Balaeiharis v The Public Prosecutor, Court of Appeal, Athens [2015] EWHC 3702 (Admin)

Case No CO/2813/2015[2015] EWHC 3702 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2015
Before
LORD JUSTICE LAWSMR JUSTICE HOLROYDE
Between
MOHAMMED BALAEIHARISAppellantTHE PUBLIC PROSECUTOR,RespondentCOURT OF APPEAL, ATHENSRespondent
Mr B Brandon (instructed by Hodge Jones & Allen LLP) for AppellantMr J Stansfeld (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 5 th November, 2015
Judgment
[1]This is an appeal by permission of Ouseley J against the decision of Senior District Judge Riddle (“Judge Riddle”) on 10th June 2015 ordering that Mohammed Balaeiharis (“the Appellant”) be extradited to Greece to serve a sentence of 22 years’ imprisonment imposed upon him by a court in Athens following his conviction of sexual offences against a young boy.[2]I am grateful for the assistance the court has received from the written and oral submissions of Mr Brandon on behalf of the Appellant, and Mr Stansfeld on behalf of the Respondent.[3]The Appellant is now 37 years old. He was born in Iran but in 2006 he left that country and travelled to Greece, where he sought asylum. In 2007 he entered the UK illegally, using false identification documents. He was convicted of an offence in that regard and sentenced to imprisonment for 17 months. He was thereafter deported to Greece. Whilst living there, in 2009, he was accused of sexual offences against a boy aged 8. The Appellant knew the boy’s mother, and had offered to look after him for a short time when the mother had to meet an urgent commitment. When she returned to her home, her son immediately complained about a sexual assault which he alleged had happened in her absence.[4]A police investigation into that complaint began. The Appellant engaged a legal representative in Athens and was interviewed by the police. He was told he would be prosecuted and must not leave the country. He nonetheless did leave, and in 2010 he again entered the UK illegally. He escaped detection on entry, but in 2012 was arrested when trying to leave UK using false documents. He was again convicted of an offence in that regard, and was sentenced to imprisonment for 6 months.[5]In July 2013 the Appellant was tried in his absence by a court in Athens. He was represented by a lawyer. The complainant did not give oral evidence: his account of events was before the court in the form of an initial statement made on 25th May 2011 to an investigator, and hearsay reports by his mother and other adults as to what the boy had said to them about the relevant events. A number of adult witnesses gave evidence, including two who were called for the defence. It is apparent from the material before us that the court also read a number of documents, but copies of these were not before Judge Riddle and are not before this court. As a result, we have at best an incomplete knowledge of the evidence in the proceedings in the Greek court. The Appellant was convicted of two offences and was sentenced to a total of 22 years’ imprisonment. It is not necessary to go into the details of the offending. It is however appropriate to note that comparable offending in this country would not result in a sentence as severe as 22 years’ imprisonment: it would be likely to result in a custodial sentence of less than half that length.[6]The Appellant’s Greek lawyer has given notice of appeal against both conviction and sentence. The appeal is due to be heard in February 2016.[7]On 4th March 2013 the Court of Appeal in Athens issued a European Arrest Warrant against the Appellant. That warrant was certified by the National Crime Agency on 23rd July 2014. The Appellant was arrested on 8th September 2014 and has remained in custody since that date.[8]Before Judge Riddle, the Appellant resisted extradition on four grounds, which can be summarised as follows: i) He claimed that he was not deliberately absent from his trial. Only hearsay evidence was given of the complainant’s account, and there was no opportunity for the complainant to be cross-examined. An appeal would not afford any such opportunity because the boy would not be called to give oral evidence. It was submitted that in those circumstances the Appellant should be discharged in accordance with section 20(5) and (7) of the Extradition Act 2003. ii) It was submitted that the trial was unfair because the decisive evidence on which the Appellant was convicted was hearsay evidence as to what the boy had told various adults. Under Greek law and procedure a child of the boy’s age does not generally give oral evidence or face cross-examination, and the same position would obtain at any retrial or appeal. The Appellant therefore faces a real risk of flagrant breach of his Convention rights under article 5 and/or article 6. iii) The sentence of 22 years’ imprisonment was grossly disproportionate in length and constituted a violation of his Article 3 rights. iv) The Appellant was likely to serve his sentence in Korydallos Men’s Prison, Athens, where conditions are so poor, and overcrowding so severe, that there is a real risk he would be subject to inhuman and degrading treatment in breach of his article 3 rights.