Choudhary v Prosecutor at the Creteil Tgi, France

In an extradition case raising prison conditions under Article 3 of the ECHR, the court should assess the evidence in light of materially relevant developments after the lower court’s decision. A later decision of the European Court of Human Rights may supersede the evidential basis on which the lower court proceeded. Where the evidence remains uncertain, particularly about personal living space and other aggravating conditions, the court should obtain specific and up-to-date information from the requesting state before deciding whether extradition would expose the person to inhuman or degrading treatment. The Article 3 assessment must take account of the cumulative effect of cell space, freedom of movement, out-of-cell activities and the physical conditions of detention.

The appellant appealed under section 26 of the Extradition Act 2003 against a District Judge’s order for his extradition to France following a conviction European Arrest Warrant. Grounds 1–4 alleged mistaken identity. Ground 5 alleged that detention in Fresnes prison would breach Article 3 of the ECHR because of overcrowding and materially poor conditions.

The District Judge relied on Shumba and others v France [2018] EWHC 762 (Admin) and Shumba and others v France [2018] EWHC 3130 (Admin). After that decision, the ECtHR gave judgment in JMB and others v France. The central issue was whether the available evidence was sufficient to determine the Article 3 issue.

1. The court adjourned final consideration of Grounds 1–4 pending further inquiries and addressed only Ground 5. The Article 3 issue could not fairly be determined solely on the evidence available to the District Judge, because the later decision in JMB and others v France materially altered the evidential position.

2. The court considered the approach in Mursic v Croatia (App. No. 7334/13). Where a detainee has less than 3 sq m of floor space in multi-occupancy accommodation, there is a strong presumption of an Article 3 violation. Rebuttal ordinarily requires the cumulative presence of short, occasional and minor reductions in space, sufficient freedom of movement and adequate out-of-cell activities, and detention in an appropriate facility without other aggravating conditions. Where personal space is between 3 and 4 sq m, the space factor remains significant and must be assessed with other physical conditions.

3. The evidence concerning Fresnes remained unclear. Earlier reports and information differed as to whether sanitary facilities and furniture were included in cell measurements. JMB and others v France recorded less than 3 sq m for certain detainees at Fresnes and found degrading treatment even where personal space was approximately 4 sq m, having regard to pests, poor light and humidity, and inadequate exercise facilities.

4. The court rejected both the submission that the Article 3 threshold had already plainly been crossed and the submission that the District Judge’s conclusion could simply be upheld. It directed the French authorities to provide detailed information about the Appellant’s proposed place of detention, cell dimensions, sanitary facilities, furniture, occupancy, sharing arrangements and steps taken to address the defects identified in JMB and others v France. A substantive response was requested by 7 September 2020.

• High Court (Administrative Court): The appeal was brought under section 26 of the Extradition Act 2003 against the District Judge’s extradition order. Final consideration of Grounds 1–4 was adjourned. Ground 5 was not finally determined; further information was requested from the French authorities.
• District Judge: District Judge Zani ordered extradition on 17 May 2019 and concluded, applying Shumba and others v France [2018] EWHC 762 (Admin) and Shumba and others v France [2018] EWHC 3130 (Admin), that the Article 3 threshold had not been met.