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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 4417 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
MR JUSTICE CRANSTON
|CARL PETER VERNON|
|REPUBLIC OF SOUTH AFRICA||Respondent|
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Mr M Grandison (instructed by Edward Hayes) appeared on behalf of the Appellant Hamilton
Mr B Cooper (instructed by Shaw Graham Kersh) appeared on behalf of the Appellant Heesom
Miss H Hinton (instructed by the CPS) appeared on behalf of the Respondent (CO/1633/2014 and CO/2444/2014)
Miss C Powell (instructed by the CPS) appeared on behalf of the Respondent (CO/1625/2014)
Crown Copyright ©
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  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).
In MT (Algeria) v Secretary of State  2 AC 110 the House of Lords approved the four points made by Mitting J in the Special Immigration Appeals Commission in the same case as follows:
(1) the terms of the assurance have to be such that if they are fulfilled the person returned would not be subjected to treatment contrary to Article 3;
(2) the assurances have to be given in good faith;
(3) there has to be a sound objective basis for believing that the assurances would be fulfilled;
(4) the fulfilment of the assurances has to be capable of being verified.
In Othman v United Kingdom  55 EHRR 1 the Strasbourg court set out 11 factors to which a court deciding whether to accept assurances as to the prospective treatment of an extraditee should have regard. Counsel have referred to this list. I will not, with respect, set out all the factors. Section 2 of the Human Rights Act 1998 does not enjoin our courts necessarily to track guidance given by the European Court of Human Rights as to the approach to be taken to the adjudication of Convention claims, though I emphasise with very great respect that the points made in Othman are plainly helpful and practical.
The burden of the Appellant's case on the Article 3 issue is that the District Judge should have arrived at a different conclusion on the evidence before him. In Wiejak  EWHC (Admin) 2123 Sedley LJ said at paragraph 23:
"The effect of sections 27(2) and (3) of the Extradition Act 2003 is that an appeal may be allowed only if, in this court's judgment, the District Judge ought to have decided a question before her differently. This places the original issues very nearly at large before us, but with the obvious restrictions, first, that this court must consider the District Judge's reasons with great care in order to decide whether it differs from her and, secondly, that her fact-findings, at least where she has heard evidence, should ordinarily be respected in their entirety."
"8. In respect of all three, each will be held alone in a single-occupancy cell (ie no doubling up) in the Johannesburg Medium A Correctional Centre, and if convicted and sentenced to imprisonment each will be held alone in a single-occupancy cell (ie no doubling up) in the Johannesburg Medium C Correctional Centre.
9. The biggest complaint about conditions in South African prisons is the severe overcrowding and inter-prisoner violence so often found in the usually provided dormitory housing. These men are being guaranteed what most prisoners would regard as a reward or a privilege, namely, their own single occupancy cell. It is quite wrong to describe the arrangements as solitary confinement. It most certainly is not that.
10. The cell doors are opened for breakfast, lunch and tea/dinner. The occupants then leave their cells and wander down to the dining/canteen area at the end of the corridor. They have the opportunity to chat to each other, collect their meals and sit together in the communal eating area or take their meals back to their cells where they can eat their meals with their cell door open or closed as they wish. Some, on fine sunny days, choose to sit in the corridor which is exposed to the elements and eat their meals there. My impression from hearing the evidence was that there was a very relaxed atmosphere. Professor Morgan was not suggesting there was any atmosphere of simmering violence or anything of that kind. Professor Morgan was a little unsure [of] the extent to which some of this out of cell time collecting meals was counted towards the exercise time. The evidence about that remained a little unclear. The regime specifically allows for a discrete one hour exercise period so there is no justification in not providing that. No doubt for the vast majority of each day these men will be in their single-occupancy cell but there will be times when they will come out for eating, showering, some association time and exercising. Professor Morgan said of Medium A, 'They were not in solitary. They could mix with each other. They were not prevented from communicating. It is not as solitary as it would be in other jurisdictions.' There is no justification for calling this regime solitary confinement.
11. Professor Morgan was concerned that, for remand prisoners, there appeared to be a somewhat barren regime on offer to keep prisoners occupied. Recourse to the prison library did not seem to offer much by way of reading material. Whilst on remand there may be little more to do other than read, perhaps prepare for the forthcoming trial, and to take advantage of the exercise time provided. Like most countries a correctional sentence plan is developed for each convicted prisoner and these three men are perhaps ideally suited to volunteer to teach other inmates who have not had their educational advantages and desperately need help in reading and writing. Indeed if that is something that appeals it may be possible during the remand period. When giving evidence Professor Morgan said of Medium C, 'It was the jewel in the crown of prisons because of all the educational classes and the exercise . . . this is an education-oriented prison. Being in Medium C is almost a reward, so they are good prisoners who want to make good. Classes are allocated on literacy and numeracy. Only civilian teachers are employed. I saw the classes in action and spoke to the teachers. Prisoners had exercise books, a library and one room was equipped with computers in which I saw a class (in session).'
