Case No. CO/7289/2012 
Neutral Citation Number: [2013] EWHC 1254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 16 April 2013
 
B e f o r e: 

MR JUSTICE SIMON 
MR JUSTICE LEGGATT 
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Between: 
BRIAN RICHARDS
Claimant

v 

GOVERNMENT OF GHANA
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr P Garlick QC (instructed by Stokoe Partnership) appeared on behalf of the Claimant 
 
Ms Gemma Lindfield (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant 
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J U D G M E N T 

MR JUSTICE LEGGATT: 
1.	This is an appeal under section 103 of the Extradition Act 2003 against the decision of the Chief Magistrate, made on 2 July 2012, to send the appellant's case to the Secretary of State for the Home Department for her decision on whether the appellant should be extradited to Ghana.  The appellant is a Jamaican national, who lives in this country.  The crime of which he is accused is attempted murder.  

The Alleged Offence

2.	The offence was allegedly committed on 7 February 2005.  It appears that at that time the appellant was living in Ghana and was in a relationship with a lady called Ms Sally Kanbonaba.  The alleged victim, Mr Nadim Zakkour, worked for Ms Kanbonaba and in fact introduced the appellant to her.  Initially the appellant and Mr Zakkour were friendly with each other, but it appears that their relations became strained.  

3.	At the time of the incident Miss Kanbonaba was away and the appellant and Mr Zakkour got into an argument about whether Mr Zakkour should take her car to the garage.  It is alleged that the appellant took out a pistol and shot Mr Zakkour twice.  Mr Zakkour fell to the ground and started to bleed profusely.  He was taken to hospital where he had emergency treatment and one of his kidneys was removed.  It is said that the appellant asked one of Miss Kanbonaba's servants to accompany him in the car and drove to the British High Commission, where he was last seen entering the building.  

4.	According to his evidence at the extradition hearing, the appellant left Ghana the same day.  He went to Nigeria, from where he returned to this country, using someone else's passport.  When he left Ghana he knew that Mr Zakkour was seriously injured, though he says he did not know how serious the injuries were.

The Extradition Proceedings

5.	On 9 February 2005, an arrest warrant was issued by the Circuit Court in Accra.  In May 2008 a diplomatic note was issued and in August 2008 a certificate was issued by the Secretary of State for the Home Department, pursuant to section 70 of the 2003 Act.  After a number of adjournments the extradition hearing commenced in February 2012 before the Chief Magistrate.  The hearing was adjourned on several occasions and was finally concluded on 2 July 2012 when judgment was given.

6.	For the purposes of the Extradition Act, Ghana is a Category 2 territory.  Under Part 2 of the Act, which applies in this case, the judge is required to proceed in a series of steps.  The first step relevant for present purposes is that the judge must decide under section 79 of the Act whether extradition is barred for any of four reasons, one of which is the passage of time.  It was submitted before the Chief Magistrate that extradition is barred in this case by reason of the passage of time.  The Chief Magistrate rejected that submission.  

7.	If the judge decides, as the Chief Magistrate did, that there is no bar to extradition, he must proceed under section 84 of the Act, except in the case of certain countries which have been designated by the Secretary of State for the purposes of that section.  Ghana has not been designated by the Secretary of State for the purposes of section 84, and the Chief Magistrate therefore proceeded under that section.  This required him to decide whether there was "evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him." 

8.	It was accepted below that the evidence before the Chief Magistrate satisfied this test.  This required the Chief Magistrate to proceed under section 87, and to decide whether the appellant's extradition is compatible with his rights under the European Convention of Human Rights.  Before the Chief Magistrate it was argued that the appellant's extradition is incompatible with his rights under Article 3 of the Convention on the ground that the appellant's imprisonment in Ghana, pending trial and if convicted, would involve inhuman or degrading treatment or punishment.  It was also argued that extradition would be incompatible with the appellant's rights under Article 8 to respect for his private and family life.  The Chief Magistrate rejected those arguments, from which it followed that he was required to send the case to the Secretary of State for her decision whether the appellant is to be extradited.

The Appeal
9.	In the appellant's grounds of appeal, dated 7 July 2012, it is contended that the Chief Magistrate ought to have decided differently the three issues which were disputed at the extradition hearing.  First, it is said that the Chief Magistrate ought to have decided that extradition was barred by the passage of time.  Second, it is said that he ought to have decided that the appellant's extradition would be incompatible with his rights under Article 3 of the European Convention, because of the conditions in which he would be detained.  Third, it is said that the Chief Magistrate ought to have decided that the appellant's extradition would be incompatible with his rights under Article 8 of the Convention.

10.	This appeal was originally listed for hearing in January of this year.  Shortly before the hearing, however, some new evidence was served consisting of a witness statement from the alleged victim, Mr Zakkour, dated 26 November 2012, on which the appellant wished to rely.  As a result of the service of that evidence the respondent applied for, and was granted, an adjournment of the hearing of this appeal.  The purpose of the adjournment was to allow enquiries to be made of the authorities in Ghana to find out whether they were aware of the new statement made by Mr Zakkour, and to seek their comments.  