[9]The Appellant adduced before Judge Riddle the expert evidence of Professor Tsitselikis as to conditions in Korydallos Prison. Judge Riddle referred to that evidence at length in his detailed written judgment. As to the national prison population in Greece, it was to the effect that the prison estate has a capacity somewhat below 10,000 prisoners but was currently holding about 13,500. As to Korydallos Prison, it was to the effect that the prison was originally designed to hold 700 prisoners but was currently holding about 2000. Most cells – originally designed for a single prisoner - had 9.5 square metres of free space, but they were occupied by two, three or even four prisoners. In some cells, the free space amounted to less than 2 square metres per prisoner, and it was very likely that every prisoner would have less than 3 square metres. Each cell contains a lavatory, positioned very close to one or more of the beds and without a door. There were substantial periods of the day when prisoners were able to leave their cells. Although locked in at night, they were able to move freely around wings between 0800 – 1200 and 1500 – 2100. They had access to outdoor exercise for two hours per day.[10]Professor Tsitselikis referred to a series of reports by the European Committee for the Prevention of Torture (“CPT”) in which prison conditions in Greece generally, and at Korydallos Prison in particular, were roundly criticised as unacceptable. The most recent visit by the CPT had been in 2013. The report, like its predecessors, referred to a lack of adequate hot water or heating of the cells in winter, insufficient food of poor quality, filthy and inadequate bedding, infestations of lice and cockroaches, overflowing rubbish bins and inadequate medical care. The report also spoke of the very low numbers of prison guards and the resultant lack of control of violence and intimidation amongst prisoners. There had recently been a serious riot at Korydallos Prison, involving loss of life: this was relied upon by the Appellant as showing the inability of the prison guards to maintain control over the prisoners.[11]Judge Riddle accepted that the evidence of Professor Tsitselikis deserved great respect as “a scholar and jurist who is clearly a strong advocate for the improvement of prison conditions in Greece”. In some respects however Judge Riddle found that the Professor’s views – honest and well-founded though they are - had caused him to “overstate the negatives and fail to mention any positives”. Indeed, Judge Riddle quoted one answer in cross-examination in which Professor Tsitselikis said “I do not reflect any positives because I have been asked to show violations of article 3”. Moreover, Professor Tsitselikis had not personally visited the prisons, and so was necessarily reliant upon other sources of information.[12]There was also before Judge Riddle evidence relating to two written assurances given by the Greek Minister of Justice Transparency and Human Rights. These assurances related to the Appellant and a number of other named persons whose extradition had been requested.[13]The first assurance, dated 12th February 2015, said – “… the Ministry of Justice Transparency and Human Rights confirms that the organisation and operation of Greek prisons is governed by the relevant international and European penitentiary rules and principles. In any case the Greek state shall ensure the protection of human rights, of all persons under detention in Greek prisons, in conformity with the international, European and national rules of law. The Ministry of Justice Transparency and Human Rights through its competent agencies is consistently ensuring the adequate hygiene standards within the detention establishments and shall continuously provide the detainees with the necessary health and medical care, on a level equivalent to that enjoyed by the general population of the country. In this context, the Ministry of Justice Transparency and Human Rights confirms that, in the case of the EAW enforcement regarding [the Appellant], the aforementioned assurances will be honoured and that the competent authorities will take care of resolving possibly special issues which may occur during his detention in Greek prisons.”[14]The second assurance, dated 23rd March 2015, was given in response to further enquiries made by those instructing Mr Stansfeld. It read – “… that in addition to the assurances already given in these cases, we state that each of the Requested Persons will be accommodated in cells where they will have personal space in excess of three square metres not including space taken up by cell furniture. Further, they will benefit from this assurance for the duration of their time in detention in Greece”[15]The Appellant himself gave evidence before Judge Riddle. He said he had initially been concerned because his lawyer in Greece had warned him he was at risk of being convicted and receiving the maximum 25 years sentence. He had nonetheless intended to return to Greece to stand his trial, and indeed was trying to do so when detained in 2012. Thereafter he was unable to leave this country because he had no legitimate travel documents.[16]Judge Riddle rejected that evidence. He found as a fact that the Appellant did not intend to return to Greece to stand trial:
“I am sure he was a fugitive, doing everything he could to avoid the trial and now the appeal in Greece. He knew of the hearing and deliberately absented himself from it”
