Armando Beja Dias Andrade v Central Criminal Court of Almada (Portugal) [2025] EWHC 1200 (Admin)

[2025] EWHC 1200 (Admin)Case No AC-2024-LON-000163
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 May 2025
Before
LORD JUSTICE HOLROYDEMR JUSTICE JOHNSON
Between
ARMANDO BEJA DIAS ANDRADEAppellantCENTRAL CRIMINAL COURT OF ALMADA (PORTUGAL)Respondent
David Rhodes KC (instructed by EBR Attridge) for AppellantFlorence Iveson (instructed by CPS) for RespondentHearing Hearing date: 1 May 2025
Approved Judgment.............................
[1]The appellant appeals against an order for his extradition to Portugal to serve a sentence of 7 years’ imprisonment for two offences of robbery. The order for his extradition was made by District Judge Clews (“the judge”) on 11 January 2024.[2]It is submitted on behalf of the appellant that the judge was wrong to order his extradition and that he should have discharged him on the grounds that:(1) Extradition would be oppressive or unfair by reason of the passage of time.(2) Extradition is incompatible with the right to respect for private and family life under article 8 of the European Convention on Human Rights (“ECHR”).(3) Extradition is incompatible with the right to life under article 2 ECHR, having regard to the risk to the appellant from members of criminal gangs in Portugal.(4) Extradition is incompatible with the prohibition of inhuman and degrading treatment under article 3 EHCR, having regard to prison conditions in Portugal.(5) Extradition is incompatible with the right to freedom and the right to a fair trial under articles 5 and 6 ECHR, because there has been a flagrant denial of justice.[3]The appellant seeks to rely on additional evidence that was not before the judge, comprising(a) a speech and language therapy support plan for the appellant’s daughter, and(b) updated reports on prison conditions in Portugal, including reference to a December 2023 report of the European Committee for the Prevention of Torture (“CPT”) based upon a visit to Portugal in May-June 2022. The respondent says that the test for admitting fresh evidence is not satisfied but does not object to us considering the material to determine whether it can affect the outcome of the appeal. The respondent, for its part, seeks to rely on the response of the Portuguese authorities to the CPT report.[4]This is the judgment of the court, substantially composed by Johnson J. The facts The appellant

The facts

[5]The claimant is 35 years old. He was brought up in Portugal. He says he was a member of a gang, and he has a tear-drop tattoo that signifies his gang membership. He now lives in Leeds with his partner and their 3½-year-old daughter. He has two other children. One lives in Portugal. He does not have an ongoing relationship with the other. According to a statement from the appellant’s partner filed since the decision of the judge, her daughter may have special needs and may have either autism or attention deficit hyperactivity disorder. The appellant’s partner has exhibited a speech and language therapy support plan which indicates that her daughter’s receptive and expressive language are both significant areas of difficulty for her chronological age. It also refers to her enjoying playing with her father. The child was placed on a waiting list for sessions to develop her language and play skills.

The offences

[6]The warrant relates to two offences of robbery in 2009 when the appellant was 19 years old. They were committed on the same occasion, in conjunction with two accomplices, Telmo Pina (the oldest of the three) and Fábio Guerreiro (also aged 19), at a service station. Two employees were present. The appellant brandished an imitation firearm. Cash totalling €688 was stolen, together with a gold bracelet. At the time, the appellant and Fábio Guerreiro were of previous good character. Telmo Pina had previous convictions for robbery and other offences.

The car accident

[7]The claimant says that on 15 January 2011 he was involved in a car crash in which three people were killed. His account is partially corroborated by a news article. He says that he was blamed for the crash by a criminal gang and was subject to threats. About 20 members of the gang came to his house armed with shot guns. He hid in a cupboard and was not found. He then moved between the homes of different family members, and gang members attended those homes on at least two occasions. There is some support for the claimant’s account from his sister.

