Thomas Costappis v Nicosia District Court, Republic of Cyprus [2025] EWHC 785 (Admin)

[2025] EWHC 785 (Admin)Case No AC-2023-LON-003066
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 2 April 2025
Before
MR JUSTICE JOHNSON
Between
Nicosia District Court, Republic of CyprusRespondent
Between
Nicosia District Court, Republic of CyprusRespondent
Rebecca Hill (instructed by CG Defence) for first appellantGeorgia Beatty (instructed by CG Defence) for second appellantLouisa Collins (instructed by Crown Prosecution Service) for respondentHearing Hearing date: 19 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on Wednesday 2 nd April 2025 by circulation to parties or their representatives by e-mail and by release to the National Archives
[1]The appellants appeal against orders for their extradition to the Republic of Cyprus for prosecution for alleged offences of fraudulently obtaining mortgages on land they did not own. They say that the offences for which their extradition is sought are insufficiently particularised, that they do not amount to extradition offences, and that their extradition would be contrary to their rights under articles 3 and 8 of the European Convention on Human Rights. The respondent says that the district judge was right to reject these arguments and that the appeals should be dismissed.[2]The issues in the two appeals closely align. Helpfully, Rebecca Hill, for the first appellant, and Georgia Beatty, for the second appellant, divided their submissions so that Ms Hill dealt with the ground of appeal relating to article 3 ECHR, and Ms Beatty dealt with everything else. Louisa Collins responded on all issues on behalf of the respondent. I am grateful to all of them for their excellent submissions and the helpful and cooperative way the appeals were presented.[3]The appellants initially advanced, as a ground of appeal, a complaint that the judge had been wrong not to find that extradition was barred on the ground that there had been no decision to prosecute the appellants: section 12A of the Extradition Act 2003. That ground of appeal is no longer pursued, following the provision of further information that the Attorney General has decided to prosecute the appellants. It is not necessary to say anything further about that ground of appeal. The facts The appellants

The facts

[4]The appellants are married. They have two daughters who are in their mid to late 20s. They all moved to the United Kingdom between 2014 and 2017. They no longer have any close family in Cyprus apart from the first appellant’s sister and the second appellant’s sister and elderly parents. The appellants operate four successful businesses in the United Kingdom, including a convenience store and a bakery, which have up to 15 employees. The first appellant suffers from venous thromboembolism and aortic dissection.

The underlying allegations

[5]The allegation against the appellants is that they mortgaged land that did not belong to them. They were charged with two offences: fraudulent transactions in immovable property, and obtaining goods by false pretences, the offending taking place between 2005 and 2010. The arrest warrants give the particulars of the offences in the form of a narrative. That narrative, taking account of further information that was subsequently provided, includes the following points:(1) On 15 June 1988, a company in which both appellants were shareholders sold land (comprising two plots) to the complainant, but the complainant mistakenly failed to file the sales document with the Land Registry in time.(2) The name of the company was then changed on several occasions between 1996 and 2017.(3) In 2005 part of the land was registered in the name of the first appellant’s company, and part of the land was registered in the name of the second appellant. This was done dishonestly and for the purpose of mortgaging the land.(4) Between 2005 and 2010 the appellants mortgaged the land.(5) On 19 January 2020, the complainant received a letter from a bank informing him that it would be selling the land to recover the amount outstanding on the mortgages, which was €359,228.16.[6]The respondent provided the following further information in response to questions raised (with the questions asked, and new numbering, inserted to aid cross-referencing):
“1. Please can you outline the roles and actions of each of the requested persons in respect of the two offences? From the enquiries carried out, it appears that both plots of land…are encumbered by mortgages, which were deposited after the date of sale on 15/06/1998 and specifically in the years 2005, 2007 and 2010. 2. What was the particular fraudulent action or actions giving rise to each of the offences? The reason why the specific case is being investigated against the wanted persons is because while they knew that [the land] had been sold on 15/06/1998 and had received the sum of 32,600 pounds, they deliberately submitted the two plots to mortgages during the years 2005, 2007 and 2010, committing the offense of Fraudulent Transactions in Real Estate Belonging to Another and Extortion of Money by False Representations. 3. Is it alleged that either of the requested persons was acting dishonestly in their actions? If so please explain what the dishonest action was and when it occurred. Thomas Costappi, while knowing that the plot had been sold and paid off, after receiving from the buyer the amount of money mentioned in the previous paragraph, he mortgaged the plot with number 5963, on 21 /10/2005 and later in the years 2007 and 2010. Chryso Costappi, while knowing that the plot with number 5964 had been sold, on 14/04/2010 she mortgaged the plot in question. Both wanted persons knew that the plot of land had been sold and committed acts that constitute the criminal offenses mentioned above. 4. Further, please can you identify whether each of the requested persons knew or suspected the actions(s) were dishonest? Both wanted persons knew that the plot in question was sold but still they mortgaged it. So they knew that their actions were dishonest as they were not entitled to mortgage the plot. 5. Please provide any other information to assist the court in understanding the nature of the offences, setting out the conduct which gives rise to each of the elements of the offences, for each requested person. Among the constituent elements of the offense "Fraudulent Transactions in Immovable Property Belonging to Another", Chapter 154, Article 303(A)(1 )(2), is the mortgaging of property belonging to another, an offense which was committed by the wanted persons, that is, while they knew that the land had been sold and had collected money from the sale, they mortgaged the property after the sale. The second offense "Obtaining Goods by False Pretences", Chapter 154, Article 298, has as a constituent element of the offense the false representation and which, for the purpose of extortion, acquires from another anything that may be the object of theft. That is, the wanted persons falsely sold the land to the complainant, with the intention of getting the money and then mortgaging the land to secure a loan for their own purposes.”
[7]The appellants accept that the second appellant mortgaged the property, and that the property was owned by the complainant not them. They say that the second appellant mortgaged the property at the request of the complainant because she was more likely to be given a mortgage than the complainant.

Procedural history

[8]Warrants under part 1 of the 2003 Act were issued for the arrest of the first and second appellants in May and August 2022 respectively. They were arrested on 19 October 2022 and were released on bail. The substantive extradition hearing took place in September 2023. On 12 October 2023 District Judge Turnock made an order for the appellants’ extradition. Both appellants appealed against the order. Permission to appeal was granted by Mould J on all grounds. The appellants subsequently lodged proposed further evidence, comprising an updated expert report from Ms Nicoletta Charalambidou concerning prison conditions in Cyprus. The respondent lodged further information dated 30 October 2024 confirming that the Ministry of Justice (which had provided an assurance about prison conditions) was the appropriate body to grant such an assurance. The further information also states that the Attorney General has decided to prosecute the appellants.

Legal framework

[9]The Republic of Cyprus is a category 1 territory for the purposes of part 1 of the 2003 Act. The operation of the 2003 Act for the extradition of a requested person to a category 1 territory is triggered by the receipt by the National Crime Agency of a part 1 warrant for the arrest of a requested person. Such a warrant may be an accusation warrant or a conviction warrant, to secure the return of the requested person for their prosecution, or sentence (or to serve a custodial penalty) respectively: section 2(2) read with section 2(3) and 2(5).[10]Section 2(4)(c) of the 2003 Act requires a Part 1 accusation warrant to contain:
“…particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence…”
[11]The particulars that are required must give sufficient information to enable the court to determine whether the conduct alleged amounts to an extradition offence, and to identify whether there is any other bar to extradition: King v France [2015] EWHC 3670 (Admin) per Collins J at [22]. The particulars can be supplemented by further information from the issuing judicial authority: Goluchowski v District Court in Elbag, Poland [2016] UKSC 36 [2016] 1 WLR 2665 per Lord Mance at [40].[12]If the document that is served as a part 1 accusation warrant (taken together with any further information) does not contain the particulars required by section 2(4)(c) then it is not a valid warrant for the purposes of the Act and cannot therefore sustain an extradition[13]When a requested person is brought before a judge for the extradition hearing, the judge must decide whether the offence specified in the part 1 warrant amounts to an extradition offence: section 10(2).[14]Conduct amounts to an extradition offence if it occurred in the category 1 territory and is punishable with imprisonment of 12 months, and if it would have constituted an offence under the law of England and Wales if it had occurred in England and Wales: section 64.[15]If it is not an extradition offence, the judge must discharge the requested person: section 10(3). If it is an extradition offence, the judge must proceed under section 11: section 10(4). Section 11 requires the judge to decide whether extradition is barred by a prescribed reason (which includes the absence of a prosecution decision): section 11(1). If so, the person must be discharged: section 11(3). If not, and if the person is not alleged to be unlawfully at large after conviction for the extradition offence, the judge must proceed under section 21A: section 11(5).[16]Where section 21A applies, the judge must discharge the requested person if their extradition would not be compatible with their rights under the European Convention on Human Rights: section 21A(4)(a). Otherwise, unless extradition would be disproportionate, the judge must discharge the requested person: section 21A(5).[17]Extradition is not compatible with article 3 ECHR if there are substantial grounds for believing that there is a real risk that the requested person will be exposed to inhuman or degrading treatment owing to the conditions in which he will be detained by the requesting state: R v Special Adjudicator ex parte Ullah [2004] UKHL 26 [2004] 2 AC 323 per Lord Bingham at [91].[18]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].[19]There is a strong, but rebuttable, general presumption that Cyprus will comply with its international obligations, including under article 3 ECHR: Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14 [2021] 1 WLR 2569 per Lord Lloyd-Jones at [31] - [33]. Similarly, a court should ordinarily proceed on the basis that Cyprus will act in accordance with any assurances that it has provided – see Zabolotnyi at [34]. Other 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].[20]Where the court otherwise considers, on the basis of objective, reliable, specific and properly updated evidence, that there is a real risk that a requested person will be exposed to inhuman and degrading treatment by reason of prison conditions, it may seek supplementary information from the requesting state and should postpone a decision on the surrender of the requested person unless any such supplementary information allows the risk to be discounted: Aranyosi v Higher Regional Court of Bremen, C-404/15 [2016] QB 921 at [104].[21]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 3 square metres - 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].[22]Where the space available is in the range of 3 - 4m 2 then (Muršić at [139]):
“the space factor remains a weighty factor in the Court's assessment of the adequacy of conditions of detention. In such instances a violation of art 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.”
[23]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 her differently with the result that the requested person would have been discharged: section 27(3). An appeal may also be allowed if, in the light of fresh evidence that was not previously available, the judge would have decided a question before her differently with the result that the requested person would have been discharged: section 27(4). Ground 1: section 2 – the particulars of the offences given in the warrants The judge’s judgment