[17]No attempt has been made to appeal against that finding. It follows that Judge Riddle was correct to proceed in accordance with the provisions of section 21 of the Extradition Act 2003. Where an extradition court finds that a requested person who has been convicted in his absence was deliberately absent from his trial, section 21(1) provides that the court must then decide “whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998”. If it would be compatible, the court must “order the person to be extradited to the category 1 territory in which the warrant was issued.” If extradition would not be compatible with the Convention rights, the person must be discharged.[18]Judge Riddle considered first the argument on behalf of the Appellant under article 3. He accepted the submission that, notwithstanding some reduction in the overall Greek prison population, Korydallos Prison continued to suffer serious overcrowding. He noted the decision in Herdman [2010] EWHC 1533 (Admin). He said of Korydallos Prison:
“So, serious overcrowding remains. Some prisoners do not have proper beds. Vermin are endemic. Medical facilities are very poor and understaffed. Staffing levels generally mean that control of prisons in some cases ceded to prisoners. A recent deadly riot confirms the fears expressed by CPT, and the evidence about riots referred to in Herdman. Toilet and hot water facilities remain unacceptable. An important factor to take into account when considering overcrowding is how long prisoners are locked in their cells. In some jurisdictions it can be 23 hours, and that – combined with very cramped conditions – can breach article 3. However in Greece prisoners are out of their cells from dawn to dusk (the hours are set out above) and daily exercise is available. In Korydallos prisoners are back in their cells for three hours around lunchtime. Nevertheless, this time out of the cell makes a huge difference. Over the years there have been a good number of extraditions to Greece. There are two examples of a court of first instance in this jurisdiction declining to send to Greece on article 3 grounds. However these cases are clearly fact specific to the circumstances of the requested person. There are also ECHR cases, but as yet no pilot judgment. Article 3 breaches are universally abhorred, yet I have not been told of any country that refuses to extradite to Greece on this ground. There is international consensus that prison conditions in Greece are appalling and unacceptable. Bodies such as CPT and ECtHR play a vital role in trying to improve those conditions. However, there is no international consensus that prison conditions in Greece breach article 3, so that extradition should not take place. The evidence before me leads me to the same conclusion as that reached by the High Court in Herdman. There have been small improvements, but also some things, such as staff levels, are worse. Conditions are deplorable, but fall short of the high barrier required by article 3.”
[19]Judge Riddle observed that in view of that finding, the assurances given by the Greek Minister were not necessary to his decision. He nonetheless made clear that he had no hesitation in accepting them. The second assurance was the more valuable of the two because it is specific to this case. He considered Othman v UK (2012) 55 EHRR 1 and Ilia v Greece [2015] EWHC 547. He concluded:
“I attach great weight to the fact that Greece is a western democracy, subject to the rule of law, a signatory to the ECHR and a party to the two framework decisions. The assurance has been given at ministerial level. There is no concrete cogent evidence that undermines it. I accept it will be acted upon as stated.”
[20]Judge Riddle then considered the arguments on behalf of the Appellant in relation to articles 5 and 6. He said that he was in no position to re-examine a trial in another jurisdiction with any degree of accuracy. In this jurisdiction, hearsay evidence can be the decisive evidence founding a conviction. He concluded that the evidence before him fell far short of establishing a flagrant denial of justice in the Greek proceedings. Nor could it be said that the sentence - harsh though it was by the standards of this country – shocked the conscience so as to amount to a violation of article 3.[21]For those reasons Judge Riddle concluded that extradition would be compatible with the Appellant’s Convention rights, and ordered accordingly.[22]The Appellant now appeals against that decision on the following grounds: i) Judge Riddle “erred in finding that there was not a real risk of proscribed ill-treatment were the Appellant to be extradited to Greece where he would be incarcerated in Korydallos Men’s Prison to serve a 22 year sentence of imprisonment, and that accordingly his extradition was compatible with his article 3 ECHR rights”; ii) Judge Riddle “erred in finding that the Appellant would not suffer a flagrant denial of justice by reason of the refusal of the court of trial and appeal to permit the Appellant to examine the sole witness on whose evidence his conviction was decisively based, and that accordingly the Appellant’s extradition was compatible with his article 5 and 6 ECHR rights.”