The proceedings in Portugal

[8]In May 2011, in the course of an investigation into the robberies, the appellant signed a document acknowledging that he was not permitted to leave his registered address for more than 5 days without notifying a new address, and that he was required to attend court. At a preliminary court hearing he admitted his involvement in the offences and named the other two offenders. He was released on bail, subject to conditions which included a prohibition on leaving Portugal.[9]The appellant was notified of the trial date by way of a letter sent to the address he had provided. His lawyer was also informed of the trial date. The trial took place in March 2014. By that point, the appellant had come to the United Kingdom. He did not attend the trial, but he was represented by a lawyer. Fábio Guerreiro gave evidence in which he admitted his participation in the robberies and implicated the appellant and Telmo Pina. All three men were convicted.[10]The court considered the application of a youth penal regime, which is available, in the discretion of the court, where the court considers that a young offender is ashamed of what he did and is unlikely to reoffend. In respect of Fábio Guerreiro, the court found that everything pointed to the application of the regime: he had confessed, giving evidence without which the prosecution may not have been able to prove his guilt, and was repentant. In respect of the appellant, the court said that the situation was “radically different” because he had chosen not to attend court and was on the run “trying to exempt [himself] from… criminal liability.” The appellant and Telmo Pina were each sentenced to 7 years’ imprisonment. Fábio Guerreiro was sentenced to a suspended term of 4 years’ imprisonment.

The appellant’s travel to the United Kingdom

[11]The appellant says he left Portugal in late 2011 because of the threats, and that the threats have continued since he has been in the United Kingdom. He has produced text messages from May 2021 in which a friend of his said:
“Tiago Franco is coming over next week and is going to Leeds. Just so you know because he hasn’t forgotten you. And apparently he’s got strong contacts since he’s left jail… he wants your head, right?”
The appellant replied:
“Thanks for letting me know, but I thought this had been sorted out years ago. But I’m also not going to let things from the past ruin the life I’m building over here.”

The friend continued:

“He’s got troops out there. And you know you’ve grassed on too many people in the past, brother, and [people] are out to get you.”
The appellant replied: The friend continued:[12]The appellant has been convicted in this country of a public order offence (in 2012), possession of a bladed article in a public place (in 2013), battery (in 2017) and being drunk and disorderly (in 2018).[13]In February 2020, the appellant was served with court papers notifying him of the sentence and informing him that he had 30 days to appeal. He did not issue an appeal. It is now too late to do so.

Evidence as to prison conditions in Portugal

[14]The appellant relies on a report from Diana Silva Pereira who is a Portuguese lawyer. She is not, herself, an expert on prison conditions, but her report (and a more recent updated report) collates relevant information from authoritative sources, including decisions of the European Court of Human Rights, and reports of the CPT relating to their visits to Portugal in 2019 and 2022. Both the court decisions, and the CPT reports, indicate a general problem of overcrowding such that in some instances inmates have been subject to inhuman and degrading treatment by reason of limited cell space and the prison regime. There were also other problems, including sanitary facilities that were not partitioned, a lack of heating, and a lack of functioning call bells in some cells. In its response, the Portuguese authorities indicate that CCTV has been installed in 29 prisons with further installations ongoing, and landline phones were being introduced in prison cells which would fulfil the function of call bells. The response also refers to other steps taken to improve material conditions in prisons.[15]In 2018, the respondent provided an assurance that all those extradited from the United Kingdom would be detained in cells that provide at least three square metres of personal space, as well as a self-contained sanitary facility which is separated from the remainder of the cell. A further assurance, in similar terms, was given in 2024. The legal framework Passage of time

The legal framework

[16]The judge was required to decide whether the appellant’s extradition to Portugal was barred by reason of the passage of time: section 11(1)(c) of the Extradition Act 2003.[17]The appellant’s extradition was barred by reason of the passage of time if (and only if) it appeared that it would be unjust or oppressive to extradite him by reason of the passage of time since he became unlawfully at large: section 14(b).[18]Where the delay is brought about by the person fleeing the country, then the consequences of the delay are of the person’s own choice and making, and, save in the most exceptional circumstances, extradition is neither unjust nor oppressive: Kakis v Government of Cyprus [1978] 1 WLR 779 per Lord Diplock at 782-3.[19]If the appellant’s extradition was barred by reason of passage of time, then the judge was required to discharge him: section 11(3).

