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
		26 July 2013

Mr Justice Keith:

Introduction

1. On 29 June 2012, the appellant, Inaki Lerin Sanchez, was arrested pursuant to a European Arrest Warrant which had been issued on 7 May 2007 by the Second Section of the National High Court of Madrid, Spain. He was produced at Westminster Magistrates' Court later that day. At the time of the appellant's arrest, the warrant had not been certified by the Serious Organised Crime Agency ("SOCA"), but it was certified by SOCA later that day, and the appellant was then re-arrested in the cells at Westminster Magistrates' Court. The warrant was what is colloquially called an accusation warrant. It sought the appellant's extradition to Spain so that he could be tried on two charges: one of membership of an armed organisation contrary to Arts. 515 and 516 of the Spanish Criminal Code, and one of possession of explosives contrary to Art. 573 of the Spanish Criminal Code. An extradition hearing took place at Westminster Magistrates' Court on 20 February 2013. District Judge Evans reserved judgment.
2. Following a submission advanced at the hearing about the validity of the warrant, a second warrant was issued on 5 March by the court in Spain. That was certified by the SOCA on the following day. The district judge was due to hand down his judgment on 19 March, but before he did so, the appellant was re-arrested on the new warrant, the original warrant was withdrawn, and the extradition hearing in respect of the new warrant was held that day. The district judge treated the submissions which had previously been made as having been made in respect of the new warrant, and he proceeded to hand down his judgment. By that judgment, he ordered the appellant's extradition to Spain on the new warrant. The appellant now appeals against that order.
3. Spain has been designated as a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, the appellant's extradition to Spain is governed by Part 1 of the Act. Section 21(1) of the Act – which is in Part 1 of the Act – requires the court to decide whether someone's extradition would be incompatible with their rights under the European Convention on Human Rights ("the Convention"). The only ground of appeal is that the district judge ought to have concluded that the appellant's extradition would amount to a breach of his right to a fair trial protected by Art. 6 of the Convention. It is said that his trial would not be fair because the evidence which is likely to be used against him was obtained by torture.

The facts

4. The charges which the appellant faces arose out of his alleged membership of ETA, the Basque separatist movement. On 31 March 2007, an address in a town in Navarre was searched. It was alleged to have been rented in the appellant's name, and used by the appellant and his brother, Jose Angel Lerin Sanchez. A large quantity of explosives, nitrate, detonation fuses, bolts and iron balls and about 150 kgs of aluminium powder were found there, along with various devices with the ETA symbol, ETA's internal newsletter no. 111 and other ETA publications.
5. The Spanish authorities are not obliged, of course, to identify the evidence which the prosecution proposes to rely on at the appellant's trial. But the appellant's brother has already been tried and convicted in Spain on the same two charges as the appellant faces, and the appellant's legal team say that they can confidently expect what the evidence to be relied on by the prosecution at the appellant's trial will be. It will include, of course, what was found at the address in the town in Navarre, and the evidence which links the appellant to that address, but it is likely to include as well what his brother is alleged to have told the police implicating the appellant in the two offences.
6. The appellant's case is that much, if not all, of this evidence was obtained by torture. The address in the town in Navarre is said to have been given by the appellant's brother following his arrest on 28 March 2007, and while he was being held incommunicado and was being interrogated by the Guardia Civil. And it was during that interrogation that the appellant's brother is said to have implicated the appellant. The appellant's case is that his brother only implicated him, and only gave the Guardia Civil the address in the town in Navarre, as a result of his ill-treatment during the time when he was being held incommunicado.
7. The evidence of that ill-treatment comes principally from what the appellant's brother told his lawyer, and subsequently the court at his trial. That was that following his arrest he was kept incommunicado by the Guardia Civil for five days, first at their local headquarters in the Basque region, and later at their national headquarters in Madrid. He was not allowed during that time to speak to a lawyer, not even a state-appointed one. Although he had the services of a state-appointed lawyer when he was first questioned by the investigating magistrate five days after his arrest, he had not been allowed to consult with the lawyer privately beforehand. When he saw his own lawyer for the first time later that day, he alleged that he had been tortured. He claimed that he had been beaten up and asphyxiated, forced to do physical exercise and deprived of sleep. His lawyer said that when he first saw him, his nose was swollen, and that he appeared exhausted and disorientated. His claims, his lawyer said, were very similar to the claims made by other defendants who were arrested at about the same time in connection with terrorist offences.
8. While being held incommunicado, the appellant's brother was seen a number of times by a medical forensic examiner. Over those five days, he claimed to her that "rubbish bins" (which may have been a mistranslation for "bin liners") had been put "on" (which may have been a mistranslation for "over") his head to choke him, that he had been beaten senseless, that he had been struck in the neck, jaw, nose, head, back, kidneys and testicles, that he had been wrapped in blankets to make him sweat, and that he had been prevented from sleeping. However, she saw no clinical signs of ill-treatment, save for a minor contusion on the left side of his head, and although he was complaining of severe pain in his neck, X-rays from the hospital to which he had been taken while he was being held incommunicado had not revealed any pathological signs of injury to his neck or back.