12. Having prepared submissions that imprisonment in South Africa would give rise to a real risk of article 3 ill-treatment, it then became necessary for those representing these men to reassess that position in the light of the undertakings. Professor Morgan visited both Medium A and Medium C and concluded that the conditions under which these men were to be held both on remand and if convicted (para 12.10) 'would not be regarded by CPT, the most authoritative independent body in Europe whose standards inform the ECtHR, as breaching article 3.' It should be noted that at the conclusion of the Professor's evidence he did not resile from that opinion.
13. There are in general real concerns about the length of time an untried prisoner has to wait whilst held on remand before his trial is heard and determined. In these cases the evidence put before this court is very clear. Mr Chauke, the DPP of the South Gauteng Division of the High Court, Johannesburg, explains that in each case the investigations are complete and as far as the prosecution are concerned the cases are trial ready. I find no reason to consider there to be a real risk of any substantial delay in these cases.
14. The submissions made are in my view unrealistic. I agree they must not be housed in the dormitories as they are too overcrowded and dangerous. The suggestion that the (highly sought after) single cell occupancy is all very well but is akin to solitary confinement is an unfair and unwarranted claim. I agree inmates need to have some stimulation and opportunities for association and this is available. To suggest that allowing some contact with other inmates puts them at risk of inter-prisoner violence is overstating any concern. Looking at the statistics which deal with inter-prisoner violence over the whole of the South African prison estate is singularly unhelpful when here we are only concerned with what might happen in Medium A & C. It seems that whatever is offered will never be enough.
15. There is no reason to suppose any of these three is likely to be singled out for ill-treatment. According to Professor Morgan's enquiries there were no recent reports of inter-prisoner violence on the single occupancy cell corridor in either Medium A or Medium C. As the Professor said, 'The reported incidence of inter-prisoner or staff-on-prisoner violence is very small. They (the prison authorities) maintain these are largely calm and orderly prisons, which may be true.' That doesn't mean there might not be some act of violence in the future. The only way to rule out all possibility of any of these three ever being subjected to inter-prisoner violence is never to allow them to be in the company of any other prisoner. That is not the sort of regime they would wish for.
16. I recognise that there have been incidents of violence on the vehicles taking prisoners from prison to court and back. Here the 'Sun City' prison complex is quite close to the court; given it would only be a short journey the chances of anything untoward happening is sufficiently remote that it can be discounted. None of these men is associated with any gang culture and will not therefore, for such reasons, be singled out for attack.
17. No one suggests being in prison is comfortable and/or pleasant . . .
19. I see little value in setting out the details of the assurances in this ruling. They are in writing and clear. They are given by the appropriate persons who are in a position to see they are met:
- Mr Moyan, the National Commissioner of the Department of Correctional Services (DCS)
- Mr Zacharia Moleko Modise, the Regional Commissioner of Gauteng province for the DCS
- Judge Tshalabala, head of the Judicial Inspectorate for Correctional Services (JICS) and the Inspecting Judge for Correctional Services.
- Mr Umesh Raga, the National Manager of the Legal Services Department at JICS . . .
21. At paragraph 13 Mr Brandon makes 8 points in support of his central contention that the assurances cannot be relied upon. I comment as follows:
(1) Conditions in South Africa's prisons are inhuman and degrading. Maybe, but not at Medium A and Medium C in the sole occupancy cells.
(2) The witnesses are parti pris. I think that means they had already made up their minds, were biased and were lacking independence to deal fairly with the issues. I see nothing objectionable in Judge Tshalabala saying he was anxious to play his part in returning Mr Vernon to South Africa. There is objection by each of these witnesses that without the assurances extradition would not likely happen. These are not hollow undertakings given just to get the men back. There is no evidential basis for suggesting such a cynical ploy. My assessment is that considerable thought has gone into giving assurances that can and will be honoured.
(3) JICS is overstretched and underresourced. I do not quarrel with that. It would not surprise me to learn if our Chief Inspector of prisons were to say much the same thing. Judge Tshalabala said that he personally would use his best endeavours to see that the undertakings were honoured. The point is that the undertakings are known to all the departments concerned with the prisons which will have any dealings with these three men. All are on-board in understanding what is required and know what is expected of them and they state they will ensure compliance. There is no evidential basis for suggesting any bad faith here.
(4) A complaint to an ICCV by (one of these men) will not be dealt with as urgent. It is impossible for me to make any meaningful comment. It must depend on such a wide range of variables. The government is keen to have effective extradition arrangements with the United Kingdom. Were these undertakings to be breached it would prove very difficult for South Africa to persuade a court here to make any order leading to extradition. That is well understood by the government who will be anxious to ensure the undertakings are honoured.
