England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 March 2012

MR JUSTICE SILBER:

This is the judgment of the Court

I. Introduction

1. Lucy Wright (also known as Robertson) ("the appellant ") was detained on 14 March 2007 at Ezeiza Ministro Pistarini Airport in Buenos Aires as she attempted to leave on a flight to the United Kingdom with an illegal substance stored in her luggage. She was remanded into preventative detention and questioned, but on 15 March 2007, she was granted bail. The appellant accepts that in breach of her bail conditions, she fled the Argentinean jurisdiction and returned to the United Kingdom via Brazil.
2. On 5 September 2008, the Argentinean requesting authority ("the respondent") issued a request for the appellant's extradition to Argentina through diplomatic channels so that she could face a single count of "attempting to take into the customs territory of Argentina, by concealment from customs and with the purpose of commercialisation, approximately 6,320 grams of substance, presumably illegal drugs (cocaine)". Argentina is a classified as a category 2 country under the terms of the Extradition Act 2003 (" the 2003 Act").
3. The request was certified by the Secretary of State for the Home Department pursuant to section 70 of the 2003 Act on 9 September 2008. An arrest warrant was duly issued by District Judge Evans pursuant to section 71 of the 2003 Act on 7 November 2008. The appellant was subsequently arrested on 4 April 2009, and she was brought before City of Westminster Magistrates' Court where extradition proceedings commenced.
4. At the conclusion of the extradition proceedings, Senior District Judge Riddle handed down a judgment concluding that there was a case for the appellant to answer under section 84 of the 2003 Act and that the extradition of the appellant would not infringe her rights under Article 8 of the ECHR. It is that decision which is the focus of the present appeal. Accordingly the Senior District Judge sent the matter to the Secretary of State for the Home Department in accordance with the procedure set out in section 87(3) of the 2003 Act. On 3 July 2010, the Secretary of State made an order for the claimant's extradition pursuant to section 93(4) of the 2003 Act, but no challenge is made to that decision.
5. There were delays in fixing the present appeal against the decision of the Senior District Judge and the time for hearing the appeal was extended until 21 December 2010. When this time was not further extended, an application for habeas corpus was made on behalf of the appellant. It was dismissed by this court (Gross LJ and Davis J) on 25 January 2011 in judgments with the neutral citation number [2011] EWHC 515 (Admin).
6. The appellant, who wishes to be tried in this country, has stated first that she admits she would plead guilty to a charge of attempting to import cocaine into the United Kingdom if charged in this jurisdiction, and/or being a party to a conspiracy to import into this country the cocaine found in her possession in Buenos Aires Airport and second that she would not take any point on abuse of process if prosecuted here within a reasonable period. Mr. Alun Jones QC, counsel for the appellant has given undertakings to the court to that effect.
7. To achieve that aim of being tried in this country, the appellant has brought the present judicial review proceedings in which she is now seeking permission to challenge first the decision of the Commissioner of the Metropolitan Police not to investigate the claimant's involvement in a conspiracy to import the cocaine into the United Kingdom and second the decision of the Director of Public Prosecution not to prosecute the appellant for that offence. During the hearing in front of us, Mr. Jones explained that he did not wish to pursue this judicial review application, which on our preliminary view was doomed to failure and which we will dismiss. It follows, in the light of our decision on the extradition proceedings that the Crown Prosecution Service will be free to bring proceedings against the appellant within a reasonable time of the date of this judgment based on her free admissions set out above.

II. The Extradition Proceedings

8. At the extradition hearing before Senior District Judge Riddle, two issues were raised on the appellant's behalf against the accepted background that if extradited to Argentina, she would receive a lengthy prison sentence as the Codigo Aduanero (the Argentinian Customs Code) sets the scale of sentences for the offence committed by the appellant as ranging from at least 4½ years imprisonment to a maximum of 16 years imprisonment. Those issues were that:-

(a) There was no case to answer against the appellant specifically as to whether the nature of the substance in her possession had been proved under section 84 of the 2003 Act; and that

(i) The appellant's extradition was incompatible with her rights under Article 8 ECHR taking into account all the circumstances, including her poor mental health at the time of the offending, the consequences of her serving a lengthy sentence so far from the United Kingdom where her family would be unable to visit her.

