(3) Please explain the exercise regime?

(a) Is this daily?

(b) If not, why not?

(4) Medication: Are you able to confirm whether [the appellant] was diagnosed with hepatitis?

(a) What is the availability of doctors and medication for prisoners?

(b) What assessments are made of prisoners to check on their overall welfare?

(5) Please explain the punishment regime.

(a) If solitary confinement is ordered, how long is it ordered for?

(b) In such a case, what provision is made for drinking water (and food)?

(c) [Was the appellant] ordered to serve solitary confinement?

(6) Is there an independent body in the Czech Republic which monitors prison conditions? If not, what is done to assess and review the conditions of prisons?"

17. A detailed answer was supplied by the respondent on 6 November 2008. I do not propose to recite the whole of it. I will give an example with regard to the hepatitis suffered by the appellant. The response is:

"There is the hepatitis type B in the medical record of the convict ....; it was verified with the hepatal block laboratory examination. A light AST elevation temporarily, normal liver tests before. The convict has been dispensarised and checked up, including taking laboratory samples according to the period index regularly. The therapy ensured fully."

There are detailed responses with regard to disciplinary punishment and the exercise regime.

18. Mr Lloyd submits that the responses did not answer in detail all of the questions that I have recited. It is true that it might have been possible for there to have been a more detailed answer, but it seems to me that overall the answers given are quite sufficient to illustrate that the circumstances in which the appellant is held fall a very long way below the threshold necessary to establish Article 3 ill-treatment or the risk of it.
19. The court has also been provided with an agreed extract from a report to the Czech Government on a visit to the Czech Republic carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in March, April and June 2006. It is true that, although the visits included four prisons in the Czech Republic, they did not include the prison where the appellant is detained. However, it is also clear that the Committee found nothing that could remotely approach any breach of Article 3 of the Convention.
20. The argument advanced by Miss Nice on behalf of the respondent is that the Czech Republic has been a member of the European Union since 2004. It is a State party to the European Convention on Human Rights and has a permanent representative sitting on the Council of Europe, a Judge in the Strasbourg Court, and is a signatory to a number of other International Treaties and Conventions on the Protection of Human Rights. It has various internal mechanisms for advising upon, monitoring and implementing its human rights commitments. She submits that it is a designated Category 1 territory for the purposes of the Act and that the starting point for the court is that, in the absence of specific cogent evidence to the contrary, the Czech Republic must be taken to act in good faith and that it will comply with the appellant's rights in accordance with its international obligations. Miss Nice submits that that presumption has not been rebutted by any evidence submitted by the appellant to the court.
21. I agree with that submission. My conclusion is, first, that there is no statutory right of appeal to this court under the Extradition Act; secondly, having reviewed all the evidence, not only that before the District Judge, but the supplemental material that has been advanced before the court, this is not a case that would come anywhere near approaching a breach of Article 3. For my part, I would have come to the same conclusion as the District Judge did on the material before him. We have now seen further material which fortifies that conclusion.
22. I would therefore dismiss this appeal on the basis that the court has no jurisdiction to entertain it. I do not think that this is an appropriate case to consider an application for leave to apply for judicial review out of time.
23. MR JUSTICE McDUFF: I agree.
24. MR LLOYD: My Lord, can I just ask for a detailed assessment?
25. LORD JUSTICE SCOTT BAKER: You can have that certainly. Thank you both very much.