Government of Ecuador v Larco

Overcrowding measured against an institution’s official capacity does not, by itself, establish a real risk of treatment contrary to article 3. The requested person must first provide substantial grounds for believing that the conditions will create such a risk, including evidence about the personal space actually likely to be available. Only then does an obligation arise for the requesting state to provide further information or assurances. In assessing personal space, the court must distinguish between a locked shared cell and an unlocked room which detainees can leave. A prima facie case under section 84 of the Extradition Act 2003 may be established by evidence from an interviewer charged with investigating the alleged offence, and may also be established by other evidence capable of showing inability to consent.

The Government of Ecuador sought the extradition of Wagner Ona Larco to face a rape charge. The Senior District Judge discharged him under section 87(2) of the Extradition Act 2003, finding a real risk of article 3 ill-treatment from overcrowding at the juvenile detention centre where he would be held. The Government appealed against that decision. The respondent cross-appealed on the issues of prima facie evidence under section 84 and an alleged flagrant denial of justice under article 6.

The central issues were whether the evidence established a real risk arising from overcrowding, whether further information or an assurance should first have been sought, whether the complainant’s account was admissible, and whether the respondent had shown a real risk of an unfair trial.

1. Article 3 and overcrowding. The appeal was allowed on the article 3 issue. The burden was on the respondent to show substantial grounds for believing that extradition would expose him to a real risk of inhuman or degrading treatment. The fact that the Centre exceeded its official capacity was important but not determinative. There was no evidence that the respondent would receive less than 3m² of personal space, and no evidence equating the use of mattresses on the floor with inadequate personal space. The Centre was not an ordinary prison: detainees generally slept in unlocked rooms which they could leave. That distinction was material.
2. The Judge had therefore erred by treating the population figures, coupled with the absence of precise information from Ecuador, as sufficient to shift the burden. The duty to provide further information or assurances would arise only after the respondent had shown a real risk based on insufficient personal space. The decision was quashed. The court observed, obiter, that there was considerable force in applying to Part 2 cases the approach in which a specific assurance is sought before discharge.
3. Section 84. Assuming that section 84(2) applied to the account given by CP during the Gessell Chamber procedure, the Judge was entitled to find that Dr Jacome was charged with investigating the alleged offence. Her questioning was investigative rather than therapeutic or evaluative. The section 84 argument therefore failed. In any event, other evidence, including evidence from persons present at the party, was capable of establishing a prima facie case because CP was said to have been in and out of consciousness when sexual activity occurred.
4. Article 6. The cross-appeal failed on this issue. The procedure enabled the defence lawyer to ask questions through the judge. The Judge was entitled to find that the lawyer probably did so, particularly as the lawyer was present, had signed the record, and gave no evidence of being prevented from asking questions. Dr Albán’s contrary opinion was properly treated as speculation.
5. The case was remitted to the Judge to proceed as required if the article 3 issue had been decided differently. The cross-appeal was dismissed.

• High Court (Administrative Court): allowed the Government’s appeal, quashed the discharge order, dismissed the cross-appeal and remitted the case to the Senior District Judge.
• Senior District Judge: on 23 July 2019 discharged the respondent under section 87(2) of the Extradition Act 2003, having found a real risk of article 3 ill-treatment from overcrowding.