Joao Antonio Delgardo Henriques v Judicial Authority of Portugal
| Jurisdiction | England & Wales |
| Judge | Sir Kenneth Parker,Lord Justice Flaux |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] EWHC 1998 (Admin) |
| Date | 30 July 2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2696/2018 |
[2019] EWHC 1998 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Flaux
Sir Kenneth Parker
Sitting as a Judge of the High Court
Case No: CO/2696/2018
Mr Steven Powles QC & Mr James Stansfeld (instructed by Bindmans LLP) for the Appellant
Mr Mark Summers QC & Mr Jonathan Swain (instructed by Crown Prosecution Service) for the Respondent
Hearing dates: Thursday 11 July 2019
Approved Judgment
A. Introduction
This is an appeal by Joao Henriques against two orders for extradition made by DJ Crane on 4 July 2018.
The Appellant's extradition to Portugal is sought by two Judicial Authorities pursuant to two European Arrest Warrants. The first warrant is an allegation warrant issued by the Judicial Authority, Comarca de Leiria, Juizo Central Criminal De Leiria, Segunda Secção, Portugal, on 3 January 2017. It alleges that between September 2002 and 17 March 2004 the Appellant conspired with others to import about 32 kg of hashish from Spain to Portugal. The offence carries a minimum sentence of 5 years' imprisonment, and a maximum of 15 years' imprisonment. The second warrant is a conviction warrant issued by the Tribunal de Execução das Penas de Lisboa, Juiz 3, Portugal on 25 July 2017. The Appellant was convicted of conspiracy to supply heroin between 1993 and March 1995. A sentence of 13 years, 6 months was imposed on 13 August 1998. The Appellant did not return to custody after the grant of 4 days' leave on 26 August 2003. There is a balance of 5 years, 5 months, and 5 days to serve.
Portugal has been designated a Category 1 territory pursuant to section 1 of the Extradition Act 2003 (“the Act”). Thus, Part 1 of the Act applies.
The Appellant was arrested on the first warrant on 24 April 2017 and on the second warrant on 14 August 2017. He has been on conditional bail throughout and has complied with all conditions.
The Appellant resisted extradition essentially on the basis that prison conditions in Portugal were such that, especially in light of the Appellant's state of health, his extradition would be incompatible with Article 3 of the European Convention on Human Rights (“ECHR”); and that extradition would be oppressive on account of his health under s. 25 of the Act.
His extradition was ordered on both warrants following a contested hearing before DJ Crane on 11 June 2018. A written judgment was handed down on 4 July 2018.
Permission to appeal was granted on 4 October 2018.
The Grounds of Appeal
Permission to appeal was granted on the following two grounds. Firstly, DJ Crane erred in concluding that extradition was compatible with the Appellant's rights under Article 3 of the ECHR. Secondly, DJ Crane erred in concluding that extradition was not unjust and /or oppressive, under s. 25 of the Act.
The Appellant
The Appellant is now 66 years of age and has lived in the United Kingdom (“UK”) since 2004. On his arrival in the UK he worked in a factory for 3 1/2 years. He then worked for about 4 years maintaining factory machines. He stopped working on the advice of his doctor. It appears that he has travelled back to Portugal on several occasions, the last time being in August 2014.
As stated in a letter from Dr Potts at the Taunton Road Medical Centre in Somerset, he suffers from various conditions, which include Type 2 diabetes, fatty liver disease; morbid obesity; and poliomyelitis, mainly affecting the right leg.
The Appellant has been assessed by medical practitioners on a number of occasions. DJ Crane accepted the medical evidence, as follows.
Ms Julie Sheard (Occupational Therapist) assessed the Appellant on 6 December 2017. He could walk only a limited distance, had limited standing tolerance and struggled to negotiate stairs. He requires assistance with bathing and on occasions required assistance with dressing. His functional ability was unlikely to improve but was likely to be further reduced by his continuing post-polio syndrome and diabetes.
Dr Jason Payne-James assessed the Appellant on 20 December 2017. He undertook a frailty test and the Appellant was ranked as “ Moderately frail”. “Moderately frail” is defined as “ people needing help with all outside activities and with keeping house. Inside, they often have problems with stairs and need help with bathing and might need minimal assistance (cuing, standby) with dressing”. The Appellant would require prostate surgery once his prostate medication ceased to be effective. He would suffer increased disability as a consequence of his post-polio syndrome and in the absence of any substantial lifestyle change was likely to be wheelchair bound by the age of 70.
Dr Payne-James provided a further medical report on 15 March 2019. The Appellant was found in addition now to suffer from swelling to the right of his neck and weakness to the right side of his face, which was diagnosed as Grade 2 Bell's palsy. After further assessment and a review of the medical records, Dr Payne-James concluded as follows. On the Clinical Frailty scale, the Appellant rated physically as between 6 and 7, Moderately to Severely frail encompassing those who are “ Completely dependent for personal care from whatever cause (physical or cognitive). Even so, they seem stable and not at high risk of dying (within up to 6 months)”. The Appellant had chronic pain in both knees and hips and now has right groin pain, which may reflect increasing arthritis in the right hip, which would further limit his mobility. The Appellant has a shortened, visibly atrophic wasted right leg with reduced muscle power in all groups. The Appellant has reduced mobility and can now walk about 10 meters and then needs to rest. Absent the level of support provided by his children, who undertake many of the activities of daily living on his behalf, he would struggle and his degree of frailty would increase. He would require a similar level of support from prison personnel in his day-to-day activities and the need would increase in the future. There has been an increase in his nocturia (night time urination) which coupled with his poor mobility would increase his likelihood of falling at night. His post-polio syndrome would continue increasingly to disable him and limit his mobility and Dr Payne-James anticipates that he could be wheelchair bound by 70, if not sooner.
Taking into account what he believed were the prison conditions in Portugal, Dr Payne-James concluded that there was a risk of acquiring infections, his personal hygiene would deteriorate as he would struggle to access shower facilities and his diabetes and hypertension would become more poorly controlled in the event of less rigorous monitoring and possibly inconsistent medication administration.
The Appellant has two adult children in the UK, Claudia Henriques and Felipe Henriques. The Appellant relies heavily on his children to assist him with his most basic day-to-day living needs. They assist with bathing and the preparation of meals. He has to use a stick to help him get out of bed and move around the house. He cannot walk for more than 20 metres before requiring a break and fears falling if he were to walk unaided.
Until recently he has been assisted by Felipe who lives five minutes away. However, at the end of April 2019 Felipe was hospitalised and diagnosed with stage 4 lymphoma and liver failure. The initial diagnosis is that the cancer is aggressive. Felipe is no longer able to care for the Appellant.
Claudia works shifts as a chef in a pub. She has a daughter, Raquel, who was born in 2002. They came to the UK in 2011 and live less than a five minute drive from the Appellant. When she is not at work she goes to the Appellant's house to care for him, which includes assisting him washing, cleaning and cooking. In the winter months, when it is colder, they must assist the Appellant in getting out of bed. She is now caring for both the Appellant and her brother, Felipe.
B. Applicable law on prison conditions for the purposes of Article 3 ECHR
It is unlawful for the UK to extradite an individual to a country where he is at a real risk of being treated in a manner prohibited by Article 3: R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323, §24. The legal burden is on the requested person to establish by evidence “ substantial grounds for believing that he or she would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country” ( Saadi v Italy (2009) 49 EHRR 30, GC, at §140; Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) at §49). Clear and cogent evidence is required to discharge this burden (ibid at §§49–50).
There is a strong but rebuttable presumption that EU member states will comply with their Convention commitments due to the concept of mutual trust: Krolik v Poland [2013] 1 WLR 490. To rebut the presumption “ something approaching an international consensus” is required to be shown (§§4 and 7).
Ill-treatment must attain a minimum level of severity in order to offend Article 3. The threshold for this minimum level is relative ( Saadi (supra) at §134). Ill-treatment will offend Article 3 ECHR if the suffering or humiliation involved goes beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.
The general applicable substantive requirements of Article 3 ECHR in the prison context were recently restated by the Grand Chamber in Mursic v Croatia (2017) 65 EHRR 1 at §§96–141.
In the EU context, Article 3 ECHR is mirrored by Article 4 of the Charter of Fundamental Rights, as to which the CJEU held in Proceedings Against...
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