Duarte v The Comarca De Lisboa (A Portuguese Judicial Authority), Court of Appeal - Administrative Court, November 09, 2018, [2018] EWHC 2995 (Admin)

Resolution Date:November 09, 2018
Issuing Organization:Administrative Court
Actores:Duarte v The Comarca De Lisboa (A Portuguese Judicial Authority)

Neutral Citation Number: [2018] EWHC 2995 (Admin)

Case No: CO/4177/2017




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/11/2018




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Robin Tam QC and Myles Grandison (instructed by Lansbury Worthington Solicitors)

for the Appellant

Mark Summers QC and Florence Iveson (instructed by the Crown Prosecution Service)

for the Respondent

Hearing dates: 11th October 2018

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Lord Justice Holroyde:

  1. This is an appeal against the decision of District Judge (Magistrates' Courts) McPhee (``the DJ'') on 7th September 2017 ordering that the appellant Nuno Duarte be extradited to his native Portugal to serve a sentence of 6 months' imprisonment.

    The proceedings in Portugal:

  2. The offence in respect of which extradition was sought was committed in Lisbon on 30th March 2010, when the appellant drove a car without a driving licence. Under the relevant provisions of Portuguese criminal law, he committed an offence which carries a maximum of 12 months' imprisonment. The appellant, then aged 38, had committed similar offences on four previous occasions between about 2005 and 2009. In February 2007 he was sentenced to 12 months' imprisonment, suspended. In October 2007 he was fined. In November 2007 he was again fined. In October 2009 he was fined, with a sentence of 133 days imprisonment in default of payment. He had also been convicted in Portugal, between 1996 and 2008, of 14 dissimilar offences and had received several suspended sentences of imprisonment.

  3. In relation to the offence committed on 30th March 2010, the European Arrest Warrant (``EAW'') and further information provided by the Portuguese judicial authority show that the course of proceedings in Portugal was as follows. The appellant was questioned by the police in Portugal on 8th June 2011. He had to fill in a statement of identity and residence and was under an obligation not to change his place of residence, or to be absent from it for more than 5 days, without reporting the change to the police. Notice of prosecution was served upon him at his nominated address on 15th June 2011 and 28th June 2012. The appellant did not attend his trial. He came to this country in July 2012, without reporting his change of address. His partner and their two children followed him in October 2012, and the family have lived in England since that time. The children are now aged 16 and 9. Meanwhile, the prosecution in Portugal proceeded in his absence. His interests were represented by a lawyer. On 24th January 2013 he was convicted and sentenced in his absence to 6 months' imprisonment. Inquiries into his whereabouts resulted in the Portuguese authorities discovering that he was in this country. On 27th May 2015 notice of his conviction was served upon him personally in this country, by way of mutual legal assistance. He did not initiate any appeal. The judgment became final on 29th June 2015. A subsequent attempt by the appellant, in September 2015, to appeal against the judgment was dismissed on the ground that it was out of time.

  4. The appellant's return to Portugal is accordingly sought so that he may serve the 6 months' imprisonment imposed upon him following his conviction.

    The extradition proceedings:

  5. The Portuguese judicial authority issued the EAW on 27th January 2016. It was certified in this country by the National Crime Agency on 21st February 2016 and served on the appellant on 27th April 2017.

  6. In the extradition proceedings, issues were raised on behalf of the appellant in relation to potential breaches of his rights under articles 3 and 8 of the European Convention on Human Rights (hereafter, ``article 3'' and ``article 8''). As to article 3, issues were raised as to the conditions in which the appellant would serve his sentence if extradited to Portugal. In that regard, the DJ wrote to the Portuguese judicial authority on 5th July 2017. It is necessary to set out in full the terms of his letter, and the terms of the reply.

  7. The DJ in his letter requested the following supplementary information:

    ``1. If surrendered to Poland [sic] has a prison been identified or can a prison now be identified where save for any short period of time and to a minor extent be guaranteed at least 3msq of personal space.

    2 If it is to be Lisbon Central Prison will this be for assessment and allocation only, and will this be limited to a guaranteed period of 21 days with a likely timescale of 8 to 15 days? If not, what is the likely timescale for assessment?