9. In a reserved judgment handed down on 5 May 2010, the Senior District Judge concluded first that there was a case for the appellant to answer under section 84 of the 2003 Act and second that her extradition would not breach her article 8 rights. Thus he sent the matter to the Secretary of State in accordance with the procedure set out in section 87(3) of the 2003 Act.
10. The appellant appeals under s103 of the 2003 Act against the decision of the Senior District Judge to send her case to the Secretary of State on the grounds that: -

(i) New evidence not before the Senior District Judge showed a real risk that the appellant, if returned to Argentina, would face inhuman and degrading treatment contrary to her Article 3 rights under ECHR;

(ii) The Senior District Judge erred in concluding that appellant's extradition to Argentina was compatible with her Article 8 rights under the ECHR to a private and family life, as he failed to attach sufficient weight to the prospect of a serious deterioration in the appellant's mental condition upon extradition and to the possibility of her misconduct being prosecuted in this jurisdiction; and that

(iii) New evidence not before the Senior District Judge showed that the appellant's extradition to Argentina was incompatible with her right under Article 5(3) of the ECHR to "a trial within a reasonable time or to release pending trial".

11. The significance of raising the contention concerning the effect on appellant's rights under Articles 3,5 and 8 of the ECHR being infringed by her removal to Argentina is that section 87 of the 2003 Act states that: -

"(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

(2)If the judge decides the question in subsection (1) in the negative he must order the person's discharge."

12. The case for the respondent is that the removal of the appellant to Argentina would not infringe or constitute a real risk of infringing the appellant's rights under the ECHR and so her appeal should be dismissed. This dispute requires this Court first to make factual findings on how the claimant would be treated if extradited to Argentina and then to decide if the appellant's rights under Articles 3, 5 and 8 would be infringed by her extradition to Argentina.

III. The Article 3 Issue

(i) Introduction

13. The Article 3 issue was not raised before the District Judge, but by an order dated 15 February 2011, the Divisional Court (Toulson L J and Lloyd Jones J) permitted the appellant to adduce fresh evidence on the issue of prison conditions in Argentina and the respondent was entitled to serve evidence in reply. Evidence was duly served by both the appellant and the respondent on the issue of the prison conditions, which the appellant would have to endure in Argentina. It was a term of the order that if either party wished to cross-examine any of the makers of the witness statement, an application had to be made by 4 pm on 26 April 2011.
14. No application was made by that date or at all and so the only evidence before us relating to the Article 3 issue was the written evidence which comprised on the respondent's part the Argentinean Federal Penitentiary Service's "Report on the extradition request of Mrs. (sic) Lucy Robertson" dated 25 February 2010 ("the February 2010 report"), the Report of the Undersecretariat of Penitentiary Magistrates of Argentina dated 20 May 2011 ("the May 2011 report") and extracts from "Gender Programmes in Prison" published by the Ministry of Justice and Human Rights in Argentina.
15. The appellant's case included a report from the Argentinean Civil Society Organisation's "Women's Human Rights: Argentine State Pending Debts" dated 2010, a report by Professor Marcos Salt date November 2009 and most importantly the expert evidence given by Dr. Maria del Carmen Verdu, who is an Argentinean lawyer with expertise in international litigation before the Inter-American Court of Human Rights and a frequent lecturer in human rights. Her amalgamated report was dated 30 March 2011 and it was followed by her final addendum report dated 18 November 2011, to which the respondent has not responded.
16. The task on this application is to determine how this appellant will be treated in Argentina in the prisons where she will be detained and whether there is a real risk that the appellant if extradited would be subjected to torture or to inhuman or degrading treatment or punishment in Argentina (Soering v United Kingdom (1989) 14 EHRR 439,468[88]). The thrust of the appellant's case is that the expert evidence shows a "scenario of systematic human rights violations" in Argentinean penal institutions. It is said by Mr Jones that this evidence discloses at least a real risk that the appellant, if returned to Argentina, will face inhuman and degrading treatment.
17. Mr Jones contends that the evidence of Dr Verdu establishes that the appellant if extradited would be at real risk of suffering from first a lack of proper supplies, second systematic abuse from prison staff, including cruel punishment and degrading searches and third violence on inmates by fellow prisoners, which is not prevented by prison staff. These matters according to Mr. Jones are of such severity as to reach the high threshold for showing that the appellant should not be extradited.
18. Mr Ben Brandon counsel for the respondent contends that the case for the appellant is based on a flawed factual premise, which is that she will be incarcerated in Unit 3 Ezeiza, while the true position is that she would be housed in Unit 31 of the Federal Penitentiary Complex 1 of Ezeiza where conditions are much better. The case for the respondent is that these complaints are not justified and they ignore the safeguards open to the appellant in Argentina, but that in any event, the appellant's case does not reach the threshold for showing that there is a real risk that the appellant if extradited would be subjected to torture, to inhuman or degrading treatment or to punishment in Argentina.
19. The case for the respondent relies on the response of the Ministry of Justice which explains first that the Prison Committee of the National Public Defence has on several occasions inspected the facilities of Unit 31 together with the International Centre for Prison Studies, formerly attached to King's College London and second that significantly there have been no complaints about the conditions. During the course of the hearing, it was pointed out that the report disclosed that both Baroness Stern and Andrew Coyle, a former Governor of HMP Wormwood Scrubs are said to have visited this Unit but there is no statement from either of them or any supporting evidence.
20. It is also said in the February 2010 report that: -

