Hamraj Kang of Kangs Solicitors considers whether inadequate or poor prison conditions in a country (the ‘Requesting State’) seeking the extradition of a person (the ‘Requested Person’) can have a material effect on a court’s decision on whether or not to extradite the Requested Person.

Hamraj Kang leads our extradition team. We accept instructions from individuals who are subject to extradition requests from any foreign government and advise on the merits of the extradition request and prepare the defence case to include representation before Westminster Magistrates’ Court, the High Court and the Supreme Court.

Our Extradition Team is readily able to cover proceedings before Westminster Magistrates’ Court, often at short notice if a client has been arrested and produced pursuant to an arrest warrant issued on behalf of a Requesting State.

For an initial no obligation discussion, please call our Team at any of our offices detailed below:

Article 3 ECHR | Kangs Expert Extradition Solicitors

When considering a request for extradition, the court must consider any human rights issues that may arise as well as the statutory bars to extradition.

The European Convention on Human Rights (‘the ECHR’) is an international treaty the UK signed in 1950.

By signing the ECHR, each nation state committed to upholding certain fundamental human rights.

One such fundamental right is enshrined in Article 3 of the ECHR namely that:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

This is an absolute right alongside other rights such as the ‘right to life’ and the ‘right to private and family life’.

Article 3 of the ECHR is often invoked in extradition proceedings to argue that the prison conditions in the Requesting State breach the protection afforded to an individual by Article 3.

Recently there have been numerous challenges to extradition to many countries on the grounds that detention in a foreign prison would be inhuman or degrading.

What Is The Legal Test For An Article 3 Argument? | Extradition Lawyers

The legal test under Article 3 is that extradition will be prohibited if there are substantial grounds for believing that there is a real risk of treatment which violates Article 3, namely that the treatment amounts to torture or inhuman or degrading treatment or punishment.

This is an absolute right irrespective of the gravity of the offence that the Requested Person is alleged to have committed.

The Burden of Proof | Who Has To Prove What?

The key points to note are as follows:

  • The burden is on the defence to demonstrate a breach of Article 3
  • The risk of breach must be ‘more than fanciful’. So, the risk must be ‘real’.
  • It is accepted that ‘a very strong case is required to make good a violation of Article 3. The test is a stringent one and not very easy to satisfy’ [Elashmawy v Court of Brescia, Italy [2015]]
  • Each case will be determined on its own facts. Therefore, it is important that the evidence relates to the actual prison conditions that the Requested Person will be subject to and the effect that such conditions will have on that particular individual.

Factors in Assessing Prison Conditions | Kangs Extradition Lawyers

There are numerous factors that a court can take into consideration when assessing the suitability of prison conditions such as:

  • type of prison;
  • size of prison cells;
  • mental health and medical facilities in prison;
  • unsanitary conditions and lack of personal hygiene facilities;
  • overcrowding.  

It has been established in caselaw that three square metres of floor space per detainee is the minimum acceptable standard in multi-occupation prisons.

If the floor space falls below this minimum requirement, there is a strong presumption in favour of the Requested Person that the lack of personal space violates Article 3 of the ECHR. The burden of proof is then on the Requesting State to rebut this presumption and show that, when other factors are taken into consideration, there is adequate compensation for the limited personal space.

Medical Facilities In Prison | India Extradition Defence Solicitors

If a Requested Person requires specific medical care and/or treatment, the court is required to examine in detail the extent and adequacy of the medical facilities available to the Requested Person in a particular prison and a particular prison cell. 

In a recent case [Fletcher v Government of India (2021)],the High Court ruled that the prison in India did not have suitable psychiatric medical facilities as would be required by the individual if he were to be extradited. Furthermore, the High Court ruled that the Assurance provided by the Government of India in relation to prison medical facilities was not suitable and therefore the court refused to extradite the Requested Person.

