England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		19 June 2009

1. MR JUSTICE WILKIE: This is an appeal by Nachman Stal against a decision of District Judge Tubbs, dated 26 November 2008, authorising his extradition to Israel. Mr Stal, at that stage, was represented by solicitors who settled substantive grounds of appeal, essentially along the same lines of the argument which had been advanced before the District Judge.
2. Mr Stal has appeared before us in person, unrepresented, his solicitors having withdrawn a few days before the hearing. He has presented his case through an interpreter and we are extremely grateful to the interpreter for the conscientious and efficient way in which Mr Stal's representations have been interpreted for us. We may say that, although at times his representations became somewhat repetitious and bordered on the irrelevant, for the most part they were courteously presented, elegant, learned, and impassioned.
3. I first deal with the history of the criminal proceedings, the subject of the extradition. On 17 April 2000 Mr Stal was indicted by the Tel Aviv - Jaffa Magistrates' Court for offences of sodomy of a minor and performing an indecent act on a minor, each of them said to have been committed in 1998. Shortly after he was indicted he left Israel and came to England and Belgium, but in September 2004 he returned voluntarily to Israel, was arrested, and was detained for a period of a week or perhaps slightly longer before he was given bail.
4. On 2 May 2006, at a trial at which he was present and was represented by a lawyer, he was convicted of the two offences for which he was indicted. The court fixed a hearing for 24 May, some three weeks later, when he was to be sentenced. He remained on bail but was required to increase the amount of the security deposited with the court. He failed to deposit the additional sum, and in fact left Israel in breach of the court's order. Those two acts, the failure to post additional security and fleeing from the proceedings, form the basis of the two other offences for which Israel seeks his extradition, in addition to seeking his extradition in respect of the matters for which he was convicted in May 2006.
5. He was arrested 2 years later, on 28 May 2008, and on 18 June 2008 the Government of Israel issued an extradition request which was duly certified by the Secretary of State under the statutory regime. There was no dispute but that the conduct the subject of the request, both in respect of what he had been convicted of and the new allegations, constitute extradition offences within the meaning of the 2003 Act.
6. Before the District Judge the defence was a single issue defence, namely that extradition would not be compliant with convention rights under section 87 of the 2003 Act, it being submitted that there were substantial grounds for believing that if the defendant were extradited to Israel he would be subject to torture or inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights. Essentially, the case was that conditions in Israeli prisons, in respect of the average size of cell, the inadequate sanitation and ventilation, were such that, for this particular defendant, of whom a psychiatric report had concluded that he was currently suffering from a depressive illness, were such that there were substantial grounds for believing that there was a real risk of a breach of Article 3 in the form of the possibility that he would, in those conditions, with his depressive illness, commit self harm. The bases for that contention were reliance upon a report, being a Public Defender's report of detention and imprisonment conditions at prison facilities of the Prison Service during the year 2007. It was said that that highly critical, though as the District Judge concluded, balanced and measured report, described conditions such that, on that basis, rolled together with the psychiatric state of the defendant, it would be a breach of Article 3 for him to be extradited.
7. The District Judge, in a very full, and in my judgment, well reasoned decision, having considered that report, and having considered the relevant authorities, concluded that the case came nowhere near establishing that there would be a breach of Article 3. It is of importance to record that in the case of the Crown on behalf of Ullah v Special Adjudicator [2004], 2 AC 323, Lord Bingham distinguished between domestic cases, so called, and foreign cases, so called, the latter being those in which it is claimed that the conduct of the state in removing a person from its territory to another territory will lead to a violation of the person's convention rights in that other territory. Slightly later on in his speech in that case, at paragraph 24, he said this:

"While the Strasbourg jurisprudence does not preclude reliance on articles other than Article 3 as a grounds for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to Article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment".

8. Furthermore, the question of reliance upon reports giving a general account of conditions was considered by this court, a different constitution, in the case of Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 Admin Latham LJ, in the course of his judgment at paragraph 11, said as follows:

"It is however important that reports which identify breaches of human rights or other reprehensible activities on the part of governments or public authorities are kept in context. The fact that human rights violations take place is not, of itself, evidence that a particular individual would be at risk of being subjected to those human rights violations in the country in question. That depends on the extent to which the violations are systemic, their frequency, and the extent to which the particular individual in question could be said to be specifically vulnerable by reason of a characteristic which would expose him to human rights abuse."