11.	On 11 April 2013, information was received to the effect that neither the Prosecution Division, nor the Ghana Police Service, had been aware of that statement.  It is said that the Ghana Police Service has been notified to contact Mr Zakkour, but they have not yet done so. 
 
12.	Mr Garlick QC, who has represented the appellant below and on this appeal, seeks to rely on the statement of Mr Zakkour and to argue, as a further ground of appeal, that its effect is such that the evidence, taken as a whole, is now insufficient to meet the test set out in section 84(1) of the Act.  

Is Extradition Barred by Passage of Time?

13.	Although it does not correspond to the order in which Mr Garlick presented the appellant's case this morning, I propose to consider the issues in the order that they arise under the 2003 Act.  I will deal first, therefore, with the question whether the Chief Magistrate ought to have decided that under section 79 of the Act the appellant's extradition is barred by reason of the passage of time.  Section 82 of the Act provides: 
 
"A person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
 
 (a)committed the extradition offence (where he is accused of its commission)..."
 
14.	The Chief Magistrate dealt with this issue at page 8 of his judgment as follows: 
 
"I can deal with this briefly. This defendant is not entitled to rely on the passage of time bar.  He is a classic fugitive.  He shot a man twice and then almost immediately left the jurisdiction.  This is not a borderline case.  Even if it were, the Ghanaian authorities have not misled Mr Richards into thinking that there would be no extradition.  The return of his passport by the UK authorities cannot be taken to indicate that there would be no extradition proceedings, and this defendant was never told that. I will deal later with article 8, but the facts relied on there would not in any event amount to oppression." 

15.	In his skeleton argument for this appeal Mr Garlick submitted that, on the basis of both the passage of time since the alleged offence was committed and the new evidence, it would be unjust or oppressive to return the appellant to stand trial in Ghana where he would spend many months in custody on remand in what are said to be appalling conditions (which I will come to later) whilst awaiting trial.

16.	In so far as reliance is sought to be placed for this purpose on the sufficiency or insufficiency of the evidence, or on prison conditions in Ghana, such reliance is in my view misplaced.  The question under sections 79(1)(c) and 82 of the Act is not whether it would be unjust or oppressive as a general matter to extradite the appellant, but whether it would be unjust or oppressive to do so by reason of the passage of time.  Thus, as I think Mr Garlick accepted in the course of argument, the only relevant question at this stage is the effect of the passage of time since the offence was allegedly committed.  

17.	In Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038, the House of Lords affirmed the principle that a person who deliberately flees a country to avoid facing the consequences of an alleged crime cannot, save in exceptional circumstances, rely on subsequent delay in extraditing him to say that it would be unjust or oppressive to return him.  Lord Brown, with whose judgment all other members of the Appeal Committee agreed, said at paragraph 26:  

"If an accused...deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not ‘of his own choice and making’.” 
 
18.	Although in this case the appellant was not on bail when he fled Ghana, he knew that the police would be looking for him as a result of the shooting of Mr Zakkour, and took a deliberate decision to flee the country as fast as he could, rather than stay to face the consequences.  It is not suggested that any deliberate decision was subsequently made by the State of Ghana not to pursue the case against him, nor that anything was at any stage said or done on its behalf which could have entitled him to believe that attempts would not be made to extradite him. 
 
19.	The House of Lords in Gomes also made it clear that the test for establishing oppression, or a likelihood of injustice, will in any event not be easily satisfied given the strong public interest in complying with extradition treaty obligations.  In this case because of the relationships which he has established in this country in the time since the alleged offence, it will inevitably cause hardship to the appellant and his family if he is returned to Ghana to stand trial.  But the primary responsibility for the delay and passage of time lies with the appellant himself, as he fled Ghana immediately after the incident.  

20.	In any event, those consequences can count for little when weighed against the public interest in assisting the administration of criminal justice in countries with which the United Kingdom has extradition treaties.  Accordingly the Chief Magistrate was in my view plainly right to find that the appellant's extradition is not barred by the passage of time.  As no other bar to extradition has been raised, and the appellant is not alleged to be unlawfully at large, it is necessary to proceed under section 84 and to consider next the sufficiency of the evidence.

The New Evidence

21.	As I have mentioned, before the Chief Magistrate it was accepted on behalf of the appellant that the test specified in section 84(1) was satisfied and that there was "evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him".  In the light of the new witness statement from Mr Zakkour, however, it is no longer accepted that this test is met.  In that witness statement, which takes the form of a statutory declaration, Mr Zakkour, at paragraphs 3 to 11, says this:  

"That I understand arrangements are being made to extradite Brian Richards to Ghana to face trial in the matter in which I made my earlier statement on 16th day of February 2005.  
 
That over time my health has improved considerably and I do not want to go through the ordeal of a trial.  

That when I made my original statement it was a week after the incident at which time my emotions were running high and my recollection was clouded with my emotion.  

That over the years I have had plenty of time to consider the events of the 7th day of February 2005.  

That what I recall about that day is that I got into a heated argument with Brian Richards in respect of my taking Sally's Range Rover vehicle.  

That during the argument a gun was brandished and there was a struggle for the gun between myself and Brian.  I now do not believe that the gun was brandished to be used, however there was a struggle and shots were discharged and I sustained injuries as a result.  
 
