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
		26/04/2016

Mr Justice Nicol :

1. The government of Peru has sought the extradition of Aristide Canessa and James Cato to face trial on charges of drug trafficking. The allegations against the two are quite separate but their cases were heard together in the Westminster Magistrates' Court (and also with three others) because these were the first cases in which Peru was the requesting state, at least for very many years. The cases all had a number of issues in common.
2. The extradition hearing was conducted by the Deputy Senior District Judge, Emma Arbuthnot ('the DSDJ'). In a combined written ruling dated 7^th June 2015 she sent these two cases to the Secretary of State for the Home Department ('SSHD'). She likewise sent the cases of Gary Findlater and Gregory Richmond Brown to the SSHD. She discharged a fifth person, Gemma Onur. On 20^th July 2015 the SSHD ordered the extradition of Canessa and Cato. They now appeal against the decision of the DSDJ pursuant to Extradition Act 2003 ('EA') s.103.
3. There are three principal issues for us to decide. In each case the DSDJ decided the issue adversely to the Appellants and we have to consider whether she was wrong to do so. It is convenient, though, to express the issues in positive terms. They are:

i) (Canessa only) Do the assurances which have been given by Peru apply to Canessa who is an Italian national (and not a British Citizen)? Should the assurances be regarded differently by the Court because of Canessa's nationality?

ii) If each Appellant was extradited to Peru, are there serious grounds for believing that there is a real risk that he would face inhuman or degrading treatment?

iii) If each Appellant was extradited to Peru is there a real risk that there would be a flagrant breach of the protections he would have to a fair trial by virtue of Article 6 of the European Convention on Human Rights ('ECHR') if his trial took place in England?

Procedure

4. Peru is a category 2 territory for the purposes of the EA. The initial stage of the procedure is for the SSHD to consider the extradition request and to certify it if it is in compliance with the requirements of EA s.70. The request for Canessa's extradition was certified by the SSHD on 23^rd March 2009. The request for Cato's extradition was certified on 25^th April 2013.
5. At the extradition hearing the judge has to decide whether there is evidence which would be sufficient to make a case requiring an answer by the requested person if the proceedings were the summary trial of an information against him (EA s.84). Cato accepted that there was. Canessa disputed this, but the DSDJ found in Peru's favour. There is no appeal against that finding. The DSDJ was then required to consider whether extradition would be compatible with their rights under the ECHR - see EA s.87. Both Canessa and Cato contended that their extradition would infringe their rights under Articles 3 and 6 of the ECHR. It is the DSDJ's findings that this would not be the case that gives rise to the second and third issues in this appeal.
6. Peru provided various assurances in the course of the extradition proceedings. They included (plainly in the case of Cato and also, it is said, in the case of Canessa) an undertaking that, if returned and detained, they would only be held at a prison called Ancon II. This was important. The DSDJ received a report and heard oral evidence from Professor Rod Morgan, Professor Emeritus of Criminal Justice at the University of Bristol. He gave a shocking description of the conditions in some of the other prisons in Peru. These included Callao and Castro Castro prisons. The DSDJ observed that she would have little difficulty in finding a potential breach of the Article 3 rights of the Requested Persons if they were to be imprisoned there. Thus the assurance that the appellants would not be detained anywhere other than Ancon II was an important step in her finding that extradition would not involve a violation of Article 3.
7. If the requesting state is successful at the extradition hearing, the consequence is that the district judge must send the case to the SSHD who then has other matters to consider before, if appropriate, ordering the requested person's extradition. There is a right of appeal against the district judge's decision – EA s.103, although the hearing of the appeal has to be deferred until it is known that the SSHD has made an extradition order – see EA s.103(5)-(7).
8. As I have already observed, the DSDJ also sent to the SSHD the cases of two other persons, Findlater and Richmond-Brown. They, too, appealed against her decision. The SSHD also ordered their extradition to proceed. However, before the hearing of the appeal, Peru withdrew the requests for their extradition. In accordance with EA s.124(3) we then ordered their discharge and quashed the SSHD's orders for their extradition.
9. William Davis J. gave Canessa permission to appeal on all three grounds. He gave Cato permission to appeal on issues 2 and 3.