9. In the course of her judgment, the District Judge did consider the defendant's personal characteristics, however, she also considered certain passages in the Public Defender's report, and in particular the passage at page 1 of the report which reads as follows:

"As a result of the summary report for the year 2006, the prison services appointed a special team headed by the chief of Israel Prison Services. His purpose was to form a profound and extensive analysis of violations brought to light in the Public Defender's report, whilst examining various potential solutions. Representatives of the Public Defender's office were duly impressed by the sincerity and professional approach displayed by the Israel Prison Service to that which was stated in the report, however, unfortunately there exists a large gap between the policies that should be adopted by the Prison Service and the situation that actually exists in the facilities themselves. One must hope that the summary of the findings of the visits by the representatives of the Public Defender in the current report as well will assist the relevant authorities to find a suitable solution in dealing with these violations, especially those of a severe nature and requiring an immediate response."

10. In the concluding summary of that report, the following passage:

"Despite endeavors to improve the situation, the main one being transference of responsibility from detention facilities, and for prisoner escorting layout from police authorities to prison authorities, the situation discovered in imprisonment facilities by the Defence Committee during the year 2007 was still far from satisfactory. Reports of members of the Committee do not refer to these shortcomings as specific or local ones, but as country wide, causing daily offences to both prisoner's and suspect's basic rights, and to an affront of their dignity as human beings. There is room to continue hoping that the relevant authorities will become wise enough to make use of the information presented this report in order to bring to a speedy general improvement of the serious above described shortcomings."

11. The District Judge, having had regard to that report, said this:

"It would appear that some physical conditions in Israeli prisons could be improved. Violations and breaches of human rights do, on occasion, occur. However, the prison authorities are independently monitored, have appropriately high standards, a professional approach, and are subject to scrutiny by responsible government bodies. The evidence is not of a prison system in which violations are systemic, frequent, and wide spread."

12. Having considered the personal characteristics she then went on to conclude:

"I find that no sufficient evidential basis or tenable grounds have been established to support a finding that the violations are systemic and are of such a frequency and nature that there is a real risk of the defendant being subjected to a breach of his Article 3 rights. I have borne in mind his vulnerability as a person now diagnosed as suffering from depression with a possibility of self harm. I am satisfied from the evidence that there are suitable and appropriate services to address issues of his mental health, and that appropriate protection is provided to prisoners to protect their personal safety".

13. Accordingly on that basis she found that there was no real risk of an Article 3 breach.
14. In so far as the grounds of appeal settled by the solicitors then acting sought to reargue those conclusions, on the evidence which we have seen, and in particular the content of the Public Defender's report in its entirety, we are perfectly satisfied that the District Judge came to the correct conclusions in rejecting those submissions. However, in his address to us, Mr Stal has effectively recast his case so as to present a fundamentally different case, and indeed has given an account, effectively in evidence, which was not an account presented to the District Judge.
15. We are not obliged to consider evidence which could sensibly have been given before the District Judge. In so far as some of his account is evidence of his own experience, plainly, that could and should have been presented to the District Judge, and therefore, although we have heard it, and I will in a moment deal with it, it can not properly constitute the basis of an appeal against the District Judge.
16. Mr Stal seeks to make one main point, which is that responding to the extradition request will put his life in danger. He sub-divides that main point into three subsections: The first is that being in prison in Israel would present danger for him. The second is that the objective of the Israeli Government in seeking his extradition is not in good faith, is not for the pursuit of justice, but is in the way of their seeking personal vengeance against him. The third is that if he were extradited to Israel, then, as a prisoner, he would be in particular danger in the event of attacks from Israel's enemies, whether from within or outside the territory of the state.
17. As to the first, he seeks to rely on his account of what happened when he spent a few days in prison before his trial, having returned voluntarily to Israel whilst indicted for these offences. He says that when it became known what offences he was charged with he was substantially ill treated by his fellow prisoners and was given no protection whatsoever by the prison authorities. Furthermore, he says that if he returned as a person convicted of that kind of offence he fears that that ill treatment would, not only continue, but would be intensified because, he says, there is no arrangement in Israeli prisons, such as there is in the prisons in the United Kingdom, to protect certain categories of prisoner by effectively segregating them from the general prison population. As we have indicated, that was all evidence which could and should have been presented to the District Judge but was not. In any event it is clear from the report of the Public Defenders, to which we have referred, and in particular at page 19, that they did consider the question of separation between various types of prisoner. Whilst it is right to say that they have said that in most detention facilities there is not separation between different types of prisoners, or between suspects on bail and convicted prisoners, there are provisions for prisoners in need of protection to be held separately in a small cell which creates great pressure on the conditions of the external adjoining cell. Furthermore, they dealt with what they perceived as a serious shortage of remedial therapy programs for sex offenders, but it is also clear from that passage, which is at pages 10 and 11 of the report, that this too is an area which is currently being addressed. We have no doubt in concluding that, whilst the conditions for convicted sex offenders in Israeli prisons may not be pleasant, just as they are not pleasant for such persons in the UK, what is described in the Public Defender's analysis of prison conditions falls very far short of giving rise to the kind of risk which would involve an extradition being in breach of Article 3.
18. The second basis is the assertion that the objective of the state is personal vengeance, not seeking justice. Mr Stal has said that he is informed by his wife that on the occasion when it became apparent in court that he had fled the jurisdiction there was considerable anger expressed on the part of the prosecution, on the part of the judiciary, and indeed on the part of his own lawyers. It may well be, and indeed in my own experience as a judge, that when somebody fails to appear and those who represent him do not feel able to offer any excuse they may indicate their disappointment that their client has not attended. It is undoubtedly the case that the court will not look with approval upon such conduct. In addition, he says that he has been told recently that the police, in trying to find him, went to considerable efforts such that members of his community were asked to speak to the police, and the police said that they had received orders from on high to put to one side routine activities within his district in order to try to find him. It was given a higher profile in his district than perhaps capturing terrorists. Once again, if someone who has been convicted of serious offences simply absconds, it is scarcely surprising if the police make significant efforts, certainly in the short term, to try to find them. Indeed, it would be a dereliction of their public duty if they failed to do so. He reports that, according to his brother, who has reported to his wife, who has told him within the last week or so, blood curdling threats were made by a senior police officer, apparently on a higher authority, that they were determined both to catch him and, when caught, to imprison him with terrorists and to seek his death either through his own hands or the hands of others. He says the reason that he has only found this out in the last week is that his family did not want to distress him, and the reason for this apparently very pointed personal animosity was the fact that he had not agreed to lie to the police by admitting that which he maintains he did not do.
19. The approach to an allegation of bad faith on the part of a government seeking extradition has been the subject of specific authority in the case of Deya v the government of Kenya [2008] EWHC 2914, where, in a wide ranging review of what would be required to show a breach of Article 3 rights, in that case in connection with prison conditions in Kenya, the following was stated at paragraph 40 of the judgment of the court:

"The starting point for a consideration of the submission that extradition would constitute a violation of the convention rights, including Article 3, is that there is a fundamental assumption that the requesting state is acting in good faith. That assumption may be contradicted by evidence, but the evidence required to displace good faith must posses special force."

20. The citation in that case, in support of that proposition, was to the case of Ahmad and Aswat v The Government of the United States of America [2006] EWHC 2927 Admin, at paragraph 101.
21. We have little doubt, having observed Mr Stal, that he is sincere in stating his fears and his concerns. However, his family have not been incarcerated, and if, indeed, what he is reporting to us were material that they had in their possession then it is extraordinary that, over the period of years that this matter has been proceeding, there has been no hint of any such account in any of the documentation or in any of the submissions made by him or on his behalf until this morning. In my judgment, the assertions made by Mr Stal, however cogently made, fall very far short of evidence of special force required to displace the fundamental assumption of good faith in this particular jurisdiction.
22. The third matter really is based on his assertion that prisoners within the prison system would be at special risk, over and above the general population, in the event of the state of Israel being subjected to attack, either internally or from outside, and whether by conventional arms or conventional rockets or nuclear attack. He has developed very extensively his belief that such attacks are highly likely, if not imminent. In my judgment, once again, whilst it may be a statement of the obvious that someone who is in prison is not able of their own volition to escape either attacks as they are happening, or the risk of attack, it is inconceivable in my judgment that, the state of Israel in particular, with its highly developed sense of concern over the security of its own citizens and the safety of its own citizens, would not have contingency plans to ensure that those who are within its care, such as those in hospital and in prison, have appropriate arrangements made to safeguard them in the event of such attacks occurring. In my judgment, what Mr Stal has asserted, again, comes nowhere near establishing the necessary risk of inhuman treatment to trigger a breach of Article 3.
23. Accordingly, whilst not for a moment doubting the sincerity of his concerns, in my judgment this is an appeal which, whether on the grounds settled by his solicitors, or the grounds which he has advanced this morning, must fail and I would dismiss it.
24. LORD JUSTICE STANLEY BURNTON: I entirely agree.
25. MISS CUMBERLAND: My Lords, could I invite your Lordships to remand the appellant in custody prior to his extradition. Thank you.
26. LORD JUSTICE STANLEY BURNTON: He will be remanded in custody.