That looking back Brian never intended to actually shoot me the reason being that the shots were discharged as we were both struggling over the firearm.  

That my belief that Brian never intended to shoot me is confirmed by the fact that Brian was the person who put me in the taxi that took me to the hospital, an act which is clearly inconsistent with the actions of a man intending to shoot me.  

That I believe the events were an unfortunate accident brought about by our argument that I accept was heated on both sides."  
 
22.	Mr Garlick submits that, although the evidence as it stood before the Chief Magistrate was sufficient to establish a prima facie case of attempted murder, that position has been changed by Mr Zakkour's new statement and the prosecution cannot now establish the intention to kill which is a necessary ingredient of the offence.  He submits that the statement should be admitted as evidence, and that in the light of it the appeal should be allowed and the case remitted with a direction that the Chief Magistrate should find whether there was a prima facie case under section 104(1) of the Act.

23.	Under section 104(4) of the Act the Court has power to admit fresh evidence on an appeal.  Plainly new evidence will only be admitted if it is material.  The Court will also need to be persuaded that there is some good reason for the evidence not having been made available to the Court below: see the judgment of Latham LJ in Miklis v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin) at para 3.  

24.	No evidence has been adduced on behalf of the appellant to explain the circumstances in which Mr Zakkour's statement came to be made and received.  All we have been told is that it was received by the appellant's solicitor, apparently out of the blue, under cover of a letter dated 13 December 2012 from a Mr Thaddeus Sory, a lawyer who is apparently acting for Mr Zakkour in Ghana.  It is not apparent how Mr Zakkour has come to instruct his own lawyer, make a witness statement, and send it to the appellant's solicitor for the purpose of these proceedings.  There is no evidence before the Court from the appellant indicating whether or not he has had any contact with Mr Zakkour, either directly or through a third party, and whether he has offered any assistance or inducement to Mr Zakkour to make this new statement.  Those questions would no doubt be explored at any trial in Ghana.  

25.	Be that as it may, I think it right to consider the statement in order to decide whether, if it had been before the Chief Magistrate, the Chief Magistrate would have been bound to conclude that the evidence adduced by the prosecution would not be sufficient to establish a case to answer.  It is common ground that when applying that test the relevant question is whether, on the evidence before the Chief Magistrate, a reasonable jury could properly convict the appellant.  

26.	Clearly the fact that Mr Zakkour has changed his testimony and is now saying that the events were "an unfortunate accident" is a relevant matter to take into account.  But looking at the prosecution evidence that was before the Chief Magistrate, it seems to me that there is ample material on which a reasonable jury could find that the appellant shot Mr Zakkour intending to kill him, notwithstanding Mr Zakkour's new statement.  

27.	In the first place there are three earlier witness statements made by Mr Zakkour himself.  The first, to which he refers in his latest statement, was given to the police on 16 February 2005.  In that statement he said, referring to the shooting:  

"To my surprise, he [that is the appellant] pulled up a pistol from his pocket and shot me even though I begged him."   
Although not mentioned in his latest witness statement, Mr Zakkour gave a further statement on 22 March 2005.  
In that he said:  

"To my surprise, he pulled up a pistol from his pocket and shot me twice and I fell."  
 
He also made (again not referred to in his recent witness statement) an affidavit some three years later on 2 February 2008.  In that affidavit he said:  

"The fugitive pulled a pistol and shot at me twice even though I was pleading with him not to." 
 
28.	It would be for the jury to decide what evidence to accept and what evidence to reject; but it seems to me entirely possible that a jury could reasonably take the view that the evidence contained in the statements made by Mr Zakkour very shortly after the relevant events, and repeated by him in his affidavit some three years later, is to be believed and that his recent statement is not credible and should not be believed.

29.	There were in any event other witnesses to the shooting who have also made statements.  George Amewuzah, who worked as a house help for Sally Kanbonaba, gave a statement on 7 February 2005 - that is, the very day of the shooting - in which he described how he was putting items into the car, which gave rise to a dispute between Mr Zakkour and the appellant.  In that statement Mr Amewuzah says:
  
"To my surprise, the suspect removed a pistol from his pocket and pointed same on him.  In fact the way things were going I wanted to put back the items I removed from the car and before I could see I heard a shot of pistol.  When I turned my face back I saw Nadim [Zakkour] lying down saying 'We are friends do not shoot me'.  Still the suspect pointed the gun at him and when I was putting the items back into the car I heard the second shot and I realised that Nadim was bleeding from his left rib." 
 
30.	Mr Amewuzah has also made an affidavit in 2008 in which he says (at paragraph 11 and 12): 
 
   "... the fugitive pulled out a pistol and shot at him [Mr Zakkour] without any provocation."  
 
  That whilst Nadim was on the ground pleading with the fugitive he shot at him again."  
 
31.	There is also a statement dated 7 February 2005 from Miwononuko Komla, a security guard who was present at the house at the time.  He says:  

"They started struggling over the ignition key and Nadim fell down and Brian shot him 3 times.  When shooting him Nadim was saying Brian you are my father..." 

