England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		14 July 2017

LORD JUSTICE SIMON:

Introduction

1. This is an appeal brought under section 130 of the Extradition Act 2003 (as amended) in relation to a Part 2 request on behalf of the Republic of South Africa ('the RSA') for the extradition of the appellant on charges of historic rape against two girls between 1982 and 1988, when they were aged between about 6, and 12 or 13 in respect of whom reporting restrictions apply.
2. A certificate certifying the request under section 70 of the Act was issued on behalf of the Secretary of State on 20 May 2015.
3. On 8 April 2016, Deputy Senior District Judge Arbuthnot, as she then was, gave a judgment sending the case to the Secretary of State for the Home Department under section 87(3) of the Act for a decision as to whether the appellant should be extradited to the RSA.

In the course of her judgment, the Deputy Senior District Judge, ('the DSDJ') rejected a number of arguments advanced by the appellant that the extradition was barred by the passage of time (section 79(1)(c) and 82 of the Act) and due to the condition of his health (section 91).

In addition, she dealt with an argument under section 87 of the Act in relation to the appellant's rights under Article 3 of the ECHR, the right not to be subjected to torture or to inhuman or degrading treatment or punishment.

The evidence in argument focused on the conditions in which he would be held in prison on remand and, if convicted and sentenced to imprisonment, in custody in the RSA.

4. The DSDJ set out the evidence at paragraphs 17 to 27 of her judgment. The effect can be summarised. There were assurances: (1) that the appellant would be accommodated at the Zonderwater Correctional Centre A (Zonderwater) while on remand and if convicted, while serving at custodial sentence; (2) that he would be held in a single occupancy cell with adequate ventilation and light; (3) that the cell would be physically able to accommodate his use of a wheelchair; (4) that the cell would have electricity and washing facilities with hot and cold water; (5) that it would have a flush toilet; and (6) that he would have access to prison health care facilities and at Weskoppies hospital and in particular medication for his diabetes.
5. These assurances were contained in the affidavits of Mr Sibongile Mzinyathi, the Director of Public Prosecutions for the Gauteng Province which covers Johannesburg and Pretoria; Advocate Elizabeth Leonard, Deputy Director of Public Prosecutions for Gauteng Province; Mr Jephtha Mkhabela, Acting Regional Commissioner of Correctional Services for the Province of Gauteng; Mr Umesh Raga, National Manager (Legal Services) Judicial Inspectorate for Correctional Facilities ('JICS'), part of a judge-led body that inspects prisons; Mr Michael Masondo, Mr Raga's supervisor in the JICS, and Mr Kholiwe Msiza, assistant director at Zonderwater.
6. The DSDJ summarised the contents of these affidavits at paragraph 17 to 27 of the judgment. I would observe that it would be convenient and more conducive to their clarity if assurances to a domestic court by a requesting State are summarised in a single document so that it is clear to the court, to those affected by the assurances which are given in the requesting State, and to the requested person what the nature and the extent of the assurances are. This document could then be annexed to a District Judge's judgment.
7. In the present case there is evidence of an issue as to whether a particular assurance had been given to a requested person who was extradited previously to the RSA. Such issues may be avoided by the existence of a single summarising document rather than having to search through a number of affidavits. I will return to this particular point later in this judgment.
8. Having set out the evidence and assurances given by the RSA in the present case, the DSDJ went on to consider an argument advanced on behalf of the appellant that she should not accept the assurances offered. She rejected that submission on the basis that there was no evidence which led her to conclude that she should not accept the assurances.

She added this:

68. South Africa has given assurances in the very recent past and there has never been any question that they will not abide with them.

The witnesses making the assurances are in a position of authority in relation to the prison and the psychiatric hospital and this is confirmed by the Independent Judicial Inspectorate for the South African Department of Correctional Services.

I am satisfied that the South African prison authorities will be able to cope to with the RP and his wheelchair. They have also given assurances in relation to his diabetes medication. I have no doubt that South Africa will hold to the assurances given as, they have done, in other cases in the past.

