AT v Prosecutor-General Office Grand Duchy of Luxembourg

A breach of the right of access to a lawyer at a first police interrogation does not automatically bar extradition. The question is whether the breach creates a real risk of a flagrant denial of justice, assessed by asking whether the conviction can be regarded as safe. The test requires more than an Article 6 violation or procedural irregularity. It is necessary to examine the whole trial process and whether the impugned evidence could have affected the conviction. Where the requested state gives a reliable assurance that it will comply with a later ruling of the European Court of Human Rights and provide appropriate relief, extradition need not be adjourned while that ruling remains pending.

The appellant appealed under section 26 of the Extradition Act 2003 against an order for his extradition to Luxembourg to serve the balance of sentences imposed for serious sexual offences. He argued that the refusal to provide a lawyer during his first police interrogation breached Article 6 of the ECHR and made extradition impermissible under section 21(1) of the Act.

The court accepted that the initial refusal was an Article 6 violation. It also considered the effect of other complaints concerning the Luxembourg trial, the pending application to the European Court of Human Rights, assurances as to relief if that application succeeded, and whether the case should instead be analysed under Article 5.

1. Appeal dismissed. The refusal to allow legal assistance at the appellant’s first police interrogation breached Article 6(1), read with Article 6(3)(c), of the ECHR. The explanation that a lawyer would be provided at a later interrogation was not a compelling reason within the principle stated in Salduz v Turkey (2009) 49 EHRR 19. The principle was not confined to admissions made in police questioning: Cadder v HM Advocate [2010] 1 WLR 2001.
2. A violation does not itself make extradition incompatible with Convention rights. The applicable threshold is whether return would expose the person to a real risk of a flagrant denial of justice. That is a stringent test, going beyond ordinary breaches or deficiencies in safeguards. In a conviction case, the relevant practical inquiry is whether the conviction can be regarded as safe.
3. Applying that inquiry, the conviction was supported by ample evidence independent of the first police interview. Inconsistencies and improbabilities concerning the appellant’s explanations, including the condom evidence, did not depend solely on the impugned interview. The breach therefore neither destroyed the essence of the right to a fair trial nor rendered the conviction unsafe.
4. The court declined to determine the appellant’s other complaints about the Luxembourg proceedings. The procedures concerning questioning of the complainant and the psychologist’s evidence were not shown to be objectionable. The Luxembourg authorities had confirmed that they would provide appropriate relief if the European Court of Human Rights found a violation.
5. Following Arranz v Spanish Judicial Authority [2013] EWHC 1662 (Admin), it was unnecessary to adjourn extradition merely because the European Court of Human Rights had not yet determined the appellant’s case, where the requested state would comply with that court’s eventual ruling. Whether the matter was analysed under Article 6 or Article 5 led to the same result and was academic.

The judgment records an appeal under section 26 of the Extradition Act 2003 from the District Judge’s extradition order dated 19 August 2013. The High Court dismissed the appeal.