Ground 1: section 2 – the particulars of the offences given in the warrants

[24]The judge set out her interpretation of the arrest warrants when taken together with the further information. She identified, as a summary of the further information provided, the respondent’s response to questions 2 and 5. She observed that the offending was “set out in a slightly confusing order” but she considered that the submission that there had been a failure to comply with section 2(4)(c) of the 2003 Act was entirely without merit. She said that the respondent had set out the nature of the alleged offending in respect of both appellants in comprehensible and extensive detail. The appellants’ detailed submissions on the question of whether the conduct amounted to an extradition offence demonstrated that sufficient particulars had been given for that issue to be evaluated. It was also possible to assess the seriousness of the offending even though the total amount that had been obtained as a result of mortgaging the land was not specified. The start of the charging period, 2005, represented the date on which title to the land was registered in the name of the first appellant’s company and the second appellant. The first mortgage was then taken out later that year. Submissions[25]Ms Beatty submits that the judge was wrong to find that the warrants complied with section 2. She says that the warrants do not clearly specify which conduct is said to constitute the offences, and that it has all the hallmarks of a civil dispute rather than a criminal offence. The particulars are insufficient and inherently contradictory, the further information obscures rather than clarifies the information provided in the warrants, and the judge erred in not recognising that. In answer to a question about the responsibility for the failure to register the sale in 1998, it was said that this was “due to a mistake in good faith and due to lack of foresight.” It was also said that the alleged criminality was the mortgaging of the land in 2010 and that this amounted to an offence of extortion of money by false representations, yet that phrase does not appear in the warrants. The further information also says that the conduct amounted to an offence of obtaining goods by false pretences, and that the relevant conduct was that the appellants “falsely sold the land to the complainant, with the intention of getting the money and then mortgaging the land to secure a loan for their own purposes.” That suggests that the offending took place in 1998 at the time the land was sold, which is inconsistent with the recognition that the failure to file the sales agreement was due to a mistake on the part of the complainant. Further, the warrants and the further information contain a great deal of detail, the relevance of which is unclear, but they do not contain sufficient information to assess the seriousness of the alleged offences. The judge erred in identifying what she said was the conduct that constituted the alleged offending, without explaining how she was able to identify that conduct from what was a confused and contradictory narrative. She also erred in failing to appreciate that it was not possible to assess the seriousness of the offending, or to assess whether the dual criminality test is satisfied, or to ensure proper specialty protection.[26]Ms Collins submits that the judge accurately assessed the information provided in the warrants and the subsequent further information. The judge correctly identified that the core of the alleged underlying criminal act started in 2005 and encompassed the subsequent mortgaging of the land. She specifically addressed the appellants’ complaints about suggested inconsistencies and lack of clarity in the warrants, and whether sufficient particulars were given to identify if there is any bar to extradition.

Should the judge have decided that the warrants did not comply with section 2?

[27]As the judge recognised, the particulars in the warrants could have been more clearly set out. It is, however, sufficiently clear what is alleged, and the particulars are sufficient to identify whether that amounts to an extradition offence. The initial sale in 1998 provides the background to the offending but is not itself part of the offending. That is because the warrants make it clear that the charging period started in 2005. That is when the title was registered in the names of the first appellant’s company and the second appellant. The registration of title in those names was dishonest because the appellants knew that the land had been sold to the complainant in 1998. That registration in 2005 then enabled the land to be mortgaged by the second appellant in a series of transactions between 2005 and 2010. The use of the language “extortion of money by false representations” does not render the warrants invalid. It is sufficiently clear that what is alleged is that the appellants took advantage of the failure of the complainant to register the land, by dishonestly registering it in the name of the second appellant, and companies operated by the first appellant, and then dishonestly mortgaging the land. Nor is there any difficulty about assessing the seriousness of the conduct. The appellants’ culpability can be assessed: it amounts to joint, deliberate and dishonest offending over a considerable period. The harm that was intended can also be assessed within an order of magnitude (and that is sufficient to determine whether there is any bar to extradition): a mortgage was obtained for a six figure sum in euros. Whether some of that was repaid may impact, at the margins, on the degree of seriousness of the offence, but it does not prevent a broad assessment being made for the purpose of determining whether there is any bar to extradition. The judge was also right to find that the particulars were sufficient to assess whether the conduct alleged amounts to an extradition offence. For the same reason, the particulars are sufficient to ensure specialty protection. Ground 2: section 10 – extradition offence The judge’s judgment

Ground 2: section 10 – extradition offence

[28]The judge observed that the further information made it unequivocal that dishonesty was alleged: the title was registered in the name of the second appellant and the first appellant’s company “with the intention of… mortgaging the land to secure a loan for their own purposes” and “[b]oth wanted persons knew that the plot in question was sold but still they mortgaged it. So, they knew that their actions were dishonest as they were not entitled to mortgage the plot.” The judge said that the conduct alleged would amount, in England and Wales, to an offence of obtaining property by deception under section 15A of the Theft Act 1968 or, to the extent that it was committed after 15 January 2007, to an offence of fraud by false representation under section 2 of the Fraud Act 2006.

