QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SIR KENNETH PARKER
Sitting as a Judge of the High Court
| JOAO ANTONIO DELGARDO HENRIQUES
|- and -
|JUDICIAL AUTHORITY OF PORTUGAL
MR MARK SUMMERS QC & MR JONATHAN SWAIN (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: Thursday 11 July 2019
Crown Copyright ©
Sir Kenneth Parker :
The Grounds of Appeal
B. Applicable law on prison conditions for the purposes of Article 3 ECHR
(1) Where an "executing Member State is in possession of evidence of a real risk of inhuman and degrading treatment" for those returned to a requesting state, an assessment of the risk must be made such that return does not result in inhuman and degrading treatment (§88);
(2) The executing Member State must initially "rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention" (§89);
(3) However a finding that there is a real risk of a breach of Article 4 in a requesting state as a result of the general conditions of detention "cannot lead, in itself, to the refusal to execute a European arrest warrant" (§91);
(4) The key issue is whether there are substantial grounds to believe in the case of the specific person before the Court that there is a real risk of an Article 4 breach (§94);
(5) Should such substantial grounds exist, the requested state "must, pursuant to art.15(2) of the Framework Decision" urgently request supplementary information as to the conditions the requested person will be detained in upon return (§95);
(6) The request for information may include inquiries regarding national or international procedures in existence for monitoring detention conditions which make it possible for them to be assessed (§96);
(7) If in light of the information provided it is still found that there is a real risk of inhuman treatment, then the extradition request must be postponed but it cannot be abandoned (§98);
(8) Instead "the executing judicial authority must postpone its decision on the surrender of the individual concerned until it obtains the supplementary information that allows it to discount the existence of such a risk. If the existence of that risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether the surrender procedure should be brought to an end" (§104).
"a. Inmates shall be detained in cells that provide at least 3sqm of personal space.
b. Inmates shall be detained in cells that contain a self-contained sanitary facility (and which is separated from the remainder of the cell).
c. Inmates shall not be detained in the basement areas of wings B, C, D and E of the Lisbon Prison or any room which lacks artificial light.
d. The commitment herein shall be recorded in the inmates personal penitentiary files.
e. Should any temporary reduction in minimum personal space become necessary, as a result the prisoners own conduct, or in order to protect the health and safety of the prison population, the principles set out in Mursic v Croatia (7334/13, Grand Chamber judgment of 20 October 2016) will be applied to ensure that conditions remain compatible with Article 3 ECHR.
f. During the short periods of time that the inmates remain to the custody of others entities (e.g. on Court or Police cells), the DGRSP will transmit them the Recommendations and principles set out in Mursic v Croatia to ensure those conditions remain compatible with Article 3 ECHR. In particular:
(i) any such reduction in personal space will be short, occasional and minor;
(ii) any such reduction will be accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities;
(iii) for the duration of such reduction the extradited person will be confined in an appropriate detention facility with no other aggravating aspects of the conditions of his or her detention…"
"It is however clear from the case law to which I have referred that a general assurance applicable to all potential places of detention may suffice to exclude a real risk of inhuman or degrading treatment, and in my view the Declaration of Commitment does so in this case. It is applicable to all prisons in Portugal, and in my view it is sufficient to meet the Othman criteria. It is accepted on behalf of the Appellant that the Declaration was given in good faith. That concession, properly made, is in my view important. Given that there is no evidence of a systemic problem affecting all parts of all Portuguese prisons, it is clearly possible for the Portuguese authorities to detain the appellant in a prison, or part of a prison, which does not risk breaching his rights; and the principle of mutual trust requires this court to assume that the Portuguese authorities will do so. There is in my view nothing in the evidence and submissions before this Court which displaces that assumption. I accept that it is likely that the appellant will initially be detained for a short period at Lisbon Central Prison. I further accept that if a real risk of a breach of Article 3 is shown, the fact that it will only exist during a short period would not assist the Portuguese judicial authority. There is however no ground for saying that there is a real risk that the appellant would be detained in a part of Lisbon Central Prison which has been condemned by the CPT, and other parts of that prison have not been said to carry a real risk of breach of Article 3. There is clear evidence of actual improvement, in particular in the reduction of the level of overcrowding and a clear statement of intent – which must be respected – to achieve further improvements at that prison and elsewhere in the prison estate; and there is a clear assurance that any prison to which the appellant is allocated will house him in conditions which comply with the Mursic principles and meet the minimum standards set out in the Declaration of Commitment."
Ground 1, and the first relevant issue, namely, prison conditions combined with the Appellant's state of health
(1) Letters dated 22 January and 8 February 2018 from the Portuguese Ministry of Justice (Mr Manata, deputy director general of prisons) stating that the Appellant (and indeed all persons extradited to Portugal) will be sent initially to the prison in Lisbon attached to the police station (as opposed to Lisbon Central Prison, whose basement cells were the subject of this Court's judgments in Mohammed).
