Mohammed v Comarca De Lisboa Oeste, Instancia Central De Sintra, 1a Seccão Criminal, Portugal

In an extradition appeal based on prison conditions, the strong presumption that an EU member state will comply with Convention obligations is rebuttable by sufficiently strong evidence. A pilot judgment is not required. Objective, reliable, specific and properly updated material may establish a real risk of Article 3 ill-treatment in a particular prison or part of it, even without proof of systemic deficiencies. Once that threshold is met, the staged inquiry required by Criminal Proceedings Aranyosi and Caldararu [2016] QB 921 requires a specific assessment of the individual’s proposed detention and supplementary information from the relevant authorities. Execution must be postponed while that inquiry proceeds. Fresh evidence may be considered under section 27(4) of the Extradition Act 2003.

The appellant appealed against District Judge Devas’s order at Westminster Magistrates’ Court on 1 June 2017 for his extradition to Portugal under a conviction European arrest warrant. He was to serve four and a half years’ imprisonment for fraud offences. The sole ground pursued on appeal was that conditions in Lisbon Central Prison would expose him to treatment contrary to Article 3.

The District Judge had considered the appellant’s evidence and a January 2016 Ombudsman’s report, but found no cogent evidence capable of rebutting the relevant presumption. On appeal, earlier reports by the CPT and the Portuguese Ombudsman were admitted as fresh evidence. The central question was whether that material established a real risk requiring progression to the second stage of the Aranyosi inquiry and a further request for information.

Lord Justice Beatson, with Sir Wyn Williams agreeing, held as follows.

1. Section 27(3). The appeal could not succeed on the evidence before the District Judge. The January 2016 Ombudsman’s report raised concerns, including overcrowding and inadequate cell conditions, but standing alone was insufficient to rebut the strong presumption that Portugal would comply with its Convention obligations.
2. Fresh evidence. The earlier CPT reports and the 2015 report of the Portuguese Ombudsman, considered with the 2016 report, materially altered the evidential position. The reports described basement cells affected by damp, cold, poor lighting, dilapidation, inadequate sanitation and overcrowding. Although the issue was finely balanced, the additional evidence might have led the District Judge to find a real risk of Article 3 harm. It was therefore relevant under section 27(4) of the Extradition Act 2003.
3. Specific prison conditions. The challenge concerned conditions in a particular place of detention, not systemic deficiencies in Portugal as a whole. The absence of a pilot judgment did not prevent the court from finding that the evidence was objective, reliable, specific and properly updated. Evidence concerning the size of cells, the number of occupants and the inclusion of unpartitioned toilets gave reason to suppose that the three-square-metre personal-space standard identified in Muršić v Croatia Application No 7334/13 had not been met.
4. Aranyosi procedure. Applying Criminal Proceedings Aranyosi and Caldararu [2016] QB 921, the court was required to move to the second stage: a specific and precise assessment of whether the appellant would be exposed to the identified risk in the conditions envisaged for his detention. The court requested information within 28 days concerning the institution and location of detention, duration in Lisbon Prison, basement-cell detention, personal space, sanitary separation and monitoring arrangements. The judgment did not finally determine whether extradition would violate Article 3.
5. Other foreign decisions. Decisions of courts in other jurisdictions might be relevant in an appropriate case, but the limited material available about the Amsterdam District Court’s decisions meant that they did not need to be taken into account here.

• High Court (Administrative Court) — [2017] EWHC 3237 (Admin), 12 December 2017: considered the appeal under sections 26 and 27 of the Extradition Act 2003, rejected the section 27(3) route, accepted the relevance of fresh evidence under section 27(4), and requested supplemental information.
• Westminster Magistrates’ Court — 1 June 2017: District Judge Devas ordered the appellant’s extradition to Portugal.