Submissions

[29]Ms Beatty says that because the warrants do not provide sufficient or sufficiently clear particulars of the conduct that is alleged, it is impossible to determine whether what is alleged amounts to an extradition offence. Further, the judge did not sufficiently address the question of mens rea in relation to the second offence alleged in each warrant, which is the alleged offence of obtaining goods by false pretences. She says that no inference of dishonesty can be drawn in relation to the original sale of the land in 1998, and there is no evidence that the second appellant was even involved in that sale.[30]Ms Collins says that the warrants contained sufficient particulars, that the judge clearly addressed the arguments in relation to mens rea, and that her conclusion that dishonesty was alleged could not be faulted.

Should the judge have decided that the conduct alleged does not amount to extradition offences?

[31]For the reasons I have given in respect of ground 1, the warrants contain sufficient particulars of the underlying conduct. They provide sufficient information to determine whether the conduct alleged would amount to a criminal offence in England and Wales.[32]The submission that it cannot be inferred that the appellants acted dishonestly at the time of the sale of the land in 1998 misses the point. It is clear from the warrants that the conduct that is said to constitute the offences commenced in 2005: each warrant states that it has been issued “for the commission of the following criminal offenses, committed between 2005 – 2020”. It is not the original sale of the land in 1998, but the subsequent registering of the land in the names of the second appellant and the first appellant’s company, and the subsequent mortgaging of the land, which constitutes the alleged offending. When the warrants are considered in the light of the further information, the allegation is that these transactions took place dishonestly, the appellants knowing that they no longer owned the land and were not entitled to register title to the land or to mortgage the land and yet they deliberately and dishonestly registered and mortgaged the land. That is sufficient mens rea for offences contrary to section 15A of the Theft Act 1968 or section 2 of the Fraud Act 2006.[33]The judge was therefore right to find that the conduct alleged amounts to an extradition offence. Ground 4: article 3 ECHR The judge’s judgment

Ground 4: article 3 ECHR

[34]Evidence was adduced before the judge of overcrowding at Nicosia Central Prison. In the light of that evidence, the judge concluded that, absent an assurance, there was a real risk that the appellants would be held in conditions in which they would be afforded personal space of less than three square metres per person, and that this would breach article 3 ECHR. However, the respondent’s Ministry of Justice provided this assurance:
“We assure you that both subjects will have a personal space of at least 3 square meters in compliance with Article 3 of the European Convention on Human Rights.”
[35]The judge rejected a suggestion from Nicoletta Charalambidou, an expert witness on prison conditions instructed by the appellants, that the Ministry of Justice was not the appropriate body to give such an assurance, because it did not have operational control over the prison authorities. She queried whether Nicoletta Charalambidou had the requisite expertise to address this issue.[36]The judge accepted that the assurance was issued by a competent authority and that the prison authorities would abide by the assurance. She considered that the assurance was sufficiently specific to address the question of the personal space that would be available to the appellants. She also rejected an argument that the prison authorities would be incapable of adhering to the terms of the assurance. The judge recognised that some concerns had been raised about the broader prison conditions, but she did not accept that these reached the threshold necessary to engage article 3 ECHR.