32.	In addition, Justice Fiagbe, a painter who was coming to do work at the house, has made a statement dated 7 February 2005, in which he says:  

"I overheard victim pleading with someone within the house saying don't kill me, please don't kill me, you don't know I'm your brother! Not quite long I heard a gun shot and look through a small hole in the gate and saw suspect Ibrahim holding a gun."
33.	When the whole of this evidence is considered I reach the clear conclusion that, even if the new witness statement of Mr Zakkour had been available at the extradition hearing, the Chief Master could, and indeed I am sure would, have decided that the evidence satisfied the test under section 84 of the Act.  The Chief Master was therefore in my view right to proceed under section 85.  That conclusion is not altered by the new evidence.

Article 3 ECHR

34.	Under section 87 the question is whether the appellant's extradition is compatible with his convention rights.  That raises two issues, since the appellant contends that his extradition would be incompatible with his rights under Article 3 and under Article 8 of the Convention.  I will consider Article 3 first, which Mr Garlick has put at the forefront of his submissions today.  

35.	Mr Garlick submits that the prison conditions under which, if extradited to Ghana, the appellant would be held in custody on remand awaiting trial and, if convicted, would serve a prison sentence, would amount to inhuman or degrading treatment or punishment in contravention of Article 3.  

36.	In the course of the protracted proceedings before the Chief Magistrate, the information about where the appellant would be detained changed.  An assurance was received from the Ghanaian authorities that, if extradited, the appellant would be held at a new prison in Ghana, the Ankaful Maximum Security Prison.  The Chief Magistrate accepted those assurances and it is not suggested that he was wrong to do so.  It is therefore also only necessary to focus on the conditions at Ankaful Prison.  

37.	Before the Chief Magistrate the appellant relied on a report dated 10 June 2012 of Professor Attafuah, which describes the conditions at Ankaful Prison based on a visit which he made only two days earlier.  The Chief Magistrate accepted that Professor Attafuah is an expert in prison conditions in Ghana, and accepted his evidence as an accurate and up‑to‑date account of the conditions in Ankaful Prison.  The respondent has not served any evidence to contradict Professor Attafuah's report.  This Court can therefore proceed, as the Chief Magistrate did, on the footing that Professor Attafuah's report is the best possible evidence of the conditions under which the appellant will be held if he is returned to Ghana.

38.	In summary, based on Professor Attafuah's evidence, the Chief Magistrate found that, by Ghanaian standards and conditions, Ankaful Prison is a first class facility.  It is a new facility which first received prisoners on 30 January 2012.  As set out in the judgment of the Chief Magistrate (at pages 8 to 9):
  
"There are five prison blocks, each with a capacity of 400 prisoners.  At the time of the visit only two of those blocks were in use, holding a total of 220 inmates.  The cells were described as not having adequate ventilation.  The prisoners did not complain of heat and expressed satisfaction with the airflow or ventilation.  Natural and artificial light supply was found to be adequate.  Each inmate has a mattress and blanket and there were pillows on most beds. There are dormitory style showers and a potable water supply.  There was no complaint about the meals, although the food is comparatively basic, or about medical facilities and services.  There are three adequate playgrounds but these are not used often because of a shortage of balls.  There is a clinical psychologist, a chaplain, visiting facilities, a television and facilities for a number of indoor games.  The courtyards are generally clean.  

The complaints are: congestion; the fact that the toilet in the cell is less than 3 feet from the nearest beds; mosquitoes; and the fact that there is currently no library and a sense of hopelessness arising from boredom and idleness." 
39.	As to these complaints, the Chief Magistrate found, again based on the evidence of Professor Attafuah (at pages 9 to 10 of the judgment): 
 
"Each cell contains 10 inmates.  They sleep on five double‑decker student type bunk beds. ... Moreover, the five bunk beds take up most of the space in the cell, leaving very little room (probably less than 3' X 3') for the inmates' use. Thus the cells are crowded or congested.  There is a flush toilet in each cell.  There is no partition to ensure any degree of privacy.  The toilets are less than 3 feet from the nearest beds.  Although there are other toilets available for use between 6.30am and 3.30pm, these too lack privacy.  Inmates and officers were unanimous in their complaints about the overabundance of mosquitoes.  There was clear evidence of mosquito bites on the skin of many inmates.  Mosquitoes were all over the place.  Prisoners and prison officers alike 'pleaded for mosquito nets to help cope with the mosquito menace'.  The mosquitoes were described as voracious. The professor says that next to coping with the unbearable mosquitoes at [Ankaful Prison], dealing with boredom arising from idleness, and a sense of hopelessness, constitute the inmates' most significant challenge."  
 
40.	The conclusions of the Chief Magistrate on whether the imprisonment of the appellant at Ankaful Prison would violate Article 3, are set out (at pages 13 to 14 of his judgment) as follows: 

"With the possible exception of the mosquitoes, there is no evidence that any of the current prisoners at [Ankaful Prison] has suffered fear, anxiety or inferiority because of the conditions in the prison.  This is a new prison and generally the conditions are satisfactory.  The conditions imposed may last a long time, if this defendant is convicted of attempted murder.  On the other hand, prisoners are apparently able to leave their cells during the day.  I will consider the degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention in that context.   