69. The evidence is clear that the prisons in Gauteng are overcrowded but I accept that Mr Donald will be held in a single cell in the conditions that have been outlined in the evidence. The overcrowding will not affect him as the prisoners in single cells are kept apart from the others.

9. A single substantive issue arises on this appeal: whether in the light of evidence put forward since the hearing before the DSDJ, there is reason to doubt the assurance given by the RSA that the conditions in which the appellant would be held in custody will not breach his rights under Article 3.

Law

10. There is no real issue as to the law which applies to assurances given by requesting States in order to meet minimum prison standards for compliance with Article 3 rights of requested persons:

(1) The terms of the assurances must be such that, if they are fulfilled, the person returned will not be subjected to a treatment contrary to Article 3.

(2) The assurances must be given in good faith.

(3) There must be a signed or objective basis for believing that the assurances will be fulfilled.

(4) Fulfilment of the assurances must be capable of being verified. See, for example, the judgment of the Divisional Court in The Court in Mures & Anor v. Zagrean [2016] EWHC 2786 (Admin) [52], and more recently, Kirchanov & Ors v. District Prosecutor's Office, Blagoevgrad, Bulgaria & Ors [2017] EWHC 827 (Admin) [24].

The issue on the appeal and the procedural issues that arise

11. Before turning to consider this issue and the evidence lodged in support, it is necessary to turn to the forensic history: it being implicit from Mr Middleton's argument that the appeal cannot succeed unless this court permits the admission of fresh evidence.
12. The test for the admission of fresh evidence is set out in the well known judgment of Divisional Court in Szombathely City Court & Ors v. Fenyvesi & Anor [2009] EWHC 231 (Admin). It is convenient to refer to three passages from the judgment of the court delivered by Sir Anthony May PQBD:

3. It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court.

An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court.

Should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance.

13. The court then went on to consider the position where evidence is relied on which was 'not available at the extradition hearing', see section 29(4) of the Extradition Act in relation to Part 1 requests and section 106(5) in relation to Part 2 requests:

32. In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available.

14. In Fenyvesi it was the requesting State which had to rely on fresh evidence but the court

reiterated that the test is general:

35. Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the District Judge and which is tendered to try to repair holes which should have been plugged before the District Judge simply because it has a Human Rights label attached to it.

The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.

15. Before considering whether, if the new evidence had been available before the DSDJ, she would have discharged the appellant, it is necessary to deal with the procedural issues that arise.
16. Following the DSDJ's judgment, the Secretary of State ordered the appellant's extradition on 1 June 2016.
17. On 17 June, the appellant lodged an application for permission to appeal. The grounds were founded on various issues decided adversely to the appellant by the DSDJ, delay in the process and the appellant's ill health. The grounds did not include a claim based on Section 87 of the Act, or a breach of Article 3 nor any complaint about the DSDJ's findings in relation to Article 3. The CPS, on behalf of the RSA, lodged a respondent's notice on 24 June 2016 dealing with the matters that had been raised.
18. Subsequently, the appellants lodged no less than 6 applications for extensions of time in which to submit perfected grounds. The first of these was issued on 1 July and the second on 15 July 2016. At this stage, according to the appellant's solicitor, they 'had recently been made aware of complaints that South Africa had breached its Article 3 assurances given in the case of Vernon & Ors v Republic of South Africa [2014] EWHC 4417 (Admin).' The concerns arose in relation to Mr Heesom, who was in prison in South Africa having been extradited and convicted for drugs offences.
19. Following a second extension granted on 16 August, a third application was made on 31 August and a third extension was granted on 7 September. A fourth extension was granted on 30 September and a fifth extension on the 9 November. This fifth extension was granted by Goss J and expired on 25 November 2016.
20. A further application for an extension of time was made on 15 December 2016. By this point, the appellant's solicitors had received a witness statement from Mr Heesom's solicitor, Mr Harry Grayson. This is dated 13 October 2016, although it was not served until February 2017 in circumstances that I will come to.
21. On 19 January 2017, Collins J ruled on the 15 December application. He extended the time for lodging psychiatric evidence and for lodging the perfected grounds until 15 February 2017. He refused to extend time for lodging evidence in relation to assurances and directed that the appellant should not be entitled to rely on any evidence filed after 25 November, the expiry of Goss J's order.
22. Paragraph 3 of Collins J's order reads:

There will be no further extensions. This is a final order. The appeal will be determined on such admissible evidence as is available in accordance with this order.