However, in the recent high-profile case of Government of India v Nirav Modi [2021], where the billionaire Mr Modi is accused of defrauding Punjab National Bank of $1 billion, Westminster Magistrates’ Court accepted the Assurance provided by the Government of India in relation to conditions at Arthur Road Prison in Mumbai (which were supported by a video of the specific cell/barrack that Mr Modi will occupy if extradited).

Where a Requesting State provides the court with an Assurance, the court is obliged to consider the reliability of such an Assurance which, effectively, is a judgment on whether the Requesting State can be trusted. Any Assurance given by a Requesting State must be considered in the broader context of the extradition request.

Mental & Physical Condition | Section 91 Extradition Act 2003

A further consideration for the court in extradition proceedings is Section 91 of the Extradition Act 2003 (‘EA 2003’) relating to the physical and/or mental condition of the Requested Person.

Section 91 EA 2003 provides that if the presiding Judge at any time during an extradition hearing is satisfied that, as a result of the mental or physical condition of the individual it would be unjust or oppressive to extradite him, the Judge must either order the person’s discharge or adjourn the extradition hearing until the above criteria are no longer satisfied.

It is clear from case law that what is unjust or oppressive will be dependent on the individual facts and circumstances of each case. The court has made it clear that that extradition is ordinarily likely to cause stress and hardship and that neither of those is sufficient to demonstrate that extradition would be unjust or oppressive.

However, where the individual is unfit to plead or stand trial, then it would be unjust or oppressive to order extradition.

Relevant Factors In Section 91 Arguments | Kangs Extradition Law Experts

The accepted view is that the court should consider matters ‘in the round’ and that a variety of factors can be taken into account but each case must be dealt with on a fact specific basis.

Factors that may be relevant include the following considerations:

  • is it unjust or oppressive to extradite the person at the time the request is being considered?
  • is it unjust or oppressive when looking forward to what might happen in the proceedings in the Requested State if the individual is extradited?
  • what may be the consequences of extradition to the Requested Person’s state of health and age?
  • would extradition make the person’s condition worse?
  • are there sufficient safeguards in place in the Requesting State if extradition is ordered?

However, each case must be considered on its own facts as the court stated in Republic of South Africa v Dewani [2014]:

‘We do not, however, accept that there are any hard and fast rules; that would be inconsistent with the position that each case must be specifically examined by reference to its facts and circumstances.

The only situation in which a court would most probably say it would be oppressive and unjust to return him is where it is clear that he would be found by the court in the requesting state to be unfit to plead.’

How Can We Help? | Kangs Specialist Extradition Solicitors

We are experienced in challenging extradition requests on behalf of individuals based on Article 3 ECHR and Section 91 EA 2003 arguments.

We can assist you prepare a detailed defence case to include the instruction of appropriate expert witnesses in the Requesting State to provide a report on the conditions/regime in a specific prison.

Our team is here to assist as follows:

  • Advise you at the police station on initial arrest under the terms of an arrest warrant
  • Represent you at the first hearing at Westminster Magistrates’ Court and advise in relation to securing bail
  • Prepare a robust defence case and guide you through the court process and provide guidance on how to contest the extradition proceedings
  • Instruct leading extradition law barristers to present your case in court

How to Contact Us | Kangs Leading Extradition Solicitors

Our Extradition Team is available to assist clients throughout the country.

We aim to work proactively with our clients and secure the services of the very best extradition barristers in an effort to secure a favourable resolution to matters.

We welcome new enquiries by telephone or email.

Our team of lawyers is available to meet at our offices in London, Birmingham or Manchester or, alternatively, we are happy to arrange an initial no obligation meeting via telephone or video conferencing.

For initial enquires please contact:

Hamraj Kang
hkang@kangssolicitors.co.uk
07976 258171 | 020 7936 6396 | 0121 449 9888

Helen Holder
hholder@kangssolicitors.co.uk
020 7936 6396 | 0121 449 9888

John Veale
jveale@kangssolicitors.co.uk
020 7936 6396 |  0161 817 5020