By our standards, to house 10 people in a	cell the size here, with so little freestanding space, would almost certainly not be acceptable.  It is said to be an 'experiment' but I accept that it may continue, particularly if the funding to open the rest of the prison does not materialise.  Similarly, there are obvious objections to a toilet being within 3 feet of a bed, where there is no wall or other partition between the toilet and the bed.  As for the mosquitoes, there is no doubt that a regular presence of our large number of these creatures is unpleasant and distressing.  I am not prepared to		 speculate on the extent of the health risk...I understand and accept the professor's concern about idleness and lack of educational or recreational facilities. This is a significant problem in this country also. [The Prison] at least does have recreational facilities, even if not currently used for ball games.  There are indoor games and a television.  It is not suggested that prisoners cannot be provided with books by friends or family.  

I am satisfied from the overall tone of the professor's 	report that [Ankaful Prison] is a new‑build prison that in most ways meets international standards and with the one exception referred to does not give significant cause for complaint by the prisoners.
...
There is no evidence that the adverse conditions in [Ankaful Prison] are deliberate, or seriously harmful to health.  There is no evidence that existing prisoners are humiliated or debased by the conditions there.  Ill‑treatment must attain a minimum level of severity to fall within article 3.  The treatment complained of here does not." 
 
41.	The leading English authority on the operation of Article 3, in the context of extradition, is the decision of the House of Lords in R (Wellington) v Secretary of State for the Home Department [2009] AC 335.  In that case the House of Lords held that a mandatory life sentence, without eligibility for parole, which the claimant faced if he was extradited to Missouri and convicted of first degree murder, was not irreducible either in law or in fact, and that such a sentence would not contravene Article 3 if imposed in the United Kingdom.  

42.	A majority of the Committee also took the view that, even if that was wrong and there would be a breach of Article 3 if the sentence were imposed in the UK, extradition to Missouri would not violate Article 3.  They reached that conclusion on the basis of what Lord Hoffmann referred to as a "relativist view" of how Article 3 applies in the context of extradition. On this approach, as explained by Lord Hoffmann at paragraph 24: 
 
"...the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the 'minimum level of severity' which would make it inhuman and degrading.  Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account." 
 
43.	Mr Garlick has relied, as he did in the Court below, on the more recent decision of the European Court of Human Rights in Harkins and Edwards v United Kingdom (Application No. 9446/07), decided on 17 January 2012, in which the European Court disapproved of the relativist approach endorsed by the majority of the House of Lords in Wellington.  The Strasbourg Court held that, in extradition cases as in domestic cases, there is no scope for balancing the risk of ill‑treatment against the reasons for extradition in determining whether Article 3 is engaged.  In this regard the Court departed from statements made in the earlier case of Soering v United Kingdom [1989] 11 EHRR 439. 

44.	The Strasbourg Court nevertheless emphasised at paragraph 129 of its judgment, approving observations of Lord Brown in the Wellington case, that:
  
"...the absolute nature of Article 3 does not mean that any form of ill‑treatment will act as a bar to removal from a Contracting state.  As Lord Brown observed, this court has repeatedly stated that the Convention does not purport to be a means of requiring the Contracting States to impose Convention standards on other States...  This being so, treatment which might violate Article 3 because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.  For example, a Contracting State's negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the court to find a violation of Article 3 but such violations have not been so readily established in the extra‑territorial context..."  
 
45.	The point I understand the Court to be making in that passage is that, although the requirements of Article 3 are absolute in the sense that they are not to be weighed against other interests such as the public interest in facilitating extradition, there is nevertheless an element of relativity involved in the application of those requirements.  In deciding whether treatment or punishment is inhuman or degrading, it is appropriate to take account of local circumstances and conditions, such as climate and living standards.  I take the concept to be similar to that which applies, for example, albeit at a much lower level of gravity, in the English law of nuisance where it is recognised that what is a nuisance in one place may not be so in another.

46.	At paragraph 130 of the judgment in Harkins the Strasbourg Court set out a list of factors which have in previous cases been decisive in the Court's conclusion that there has been a violation of Article 3.  Those factors are, adding numbers to them: 
(1) The presence of premeditation; 
(2) The measure may have been calculated to break the applicant's resistance or will; 
(3) An intention to debase or humiliate an applicant, or if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority; 
(4) The absence of any specific justification for the measure imposed; 
(5) The arbitrary punitive nature of the measure; 
(6) The length of time for which the measure was imposed; and 
(7) The fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.  

47.	The Court further observed that all of these elements depend closely upon the facts of the case, and so will not be readily established prospectively in an extradition or expulsion context.

48.	Finally at paragraph 131 of the judgment the Court reiterated that:

"... as was observed by Lord Brown, [the Court] has been very cautious in finding that removal from the territory of a Contracting State would be contrary to Article 3 of the Convention. It has only rarely reached such a conclusion since adopting the Chahal judgment... The Court would further add that, save for cases involving the death penalty, it has even more rarely found that there would be a violation of Article 3 if an applicant were to be removed to a State which had a long history of respect for democracy, human rights and the rule of law."
 
49.	In that context Mr Garlick - rightly, in my view - acknowledged that Ghana should properly be regarded for these purposes as a country which has a history of respect for those values.

