Efraim Fishel Grinfeld v The Government of Israel [2025] EWHC 527 (Admin)

[2025] EWHC 527 (Admin)Case No AC-2022-LON-000164
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/03/2025
Before
LORD JUSTICE WILLIAM DAVISMRS JUSTICE MCGOWAN
Between
EFRAIM FISHEL GRINFELDAppellantTHE GOVERNMENT OF ISRAELRespondent
Mark Summers KC and Benjamin Seifert (instructed by Sonn Macmillan Walker) for AppellantJoel Smith KC and Nicholas Hearn (instructed by CPS extradition Unit) for RespondentHearing Hearing dates: 28th November 2024Further written submissions: 25 th February 2025Approved JudgmentThis judgment was handed down remotely at 10.30am on 7 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................LORD JUSTICE WILLIAM DAVIS
[1]On 3 August 2023 we handed down judgment in the appeal by Efraim Grinfeld against the decision of the Westminster Magistrates’ Court to send his case to the Secretary of State for the Home Department for a decision on whether his extradition to Israel should be ordered: [2023] EWHC 2023 (Admin). There were three grounds of appeal, one of which related to prison conditions in Israel. It was said that the appellant’s rights under Article 3 of the European Convention on Human Rights would be violated due to prison conditions. We dismissed the appeal on all grounds. Mr Grinfeld applied for leave to appeal to the Supreme Court. We declined to certify that there was a point of law of general public importance involved in the decision. Our ruling became final on 10 October 2023.[2]On 7 October 2023 Hamas, a political and military group in the Gaza Strip, attacked Israel, killing about 1,200 people and taking more than 250 hostages. This triggered a massive Israeli military offensive in Gaza. Hamas responded by launching rocket attacks into Israel. This turn of events was wholly unexpected. On 15 October 2023 Mr Grinfeld applied pursuant to CPR 52.30 to reopen his appeal. He argued that, were he to be returned to custody in Israel, he would be at risk of death or serious injury from a rocket attack. His submission was that he would suffer real injustice were he not to be permitted to reopen the appeal and that the circumstances were exceptional.[3]The requesting authority applied for a summary dismissal of the application. They argued that there was no satisfactory basis on which to conclude that there was anything other than a vanishingly small risk of an Israeli prison being hit by a Hamas rocket. Although the changed circumstances in Israel were exceptional in the ordinary sense of the word, they did not affect the extradition of Mr Grinfeld. No injustice would be caused by his return to Israel.[4]We did not consider that summary dismissal of the application was appropriate. Given the highly unusual nature of the case, we ordered an oral hearing of the application pursuant to CPR 52.30(5). In the event, that hearing was not required because of the stance adopted by the requesting authority. On 4 July 2024 they served a position statement. It was not conceded that it was appropriate to reopen the appeal because of the risk of rocket attacks. Rather, prison overcrowding had worsened significantly. This was due in part to the number of inmates detained under security provisions, such detention being a direct result of the attack in October 2023. On 20 June 2024 the Israeli Supreme Court issued a ruling in respect of prison conditions. The consequences of that ruling were said to provide a very different evidential picture in relation to the space available for individual prisoners to that available in the summer of 2023. The requesting authority stated that Mr Grinfeld should be permitted to reopen his appeal on this issue.[5]We approved a consent order which gave Mr Grinfeld permission to reopen his appeal. The order did not specify the grounds on which he could rely in the reopened appeal. However, it recited that it was made on the requesting authority conceding that reopening the appeal was appropriate. That means that permission was granted in relation to the changed evidential landscape in respect of prison numbers.[6]At the hearing of the reopened appeal Mr Grinfeld also made submissions in relation to the risk of rocket attacks. This raised issues relating to Articles 2 and 3 of the Convention in addition to the alleged violation of Article 3 due to prison over-crowding. Since we were hearing a reopened appeal, it was not a sensible exercise to engage in a two stage process in relation to the risk of rocket attacks i.e. were the criteria in CPR 52.30(1) satisfied; if so, should the reopened appeal be allowed? Rather, we simply considered the substantive merits of these submissions.[7]We shall deal first with the argument relating to the risk to the safety of a prisoner in Israel resulting from rocket attacks. When the application first was made to reopen the appeal, the risk alleged came from such attacks by Hamas from Gaza. Shortly after October 2023 similar attacks began from Lebanon. These attacks were carried out by Hezbollah, a political and military group based in Lebanon with close links to Iran. Subsequently, there had also been an attack from Iran itself to which Israel had responded.[8]Mr Grinfeld relied on the evidence of a lawyer based in Israel, Nick Kaufman, to establish the effect of and risk created by rocket attacks. For the purpose of the reopened appeal he provided four statements between October 2023 and October 2024. We summarise the effect of Mr Kaufman’s evidence as follows: i) Many civilian apartment blocks have air raid shelters. ii) Prisons generally do not have shelters and safety measures for prisoners are extemporised. iii) Although the rocket defences maintained by Israel – known as the Iron Dome – are very effective, they only succeed in preventing 90% of rockets getting through. iv) The threat from Hezbollah was considerably more severe than the threat posed by Hamas. v) There has not been any direct strike on an Israeli prison but Hezbollah and Iran were becoming more sophisticated.[9]In his last statement dated 30 October 2024 Mr Kaufman said that no one in Israel was immune from harm from rocket attacks.