"The legal protection of women in prisons is based, basically on The International Treaties on Human Right that in Argentina are backed by the National Constitution and Act No. 24660 on the execution of jail offences. Likewise, the detention conditions are supervised by the National Penitentiary, the Prison Commission for the General National Prosecution, the Prison Commission the Nation Controlled by the Court of Appeals in Criminal Matters and different international organisations that visit the Argentine Federal Penitentiary System".

21. The report also explains that every ruling by the Supreme Court of Justice in the Argentine Republic, which is the highest judicial authority in that country, is applicable to people who have lost their right to freedom. This is interesting background material, but the crucial question is how this appellant would actually in practice be treated in an Argentinean prison if she was to be extradited and more specifically if such treatment would infringe her rights under the ECHR.

(ii) In which prison will the appellant be held in Argentina?

22. At the heart of the dispute between the parties is the issue as in which prisons the appellant would be held if she is extradited to Argentina. It is striking that no undertakings have been given by the Government of Argentina as to where the appellant will be held even though the respondent's case that the appellant would be housed in Unit 31 is based on the May 2011 report from the Under Secretary of Penitentiary Affairs at the Ministry of Justice and Human Rights in Buenos Aires in which it is said that: -

"Because Lucy Robertson is a British citizen if she were extradited to our country she would be housed in Unit 31 exclusively," and that

"Unit 31, the place that would house the British citizen whose extradition has been requested".

23. On the basis of those statements, Mr Brandon contends that this constitutes an assurance or an undertaking by the respondent that the appellant would be housed in Unit 31 for the course of her detention. This submission cannot be accepted because it is not stated in that document or anywhere that the appellant would remain there during her entire period in custody or indeed even that she would be there for any particular length of time. In any event, these statements do not amount to the kind of an inter-governmental undertaking, which is usually given in extradition cases and which is regarded as acceptable and binding in such cases.
24. The respondent contended that a reason why the appellant would be housed in Unit 31 is that first she is pregnant with an estimated date of delivery of 10 May 2012 and second, as explained by Dr Verdu children under 4 years old, are allowed to stay with their mother and they are housed in Unit 31 together with pregnant women and other inmates. The appellant will be unable to avail herself of that facility, as we were told by Mr Jones that the appellant if extradited to Argentina will leave her child in the care of her sister in the United Kingdom with the consequence she will not be qualified to go to Unit 31. It should be added that it is common ground that the appellant will now be unable to fly until after her baby is born, and so it is clear that her child will be born in England and will not go to Argentina.
25. It has also been said in the February 2010 report that people from English-speaking countries like the appellant will be held in Module 5 of FPC1 in Ezeiza, but the uncontradicted later evidence of Dr. Verdu is that this Module no longer exists and it has been described in the May 2011 letter from the Ministry of Justice as having "become inactive". Dr Verdu says that in consequence the foreign inmates and in particular the very few English speakers will have been transferred to and will be housed in other units. She also explains that transfer of prisoners is a constant part of the prison system's routine so that defence lawyers are sometimes forced to travel to two or three different prisons until they ascertain the whereabouts of the inmates they wish to visit. None of this evidence has been specifically disputed and no application has been made to cross-examine Dr. Verdu. In those circumstances, her evidence must be accepted.
26. It is said by Mr Jones that the evidence of Dr Verdu establishes first lack of proper food and personal hygiene products, second abuse from prison staff and third violence on inmates by fellow prisoners, which are not prevented by prison staff.