    3 Subject to any such assessment is there a real possibility that the person surrendered would have to serve the whole of his sentence in Lisbon Central Prison?

  8. Under Portuguese law what are the circumstances for early release by way of remission of the sentence?

    5 Can you provide detail of the current occupancy rate in Lisbon Central Prison?

    6 Can you provide detail of the current occupancy rate in any other prison to which the surrendered person is likely to be allocated to serve the sentence?

    7 Please provide an assurance of the minimum square metres of personal space Mr Duarte will be afforded within his cell, excluding toilets.

    8 Please confirm the arrangements for Mr Duarte to use toilets in all facilities in which he may be held. Please confirm whether these are in cell facilities and if so whether they are partitioned or separated from other prisoners or what measures are taken to guarantee his privacy and dignity.

    9 What period of time per day are prisoners allowed out of their cells?

    10 What provision will be made for Mr Duarte to engage in out of cell activities?

    11 Will Mr Duarte be housed in a cell with direct access to daylight and a possibility for natural ventilation?''

  9. In response to those enquiries, an official of the Portuguese Directorate-General for Prison Services and Reintegration (``DGRSP'') wrote on 17th August 2017 in the following terms:

    ``- If the citizen Nuno Miguel Duarte is extradited to Portugal, he will be placed in Lisbon's Prison Facility, whose individual cells have a housing area greater than 7m2.

    - If the defendant Nuno Miguel Duarte is handed over to the Portuguese authorities, he will remain in Lisbon's prison facility for the time strictly necessary, but never exceeding 21 days, in order to carry out the initial assessment for the allocation to another prison facility, according to the criteria laid down in section 20 of Act Number 115/2009 of 12 October.

    - In the absence of a legal definition as to cubic content of the housing spaces, national and international recommendations have been followed, using as criteria the 7m2 for individual lodging, and 4m2, by inmate for collective lodging. It also takes into account, in respect of the dignity of the inmate, the habitability conditions, in particular with regard to hygiene, natural light, ventilation and furniture.''

  10. In his judgment of 7th September 2017 the DJ addressed the article 3 and article 8 issues. As to the former, he noted the submission made on behalf of the appellant that the response of 17th August 2017 failed to answer several of the DJ's enquiries. He referred to a report dated 26th November 2013 by the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (``CPT'') in relation to conditions in Lisbon Central Prison in May 2013. He noted that the report indicated that prison overcrowding was a major issue; in some wings, walls were damp with crumbling plaster; there were indications of rat infestation; and the toilets in multi-occupancy cells were not partitioned. He further noted that in a response to that report the Portuguese government had accepted the criticism of the physical conditions in some wings, and had said that efforts were being made to deal with the problem of overcrowding and to improve condition in Lisbon Central Prison. The DJ took the view that he could not rely on such old information in a fast-changing world. The deficiencies seen in 2013 would plainly have failed the test laid down by the Grand Chamber in Mursic v Croatia. He could not however judge whether those deficiencies were still present: the government had promised action in 2013, and some 4 years later no more up-to-date information had been provided to him. In those circumstances he did not find any real risk of a breach of the appellant's article 3 rights if he were extradited to Portugal.

  11. It is not necessary to say more about the DJ's judgment on the article 3 issue, as it is common ground between the parties that the judgment has to a substantial degree been overtaken by subsequent events.

  12. As to article 8, the DJ referred to the familiar decisions in Norris v Government of the United States [2010] 2 AC 487, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338 and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), [2016] 1 WLR 551. He accepted that the appellant has an established family life in England and that the article 8 rights of not only the appellant but also his partner and their children were engaged. He also accepted that the appellant's personal input into the businesses which he runs is important, and that the businesses may well suffer if the appellant is extradited. He noted however that the appellant's partner would care for their children during the short period of time when the appellant would be absent. He noted three factors against extradition: the new life which the appellant has made in this country; the effect on his businesses; and the effect on his family life. He noted four factors in favour of extradition: the importance of the UK maintaining treaty...

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