[23]The powers of this court on appeal are set out in section 27 of the Extradition Act 2003, which provides – “(1) On an appeal under section 26 the High Court may—(a) allow the appeal;(b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;(c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must— (a) order the person's discharge; (b) quash the order for his extradition.” (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (a) order the person's discharge; (b) quash the order for his extradition.”[24]The basis on which this court should proceed when deciding an appeal is one of review: see Polish Judicial Authorities v Celinski & others [2015] EWHC 1274 (Admin), following the earlier decision in Belbin v Regional Court of Lille, France [2015] EWHC 149 (Admin). In the absence of fresh evidence, a challenge to a decision on proportionality will only succeed if the judge misapplied relevant legal principles, or made a finding which no reasonable judge could have made, or took into account an irrelevant fact, or failed to take into account a relevant fact, or reached an overall conclusion that was perverse or irrational. The Lord Chief Justice in Celinski emphasised that the single question for the appellate court is whether or not the judge made the wrong decision. Findings of fact must usually be respected, especially if evidence was heard. The judge’s reasons for the proportionality decision must be considered with care, but the focus must be on whether the decision itself was wrong.[25]As a preliminary point in the appeal, Mr Brandon applied to adduce further evidence in the form of an addendum report by Professor Tsitselikis. Mr Stansfeld raised no objection to the report insofar as it updates the Professor’s previous evidence by providing latest statistics about the prison population in Greece, but objected to the late addition of evidence going beyond those factual statements. In my view, admission of any other part of Professor Tsitselikis’s addendum report was neither necessary nor permissible: the Appellant was entitled to proceed on the footing that there was no evidence – other than the updating of the evidence as to the size of the prison population – that conditions at Korydallos Prison were any better than they had been at the time of the hearing before Judge Riddle.[26]After that lengthy introduction, I turn to the first – and principal - ground of appeal, which is founded upon the conditions in which it is said the Appellant would serve his sentence at Korydallos Prison. I begin by summarising the relevant legal principles.[27]The starting point is the decision of the House of Lords in R (Ullah) v Special Adjudicator [2004] 2 AC 323 as to the test to be applied. Lord Bingham of Cornhill there reviewed the Strasbourg jurisprudence in relation to extradition and at paragraph 24 concluded – “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”.[28]A number of cases have considered how that test may be satisfied in a case in which extradition is resisted on grounds which relate to the likely conditions of detention in the requesting state. The effect of those decisions was summarised in paragraphs 49 and 50 of the judgment of Aikens LJ in Elashmawy v Italy [2015] EWHC 28 (Admin), which I think it appropriate to quote in full:
“49 A number of general propositions are very well established by ECtHR case law and accepted by the courts of England and Wales in relation to Article 3 and its application to prison conditions in the context of extradition. We think that they can be summarised as follows: (1) the extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue, which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought. (2) If it is shown that there are substantial grounds for believing that the requested person would face a “real risk” of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes “absolute” rights, but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is “relative”. (5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured. (6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant. (7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 square metres, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3: (see the ECtHR judgment of Ananyev v Russia (Applications Nos 425/07 and 60800/080910) of January 2012, referred to at [9] of Florea v Romania [2014] EWHC 3538 (Admin) (“Florea”). (8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements. 50 The legal principles with regard to extradition, prison conditions in Contracting States to the ECHR and Member States of the EU and whether Article 3 is engaged, have been recently restated by this court in Krolik (and others) v Several Judicial Authorities in Poland [2013] 1 WLR 490 . There is no need to reconsider earlier authorities in this area. We can summarise the relevant principles as follows: (1) member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR , in the absence of clear, cogent and compelling evidence to the contrary. (2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption and to establish a breach of Article 3 by the EU member state (our emphasis) will have to be powerful. However, Mr Fitzgerald, for the First Interested party, questioned whether a requirement of “something like an international consensus” (see [7] of Krolik ) is a useful test to apply on the question of whether the presumption had been rebutted.”