(iii) Lack of proper food and personal hygiene products in Argentinian Prisons

27. Dr Verdu explains that "food and personal hygiene product shortages are the rule in Argentine prisons" with the consequence that prisoners only manage to subsist by relying on food and other goods brought to them in prison by their relatives during their weekly visits. The appellant explains that she has no friends or relatives in Argentina and that her family would be unable to pay to come to visit her with the result that she is unlikely to receive any visitors. In those circumstances, according to Dr Verdu, detainees who are not visited by relatives and do not receive basic goods are forced to serve other prisoners and so in Dr Verdu's words, those prisoners (of whom the appellant would be one) "are in fact reduced to slavery (including sexual services)" (14/333).
28. The evidence of Professor Salt is that "prisoners have to supply themselves with food, clothing, toiletries etc and are therefore dependent on assistance from family and friends" (9/228). The appellant is unlikely to obtain such assistance as she will have no friends or relatives who will visit her and as Dr Verdu explains, "because of the high corruption level at all [prisons] in many cases the food and hygiene products never reach the inmate".
29. The evidence of the respondent does not refute this, but it merely explains that in Module V adequate food is supplied, but that is not relevant because, as has been explained, that module is now closed. It is true that the February 2010 report states that the respondent is bound by international treaties on human rights and that detention conditions are supervised by the National Penitentiary, the Prison Commission of the General National Prosecution, which is controlled by the Court of Appeals in criminal matters. Nevertheless, the evidence of Dr Verdu demonstrates that these bodies are either unable or unwilling to ensure that proper food and resources are available to prisoners.
30. It seems clear that the appellant would not receive even basic supplies of food and hygiene products if detained in an Argentinean prison.

(iv) Physical attacks

31. Dr. Verdu explains that female prisoners are repeatedly attacked while in Argentinean prisons. The Inter-American Commission on Human Rights, which is an organisation born from the Organisation of American States' American Convention on Human Rights, issued a press release on 21 June 2010 (54/10) in which it concluded that:-

"torture, cruel, inhuman, degrading treatment are inflicted in detention centres. Specifically, it learned about frequent beatings, many times followed by cold showers; the practice of "falanga" or "pata-pata" consisting of blows to the soles of the feet; mistreatment through the firing of rubber bullets; prolonged isolation in punishment cells and overcrowding and poor material conditions" (14/334).

32. The press release went on to note first that reports had been received from "various sources" about the Argentinean State's unwillingness to investigate and punish the actions that are reported, and second that:-

"the lack of an official record of these actions that would make it possible to have reliable information about the real extent of the problem and to design prevention policies. In this regard, it must be noted that the lack of punishment encourages practices that go against the respect for integrity and human dignity".

33. Records kept by the National Penitentiary Attorney examined by Dr Verdu show that in 2009, 55% of the inmates were beaten or tortured during the first contact with prison staff. In addition, aggression on inmates was carried out during searches and during isolation punishment, which led to 77% of inmates suffering ill treatment, and sustained injuries like bleeding or having difficulties in walking. Dr Verdu also explains that 43% of the injured victims receive no medical attention from the Federal Penitentiary service (14/341).
34. Dr Verdu also pointed out that not merely are inmates attacked by staff but there is on the part of the prison staff complete inaction when there is fighting amongst prisoners or when wounded prisoners need assistance this according to Dr Verdu shows proof of the absence of any guarantees of the physical well being of prisoners by the Argentinean state. Reports from the Centro de Estudios Legales y Sociales ("CELS"), which is a non-governmental organisation which has been working since 1979 to promote and protect human rights in Argentina, has produced various reports which are supportive of the accusations of physical abuse, noting in 2008 that 64.3% of inmates said that they had been physically assaulted during their detention and in over half of the cases the attacks resulted in physical injury.
35. Dr Verdu quotes the NPAO 2010 annual report, which refers to the use of physical violence by prison officers with 32.4% of the imprisoned women stating that they had witnessed physical violence in prison comprising beatings, kickings, shoving carried out by officers against an inmate and 8.1% of women claimed to have been the victim of such treatment. Professor Salt explains that "women and particularly foreign women, are unusually especially vulnerable groups in the prison environment" (9/229).
36. Although there are provisions in various statutory provisions, including treaties, forbidding violence in prisons, the uncontradicted evidence shows a disturbing pattern of cruel, inhuman treatment being suffered by female prisoners and especially foreign ones in Argentina. So it is very likely that the appellant would be subjected to this treatment in the absence of any adequate redress available to her.

