Danfelds & Anor v General Prosecutor's Office, Latvia

On a renewed application for permission to appeal in extradition proceedings, it is reasonably arguable that a district judge erred by failing to engage with objective evidence of prison conditions and to apply the two-stage approach required where an Article 3 risk is alleged. The court should obtain current, specific information about the conditions in which the requested person would be detained before determining the risk. A material change in circumstances, an outdated assessment of the sentence remaining to be served, or factual errors in assessing family life may also make an Article 8 proportionality decision arguably unsafe.

Two applicants challenged orders made by a district judge at Westminster Magistrates’ Court requiring their extradition to Latvia. They relied on alleged risks of inhuman or degrading treatment in Latvian prisons under Article 3 of the European Convention on Human Rights and on disproportionate interference with their Article 8 rights.

The district judge had considered a 2017 report of the European Committee for the Prevention of Torture concerning Latvian prisons, but concluded that it was not determinative. He also rejected the Article 8 arguments. Permission to appeal was initially refused by Sir Wyn Williams, but the applications were renewed before this Divisional Court. The central questions were whether the district judge had properly addressed the evidence and applied the relevant legal approach, and whether the Article 8 assessments were arguably undermined by errors or changed circumstances.

1. Article 3. The CPT report was objective, reliable and specific evidence of serious concerns in Latvian prisons, including poor infrastructure, inadequate staffing, inter-prisoner violence and a lack of out-of-cell activities. The evidence concerning the Griva section of Daugavgriva Prison was particularly serious. The fact that the report followed a 2016 visit meant that an update was required before the court could assess whether either applicant faced a real risk of treatment contrary to Article 3.
2. The approach in Criminal Proceedings Aranyosi and Caldarau [2016] QB 921 required consideration first of objective, reliable, specific and properly updated information about detention conditions, followed by a specific and precise assessment of the individual risk. It was reasonably arguable that the district judge had failed to analyse the CPT report and other important material, and had thereby failed to follow that guidance.
3. Permission to appeal was therefore granted to both applicants on the Article 3 ground. Latvia was requested to provide information and assurances identifying the proposed prisons, confirming that neither applicant would be transferred to the Griva section, and addressing prisoner numbers, staffing, inter-prisoner violence, activities, monitoring and Covid-19 measures. The court made no final finding on Article 3.
4. Article 8. Permission was granted to the first applicant because the district judge had treated the outstanding sentence as two years and six months when substantially less remained to be served, and had apparently proceeded on the erroneous basis that the applicant’s son and the child’s mother lived in Latvia. Permission was granted to the second applicant because one European Arrest Warrant had been discharged, the remaining offences were relatively minor in the scale of criminal offending, and his relationship and supporting role with his UK partner represented a significant change in circumstances.
5. The question whether the fresh evidence satisfied the Fenyvesi test was left to the court hearing the appeals.

1. High Court (Administrative Court), Divisional Court: permission to appeal granted on the stated Article 3 and Article 8 grounds. Further information and assurances were requested from Latvia before the Article 3 appeals are determined.
2. Westminster Magistrates’ Court: the district judge ordered the first applicant’s extradition on 20 August 2019 and the second applicant’s extradition on 16 October 2019.
3. High Court: permission to appeal was initially refused by Sir Wyn Williams on 24 January 2020, with directions for renewed applications to be heard jointly by a Divisional Court.