Convention rights

[20]Otherwise, the judge was required to decide whether the appellant’s extradition was compatible with his rights under articles 2, 3, 5, 6 and 8 ECHR: section 11(4) read with sections 20 and 21(1). If so, he was required to order the appellant’s extradition to Portugal: section 21(3). If not, he was required to order the appellant’s discharge: section 21(2).[21]There is a strong presumption that Portugal will comply with the appellant’s Convention rights: Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14 [2021] 1 WLR 2569 per Lord Lloyd-Jones at [31] - [33]. That presumption can only be rebutted by “clear, cogent and compelling evidence” comprising “something approaching an international consensus”: Krolik v Poland [2012] EWHC 2357 [2013] 1 WLR 490 per Sir John Thomas PQBD at [4] - [7]. Similarly, a court should ordinarily proceed on the basis that Portugal will act in accordance with any assurances that it has provided: Zabolotnyi at [34]. Factors relevant to assessing such an assurance include whether its terms have been disclosed, whether it is specific or general and vague, who gave the assurance and whether it binds the requesting state and the prison authorities in that state, and whether compliance with the assurance can be objectively verified: Othman v United Kingdom (2012) 55 EHRR 1 at [189].

Article 2 ECHR

[22]Extradition is not compatible with article 2 ECHR if there is a real risk to the appellant’s life and the Portuguese authorities will not provide reasonable protection: R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38 [2005] 2 AC 668 per Lord Brown at [25].

Article 3 ECHR

[23]Extradition is not compatible with article 3 ECHR if there are substantial grounds for believing that there is a real risk that the appellant will be exposed to inhuman or degrading treatment owing to the conditions in which he will be detained in Portugal: R v Special Adjudicator ex parte Ullah [2004] UKHL 26 [2004] 2 AC 323 per Lord Bingham at [91].[24]A minimum threshold of severity must be met before treatment can be regarded as “inhuman or degrading” within the meaning of article 3. It usually involves bodily injury or intense physical or mental suffering, but treatment may also be degrading contrary to article 3 ECHR if it “humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking [his] moral and physical resistance”: Muršić v Croatia (2017) 65 EHRR 1 at [98].[25]There is a strong, but rebuttable, presumption that there is a violation of article 3 if the personal space available to a detainee in a prison cell is less than 3m 2: Muršić at [124] - [125]. Where the space available is more than 4m 2 then no issue arises regarding the adequacy of cell space, although other aspects of the regime may be capable of amounting to inhuman or degrading treatment - Muršić at [140]. Where the space available is in the range of 3 - 4m 2 then there may be a violation of article 3 if the lack of space is coupled with other aspects of inappropriate physical conditions: Muršić at [139].

Articles 5 and 6 ECHR

[26]Extradition is compatible with the right to a fair trial under article 6 ECHR unless there is a flagrant denial of a fair trial: R (Ullah) v Special Adjudicator [2004] UKHL 26 [2004] AC 323 per Lord Bingham at [24]. Detention following a flagrant denial of a fair trial is incompatible with article 5 ECHR.

Article 8 ECHR

[27]Extradition is compatible with article 8 unless the interference with the right to respect for private and family life under article 8 that is occasioned by extradition outweighs the public interest in favour of extradition: HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 [2013] 1 AC 338 per Lady Hale at [8], [30] and [32].

Right of appeal

[28]There is a right of appeal against a judge’s decision to order extradition: section 26. An appeal may be allowed if the judge ought to have decided a question before him differently with the result that the requested person would have been discharged: section 27(2) and (3). An appeal may also be allowed if new evidence is available which would have resulted in the judge deciding a question before him differently, with the result that the requested person would have been discharged: section 27(2) and (4).

