Case No. CO/9812/2010 
Neutral Citation Number: [2011] EWHC 759 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 15 March 2011
 
B e f o r e:

LORD JUSTICE SULLIVAN 
 
MR JUSTICE MADDISON 
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Between: 
AGIUS 
Appellant

v 

COURT OF MAGISTRATES MALTA 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr D Rhodes (instructed by Sonn MacMillan Walker) appeared on behalf of the Appellant 
Mr T Cadman (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent 
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J U D G M E N T 

1.	MR JUSTICE SULLIVAN:  This is an appeal under section 26 of the Extradition Act 2003 (the Act) against the decision, dated 10 September 2010, of District Judge Evans to order the extradition of the appellant to Malta.
2.	The appellant is a citizen of Malta, although according to the statement of issues served on his behalf he has been resident in the United Kingdom since 1974.  His extradition is sought by the Director of Criminal Courts and Criminal Tribunals in Malta (the Judicial Authority) in an "accusation" European Arrest Warrant (EAW), issued on 22 September 2009.  The appellant is accused of participating between 6 August and 6 September 2006 in a conspiracy to import nearly 10,000 Ecstasy tablets into Malta.  The appellant is said to be the organiser, financier and main conspirator.  He denies the accusation.  
3.	The grounds of appeal do not challenge the validity of the warrant in any way.  They are concerned with the District Judge's approach to three issues which were raised on behalf of the appellant under section 21 of the Act, which is concerned with human rights and provides, so far as relevant for present purposes:
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.  
 (2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge. 
 (3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued."  
Malta is a Category 1 territory.
4.	The three issue were as follows.  It was submitted on behalf of the appellant that if extradited to Malta: 
(i) he would be denied bail in circumstances that would breach his rights under Article 5 of the Convention; 
(ii) there would be such a lengthy delay before his trial commenced that he would be denied a trial within a reasonable time, contrary to Article 6; and 
(iii) when detained in the one and only prison on the island, the Corradino Correction Facility (the CCF), he would be kept in conditions that would amount to inhuman and degrading treatment such as to contravene his rights under Article 3 of the Convention.  
5.	In paragraph 12 of the judgment the District Judge referred to three decisions of Mitting J:  (1) Jan Rot v  District Court of Lublin, Poland [2010] EWHC 1820 (Admin), (2) Tomasz Dabkowski v District Court in Gorzow, Poland [2010] EWHC 1712 (Admin) and (3) Arvdas Klimas v Prosecutors General Office of Lithuania [2010] EWHC 2076 (Admin).
6.	In Klimas Mitting J said in paragraph 13 of his judgment: 
"Accordingly, and as a matter of principle, I would hold as I did in Jan Rot that when prison conditions in a Convention category 1 state are raised as an obstacle to extradition, the district judge need not, save in wholly extraordinary circumstances in which the constitutional order of the requesting state has been upset for example by a military coup or violent revolution examine the question at all. ..."
The District Judge adopted that approach to the three issues raised on behalf of the appellant.  In paragraph 17 of his judgment he said: 
"It is not suggested that any wholly extraordinary circumstances apply in the case of Malta.  In the light of those decisions I do not intend to address the issues raised by the defendant but to assume that Malta will provide the defendant with all the protection he requires so as not to breach any of his human rights under the Convention."
 In paragraph 19 the District Judge said: 
"I know that the JA [Judicial Authority] in Category 1 territories know of their obligations to ensure ECHR compliance and I trust them to act appropriately.  There is no need to undertake enquiries." 
7.	In case a contrary view was taken on appeal, the District Judge in paragraph 21 of his judgment considered the documentary material that had been submitted on behalf of the appellant (no oral evidence was heard), and concluded that there was no real risk that the appellant's Convention rights would be contravened.  He said: 
"On the merits the defendant has not established that he would suffer a flagrant breach of his fair trial rights in relation to delay.  In fact, if the co‑conspirator has been on remand for 4 years already, it is reasonable to assume that once the defendant joins him in Malta the trial will be ready to commence just as soon as the defendant is ready.  As to whether bail is granted that is a judicial decision to be taken on the defendant's arrival and there is no reason to think if he is remanded into custody that would be unlawful or in any way contrary to article 5.  As to prison conditions it has not been established by the defendant that there are any substantial grounds to believe he is at a real risk of being subjected to article 3 ill‑treatment if he is held in the CCF ..."