(2) Letter dated 22 January 2018 stating that the Appellant may then "…be assigned to any Prison Establishment with General and Family Medicine assistance, what is happen [sic] in all Portuguese Prisons Establishments… The mentioned medication [currently prescribed to the Appellant in the UK], or equivalent, is available in any Prison Establishments. There are sanitary/bathing facilities suitable for the state of health of the patient in most of the Prisons Establishments. The particular needs of the patient can be satisfied in the generality of the Prisons Establishments, always being safeguarded the possibility of adjusting the medical care to the clinical evolution [sic] of the patient (prisoner), in particular and if justified, medical assistance at the Prison Hospital the Sao Joao de Deus or in Unit of the National Health System…"
"44. The RP [The Appellant] will have the same right of access to the national health service as the general population. The RP will be provided with medicines and access to health care professionals at the prison hospital. So the RP will receive adequate medical treatment. He can be provided with a special diet for his diabetes.
45. The RP has additional care needs but these are limited to assistance putting on socks and shoes and some assistance in bathing and occasional needs getting out of bed. The RP will be assessed upon his arrival in prison, including by healthcare professionals, which will ensure that his particular requirements are known to the authorities and provided for. Whilst there are concerns over staffing levels and the conditions of the building, they are not such as to indicate that the treatment of the RP will create a real risk of breach of his Article 3 rights.
46. If the RP's needs reach a certain level there are alternatives to the RP serving his sentence in a prison, such as the prison hospital, which has a new residential unit, or in hospital or at home."
"49. In Othman (Abu Qatada) v UK  ECtHR 56, the court set out the criteria to be applied when considering assurances:
a) Portugal is a member of the European Union and a signatory to the European Convention on Human Rights. Therefore, an assurance from Portugal can be accepted.
b) In assessing the quality of the two assurances, I consider:
i) The terms of the two assurances have been disclosed to the court.
ii) Both assurances provide specific details about the minimum conditions the RP will be held in and the medical care that will be provided.
The assurances detail the medical assistance that will be available, the sanitary/bathing facilities, the assessment of the RP's individual need,s the availably [sic] of the Prison Hospital and units of the National Health Service, a minimum personal space of 3sqm, the closure of the relevant basement areas in Lisbon Central Prison and the provision of artificial lighting. The assurance details that the Director General is aware of the obligations in Mursic and will comply with them.
iii) The assurances have been given by the Director General for Reinsertion and Prison Services of the Portuguese Ministry of Justice and can bind the state. Vania Costa Ramos agreed that he had the authority to give an assurance and that there was no reason to suppose that it would not be upheld.
iv) The director General has detailed that the commitments shall be recorded on each inmate's personal file. He is [in] charge of the prison system and there is no reason to suppose that the individual prisons will not abide by his guarantees.
v) Portugal has ratified the Optional Protocol to the United Nations Convention Against Torture in December 2012. It was ratified domestically in January 2013. On 09.05.13, the Portuguese government adopted a resolution designating the Provedoria de Justica as the national Preventative Mechanism.
vi) Portugal has a Prison Ombudsman, has cooperated with CPT visits and cooperated with the CPS in providing assurances. This indicates that they have systems for monitoring prison conditions. It also indicates that they will cooperate with monitoring of the assurances.
50. The assurances provide sufficient guarantees to ensure that the risk of breach of the RP's Article 3 rights, as identified above, is discounted.
51. If I am wrong that the particular health and care needs of the RP within the Portuguese prison system do not reach a level such as to amount to a real risk of breach of his Article 3 rights, the assurances provided are sufficient to guaranteed that his needs are met such that there would no longer be a real risk of breach of his rights."
1) Reconfirm the commitment set out in i) the documents you have previously provided specifically in respect of Mr Delgado Henriques that is, your letters of 23 January 2018 (enclosing a letter from 22 January 2018), 10 September 2018, and 11 September 2018; and ii) in the general document named as the Declaration of Commitment dated 6 April 2018 signed by Celso Manata;
The commitments previously made remain in effect;
2) That Mr Delgado Henriques will be placed in a cell which is on the same floor as a shower room and dining hall, or with access via a lift given he cannot walk up or down any steps;
The Appellant will be received in the prison hospital in Sao Joao de Deus in Caxias for observation and then transferred to a prison that affords "easy access" to facilities (showers, refectory, exercise yard, visiting rooms and medical services) without barriers such as stairs;
3) That there will be an immediate medical assessment of Mr Delgado Henriques' needs following his surrender, with a view to establishing a suitable and medically safe regime for him upon admission to prison;
He will be assessed immediately in order to determine his needs. That must occur within 24 hours of his admission;
4) That sufficient staff will be provided in order to assist Mr Delgado Henriques with his mobility needs, including assisting with access to the visitation area;
He will receive medical attention according to his needs;
5) That Mr Delgado Henriques will be housed, at all times, in accommodation with at least one other individual, to ensure that he is not left alone at any time and/or he will be placed in a cell with a working call bell – potentially within wing F of Lisbon Central Prison where it is understood they are currently in working order – or provided with a personal alarm. This is because his mobility problems result in a high risk of him falling;
He will be housed in a cell with a call bell, and possibly with another detainee [to ensure his own safety];
6) Confirmation that his current medication, or any such other medication as recommended by doctors in Portugal, will be provided. His current medication is as follows:
a. Amlodipine 10mg daily;
b. Indapamide 2.5mg daily;
c. Metformin 1000mg twice daily;
d. Ramipril 10 mg daily;
e. Simvador 20mg daily;
f. Tabphyn 400mg daily;
g. Finasteride 5mg daily.
