Thyer v Public Prosecutor At the High Instance Court of Paris, France

In an extradition appeal, the requesting state’s assurances concerning prison conditions should be assessed in accordance with mutual trust, but they do not prevent the court from considering other objective, reliable, specific and properly updated evidence. A real risk of Article 3 ill-treatment must be established by substantial evidence. An arrest warrant must provide sufficient particulars of the alleged conduct, but it need not separately plead mens rea where the alleged conduct permits a clear inference of dishonesty. For dual criminality, the court focuses on the conduct alleged, rather than the ingredients of the foreign offence. Extradition is not barred under section 12A where the requested person’s absence is the sole reason that a decision to charge or try has not been made. The appeal was dismissed and permission to appeal on the remaining grounds was refused.

The appellant appealed under section 26 of the Extradition Act 2003 against a district judge’s order of 4 May 2018 requiring her extradition to France under a European Arrest Warrant. The warrant concerned alleged manufacture and worldwide internet sale of unauthorised medicinal products and related offences.

Permission was granted on the Article 3 prison-conditions ground. The appellant also renewed applications for permission on grounds concerning particulars, dual criminality, absence of a prosecution decision, proportionality, mental health, Articles 3 and 8 of the ECHR, and abuse of process. The central questions were whether extradition would expose her to a real risk of inhuman or degrading treatment and whether any other ground was arguable.

1. Article 3. The court applied the principles summarised in Shumba v Public Prosecutor in Nanterre County Court, France [2018] EWHC 1762 (Admin), including the requirements of substantial evidence of a real risk, the presumption arising from mutual trust between ECHR states, and the relevance of cell space and wider detention conditions. The procedure in Aranyosi and Căldăraru permitted further evidence after information had been supplied by the requesting authority. However, such evidence had to be objective, reliable, specific and properly updated.
2. The report of Mr Julié was excluded because he was not an expert, although the public material on which he relied was considered. That material did not establish a real risk that the appellant would receive less than 3m² of space or suffer Article 3 treatment in the women’s districts at Fleury-Mérogis or Fresnes. Much of it was historic, and the French assurances were more than a bland assurance. Bakhtyar was fact-sensitive and did not assist. The Article 3 ground failed.
3. Particulars and dual criminality. The EAW and further information sufficiently identified the alleged conduct, the appellant’s role and the offences. The allegation that she managed the fraudulent activities in France and was co-author of all the offences permitted the inference that she aided and abetted them or participated in a joint enterprise. The conduct also permitted an inference of dishonesty. The court applied the conduct-based approach explained in Biri v High Court in Miskolc, Hungary [2018] 4 WLR 50. English charges were useful but were not then mandatory. Sections 2 and 10 were satisfied.
4. Section 12A. The French authorities’ further information showed that the appellant had been summoned and that questioning by the investigating judge in France was required before a decision to charge or try could be made. Her absence was therefore the sole reason for the absence of that decision. The district judge applied the correct standard and the ground was not arguable.
5. Proportionality, health and abuse of process. The alleged conduct was serious, a substantial custodial sentence was likely if the appellant were convicted, and no less coercive measure was available. The high threshold for oppression based on mental health was not met. The appellant’s father’s death required the Article 8 balancing exercise to be reconducted, but the evidence did not show that extradition would be disproportionate. The French investigation and the use of evidence obtained in the United Kingdom did not usurp the statutory extradition regime.
6. The Article 3 appeal was dismissed. The renewed applications for permission to appeal were refused.

• High Court (Administrative Court): the appeal against the district judge’s extradition order of 4 May 2018 was dismissed; permission to appeal on the remaining grounds was refused.