Proceedings before the judge

[29]The appellant was arrested on 8 September 2022. He provided an initial proof of evidence in which he gave what he now accepts was an untruthful account that he was not involved in the robberies and that he came to the United Kingdom in 2009. He provided a subsequent account in which he admitted involvement in the robberies, gave an account of the car accident and threats, and said he continues to fear a reprisal attack.[30]At the hearing before the judge, the appellant opposed an order for his extradition. He said he should be discharged because it would be unjust or oppressive to extradite him by reason of the passage of time, and also that extradition would be incompatible with his Convention rights under articles 2, 3, 5, 6 and 8 ECHR.[31]The judge heard evidence from the appellant, his partner, his sister, and Ms Pereira. The appellant said that he had come to the United Kingdom in 2011 because he was frightened that his life was at risk due to a potential reprisal attack by a gang. He said he never thought about going to the police. He accepted that he received the court papers in 2020 and that he realised he had 30 days within which to appeal. He told the judge that he had been trying to appeal against the sentence but he didn’t receive a response from the court.[32]Ms Pereira said that the appellant’s confession would have been admissible in evidence in the court proceedings, and she was at a loss to explain why it was not used. In answer to a question as to whether there was a reason for the disparity in sentence as between the appellant and Fábio Guerreiro, she said “yes, they found he ran away.”[33]The judge found that the appellant left Portugal at a time when he knew court proceedings were imminent and that he was not permitted to leave the country, and that by doing so he put it beyond the ability of the Portuguese authorities to notify him of any hearing date. He was therefore a fugitive, albeit the judge accepted that the appellant may, in part, have been motivated by a desire to move to a place of greater safety. The judge considered that there might be a degree of truth in the appellant’s evidence that he had been threatened by gang members, but he had lied and it was difficult to regard him as a reliable witness: the judge could not be sure that the appellant was telling the truth.[34]Given that the appellant was a fugitive, he could not rely on the passage of time unless there were exceptional circumstances. The judge did not consider that there were exceptional circumstances. In any event, the judge did not consider that it would be either unjust or oppressive to order extradition.[35]The judge considered that even if it was true that gangs were, after all this time, out to gain revenge, then that would be the case wherever he lived. The fact that he had not been subject to any appreciable risk in the United Kingdom was indicative of the overall (lack of) risk. The judge did not consider there was any evidence to suggest that there was a real risk to the appellant’s life, or that Portugal would be unable to protect the appellant in custody. Extradition was therefore compatible with his right to life under article 2 ECHR.[36]As to article 3 ECHR, there was an assurance (dated 2018) that the appellant would be kept in cells that provided at least three square metres of personal space, as well as a self-contained sanitary facility which was separated from the remainder of the cell. There had been findings by the European Court of Human Rights, since 2019, that prison conditions in Portugal were not compatible with article 3 ECHR. The judge did not consider that this meant that the appellant (who had the benefit of the assurance) was at risk of being subject to such conditions.[37]As to articles 5 and 6 ECHR, the judge expressed surprise that the appellant’s confession had not apparently been put before the court because that would have been to his advantage (as mitigation) if he was not contesting the proceedings. However, he was represented in the proceedings and the judge said that he could not “second guess or go behind what may have been a tactical decision.” The appellant’s trial had been conducted in accordance with the law by a properly constituted court comprising an independent and impartial tribunal. The fact that neither the prosecution nor the defence chose to put the confession before the court did not amount to a flagrant denial of justice. It was the appellant’s responsibility alone that he had not brought an appeal within the permitted time and that he was now out of time to appeal.[38]In respect of article 8 ECHR, extradition would break up the family unit, but there was no reason to believe that the appellant’s daughter would not be adequately cared for by her mother. The wider family would also do their best to assist. The judge considered that the factors in favour of extradition outweighed the appellant’s right to respect for private and family life, and that extradition would not be disproportionate.[39]We turn to the submissions made to this court, and our analysis. We shall take each of the grounds of appeal in turn. We shall summarise the submissions briefly, but we have considered all of the points made on each side. Ground (1): Passage of time Submissions