[29]The reference to paragraph 7 of Krolik is a reference to a passage in which Sir John Thomas P, considering the type of evidence needed to rebut the presumption that an EU state will abide by its Convention obligations, said – “…something approaching an international consensus is required, if the presumption is to be rebutted.”[30]Later in his judgment in Elashmawy, in a passage at paragraph 68 on which Mr Brandon relies, Aikens LJ said – “The effect of these decisions is that a breach of Article 3 is likely only to be found if either there are systemic violations in the institutions of a Contracting State that is under attack or there is proof of individual problems sufficient to support a conclusion of substantial grounds for a belief in a real risk of Article 3 ill-treatment despite the starting point of the presumption of compliance in an EU state”[31]In Florea v Romania [2014] EWHC 2528 (Admin) a Divisional Court reviewed the case law in relation to the specific issue, in this context, of prison overcrowding. It noted that the reports of the CPT into prisons in various countries recommended a desirable standard of 4 square metres of living space per person in multi-occupancy accommodation, especially in pre-trial detention. It further noted that decisions of the ECtHR had found that “where the applicants have at their disposal less than three square metres of floor surface, the overcrowding must be considered so severe as to justify of itself a finding of a violation of Article 3”.[32]The court in Florea concluded that where a detainee has less than three square metres of personal floor space there is a strong presumption of a violation of Article 3 without any other aggravating feature. There is not, however, an inevitable violation: other factors, such as the duration of the detention or other features of the relevant prison regime, may mitigate what might otherwise be a violation. At paragraphs 35 and 36, the court said – “35. We agree with the decision of this court in Achmant [2012] EWHC 3470 that there is no inflexible international rule established by the Strasbourg jurisprudence prohibiting return to a country whenever there is a reasonable likelihood that a prisoner will serve any time in a cell with less than three metres of personal space. 36. Nevertheless, we also accept the submission of [counsel for the appellant] that where there is a real likelihood that a prisoner will serve a sentence in personal space of less than three metres, a serious issue of breach of Article 3 arises, without the need for other aggravating features and despite the good faith of the government in seeking to address a problem of historic inadequacy in the prison estate.”[33]It may be noted that in Florea, the court concluded that extradition of the requested person would breach his human rights if he were to serve his sentence in a prison where he had two square metres or less of personal space.[34]Turning to the relevance of assurances such as those given by the Greek Minister in this case, the ECtHR in Othman v UK (2013) 55 EHRR 1 set out the considerations which are relevant when assessing whether reliance can be placed on an assurance given by a receiving state as to the treatment of a returning deportee. In Badre v Court of Florence, Italy [2014] EWHC 614, and in Ilia v Appeal Court in Athens [2015] EWHC 547, the Divisional Court applied those considerations to cases concerning the prison conditions in which a requested person is likely to be detained. Those decisions establish that if the court is satisfied that the presumption of compliance with article 3 by a member state has been rebutted in a particular case, an assurance given by the requesting state may be sufficient to “dispel doubts” about whether there are substantial grounds to believe that the requested person will be detained in conditions which violate his article 3 rights. The court noted that when an assurance is given by a responsible minister or responsible senior official of a Council of Europe or EU state, there must be a presumption that the assurance will be complied with unless there is cogent evidence to the contrary.[35]Turning now from statements of principle to the circumstances of this case, Mr Brandon submits that there is here clear and cogent evidence to rebut the presumption of compliance with Convention obligations, and to make good the contention that the Appellant, if extradited, will be at real risk of being subject to a violation of his article 3 rights. As is accepted by the Respondent, the Appellant is likely to serve his sentence, or a substantial proportion of it, in Korydallos Prison. Mr Brandon submits that there is a substantial body of evidence, coming from different sources but all painting a consistent picture, that conditions in that prison are, and have for many years been, unacceptable, in particular – but not solely – because of overcrowding. The sources on which he relies include the CPT’s Public Statement Concerning Greece made on 15th March 2011; a series of CPT reports (2008, 2009, 2010, 2012 and 2014); a UN Special report on torture 2011; the Greek Prisons Ombudsman Report 2013; and US State department reports 2012, 2013 and 2014. He particularly points out that the CPT reports have noted the regrettable failures of the Greek government to address the recommendations made by the Committee in its earlier reports, starkly summarised as follows in the 2012 report (at p28):
“The CPT has been highlighting the necessity for the authorities to take action to drastically reduce the occupancy levels in the prison since 1993.”