Incommunicado detention

9. The fact that the appellant's brother was held incommunicado is not denied by the Spanish authorities. Indeed, it is permitted under Spanish law. The effect of it is that someone detained incommunicado is denied access to legal advice and assistance – at a time when it might be said that he is in particular need of it, namely when he is about to be questioned by the authorities. A state-appointed lawyer is permitted to be present as an observer only, and only when the detainee makes a formal statement. If the defendant says something of significance, he is produced at that stage before an examining magistrate for the making of the statement to be confirmed, and he may be questioned by the magistrate, but again without legal advice or assistance. More significantly for present purposes, without the oversight which an independent lawyer can bring to the process, the incommunicado regime is said to render detainees particularly vulnerable to ill-treatment.
10. This latter concern has been expressed in a number of quarters. A paper published in "Torture" (vol. 18, no. 2, 2008, p.87), based on interviews with 112 Basques held in incommunicado detention between 2000 and 2005, suggested that torture was a serious problem for such detainees. So did the authors of a report commissioned by the Office on Human Rights in the relevant department of the Basque Government. Human Rights Watch produced a report in 2005 critical of the incommunicado regime (although it dealt only in passing with the ill-treatment of those held in incommunicado detention). And Amnesty International has produced two reports – published in 2007 and 2009 respectively – dealing with the ill-treatment of people in custody generally, not just those held in incommunicado detention. Indeed, in its report following its visit to Spain in September 2007, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") referred to the allegations of ill-treatment which the appellant's brother and others who had been arrested at the same time as him were making, noting that they all described a similar pattern of ill-treatment. Over the years, the CPT has made a number of recommendations aimed at strengthening the protection of persons held in incommunicado detention from torture and other forms of ill-treatment, and in its report following its visit to Spain in September 2007, it noted that as things stood then Spanish authorities might experience some difficulty in (a) refuting convincingly allegations of ill-treatment made by people held in incommunicado detention, and (b) fulfilling their obligation to undertake effective investigations into such allegations. For its part, the Spanish Government issued a spirited response to the CPT's report, noting that the incommunicado regime in any particular case required judicial authorisation before it could begin, as well as judicial monitoring while it lasted.

The decision in the appellant's brother's case

11. At the trial of the appellant's brother, the court considered the allegations which he and his co-defendants were making of ill-treatment during the time when they had been held incommunicado. The court rejected those allegations. In its judgment, the court said that it could "affirm with total security that [the] confessions in police stations [of the defendants including the appellant's brother] were made freely and voluntarily, [that] is, without the violation of fundamental rights". Indeed, the court concluded that the similarity of the complaints of ill-treatment which the defendants made and their timing were "a defensive strategy commonplace in counter-terrorism operations". That is said by Mr Ben Watson for the requesting authority to be consistent with an instruction issued by ETA about how its members should behave in the event of being arrested (which was quoted in the Spanish Government's response to the CPT's report):

"In case of detention, no matter if long or short, even though you are released without charges, bail or other repressive measures, you shall present formal complaint alleging torture."