Ground (1): Passage of time

[40]David Rhodes KC, for the appellant, submits that the judge wrongly reversed the burden of proof, by finding that he was not sure that the appellant was telling the truth. He was wrong to find that the appellant was a fugitive because he found that the appellant left Portugal because he feared for his life. Alternatively, he should have found that the appellant’s fears amounted to exceptional circumstances such that he could rely on the passage of time. The appellant has built a stable family life in the United Kingdom over the last 14 years. Extradition would now be oppressive and unfair by reason of the passage of time.[41]Florence Iveson, for the respondent, argues that the appellant is a fugitive and cannot rely on the passage of time bar unless there are exceptional circumstances. He knowingly placed himself beyond the reach of legal proceedings. His motivation for fleeing does not negate his fugitive status. He has not demonstrated that he could not be protected by the police in Portugal. Extradition is neither unfair nor oppressive by reason of the passage of time.

Should the judge have decided that extradition was barred by the passage of time?

[42]When the appellant came to the United Kingdom, he knew that he was subject to criminal proceedings in Portugal and that by leaving Portugal he was in breach of the conditions of his bail and that, subject to extradition, he was putting himself beyond the reach of the Portuguese authorities. It follows that he was a fugitive, irrespective of whether he was also motivated to leave in order to avoid reprisals for the car accident and/or for naming the others that were involved in the robberies. Thus, in Wisniewski v Regional Court of Wrocklaw, Poland [2016] EWHC 386 (Admin) [2016] 1 WLR 3750, the appellant was a fugitive even though he had left the jurisdiction for economic reasons rather than to avoid his sentence: per Lloyd-Jones LJ at [60]. The judge was therefore right to find that he was a fugitive. The judge’s finding did not involve any reversal of the burden of proof: it was an inevitable finding on the evidence.[43]To the extent that the appellant exercised a free choice to come to the United Kingdom, the subsequent passage of time is the consequence of that exercise of free choice. It would not therefore be unfair or oppressive, by reason of the passage of time, to extradite him to Portugal.[44]Conversely, if there was a real risk to the appellant’s life, which he could only avoid by leaving Portugal, then his decision to do so would not have amounted to the exercise of a free choice. That would amount to a truly exceptional circumstance in a relevant sense, such that it would be open to him to seek to show that his extradition would be oppressive or unfair due to the passage of time. However, the only evidence of such a risk, at that point, comes from the appellant himself. The text messages came (much) later. The judge was entitled to question the appellant’s credibility – his first proof of evidence was plainly dishonest, and there was little support for his substantive account. Read in context, the judge’s reflection that he was not sure that the appellant was telling the truth does not have any greater significance than that, and it does not amount to a reversal of the burden of proof. In any event, the appellant’s evidence was not capable of supporting a conclusion that he had no choice but to come to the United Kingdom to avoid a reprisal attack. He could have informed the police in Portugal and sought their protection; and/or he could have changed address in Portugal and told the authorities of his new address. He did neither of those things. It follows that his decision to come to the United Kingdom, rather than to seek the protection of the authorities in Portugal, or to hide in Portugal from the gangs, was an exercise of free choice. The subsequent passage of time is due to his voluntary actions. Contrary to Mr Rhodes’ submission, it is (in Lord Diplock’s words) a consequence of his own choice and making.[45]Even if the appellant did not have any real choice but to come to the United Kingdom, the passage of time does not render extradition either unfair or oppressive. It has not been shown that there was any culpable delay on the part of the Portuguese authorities. The appellant was always aware that he was due to face criminal proceedings in Portugal and that, therefore, his extradition might be sought. There was no basis for a false sense of security. He formed his relationship with his partner in the knowledge that his position was precarious and that his extradition could be sought at any moment. Their daughter was conceived after the appellant had been informed that he had been sentenced to 7 years’ imprisonment. No further judicial process remains which might be impacted by the delay in a way that might cause unfairness.[46]The judge was therefore right to find that extradition is not barred by the passage of time. Ground (2): Article 8 ECHR Submissions