[36]Whilst accepting that the Greek government wishes to improve conditions, Mr Brandon submits that it has been unable to do so thus far and that there is at present no realistic prospect the position will improve. He points to Judge Riddle’s acceptance (in the passage I have quoted at paragraph 18 above) that in some respects conditions at the prison are worsening. He submits that any improvements as the Greek authorities may have been able to achieve recently have been no more than ad hoc responses to crises, which have not addressed the underlying problems. He points out that the Appellant faces the prospect of having to endure what are generally recognised to be deplorable conditions for very many years. He therefore argues that Judge Riddle was wrong to find that extradition would be compatible with the Appellant’s article 3 rights.[37]In particular, Mr Brandon argues, Judge Riddle wrongly adopted a touchstone of whether there was “an international consensus that prison conditions in Greece breach article 3” and failed to give due weight to the substantial body of evidence as to the unacceptability of conditions at Korydallos Prison.[38]I can deal with that specific point briefly. It seems to me, with respect to Mr Brandon, that it is based on a misreading of the relevant part of Judge Riddle’s ruling. Judge Riddle did not, in my view, lose sight of the need to consider all the evidence: he indicated, as one highly relevant consideration, that there was no international consensus to the effect that requested persons should not be extradited to Greece because of the prison conditions they would face.[39]As to the assurances given by the Greek Minister, Mr Brandon’s primary submission is of course that they do not arise for consideration. But if they do, he submits in the alternative that they should be given little weight. He argues that in Ilia the assurances were specific to the prison conditions in which the requested person would be held, and provided full assurance as to the conditions in which she will be held. He submits that in contrast, the assurances here are neither specific nor full, and can offer no real assurance as to the conditions which will prevail throughout a prison sentence as long as 22 years. He invites the court to regard the first assurance in particular as, at best, a statement of honest but unrealistic aspiration.[40]In response, Mr Stansfeld submits that whilst there are a number of legitimate criticisms of the conditions in Greek prisons, it is overcrowding which lies at the heart of all of the problems. He therefore draws attention to a series of measures recently taken by the Greek authorities which have achieved a significant reduction in the national prison population. He relies on the evidence, which was before Judge Riddle, contained in the Greek government’s response to the CPT’s 2014 report. This indicates that the measures taken include the conversion of rural detention facilities to enable them to take prisoners from closed prisons, an early release scheme and greater use of community service as an alternative to custody. He notes that the most recent CPT report showed that Korydallos Prison held more than 2,300 prisoners although only intended for 840. But the latest figures provided by Professor Tsitselikis (in his supplementary report) showed that the national prison population was 9,758 (as compared with 12,759 in the latest CPT report), and the Korydallos population was 1,436: still substantially more than the intended population, but a marked sign of improvement. In those circumstances, Mr Stansfeld submits, Judge Riddle was entitled to conclude that the recent measures have had a real effect on the prison population and to find accordingly that the Appellant does not face a real risk of violation of his article 3 rights if extradited.[41]Mr Stansfeld submits that on a rough calculation it would appear that prisoners at Korydallos will have 2.6 square metres of free space: less than 3 square metres, and therefore capable of giving rise to an article 3 violation, but to be considered in conjunction with the long periods when prisoners are able to leave their cells. It may well be, as Mr Brandon suggests, that there is only limited communal space in the prison, and that accordingly a prisoner who leaves his cell may not be able to enjoy any great freedom of movement. Nonetheless, Mr Stansfeld argues, Judge Riddle was entitled and correct to regard time confined to an overcrowded cell as significantly more serious than time when not so confined. Although there clearly is a serious problem of overcrowding, and conditions in the prison are very poor, he submits that Judge Riddle was entitled to reach the decision he did.[42]Mr Stansfeld submits accordingly that it was not necessary for Judge Riddle to consider the Minister’s assurances. But if it be necessary to look to the assurances, his alternative submission is that they resolve the central problem of overcrowding by making it clear that the Appellant – wherever he may be held during his sentence – will have at least 3 square metres of space. He submits that whilst that assurance may not go quite as far as the Appellant would wish, it is not for that reason to be treated as unreliable. On the contrary, it is an assurance by a Minister, specific to the Appellant, which can be regarded as reliable.[43]Having considered these competing submissions, my conclusions as to the first ground of appeal are as follows.[44]There is no doubt that the evidence before Judge Riddle painted a very bleak picture of conditions at Korydallos Prison. He acknowledged that was so, and clearly gave full weight to the evidence on which the Appellant relied. He was nonetheless entitled, in my view, to conclude that the evidence fell short of the high threshold which the Appellant must pass, and that the Appellant had failed to show a real risk that if extradited he would be subject to inhuman or degrading treatment.