50.	In his skeleton argument Mr Garlick submitted that the ratio of Harkins is inconsistent with the ratio of Wellington.  He accepts that this Court may find that it is bound by Wellington, but has nevertheless advanced a submission that this Court should decide that section 2 of the Human Rights Act 1998 provides for a statutory exception to the doctrine of judicial president, and allows the Court to depart from a decision of the Supreme Court to the extent that to follow the decision would be to disregard a decision of the European Court of Human Rights.  I do not regard that as an arguable proposition.  Section 2(1) of the Human Rights Act requires domestic courts to "take into account any relevant Strasbourg case law".  It is evident that the expression "take into account" does not mean “follow” or “regard itself as bound by” and was no doubt deliberately chosen by Parliament to ensure that domestic courts are not bound to follow decisions of the European Court of Human Rights.  

51.	In R (Ullah) v the Special Adjudicator [2004] 2 AC 2003, Lord Bingham said at paragraph 20, in a statement which has often been quoted: 

"...the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court.” 
 
“Special circumstances” plainly include the fact that the Court is bound by precedent to follow a case which is inconsistent with the relevant Strasbourg case law.  

52.	Nevertheless, in the way that the Chief Magistrate decided the issue, the difference between the relativist approach, articulated by the majority of the House of Lords in Wellington, and the approach of the European Court of Human Rights in Harkins did not arise because, as I read the Chief Magistrate's judgment, he did not bring into account the desirability of extradition as a factor in this case in reaching the conclusion that the imprisonment of the appellant in Ankaful Prison in Ghana would not contravene Article 3.  If the Chief Magistrate is right in that conclusion, then the difference of view between the House of Lords and the European Court of Justice, which is currently unreconciled in this jurisdiction, is not relevant to the outcome of this appeal.  

53.	In advancing his argument cogently and attractively this morning, Mr Garlick relied, in particular, on four features of the evidence contained in the report of Professor Attafuah, which he submitted had the cumulative effect that the conditions in that prison amount to a violation of Article 3.  Those features are: first, the congestion and crowding in cells in which, as I mentioned, on the evidence ten prisoners are confined in a small space for 13 hours a day, that is between the hours of 5.30pm and 6.30am, with only an area of some 3' by 3' between their beds in which to stand.  Second, Mr Garlick emphasised that the conditions in the cells are further worsened by the fact that the only toilet is less than 3' from the nearest bed.  Third, he emphasised the extent of the infestation by mosquitoes and what he submitted must amount to a deliberate choice on the part of the prison authorities not to provide the inmates with mosquito nets. Fourth, he emphasised the lack of library and learning facilities and what he said is the inadequacy of the recreation facilities, all of which contribute to what Professor Attafuah found was a sense of hopelessness induced by boredom and idleness.

54.	In relation to the list of factors which I have quoted earlier from the judgment in Harkins, Mr Garlick submitted that four of those factors are present in this case.  First, whilst he accepted that there is no evidence of any intention to debase or humiliate prisoners, he submited that the conditions described by Professor Attafuah are such as to inevitably cause feelings of fear, anguish or inferiority.  That is part of the third factor referred to in Harkins.  Second, Mr Garlick relied particularly in relation to the congestion of the cells, on what he said is the absence of any specific justification for the measure imposed.  He referred, in particular, to the fact that Professor Attafuah was told by the prison authorities that confining 10 prisoners in a cell is an experiment, and submitted that that amounted to a deliberate choice on the part of the prison authorities, for which there was no specific justification.  

55.	Third, Mr Garlick relied on the length of time for which the measure was imposed.  In his submission that applies in this case first of all as regards the length of time for which prisoners are kept in their cells and secondly in relation to the length of time for which it is likely that the appellant will be detained if he is returned to Ghana while awaiting trial.  Mr Garlick drew our attention to evidence in another of Professor Attafuah's reports, to the effect that it is common for prisoners in Ghana to be held on remand for periods of between one and a half and four years pending the conclusion of a criminal trial.  

56.	The fourth factor which Mr Garlick submitted is engaged in this case is the last listed by the Strasbourg Court, namely the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.  Mr Garlick submitted that on the evidence that factor is present here.

57.	In applying Article 3 in the context of extradition proceedings, two principles emerge from the case law which it is not immediately easy to reconcile.  On the one hand, it is clear that the requirements of Article 3, as interpreted by the European Court of Human Rights, are absolute.  Not only torture, but also inhuman or degrading treatment or punishment, are a violation of convention rights wherever they occur.  On the other hand, it is also clear that the test of what counts as inhuman or degrading treatment or punishment is sensitive to context, and that the Convention is not to be treated as a means by which Convention countries may impose their standards on other States.  It therefore does not follow that, because conditions would amount to a breach of Article 3 if they occurred in the United Kingdom, they would necessarily do so if present in another non‑Convention country.

58.	It seems to me that the resolution of the tension which there might appear to be between those considerations lies in the emphasis that has been placed in the case law on the need for very strong grounds before a Court would be willing to conclude that the prison conditions in a non‑Convention State attain the level of severity that amounts to inhuman or degrading treatment or punishment, such as to violate Article 3.