Ground (2): Article 8 ECHR

[47]Mr Rhodes argues that extradition would be a disproportionate interference with the appellant’s right to a family life under article 8. He has built a stable life with a loving partner and a young child. Extradition would result in a permanent rupture of the family unit: his partner cannot relocate to Portugal, and he is unlikely to be permitted to return to the United Kingdom after serving his sentence. The judge was wrong to place weight on assistance that could be provided by the wider family, who live some distance away.[48]Ms Iveson argues that the public interest in extradition outweighs the interference with the article 8 rights of the appellant and his family that is occasioned by extradition. The offences are serious, and the appellant is a fugitive. The public interest in extradition is therefore particularly high. The appellant’s offending in the United Kingdom and the availability of family support to his partner and child are further factors in favour of extradition. The judge was right to find that the consequences of extradition for the appellant's family life would not be exceptionally severe. He was entitled to conclude that the appellant’s partner and child could be adequately cared for by family members and that the question of whether the appellant could return to the United Kingdom after serving his sentence should not affect the decision to extradite.

Should the judge have found that extradition would be incompatible with article 8 ECHR?

[49]The judge identified the relevant factors that weighed on each side of the balance. He was right to find that there was a strong public interest in favour of extradition, having regard to the seriousness of the underlying offence, the length of the sentence and the fact that the appellant was a fugitive from justice. The delay, which does not involve culpability on the part of the respondent, does not lessen the public interest in favour of extradition. As against that, the judge recognised that extradition would cause “upheaval emotional anguish and displacement.” He was right to find that these are the inevitable consequences of extradition, and that these consequences are not exceptionally severe in this case. The appellant was not the sole carer of his daughter, and her mother was capable of looking after her alone. The judge was entitled, on the evidence, to observe that other relatives would do their best to assist; but this was, anyway, secondary to his primary finding that the appellant’s daughter would be adequately cared for by her mother. The article 8 balance, in this case, is strongly in favour of extradition. We do not consider that there was any flaw in the judge’s reasoning. His conclusion was correct. Ground (3): Article 2 ECHR Submissions

Ground (3): Article 2 ECHR

[50]Mr Rhodes argues that extradition is incompatible with article 2 ECHR because of the ongoing threat to the appellant’s life from gang members in Portugal. He relies, in particular, on the threatening text messages from 2021.[51]Ms Iveson says that the appellant has not provided sufficient evidence to demonstrate an objective risk to the appellant’s life from non-state actors. In any event, there is no evidence to displace the presumption that Portugal will provide adequate protection for the appellant if his life is threatened. The judge was therefore right to find that the appellant had not satisfied either limb of the test in Bagdanavicius.

Should the judge have found that extradition would be incompatible with article 2 ECHR?

[52]The events which are said to give rise to a risk to the appellant’s life took place 14 years ago (the car crash, and his confession in which he named the other two participants in the offences). The high-water mark of the appellant’s evidence of the risk is the text messages in 2021, taken together with the appellant’s account about the car accident and the subsequent attempt on his life, and his confession in which he named the other two offenders.[53]The judge was entitled to conclude that the evidence did not disclose a real risk to the appellant’s life. There is no suggestion that the appellant has had any difficulties since coming to the United Kingdom in 2011, save for the text messages in 2021. Those text messages are now 4 years old, and they amount to the second-hand reporting of a suggested threat (which is not clearly a threat to life) which did not materialise.[54]In any event, if there is a risk to the appellant’s life, then it must be presumed that the authorities in Portugal will provide a reasonable level of protection. There is no evidence, far less “clear, cogent and compelling evidence” that they will not do so. The fact is that he has not sought protection.[55]It follows that the judge was right to find that neither element of the Bagdanavicius test is satisfied, and that extradition is compatible with article 2 ECHR. Ground (4): Article 3 ECHR Submissions