23. Perfected Grounds were served on 15 February 2017, the last day permissible under Collins J's order. Among the evidence was medical evidence upon which nothing turns on this appeal.
24. The Perfected Grounds raised the issue of Article 3 assurances for the first time in the following way:

The [DSDJ] erred in relying on the Article 3 assurances provided by [the RSA] that it would guarantee his Article 3 rights.

25. The witness statement of Mr Grayson was said to be part of the 'essential reading'. As I have already noted his witness statement is dated four months earlier, on 13 October 2016. No satisfactory explanation for the delay in serving the statement has been provided.

26. In addition to the Perfected Grounds there was a yet further application dated 15 February 2016 to extend time for 14 days in which to obtain further evidence of breaches of assurances. The application did not refer to Collins J's order precluding the admission of such evidence.

26. On 28 February 2017, the RSA served its submissions in response to the perfected grounds. On 24 March, Sir Stephen Silber considered the papers and granted permission to appeal. Among his case management directions were directions that the appellant must file and serve a skeleton argument not less than 21 days before the appeal hearing, with the RSA to file and serve a skeleton argument not less than 14 days before a hearing. That was done, so that the RSA would be able to respond to the appellant's argument.
27. The RSA complied with the order, Mr Sternberg's skeleton argument on behalf of the RSA, is dated 8 June. The appellant is in breach of that order. Mr Middleton's skeleton is dated 6 July, 6 days before the hearing. For this reason, Mr Sternberg's skeleton argument was not a response to Mr Middleton's skeleton as had been envisaged by the 24 March order.
28. However, the appellant's breaches of court orders do not end there. The appellant served two further witness statements. The first is a statement from Frazer Heesom, dated 28 June 2017, which forms the basis for the argument that the RSA's assurances cannot be relied on in the appellant's case, since they were breached in Mr Heesom's case. It appears that Mr Heesom was released from prison in South Africa in May 2017. The second is a statement from the solicitor employed by the appellant's solicitors, Lawrence & Co, dated 4 July 2017. This seeks to explain the delay by reference to the difficulty in obtaining evidence from Mr Heesom.
29. This course of events gives rise to a number of procedural difficulties for the appellant. The Criminal Procedure Rules provide by CPD XI paragraph 50.F that the court may refuse to admit any material or any evidence filed outside a time limit specified by the court; and by CPD XI paragraph 50E.7 that the court may refuse to hear argument on a point not included in a skeleton argument filed within the prescribed time.
30. Mr Middleton submits that despite the delays, the breaches of court orders and the potential difficult faced by the RSA in dealing with the material so close to the hearing, the court should admit the evidence of Frazer Heesom.
31. Since Mr Sternberg does not seek an adjournment to deal with this new evidence and I recognise that the appellant's Article 3 arguments depends largely on the evidence of Mr Heesom I am prepared, exceptionally, to admit it despite the misgivings I have expressed.