59.	On the evidence described in Professor Attafuah's report regarding Ankaful Prison in this case, although there are aspects of the conditions which I have no doubt would be considered unacceptable if found in a prison in this country, I do not consider that the conditions at the Prison attain, or indeed come close to attaining, the level of severity which would be necessary to constitute a violation of Article 3 in this context.  In reaching that conclusion, three considerations are, in my view, of particular importance.  

60.	The first is that – as Mr Garlick accepted - there is no evidence of any attempt or any intention to debase or humiliate, or otherwise ill‑treat, prisoners.  It seems to me that there is an important distinction recognised in the case law between deliberate ill‑treatment on the one hand, and, on the other, what may be said to be inadequate care or provision for prisoners which is not the result of any deliberate intention to mistreat them.  

61.	There is nothing in Professor Attafuah's report which supports any suggestion that there is any intentional mistreatment of prisoners at Ankaful Prison.  There is no evidence of any aggression or violence being used towards prisoners, or other deliberate infliction of suffering by prison staff.  In relation to the problem with the mosquitoes, the distinction should be drawn between the deliberate infliction of pain or suffering and a failure to provide protection against a condition which is endemic in the region.  The problems caused by the mosquitoes clearly fall into the latter category.  Similarly, in relation to the crowded conditions in the cells, while the evidence indicates that a deliberate choice has been made to house ten prisoners in each cell, there is nothing to suggest that this decision has been motivated by any intention to cause suffering or unnecessary hardship rather than for reasons of economy.
 
62.	The second matter to which I attach particular importance is that, contrary to the submission made by Mr Garlick, I do not accept that the inference is properly to be drawn from the evidence that the conditions at Ankaful Prison are such as inevitably to cause feelings of fear, anguish or inferiority in prisoners detained there. 
 
63.	There is no evidence in Professor Attafuah's report that the prisoners complained of feeling frightened, anguished or humiliated as a result of the conditions.  In his report he describes the majority of inmates as looking healthy and energetic, although a handful looked frail and depressed.  The main challenges for them on his evidence, apart from mosquitoes, were boredom and a sense of hopelessness; but the latter he explained, in particular, by reference to the fact that many of the inmates at the prison are serving sentences which exceed their life expectancy. No allegation is made in the present case that the appellant would, if he is convicted by a Ghanaian court, be likely to receive a sentence longer than his life expectancy or would suffer inhuman or degrading treatment or punishment by reason of the length of any prison sentence likely to be imposed.  I would add that I do not consider that the length of time which the appellant might have to spend in prison on remand materially affects whether the conditions of his prospective imprisonment would violate Article 3.  

64.	The third matter which seems to me of particular importance is the need to consider the conditions ay Ankaful Prison in the round.  I accept Mr Garlick's submission that it is right to look at the cumulative effect of the conditions at the prison; but that means that not only the matters which he emphasised, but the overall conditions under which the prisoners are detained need to be considered.  Although the matters highlighted by Mr Garlick are unpleasant, the evidence shows that the prisoners receive adequate food, drinking water and medical treatment; that there are some opportunities at least for exercise and recreation; that weekly visits are allowed; and that although the toilet facilities are primitive and lack privacy, they appear to have effective flushing, and there are adequate shower facilities.  Furthermore, although the cells are crowded and cramped, there is adequate light and ventilation and each prisoner does at least have his own bunk‑bed and some belongings as well as adequate bedding and blankets.  The situation is not one where, for example, as in some of the reported cases, prisoners have had to sleep in shifts.

65.	Considered overall, the conditions at the prison are certainly severe, but in my view they fall well short of the level of severity which would contravene the minimum level required by Article 3 of the Convention.

Article 8

66.	The final ground of appeal is based on Article 8.  The Chief Magistrate dealt with this issue shortly.  In the final paragraph of his judgment on page 14, he said:  

"The defence also argues that extradition would breach this defendant's article 8 rights.  They point out that he has been resident in the UK since 1999 and has very substantial family connections with this country.  He has a business that would suffer and almost certainly fail in his absence.  I can deal with this briefly.  I accept everything Mr Richards tells me about his family life.  I accept that article 8 is engaged for himself and for his family. However whichever way you look at the facts, they amount to no more than hardship and fall far short of a breach of his convention rights."  
 
67.	Mr Garlick - rightly, in my view - did not press hard his argument on this issue, which was put very much at the end of his submissions.  In my view the conclusion reached by the Chief Magistrate in relation to Article 8 is unimpeachable.  There is nothing in the circumstances of this case that could reasonably be said to be of such exceptional severity in terms of consequences to the appellant's private and family life as to make his extradition disproportionate to the strong public interest in the prevention of crime which is served by extradition.  

68.	I agree entirely with the Chief Magistrate that the facts relied on here amount only to hardship and as such fall far short of a breach of Article 8.

Conclusion
69.	For these reasons I would dismiss the appeal.  
 
MR JUSTICE SIMON:  I agree.

