Extradition to Romania for disabled man would breach Article 3 ECHR and be oppressive notwithstanding specific assurances

McGowan J quashed an order for extradition to Romania to enforce a prison sentence of 46 months, finding surrender incompatible with Article 3 ECHR and barred by S25 of the Extradition Act 2003. 

Mr G is a single leg amputee and relies on a wheelchair and, at times, crutches, for mobility.  At HMP Wandsworth, Mr G struggled to move around and injured himself in falls.  Romania provided case specific prison assurances which the District Judge relied on to rule out any prospective risk of inhuman and degrading treatment, guaranteed by Article 3 ECHR.  

The District Judge was satisfied that the assurance and further information was reliable with assistance from dedicated fellow prisoners promised, but decisions of the European Court of Human Rights clearly deprecate the use of other prisoners as a substitute for the dignified detention of disabled prisoners. 

ECtHR authorities relied on by the Appellant require that “…special care in guaranteeing such conditions as correspond to the special needs resulting from the detainee’s disability” (Potoroc v Romania 37772/17 at [81]). Authorities must do "everything that could reasonably be expected of them to provide … the medical care he needed…….". The court found in that case that the provision of a “supporting convict” in place of qualified staff meant that the authorities "failed to implement and provide a coherent and appropriate therapeutic strategy capable of responding adequately to the applicant's medical needs, so as to avoid subjecting him to treatment contrary to Article 3 of the Convention".  In Epure v Romania (73731/17) at [71] and at [83] the court said, " the help offered by the applicant's fellow inmates did not form part of any effective assistance by the State to ensure that the applicant was detained in conditions compatible with respect for his human dignity. Such help cannot therefore be considered suitable or sufficient".

The High Court agreed the assurances provided by the Romanian authorities were inadequate, applying the ECtHR authorities to disapprove of “unqualified fellow prisoners” providing “care and support to a detainee confined to a wheelchair. It is not difficult to see how that would detrimentally affect the dignity of the individual, particularly in showering or bathing.”

McGowan J found that “the Judge did not deal adequately with the material available to her at the hearing”. The "appointment of a supporting convict" is not an adequate substitute for professional care. … It is apparent that the Appellant needs regular care and help with getting to a bathroom, (possibly on a different floor), and other mundane tasks which should not be provided by an untrained fellow convict. There is a real risk that that is capable of "humiliating and debasing him". He is vulnerable by virtue of his physical disability, that vulnerability could only be aggravated by any dependence on a fellow prisoner. 

The High Court decided at [63] that "If the RP's disability or mobility issues are such that his needs cannot be met within the penal system, it is clear that the JA will suspend the sentence of imprisonment." However, the court was not content to rely upon this remedy. “That finding required deeper analysis” and it was “not clear how that provision would work in this case.” The Appellant already suffers from a disability, he is wheelchair dependant. … It is not difficult to see the risks to health, wellbeing and dignity in such a course.”

In relation to s.25 of the Extradition Act the court held that “When s.25 is raised as a potential bar to extradition the court must establish what precisely the individual requires to achieve a basic standard of health and wellbeing. … The risk of oppression arising from there being no provision of trained assistance and consequent dependence on the care of a fellow prisoner arises is clear.”

The appeal corrected the District Judge’s decision by applying anxious scrutiny and conducting what the Court described as “an intensely fact specific approach” to the details of assurances with the dignity of the appellant in mind. 

The practicalities of specific assurances for disabled prisoners must be rigorously scrutinised and generic assurances routinely supplied for the generality of cases may prove inadequate. 

The appeal was allowed on Article 3 ECHR [para 43] and Section 25 grounds [para 41]. 

The full decision of McGowan J is available here.

Ben Cooper KC was leading counsel on appeal. Mary Westcott and Renata Pinter (Dalton Holmes Gray) represented the Applicant at first instance and appeal.