8.	On behalf of the appellant, Mr Rhodes submitted, in a nutshell, that Mitting J had gone too far in deciding that, save in the wholly extraordinary circumstances he had referred to in Klimas, District Judges need not examine the question of prison conditions at all.  The proposition that the District Judge drew from the three authorities, that there was no need for him to undertake enquiries, was contrary to the express requirement imposed upon him by section 21(1) to decide whether extradition would be compatible with this appellant's Convention rights.  
9.	In support of his submission Mr Rhodes relied on the subsequent decision of the Grand Chamber of the European Court of Human Rights in MSS v Belgium and Greece (application number 300696/09), dated 21 January 2011, and on the decision of Toulson LJ on 2 February 2011 in Targosinski v Judicial Authority of Poland [2011] EWHC 312 (Admin), which Mitting J considered in Palczynski v The District Court in Zamosc [2011] EWHC 445 (Admin).  
10.	In MSS an Iraqi asylum seeker travelled through Greece before claiming asylum in Belgium.  He contended that his claim for asylum would not receive proper consideration if he was returned to Greece and that the immigration detention conditions in Greece were such as to breach Article 3.  Numerous reports were submitted to the Belgian authorities in support of his claims.  The Belgian authorities proposed to return him to Greece relying on the presumption that Greece, as a signatory to the Convention, would honour its obligations under the Convention.  
11.	The Grand Chamber considered the earlier decisions in 
TI v the United Kingdom (decision number 43844/98 ECHR 2000 ‑ III) and KRS v the United Kingdom (application number 32733/08).  Applying the principles that had been established in those cases to the facts before it in MSS, the Grand Chamber said in paragraph 345: 
"The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the KRS case‑law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case." 
In paragraph 353 Grand Chamber said: 
"353. The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in 
Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill‑treatment where, as in the present case reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008‑...)."
The Grand Chamber then discussed the material that had been placed before the Belgian Government before continuing:  
"358. In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him. 
359. The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3.  The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, § 132)." 
12.	In Targosinski Toulson LJ, sitting in the Administrative Court, said in paragraph 5: 
"The framework of the European Arrest Warrant scheme is constructed on a basis of mutual trust between the parties to the Convention, all of whom belong to the Council of Europe.  The starting point is therefore an assumption that the requesting state is able to, and will, fulfil its obligations under the Human Rights Convention."  
Having referred to KRS, Toulson LJ cited paragraph 11 of Mitting J's judgment in Jan Rot and continued in paragraphs 7 and 8: 
"7. In the next paragraph he [Mitting J] went on to acknowledge that an exception might apply if the constitutional order of the Convention State was overthrown, for example by a revolution. Otherwise, the passage cited appears, on its face, to amount to excluding any possibility of a defendant rebutting the presumption referred to in KRS v United Kingdom so long as the constitutional government of the requesting state remains intact. 
8. If that is the correct way of reading his judgment, I respectfully consider that he put the matter too high. It is possible to envisage other circumstances in which a defendant might be able to displace the presumption.  
Toulson LJ then gave an example where a defendant would be able to place cogent material before an English court so as to displace the presumption.  He concluded in paragraph 11: 
"Given the presumption with which the court starts, it will require clear and cogent evidence to establish that in a particular case the defendant's extradition would have contravened his human rights.  See the observations of Lord Bingham in Ullah [2004] 2 AC 323, particularly at paragraph 24 ..." 
13.	In paragraph 24 of his speech in Ullah Lord Bingham said that the Strasbourg jurisprudence had made it clear that those who sought to rely on Convention grounds to resist extradition or expulsion had to present "a very strong case" in order to succeed.  Lord Bingham emphasised the difficulty of meeting what he described as the "stringent test", which the Strasbourg Court imposed on applicants who sought to rely on Articles 3, 5 and 6.