MR GARLICK QC:  I have of course tried to take as good a note of my Lord, Leggatt J's judgment.  May I have a few days at least to consider this matter, with those who instruct me, to see whether or not ‑ I am not saying that there is ‑ there might be an application to certify a point?  
MR JUSTICE SIMON:  If it does not spring from the judgment immediately it is unlikely to develop over a few days.  What are you proposing?
MR GARLICK QC:  I do not think I need to propose anything.  I think I have 14 days to make an application.
MR JUSTICE SIMON:  You were proposing something.
MR GARLICK QC:  Perhaps I was being polite and indicating to your Lordships that I would want to scratch my head carefully and see whether there might be a point.  The more important factor I would raise at this time is: Mr Richards has been on bail throughout the extradition proceedings from the very first appearance at Westminster Magistrates' Court, although conditions are strict, and I would ask that pending ‑‑ 
MR JUSTICE SIMON:  Have you a copy of the bail conditions? 
MR GARLICK QC:  I have, indeed.  
MR JUSTICE SIMON:  Let me see those? 
MR GARLICK QC:  I am afraid it is in the form of an attendance note by those who instruct me.  
MR JUSTICE SIMON:  Miss Lindfield will doubtless assist if it is necessary. 
MR GARLICK QC:  Would it be helpful if I highlight ‑‑ 
MR JUSTICE SIMON:  There ought to be a copy on the file somewhere.
MR GARLICK QC:  This may help your Lordships and I think that they are the conditions. (same‑handed) They include very substantial sureties and there is a substantial cash security.   
MR JUSTICE SIMON:  Is there no condition in relation to his passport? 
MR GARLICK QC:  I am sure there was such a condition.  The passport has been surrendered.
MR JUSTICE SIMON:  The passport is still surrendered, is it? 
MR GARLICK QC:  It is indeed, I am sure.  If it is not there, there would be a condition he does not apply for any travel documents.  The passport certainly has been surrendered.  He no longer has it.  Mr Richards is a family man.  He has attended on every occasion at the Magistrates' Court without fault and to this court.  We would ask your Lordships to extend bail.  The usual procedure is that an arrangement is made between the Metropolitan Police Extradition Squad for the fugitive to surrender at the police station, and he is taken to whatever aeroplane port and handed over to the marshals who come from the foreign jurisdiction.
MR JUSTICE SIMON:  Miss Lindfield, what do you say about that? 
MS LINDFIELD:  The position of the Government was that we opposed bail.  District Judge Purdy, I believe, granted bail.  I would just remind your Lordships that in giving evidence in the lower Court (and this can be found at page 48 of the bundle, internal page 5 of the judgment) the Senior District Judge records that the evidence of this appellant at the extradition hearing was that he came to the UK on a friend's passport.
MR JUSTICE SIMON:  That was referred to in my Lord's judgment.
MS LINDFIELD:  We have always had concerns about the ability and means of this appellant to flee the jurisdiction.  Obviously at this moment it is the crucial point at which people do frequently abscond.  I appreciate he has one further procedural step he has to exhaust, but ‑‑ 
MR JUSTICE SIMON:  What is that? 
MS LINDFIELD:  Applying to certify a question, but that is a rare occurrence.
MR JUSTICE SIMON:  Without prejudging that, that has to be done pretty promptly.
MS LINDFIELD:  I just draw those matters to the court's attention.
MR GARLICK QC:  I would draw to your Lordship's attention that my learned friend did not appear on one occasion when I made an application to vary the bail to make it slightly less strict. The Government did not object to that.  The curfew was reduced and so was the reporting time.
MR JUSTICE SIMON:  We will retire to consider this.  
(Adjourned) 

MR JUSTICE SIMON:  Mr Garlick, in the circumstances we are prepared to grant bail limited to a period of 48 hours.  At the expiry of that time he must surrender to custody.
MR GARLICK QC:  My Lord, yes.   
MR JUSTICE SIMON:  The reasons being that there must be serious concerns as to whether he will comply with an order that he surrenders in view of the fact that on a previous occasion he travelled under a false passport, or the passport was not his own.  We are prepared to extend the bail on the same terms for that period, but he must surrender to custody at the end of that period.
MR GARLICK QC:  May I have permission to bring the matter before the Court?  One matter I have taken instructions on is we do intend to make an application to the European Court under rule 39 for interim relief.  If that application is granted, may we have permission to bring the matter back before the court.  The position would plainly be slightly different then?
MR JUSTICE SIMON:  Yes, I think that must follow.  
MS LINDFIELD:  There is provision in the Act to do so.  If someone is [inaudible] in custody they can still make a bail application. 
MR JUSTICE SIMON:  In the circumstances we feel it right he should have 48 hours.  I think we will fix a time of 4.30 on Thursday on which he must surrender to Southgate Police Station.  Until that time he must abide by the following bail conditions: residence at 6 Woodville Court, Oakwood N14 4BF; observe the same curfew at the address from 7pm to 7am with an electronically monitored curfew; report tomorrow to Southgate Police Station and to provide the same mobile phone to the court and to the CPS, which is never switched off; not to apply for any travel documents.  The security and sureties will remain in place.
MR GARLICK QC:  I am grateful, my Lord.  Thank you. 
MR JUSTICE SIMON:  Miss Lindfield, do you have any points on that? 
MS LINDFIELD:  No, my Lord. 
MR JUSTICE SIMON:  Thank you both very much for your submissions.