“Without prejudice to his general discretion as to the making of an order for the return of a person to a foreign state…… (a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences in respect of which his return is sought, that (i) by reason of its trivial nature; or (ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (iii) because the accusation against him is not made in good faith in the interests of justice; it would, having regard to all the circumstances be unjust or oppressive to return him.” (a) the Secretary of State shall not make an order in the case of any person if it appears to the Secretary of State in relation to the offence, or each of the offences in respect of which his return is sought, that (i) by reason of its trivial nature; or (ii) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or (iii) because the accusation against him is not made in good faith in the interests of justice; it would, having regard to all the circumstances be unjust or oppressive to return him.”
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“failed to establish substantial or strong grounds for believing (they) would face a real risk of treatment in breach ofarticle 3 ECHR . In particular: (a) There is substantial evidence of close judicial oversight of the prison conditions in which Mr El Hage was detained. For example, the trial judge personally inspected those conditions. (b) The Trial Judge specifically dealt with Mr El Hage’s complaint that he was subjected to unnecessary strip searches. The Trial Judge conducted an inquiry into the reasons and justifications for the strip searches to which Mr El Hage was subject and was satisfied that there were good penological reasons for the strip searches. (c) Further, many of the complaints which were made by Mr El Hage and which have been substantially adopted by (the claimants) as to the conditions in which he and his co-defendants were held have to be viewed against the background, as the trial judge found, that two of Mr El Hage’s co-defendants had inflicted a life threatening injury on a prison guard and that there was a general concern that the attack in question (using a concealed weapon) had been planned over a considerable period of time. As such, stringent security measures were justified. The extent to which (the claimants) might be subject to similar security measures would depend, in part, on (their) behaviour and that of (their) fellow inmates at the facility in which they were detained. (d) When Mr El Hage complained that by reason of prison conditions his mental condition had deteriorated to the extent that he was no longer able to participate in the trial or assist in the preparation of his defence, the trial judge ordered that he be examined by three independent medical experts. All three concluded that Mr El Hage was malingering and deliberately fabricating amnesia and that, contrary to his claims, he was able to assist in the preparation of his defence and participate in his trial.” (a) There is substantial evidence of close judicial oversight of the prison conditions in which Mr El Hage was detained. For example, the trial judge personally inspected those conditions. (b) The Trial Judge specifically dealt with Mr El Hage’s complaint that he was subjected to unnecessary strip searches. The Trial Judge conducted an inquiry into the reasons and justifications for the strip searches to which Mr El Hage was subject and was satisfied that there were good penological reasons for the strip searches. (c) Further, many of the complaints which were made by Mr El Hage and which have been substantially adopted by (the claimants) as to the conditions in which he and his co-defendants were held have to be viewed against the background, as the trial judge found, that two of Mr El Hage’s co-defendants had inflicted a life threatening injury on a prison guard and that there was a general concern that the attack in question (using a concealed weapon) had been planned over a considerable period of time. As such, stringent security measures were justified. The extent to which (the claimants) might be subject to similar security measures would depend, in part, on (their) behaviour and that of (their) fellow inmates at the facility in which they were detained. (d) When Mr El Hage complained that by reason of prison conditions his mental condition had deteriorated to the extent that he was no longer able to participate in the trial or assist in the preparation of his defence, the trial judge ordered that he be examined by three independent medical experts. All three concluded that Mr El Hage was malingering and deliberately fabricating amnesia and that, contrary to his claims, he was able to assist in the preparation of his defence and participate in his trial.”
“I accept that it may be wrong or oppressive to do so if the inevitable result will be that he will be found unfit. But even in those circumstances there may be countervailing considerations. For example, if there is the counterpart of our process in the other country, where a person may be found to have committed an act which would otherwise have been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it would then be appropriate to detain the person for medical treatment, it would be in the public interest to enable that process to take place.”
“In my judgment the evidence does not begin to show that the imposition of SAMs, were that to occur (as it may), would mean that either appellant would be “prejudiced at his trial” (s.81(b) of the 2003 Act), or that it would violate the appellant’s rights underECHR article 6 , not least given that a flagrant denial of justice has to be shown. Nor, for good measure, does it show (what Mr Fitzgerald must I think establish) that the United States authorities would knowingly perpetrate a violation of the sixth amendment to the American Constitution.”
“In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards ofArticle 3 of the Convention . Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”
“While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment………”
“Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claim. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy L.J’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith.”