The fresh evidence

[37]The appellants seek to rely on fresh evidence, primarily comprising evidence as to prison conditions that has emerged since the judge’s judgment. That evidence includes a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment dated 17 May 2024 and updated evidence from the appellants’ expert on prison conditions, Nicoletta Charalambidou, which draws on that report. The respondent does not oppose the appellants’ application to rely on fresh evidence, and seeks to rely on evidence in response, primarily the response by the Cypriot authorities to that report.[38]The real issue on this ground of appeal is therefore not simply whether the judge was wrong on the basis of the evidence that was before her, but whether, in the light of all the evidence that is now available, the judge would have concluded that there was a real risk of one or both appellants being subjected to inhuman or degrading treatment.[39]The executive summary to the May 2014 report states that Nicosia Central Prisons has a capacity of 545 but an occupancy of 1,000, with some blocks operating at three times their design capacity. This results in serious issues afflicting the establishment:
“the CPT found some dire conditions: 5m² cells, which are not even appropriate for accommodating one person, were crammed with up to four prisoners. Large numbers of prisoners were sleeping on mattresses on the floor under the bunk beds, under the tables and on every available space in the cells. The situation was exacerbated by permitting smoking in communal spaces and rooms resulting in many prisoners being exposed to passive smoking and its associated health risks. Further, there was a lack of ready access to toilets at night, linked to the lack of staff available to let prisoners out of their cells to use the block’s toilets, which resulted in prisoners urinating in bottles, in these hot, packed cells. Meanwhile, the open prison was operating at half of its capacity. As for the daily regime, prisoners still had nothing meaningful to do to structure their day, including those who were there for long or life sentences. There were very few purposeful activities other than cleaner jobs on the blocks, many of which were allocated by informal prisoner leaders and some prisoners did not have any access to a regime outside of their blocks at all. The appalling material conditions and lack of regime cumulatively can only be described as amounting to inhuman and degrading treatment.”
[40]This is exacerbated by a lack of front-line staff, which:
“created a breeding ground for the development of informal prisoner hierarchies to maintain control and enforce discipline on the blocks. The CPT found that prisoner leaders ran some of the blocks, and allegedly meted out punishments, including ordering group beatings of prisoners. The incidents were not always reported, and appeared neither to be properly recorded nor investigated by staff and management. The CPT stresses that allowing informal hierarchies to develop and impose punishments resulting in prisoners not being safe raises clear issues under Article 3 of the European Convention on Human Rights (ECHR) and the authorities’ duty of care to all persons held in NCP.”
[41]The appellants also rely on updated expert evidence from Nicoletta Charalambidou. Ms Charalambidou’s updated report explains that she had worked in the Attorney General’s office for 10 years in positions that provided “sufficient knowledge of the inner workings of the Government.”[42]The Cypriot authorities provided a written response to the May 2024 report. They did not dispute the findings in that report and specifically acknowledged the problems due to overcrowding, which were described as “the most serious problem affecting the Cyprus Prisons Department”. They express their “strong commitment to improve, where necessary, the protection of all persons deprived of their liberty.” Increasing the capacity of the central prisons to 1,200 detainees would significantly reduce the problems. They were making continuous efforts to recruit and train new staff, and had already appointed 87 new officers by July 2024, with a further 61 to be recruited by the end of 2024.[43]The respondent has also provided further information, dated 30 October 2024. This states that the Ministry of Justice “has the authority to approve the technical specifications of the prisons, as well as of their equipment, following the standards set by the European Convention on Human Rights and therefore is the competent body to issue the Assurances.”