The relevant principles

12. Extradition will be incompatible with a defendant's right to a fair trial under Art. 6 if there is a real risk that he will suffer "a flagrant denial of justice" in the requesting state. That principle was first set out by the European Court of Human Rights ("the ECHR") in Soering v The United Kingdom (1989) 11 EHRR 489. In the case involving Abu Qatada – Othman v The United Kingdom [2012] ECHR 56 – the ECHR considered the circumstances in which "a flagrant denial of justice" might occur. At para. 260, it said:

"It is noteworthy that, in the twenty-two years since the Soering judgment, the Court has never found that an expulsion would be in violation of Article 6. This fact … serves to underline the Court's view that 'flagrant denial of justice' is a stringent test of unfairness. A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article."

13. The ECHR then went on to consider whether the use at the defendant's trial of evidence obtained by torture would amount to a flagrant denial of justice. It concluded that it would. The use of such evidence "would only serve to legitimate indirectly the sort of morally reprehensible conduct" which Art. 3 of the Convention "sought to proscribe". Such evidence is "intrinsically unreliable", since "experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture". Indeed, in para. 264, the ECHR said:

"More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself."

14. When the ECHR came to consider the burden and standard of proving a flagrant denial of justice, it said at para. 261 that "it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subjected to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it …". Of course, as is well known, the court found in Othman that the test had been met. Indeed, there is at least one other example of the test having been satisfied (albeit not in the context of the use of evidence obtained by torture). In Brown v Government of Rwanda [2009] EWHC 770 (Admin), it was held that the defendants would suffer a flagrant denial of justice if they were extradited to Rwanda to face trial on charges relating to their alleged involvement in the 1994 genocide because of the problems they would face in calling evidence and because of potential interference by the Government in the trial process.
15. However, there is another principle at play here. It was articulated by Thomas P in Krolik v Several Judicial Authorities in Poland [2012] EWHC 2537 (Admin), a series of cases in which the courts considered whether prison conditions in Poland were so inhuman or degrading that the extradition of people to Poland would be incompatible with their rights under Art. 3 of the Convention. There is a strong, albeit rebuttable, presumption that the member states of the European Union will abide by their obligations under the Convention, because the Convention is based on the assumption that member states will comply with it and that other member states can be confident that they will. And when it comes to the type of evidence which will be necessary if this presumption is to be rebutted, Thomas P referred at [6] to the need for "a significant volume of reports from the Council of Europe, the UNHCR and NGOs about the conditions for asylum seekers". He concluded at [8] "that something approaching an international consensus is required, if the presumption is to be rebutted".

The application of these principles

16. It is important to understand what the court's focus on this appeal has to be on. It is not concerned with whether the appellant will be held in incommunicado detention if he is returned to Spain. Nor is its focus on whether the ill-treatment of detainees held incommunicado regularly occurs. Nor is it even on whether there is any systemic failure on the part of the Spanish authorities to investigate allegations of ill-treatment in the course of incommunicado detention. The court's focus is on whether there is a substantial body of opinion which suggests that the Spanish courts routinely fail to recognise ill-treatment which has occurred during incommunicado detention, so that there is a real risk that the statements made by the appellant's brother when he was held in incommunicado detention and which incriminated the appellant would be used in evidence against the appellant, even if they were obtained by torture. Only then would the appellant's extradition to Spain be inconsistent with his right to a fair trial protected by Art. 6.
17. The court's focus, therefore, is on how the Spanish courts deal with allegations of ill-treatment during incommunicado detention. On that issue, the report of the CPT is of little help. Although it has a section devoted to judicial scrutiny of the incommunicado regime, that scrutiny relates to judicial scrutiny of how detainees are being treated while they are being held incommunicado, and of how investigating judges (as opposed to the trial court) consider complaints of ill-treatment. It does not relate to the assessment by the trial court in which the defendant is being tried for criminal offences of whether statements made by someone held incommunicado should be ruled inadmissible because they were the product of torture or ill-treatment. The same is true of the paper in "Torture", and the other reports referred to in [10] above.
18. A similar picture emerges when one looks at the four cases in which the ECHR has considered the incommunicado regime in Spain. The first in time was Sala v Spain, 2 November 2004. The only information I was provided with about the case was the reference to it in the first of Amnesty International's two reports. The case related to allegations of ill-treatment in custody of persons arrested in 1992 for terrorist offences. The trial court had declined to investigate those allegations. Amnesty International's report of the case said this:

"The European Court of Human Rights noted that the Spanish court had relied solely on the report of the forensic doctor when it found there was a lack of evidence to sustain the allegations of ill-treatment, and considered it 'unfortunate' that the court had not taken statements from the arresting officers, the custodial officers, or the applicants. By denying all requests of the applicants for specific evidence to be obtained, the court had denied any reasonable opportunity to establish the veracity of their claim.