“The United States of America is a major democracy, one of the repositories of the common law. Whatever criticisms may be made of it, and even allowing for human fallibility, in all the many years of mutual extradition agreements between the United States and the United Kingdom, no example has been drawn to our attention where either the executive or the judiciary of the United States failed to honour any assurances or undertakings given in the course of extradition proceedings. That is a remarkable record, and the consequences of breaches of assurances accepted in good faith would be hugely damaging for the standing of the United States, and as the USA authorities plainly recognise, the knock on consequences for subsequent applications by the United States for extradition would be disastrous. Putting all this in context, references to human rights abuse in Guantanamo Bay and touchdowns in Diego Garcia, previously denied, coming to light, because the United States authorities gave this information to the United Kingdom government are irrelevant.”
“In our judgment, if we need to look for a guarantee that the USA will honour its diplomatic assurances, the history of unswerving compliance with them provides a sure guide. We are satisfied that these diplomatic assurances will be honoured.”
“70. We should add that, subject to detailed argument which may be advanced in another case, like Judge Workman, we too are troubled about what we have read about the conditions in some of the Supermax prisons in the United States. Naturally, the most dangerous criminal should expect to be incarcerated in the most secure conditions, but even allowing for a necessarily wide margin of appreciation between the views of different civilised countries about the conditions in which prisoners should be detained, confinement for years and years in what effectively amounts to isolation may well be held to be, if not torture, than ill treatment which contravenes Article 3. This problem may fall to be addressed in a different case.”
“applies only in a modified form which takes into account the desirability of arrangements for extradition. The form in which article 3 does apply must be gathered from the rest of the judgment (in Soering) and subsequent jurisprudence.”
“…the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the “minimum level of severity” which would make it inhuman and degrading. Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account.”
“A relativist approach to the scope of article 3 seems to me essential if extradition is to continue to function. For example, the Court of Session has decided in Napier v Scottish Ministers(2005) SC 229 that in Scotland the practice of “slopping out” (requiring a prisoner to use a chamber pot in his cell and empty it in the morning) may cause an infringement of article 3. Whether, even in a domestic context, this attains the necessary level of severity is a point on which I would wish to reserve my opinion. If, however, it were applied in the context of extradition, it would prevent anyone being extradited to many countries, poorer then Scotland, where people who are not in prison often have to make do without flush lavatories.”
“When considering the issue the courts of this jurisdiction therefore have to take into account and effect a proper balance between two imperatives, the importance of facilitating extradition and the prohibition against extraditing an alleged offender to face treatment which could be classed as inhuman or degrading. 57. I accordingly agree with the reasons given by my noble and learned friend, Lord Hoffmann, in paras 22 – 32 of his opinion for concluding that the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the requesting state attains the minimum level of severity which would make it inhuman or degrading. In particular I would underline the importance of facilitating extradition, as appears from para 89 of the judgment of the ECtHR in Soering.”
“Whilst, however, I readily accept that there is a good deal of flexibility in the concept of inhuman and degrading treatment and punishment with many factors in play in determining whether it attains the minimum standard required and whether the risk of such ill-treatment is satisfied, I cannot accept that the expelling state’s desire to extradite the person concerned (legitimate though clearly it is) can itself properly be one such factor.”
“The court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case that only became possible in July 2003.”
“……it nevertheless considers that, having regard to the physical conditions of the applicant’s detention, the fact that his isolation is “relative”, the authorities willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning ofart 3 of the convention .”
“The lack of effective monitoring of Mark Keenan’s condition and the lack of informed psychiatric input into his assessment and treatment discloses significant defects in the medical care provided to a mentally ill person known to be a suicide risk. The belated imposition on him in those circumstances of a serious disciplinary punishment – seven days segregation in a punishment block and an additional 28 days to his sentence imposed two weeks after the event and only nine days before his expected date of release – which may well have threatened his physical and morale resistance, is not compatible with the standard of treatment required in respect of a mentally ill person. It must be regarded as constituting inhuman and degrading treatment and punishment within the meaning ofarticle 3 of the Convention .”
“Furthermore, in considering whether treatment is “degrading” within the meaning of article 3, the court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with article 3.”
“The court notes that treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and the context of the treatment as well as its duration, its physical or mental effects and, in some cases, the sex age and state of health of the person concerned.”
“The court notes that complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.”