[45]In particular, whilst it is apparent that the space generally available to a prisoner at Korydallos is likely to be less than 3 square metres, and is therefore capable in itself of amounting to a breach of article 3, Florea makes plain that there is no inflexible rule to that effect. Judge Riddle was entitled to set against that fact, and to give considerable weight to, the evidence as to the amount of time each day when prisoners are not confined to their cells. Having considered – as he plainly did – the cumulative effect of the evidence about conditions in Korydallos Prison, he was entitled to conclude that the Appellant had failed to make out the very strong case which is required to make good an allegation of a real risk of violation of article 3. The evidence clearly raised a very serious issue as to breach of article 3, and it may be that the Appellant did not fall far short of surmounting the high threshold; but Judge Riddle’s conclusion was one which he was entitled to reach, and Mr Brandon’s submissions have not persuaded me of any error in the judge’s approach or decision.[46]Furthermore, when the additional evidence of Professor Tsitselikis which is now before us by agreement is taken into account, the evidence as a whole shows a recent significant reduction in the prison population, both nationally and with specific reference to Korydallos. It may be, as Mr Brandon argues, that the reduction has been achieved by a series of ad hoc measures; but they have, on the evidence, been effective measures in ameliorating an acknowledged problem of severe overcrowding. Quite apart from the reduction in the prison population, that acknowledgement of the problem is in my view significant when considering, for example, the CPT’s 2011 Public Statement Concerning Greece, which criticised the Greek authorities for a continuing failure to appreciate the true position in their prisons. It would in my view be paradoxical if, when the evidence shows such an improvement, the court were now to find that in the circumstances of this case, detention in Korydallos Prison would breach the Appellant’s article 3 rights.[47]Although Mr Brandon’s submissions were principally directed to the issue of overcrowding, he also submits forcefully that the cumulative features of the prison conditions amounted to a clear breach of the Appellant’s article 3 rights. Amongst other points, he relies on the duty of the requesting state to protect a prisoner against violence at the hands of other prisoners. In R on the application of Georgiev v Sofia Prosecutor’s office [2012] EWHC 3979 (Admin) it was held that for such an argument to succeed, there must be a real risk of such violence and in addition it must be shown that the state authorities are not able to provide reasonable protection. Mr Brandon submits that those requirements are met here, because the evidence shows that the understaffing at Korydallos Prison is such that there is no realistic prospect of controlling violence amongst prisoners. In support of that submission, he points to the fact that there was an outbreak of serious rioting at the prison in May 2015, in which 2 men were killed and others seriously injured. This however in my view falls well short of showing that there is a real risk to the Appellant of being subjected to unlawful violence against which the Greek state would fail to protect him. I agree with Mr Stansfeld’s submission that there is no evidence that the Appellant faces a real risk of that nature.[48]In any event, even if I had been persuaded that Judge Riddle was wrong in his conclusions about whether detention in Korydallos Prison would generally amount to a breach of Convention rights, he was in my view plainly correct in his concluding that the Appellant’s specific position was protected by the Greek Minister’s assurances. I cannot accept Mr Brandon’s submission that those assurances are insufficiently specific: on the contrary, both apply to the Appellant and the second clearly states the nature of the detention which he as an individual will face. Nor can I accept that the assurances should be given only limited weight: on the contrary, they are assurances given by a responsible Minister in the government of an EU state, and in my judgment there is no evidence at all – still less any cogent evidence – to rebut the presumption that they will be complied with. Judge Riddle’s ruling was therefore entirely in accordance with the decision in Othman and subsequent cases, to which I have referred. The fact that no specific prison is named in the assurances does not assist the Appellant, because the second assurance expressly relates to the full duration of the Appellant’s detention and therefore must relate to whichever prison he may be sent to. Indeed, if it were specific to Korydallos Prison, and not couched in the terms it is, it might be said that it would afford no protection against a transfer to an overcrowded cell in a different prison.[49]I therefore reject the first ground of appeal.[50]I turn to the second ground of appeal, which contends that extradition would be incompatible with the Appellant’s article 6 right to a fair trial.[51]Mr Brandon submits that the decision not to permit the child complainant to give oral evidence and face cross-examination rendered this Appellant’s trial unfair, and will render the appeal (which will be in the form of a retrial, at which the prosecutor has indicated that the child will not be called) equally unfair. He accepts that the test in extradition cases requires him to show that he will be the victim of a flagrant denial of justice if returned to Greece. He also accepts that in this country, there is no absolute right of an accused to cross-examine even a decisive witness. But, he argues, the child appears to have been physically well, and there was no apparent reason why he could not have given oral evidence. He submits that there was an inflexible application of a rule excluding live testimony by a child witness. He submits that the procedure adopted in the Greek court would contravene the principles applicable to a trial in this country.[52]Mr Brandon challenges the reasons given by the Greek court for refusing the application to call the child. That application was made by the child’s mother, who was a party to the concurrent civil proceedings (which were heard at the same time, and in which the child’s mother was ultimately awarded a sum by way of damages). It was supported by the advocate representing the Appellant in the criminal proceedings but was opposed by the prosecution. It appears from the court record that there were two reasons for the court’s decision. First, there was a procedural deficiency in the application. The relevant provision of the Greek law provides that where a minor has been questioned by an investigator, the court may only permit questioning “if supplementary questioning is required”. It seems that this application wrongly failed to observe that limitation, and made an unsustainable request for the child “to be called and questioned”. Secondly the court held that questions about the alleged acts would be harmful for the child, and would result in his mental discomfort, when he has already been questioned before the investigator.[53]In my judgment, there are a number of fatal flaws in this ground of appeal.[54]First, it does not take account of the trial process as a whole. True it is that the prosecution had the benefit of hearsay evidence; but so too did the Appellant, for the report of proceedings shows plainly that a number of witnesses – including some called for the prosecution and some called for the defence – were able to recount what the Appellant had said to them by way of denial of the allegation, and also to give hearsay evidence as to comments by the boy’s father to the effect that the boy was prone to tell stories. Although the complainant could not be cross-examined, and his reliability therefore could not be tested in that way, there was other evidence bearing on his reliability. For example, there was evidence which showed that the boy made his complaint to his mother as soon as she returned home; and there was evidence for the court to evaluate as to other possible reasons for the child to make his allegations, including evidence as to whether he had access to pornography kept by his father.[55]Secondly, the court has not been provided with any detailed information as to the provisions of the Greek law applicable to this trial. It appears that there is a general rule against a child of this young age giving oral evidence or facing cross-examination, but it also appears that application can be made to depart from that general rule. Such application was made in this case, albeit in the context of the civil proceedings. The record of proceedings makes clear that the court heard the submissions of all parties to both the criminal and the civil proceedings and made a reasoned decision refusing the application. Thus it does not appear that this was, as suggested, a case of an automatic application of an inflexible rule. It was, so far as information before us shows, a proper application by the Greek court of its rules of evidence and procedure.[56]Thirdly, it must be remembered that on Judge Riddle’s finding, the Appellant was voluntarily absent from his trial and thus chose to deny himself the opportunity to provide instructions at his trial or to give his own oral evidence denying the allegation.[57]As to the sentence which was imposed, I repeat that the sentence of 22 years’ imprisonment was much more severe than would be imposed in comparable circumstances by the courts in this country. However, the offending was on any view serious: this is not a case, such as Miglans v Prosecutor General of the Republic of Latvia [2014] EWHC 2659 (Admin), of a substantial mandatory term for what would be viewed by the courts of this country as a comparatively minor offence. The Greek nation is entitled to form its own view as to how sexual offending against children should be punished. It is not for this court to try to impose UK sentencing practice on a country where very different considerations may apply. As the Lord Chief

Justice said in Celinski at paragraph 13:

“(ii) Each member state is entitled to set its own sentencing regime and levels of sentence. Provided it is in accordance with the Convention, it is not for a UK judge to second guess that policy. The prevalence and significance of certain types of offending are matters for the requesting state and judiciary to decide … (iii) It will therefore rarely be appropriate for the court in the UK to consider whether a sentence was significantly different from what a UK court would have imposed, let alone to approach extradition issues by substituting its own view of what the appropriate sentence should have been”
[58]It appears from the record of proceedings that, to express it in the terms which would be used in this country, the Greek court took a starting point of 15 years and increased it to 22 years because of the aggravating features. That implies that the court was working within a recognised scale of sentencing and not simply imposing an arbitrary sentence. There is a similar implication in the evidence volunteered by the Appellant to Judge Riddle, to the effect that he had initially been advised he was at risk of a sentence of 25 years.[59]In those circumstances it is in my judgment impossible to say that Judge Riddle was not entitled to conclude, as he did, that the Appellant would not suffer a flagrant denial of justice if extradited. The reality, in my view, is that the Appellant can show no more than that the Greek criminal law involves different rules of evidence and procedure, and results in a heavier sentence in a case such as this, when compared to the courts of this country. That falls well short of showing that the Appellant faces a flagrant risk of injustice. There is in my judgment no basis for challenging Judge Riddle’s decision: on the contrary, I regard it as entirely correct.[60]I therefore reject the second ground of appeal.[61]It follows that for the reasons which I have given, there is no question in the proceedings below which the judge ought to have decided differently. Such further evidence as has been received in this court would not have resulted in the judge deciding any question differently. He was entitled to conclude that extradition would be compatible with the Appellant’s Convention rights. Having reached that conclusion, he was required to order extradition.[62]I would therefore dismiss this appeal. If my Lord agrees, I would order that the appeal be dismissed, and that such order be made as to costs as is appropriate after consideration of any written submissions by the parties.[63]I agree.

Cited in 2 later judgments