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Cite as: [2017] EWHC 1174 (Admin)

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Neutral Citation Number: [2017] EWHC 1174 (Admin)
Case No: CO/6014/2016

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

Royal Courts of Justice
Strand, London, WC2A 2LL
18/05/2017

B e f o r e :

LORD JUSTICE BURNETT
MR JUSTICE MITTING

____________________

Between:
JAMAL OWDA
Appellant
- and -

COURT OF APPEALS THESSALONIKI (GREECE)
Respondent

____________________

Edward Fitzgerald QC and Amelia Nice (instructed by Lawrence and Co) for the Claimant
James Stansfeld (instructed by CPS) for the Defendant
Hearing dates: 3rd May 2017

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Burnett:

  1. The appellant's extradition to Greece was ordered by District Judge Zani on 22 November 2016. He is wanted in Greece to be prosecuted for large scale people trafficking. He resisted extradition on various grounds, two of which are advanced in support of his appeal:
  2. i) His extradition to Greece would violate his rights under article 3 of the European Convention on Human Rights ("ECHR") and in consequence is barred by section 21 of the Extradition Act 2003 ("the 2003 Act");

    ii) His extradition is prevented because his mental condition is such that it would be oppressive to extradite him within the meaning of section 25 of the 2003 Act.

    Article 3 ECHR

  3. Mr Fitzgerald QC submits that a combination of factors which would, or might, govern the appellant's detention if he is surrendered to Greece provide a sufficient basis for concluding that his extradition would expose him to a real risk of treatment contrary to article 3 ECHR. They may be distilled to the following propositions:
  4. i) Although it is likely that the appellant would be detained in Diavata Prison (also known as Thessaloniki) whilst on remand pending trial and indeed thereafter if convicted, there is a risk that he might be transferred to any of Greece's 19 prisons on conviction. In the event of transfer, there is a real risk that he might end up in either Korydallos or Nafplio prisons. In Marku and Murphy v Greece [2016] EWHC 1801 (Admin) this court held that on the evidence then available extradition to either prison would be incompatible with a requested person's article 3 rights.

    ii) Even if the evidence falls short of establishing the degree of likelihood that the appellant will find himself in either of those establishments, there are substantial grounds for believing that he would be subjected to treatment contrary to article 3, even in Diavata, because:

    a) the personal space available to the appellant will be less than 3m2. An assurance from the Greek authorities that he will have more than 3m2cannot be relied upon;
    b) prisoners are able to spend only two hours outside in the fresh air in an environment with inadequate shade in the summer, so the lack of personal space is not compensated for by other factors;
    c) there is a significant risk of inter-prisoner violence which the Greek authorities are powerless to prevent because of the staffing shortage at the prison;
    d) the medical facilities for caring for patients with psychiatric problems are inadequate.

    iii) There is a real risk that the appellant will find himself in police custody and thereby be exposed to the risk of police brutality and detention in inadequate conditions.

  5. The principles governing the question whether article 3 ECHR prevents the extradition (or immigration removal) of an individual to a third country are well settled in decisions of both the Strasbourg Court and courts in this jurisdiction at every level. They have been traversed in many extradition cases. It is sufficient to refer to the summary found in paragraph 24 of the opinion of Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator [2004] 2 AC 323:
  6. "While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering para 91; Cruz Varas para 69 Vilvarajah para 103."

    The formula in the Strasbourg cases is "substantial grounds for believing" which is interchangeable with "strong grounds for believing" for these purposes.

  7. There have been numerous cases in which the Strasbourg Court has considered the question of the nature of conditions in a penal establishment which would found a violation of article 3. Many were collected together in the judgment of the Strasbourg Court in Mursic v Croatia (app. no 7334/13) both in the chamber and Grand Chamber, which relied, in particular, on the earlier decision of the court in Ananyev v Russia (2012) 55 EHRR 18. In the Grand Chamber the principles were restated: paragraphs 96 to 101 for general principles; paragraphs 102 to 115 relating to the requirement for "minimum personal space" of 3m2; paragraphs 116 to 128 on the question whether less than 3m2created a presumption of a violation of article 3; paragraphs 129 to 135 on compensating factors. The court confirmed (135) the "strong presumption" in cases with personal space of less than 3m2 and reaffirmed that it could be rebutted having regard "to factors such as the time and extent of restriction; freedom of movement and adequacy of out-of-cell activities and general appropriateness of the detention facility." The court then summarised the position between paragraphs 136 and 141:
  8. "136. In the light of the considerations set out above, the Court confirms the standard predominant in its case-law of 3 sq. m of floor surface per detainee in multi-occupancy accommodation as the relevant minimum standard under Article 3 of the Convention.
    137. When the personal space available to a detainee falls below 3 sq. m of floor surface in multi-occupancy accommodation in prisons, the lack of personal space is considered so severe that a strong presumption of a violation of Article 3 arises. The burden of proof is on the respondent Government which could, however, rebut that presumption by demonstrating that there were factors capable of adequately compensating for the scarce allocation of personal space (see paragraphs 126-128 above).
    138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met:
    (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above):
    (2) such reductions are accompanied by sufficient freedom of 133 above);
    (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above).
    139. In cases where a prison cell measuring in the range of 3 to 4 sq. m of personal space per inmate is at issue the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above).
    140. The Court also stresses that in cases where a detainee disposed of more than 4 sq. m of personal space in multi-occupancy accommodation in prison and where therefore no issue with regard to the question of personal space arises, other aspects of physical conditions of detention referred to above (see paragraphs 48, 53, 55, 59 and 63-64 above) remain relevant for the Court's assessment of adequacy of an applicant's conditions of detention under Article 3 of the Convention (see, for example, Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, 112-113, 29 October 2015).
    141. Lastly, the Court would emphasise the importance of the CPT's preventive role in monitoring conditions of detention and of the standards which it develops in that connection. The Court reiterates that when deciding cases concerning conditions of detention it remains attentive to those standards and to the Contracting States' observance of them (see paragraph 113 above)."
  9. The cases in Strasbourg, including Mursic, involve ex post facto evaluations of conditions which a prisoner has endured. In a case involving an extradition request from a Member State of the European Union there is a strong presumption that it will abide by its legal obligations, which can be displaced only by strong evidence, usually amounting to an international consensus, that support strong grounds for believing that it will not or cannot do so. If that proves to be the case, then further information must be sought from the requesting state in accordance with the judgment of the Luxembourg Court in Aranyosi and Caldararu [2016] QB 921, decided by reference to article 4 of the Charter (the analogue of article 3 ECHR), between paragraphs 94 and 103:
  10. "94 Consequently, in order to ensure respect for article 4 of the Charter in the individual circumstances of the person who is the subject of the European arrest warrant, the executing judicial authority, when faced with evidence of the existence of such deficiencies that is objective, reliable, specific and properly updated, is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.
    95 To that end, that authority must, pursuant to article 15(2) of the Framework Decision, request of the judicial authority of the issuing member state that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that member state.
    96 That request may also relate to the existence, in the issuing member state, of any national or international procedures and mechanisms for monitoring detention conditions, linked, for example, to visits to prisons, which make it possible to assess the current state of detention conditions in those prisons.
    97 In accordance with article 15(2) of the Framework Decision, the executing judicial authority may fix a time limit for the receipt of the supplementary information requested from the issuing judicial authority. That time limit must be adjusted to the particular case, so as to allow to that authority the time required to collect the information, if necessary by seeking assistance to that end from the central authority or one of the central authorities of the issuing member state, under article 7 of the Framework Decision. Under article 15(2) of the Framework Decision, that time limit must however take into account the need to observe the time limits set in article 17 of the Framework Decision. The issuing judicial authority is obliged to provide that information to the executing judicial authority.
    98 If, in the light of the information provided pursuant to article 15(2) of the Framework Decision, and of any other information that may be available to the executing judicial authority, that authority finds that there exists, for the individual who is the subject of the European arrest warrant, a real risk of inhuman or degrading treatment, as referred to in para 94 of this judgment, the execution of that warrant must be postponed but it cannot be abandoned: see, by analogy, Lanigan's case [2016] QB 252, 302303, para 38.
    99 Where the executing authority decides on such a postponement, the executing member state is to inform Eurojust, in accordance with article 17(7) of the Framework Decision, giving the reasons for the delay. In addition, pursuant to that provision, a member state which has experienced repeated delays on the part of another member state in the execution of European arrest warrants for the reasons referred to in the preceding paragraph, is to inform the council with a view to an evaluation, at member state level, of the implementation of the Framework Decision.
    100 Further, in accordance with article 6 of the Charter, the executing judicial authority may decide to hold the person concerned in custody only in so far as the procedure for the execution of the European arrest warrant has been carried out in a sufficiently diligent manner and in so far as, consequently, the duration of the detention is not excessive: see Lanigan's case [2016] QB 252, 305306, paras 5860. The executing judicial authority must give due regard, with respect to individuals who are the subject of a European arrest warrant for the purposes of prosecution, to the principle of the presumption of innocence guaranteed by article 48 of the Charter.
    101 In that regard, the executing judicial authority must respect the requirement of proportionality, laid down in article 52(1) of the Charter, with respect to the limitation of any right or freedom recognised by the Charter. The issue of a European arrest warrant cannot justify the individual concerned remaining in custody without any limit in time.
    102 In any event, if the executing judicial authority concludes, following the review referred to in paras 100 and 101 above, that it is required to bring the requested person's detention to an end, it is then required, pursuant to articles 12 and 17(5) of the Framework Decision , to attach to the provisional release of that person any measures it deems necessary so as to prevent him from absconding and to ensure that the material conditions necessary for his effective surrender remain fulfilled for as long as no final decision on the execution of the European arrest warrant has been taken: see Lanigan's case, para 61.
    103 In the event that the information received by the executing judicial authority from the issuing judicial authority is such as to permit it to discount the existence of a real risk that the individual concerned will be subject to inhuman and degrading treatment in the issuing member state, the executing judicial authority must adopt, within the time limits prescribed by the Framework Decision, its decision on the execution of the European arrest warrant, without prejudice to the opportunity of the individual concerned, after surrender, to have recourse, within the legal system of the issuing member state, to legal remedies that may enable him to challenge, where appropriate, the lawfulness of the conditions of his detention in a prison of that member state: see F's case [2014] 2 CMLR 19, para 50. "
  11. The language of "discounting the existence of a real risk" in paragraph 103 means no more than that to avoid a refusal of extradition, a judicial authority that has received a request for further information envisaged in paragraph 95, must provide sufficient information to support a determination that substantial grounds for believing there is a real risk do not exist.
  12. A consistent theme in the Strasbourg jurisprudence, affirmed by the Grand Chamber in Mursic, is that when personal space falls below the 3m2threshold, other compensating features in the conditions of detention might nonetheless avoid a finding of a violation of article 3. The Divisional Court applied that approach in Achmant v Greece [2012] EWHC 3470 when it concluded in respect of Diavata that despite the available space being less than 3m2, there would be no violation of article 3 in ordering the requested person's extradition to be detained there.
  13. In this case, there was a large volume of evidence before the judge which included expert evidence on Greek prison conditions, a series of reports from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") relating to Greek prisons together with the government's responses and correspondence from the Greek requesting authority dealing with issues that arose in the connection with the appellant's extradition. There was medical evidence relating to the appellant. The judge heard oral evidence from the appellant, two medical experts and Professor Tsitselikis on prison conditions. The second expert on Greek prisons, Professor Kolouris did not give oral evidence. The judge also had the appellant's medical records. We have the same material, and more. The exceptionally detailed written arguments placed before us, augmented by oral submissions which traversed much of the evidence, might have led an observer to suppose that the function of this court on an appeal against an extradition order is to determine all factual and evaluative matters de novo. It is not. Our task is to determine whether the judge was wrong in the conclusions he reached on article 3 and under section 25.
  14. The Judge's Conclusions

  15. Having reviewed the substantial evidential material, the judge was satisfied that the population of Diavata had reduced by just over 20% since the decision of this court in Achmant. He accepted that the overall prison population at Diavata might lead to an average of just under 3m2 for each prisoner (deducting as one should the space taken up by lavatory facilities) but noted the assurance given by the Greek authorities that this appellant would benefit from at least 3m2. He concluded that the evidence of the risk of inter-prisoner violence was lacking, by contrast with Korydallos and Nafplio prisons. The staffing levels during the day in Diavata did not in themselves support an article 3 claim, they were better than had been the case at the CPT's most recent visit and he noted that there was a programme in place to improve staff ratios in the near future. The possibility of the appellant going to Korydallos could not be absolutely excluded but the evidence from the Greek authorities showed that to be unlikely.
  16. The judge accepted that the appellant "has suffered from certain mental health issues for a number of years however the evidence that he may well be malingering has a seriously adverse effect on this challenge." The appellant had admitted lying to doctors which resulted in a withdrawal of a possible diagnosis of Post Traumatic Stress Disorder; and the medical notes are littered with observations which make it clear that he has been seeking to manipulate the court process and mislead the prison medical authorities. He had made calculated attempts at self-harm. There is a risk that he might kill himself but through accident (that is without a real intent to do so) rather than a genuine attempt to end his life. The judge accepted the evidence from the Greek authorities that there was adequate medical cover at Diavata and that the drugs currently prescribed to the appellant, or alternatives, were available.
  17. The overall conclusion of the judge was that none of the three aspects of the prison regime relied upon in support of the article 3 challenge (overcrowding, lack of staff or medical facilities) individually or collectively approached the necessary threshold. Furthermore, the psychiatric problems suffered by the appellant fell far short of establishing that it would be oppressive to extradite him.
  18. Was the Judge Wrong?

  19. The overwhelming evidence was that the appellant would be held on remand in Diavata, assuming he did not obtain bail. The Prosecuting Authority, in whom the initial decision relating to location on remand is invested, made clear that would be their choice. Any moves which might in theory follow, in the event of a request from the appellant or an administrative need, would be decided upon by a small committee within the Ministry of Justice. The prosecuting authority has a member on that committee. The committee would be aware of the background and the wish of the Prosecuting Authority for the appellant to remain in Diavata and under no circumstances go to either Korydallos or Nafplio, so long as the conditions described in Marku and Murphy persist. The judge's conclusion that the appellant would be detained in Diavata and there were no strong grounds for believing that he would find himself in either of those two establishments was well supported in the evidence.
  20. The Strasbourg Court gives prominence to the question of overcrowding and personal space. The evidence in the CPT reports shows a consistent reduction in the Greek prison population over recent years. The latest evidence from the Council of Europe was placed before us. The Greek prison population has fallen by 18.8% over the last year. Greece is no longer one of those countries whose prison population exceeds official capacity. The trajectory has been resolutely downwards over the period covered by the CPT reports before the judge and confirmed by more recent information before us. The Greek authorities have recognised that overcrowding has been the main problem in their prisons and have been working to reduce the population. Diavata does, however, remain overcrowded. Mr Fitzgerald explained that, in broad terms, the prisons in the main cities remain overcrowded whilst those in rural areas have spare capacity.
  21. There is precise evidence about the space available at Diavata to house male prisoners. A small number of women prisoners, generally ranging from 20 to 35 at any one time, are held separately. In its report following a visit in 2013, the CPT noted at paragraph 104 that there were 53 dormitories of 24m2and ten cells of 11m2. That provides a total available space of 1,372 m2. The dormitories are used to house up to ten prisoners and the cells up to four. That provides a theoretical maximum in the ordinary accommodation of 570 men. The capacity of the prison is officially 370. In addition, there is a new Therapy Centre for Dependant Individuals which can accommodate 82 although, at the moment, only 13 prisoners are housed there. The overall population at Diavata prison appears to vary between about 475 and 535. Taking account of the female prisoners and those in the therapy centre the male population in ordinary accommodation currently ranges between rather less than 450 and about 500. At the bottom end of that scale the average space available would be on the cusp of 3m2, but taking account of lavatory facilities, a little less. If the number of prisoners in the dormitories and cells was 500 the position would be worse. But it was not disputed on behalf of the appellant that the assurance by the Greek authorities that the appellant would be provided with at least 3m2of personal space was capable of being honoured at Diavata (and indeed elsewhere). The position at Diavata could be secured, for example, by the simple expedient of locating three, rather than four, prisoners in one of the dormitories.
  22. The judge's conclusions on space fell into two parts. He accepted the assurance and also that, even if personal space fell below 3m2 by a margin, that would be insufficient for article 3 purposes. He relied upon the approach of this court in the Achmant case and the evidence from the Greek authorities of the general conditions in the prison. That evidence explained that prisoners are not locked up in their rooms or cells during the day and have access to an exercise yard and both recreational and educational facilities, for example. The appellant' suggestion that time outside was limited to two hours was supported by Professor Tsitselikis (who has not visited the detention facilities of the prison) but the Greek authorities gave detailed evidence to the contrary which there was no reason to doubt.
  23. The approach to whether an assurance may be accepted in these circumstances was considered fully by the Strasbourg Court in Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1, in particular between paragraphs 186 and 188. Mr Fitzgerald relied upon the doubt expressed by Professor Tsitselikis that the Greek authorities will abide by the assurance, not through any lack of willingness to do so or bad faith, but because there may be administrative failings in securing the space to the appellant. He also doubts whether they are legally enforceable in Greece. It has been repeated frequently that the foundation of the European Arrest Warrant system is mutual trust between Member States of the European Union. There is a strong presumption that, independently of any assurance, a Member State will abide by its obligations under the ECHR and the Charter of Fundamental Rights. There is also a strong presumption that a Member State will honour any undertaking it gives in extradition proceedings. In agreement with the judge, we do not accept that the doubts expressed by the Professor provide any basis for questioning the assurance provided by the Greek authorities. On the question of personal space, that provides a complete answer. In those circumstances, it is unnecessary to consider whether, in the event that a prisoner in Diavata prison or elsewhere found himself with marginally less than 3m2 of personal space, the evidence of general conditions of likely detention would be sufficient to dispel a conclusion that there were strong grounds for believing that there was a real risk of ill-treatment contrary to article 3.
  24. The question of the risk of personal violence consequent upon low ratios of staff to prisoners was placed in the forefront of Mr Fitzgerald's submissions. He submits that the risks on inter-prisoner violence, and more generally of intimidation and living in an environment of fear, are as strong in Diavata prison, and inferentially in all Greek prisons, as in Korydallos and Nafplio prisons. Thus, the reasoning which impelled this court to discharge the appellants in the Marku and Murphy case applies here. In short, that was because those prisons were not under the control of the prison authorities and were ruled by fear.
  25. In company with the judge, we consider that there is no evidential foundation to suggest that there are strong grounds for believing that this risk exists. The circumstances attaching to Korydallos and Nafplio prisons were very particular and described in detail in the CPT reports and other evidence before the court. That is made clear in paragraph 8 and following where the conditions in those prisons are discussed in some detail and in paragraph 20 where the conclusion of this court was applied to those two establishments only. There is no evidence in the CPT reports, or indeed elsewhere, of any identifiable problem in Diavata. The appellant relies upon a single paragraph of the CPT report following its visit in 2015:
  26. "192. The serious shortage of prison staff in all establishments visited continues to be a major obstacle in ensuring the proper functioning of prisons. For example, at Diavata Prison staffing levels in relation to the number of prisoners have been reduced from 1:4 in 2007 to 1:40 in 2015 with only 15 officers on duty for 600 prisoners (see also section 2 above for numbers of prison officers on duty in other prisons). The CPT must repeat that an inadequate number of custodial staff renders prisons insecure for both prisoners and staff; in particular, it impedes any efforts to maintain effective control, which leads to stronger groups of prisoners being able to exercise their powers unchecked over other inmates (see section 2 above). As was the case in 2013, the CPT's delegation found that prison staff in many instances had to rely upon the leaders of those groups to maintain order in several of the prisons visited.
    Without sufficient staffing levels, it is also not possible to offer prisoners an acceptable regime thus reinforcing the warehousing phenomenon.
    Moreover, many prison staff complained about working up to 14 days consecutively without time off and about overtime and extra shifts not paid, and reported that they were seeking professional help due to the stress. Such a state of affairs not only increases the likelihood of burnout, but also undermines motivation. This in turn only increases the risks for both staff and prisoners. The current staffing levels in the Greek prison system must be radically increased starting with Korydallos Men's prison.
    The CPT reiterates its recommendation to the Greek authorities that staffing levels in all prisons must be urgently reviewed and increased to levels which ensure effective control and a safe environment for prisoners and staff, as well as the possibility to put in place a programme of activities for all prisoners."
  27. This paragraph is a generic one identifying potential problems that may flow from understaffing, rather than seeking to suggest that there have been particular problems of this nature at Diavata. Nowhere in the CPT report is there such evidence, by contrast with Korydallos and Nafplio. There was criticism also of Alikarnassos prison in this context, albeit not to the extent of the other two (see paragraphs 68 and 69) but not of Diavata. Professor Tsitselikis said that the levels of inter-prisoner violence were not "exceptionally high" at Diavata prison. A number of cases relating to Diavata have been decided or settled in Strasbourg, relying principally on lack of space but praying in aid other suggested deficiencies in the conditions of detention. In none of them has there been any suggestion of inter-prisoner violence or intimidation: Leka v Greece (app. no. 50363/15); Mekras v Greece (app. no. 12863/14); Papadakis v Greece (app. no. 34083/13); Adiele v Greece (app. no. 29769/13); Patrikis v Greece (app no. 50622/13); Kartelis v Greece (app.no 53077/13); Bouros v Greece (app.no. 51653/12.
  28. The evidence accepted by the judge was that staff ratios during the day were now about 1:30. No doubt that is less than desirable but it provides no foundation, in itself, for an article 3 claim.
  29. We note that in this part of its report the CPT has elided two different concepts. The reference to a ratio of 1:4 is to the proportion of total prisoner numbers and guards employed, rather than those on duty at any time. That is clear when one looks at earlier reports and the government's responses. For example, in paragraph 119 of the report following its 2009 visit, the CPT gave as an illustration of the inadequate staffing levels at Thessaloniki (Diavata) prison the fact that 2-3 prison officers were responsible for one floor accommodating 200 prisoners. In its response to the report published on 17 November 2010, the Greek government said that, across the whole of the prison estate, there were 3,530 permanent positions for guards, of which 2,344 were "active" and 3,395 "exterior guards" of which 1,596 were "active". The CPT stated that the prison population at the time was 10,950. The ratio of "guards" (excluding "exterior guards") was, therefore, not far short of 1:4. The CPT report described the position as no better than at the time of its periodic visit in 2005. It therefore seems that the ratios quoted in paragraph 92 of the report on the 2015 visit were chalk and cheese: 1:40, the number of guards present each shift on a wing; and 1:4, the number of guards "active" in the prison.
  30. We would not disagree with the proposition that low staffing levels can give rise to the problems identified by the CPT. But on any view the possibility that there may be problems if the low staffing levels (albeit improved and improving) continue is far removed from the concept encapsulated in the Ullah case that there must be serious grounds for believing that there is a real risk of the circumstances occurring.
  31. The appellant further relied on generic evidence that some prisoners may be detained in police cells, at least whilst they are being interviewed, and a small number for longer when prisons are full. Professor Tsitselikis in his oral evidence spoke in general terms of perhaps 500 such prisoners at any one time. His written report did not deal with the question of police detention, and neither did the evidence of Professor Koulouris, upon whom the appellant also relied. The judge did not deal with this aspect of the case and it is not recorded in the judgment as a point pursued on the appellant's behalf. The CPT reports point to poor detention conditions in some police stations and to a longstanding problem of police violence directed towards some arrested and detained persons. The professor's evidence was entirely general. It provides an example, of which there are many on this case, of evidence relating to the general position in Greece being adduced to raise little more than a possibility that the appellant might be exposed to something untoward. Reliance upon article 3 to resist extradition, or removal in an immigration context, requires a focus on the individual circumstances of the person in question and an evaluation of the prospects of that individual being affected in the way suggested by more general evidence.
  32. The appellant, if extradited, would arrive in Greece and into the custody of the Greek authorities. He is a high-profile suspected people trafficker who is suggested to be part of a wide-spread trafficking operation. The trial of other defendants for the same alleged criminality was due to start in April. The nature of these extradition proceedings is intimately familiar to the prosecuting authority who have responded on many occasions with further information. They are well aware of his mental health problems and his attempts to thwart extradition through manipulating his medical condition. It is not apparent whether this appellant would be interviewed by the police, and if so where. There has been no focus on his individual circumstances in connection with this argument. There are, in our judgment, no grounds for believing (let alone strong grounds) that he would be detained in a police station for any period, still less a long period, in conditions that would violate article 3 ECHR or that he is at any risk of ill-treatment at the hands of the Greek police.
  33. The evidence relating to the medical care available to the appellant in Diavata is clear. There is one psychiatrist on the permanent staff (currently on parental leave with a temporary substitute) together with two nurses and two psychologists. There is also a physician and a general practitioner. Furthermore, a general practitioner, a dentist and two phlebotomists visit once a week. There is a prison infirmary. Appropriate medication is available. The appellant has been prescribed anti-depressants and anti-psychotic drugs when necessary and both are available if prescribed by the doctors responsible in Greece. There is a suggestion that, in some circumstances, remand prisoners can be required to pay for their drugs although what those circumstances are, and whether they would apply to this appellant has not been the subject of evidence. This is another example of a generic point being thrown into the pot without any proper attempt to anchor it to individual circumstances. There is unequivocal evidence, in fact agreed evidence, that appropriate medication is available if the view of treating doctors is that it is required. We consider that the judge was inevitably driven to the conclusion on the evidence that, given the appellant's relatively low grade mental health problems, the medical facilities available to care for him were more than adequate and far removed from the type that would found an article 3 concern.
  34. Whether looked individually or cumulatively, the judge's evaluation of the article 3 issues stands up to scrutiny. He considered the issues argued before him with care and summarised much of the evidence he had heard. His conclusion was not wrong. On the contrary, had he come to a different conclusion it would have been vulnerable to attack.
  35. Section 25

  36. Mr Fitzgerald was at pains to emphasise that the argument that it would be oppressive to extradite the appellant to Greece does not rest on a risk of suicide. Whilst that was the thrust of the argument below, it has fallen away in light of the unassailable findings of the judge that the attempts at self-harm were entirely voluntary and did not suggest any real intention to commit suicide. Those findings rest firmly on the psychiatric evidence and the extensive medical notes available. There is evidence that the appellant has been refusing food (not to the extent of a complete hunger strike) but is doing so in a calculated attempt to frustrate extradition. We have seen up-to-date medical notes. His mental health problems, which amount at most to a personality disorder (the nature and extent of which is far from certain) and some depression, are not objectively very serious. He has been treated since his remand in custody with medication when he needs it, although sometimes he refuses to take it. He has not been hospitalised. It is perhaps unusual for an argument to be advanced on the basis of mental illness that does not rest to a large extent upon the risk of suicide, but we accept that it is not impossible to do so. In Turner v Government of the United States of America [2012] EWHC 2426 (Admin), Aikens LJ drew a series of conclusions from a wide-ranging review of earlier decisions, which included the uncontroversial proposition that:
  37. " a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be oppressive to extradite him: Howes v HM's Advocate [2010] SCL 341 and the cases there cited by Lord Reed in a judgment of the Inner House." (paragraph 28)
  38. There can be no doubt that the judge was right to conclude that the appellant's mental illness fell far short of the high threshold required to rely upon oppression and section 25 of the 2003 Act.
  39. Conclusion

  40. Neither of the grounds advanced on behalf of the appellant succeeds. His appeal will be dismissed.
  41. Mr Justice Mitting

  42. I agree.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1174.html