Anthony Rae v United States of America
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 05 December 2022 |
| Neutral Citation | [2022] EWHC 3095 (Admin) |
| Docket Number | Case No: CO/2799/2021 |
| Year | 2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 3095 (Admin)
Mr Justice Chamberlain
Case No: CO/2799/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Paytons Solicitors) for the Appellant
David Perry KC and Richard Evans (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 21 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The appellant, Anthony Rae, is sought by the USA pursuant to a request dated 14 May 2020 and certified on 17 June 2020. He is wanted for trial on two indictments dating from 2003, each containing three counts alleging sexual abuse of a child and on two further indictments dating from 2019, each containing two counts of failing to surrender in relation to the sexual assault charges. The indictments were preferred by grand juries in Grayson County, Texas. The request is for Anthony Stevens, by which name the appellant used to be known.
On 21 June 2021, after a hearing at Westminster Magistrates Court, District Judge Tempia (“the judge”) decided to send the appellant's case to the Secretary of State. On 6 August 2021, the Secretary of State ordered the appellant's extradition.
Permission to appeal was refused on the papers by Jay J on 2 March 2022. After a hearing on 4 May 2022, however, I granted the appellant permission to appeal against the judge's decision. The sole ground of appeal is that the judge was wrong to conclude that extradition would be compatible with the appellant's rights under Article 3 of the European Convention on Human Rights (“ECHR”), given the prison conditions he may face if convicted in Texas.
Adjournment of the appeal hearing
This appeal was originally listed for hearing on 10 November 2022. In accordance with the usual practice where an appellant wishes to attend his hearing, HMP Wandsworth had been notified in advance that the appellant was to be produced in the video suite in time for the hearing to begin at 10.30am, so he could observe and listen to the proceedings remotely. A further reminder was sent on the morning of the hearing. No indication was given that there would be any difficulty until the hearing started, at 10.30am, and the appellant had not been produced. The court was informed that it would not be possible to produce him until 2pm because there were no free video suites. Since half a day was not sufficient for argument, it was necessary to adjourn the hearing. HMP Wandsworth's failures (i) to ensure that the appellant was produced on time and (ii) to make any attempt to inform the court that it would not possible to produce him meant that a day of court time (which could have been used to hear another case) was wasted and substantial additional costs were incurred by the parties.
Fresh evidence
Since permission to appeal was granted, the respondent has produced a letter dated 24 May 2022 from Jason Clark, Chief of Staff of the Texas Department of Criminal Justice (“TDCJ”), providing what is variously described as an “assurance” or “information”. There is a further email dated 17 October 2022 providing further information. The respondent invites me to admit this fresh evidence under my inherent jurisdiction. The appellant does not object and indeed relies on the further information. I am satisfied that it is in the interests of justice to consider it, even though it was not before the judge. I therefore grant the application to adduce the letter and email.
The evidence before the judge
Ms Deitch's report
The appellant's main evidence on prison conditions in Texas took the form of an expert report from Michele Deitch, a Distinguished Senior Lecturer at the University of Texas in Austin and also an attorney. Ms Deitch had been a federal court-appointed monitor of prisons from 1984–1990 and continues to go into prisons every year. She served as the original reporter (draftsperson) for the American Bar Association's Standards for the Treament of Prisoners (2010), a set of “aspirational” standards intended to guide courts, policy makers and correctional leaders.
Ms Deitch submitted two reports, the second a revised version of the first. The contents were based on her own personal knowledge of the Texas prison system, gained through first hand observation of prison conditions, her research team's analysis of relevant data, her own research into correctional oversight, her continuous review of extensive media coverage, her reading of relevant court opinions, testimony at legislative hearings and letters and information received from incarcerated people and their families and from prison staff.
Ms Deitch noted that in Texas there is a distinction between “jails” and “prisons”. Remand prisoners and those sentenced to terms of less than a year for misdemeanour offences were typically held in county jails. Mr Rae would be held in the Grayson County Jail if remanded in custody. His stay there would likely be relatively short as most trials take place within a year. If convicted, he would be turned over to the Texas Department of Criminal Justice (“TDCJ”), which runs the prison system, which houses those convicted of felony offences. There are about 100 of these prisons, ranging in capacity from 1,000 to 3,000. They are generally in rural areas. A convicted person could be housed in any of these.
Assuming that he is convicted of the aggravated sexual assault of a child (a first degree felony in Texas), he could face a sentence of up to 99 years' or life imprisonment. He would be required to serve a minimum of half his sentence before becoming eligible for parole, which Texas authorities are notoriously unwilling to grant to those convicted of serious sexual offences.
Ms Deitch's report deals with many aspects of the treatment of prisoners in the Texas prison system. These include the lack of independent external oversight mechanisms, COVID risks and the lack of effective precautions against those risks, poor quality food, extreme heat, physical conditions, safety issues, the use of solitary confinement, work requirements and lack of pay and visitation and family contact. She also addressed risks particular to the appellant, given his health issues and age.
Given the way the case was presented before the judge and before me, it is not necessary to set out the parts of her report dealing with issues other than extreme heat and personal space.
As to extreme heat, Ms Deitch said this:
“57. Most Texas prisons are not air conditioned in the housing areas and in most areas where incarcerated people spend their time. According to an investigative news article, 4 out of 5 incarcerated people in Texas do not have access to air conditioning in their prison cells. In the hot summer months, outdoor temperatures in some parts of Texas can soar to 110 degrees F or more (43 degrees C), and can stay that high for weeks on end. Indoor temperatures are even higher. These extreme temperatures make the conditions inside the living areas unbearable, and for some incarcerated people, the heat is not just uncomfortable but deadly. There have been at least 20 deaths in Texas prisons attributed to heat stroke since 1998, and in 2019, there were 56 heat-related illness for incarcerated people and staff, according to TDCJ. Incarcerated people who are taking psychotropic medications and medications for high blood pressure, as well as those who are geriatric, are particularly vulnerable to heat stroke and death.
58. A five-year lawsuit challenging the lack of air conditioning in one prison facility, a geriatric unit, resulted in a federal court ruling in 2017 that the conditions amounted to cruel and unusual punishment. After vigorously fighting the court order, TDCJ ultimately agreed in 2018 to settle the lawsuit by air conditioning this particular facility. Nevertheless, the prison agency's efforts to comply with the agreement were so inadequate that the judge threatened to hold the agency officials in contempt in 2019. The judge called conditions in the facility ‘grotesque’ and said he wished he had the authority to order the entire prison system to be air conditioned, but that he lacked the power to do so.
59. Efforts by advocates to persuade the Texas Legislature to provide funding to air condition the housing areas in Texas prisons have been unsuccessful to date. Given the extraordinary budget shortfalls the state is facing at the current time due to the COVID crisis, it seems extremely unlikely that this funding situation will change in the current legislative session. Even if funding were to become available, the political dynamics in Texas mean that many lawmakers would not support any efforts to improve the living conditions of people in custody.”
As to physical conditions, Ms Deitch said this:
“60. With approximately 100 facilities in the Texas prison system, conditions will vary to some degree among the different prisons (also called “units”). But there are commonalities among most of the facilities, and the newer facilities (those built since Texas vastly expanded its prison system in 1993) all follow certain prototypes.
61. A Texas general population prison cell can be as small as 40 square feet (8' x 5') in the older prison facilities. The newer prisons have cells that are supposed to measure 80 square feet. The vast majority of cells hold two people, so the individual square footage per person in a cell is between 20 and 40 square feet (1.86 to 3.7 square meters) of encumbered space. As much as half the space in the cell is encumbered and not usable. The cells...
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