Issue 1: Do the assurances apply to Canessa?

10. As I have said, the DSDJ had before her the report of Professor Morgan. This was sent to Julio Cesar Magan Zevallos, President of the National Penitentiary Council ('INPE') for his comments. He responded in a letter dated 20^th February 2015. He said,

'From the conclusions drawn by Professor Morgan it can be seen that overcrowding and prison conditions in the Peruvian Penitentiary System are a negative aspect for the purposes of the extradition of the British citizens Aristide Canessa, Jamie Michael Cato, Gary John Findlater and Gregory Richard Brown, seeing that they differ from the conditions that exist in Europe; however I must state that the current management is working to achieve the objective of reducing the level of overcrowding that exists in the penitentiary establishments, in order to guarantee respect for the human rights of the internees.

…

Finally I should point out that in order to achieve the extradition of the British citizens, the institution over which I preside undertakes to place them directly in Ancon II Penitentiary Establishment which, as Professor Morgan indicates in his report, is not overcrowded…'

11. Dr Zevallos also enclosed a report from Dr Irribari, the Director of Medio Libre, the body responsible for overseeing post-custodial activities and sentences involving limitation of rights. He says,

'…the National Penitentiary Institute can guarantee that should there be agreement on the extradition of the British citizens they may be placed in Ancon II Penitentiary Establishment, which is a prison which complies with the standards of respect of the human rights of imprisoned persons…'

12. Mr Gledhill, on behalf of Canessa, uses these references to British Citizens to argue that the assurances do not apply to his client who is Italian and not British.
13. In my judgment this argument cannot succeed. As the first quotation from Dr Zavallos's letter shows, he was under the (erroneous) impression that all 4 of the male requested persons were British Citizens. It is in that context that he referred to them collectively as 'the British citizens' whose extradition Peru was seeking to achieve in the sentence beginning 'Finally…' It is likely that Dr Irribari was under the same mistaken impression.
14. The matter is put beyond any doubt by a further letter from Dr Zevallos, dated 12^th May 2015. It is clear that this letter refers to all five of the people whose extradition Peru was seeking (including specifically Canessa). Dr Zevallos says that the National Penitentiary Institute is the only body that can determine the particular establishment in which a prisoner will be located and, in the case of all of the requested persons, that will be Ancon II. He concludes

'As for the extraditable subjects, INPE, guarantees that they will be located in the Penitentiary Establishment of Ancon II and they will be confined in a cell with no more than 4 people.'

15. In granting permission on this ground to Canessa, William Davis J. expressed concern as to the status of the assurance (even if it did extend to Canessa) when he was not a British national. Mr Gledhill's skeleton argument did not refer to that aspect and in his oral submissions he did not pursue the point. In my judgment, the concern, on analysis is unfounded. Absent clear evidence to the contrary, the courts will assume that such assurances are given in good faith. That assumption is not dependent on the nationality of the person to whom the assurance relates. In this case, as the DSDJ observed, there have been good diplomatic relations between the UK and Peru for many years. That is material to the issue of whether the assurance would be observed. Again, the nationality of the person to whom the assurance refers is immaterial. If the assurance was broken (whatever the nationality of the individual in question), that would sour diplomatic relations and make it more difficult for Peru to obtain a favourable response to extradition requests in the future.
16. Accordingly, I would conclude that the assurances provided by Peru apply to Canessa as they do to Cato and are to be given no different weight as between the two appellants.

Issue 2: would extradition infringe Article 3?

17. In summary, the Appellants rely on the following features of their likely detention in Peru to show that it would amount to inhuman or degrading treatment:

i) The small amount of space available in the cells in Ancon II.

ii) The limited medical facilities which are available which in turn need to be considered against the background of their particular physical and mental health needs.

iii) The heavy reliance on prisoners purchasing basic necessities and the unsatisfactory reliance on charity provided through embassies.

iv) The uncertainty as to whether the Appellants would be moved to a different prison, one nearer Callao, when hearings take place. If that was to occur, they would be exposed to the far poorer conditions in prisons in Callao or Lima.