Submissions

[44]Ms Hill says that the judge was wrong to find that she could rely on the assurance given by the Ministry of Justice, because that did not bind the prison authorities. The judge also erred in considering general prison conditions as a discrete question from the issue of cell-space. The authorities, including Muršić, show that the issues are inextricably linked, particularly where a prisoner has less than 4 square metres of personal space in their cell. The assurance does not guarantee that the appellants will have adequate and appropriately screened sanitary facilities within their cells. Nor does it address concerns about detainees being forced to sleep on the floor, sometimes without mattresses, the lack of natural light or ventilation and inter-prisoner violence.[45]Ms Collins submits that the judge was entitled to find that it had not been shown that Ms Charalambidou had the necessary experience to opine on whether the Ministry of Justice was the appropriate body to provide an assurance as to prison conditions. The updated evidence does not change that. Ms Collins acknowledges that the May 2024 report highlighted problems within Nicosia Central Prison, including as a result of overcrowding. However, the respondent was addressing the issues that arose appropriately, including by increasing the capacity of the prison to approximately 1,200 detainees and by recruiting and training more staff, and improving toilet access, ventilation and time outside of cell. Ms Collins submits that the judge properly assessed the physical prison conditions and inter-prisoner violence, and she was entitled to conclude that these did not establish a significant risk of inhuman or degrading treatment. Should (or, in the light of the fresh evidence, would) the judge have decided that there a real risk of inhuman or degrading treatment?[46]The respondent has provided an express and specific assurance that the appellants will have at least 3 square metres of personal space. The assurance has been given by the Ministry of Justice, which the respondent has stated is the appropriate body to give such an assurance. The judge was entitled to conclude that the assurance was sufficiently clear and specific and that it was given by an appropriate body. The evidence of Ms Charalambidou as to the hierarchical relationship between the Ministry of Justice and the prison authorities, and the operational independence of the latter, and the expert’s experience in working in the Attorney General’s Office, does not change any of that. She accepted that the Ministry of Justice had overall supervision of the prison authorities, and she did not suggest, in terms, that the prison authorities would not comply with an assurance given by the Ministry of Justice.[47]There are problems with prison overcrowding in Cyprus, but this does not mean that the prison authorities will not be able to comply with the assurance. It just means that they will need to ensure that these two individuals each have at least three square metres of personal space, even if that puts them in a better position than other prisoners. Compliance with this assurance can be monitored without difficulty, and the evidence shows that the prison authorities cooperate with, for example, the European Committee for the Prevention of Torture. The judge was entitled to conclude that she was able to rely on the assurance, and the further evidence does not change that.[48]It follows that the appellants will each have at least 3 square metres of in-cell personal space. It follows that there is no real risk of inhuman and degrading treatment by reason of cell space alone. As Muršić shows, it remains necessary (particularly where, as here, the appellants might not have more than the bare minimum of 3 square metres of personal space) to consider the balance of the prison conditions and to make a holistic assessment as to whether those conditions meet the minimum threshold to engage article 3. That is what the judge did and her assessment, based on the evidence that was before her, cannot be faulted.[49]Matters have moved on since then. There is now the May 2024 report, which shows that prison conditions in Cyprus have significantly deteriorated since the time of the evidence that was before the judge. The extent of violence within the prisons does not mean that the conditions meet the threshold to engage article 3: the May 2024 report says that the vast majority of prisoners did not complain about ill-treatment by staff, and serious inter-prisoner violence was limited to “several cases”. However, the report does show that there were significant systemic problems with the regime, particularly with a lack of beds and mattresses, poor sanitary facilities, and a lack of natural light, cell ventilation, and out of cell activities. The response to the report does not demonstrate that those issues have all been remedied.[50]The assurance only addresses personal space, ensuring that the appellants will have the bare minimum of 3 square metres. That bare minimum, taken together with the wider problems with the regime, means that there is now a real risk of the appellants facing inhuman or degrading treatment. In the light of the fresh evidence, the judge would have found that extradition is incompatible with article 3 ECHR and would therefore have discharged both appellants.[51]It follows that the appeal will be allowed on this ground, unless the respondent provides supplementary information as to the conditions in which the appellants will be held (particularly as to in-cell sanitation with a degree of privacy, cell ventilation and natural light, and the out of cell regime) which enables the court to be satisfied that there is no longer a real risk that the appellants will suffer inhuman and degrading treatment if they are extradited.

Ground 5: article 8 ECHR

[52]The issue that arises under ground 5 is whether the judge was wrong to conclude that the extradition of each appellant is compatible with the right to respect for private and family life under article 8 ECHR because it does not amount to a disproportionate interference with that right. The judge’s judgment[53]The judge said that it was a factor in favour of refusing extradition that the appellants had established four successful businesses in the United Kingdom and that they maintained that extradition would result in the loss of their home and their business. Their adult daughters would likely have to move home, and there would be familial separation. The first appellant had some physical health issues. Further, it was not clear whether the complainant had suffered any direct financial loss. As against that, in respect of factors that weighed in favour of extradition, the judge said that the alleged offending was serious in that it concerned allegations of fraud committed over a period of 5 years. Although the exact value of the fraud was unclear, the land had originally been sold for £32,600 or £52,650 and the outstanding mortgage balance had, at one point, been €359,228.16. The appellants did not have any dependents for whom they were the sole or main carers (whether emotionally or financially). The judge paid particular attention to the businesses. She said that there was no documentary evidence to support the proposition that the businesses could not survive in the event of the appellants’ extradition. The judge said that such evidence as was adduced on this point was entirely unconvincing. She rejected the assertion that they would be unable to hire people to assist them to run the businesses and observed that their daughter was qualified in business management and had some familiarity with one of their businesses.[54]As to the appellants’ daughters, the judge said that they were both well-educated and in employment. It did not appear that they would be rendered homeless if their parents were extradited, albeit one might have to take on additional responsibilities with respect to her parents’ businesses.[55]The judge considered that the arguments weighing both in favour and against extradition were finely balanced, but did not accept that extradition would be a disproportionate interference with the article 8 rights of either the appellants or their family.

