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
		14 December 2010

1. LORD JUSTICE SULLIVAN: This is an appeal against the order of District Judge Evans dated 4 November 2010 that the appellant be extradited to Latvia. The extradition hearing took place on 11 October 2010. Latvia is a Category 1 country.
2. At the hearing before the District Judge, it was accepted that the offences in respect of which the appellant had been arrested on two European Arrest Warrants were extradition offences. Extradition was resisted on three grounds. It was contended that extradition would be (1) in breach of the appellant's Article 3 rights because there was a risk that he would be ill-treated by police in pre-trial detention and subsequently in prison. An application was made for an adjournment so that evidence could be adduced as to prison conditions in Latvia; (2) in breach of the appellant's Article 8 rights; (3) oppressive because of the appellant's mental condition. It was said that he had attempted suicide, had self-harmed and was a suicide risk.
3. On this appeal, the Article 8 ground is not pursued. There was no medical evidence before the District Judge so the evidence as to the appellant's mental state came almost entirely from the appellant himself. I say "almost entirely" because there was material provided by the respondent which said that in September 2005 the appellant had consulted a psychiatrist, and the diagnosis was emotionally unstable personality. That is as far as the evidence about the appellant's mental state went.
4. As Miss Gardner fairly accepted, the difficulty with pursuing this ground of appeal is that the District Judge, who heard the appellant give evidence, said this in paragraph 14 of his judgment:

"There is no evidence before the court to suggest the mental state of the defendant is such as to remove his capacity to resist the impulse to commit suicide. I thought the defendant was an unsatisfactory witness, keen to manipulate the proceedings and delay his extradition. I found him unconvincing and his story was nothing more than that, an invented account designed to frustrate his extradition. I did not believe a word of it."

5. Although there has been ample time in which to do so, no medical evidence has been adduced before this court. It follows, in my judgment, that this ground of appeal is fairly described as hopeless.
6. Also hopeless, in my judgment, is the appellant's contention that he would be ill-treated by the police during pre-trial detention. That aspect of the Article 3 ground relies on the appellant's own account of what had happened to him in earlier detentions. However, since the appellant's entire account was disbelieved by the District Judge, this aspect of the Article 3 ground must also fail. I would add for the sake of completeness that the allegations are disputed by the respondent, and the material containing the respondent's answers to the allegations made by the appellant was before the District Judge.
7. That leaves the Article 3 ground. That is based on the objective evidence as to conditions in Latvian prisons. This ground does not rely on the appellant's own testimony, but on objective evidence by way of reports. In respect of this ground, the District Judge said this in paragraph 6 of his judgment:

"Ms Gardner renewed her application for an adjournment as she wanted to put before the court various human rights reports relating to conditions in Latvian prisons. I refused the application. As I explained; Mitting J in his decisions in three recent cases (1) Jan Rot v District Court of Lubin, Poland [2010] EWHC 1802 (Admin), (2) Tomasz Dabkowski v District Court in Gorzow, Poland [2010] EWHC 1712 (Admin) and (3) Arvdas Klimas v Prosecutor's General Office of Lithuania [2010] EWHC 2076 (Admin) he addressed the extent to which the extradition court is obliged to admit evidence and entertain submissions directed to fair trial issues, (articles 5 & 6) and prison conditions (article 3) in relation to Category 1 territories. I did not consider such reports would be helpful or relevant to the decision I had to make."

8. Although the District Judge's approach to this issue was challenged by Miss Gardner on behalf of the appellant, it is plain, in my judgment, that the approach of Mitting J in the three cases referred to by the District Judge has been either followed and/or approved in subsequent decisions: see, for example, the decision of Irwin J in Abramowicz v the Regional Court in Bialystock [2010] EWHC 2956 (Admin) (treatment of detainees in Poland), and importantly, Sorokins v Kraslava Regional Court of First Instance (Latvia) [2010] EWHC 1962 (Admin), a decision of the Divisional Court (Hooper LJ and Kenneth Parker J). In Sorokins, the Divisional Court considered the two reports on which the appellant places reliance in this case. Primary reliance is placed on a report by the Council of Europe's Committee for the Prevention of Torture in respect of a visit it made to Latvian prisons in 2007. There is also a report of the United States State Department in 2008. It was not before the District Judge, and Miss Walker therefore contends that it should not be received in evidence on this appeal. It is unnecessary to resolve that issue: firstly, because Miss Gardner accepts that the 2008 report adds very little to the Council of Europe 2007 visit report, save, she contends, to demonstrate that no improvements have been made; but more importantly, because both reports were considered by the Divisional Court in Sorokins.
9. Having referred to the reports in paragraph 9 of his judgment, Kenneth Parker J said this in paragraphs 10-12:

"10. However, first, that report [of the 2007 visit] expressly stated that the prison conditions "could in some cases be considered inhuman and degrading". That would strongly suggest that even in 2007 prisons in Latvia did not systematically fall below the standards required by Article 3, even if there were sporadic failures. Secondly, that report was in 2007. The government of Latvia acknowledged that prison conditions were poor and were making efforts to improve facilities. We do not have up-to-date material but we should not assume that as a member of the Council of Europe and bound by the ECHR, Latvia has not continued it efforts to improve prison conditions. In this context it is notable that the government has generally permitted independent monitoring of prisons by international and local human rights groups and such willingness to submit to independent scrutiny gives ground for believing that the government is likely to continue its effort for improvement.

11. It is also notable that Latvia had an ombudsman with power to deal with complaints in respect of prison conditions and treatment and has, according to the report relied upon taken steps to investigate a number of these complaints.

12. Finally, as I have noted, Latvia is a member of the Council of Europe and is obliged take steps to comply with Article 3 of the ECHR in respect of prison conditions."

10. Kenneth Parker J concluded in paragraph 14:

"14. In short, the new evidence comprising the report tends to show, in 2007, sporadic failure to meet the requirements of Article 3. There are governmental efforts to improve prison conditions generally and a working system for handling specific complaints. In my judgment, that evidence falls far short of proving that this requested person would face a real risk of inhuman or degrading treatment if he were to serve a term of imprisonment in Latvia. I would dismiss this appeal."

Hooper LJ agreed with that judgment.

11. While that decision, as a decision of a Divisional Court, is not binding upon us, we would follow it as a matter of judicial comity unless we were persuaded that it was wrong. Miss Gardner submitted that, on a proper reading of the report of the 2007 visit, the failures were more than sporadic; they were systemic, and, she submitted, conditions were not improving. However, she was able to adduce no more material than the material which was available to the Divisional Court in Sorokins. There was, however, material before the District Judge in the form of information from the Government of Latvia under cover of letters dated 8 October 2010 and 5 October 2010. In those documents, the Government of Latvia dealt with the appellant's detailed allegations, but also it dealt in more general terms with prison conditions. I note, for example, it said:

"In Latvia are taken required measures so that living conditions of prisoners would meet the standards set by the European Union."

In another passage, an agreement to improve the conditions in a juvenile correctional facility is noted, so that insofar as there is more material than was available before the Divisional Court in Sorokins, it tends to support the Divisional Court's view that the Government of Latvia is making efforts to improve the conditions that were noted in 2007. I, for my part, therefore, am not prepared to depart from the approach in Sorokins.

12. Miss Gardner submitted that regard should be had to the fact that this appellant had committed serious offences and would therefore be put in certain types of prison accommodation, but it is fair to observe that in Sorokins the offences alleged against the appellant were attempted burglary, five burglaries and a theft, so that those offences also were, on the face of it, serious offences.
13. Miss Gardner also relied on a recent decision of the European Court of Human Rights, a judgment delivered on 19 October of this year, in the case of Bazjaks v Latvia (App No 71572/01). The court in that case held unanimously that there had been a violation of Article 3 by reason of the inhuman and degrading conditions in a prison in Latvia, and that there had been a breach of Article 13 because there had been no effective remedy in respect of those prison conditions.
14. In my judgment, that decision is of no assistance to the appellant for the two reasons given by Miss Walker: first of all, the European Court of Human Rights' decision was based on historic conditions in a particular prison in 2001 and 2002, and the decision in Sorokins deals with the more up to date information contained in the 2007 report; secondly, the decision of the European Court of Human Rights does tend to confirm the rationale which underlies the Rot series of decisions: that is to say, Latvia is a category 1 territory; it is a signatory to the ECHR; and if there is a complaint that its prison conditions do breach Article 3, then the complainant may pursue that complaint to the ECHR.
15. In summary, it is plain that the constitutional order of Latvia has not broken down so as to render the protection of Article 3 ineffective.
16. For these reasons, I would dismiss this appeal against the District Judge's decision.
17. MR JUSTICE BURTON: I agree with my Lord.
18. LORD JUSTICE SULLIVAN: Any further applications?
19. MISS GARDNER: No, my Lord.
20. LORD JUSTICE SULLIVAN: No. Thank you both very much for your very helpful skeleton arguments.