14.	In Palczynski Mitting J accepted that in the light of the decisions in MSS and Targosinski the principle that he had sought to extract from KRS had to be qualified and restated.  He qualified and restated the principle as follows in paragraph 10 of his judgment: 
"Exceptional circumstances, of which the overthrow of the constitutional order of a state, or the fact established by clear evidence that the protection afforded to an individual by his right to apply for relief to the courts of the requesting state and to the Strasbourg Court, is illusory are paradigm examples, and may justify refusal or quashing of an order for extradition under sections 21 or 27 of the 2003 Act. Otherwise complaints about possible breaches of Convention rights are a matter between the individual and the requesting state." 
15.	Mr Rhodes submitted that that qualification did not go far enough.  There was no need for an appellant to demonstrate "exceptional circumstances".  
16.	On behalf of the respondent Mr Cadman accepted that in the light of the Grand Chamber's decision in MSS the correct approach was that of Toulson LJ in Targosinski.  He submitted that the material before the District Judge did not amount to clear and cogent evidence that was sufficient to displace the presumption that Malta could, and would, comply with the Convention.
Discussion and Conclusions 
17.	I have no doubt that the proposition that there is no need to undertake enquiries, save in wholly extraordinary circumstances, goes too far.  Section 21(1) imposed an obligation on the District Judge to reach a decision as to whether extradition would be compatible with the appellant's Convention rights.  A judicial decision is made only after the judge has undertaken a proper inquiry.  
18.	In the light of the Grand Chamber's decision in MSS, the position is, in my judgment, as set out by Toulson LJ in Targosinski.  The starting point for any inquiry for the purpose of making a decision under section 21(1) is the assumption (or presumption, it matters not) that the requesting state is able to, and will, fulfil its obligations under the Convention.  Given the underlying objective of the EAW scheme, that assumption is not easily displaced.  However, it is capable of being rebutted by clear and cogent evidence, which establishes that, in any particular case, extradition would not be compatible with the defendant's Convention rights.  
19.	In this context it is important to bear in mind paragraph 24 of Lord Bingham's speech in Ullah.  There must be strong grounds for believing that any ill‑treatment will be so serious as to cross the high Article 3 threshold.  In the context of Article 6 there must be substantial grounds for believing that there is a real risk of a flagrant denial of a fair trial.  In practical terms, therefore, the burden of displacing the assumption will be a heavy one, and it may well be the case that as a matter of fact successful reliance on section 21(1) will be the exception rather than the rule, but that does not mean that there is a legal obligation on an appellant relying on section 21(1) to demonstrate "exceptional circumstances".  
20.	Adopting the approach of Toulson LJ in Targosinski, was there clear and cogent evidence before the District Judge which was capable of rebutting the presumption in this case?  In my judgment the answer to that question must be "No".  
21.	The principal evidence relied upon by the appellant was a report on the CCF by Mrs Zarif Bahtiyar of the Tilburg University in the Netherlands (the report).  Looking first at prison conditions, her conclusion in paragraph 2.3 of the report was: 
"The ECtHR [European Court of Human Rights] has never ruled against Malta regarding Article 3 ECHR.  According to the CPT and other organisations in the public domain, the overall detention conditions at Corradino are acceptable.  According to these bodies, this does not mean there are no issues to be improved.  It should be mentioned that the reports published by these organisations are quite dated and do not represent the current situation regarding the detention conditions at Corradino.  I do not have a perception of the present situation at Corradino as there are no recent reports in the public domain and I have not been able to witness the circumstances by myself.  On the basis of the currently available data in the public domain, it cannot be stated that the prison conditions at Corradino would breach Article 3 ECHR.  However, as already mentioned, there are reliable notes which state the report on the 2008 CPT visit to Corradino to be critical concerning the conditions in certain divisions of the prison.  This could be an indication that the current conditions at Corradino contrast with the previous CPT findings."  
So far as the other two issues raised on behalf of the appellant are concerned, the report concludes in paragraph 1.4: 
"Based on reports from several organisations and supported by case‑law of the ECtHR [European Court of Human Rights] ruled against Malta regarding Articles 5(3) and 6(1) ECHR, there is a serious chance that Malta cannot guarantee a trial within a reasonable time.  It should also be taken on notice that non‑residents are not likely to be released on bail as there is a risk of absconding." 