Submissions

[56]Ms Beatty says that that the judge was wrong to describe the offence as “serious”. The standard of proof in extradition proceedings is the criminal standard: section 206 of the 2003 Act. The judge was not entitled to draw conclusions based on reasonable, as distinct from inevitable, inferences, and she was not entitled to speculate about any losses that may have been sustained. The judge was wrong to say that the absence of dependents could be a factor in favour of extradition. She was unduly critical of the lack of documentary evidence, and it is not typical in extradition proceedings for requested persons to exhibit their financial accounts. It had not been put to the appellants that they were lying, and the judge was wrong not to accept their evidence.[57]Ms Collins says that the judge did not make any factual errors in her assessment of the seriousness of the alleged offences or in her approach to balancing the factors in favour of, and against, extradition. She was right to find that there was no documentary evidence to support the proposition that the businesses could not survive in the event of extradition, and she had been entitled to reject the evidence of the appellants and one of their daughters that the businesses could not be taken over by anyone else. The reality is that there would be some hardship to the family members, but this fell well short of the threshold at which extradition would amount to a disproportionate interference with the right to respect for private and family life.

Was the judge wrong to find extradition compatible with article 8 ECHR?

The judge was entitled to find that this offending was serious:

[58]it was deliberate, sustained, dishonest, and involved the appellants unlawfully obtaining a large (six figure Euro) sums of money. That is the case irrespective of the precise losses that were sustained or the sentence that might be imposed by a domestic court, as to which it is unnecessary to speculate. The judge was also entitled, in her assessment of the evidence, to reject the assertions that the businesses could not survive the appellants’ extradition. Even if she were wrong on that latter point, she was still right to conclude that extradition was compatible with the appellants’ (or their daughters’) rights to respect for their private and family lives under article 8. As the judge observed, there is a strong and continuing important public interest in the United Kingdom abiding by its international extradition obligations. There were no dependents for whom either appellant was the sole or main carer.[59]Strictly, and analytically, I agree with Ms Beatty that the absence of dependents is not a factor in favour of extradition. It is, however, a factor that impacts on the assessment of the impact that extradition would have on the right to respect for private and family life. Where there are individuals, particularly children or vulnerable adults, who are dependent on a requested person and whose lives would be severely impacted by that person’s extradition, then that can be a significant factor in the balance. Here, that factor is not present. The practical effect is that the weight to be attached to the right to respect for family life is less than would otherwise be the case. Accordingly, even if the judge was, strictly, wrong in listing this factor on one side of the balance rather than the other, that does not make a material difference.

Outcome

[60]Ground 3 of the grounds of appeal has been withdrawn. Grounds 1, 2 and 5 are dismissed because it has not been shown that the judge ought to have decided differently a question that was before her.[61]As to ground 4, I grant permission for the parties to rely on the further evidence relating to prison conditions that was adduced on the appeal. In the light of that further evidence, the judge would have decided that extradition is (in the absence of any further information) not compatible with article 3 ECHR.[62]I will not make any final order on the appeal at this stage, pending the respondent having an opportunity to provide further information. If no further information is provided, or if any further information does not sufficiently address the risk of the appellants suffering inhuman or degrading treatment, the appeal will be allowed on ground 4. If further information is provided which does sufficiently address the risk, then the appeal will be dismissed.

order

Office of the King’s Prosecutor v Cando-Armas [2005] UKHL 67 [2006] 2 AC 1 per Lord Bingham at [28].

Cited in 1 later judgment