Cato v The Republic of Peru & Ors

Extradition assurances are ordinarily presumed to be given in good faith. Their weight does not depend on the requested person’s nationality, absent clear evidence to the contrary.

Article 3 requires an assessment of the total conditions likely to be experienced. Cell space is assessed by reference to gross floor area, while access to wider prison areas and the period spent outside the cell may be important. Article 6 permits extradition only where substantial grounds establish a real risk of a flagrant denial of justice. General evidence of corruption or procedural shortcomings will ordinarily require particular evidence connecting the risk to the requested persons.

Peru sought the extradition of Aristide Canessa and Jamie Cato to face drug-trafficking charges. The Deputy Senior District Judge sent both cases to the Secretary of State under the Extradition Act 2003, and extradition orders were made on 20 July 2015.

The appellants challenged the decisions under section 103 of the Act. Canessa argued that Peru’s assurances did not apply to him because he was Italian rather than British. Both appellants argued that detention conditions created a real risk of inhuman or degrading treatment under Article 3 of the ECHR, and that corruption and procedural deficiencies created a real risk of a flagrant denial of justice under Article 6.

1. Outcome. The appeals were dismissed. The court held that the Deputy Senior District Judge had not been wrong to send the cases to the Secretary of State or to conclude that extradition would be compatible with Articles 3 and 6 of the ECHR.
2. Assurances. Peru’s assurances that the appellants would be detained at Ancon II applied to Canessa as well as Cato. The references to British citizens arose from an erroneous assumption about the appellants’ nationality and were clarified by a later letter expressly covering Canessa. Assurances are presumed to be given in good faith unless there is clear evidence to the contrary. Their weight is not reduced because the person protected by them is not a British national. The United Kingdom’s diplomatic relations with Peru were relevant to the likelihood that the assurances would be honoured.
3. Article 3. The court assessed the conditions cumulatively. Four prisoners in a 16 square metre cell provided approximately 4 square metres gross per prisoner, exceeding the 3 square metre benchmark. The relevant measure was gross space, not space remaining after furniture, although prisoners had to be able to move around the furniture. It was also important that prisoners were confined to their cells for only 12 hours and could otherwise use wider prison facilities. Medical deficiencies, reliance on embassy or charitable assistance, and possible journeys for hearings did not, individually or cumulatively, establish a real risk of inhuman or degrading treatment. Clear further assurances established that the appellants would remain at Ancon II during hearings.
4. Article 6. Applying Othman v UK, the relevant threshold was a flagrant denial of justice: a breach so fundamental as to nullify or destroy the essence of the fair-trial right. The appellants bore the burden of showing substantial grounds for believing that they faced a real risk of such treatment. Evidence of corruption, surveys, continued use of the 1940 Code, delays, public defenders and interpreters was material, but the general evidence did not establish the necessary particularised risk. The evidence of anti-corruption measures and the absence of corruption in other identified trials were also relevant.

1. High Court (Administrative Court) — appeals under section 103 of the Extradition Act 2003 dismissed: [2016] EWHC 914 (Admin).
2. Westminster Magistrates’ Court — the Deputy Senior District Judge sent both cases to the Secretary of State in a combined ruling dated 7 June 2015.
3. Secretary of State for the Home Department — extradition orders made on 20 July 2015.