The Court held that there had been insufficient evidence submitted to establish the claim of ill-treatment and thus found no violation of Article 3 with respect to the substantive aspect of the claim. However, the Court found that there was a violation of Article 3 of the [Convention] arising from the lack of a thorough and effective investigation into the allegations. This ruling underscores that the requirement to conduct a prompt, independent and impartial investigation is inherent in the state's obligations under the [Convention] to prohibit torture and other ill-treatment."

It is not apparent whether the complaints of ill-treatment were made to the trial court as "free-standing" complaints or whether the ill-treatment was alleged to have made any incriminating statements which the applicants had made inadmissible.

19. The second and third cases were Isasa v Spain (Application No. 2507/07) and Ukar v Spain (Application No. 40357/05). The only information I was provided with about these cases was in press releases issued by the Registrar of the ECHR dated 28 September 2010 and 8 March 2011 respectively. The applicants claimed that they had been subjected to ill-treatment while in detention. The ECHR held that there had been no violation of the prohibition on inhuman or degrading treatment, but that there had not been an effective investigation into their allegations.
20. The last case was Egiguren v Spain (Application No. 47303/08). Again, the only information I was provided with about the case was in a press release issued by the Registrar of the ECHR dated 16 October 2012. The applicant was arrested on suspicion of his membership of, and collaboration with, ETA. He was held in incommunicado detention for five days. During that time he complained to a medical forensic examiner of ill-treatment, but the medical examiner claimed that the applicant had refused to be examined on the basis that his ill-treatment had not resulted in any traces of violence on his body. His complaint of ill-treatment was not considered by one investigating judge, and was dismissed by a second investigating judge on the basis that there was no evidence that the ill-treatment of which the applicant complained had actually occurred. However, the applicant was acquitted at his subsequent trial, and in the course of its judgment, the trial court stated that "the judicial review of the condition of the [applicant's] incommunicado detention in police custody [had been] neither sufficient nor effective". The ECHR agreed. It held that there had not been a sufficient investigation into the applicant's allegations, not only by the first investigating judge but by the second investigating judge as well, because she had considered only the evidence of the medical examiner, and had refused to hear evidence from the applicant himself about his ill-treatment, or from his former cell-mate, or from the police officers who the applicant had implicated.
21. The important point is that in none of these four cases was Art. 6 raised. In other words, it does not look as if it was alleged that the ill-treatment to which the complaints related were said to have made any incriminating statements made by the applicants inadmissible. Indeed, in Isasa and Ukar, there is nothing in the summaries which identify whether the investigation which was alleged to have been insufficient was an investigation by a judge investigating the complaint or by the trial court. And Egiguren itself is an example of the trial court being able to assess in a rigorous and critical way whether the investigation by an investigating judge into allegations of ill-treatment of someone detained incommunicado was sufficient and effective.
22. This is a topic which the English courts have considered. The Divisional Court (consisting of Laws LJ and Griffith Williams J) did so in Arronategui v First, Second, Third and Fourth Sections of the National High Court of Madrid, Spain [2012] EWHC 1170 (Admin). The case was similar to the present one in that Arronategui challenged his extradition to Spain on the basis that the evidence to be used against him at his trial included statements incriminating him made by an accomplice which had been obtained while the accomplice had been held in incommunicado detention, and as a result of "pressures" and "threats" to which he had been subjected. The court proceeded on the assumption, but without deciding, that the incommunicado regime (involving as it did the lack of access to legal advice and assistance) was capable of amounting to a breach of Art. 6, i.e. that it was capable of amounting to a flagrant denial of justice. But the court went on to conclude that the Spanish authorities had dispelled any doubts that Arronategui's right to a fair trial would be infringed.
23. On that issue, Griffith Williams J said in his judgment at [34]:

"The issue is a straight forward one – it is not the manner in which the confession statements of [Arronategui's accomplice] were or might have been obtained but rather, if the evidence was obtained unlawfully, whether there is a possibility that the Spanish court will admit it. If there is no real possibility that evidence unlawfully obtained would be deployed, then there is no prospect that [Arronategui's] Article 6 right to a fair trial will not be respected and protected if he is extradited to Spain."

And in concluding that there was no evidence to suggest, let alone to prove, that Arronategui would be at risk of an unfair trial, Griffith Williams J referred at [38] to the ability of a defendant at his trial to challenge the admissibility, or failing that the probative value, of evidence which is alleged to have been illegally obtained, to give evidence on the topic himself, and to call such evidence as he chooses, including, of course, that of any accomplice on whose statement incriminating the defendant the prosecution relies. He also noted that the evidence was that when it comes to the incriminating evidence of a co-defendant, "the jurisprudence of the Supreme Court … and the Constitutional Court is unequivocal in its judgments … that such evidence cannot by itself destroy the presumption of innocence, a constitutional right, unless it is corroborated by objective evidence that is independent of the statement maker". Griffith Williams J described the principle that a defendant cannot be convicted on the uncorroborated evidence of an accomplice alone as "an important safeguard".

24. The Divisional Court's judgment did not identify what the "pressures" and "threats" were to which Arronategui's accomplice claimed to have been subjected, and there may have been a difference between what was being alleged in that case and the allegations of ill-treatment made in the present one. But in the circumstances, I find myself in the same evidential position as the court in Arronategui. Whatever may be said about whether there is something approaching an international consensus about whether detainees held incommunicado are regularly subjected to ill-treatment, or whether there is something approaching an international consensus about whether complaints of ill-treatment made by detainees held incommunicado are properly investigated, there is no evidence, let alone anything approaching an international consensus, that the criminal courts of Spain have an institutional reluctance to investigate such complaints properly, or to uphold such complaints when they are made, or to hold incriminating statements made during incommunicado detention admissible when the evidence suggests that they should be held inadmissible.
25. I return to the judgment of the court in the trial of the appellant's brother. The court did not deal with what on the face of it was the unlikelihood of the appellant's brother having implicated the appellant voluntarily, but the court was nevertheless alive to the need for accomplice evidence to be corroborated. At any rate, that is what I take from the following passage in the court's judgment (which I quote directly from the translation of it):

"… this court, has to evaluate statements made at police stations introduced in the plenary not alone, but in relation to the set of the remaining evidence also taken validly under trial that corroborate or adverse their content, excluding on the other hand as sufficient evidence the destruction of the presuncion [sic] of innocence though the mere declaration of the co-defendant if it is not assigned with some level of objective corroboration."

And although the court was aware of the possibility that complaints of ill-treatment were "a defensive strategy commonplace in counter-terrorism operations", it regarded as significant that in the case of none of the defendants were there any signs of violence or abuse during what the court described as "the constant medical examinations" which took place while they were held incommunicado. Moreover, it regarded what it called "the coincidental timeframe of complaints and their content" as significant, especially since those complaints lacked any "objective foundation". In short, I do not think that the court's judgment can fairly be said to support any institutional reluctance on the part of the Spanish courts to find allegations of ill-treatment in the course of incommunicado detention unfounded.

26. Mr Mark Summers for the appellant argued that the materials before the court showed that the Spanish courts were inclined to treat the absence of any visible injuries when people like the appellant's brother were examined by the medical examiner as conclusive evidence that they had not been ill-treated. I do not agree. The CPT made the point in para. 32 of its report that "in the light of the precise form of ill-treatment alleged … the absence of any signs of violence cannot be considered as conclusive". But it did not go on to say that in its view the Spanish courts treated that as conclusive, whether regularly or at all, and having read with care the judgment of the court in the appellant's brother's case, I do not think that it regarded the absence of any visible signs of ill-treatment on him as conclusive, unlike the court in Sala.

Conclusion

27. For these reasons, this appeal must be dismissed. I make no order as to costs save that there be a detailed assessment of the appellant's publicly funded costs.