His medication or equivalent is available at any prison and will be provided under the guidance of doctors;
7) Confirmation that Mr Delgado Henriques will be provided with access to a diet specific to his needs as a Type 2 diabetic;
His dietary needs will be met;
8) That Mr Delgado Henriques will be provided with access to in-prison healthcare emergency equipment, should it become necessary, including ECG, defibrillator, oxygen, and nebuliser;
He will be provided with the necessary medical equipment, including ECG, defibrillator, oxygen and nebuliser;
9) That Mr Delgado Henriques will be provided with access to external hospital healthcare where appropriate;
If his particular needs cannot be [met] in the prison, he will receive treatment at the prison hospital or an external National Health Service facility;
10) Confirmation that Mr Delgado Henriques has the possibility of serving any sentence in hospital or under 'home arrest', in the event that doctors in Portugal recommend it;
A physician will be able to decide whether he can serve some of his sentence in hospital, and a Court may consider the possibility of doing so under house arrest;
11) That all of the above matters will be available, notwithstanding any strike action ongoing in the establishment in which Mr Delgado Henriques is detained at the time;
Regardless of any industrial action, minimally assured services include food, medication and healthcare;
12) Consideration of any measures appropriate to carrying out the surrender of Mr Delgado Henriques to Portugal, bearing in mind the significant medical needs which he has and how the journey will impact on him;
If the Appellant's doctors certify it as essential, Portugal will also guarantee that the Appellant can be accompanied on the extradition flight by a doctor.
"34 …. where a requesting state is asked to respond to concerns about the health of a person whose extradition from the UK they have requested, and to supply details of how they would propose to manage that person in a prison environment to assuage legitimate concerns about the person's health were he to be extradited and incarcerated that are supported by detailed medical opinions, they must provide, so far as is reasonably practicable, a response which meets the concerns in respect of that specific individual. That is not to say that very lengthy documents or care plans need always be provided by way of reply. The starting point must be that in the case of an EU member state there is a rebuttable presumption that there will be medical facilities available of a type to be expected in a prison: Kowalski v Regional Court in Bielsko-Biala, Poland  EWHC 1044, para 20. From that starting point it might not [be] necessary to say very much more. In the case of an insulin dependent diabetic prisoner, for example, it might merely be necessary for the requesting state to indicate that the management of diabetes is understood, that insulin is available, and that arrangements can be made for the defendant's blood sugar to be appropriately monitored.
35. However, in other cases where the treatment or management of the illness or condition is more complex, more detail may be required before the court considering matters under Part 1 of the EA 2003 can be satisfied that concerns arising from the defendant's medical condition have been met such that there are no bars to extradition. The reason is that it is self-evident that the range of medical care that is provided in prisons is necessarily and inevitably more limited than that which is available in the outside world (as the Polish authorities in this case have expressly stated), and it is also obvious that the sort of medical care which can be provided in prisons is subject to constraints arising from security requirements and the like. Thus, in some cases it may be necessary for the requesting state to provide specific details of what concrete steps will be taken to address the specific issues arising from the defendant's illness to ensure that he does not suffer severe hardship or oppression by reason of his incarceration resultant on extradition. In such a case, broad generalised assertions to the effect that the prison has a clinic, or that prisoners are entitled to heath care, or that (unspecified) medicines are available, may not be enough."
Ground 1, and the second relevant issue, namely, whether Portugal can be relied upon to comply with its assurances
"54. Even if a state's prisons are such that, as a general proposition, compliance with Article 3 cannot be guaranteed – often despite the considerable efforts of that country to improve prison conditions and comply – although the presumption of compliance with the Article 3 obligations may be lost in that particular respect, that will not necessarily bear upon the reliability of that state in complying with a specific assurance it gives to this court as to (e.g.) where a prisoner will be detained. The nature of such a straightforward assurance is very different from that of the general obligation that lies upon a state in relation to its prison conditions in general. Similarly, the assessment of the risk of non-compliance will usually depend upon different factors.
55. In my view, in these circumstances, the starting point is that such a state is entitled to a presumption that it will comply with such a straightforward solemn assurance, even if it has lost the presumption in relation to its prison estate as a whole. Its general failures may, depending on the facts, bear upon its reliability in relation to an assurance; but that reliability will usually be tested in other ways, e.g. by its previous compliance (or non-compliance) with similar assurances..."
"…Whilst there may be states whose assurances should be viewed through the lens of a technical analysis of the words used and suspicion that they will do everything possible to wriggle out of them, that is not appropriate when dealing with friendly foreign governments of states governed by the rule of law where the expectation is that promises given will be kept…" (Giese v Government of the United States of America (No 4)  4 WLR 103 per Lord Burnett CJ at §38).
Ground 2 : Section 25 of the Act
LORD JUSTICE FLAUX: