Serra & Anor v The Republic of Paraguay

Extradition is prohibited where substantial grounds establish a real risk of treatment contrary to article 3 ECHR. The court must assess the totality of the available information, including the reliability and practical effect of assurances from the requesting state. The factors identified in Othman v United Kingdom are non-exhaustive and are not a statutory checklist.

The burden-shifting approach developed in prison-condition cases does not apply mechanically to removal cases involving future risk. For dual criminality, the conduct alleged in the requesting state must be considered against the law of England. Property lawfully retained when acquired may become criminal property to possess after a prospective change in the law.

The appellants challenged the refusal of District Judge Arbuthnot to bar their extradition to Paraguay. The Secretary of State ordered extradition on 17 January 2017, and there was no appeal against that decision.

The appellants argued that detention in Paraguay would expose them to a real risk of treatment contrary to article 3 ECHR, despite assurances identifying their proposed accommodation. They also argued that the Paraguayan money-laundering charge was not an extradition offence because the conduct was not criminal under English law when the money was obtained. The central issues were the effect of fresh assurances following Muršić v Croatia and whether sections 78 and 137 of the Extradition Act 2003 were satisfied.

1. Article 3. Permission to appeal was granted on the article 3 issue, but the appeal was dismissed. The question was whether, on the totality of the information, there were substantial grounds for believing that the appellants faced a real risk of detention in conditions contrary to article 3.
2. The approach in Muršić v Croatia concerning less than three square metres of personal space was considered. The burden-shifting observations in that case concerned proof of past detention conditions and had no direct application to removal cases involving an assessment of future risk. A mechanistic allocation of burdens was unrealistic.
3. Assurances had to be assessed in the round. The factors identified in Othman v United Kingdom were non-exhaustive, none was decisive, and many had little bearing on a case concerning the location of detention and available personal space. The assurances were specific, given or endorsed at several levels of the Paraguayan administration, and capable of objective monitoring.
4. The fresh assurances established that each appellant would be accommodated in a single room with ample space. The appellants would also have access to independent lawyers, monitoring bodies, the prison ombudsman and consular support. The court accepted that the assurances could be relied upon and that there was no material article 3 risk.
5. Dual criminality. Permission to appeal on the money-laundering ground was refused. Under sections 78(4) and 137(3) of the Extradition Act 2003, the conduct in the requesting state had to amount to an offence punishable in England by at least 12 months’ imprisonment and be punishable in the requesting state.
6. Assuming that the money had been obtained by fraud, it was criminal property within section 340 of the Proceeds of Crime Act 2002. The appellants concealed it and possessed it within sections 327 and 329. Retention or possession which was lawful when property was acquired may become criminal after a prospective change in the law. The statutory test was therefore satisfied from 17 July 2009.

1. High Court (Administrative Court): Permission to appeal was granted on the article 3 issue, but the appeal was dismissed. Permission was refused on the dual criminality issue.
2. District Judge Arbuthnot: On 23 November 2016, concluded that there was no legal impediment to extradition and sent the requests to the Secretary of State under the Extradition Act 2003.
3. Secretary of State: Ordered extradition on 17 January 2017. That decision was not appealed.