(v) Strip Searching of Female Prisoners

37. A study by CELS, which is a non-governmental organisation, explained that in 2007, nearly 70% of women prisoners suffered the most degrading and humiliating of inspections and this entailed being stripped naked and having to perform squats (9/223). A similar complaint about intimate searches, which cannot be justified on security reasons, was made in the report for 2009. A subsequent report referred to similar problems (9/224). Dr Verdu writes about cavity searches of female prisoners who are often forced to stand completely naked in the presence of male staff when they have to go to hospital, to attend court, or if they are leaving the compound.
38. Dr Verdu refers to the NPAO annual report for 2010 which refers to the continuing use of squatting in full nudity and vaginal inspections are common with 24% of the interviewed women stating that this occurred to them often or very often.
39. The picture that emerges on the uncontradicted evidence is of frequent bodily and cavity searches carried out on female prisoners often when they are completely naked and in the presence of males. The appellant would have to suffer this if detained in an Argentinean prison.

(vi) Conclusions on likely treatment of the appellant in the Argentinean prison

40. As has been explained, the respondent has failed to give any undertakings as to how and where the appellant would be held if extradited to Argentina and the detailed evidence of Dr. Verdu could have been, but has not been, the subject of cross-examination.
41. In deciding how to evaluate Dr. Verdu's evidence, it is correct to bear in mind that:-

"it is, however, important that reports which identify breaches of human rights, or other reprehensible activities on behalf 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 upon 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" (per Latham LJ in Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 Admin [11]).

42. The characteristics which would make the appellant vulnerable to abuse are her sex and the fact that she would be foreigner. Even after taking account of the evidence put in by the respondent which essentially relates to Module V (which is now closed) and Unit 31 (which is where the appellant may spend some part of her sentence), the evidence adduced before us demonstrates clearly that there is a systemic abuse of foreign women prisoners in Argentina so that the appellant would if extradited be subject to shortages of basic food and personal hygiene products, frequent physical violence and degrading intimate searches in the presence of men. The evidence shows that there would be inadequate redress available to her and the respondent would be unable to prevent these abuses.
43. In order to preclude extradition the appellant must, as has been explained establish "sufficient grounds" to demonstrate a "real risk" that if extradited, she would subjected to torture or inhuman or degrading treatment or punishment (see Soering [91]).
44. It seems clear in this case that the abuses, which the appellant would suffer in Argentina, are so widespread and systemic that there is a real risk of article 3 mistreatment. In other words, the appellant should not be extradited because to do so would affront well-established authorities that humanitarian principles prevent a country from removing an individual to a country where he or she is foreseeably at real risk of being seriously ill–treated (see, for example Soering and Chahal v United Kingdom (1996) 23 EHRR 413) For those reasons, the appeal will have to be allowed on the article 3 ground. So the other grounds can be dealt with more briefly than they would have been if they were of crucial importance on this appeal.

IV. The Article 8 Issue

45. Article 8 guarantees respect for private and family life and it is well settled that "the preservation of mental stability is.. an indispensible precondition to effective enjoyment of the right to respect for private life" (Bensaid v United Kingdom (2001) 33 EHRR 205 [47]).
46. Mr Jones has submitted correctly that in the immigration context, there might well be circumstances in which it would not be possible for an individual to be removed where he or she would be at high and increased risk of committing suicide without contravening his or her human rights and in particular those safeguarded by articles 3 and 8 ECHR. This approach has been recognised by the European Court of Human Rights in Bensaid (supra) and by this court in J v Secretary of State for the Home Department [2005] EWCA Civ 629. More recently in Jansons v Riga District Court, Latvia [2009] EWHC 1845 (Admin), this principle was applied to an extradition case.
47. The evidence in this case relied on by the appellant comes from a consultant psychiatrist Dr Jan Falkowski, who explained that the appellant suffered from a major depressive disorder during 2006 from which she had recovered by the time of his first report in February 2010. He concluded that the appellant then was at risk of developing a major depressive disorder again because of the risk of her becoming depressed if she was to be sentenced to serve a prison sentence in Argentina.
48. The appellant also seeks to rely on a second report of Dr Falkowski of 29 November 2010 and which post-dated the decision under appeal. He noted that the appellant had begun to exhibit minor symptoms of depression which might be developing into a major depressive disorder, because he noted the prison conditions as described by Dr Verdu would be likely to lead to the appellant becoming depressed again as she would find it very difficult coping in Argentina. Dr Falkowsi considered that if the appellant was facing a lengthy period in prison, it would make the risk of her attempting suicide high.
49. There is no more recent report before the Court. Mr Jones frankly accepted that the appellant's legal team had not noticed anything in the appellant's demeanour more recently as requiring further medical investigation or treatment.
50. Mr Brandon contends that a very high threshold that has to be reached before extradition can be refused on account of the article 8 rights of the person subject to the extradition request. In Norris v Government of the United States of America (No.2) [2010] 2AC 487, the House of Lords upheld decisions that the ill health of the defendant and his wife and their mutual dependence as well as the fact that his extradition would have on his wife's depressive illness did not preclude an order made for extradition. Lord Philips of Worth Matravers PSC explained that "the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition" [56].
51. Lord Philips went on to say that:-

"if, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified. In such a situation the gravity, or lack of gravity, of the offence may be material."[62]

52. It is noteworthy that in the case of R (on the application of Elisabeth Prosser) v Secretary of State for the Home Department [2010] EWHC 845 (Admin), there was evidence that the combination of severe depression and a serious physical illness meant that the claimant was determined to kill herself if extradited, although medical assistance could substantially reduce the risk of a suicide attempt. This court concluded that the claimant's extradition to the United States would not be disproportionate in article 8 terms because her case did not have "striking and unusual features leading to the conclusion that it would be disproportionate to interfere with her article 8 rights" [32].
53. By the same token, there is nothing strikingly unusual or exceptionally compelling about the appellant's position as she is not currently suffering from any mental or depressive illness or other ailment. Even if Dr Falkowski established that there was a risk of suicide, that would not suffice to provide a ground for refusing extradition on article 8 grounds. For the purpose of completeness, it should be added that even if the article 8 rights of the appellant were so potent that it was necessary to balance the public interest in extradition against the effect of it on the appellant's human rights, then at that point the seriousness of the crime committed by the appellant would be a relevant factor. In this case, the appellant has admitted to an extremely grave crime of being party to a conspiracy to bring into the United Kingdom over 6 kilos of cocaine. That factor would militate against precluding the extradition of the appellant on article 8 grounds.

V. The Article 5 Issue

54. The case for the appellant is that there is such a risk of a long pre-trial detention, which would amount to a breach of the appellant's rights under article 5(3) of the ECHR, which provides that:-

"Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article [namely for the purpose of bringing the person before the competent legal authority] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

55. It is clear that for the appellant to succeed on this ground, she must establish that there are substantial grounds for believing, that, if she is extradited, there is a real risk of a flagrant breach of article 5. In R B (Algeria) v The Secretary of State for the Home Department [2010] 2 AC 110, Lord Phillips of Worth Matravers explained that the term "a flagrant breach" meant "a breach whose consequences are so severe that they override the right of a state to expel an alien from its territory" (132).
56. In this case, there is evidence that there will be a long period of pre-trial detention for the appellant if she were to be extradited, but significantly, there is no evidence that this pre-trial detention would not count against her ultimate sentence. As has been explained, the evidence shows that the scale of the punishment for the offence committed by the appellant in Argentina will range from at least 4 years and 6 months imprisonment to a maximum of 16 years.
57. In those circumstances it does not appear to be a "flagrant breach".

VI. Conclusion

58. The appeal will be allowed on the basis that the extradition of the appellant to Argentina would on the specific facts of this case infringe her rights under article 3 ECHR. It must be stressed that this is a fact-sensitive decision based solely on the specific facts in this case, and in particular first that no undertakings were given by Argentina and second that there was no attempt to cross-examine Dr Verdu on her evidence or otherwise to contradict her powerful evidence. Therefore there is no basis whatsoever for assuming or believing that future attempts by the Government of Argentina to obtain extradition orders will fail for these reasons, which were found to be crucial on the evidence adduced and that were not challenged in the present case. Our decision may well have been different if the Government of Argentina had adduced proper evidence or given undertakings. The reasoning in this case on the article 3 ECHR issue also would not apply to a country which was a party to the ECHR as it could always be assumed that such a country would ensure the article 3 rights of the requested person would be complied with.
59. The appropriate order would be, subject to the views of counsel, first that the appellants' against the order of 5 May 2010 made by the Senior District Judge is allowed and second that the appellant's application for judicial review is dismissed.