“The court notes firstly that the applicant was not subjected to sensory isolation or total social isolation. On the other hand, he was subjected to a relative social isolation, having been prevented from meeting prisoners subject to different public regimes, receiving visits from persons other than family members and making telephone calls. However, although his opportunities for contact were therefore limited, one could not speak of isolation in this context. It is true that all recreational and sporting activities involving contact with other prisoners were prohibited, as was handicraft work in his cell, that excess to outdoor exercise was limited and that the right to receive certain foods and objects from the outside was also withdrawn. The court notes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its report published on4 December 1997 , expressed doubts as to the need for some of the restrictions imposed by these rules (namely, “the total suspension of participation in cultural, recreational and sporting activities; suspension of works; restrictions on…….access to outdoor exercise”) in relation to the aims pursued. However, in the light of the explanations given by the government, the court cannot share these doubts in this case. The applicant was placed under the special regime because of the very serious offences of which he had been convicted or with which he had been charged, in particular crimes linked to the mafia. He was prohibited from organising cultural sporting or recreational activities since his encounters with the other prisoners could be used to re-establish contact with criminal organisations. The same was true of access to the exercise yard. The applicant has not established that the Italian authorities concerns were unfounded or unreasonable. The continuing danger that the applicant might re-establish contact with criminal organisations was moreover suggested by the fact that between November 1993 and May 1998, the period during which the applicant was subject to the special regime, he had been arrested on suspicion of the murder of a judge, had been sentenced to 17 years imprisonment, and had other proceedings pending against him for membership of mafia type organisations.”
“Extradition does not and should not depend upon the ability or otherwise of the requested state to undertake its own investigations with the view to prosecuting the case within its own jurisdiction. Such an approach would involve unnecessary duplication of effort, would result in additional delays in the prosecution of suspected criminals and would have an adverse effect upon international relations and international co-operation in the prosecution of serious crime. In most, if not all, extradition cases the requested state would depend upon co-operation from the requesting state if the requested state were to embark upon its own investigation and ultimate prosecution of the case.”
“First, the way in which Mr Jones has sought to deploy the guidance has close parallels to the arguments he advanced unsuccessfully in R (Birmingham) v Director of the Serious Fraud Office[2007] 2 WLR 635 , in that case challenging the decision of the Director of the serious fraud office not to open, pursuant to the power of investigation conferred on him bys1(3) of the Criminal Justice Act 1987 , an investigation as to whether or not a prosecution should be brought in the United Kingdom. The court held inter alia, that the request to investigate in effect invited the Director of the serious fraud office to constitute himself the judge of the proper forum of the defendant’s trial and to decide the issue in favour of trial in this country and not in the United States and thereby to pre-empt the statutory extradition process (para 65); and that protection of a defendant’s convention right was to be found in the material provisions of the 2003 Act rather than in any power of investigation by the Director (paras 70 – 71). It seems to me that Mr Jones’s reliance on the guidance in the present case as a means of securing a decision on forum by the Director of Public Prosecutions is a similarly impermissible attempt to circumvent the statutory extradition process.”
“Were (they) to be so returned, it would be for (Mr Bary and Mr Al Fawwaz) to satisfy UK immigration authorities that (they were) entitled to enter the country. The fact that the Secretary of State has been prepared to obtain the enclosed undertaking from [the] US authorities and that she is prepared for (Mr Bary and Mr Al Fawwaz) (if they so wish) to be returned at some future date by the US to the UK, should not therefore be taken necessarily as a guarantee of readmission. Any application would be considered in accordance with the legislation in force at the material time, and in accordance with the UK’s international undertaking.”
“The government of the United States assures the government of the United Kingdom that if Khalid Al Fawwaz and Adel Abdul Bary are acquitted or have completed any sentence imposed or if the prosecution against them is discontinued, not pursued or ceases for whatever reason, United States authorities will return Khalid Al Fawwaz and Adel Abdul Bary to the United Kingdom, if they so request.” (a) until after he has returned to the territory of the requested party; or (b) until the expiration of 30 days after he has been free to return to the territory of the requested party.”
“(1) A person shall not be extradited under this Act to an approved state or committed to or kept in custody for the purposes of such extradition if it appears to the Minister, to the court of committal or the Supreme Court on an application for habeas corpus …… (c) that he might, if extradited, be denied a fair trial…..by reason of his…. nationality….”
“24……Put succinctly, it is Mr Fitzgerald’s basic submission that the United States courts would be unable to safeguard the appellants against the prejudicial effects of their designation. He recognises, as he must, that to avoid extradition on this ground he has to establish a real risk that the appellants will suffer a flagrant denial of justice in the requesting state. The evidence, he submits, supports such a conclusion. 25. Their Lordships regard this as an impossible argument. As Lord Mustill said in giving the judgment of the board in Nakissoon Boodram v Attorney General(1996) 47 WIR 459 , 495: “The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for a cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution.””