Ground (4): Article 3 ECHR

[56]Mr Rhodes says that there is a systemic problem in Portuguese prisons. The European Court of Human Rights has repeatedly found breaches of article 3 because of prison conditions in Portugal. It is notable that a previous assurance was provided in 2018 and yet the Portuguese authorities had considered it necessary that a further assurance was now needed, indicating that the previous assurance was insufficient. On analysis, the new assurance goes no further. It is generic to all those extradited from the United Kingdom, rather than specific to the position of the appellant. It is therefore deficient. The evidence shows there is a particular problem regarding cell bells, indicating that the appellant may not be able to summon assistance if that became necessary. Moreover, the authorities show that there is no effective domestic remedy for complaints about prison conditions in Portugal: Petrescu v Portugal (appln 23190.17, judgment 3 December 2019). The appellant would therefore be at risk of inhuman and degrading treatment if he were held in custody in Portugal. It follows that extradition is incompatible with article 3.[57]Ms Iveson submits that the assurance provided by the Portuguese authorities is sufficient, and that there is no evidence of a systemic problem affecting the whole prison estate. The assurance is a solemn diplomatic undertaking and there is a strong presumption that the Portuguese authorities will comply with it. None of the findings of breaches of article 3 in respect of prison conditions in Portugal apply to prisoners with assurances. The judge was right to find that the assurance provided by the Portuguese authorities is reliable and that there is no real risk of the appellant being subject to inhuman or degrading treatment contrary to article 3.

Should the judge have found that extradition would be incompatible with article 3 ECHR?

[58]In Mohammed v Portugal [2017] EWHC 3237 (Admin) the court found (at [51]) that there would be a risk of a breach of article 3 if Mr Mohammed were detained in the basement areas of Lisbon prison. It sought supplemental information from the respondent. The information provided did not address the specific questions that the court had asked but instead said that Mr Mohammed would not initially be detained in Lisbon Central Prison. The court found there remained a real risk of inhuman or degrading treatment, because the assurance did not rule out the possibility that he might subsequently be detained there: Mohammed (no 2) v Portugal [2018] EWHC 225 (Admin) per Beatson LJ at [20]. Following that decision, the respondent provided the 2018 assurance.[59]In Duarte v Lisbon [2018] EWHC 2995 (Admin), the court found that in the light of the 2018 assurance there was no real risk that Mr Duarte would be subject to inhuman or degrading treatment by reason of prison conditions in Portugal (per Holroyde LJ at [43]-[45]).[60]In Henriques v Portugal [2019] EWHC 1998 (Admin) the court examined the circumstances in which there had been a breach of the 2018 assurance in respect of a Mr Candé who had been extradited from the United Kingdom to Portugal in 2018. The breach was admitted. It arose “in exceptional and unusual circumstances.” A thorough investigation had been conducted, and a firm assurance was given that appropriate measures were being taken to ensure that it did not recur. There was no reason to believe that Portugal would not take those steps. The court observed that Mr Candé was the only person who had made allegations of non-compliance with the assurance, and that strongly supported the conclusion that it had been complied with in other cases. Further, the assurance could be monitored both by an Ombudsman and also by a system of prison inspections that was coordinated by a judge, and also because there were routes by which prisoners could complain about the conditions. The court considered that the nature and extent of the monitoring was plainly adequate, and that reliance could be placed on the assurance: per Sir Kenneth Parker at [51] – [56].[61]The updated evidence on which the appellant relies shows that, in common with other jurisdictions, there are some continuing problems with prisons in Portugal, including due to overcrowding. However, there has been no pilot judgment of the ECHR criticising prison conditions in Portugal. No example has been given of a breach of the 2018 assurance (or the 2024 assurance) aside from the limited instance that was addressed in Henriques. Some of the judgments of the ECHR postdate both Henriques and Duarte, but none indicate that Portugal is not capable of complying with article 3 in individual cases, and none concern individuals who had the benefit of an assurance. The same applies to the CPT reports. Nor is there any evidence of a change to the systems that are in place (Ombudsman/inspections/complaints) that ensure appropriate monitoring of the assurance in the sense anticipated by Othman.[62]The fact that a further assurance was given in 2024 does not, in itself, provide any basis for finding that Portugal has not complied with the 2018 assurance. If there had been breaches of that assurance it is likely that they would have become known, as occurred in Mr Candé’s case. The fact that it is “generic” (in that it applies to all those extradited from the United Kingdom, rather than being specific to the appellant) is not a basis to doubt its efficacy. The same could be said of the 2018 assurance, which was accepted in Duarte and Henriques. Whether or not there is an adequate domestic remedy in Portugal for a breach of article 3 ECHR is not relevant to the question of whether the appellant is at risk of inhuman or degrading treatment: Zeka v Belgium [2025] EWHC 336 (Admin) per Lewis LJ at [45].[63]The judge was therefore right to find that reliance can safely be placed on the assurance and that there is no real risk of the appellant being subject to inhuman or degrading treatment. His extradition is therefore compatible with article 3. Ground (5): Articles 5 and 6 ECHR Submissions