[10]Mr Kaufman has expertise in Israeli law and procedure. He also has experience of litigating in international tribunals. His opinion in respect of the protection provided by Israel’s civil defence systems and the continuing threat from outside forces amounts to the view of a well-informed resident in Israel. It is not to be ignored. Equally, it is not based on authoritative expertise.[11]The requesting authority was not in a position to give detailed information about the nature and extent of the rocket attacks on Israel. The Israel Defence Force (“IDF”) would have been the source of such information. The IDF was not prepared to provide the information for dissemination beyond the security services. The Office of the State Attorney of Israel provided information. That office pointed to public websites such as Wikipedia where rough estimates of the number of rockets launched could be found. It is in the public domain that the defence systems of the State of Israel are very effective. There is a wide range of anti-missile defence systems in operation. The most well-known is the so-called Iron Dome. The State Attorney was able to confirm via information provided by the Israel Prison Authority that no prison in Israel had been the subject of a direct hit by a missile or rocket.[12]The State Attorney provided evidence about the instructions given and the precautions taken in the event of a rocket attack. Every location in Israel is classified by zone, each zone having a particular warning time in the event of attack. This time is the period between an alarm sounding and the point at which a person must be in a protected area. A protected area may be a shelter built specifically to protect against rocket attack. However, not all locations have such a shelter.[13]In relation to institutions such as schools and hospitals and including prisons, there are specific instructions in place from the IDF as to the location of the protected areas for the institution in question. In relation to prisons, those instructions are not published for security reasons. Some prisons have purpose built shelters. Those that do not have shelters operate protected areas in the same way as any building or institution without a shelter. The State Attorney confirmed that, on each wing of a prison, the prisoners and guards would be evacuated to the same protected area.[14]There is no detailed evidence about the number of civilian casualties resulting from the rocket attacks whether coming from Hezbollah/Iran or from Hamas. The State Attorney has said that the number is minimal. Mr Kaufman made no reference at all to civilian casualties whether by general description or specific numbers. Information in the public domain tends to support the State Attorney’s evidence. The attacks on Israel with rockets over the last 14 months is not a new phenomenon. There is a robust anti-missile system precisely because of the long history of attacks from political and military movements in Gaza and, in particular, in Lebanon.[15]Mr Grinfeld argues that the court is being invited to allow his extradition to a war zone. He relies in particular on the evacuation of more than 60,000 Israeli citizens from areas in the north where the bombardment from Hezbollah has been intense. He also relies on threats made publicly by political leaders in Iran to the effect that they plan a “crushing response” to earlier attacks by Israel on Iran, those attacks being in turn by way of retaliation for Iranian attacks on Israel. In those circumstances he says that his Article 2 and 3 rights would be violated by his extradition to Israel. He says that Israel has a positive duty to provide reasonable protection against the acts of external actors. His argument is that the requesting authority has not provided sufficient evidence of reasonable protection.[16]The requesting authority submit that the risk of Mr Grinfeld being injured or killed in a rocket attack is minimal. They rely on the history of the long running conflicts that have existed between Israel and its neighbours. There have been very many attempts to breach Israel’s defence systems whether by military groups or the forces of other countries. It is not suggested that those systems guarantee the safety of Israeli citizens. Equally, they have been remarkably effective in protecting Israelis. The level of protection is reasonable. In the context of Mr Grinfeld’s situation, it is of significance that no prison ever had been the subject of an attack.[17]The principles we must apply when considering whether the general conditions within a country give rise to a violation of Article 3 were summarised in Liu v Poland 37610/18 ECHR 2022 at [65] and [66]:
“65. The relevant general principles concerning the application of Article 3 within the context of extradition and expulsion have been summarised by the Court in the judgments F.G. v. Sweden ([GC], no. 43611/11, §§ 111-27, ECHR 2016), J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 77-105, ECHR 2016) and, more recently, Khasanov and Rakhmanov v. Russia ([GC], nos. 28492/15 and 49975/15, §§ 93-116, 29 April 2022). 66. The Court further reiterates that the assessment of whether the person concerned, if extradited, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention, should begin with the examination of the general situation in the destination country. In this connection, and where it is relevant to do so, regard must be had to whether there is a general situation of violence existing in the country of destination (see Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 216, 28 June 2011). However, a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion to the country in question, unless the level of intensity of the violence is sufficient to conclude that any removal to that country would necessarily breach Article 3 of the Convention. The Court would adopt such an approach only in the most extreme cases, where there is a real risk of ill-treatment simply by virtue of the individual concerned being exposed to such violence on returning to the country in question (see Khasanov and Rakhmanov, cited above, § 96, with further references therein).”