Mr Rhodes fairly conceded that in the light of the conclusion in paragraph 2.3 of the report he could not rely on Article 3 as a ground, in its own right, for resisting extradition.  He submitted that the unpleasant conditions in prison that the appellant would be likely to face had to be considered in conjunction with the likelihood that there would be an unreasonable delay before his trial could commence, and the likelihood that he would not be granted bail pending trial.
22.	For completeness I should mention that the report of the 2008 visit of the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (the CPT) was published on 17 February 2011.  In my judgment that later report is not realistically capable of altering the overall conclusion in paragraph 2.3 of the report.  It is perfectly true that the latest report does make a number of criticisms of certain aspects of the CCF, but it is also important to note that the report says in paragraph 102: 
"To sum up, significant efforts continued to be made by the Maltese authorities to increase the quality of prisoner accommodation at the CCF.  However, much remained to be done in several parts of the establishment." 
In my judgment that does not provide an adequate foundation for the proposition that there is a real risk of treatment contrary to Article 3.
23.	Turning to the question of bail, it is clear from the report that there is no automatic detention pending trial in Malta and a decision as to whether or not to grant bail is a judicial decision.  The bold proposition that non‑residents are not likely to be released on bail has to be considered against the background that the appellant in the present case, although resident in the United Kingdom for many years, is, or at least was originally, (the evidential position is unclear) a Maltese citizen.  In the absence of any evidence before the District Judge that the appellant will no longer have any local connections in Malta, for example, family or friends, it could not be assumed that he would be refused bail simply because he was a non‑resident.  There might well be other grounds for refusing him bail, for example, the risk of absconding in the light of the seriousness of the alleged offence, but there is no reason to suppose that such factors would not be properly considered by the Maltese courts.
24.	I turn to the only matter which is potentially, at least, of some concern, which is whether there is a real risk that if extradited the appellant would not be tried within a reasonable time.  It is not suggested that any delay would be so long as to prevent a fair trial.  The submission rather is that the appellant is entitled under Article 5(3) and/or Article 6(1) to a trial within a reasonable time.  
25.	The difficulty with this submission is that a decision as to what delay would be an unreasonable delay in any particular case is bound to be fact sensitive.  It is not appropriate to apply a rule of thumb approach.  The two cases relied on by Mr Rhodes, which are referred to in the report: Calleja (Application no 75274/01) and Zarb (Application no 16631/04), in which the European Court of Human Rights found that there had been a breach of the applicants' Convention rights, because there had been an unreasonable delay in bringing their cases to trial, both dealt with the position in Malta some years ago.  The cases were decided by the European Court of Human Rights in 2005 and 2006 respectively, and dealt with procedural delays that had occurred some years previously.  
26.	Mr Rhodes relies on the most recent report of the United Nations Working Group on Arbitrary Detention, dated January 2010.  That report refers to a visit that the Working Group made to Malta in January 2009.  The relevant paragraph in the summary of the report is as follows: 
"In its report, the Working Group notes a number of positive aspects with respect to the institutions and laws safeguarding the occurrence of arbitrary deprivation of liberty.  However, with regard to criminal justice, it observes the relatively long periods which the accused spend in pre‑trial detention and the high rate of detainees on remand as compared to the overall prison population, as well as the fact that the rules of release on bail are not applied by the courts equally to Maltese citizens and foreigners alike.  It also notes the non‑existence of a system of release on parole; this is, however, in the offing according to the Government." 
It is, however, also important to note what was said in paragraph 15 of the Working Group's findings: 
"The Working Group notes with appreciation the well‑established institutional and legal safeguards against arbitrary detention prevailing in Malta.  It also welcomes the readiness of the Government of Malta to develop its laws and institutions wherever it is deemed necessary.  Following an amendment of the criminal laws, the time spent by the accused in pre‑trial detention is now automatically deducted from the prison term." 
27.	Read as a whole, the report is an insufficient basis, in my view, for the Appellant to establish that there is a real risk that he will face an unreasonable delay before his trial commences.  The appellant has pointed out that his alleged co‑conspirator has already been in detention since 2006.  In the light of this, it is submitted on his behalf that the appellant can expect no less a delay in his case.  