Ground (5): Articles 5 and 6 ECHR

[64]Mr Rhodes submits that the manner in which he was sentenced involved a flagrant denial of justice, such that his detention in Portugal would breach article 5 and his extradition would be incompatible with articles 5 and 6. He says that the appellant’s sentence was imposed by the court in ignorance (or disregard) of significant mitigating factors, specifically his confession, remorse, and naming of co-conspirators. He also argues that the disparity in sentences between the appellant and his co-defendant demonstrates a flagrant denial of justice. The absence of any ongoing right of appeal amounts to a further flagrant denial of justice.[65]Ms Iveson responds that the sentencing process was fair. The appellant’s absence from the trial (and the inferences that could be drawn from that absence) was a significant factor in the sentence imposed, explaining the differences in sentence between the appellant and Fábio Guerreiro. The appellant was informed of his opportunity to appeal the conviction decision but did not take it up. The judge was right to find that there had not been a flagrant denial of justice. Should the judge have found that extradition would be incompatible with articles 5 and 6 ECHR?[66]The evidence shows that there was a court hearing by a tribunal established by law, that the appellant had an opportunity to attend that hearing, and that he was represented. It is to be presumed that the tribunal was independent and impartial; there is no evidence to suggest otherwise. For whatever reason, and like the judge we do not consider it appropriate to speculate, it appears that the appellant’s lawyer decided not to place the appellant’s earlier confession before the court. If the court did not take account of the confession, that was a result of the litigation strategy adopted by the appellant’s representative. It was not the result of the court failing to hear from the appellant or his representative. It does not amount to a flagrant denial of justice. Nor does it amount, as the appellant suggested, to the court failing to hear both sides.[67]The sentence imposed (and the comparison with the sentences for the co-defendants) is readily explicable, notwithstanding the confession. As Ms Pereira recognised, the appellant was not in a comparable position to Fábio Guerreiro. Mr Guerreiro had attended the trial and had given testimony implicating his co-defendants (without which there may not have been a sufficient case for conviction). He had shown genuine remorse and there was a real prospect of rehabilitation. Conversely, the appellant fled from Portugal and did not attend the trial. The critical reasoning that explains the more lenient sentencing of Fábio Guerreiro does not apply to the defendant. The appellant was sentenced to the same term as Telmo Pina who was older and who, unlike the appellant, had previous convictions. But the appellant had been the man who had brandished the imitation firearm during the robberies, and Telmo Pina had attended the trial. The fact that the court ultimately imposed the same sentence on each of them does not suggest any flagrant denial of justice.[68]The appellant had a right to appeal against his sentence. At the time he was informed of that right he did not know precisely what the court had or had not taken into account when determining the sentence, but he had been represented, and it was open to him to seek advice from his lawyer. It does not appear that he made any substantial attempt to do so. The clear inference is that he chose not to pursue an appeal. The fact that he is now unable to pursue an appeal because it is 5 years out of time, is entirely the result of that choice. It does not amount to a flagrant denial of justice.

The judge was therefore right to find that extradition is compatible with articles 5 and 6.

Outcome

[70]The fresh evidence on which the appellant seeks to rely would not have made a difference to the judge’s decision. We refuse the application to rely on fresh evidence.[71]The judge was right to find that extradition is not barred by the passage of time, and that extradition is compatible with the appellant’s Convention rights.[72]Accordingly, we dismiss the appeal.