[18]Liu concerned a proposed extradition to China where there was cogent evidence of generalised brutality towards and coercion of prisoners in Chinese prisons. Sufi and Elmi (which involved alleged violations of Articles 2 and 3) related to the situation in Mogadishu in Somalia at a time when there was wholly unpredictable mass violence. The ECHR gave guidance on factors to be considered when assessing whether a “situation of general violence” as existed in Mogadishu was of sufficient intensity to create a real risk of a violation of Article 3. They were as follows: first, whether the parties to the conflict were either employing methods and tactics of warfare which increased the risk of civilian casualties or directly targeting civilians; secondly, whether the use of such methods and/or tactics was widespread among the parties to the conflict; thirdly, whether the fighting was localised or widespread; and finally, the number of civilians killed, injured and displaced as a result of the fighting. The EHCR concluded that “the situation of general violence in Mogadishu is sufficiently intense to enable it to conclude that any returnee would be at real risk of Article 3 ill-treatment solely on account of his presence there, unless it could be demonstrated that he was sufficiently well connected to powerful actors in the city to enable him to obtain protection”.[19]The situation in Israel is far removed from that position. The civilian population lives under threat but with significant protection from the state. Even when the conflict with Hamas and Hezbollah was at its height, the evidence does not show that there were significant civilian casualties. In Israeli prisons there were no casualties at all. We accept that the situation is fluid and to an extent unpredictable. However, that has been the position for the state of Israel for a very significant period. We note the expressed threat from the state of Iran. That must be set against the most recent developments in the region. At the time of the hearing a ceasefire recently had been declared between Israel and Hezbollah. On 15 January 2025 a ceasefire in Gaza was agreed. Whether the ceasefires will hold is not for us to judge. We simply observe that circumstances are constantly changing. Yet, in those changing circumstances, the civilian population of Israel carries on with a more or less normal existence.[20]We agree that Israel has a positive duty to protect someone in Mr Grinfeld’s position from any violation of his Article 2 and 3 rights due to the actions of non-state actors: R v SSHD ex parte Bagdanavicius [2005] UKHL 38. Mr Grinfeld relies on Premininy v Russia no. 44973/04 10 February 2011 and DF v Latvia no. 76680/17 11 January 2024 to support the proposition that, in the context of rocket attacks carried out by Hamas and others, this requires him to be housed in a facility with a purpose built shelter. Many ordinary citizens of Israel and other prisoners detained in the Israeli prison estate do not have this protection. But Mr Grinfeld’s position must be judged via the prism of a man being returned against his will to a foreign jurisdiction. We do not agree that the positive duty to which the requesting authority is subject requires them to house Mr Grinfeld in a prison which has a purpose built shelter. The requesting authority must take reasonably available measures to protect him. In the context of a state which has a highly organised civil defence system, reasonably available measures do not necessarily involve purpose built shelters. DF v Latvia was a case in which a prison was effectively run by a prisoner led hierarchy which created a real risk of harm to the inmate concerned. The authorities took no steps to deal with the systemic failure of good order in the prison. It is far removed from the facts of this case.[21]For all those reasons, we are satisfied that Mr Grinfeld cannot show that there is a real risk of a violation of his Article 2 or Article 3 rights by reference to conflict between the state of Israel and external actors, whether state or non-state.[22]We turn then to the issue of prison conditions. We dealt with the way in which Article 3 of the Convention arises in the context of prison conditions and on whom the burden lies to establish violation of Article 3 in our original judgment at [29]. We considered the factual background as it then was at [30] to [40]. It is unnecessary to repeat that analysis. The appeal has been reopened because of a change in the factual position.[23]On 20 June 2024 the Israeli Supreme Court delivered a ruling in respect of prison conditions. The Supreme Court in Israel has the power to issue instructions to the executive in relation to prison issues. In 2017 it delivered a ruling at a time when in Israeli prisons each prisoner had 3.16 square metres of personal space. However, this was a gross area i.e. to include toilets and showers. The Supreme Court issued instructions, namely that within 9 months each prisoner was to have an exclusive space measuring 3 square metres net and that within 18 months each prisoner was to have 4 square metres net or 4.5 square metres to include toilet and shower. On 1 November 2018 at a further hearing before the Supreme Court the timetable was put back. What had been the 9 month target in 2017 was now to be met by 30 April 2019. The revised date for what had been the 18 month target was 2 May 2020.