Anthony Rae v United States of America

For the purposes of Article 3 ECHR, a real risk must be assessed on the totality of the evidence and the conditions likely to be experienced. Assurances from the receiving authorities may reduce a risk below the required threshold where they are read as a whole and provide a sufficient basis for confidence in their practical operation. The assessment must consider mitigation measures addressing the overall effect of the conditions, not merely measures directed at preventing serious illness. Unpleasant prison conditions, including high temperatures, do not necessarily meet the very high threshold required for Article 3. The court must consider the reliability and effectiveness of measures such as suitable accommodation, cooling facilities, water, ventilation, medical monitoring and respite areas.

The appellant challenged his proposed extradition to the United States on the basis that, if convicted and imprisoned in Texas, he would face a real risk of treatment contrary to Article 3 ECHR.

In an earlier judgment, the court concluded that the district judge had been wrong to find that the appellant had failed to establish such a risk, but also concluded that the fresh evidence then available did not resolve the issue. The court requested further information from the Texas authorities. Further material was subsequently provided, including assurances concerning personal space and evidence concerning prison temperatures and heat-mitigation measures.

The central issue was whether the further information, viewed in its totality, enabled the court to discount a real risk of treatment contrary to Article 3.

1. The appeal was dismissed. The court was satisfied that the United States authorities had shown that there was no real risk that the appellant, if convicted and imprisoned in Texas, would be detained in conditions contrary to Article 3 ECHR.

2. As to personal space, the evidence showed that approximately 13.1% of the inmate population was housed in accommodation providing less than three square metres per inmate. That figure did not assist the respondent if the assurance were considered in isolation. The assurance nevertheless had to be read as a whole and taken at face value.

3. The court understood the assurance to apply even if the appellant had to be moved for security, programming, medical or unforeseen weather-related reasons. The authorities would continue to make a good faith effort to place him in conforming accommodation. Although the expression minimal was imprecise, the letter established that the risk of detention in non-conforming accommodation was no longer a real risk for Article 3 purposes.

4. The temperature evidence provided a consistent basis for assessing conditions in facilities without full air conditioning. Some facilities experienced temperatures in the high 90s or low 100s Fahrenheit for several consecutive days, making the effectiveness of mitigation important.

5. The relevant measures were not confined to preventing heat-related illness. They included cooling towels, additional cold showers, water and ice, portable fans, air-exchange systems and air-conditioned respite areas said to be available continuously. Evidence that implementation was sometimes ineffective, including overcrowding and unpleasant conditions in respite areas, did not materially displace the overall impression that substantial measures were in place and monitored.

6. Taking the evidence together, the summer temperatures remained unpleasant, but the very high threshold required for an Article 3 breach was not met.

• High Court (Administrative Court): In the earlier judgment, [2022] EWHC 3095 (Admin), the court identified errors in the district judge’s assessment of the Article 3 risk and considered that the fresh evidence then available did not resolve the issue. The court requested further information from the Texas authorities.
• High Court (Administrative Court): After considering the further information and evidence, the court dismissed the appeal.