28.	I do not accept that submission.  It may well be the case that the District Judge was somewhat optimistic in saying that it was reasonable to assume that once the appellant joined his co‑defendant in Malta "the trial will be ready to commence just as soon as the [appellant] is ready." However, it is a reasonable inference that the Maltese authorities, when deciding when the trial of the two alleged conspirators should commence, will bear in mind the fact that one of the alleged conspirators has been remanded in custody since 2006.  Moreover, it is not an unreasonable inference that since the appellant is alleged to be the principal conspirator his presence in Malta will remove a, if not the, principal obstacle to a speedy trial of both alleged conspirators. 
29.	In these circumstances I would dismiss the appeal.  The District Judge erred in concluding that there was "no need to undertake enquiries", but applying the approach in MSS and Targosinski there was no cogent evidence before the District Judge which was sufficient to rebut the presumption that Malta would comply with its obligations under the Convention.
30.	MR JUSTICE MADDISON:  I agree and have little to add.  In my view section 21 of the 2003 Act and the authorities exemplified by the decision of the Grand Chamber in MSS v Belgium and Greece, and the decision of this court in Targosinski v Judicial Authority of Poland, support the following propositions stated very briefly.  
31.	Section 21 of the 2003 Act is framed in mandatory terms.  In a case to which it applies it requires the judge to decide whether the Convention rights of the person whose extradition is requested, would be respected by the requesting territory were that person to be extradited.  Section 21 applies to Category 1 territories, which are signatories to the European Convention on Human Rights.  
32.	It must therefore follow that a court would be wrong to proceed on the basis that because the requesting territory is a Category 1 territory the court need not, absent exceptional circumstances, examine the compatibility of the proposed extradition with the human rights of the person concerned.  That examination should take place in every case to which section 21 applies.  
33.	In making that examination, however, a court may legitimately assume that a signatory to the European Convention will comply with it.  That assumption is rebuttable, but only by cogent evidence satisfying the stringent tests referred to in paragraph 24 of the speech of Lord Bingham in the case of Ullah, to which my Lord, Sullivan LJ, has referred.  
34.	In the present case the District Judge was therefore wrong, in my view, to rule that he did not need to consider the compatibility of the proposed extradition with the appellant's Convention rights.  However, in paragraph 21 of his judgment he did in fact make the decision required of him by section 21 of the 2003 Act, albeit by way of what might be described as a "backstop"; and, in my judgment, having regard to the need for cogent evidence and to the stringent tests to which I have referred, he was in my view entitled to conclude that the extradition would be compatible with the appellant's rights under Articles 3, 5 and 6 of the Convention for the reasons clearly explained by my Lord, repetition of which would serve no useful purpose.  
35.	Accordingly I too would dismiss this appeal.
36.	MR JUSTICE SULLIVAN:  The order of the court is that the appeal is dismissed.  What further orders are sought, if any? 
37.	MR RHODES:  Simply that Mr Agius is publicly funded and may I have the costs assessed, please?  
38.	MR JUSTICE SULLIVAN:  You may.  Is there no other application? 
39.	MR CADMAN:  No other application.
40.	MR JUSTICE SULLIVAN:  Very well.  The appeal is dismissed and there will be a detailed assessment of the appellant's publicly funded costs.
41.	MR RHODES:  My Lord, thank you.  
42.	MR JUSTICE SULLIVAN:  Any more for any more?
43.	MR RHODES:  He is currently on bail and in due course he will have to surrender, but may he remain on bail until that ‑‑ 
44.	MR JUSTICE SULLIVAN:  There is no objection to that? 
45.	MR CADMAN:  There is no objection to bail conditions remaining as before.  I only ask whether there is a reporting requirement? 
46.	MR RHODES:  He is currently reporting three times a week: Monday, Wednesday and Friday, and is electronically tagged with a curfew: he has to be indoors by 8 o'clock? 
47.	THE APPLICANT:  From 6 to 8: 6 in the morning until 8 in the evening.
48.	MR JUSTICE SULLIVAN:  Are you content, subject to those being continued? 
49.	MR CADMAN:  It is only to ensure that he is reporting so he can properly be notified when removal is effected.
50.	MR JUSTICE SULLIVAN:  We are both agreed that bail can be continued on the existing conditions until such time as he is required to surrender.