[24]The Israeli state met the target of 3 square metres of personal space by the due date. The second target was not met. There were further applications to the Supreme Court to extend the date for the second target. On 29 December 2022 the court extended the deadline for achieving 4 square metres personal space per prisoner to 31 December 2027. The state was required to update the court periodically. The events of 7 October 2023 changed matters considerably. The conflict led to the detention in prison of very many individuals on the basis of security concerns rather than due to criminal proceedings in the conventional sense. At a hearing on 20 May 2024 the Israeli state reported that approximately 55% of inmates no longer had 3 square metres of personal space. That did not mean that this percentage of prisoners in custody as a result of criminal proceedings lacked this personal space. Rather, 27% of all criminal inmates were in that position. 4,100 inmates were sleeping on mattresses on the floor. 20% of this group were criminal inmates.[25]The Supreme Court acknowledged the highly unusual position of the Israeli state. The court instructed the state to do its best to meet the deadline for providing 4 square metres of personal space by the due date in December 2027. The state was required to provide an update to the court by 1 December 2024, namely a few days after the hearing before us. The parties invited us to delay delivering our judgment until the terms of the update were known. Since that involved but a few days delay, we acceded to that invitation. We would not have been in a position to hand down our judgment until after 1 December 2024 in any event. In fact, no update was provided to the Supreme Court by 1 December. Initially we were informed by the Crown Prosecution Service that the proposed update had been postponed until 15 January 2025. This date then was extended to 15 February 2025. On 17 February 2025 the Crown Prosecution wrote as follows: “We have received an update from the Israeli authorities which informs us that in relation to the anticipated Supreme Court decision, the Israel Supreme Court monitors the situation in the Israeli prisons (and has done since 2014) and government action to achieve the standards of minimal living space. The state periodically updates the court on the progress of plans to address the issue, as such, no major decision is expected soon in this process”.[26]If any update has been provided to the Supreme Court, we are not aware of its terms. It is a matter of which we can take judicial notice that since 15 January 2025 many hundreds of prisoners held for security reasons have been released. Thus, there will have been some easing of the pressure that existed at the time of the ruling of 20 June 2024. Despite this easing of pressure, the consequence of that ruling is that someone returned now to the Israeli prison estate is at real risk of being denied the requisite personal space. It is common ground that, absent any other factor, this would establish a violation of the person’s Article 3 rights.[27]In the light of recent developments the requesting authority on 18 September 2024 provided assurances in relation to the conditions in which Mr Grinfeld would be held on his return to Israel. In relation to cell space, the requesting state committed to the provision of living space of at least 3 square metres (not including sanitary units) at any time during his detention and/or imprisonment in Israel. He was assured of such medical and/or psychiatric treatment he might need when in prison. In the same way as any prisoner in an Israeli prison, he would be entitled to petition the regional district court on any matter relating to his detention.[28]Mr Grinfeld’s argument in relation to the assurances is not that they were made other than in good faith. Israel is a mature state with functioning democratic institutions. It has a reputational incentive to meet the assurances. It is not a state with any history of failing to meet assurances in the past. Rather, Mr Grinfeld submitted that the situation in Israel is so volatile that there must be very substantial doubts about its capacity to meet the assurance in relation to personal space. At the beginning of October 2023 there was no hint that the prisons in Israel were about to be overwhelmed by new prisoners. The events of 7 October and their consequences were wholly unexpected. Israel simply has no control over events which might lead to a similar outcome in the next two to three years i.e. the time during which Mr Grinfeld might be expected to be detained. A parallel was drawn with the position of Rwanda as discussed in AAA (Syria) and others v SSHD [2023] UKSC 42 at [101] to [103]. The Supreme Court had to consider the ability of Rwanda to protect persons sent there and said “….intentions and aspirations do not necessarily correspond to reality: the question is whether they are achievable in practice”. As an adjunct to that argument Mr Grinfeld also invited us to consider why the requesting authority had not identified a particular prison to which he would be sent. The failure to do so indicated the uncertainty involved.