Anthony Rae v United States of America

In extradition cases, the absolute prohibition in the European Convention on Human Rights applies where strong grounds establish a real risk of treatment reaching the Article 3 threshold. The court must assess the treatment itself, without balancing it against the seriousness of the offence or the public interest in extradition.

The assessment remains fact-sensitive and contextual. The strong presumption arising from less than 3 sq m of personal space in multi-occupancy accommodation applies to extradition to the United States. Extreme heat may contribute to a breach even without heat illness when combined with cramped and otherwise poor conditions. A general good-faith assurance may not remove the risk if non-conforming placement remains possible. Further information should be sought before a final decision.

The United States sought the extradition of Anthony Rae, also known as Anthony Stevens, to face indictments alleging sexual abuse of a child and failures to surrender. Westminster Magistrates’ Court sent the case to the Secretary of State, who ordered extradition.

The appeal concerned whether prison conditions in Texas created a real risk of treatment contrary to Article 3 of the European Convention on Human Rights. The appellant relied principally on inadequate personal space and extreme heat. After permission to appeal was granted, the respondent supplied further information and an assurance concerning accommodation. The central issues were whether the judge had erred in assessing the evidence and whether the fresh material removed any real risk.

1. Outcome and framework. Fresh evidence was admitted in the interests of justice. The court held that the judge had materially erred in concluding that there were no serious grounds for believing that extradition would expose the appellant to a real risk of Article 3 treatment. Article 3 is absolute, and its application cannot involve balancing the severity of the treatment against the seriousness of the charges or the public interest in extradition. There is no presumption that a non-ECHR state will comply with ECHR standards merely because it is a liberal democracy.
2. Personal space. The rule in Muršić v Croatia (2017) 65 EHRR 1 applies to extradition to the United States. Less than 3 sq m of personal space in multi-occupancy accommodation gives rise to a strong presumption of breach unless the cumulative conditions identified in Muršić are satisfied. The judge was entitled to prefer the respondent’s evidence about cell dimensions, but could not infer from general under-occupancy that the appellant was unlikely to be placed in a non-conforming cell. The evidence showed that facilities had been closed or idled in response to under-occupancy. The possible risk, between 5% and 13%, was real, particularly because the shortfall could be substantial and its duration was unknown.
3. Extreme heat. The judge wrongly confined the inquiry to measures intended to prevent heat-related illness. The evidence of temperatures reaching 110°F, or higher indoors, had to be assessed alongside small shared cells, unpartitioned toilets and limited natural light. Strasbourg authority showed that extreme temperatures may contribute to an Article 3 breach even without heat-related illness. The conditions, viewed cumulatively, gave rise to a real risk.
4. Assurance and procedure. The assurance that a good-faith effort would be made to provide conforming accommodation did not eliminate the risk. It contained no commitment as to the place of detention and expressly allowed non-conforming placement for operational or inmate-related reasons. This was materially different from the assurance distinguished in Snowden v Ghana [2018] EWHC 198 (Admin). Following Aranyosi EU:C:2016:198, the court made no final order and postponed the decision pending supplementary information addressing personal space, operational or inmate need, indoor temperatures, mitigation measures and their effectiveness.

• Westminster Magistrates’ Court: On 21 June 2021 District Judge Tempia sent the case to the Secretary of State.
• Secretary of State: On 6 August 2021 an extradition order was made.
• High Court (Administrative Court): Permission to appeal was ultimately granted. The court found a material error in the assessment of Article 3 risk, admitted fresh evidence, and postponed the final decision pending further information.