The amount of space available to prisoners in Ancon II

18. Professor Morgan describes in his report the layout of Ancon II. It has four wings, each with four spurs on 2 floors. Each floor has 8 cells. A cell measures 4 x 4 metres (so 16 sq metres in all). Each cell has 4 two-person bunks. There are cupboards for storing prisoners' possessions. At the rear of each cell is a partitioned hole in the floor for use as a lavatory with a cold tap and bucket for flushing. Between the bunks there is effective floor space of about 4 sq. metres which is just enough room for a table and two chairs (although some cell occupants put these last items in the corridor outside).
19. Outside the cells, each wing has a large day room or meeting room with a television and coin operated telephones. Each wing also has a large concrete yard with a wash-house and shower block (although with only cold water). Each wing also has a large covered area sub-divided into kitchen and workshop space. There are in fact two kitchens: one for the prison supplied food; the second for prisoner provided food. The second is an example of what Professor Morgan called 'the Peruvian Penal Approach' ('PPA') which seemed to embody a largely laissez faire approach to internal prison matters. In particular, prisoners were encouraged to supplement food, medicines, and other things supplied (or not supplied) by the prison from their own resources. A cash economy amongst prisoners was allowed to flourish.
20. Importantly, prisoners were confined to their cells between 6.0pm and 6.0am. At other times, they may go in their rooms, but they are also able to use the day rooms, the outside exercise areas, the workshop and programme areas.
21. The DSDJ found that, as a result of the assurances already referred to, there would be no more than 4 (or possibly 5) prisoners per cell. Each prisoner would have approximately 4 sq. metres. Because of the space occupied by the bunks and cupboards and even assuming the table and chairs were placed in the corridor, the free floor space was only about 4 sq. metres or 1 sq. metre per prisoner. As against that, the DSDJ said, was the 'very important consideration' to which she attached 'great weight' namely that the prisoners were only confined to these cells for 12 hours per day and the remainder of the time they were free to roam over a much larger area.
22. Mr Gledhill and Mr Irwin (on Cato's behalf) make the following points:

i) Although Peru has given an assurance that there will be no more than 4 prisoners in the appellants' cell, the pressure on that country's prisons puts that assurance in doubt. Ancon II is, at the moment, at about 59% occupancy (according to Professor Morgan), but other parts of the prison estate are grossly overcrowded as Professor Morgan also showed. It can only be a matter of time before some prisoners are moved from the overcrowded jails to Ancon II. The remote location of Ancon II may delay this happening, but the pressures are such that Ancon II will inevitably be used to relieve conditions elsewhere in the system.

ii) The PPA means that what happens inside a prison is to a very large extent controlled by the prisoners. Cato's brother Jason has been imprisoned in Peru (also for drug offences). His wife, Janet, gave a vivid account of how her husband had to pay 'rent' to certain other prisoners for the space which he occupied. How much he was prepared to pay determined in what kind of cell (and on which wing) he would be held. Some prisoners could only afford space in a corridor or in the open air. While there are not presently the same pressures on space in Ancon II, if the numbers of detained persons continue to rise, a similar phenomenon can be expected to take place there. It will be then beyond the power of the Peruvian authorities to adhere to their assurance that no more than 4 prisoners will be in the Appellants' cell.

iii) If there are no more than 4 prisoners in their cell, a simple division of the area of the cell by the number of occupants means that each will have 4 square metres, but a very large proportion of his space is taken up by the bunks and furniture. The net space per prisoner (again even assuming 4 per cell) is only about 1 square metre which is very much less than the European Court of Human Rights would regard as acceptable.

iv) The DSDJ placed considerable weight on the time that the prisoners were allowed out of their cells and able to move about freely within the prison. However, the 12 hours in which they were locked up (6.0pm – 6.0am) would by no means all be taken up with sleeping.