[29]It is further submitted that the failure of the requesting state to disclose whatever update has been given to the Israeli Supreme Court must affect the court’s view of the assurances given. As was apparent in June 2024 a significant proportion of detained prisoners did not have the cell space required to avoid violation of what would be their Article 3 rights were they subject to the Convention. The failure to provide any updates given to the Supreme Court since then should affect the weight we should afford to the assurances.[30]We conclude that there is no reason not to accept the assurances given by the requesting authority. The overall position of the prison estate in Israel has been under review by the Israeli Supreme Court for reasons connected with domestic law. It is apparent that the requesting authority has made and continues to make genuine efforts to meet the targets originally set in 2017. Even in the extraordinary circumstances which developed as a result of the October 7 attack, namely an influx of thousands of security prisoners into a prison estate relatively modest in size, criminal prisoners in the middle of 2024 were much more likely than not to have 3 square metres of personal space. It would be facile to describe the current situation in Israel as settled. Equally, the way in which the state dealt with what happened in October 2023 vis-à-vis the prison population does not demonstrate a lack of control. In the face of extraordinary pressure the prison estate was not overwhelmed. The situation is very different to that under discussion in AAA and others.[31]We can understand why the requesting authority has not identified a particular prison at which Mr Grinfeld will be accommodated. Where the issue facing the prison estate is overcrowding, the effect on an individual prisoner can and will be mitigated by transferring the prisoner between prisons as the need arises. This is commonplace in this jurisdiction where overcrowding is a real issue. It cannot be any different in Israel. There will be cases in which the requesting authority has particular prisons which have been identified as violating the Article 3 rights of anyone detained there. In those cases an assurance may be given which identifies a particular prison (or prisons) at which the requested person will be detained. This is to remove the risk that the requested person might be sent to the offending prison or prisons. In this instance we have no evidence that one prison is overcrowded when another is not. The evidence simply establishes that there is overcrowding in the prison system. It may affect all prisons at least to some extent. In those circumstances to define how Mr Grinfeld will be detained by reference to location would achieve nothing. So long as he has 3 square metres of personal space, the name of the prison does not matter.[32]The submission is made that there can be no means by which Mr Grinfeld’s situation can be monitored. Israel does not permit inspection of its prisons. It is not a signatory to the European Convention. This argument might carry some weight if Israel were a state without safeguards for prisoners. That is not the position. As is made clear in the assurance Mr Grinfeld will have the right to petition the regional district court. The evidence we have received includes material from the Public Defender Office. That office has periodic access to prisons. It has no formal monitoring role but its reports are in the public domain. It is said that on his return to Israel Mr Grinfeld will be beyond the protection of the courts of England and Wales and of the ECHR. That may be so. But he will not have been consigned to a lawless state without access to justice.[33]We acknowledge that the report from the Public Defender Service setting out the findings from visits in December 2023 to four prisons describes very poor conditions in at least two of the prisons. The matters set out in the report fall short of establishing that the Article 3 rights of inmates at those prisons are at real risk of being violated. They fail to meet the stringent test required to establish such a risk.[34]We postponed handing down our judgment at the invitation of the parties in the circumstances we have outlined above. It was not that we considered it necessary. The issue did not affect the assurances given. However, the proposed postponement was very brief. Had some dramatic development become apparent, it might have been appropriate to revisit the assurances. We did not postpone our judgment because we lacked confidence in the assurances or because we could see that there was likely to have been a deterioration from the position as set out in the June 2024 judgment. It follows that we draw no adverse inference from the absence of an update as previously anticipated.[35]For all of those reasons we conclude that, taking into account the assurances given by the requesting state, there are no substantial grounds for believing that Mr Grinfeld faces a real risk of a violation of his Article 3 rights by reason of prison conditions in the requesting state. Although we permitted the appeal to be reopened, nothing has emerged sufficient to cause us to alter the decision we made in August 2023. We confirm the order we then made. The appeal is dismissed.