(5) DCS do not do what they are directed to by JICS. I accept Mr Brandon's account of the evidence. However, interventions by JICS which the DCS fail to act upon is one thing. Here DCS has given the assurances and Judge Tshalabala supports them. In those circumstances there is no reason to expect conflict.
(6) The assurances regarding detention at police stations are insufficient. Mr Chauke's additional affidavit at tab 42 states, 'The men will not be transferred to/kept in police custody unless circumstances arise that necessitate it. The ultimate decision in any event rests with the Presiding Magistrate after hearing the parties.' I accept that is not an assurance it will never happen; however, it is difficult to envisage circumstances where there might be any need to transfer any of these men to police custody; after all, the prosecution are trial ready. There are no substantial grounds for believing these men are at a real risk of facing 'article 3 ill-treatment' by the police whilst in police custody.
(7) The likelihood of a constitutional challenge to the assurances is unlikely. The outcome of any such challenge is difficult to predict.
(8) Length of sentence. Professor Morgan's expertise does not extend to assessing the length of time, assurances given in good faith will endure.
22. These men will have lawyers in South Africa. They no doubt will be told of the assurances. Should any problems arise then, quite apart from alerting Judge Tshalabala and seeking to resolve any issue through South African channels, one would hope a report to the British embassy would generate a speedy diplomatic reaction and response.
23. I am satisfied these assurances have been given in good faith and there are no good reasons to doubt that they will be honoured. There are no substantial grounds for believing detention in prison for any of these three men will expose them to a real risk of Suffering article 3 ill-treatment."
" . . . maybe but not Medium A and Medium C in the sole occupancy cells".
"Q. The reason why undertakings and assurances [are] given is because if Mr Vernon [is] placed in general population in South African prison system [it] will inevitably result in a breach of human rights, isn't that why assurances given?
A. I would assume correct. When we did inspection of Johannesburg the communal cells would not meet those requirements."
"In my opinion most of the provision for remand prisoners at Medium A Prison could be said to breach Article 3 - inhuman and degrading - and a credible Article 3 objection could be made to much of the provision for sentenced prisoners at Medium C Prison also."
"I interpreted my brief to establish if it was feasible to honour the assurances. Yes it can be done operationally. Having spoken to senior staff I explored that."
"Politically, the Head of the Inspectorate says, 'This is something I will honour,' is very persuasive. I am persuaded. Med C is as good as it gets. A prison in the future might be even better and they could go somewhere much worse. If honourably met, it is Article 3 compliant."
"In conclusion it is my opinion that the custodial conditions and regime assured to these three defendants if extradited would be different in several respects to those typical in Europe but they would not be regarded by the CPT [the Committee for the Prevention of Torture], the most authoritative independent body in Europe whose standards inform the European Court of Human Rights, as breaching Article 3 - the conditions would be criticised, the absence of prison programmes, the daily amount of time confined to one's cell, etc - but not more."
" . . . I could find no evidence of serious injury being sustained by prisoners housed in single cells in Medium A [that is the remand facility] or indeed in Medium A generally."
" . . . the Government of South Africa has given clear undertakings that the appellant would be held in a single cell. As Miss Disel and Miss Gear accepted, what happens in a single cell bore no relation to what happened in communal cells. We consider the senior district judge was entitled to accept the undertakings given by the National Director for Correctional Services and that he was right to hold that they would be followed. South Africa has now a material track record of respect for democracy, human rights and the rule of law. Those are highly material factors to the court's acceptance of the undertakings and the conclusion that they meet the conditions set out in RB (Algeria) v Secretary of State  2 AC 110, para 23."
"9. Neither Mr Brown nor Mr Waters/Watters has been called as a witness in these proceedings. Within the request papers it is reported that Mr Brown does not support (1) it was open to those who represent Mr Heesom to make arrangements for Mr Brown and/or Mr Waters or some other suitable HMCE witness to come to court and the issue could then have been ventilated. Mr Heesom was arrested in these extradition proceedings on 1st March 2013. As can be seen from paragraph 8 of Mr Heesom's proof of evidence, which was prepared a long time ago and certainly before May 2013 he says "I telephoned Ray Waters the day before and the day of my arrest (in South Africa in 2002) for this matter to let him know about the proposed shipment of the drugs..." If that is Mr Heesom's case then it was open to him to seek confirmatory evidence for what he was saying. There has been plenty of time and there have been frustrating delays. It was necessary for Mr Heesom's first legal team to withdraw from the case and very recently a new team has taken over. Shaw Graham Kersh had Mr Heesom's legal aid transferred to them on 22nd January 2014. On 29th January 2014, the day set aside for the hearing of all issues relating to Mr Heesom's case, other than prison conditions, I was invited to issue witness summonses for Messrs Brown and Waters/Watters. The relevant notices required under the CPR had not been served on the witnesses, some doubt was expressed as to whether Mr Brown was in the country, and this application was just too late. Any witness summons issued would inevitably have led to an adjournment with yet further delay. The court was determined to conclude the evidence and submissions given the already very serious delays. There is no suggestion the previous legal team were in any way incompetent and they, no doubt, for good reason, had taken no steps to call these witnesses.