23. In my judgment, though, these arguments do not persuade me that the amount of space likely to be available to the Appellants would by itself constitute inhuman or degrading treatment. The following facts seem to me to be particularly important.

i) The assurance that there will be no more than 4 prisoners per cell in the cell or cells occupied by the Appellants is clear and unequivocal. As I have said, the Court will normally assume that such assurances will be observed. It would need clearer evidence than the Appellants have assembled to displace that assumption.

ii) The benchmark of 3 square metres below which the amount of space is likely to be considered a breach of Article 3 is the gross space (i.e. the total floor area divided by the number of prisoners). 4 square metres per prisoner is obviously above that threshold. It is not the case that there must also be at least 3 square metres of space net of that occupied by furniture – see Blaj v Romania [2015] EWHC 1710 (Admin) at [43]. There must be sufficient room to move around the furniture, but that is a more modest standard. At least if the table and chairs are stored in the corridor, that is achieved.

iii) If there are only 4 prisoners to the cell, there will be four spare bunks which (I assume) can be used for additional storage space by the occupants.

iv) Like the DSDJ, I consider that it is particularly important that for 12 hours, and for the very great part of the waking day, prisoners are not confined to their cells. While they may not be asleep for the whole of the time that they are in their cells, that will be the case for much of it. Each prisoner has his own bed and that, too, is important.

Medical facilities

24. Professor Morgan reported that a main complaint from the prisoners at Ancon II was the poor quality and inadequate supply of medical and dental services. He found that there was 1 full time doctor and 4 nurses for 1500 prisoners. He said that the Head Nurse admitted to him that the medical team was quite inadequate for the prison's needs. The prisoners told him that there were also huge delays in getting outside hospital treatment. The DSDJ accepted Professor Morgan's analysis that the health care on offer in Ancon II was woefully inadequate.
25. These shortcomings have to be viewed in the context of the particular medical needs of the Appellants. Canessa has glaucoma for which he receives medication. He also has had pilonidal sinus since he was a child. The sinus discharges pus and causes bleeding once a month. He is on a waiting list for an operation in the UK, but that has not yet taken place. It is important that he keeps the site of the sinus clean. It is not painful and does not seem to be life threatening.
26. Dr Lucy Bacon is a consultant forensic psychiatrist. In her report dated 25^th November 2014 she diagnoses Cato as suffering from depression which was moderate in severity. He had been receiving anti-depressant medication since his time on remand (he is now on bail). These had helped but his symptoms continued. He described suicidal thoughts. Mr Iwin accepts that Cato does not have mental health problems of such severity as to give rise to a stand alone argument under Article 3, but he submits, there are obvious deficiencies in the Peruvian mental health provision should he need it.
27. Dominic Williams, H.M. Consul-General in Lima provided a witness statement dated 18^th May 2015 in which he explained that if UK prisoners received prescriptions from the health clinic in the prison, Consular Services, would enable the prescriptions to be filled and paid for. A letter dated 27^th May 2015 from the Italian Embassy showed that similar assistance would be provided (if necessary) to Canessa.
28. A letter from Dr Zevallos dated 13^th March 2015 said, 'people serving custodial sentences currently receive top quality health care, and in the specific case in question [viz Canessa], prisoners suffering with ophthalmic pathology receive care from a leading hospital that has a specialised Ophthalmology service. With regards the psychiatric illness, the INPE also has a psychiatry professional to care for the prisoners…people serving custodial sentences, including foreigners, are registered with the Complete Health Insurance Scheme, which covers the costs of their health care 100%, including treatment.'
29. If this stood alone a degree of caution would be appropriate. 'Top quality health care' is not how Professor Morgan described the medical facilities at Ancon II. Nor did that description accord with the views of the Peruvian Prison Ombudsman in 2011. The location of the hospital with the specialised ophthalmology service and the nature of the psychiatric services available are unspecified.
30. In her judgment, the DSDJ said this,

'My most serious concerns are in relation to the medical facilities at Ancon II which is what the prisoners were concerned about when spoken to by Professor Morgan. I noted that, although the [Requested Persons] have medical issues they are not life threatening and I have concluded that they will be able to obtain the medication they need either through the prison or via the British Embassy or Prisoners Abroad or in Mr Canessa's case via the Italian Embassy. I appreciate that evidence from the Italian Embassy was not tested in cross examination but it confirmed what Professor Morgan had said in evidence. I accepted the evidence in the British Embassy guide to prisoners that they will be able to assist with medical issues if the prison is taking too long to sort a problem out.'

31. Having read and heard from Mr Irwin and Mr Gledhill, my view is the same as the DSDJ's and I am not persuaded that her conclusions on this matter were wrong.