The evidence in relation to Frazer Heesom

32. The assurances given at the extradition hearing of Frazer Heesom were contained in an affidavit made by Zachariah Modise, Regional Commissioner of Correctional Services in Gauteng. They can be summarised so far as material in the present case as follows: (1) that he would be accommodated on remand at Johannesburg Medium A Correctional Centre, also known as 'Sun City'; (2) if convicted, he would serve a sentence at Johannesburg Medium C Correctional Centre; (3) in each place he would be detained separately in a single cell; (4) the cell would have washing facilities with hot and cold water; (5) the cell would have a flush toilet; and (6) he would have access to health care facilities during his time in prison.
33. Importantly, for present purposes, he was given no assurance that he would be able to procure his own food from outside the prison estate.
34. Although a substantial amount of material has been lodged on this appeal, Mr Middleton has sensibly focused on what he submits are four breaches of the assurance given in Mr Heesom's case: (1) a failure to provide a single cell throughout his detention in South Africa; (2) a failure to provide a cell with hot and cold water, and further facilities; (3) a failure to detain him at Johannesburg Medium C Correctional Centre following his conviction; and (4) a failure to provide proper health care.
35. Two initial points may be noted. First, although Mr Heesom was detained at Leeukwop, and not Johannesburg Medium C Correctional Centre following his conviction, this seems to have been an arrangement that he wanted. It follows that, as Mr Middleton rightly conceded, nothing turns on any infraction of the second assurance. Secondly, many of Mr Heesom's contemporary complaints as recorded by UK High Commission Consular Section staff were about the food. Initially, he was allowed to receive food from outside the prison, but in June 2016 this was stopped by the prison authorities for reasons that are obscure. In any event, Mr Heesom then went on hunger strike for 25 days and it was in the course of his hunger strike that some of the correspondence relied on in this appeal was generated.
36. Mr Middleton recognised that there had been no relevant assurance as to the source of Mr Heesom's food and, indeed, that Mr Heesom's objection to prison food was associated with a self-diagnosed ADHT condition which meant that he could not tolerate his food being touched by other people. However, Mr Middleton submitted that the difficulty that Mr Heesom, and consular staff were assisting him had in resolving the matter, 'added to the weight of concern' about the assurances that were given. I do not accept that submission.
37. Before turning to the remaining breaches which are relied on by the appellant it is necessary to say something about the quality of Mr Heesom's evidence.
38. In his extradition appeal, an issue arose about prison conditions. Laws LJ, who gave the leading judgment, Vernon & Ors v Republic of South Africa [2014] EWHC 4417 (Admin), said this:

4. All three appellants are white men. That may have some relevance because the District Judge stated that conditions in South African prisons are 'pretty bleak', 'perhaps particularly for white men because white inmates are very much in the minority'.

39. He then set out the relevant test in relation to Article 3 and extradition:

7.(1) The law relating to Article 3 and extradition.

Where Article 3 is raised as an objection to extradition, the test for the court is whether:

…..substantial grounds have been shown for believing that the person concerned if extradited faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. [Soering v United Kingdom App No 14038/99 paragraph 91.]

There have been qualifications to this approach. In Wellington [2009] 1 AC 335 it was held that punishment which would amount to inhuman and degrading treatment if meted out here might not be so regarded in a case where the choice is between extradition or allowing a fugitive offender to evade justice (see per Lord Hoffman at paragraphs 22 to 24; see also Harkins and Edwards v United Kingdom App Nos 9146/07 and 32650/07 paragraphs 129 to 131).

40. The court dismissed the appeals of each of Vernon, Hamilton and Heesom on their Article 3 point, which was in essence that the respondent's assurances as to their treatment in RSA would not prove to be adequate as protection against breach of their Article 3 rights, see [27].
41. The court then went on to consider Heesom's separate argument that his extradition was an abuse of process. At [38], the court recorded the District Judge's view of Heesom, who had given evidence in the Magistrates' Court by reference to paragraph 17 of District Judge Evans' judgment. The District Judge had said this:

17. Mr Heesom gave evidence before me. He speaks very quickly and with passion. He is righteously indignant about his situation. He provides a fluent account and has an answer for everything [...] I am afraid I just did not believe a word of what he told me.

42. The position is, therefore, that the appellant's case is not only advanced late and in breach of orders of the court, it depends crucially on the evidence of someone who was found to be lying on his oath in relation to his own extradition, and who was sentenced to term of imprisonment as a drug dealer.
43. While I recognise, as Mr Middleton submitted, that Mr Heesom's statement does to some extent give credit where credit is due, nevertheless, in the circumstances I would only be prepared to accept his evidence, where inconsistent with the sworn evidence served on behalf of the RSA, to the extent that it is supported by independent evidence.
44. Such independent evidence potentially comes from two sources: First, notes made by consular staff following visits to Mr Heesom while in prison. Second, the contents of emails, in particular those, sent in June and July 2016, at the time of his hunger strike.
45. Between the end of November 2014 and May 2015, Mr Heesom was held on remand at Sun City, Johannesburg. His complaints about his time there can be summarised. He was kept in a communal cell and while there was attacked by other inmates. He said he was visited by Mr Raga of JICS in March 2015. He told Mr Raga there had been breaches of the assurances given by the RSA. Mr Raga said he would look into them, but he heard nothing further from Mr Raga, who did nothing on his behalf. The breaches were primarily of the assurance that he would be kept in a single cell while on remand.
46. Although his witness statement is dated 28 June 2017, Mr Heesom made a Data Protection Act 1988 subject to access request, in relation to consular visits during his imprisonment. The request was answered under cover of a letter from the Foreign and Commonwealth Office dated 13 December 2016. The notes show that he was visited while at Sun City and that his comments were recorded.
47. The first visit was made on 23 December 2014. Mr Heesom was recorded as saying the guards and staff were fine. He was in a single cell, although he was there 23 out of 24 hours a day and there was no hot water. He said he did not eat the food. A second visit was made on 16 February 2015. On this occasion he was recorded as saying he was not doing well and complained about the British Government's approach to extradition. He said he had no water in his cell and could not eat the food. He said he could not complain about the conditions and that no one came into the prison to check the conditions.
48. Following the service of Mr Grayson's evidence in February 2017, but before the service of Mr Heesom's 2017 witness statement, the RSA produced a second affidavit from Mr Raga dealing with his contact with Mr Heesom and the complaints reported by Mr Grayson. Mr Raga says that JICS was aware that Mr Heesom was being held on remand at Johannesburg Medium A and who has complained about the conditions there. Before this JICS was also aware that an independent correctional centre visitor had attended to his complaints.
49. According to Mr Raga's evidence, Mr Heesom's complaints were as follows. First, about the lack of running hot water and flushing toilets. On investigation he found that the toilet flushed although the water pressure was weak in the section where he was being held, and was being attended to. Second, about the food in terms of its quality and quantity. Mr Raga found that the food containers and plates had become discoloured by age and that on occasion lunch and supper had been served at the same time due to staff inadequacies.
50. Mr Raga invited Mr Heesom to make contact with JICS either personally, through his lawyers or through consular representatives. He also advised him to record his complaints on a G365 form, although Mr Heesom said he was reluctant to do so. Mr Raga also says he was told by staff that there had been irritations and arguments with fellow inmates and an oral clash. No allegations of assault by fellow inmates were made to him, although they are contained in Mr Heesom's June 2017 statement, as I have already indicated. At the time of this visit Mr Heesom was in a single cell. His cell had functioning electricity. There was no issue about access to health care.
51. Following his conviction, Mr Heesom was moved to Leeukwop in May 2015. His witness statement contains complaints that he did not have a flushing toilet or access to regular medical treatment or dental care. He had no hot water for over 6 months and no running water for 6 weeks. He acknowledged that the Prison Director had given orders that some of these issues should be resolved, but these orders were not acted on. Although he had been assured that he would be put in a single cell, that instruction had not been passed on. He was not initially put in a single cell, although he was when he threatened legal action. Food from an outside source had been stopped on 3 June by a named prison official. It was this that had led him to go on hunger strike. When he first arrived at Leeukwop, the prison director had a copy of the assurances given by the RSA in his case. He told Mr Heesom that they could not afford a doctor on site full-time but said that if there were serious issues he would be taken for treatment outside subject to manpower issues.
52. On 22 May 2015, shortly after his removal to Leeukwop, Mr Heesom received a consular visit. At this point, he was being held in a hospital single cell but been told he would be moved to a single cell by the end of the week. The Consular notes record: 'He seems very happy in the new facility [...] hot water was a problem but seems to have been fixed.'
53. In June 2016, Mr Heesom went on hunger strike because he was no longer allowed food from outside. This gave rise to a number of emails which were exhibited to Mr Grayson's witness statement. Exhibit 3 is an email of 2 July 2016 from Mr Heesom addressed to the editors of numerous newspapers in the United Kingdom and copied to Mr Grayson. It is headed: 'Human Rights Violation to British citizen'. Among the points he made were: (a) that the only condition that was met was a single cell; (b) unspecified complaints that the RSA had not complied with assurances given to the court; (c) a specific complaint that the prison had stopped food being brought in from 3 June until the date of the email.
54. The vehemence of the complaints and those to whom the complaints were addressed undermines the appellant's solicitor's explanation of the late service of Mr Heesom's witness statement: that he has been loathed to criticise prison conditions while in South Africa. That appears not to be so.
55. Exhibit 6 is an email dated 5 July from someone called Chad Berry who appears to be a fellow prisoner. Although the contents might be regarded as some support for Mr Heesom's account of conditions including the availability of medical services, the email ends:

I am, as stated, an enemy combatant. I do not have to comply with any laws of either country and I am biding my time to react and to inflict harm with extreme prejudice [...]. We are adversaries and your lack of participative recourse is fuelling my cause and recruiting my forces.

56. Exhibit 7 is an email of 7 July to Mr Grayson from a British consular official in Pretoria asking for a copy of the 'extradition agreement'. The writer adds that the consular staff had 'health/welfare concerns' and that the prison staff say they do not have a copy of it.
57. On 14 July 2016, there was a second consular visit to Leeukwop. By this stage the food issue had been resolved. Mr Heesom is recorded as saying that: 'he would not swap this prison for Wandsworth Prison.' That I regard as a singularly telling observation in the present context.
58. Exhibit 8 to Mr Grayson's witness statement is an email dated 15 July from the same consular official. She says she had been to see Mr Heesom, he had started to eat again and would be getting medical treatment. There is no subsequent material evidence.

Conclusion

59. Having considered the evidence on the basis outlined earlier, I have reached the follow conclusions.
60. First, the appellant will not be held at either of the two prisons where Mr Heesom was held. The RSA evidence has been closely focused on the particular assurances necessary to comply with the appellant's Article 3 rights, for example, his diabetes and his needs as a wheelchair user.

No challenge can, or is, made in relation to the DSDJ's assessment of these assurances. On the contrary, the court has received further evidence in Mr Raga's second affidavit that JICS will ensure that any undertaking regarding his incarceration will be adhered to.

61. Secondly, and turning to the position of Mr Heesom, I do not accept the appellant's argument that Mr Heesom was detained in a communal cell in breach of the RSA's assurances. There might have been a confusion about his right to a single cell when he arrived at Leeukwop because the prison did not have a copy of the assurances, perhaps because Mr Heesom had not initially been expected to serve his sentence there. However, it is clear he was put in a single cell when he pointed out his right to one: initially in the hospital wing and then later elsewhere within the prison.
62. Thirdly, I accept that there were times when there were deficiencies in the provision of running hot and cold water and flushing toilets at Sun City. However, when Mr Raga visited the prison he found that the toilet flushed, although the water pressure was weak. There is no reliable evidence either way about hot water.
63. Fourthly, I accept that there were problems with water pressure and hot water but the evidence did not indicate that these issues were systematically ignored. Poor conditions can of course arise but what Article 3 is concerned with in this context is systemic failure, not incidental breakdowns in a system. At Leeukwop the consular official recorded during the 22 May 2015 visit that a hot water problem seemed to have been fixed.
64. Fifthly, general hospital care was available within the prison although a doctor was not present full time on site. If a medical emergency occurred or dental treatment were required arrangements could be made to secure treatment, although in the case of dental treatment it appears that it would have to have been paid for. Food was a repeated subject of complaint but was not the subject of any assurance and the issue does not begin to approach the Article 3 threshold.
65. In the light of these conclusions, I am not persuaded that the evidence in relation to Mr Heesom's assurances gives rise to a real risk that, if extradited, the appellant faces as real risk of being subjected to inhuman or degrading treatment. Accordingly, I would dismiss the appeal.

MRS JUSTICE MCGOWAN: I agree.