10. The 'abuse of process' submission is quite hopeless. It is not suggested the South African prosecutor knows that Mr Heesom was acting under the instructions of HMCE or that there is anything improper in South Africa wishing to prosecute Mr Heesom for alleged serious offences. If Mr Heesom wishes to contest the case in South Africa on the basis that he was at all times acting for HMCE then he will probably need something more than just relying on his assertion that he was so acting. It is for the defence lawyers to arrange for the necessary witnesses to attend court and for those witnesses to give the appropriate evidence before a court. It is a simple factual issue that requires evidence."
" . . . if, however, I accepted evidence from a UK government law enforcement agency that Mr Heesom was at all times acting under the instructions of that agency I would have stopped the extradition until, at least, South Africa had an opportunity to respond."
"The RP [that is the requested person, Mr Heesom] was in regular, and direct contact with Malcolm Brown and Ray Waters, who was also working for UK Customs. On the day prior to, and indeed of his arrest, the RP was in telephone contact with Ray Waters to inform him of the planned shipment of cannabis from South Africa to Manchester in the UK. Indeed, the RP mentioned both of these individuals' names to the police upon arrest in South Africa. This is confirmed in the extradition papers in which it is alleged that the RP was silent after he did so; however, the RP explained that this was because he was assaulted by a police officer named Stefan Botha."
"(d) Heesom did allege to Botha [Inspector Botha was the initial Investigating Officer] that he was an informant for HM Customs and Excise. This allegation was followed up by correspondence with HM Customs and Excise.
(e) Mr Malcolm Brown from HM Customs and Excise confirmed that Heesom was registered as an informant but that he was deactivated by their Manchester office in 2001. They were aware of the fact that Heesom then returned to the Republic of South Africa and that he also had made contact with Mr Ray Waters. Heesom was however never reauthorised as a source and was not given any tasking as an informant. During the investigation of this matter and the subsequent trial proceedings no one ever came forward to confirm that Heesom was operating as an informant.
(f) Heesom also only assisted HM Customs and Excise in one case where eight kilogrammes of cannabis were smuggled to the United Kingdom. This was the only case where he gave positive information to the authorities. It is therefore highly unlikely that Heesom would be in a vulnerable group needing additional protection in the event of his incarceration."
"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. Unlike those at Crewe police station my view was not that these were delusional thoughts. I thought it much more likely a carefully thought through untruthful account. I am afraid I just did not believe a word of what he told me. I considered it to be a contrived and invented 'defence' developed as an answer to the charges he faces and to thwart his extradition. I do accept he has been broadly consistent. He gave a similar account back in 2003 to his South African lawyer Engelbertus Grove.
18. I do not accept the submission that he should not be regarded as a fugitive because he only left South Africa because he feared for his life. I considered Mr Heesom's alleged fear of Mr Mulenga was not genuine. I do not believe there were any threats to his life and the 'shooting incidents' were incredible. I am satisfied he left South Africa to avoid these proceedings and he has been on the run ever since. He is the classic fugitive and he is unable to rely on the bar provided for in section 82 of the Act."
"19. In any event Mr Heesom has not established he would suffer oppression, of a sufficient degree having regard to the seriousness of the allegations, by reason of the delay.
20. Why it was that following the arrest in 2009 (my paragraph 16) that extradition proceedings were not then instituted remains a mystery. It was known there was no international warrant then in existence, but it is wholly unclear whether any attempt was made, let alone achieved, in contacting the relevant authorities in South Africa."
"True it is that Laws LJ then added: 'An overall judgment on the merits is required, unshackled by rules with too sharp edges.' If, however, this was intended to dilute the clear effect of Diplock para 1, we cannot agree with it. This is an area of the law where a substantial measure of clarity and certainty is required. If an accused like Goodyer deliberately flees the jurisdiction in which he has been bailed to appear, it simply does not lie in his mouth to suggest that the requesting state should share responsibility for the ensuing delay in bringing him to justice because of some subsequent supposed fault on their part, whether this be, as in his case, losing the file, or dilatoriness, or, as will often be the case, mere inaction through pressure of work and limited resources. We would not regard any of these circumstances as breaking the chain of causation (if this be the relevant concept) with regard to the effects of the accused's own conduct. Only a deliberate decision by the requesting state communicated to the accused not to pursue the case against him, or some other circumstance which would similarly justify a sense of security on his part notwithstanding his own flight from justice, could allow him properly to assert that the effects of further delay were not 'of his own choice and making'."