Agius v Court of Magistrates Malta

Under section 21 of the Extradition Act 2003, a court must examine whether extradition to a Category 1 territory is compatible with the requested person’s Convention rights. Membership of the European Arrest Warrant scheme creates a rebuttable presumption that the requesting state will fulfil its Convention obligations. It does not remove the duty of inquiry or impose a separate requirement to demonstrate exceptional circumstances.

The presumption is displaced only by clear and cogent evidence satisfying the stringent Convention thresholds. Article 3 requires strong grounds for believing that sufficiently serious ill-treatment presents a real risk. Article 6 requires substantial grounds for believing that there is a real risk of a flagrant denial of a fair trial.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to Malta under an accusation European Arrest Warrant. He was accused of participating in a conspiracy to import ecstasy tablets into Malta.

Relying on section 21, he contended that extradition would expose him to unlawful refusal of bail, unreasonable delay before trial and prison conditions contrary to Articles 3, 5 and 6 of the European Convention on Human Rights. The District Judge considered that no inquiry was required because Malta was a Category 1 territory, but alternatively found that the evidence disclosed no real risk of a Convention violation.

The central issues were whether section 21 required an inquiry despite the requesting state’s Convention status and whether the evidence rebutted the presumption that Malta would comply with its obligations.

1. The appeal was dismissed. Section 21(1) of the Extradition Act 2003 required the District Judge to decide whether extradition would be compatible with the appellant’s Convention rights. A judicial decision required a proper inquiry. The District Judge therefore erred by holding that no inquiry was needed unless wholly extraordinary circumstances existed.

2. The inquiry starts with the presumption that a requesting state participating in the European Arrest Warrant scheme is able and willing to fulfil its Convention obligations. That presumption is not easily displaced, but it is rebuttable by clear and cogent evidence showing that extradition in the particular case would be incompatible with the requested person’s Convention rights. There is no additional legal requirement to demonstrate exceptional circumstances. The approach in MSS v Belgium and Greece and Targosinski v Judicial Authority of Poland [2011] EWHC 312 (Admin) was adopted.

3. The applicable Convention thresholds are stringent. Article 3 requires strong grounds for believing that the anticipated ill-treatment would be sufficiently serious to cross its high threshold. Article 6 requires substantial grounds for believing that there is a real risk of a flagrant denial of a fair trial. The burden of rebutting the presumption of compliance is consequently heavy, although successful reliance on section 21 is exceptional as a practical matter rather than because of a separate rule of law.

4. The evidence did not establish a real risk of treatment contrary to Article 3. The available material described the overall prison conditions as acceptable, notwithstanding criticisms of aspects of the prison. Nor did it establish that bail would be refused improperly. Bail was determined judicially, and there was no basis for assuming that relevant matters would not be considered by the Maltese courts.

5. Whether delay is unreasonable is fact-sensitive and cannot be determined by a rule of thumb. Reports concerning pre-trial detention and earlier Strasbourg decisions about delays in Malta did not establish a real risk of unreasonable delay in this case. The appellant’s presence could remove a principal obstacle to the trial of the alleged conspirators.

6. The District Judge’s alternative assessment satisfied the decision required by section 21. The evidence did not rebut the presumption that Malta would comply with Articles 3, 5 and 6. The appeal was dismissed, publicly funded costs were ordered to be assessed, and bail continued on the existing conditions pending surrender.

• High Court (Administrative Court), Divisional Court: The court dismissed the appeal. It held that the District Judge had erred in treating an inquiry under section 21 of the Extradition Act 2003 as unnecessary, but upheld the extradition order because the District Judge’s alternative findings were open to him.
• District Judge: On 10 September 2010, District Judge Evans ordered the appellant’s extradition to Malta. He treated Malta’s status as a Category 1 territory as removing the need for inquiry, but alternatively found no real risk of a breach of Articles 3, 5 or 6.