Reliance on assistance provided through the Embassies

32. The food actually supplied by the prison is extremely basic and very limited. Supplementary food is available, but it has to be paid for. Likewise, any toiletries (including soap) have to be bought or supplied by the prisoners themselves. There is cold water available, but prisoners may buy (or rent) devices for heating water. All of this is of a piece with the PPA and its reliance on private enterprise within the prison.
33. It is the knowledge of this which causes the British Embassy to distribute the equivalent of £30 per month to each prisoner. The funds come from the charity Prisoners Abroad. The Italian Embassy likewise makes periodic payments of a similar amount to its nationals who are prisoners in Peru.
34. The Appellants raise two particular concerns about this system. Firstly, since it relies on charity, it is inherently fragile and it is wrong in principle that access to basic necessities (including, in Canessa's case, the medical need to preserve his standard of hygiene) should be dependent on external charities. Secondly, those who sell goods in prison or supply services to foreign prisoners are aware of these subventions. Prices charged to foreigners with access to such funds are increased accordingly.
35. I appreciate these concerns, but the fact remains that payments from Prisoners Abroad has continued and the Appellants were not able to point to any particular reason as to why it or the equivalent provided by the Italian Embassy should come to an end. Foreign prisoners may have to pay somewhat higher prices, but there is no evidence that the cost of some supplementary meals and toiletries and other necessities has been priced out of their reach. Even with this assistance, life in Ancon II for a foreign prisoner is likely to be tough, but a stringent test has to be passed before conditions of detention can be said to be inhuman or degrading. These features do not mean, in my judgment, that test has been passed.

Uncertainty as to where the Appellants would be detained during their trial

36. Ancon II is some 90 kilometres from Callao where the trials of each Appellant would take place. Mr Gledhill submits that at peak time travel between the two would take 2 hours each way. The likelihood is that the Peruvian authorities would economise by keeping the Appellants at a prison in Callao for the duration of their trials and, as the DSDJ recognised, the conditions in that prison are appalling.
37. Mr Sternberg, on behalf of Peru, says that this fear is groundless. He asks us to pay close attention to Dr Zevallos's letter of 12^th May 2015 in which he said,

'In this situation, if extradition is accepted and if the Peruvian Judicial Authority orders the imprisonment of …Aristide Canessa, Jamie Michael Cato…, the INPE is the only body that will determine the placement in a penitentiary establishment, in this case Ancon II. If they need to be transferred for their hearings, they should return to the Penitentiary Establishment as soon as the proceedings have terminated, along with their internal procedures. At the moment, video conferences are being implemented, so the most likely outcome is that they will not need to be transferred for their judicial hearings. It should be pointed out that they can only be transferred to another penitentiary establishment of the country in the event of bad behaviour which amount to serious wrongdoing which jeopardises the security of the penitentiary establishment.'

38. Mr Sternberg argues that a fair reading of this letter is that, during their judicial hearings, the Appellants will either attend via video conferencing, or they will be taken to and from Callao each day.
39. The DSDJ simply accepted the assurance that the Appellants would be held at Ancon II. She did not specifically deal with the position during the trial, but it is I think a fair inference from her acceptance of the evidence of the extremely poor conditions in certain other prisons (including prisons in Callao) that she did not consider that the Appellants would be spending any time in those prisons and certainly no significant amount of time in them. While I do not think the issue is quite so clear cut, on balance I accept Mr Sternberg's reading of the letter of 12^th May. I could not say that the DSDJ was wrong to read it in the way he submits.
40. After the hearing I had a full and paginated copy of the Prison Ombudsman's Report which at pp.51-57 refers specifically to problems with prison transport. In view of this, and in accordance with the Court's duty to give anxious scrutiny to a challenge which raised Article 3 grounds, we considered it prudent to seek confirmation from Dr Zevallos that he understood his letter of 12^th May 2015 in the way that Mr Sternberg had interpreted it.
41. On 7^th April 2016 we received the following from Mr Sternberg:

i) A letter dated 28^th March 2016 from Dr Zevallos. He confirmed,

'Specifically, it is appropriate to specify that the extraditable persons [who include the Appellants], once their hearings are over, shall immediately return to their Detention Facility of origin, this also including for daily hearings.'

ii) A letter dated 10^th March 2016 from Susana Castaneda-Otsu, the Coordinator for the Anticorruption Subsystem, Code of Criminal Procedure 2004 of the Supreme Court of Justice, Lima. She set out a table of implementation dates for the New Code of Criminal Procedure in the various Judicial Districts of Peru.

42. We gave the Appellants an opportunity to comment on this further information. Neither objected to us receiving the further information. I consider that we should do so. Mr Gledhill had no submissions to make. Mr Irwin accepted that the effect of Dr Zevallos's latest letter was that the Appellants would not spend any time in Callao Prison. He submitted, however, that the daily journey during the hearings between Ancon II and Callao court would be arduous. He also submitted that the further letter Ms Castaneda-Otsu showed that the judicial districts in Lima and Callao were lagging behind the others in the implementation of the changes to the Code of Criminal Procedure.
43. In my judgment, the most recent letter from Dr Zevallos has allayed any concerns that I might otherwise have had. There are now clear assurances that the Appellants will be held at Ancon II and not Callao prison even during the trial or hearings of their cases. The daily journeys which this may entail will be burdensome, but that falls well short of treatment of a kind encompassed by Article 3 of the ECHR.

Overall conclusion on Article 3

44. I have looked at the individual features on which the Appellants rely, but it is uncontroversial that it is necessary to consider all aspects of their situation if they were extradited to decide whether their extradition would infringe Article 3. Accordingly, I step back from the analysis of the specific features to consider whether the DSDJ was wrong to conclude that the Appellants had not shown that there were serious grounds for believing that, if extradited, they would face a real risk of inhuman or degrading treatment. My conclusion is that the DSDJ was not wrong.

Issue 3: Would extradition contravene Article 6?

45. Broadly speaking the UK's responsibility under the ECHR is territorial. It undertakes that those within the UK will enjoy the rights which the Convention confers. Even where the state to which a person is to be extradited is also a party to the Convention, the UK does not assume any form of vicarious responsibility to see that the requesting state complies with its duties under the Convention. Peru, of course, is not a party to the ECHR. The UK is responsible for its own acts, including the act of extradition. The Strasbourg Court has found that 'an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country' – see Othman v UK (Application No. 8139/09) at [258].
46. The term 'flagrant denial of justice' is synonymous with a trial which is manifestly contrary to the provisions of Article 6 or the principles embodied therein – Othman at [259]. In the same paragraph the Court gave examples of what might be embraced by the term. None apply in the present context, but the examples were intended only to be illustrative. The Court went on to say,

'[260] 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, taken with the examples given in the previous paragraph, 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 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.

[261] In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases. Therefore, 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.'

47. In this context, the most significant issue raised by the appellants concern allegations of corruption within the judiciary in Peru generally and in Callao (where, as I have said, the appellants would be likely to be tried) in particular.
48. The Appellants relied principally on a report by Geoffrey Montagne of GAN Integrity Solutions ApS. Mr Montagne did not claim to have any particular expertise concerning Peru or its legal system, but his report assembled information that was publicly available. He referred to a survey in 2013 by Transparency International which found that 85% of respondents in Peru considered that the judiciary was corrupt. User surveys (by Proetica, a Transparency International affiliate, in 2012) indicated that unofficial payments affected the speed and final outcome of judicial processes. Peru performed worst among Latin American and Caribbean countries for judicial confidence according to a 2013 survey by Gallup. Another poll by Gallup in 2014 found that 80% of all respondents had no confidence in the fairness of the courts because of omnipresent corruption.
49. In 2004 Peru adopted the New Criminal Procedure Code. This was aimed at safeguarding fair and transparent judicial proceedings. It dramatically decreased the time taken by criminal proceedings. It contained other measures aimed at curbing corruption. However, the judicial districts of Callao and Lima have held out against implementing the NCPC. Instead, they continue to operate under the Code of Criminal Procedure from 1940. Mr Montagne reports the president of the Callao Court of Appeal acknowledging that high-level corruption hampered the implementation of the NCPC. This clearly includes the provisions aimed at reducing trial delays and improving transparency in the judicial process.
50. In his report, Professor Morgan said,

'Other senior officials with whom I met also asserted, and interestingly declined to allow me to quote them individually, that corruption among the judiciary, defence lawyers and prosecutors, is a serious problem.'

51. The position is not uniformly bleak. Mr Montagne reports that the National Council of the Judiciary dismissed three magistrates and seven judicial officers from different regions across Peru in January 2015. He says that corrupt judges were removed from the office for extorting bribes in exchange for favourable rulings, abuse of office, and falsifying court documents. In August 2014 Peru's anti-corruption unit recommended the dismissal of the superior court judge of Callao for corruption. It is alleged that as President of the Supreme Court of Callao he solicited money and gifts to clear a defendant of all charges in connection with an offence. The Judge denied the allegations and no new information was available as of March 2015. Mr Montagne says that the NCPC is being implemented, even in Lima and Callao, for corruption committed by public officials.
52. The DSDJ also had a report by Fanny Uchuya Donayrei 'The Peruvian Judiciary Against Corruption' which gave figures for civil servants convicted of corruption offences. There had been 1,816 such convictions nationally in 2014 and 415 in the first quarter of 2015. She gives a breakdown by district and it is apparent that there has been a substantial number of convictions in Callao and Lima as well as in the other districts.
53. There was also before the DSDJ the statement of Janet Cato. Her husband, Jason Cato, had been tried in Lima (which, like Callao, has held out against adoption of the NCPC). She gave an account of going to see the Judge prior to Jason being sentenced (on his guilty plea). She said, 'The judge said that if I paid $7,000 he would pass a shorter sentence. I said this was unjust and the judge threatened to have me arrested – for trying to bribe him!'
54. In about 2012 Jason was apparently eligible for release on licence. The prisoner had to attend a meeting with the judge and, apparently, an interpreter. Janet Cato says,

'I spoke to the Judge's secretary who told me that for this particular judge to grant an audience with an interpreter I would have to pay. I asked how much and he said it would cost $5,000 – and must be in US dollars. I protested that this was unfair because everything was in place for Jason to be released. The clerk told me that if the money wasn't paid, the judge would grant an audience but would not authorise Jason's release until the full 6 years sentence was complete, or nearly complete.'

55. Janet Cato says that, with the assistance of the prosecutor, the case was later assigned to a different judge and Jason was released about a year thereafter. Janet Cato was not available in the UK to give oral testimony and her evidence was not therefore subject to cross examination.
56. Before the DSDJ the Appellants also called Denise Ledgard, whose report of 5^th December 2014 spoke of other procedural disadvantages which the Appellants would suffer, and I will return to these. Ms Ledgard said nothing about corruption.
57. In the course of her judgment the DSDJ commented 'In the examples given, there is no evidence or suggestion of the police and prosecutors bribing judges to obtain a conviction.' If there was evidence of bribery by the prosecutors that would, of course, be material. I am not sure whether the absence of such evidence is of any great importance. If a corrupt judge solicited a bribe from a defendant in return for an acquittal (or, as Janet Cato alleges occurred) in return for a shorter sentence or other procedural advantage and the defendant refused to pay, it is a short step to doubt whether the judge would thereafter deal with the defendant impartially.
58. In her conclusion on Article 6 the DSDJ said this,

'As far as corruption is concerned, I have read the notes of the trials that took place in relation to Mr Belfiore and Mr Palmeiro [Mr Palmeiro was stopped when about to leave Peru with 3.5 kilos of cocaine in his baggage. He alleged that he had been recruited by Mr Belfiore and Canessa who had been travelling with him. Palmeiro was tried and sentenced to 6 years 8 months imprisonment. Belfiore was extradited from Spain to Peru. In his trial he also alleged that Canessa was at the heart of the conspiracy. Belfiore was convicted and sentenced to 12 years imprisonment]. [Peru] has sent much material from the District Attorney and from the Judges. I have read the information in relation to the investigation and prosecution of Mr Young, captain of the Audaciter [Findlater and Richmond-Brown were alleged to have conspired with the captain of the Audaciter to export cocaine from Peru by the yacht.] There is absolutely no evidence of corruption in any of those documents. I noted the evidence of what Peru is doing to combat corruption which was outlined in Ms Uchuya's statement on behalf of [Peru]. The new 2004 code is being used to combat corruption and work is being done by the General Audit Office of Peru and the Public Prosecutor. Furthermore the judiciary is subject to regulation by the Office of Judicial Supervision, a special investigation unit and a court of judicial ethics. The RPs rely on surveys and generalities and there is no sufficiently detailed evidence that the trials of these RPs in particular would be affected by corruption. Mr Montagne relies on the case of Mr Rae [According to Mr Montagne's report Alan Rae was arrested at a Peruvian airport and accused of drug smuggling. He was acquitted after spending 2 years in detention] where there is no suggestion that a bribe was taken. Perceptions and surveys can often be wrong and Ms Ledgard in her evidence made no reference to corruption as something that would impede a fair trial of these RPs.'

59. In the course of the hearing the Appellants said that they thought Ms Ledgard (who, it seems, had been instructed initially in relation to Richmond-Brown and Findlater) had not been instructed to deal with corruption. In an email after the hearing it was confirmed that this was so. Strictly speaking this was fresh evidence and no application was made to adduce it or to explain how the requirements for the receipt of fresh evidence were satisfied. But even if I set that problem aside, there is still some significance in the omission. After all, Ms Ledgard was setting out to make 'an analysis of the situation of due process in Peru' against the background of the requirements of Article 6.
60. I do not underestimate the difficulty which the Appellants face in assembling evidence. Cato's solicitor provided a statement setting out the problems he experienced in getting evidence on this and other matters. Nonetheless, as the Strasbourg Court has emphasised, the burden is on them to make out their case that their extradition would violate Article 6. I would accept that it would be a 'flagrant denial of justice' for them to be tried or sentenced by a corrupt judge. They do not have to prove to the civil standard (let alone the criminal standard) that that will be the case, but they do have to show substantial grounds for believing that there will be a real risk of this, or some other form of flagrant injustice, occurring. The survey evidence which Mr Montagne reported is material to that question. So, too, is the evidence that the 1940 Code of Criminal Procedure will apply to their trials in Callao (and I accept what the Appellants argue, that this shows the procedure by which they will be tried will not have the beneficial modifications of the 2004 version and, furthermore, it may also imply a resistance to change and reform by the judges in Callao). Janet Cato gave two specific examples of corruption in Lima (where the 1940 Code also still applied). But these are only part of the picture. The DSDJ was entitled to look as well at the measures which were being taken to combat corruption among public servants in general and the judiciary in particular. She was also entitled to have regard to the absence of any evidence of corruption in the trials of Rae, Belfiore, Palmeiro and Young. All of these showed that it could not necessarily be inferred from the more general evidence of corruption that the trials of these particular Appellants would be similarly tainted. Laws LJ drew attention in Bardoshi and Sadushi v Albania [2014] EWHC 2756 (Admin) at [25] to the limited value of general evidence of human rights failings in the requesting state. As he said at [43] this will not generally suffice.

'The particular circumstances of the requested person have to be regarded. General evidence will only be enough if it is so strong – "in the most extreme cases" – as to lead to an inference of violation in any instance where the right is engaged: in an Article 6 case, a real risk of a flagrant denial of justice.'

61. Accordingly, I conclude that the DSDJ was not wrong to find that the risk of corruption was not such as to make the Appellants' extradition a breach of Article 6.
62. The other matters on which the Appellants rely in the context of Article 6 are the length of time which the criminal process will take (during which they are likely to remain in detention), the indifferent quality of public defenders who are provided to defendants who cannot afford to instruct a lawyer privately, the uncertain availability of interpreters and the blurring of the functions of the investigative judge under the 1940 Code (If the defendant pleads guilty then it is this judge who passes sentence). I have considered all that Mr Gledhill and Mr Irwin have said in their written and oral submissions. It is sufficient for me to say that they did not persuade me that the DSDJ was wrong to reject the very similar submissions which they made in front of her.
63. It follows that I conclude the extradition of these Appellants would not be a breach of Article 6.

Overall conclusion

64. Accordingly, I would dismiss these appeals.

Lord Justice Laws

65. I agree.