AC-2023-LON-002337 - [2025] EWHC 1985 (Admin)

The Applicant's proposed new grounds of appeal are both brought under section 81(b) of the 2003 Act. This provides:

“81.

Extraneous considerations

A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that— …

(b)

if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”

The threshold for establishing a section 81(b) risk is no higher than a ‘reasonable chance’ or ‘serious possibility’ of such prejudice, as stated by Lord Diplock in R v Governor of Pentonville Prison Ex p. Fernandez [1971] 1 WLR 987, the burden being on the applicant to establish that such prejudice exists. The Applicant argues that there is now clear evidence of a risk of discrimination amounting to prejudice on the grounds of his foreign nationality in the context of a privatised CAR-type prison.

The Respondent contends that the drafting of section 81(b) is clear and requires that a requested person would be “prejudiced at his trial” or “detained, or restricted in his personal liberty”, by reason of one of the characteristics listed.

In Ozbek v Turkey [2014] EWHC 3469 (Admin) the Divisional Court said [15]:

“15.

The wording of section 81(b) means that a bar to extradition only occurs if, on return, the person might be subject to mistreatment by reason of the extraneous circumstances specified: race, religion, nationality, gender, sexual orientation and political opinions. That mistreatment must occur in one of four ways set out in the subsection, namely, prejudice at trial, punishment, detention, and restriction of personal liberty. These four ways are alternatives. The only context in which prejudice is relevant relates to the person's trial, not to any punishment, detention or restriction in personal liberty to which the person might be subject (see Zadvornovs v Riga City Suburb Court, Latvia [2011] EWHC 1257 (Admin), paragraph 5, per Collins J). In my view “detention” refers to the fact of detention by reason of the extraneous circumstances listed, not to its quality.”

Mr Smith argued that in accordance with these observations in Ozbek, section 81(b) does not cover prejudice in relation to conditions of detention and, to the extent it covers punishment or detention, is confined to the fact of punishment and not its quality.

Both parties sought to rely on the observations of Fordham J. in Prusianu v Romania [2023] 1 W.L.R. 495, at [27] in relation to the equivalent provision at section 13(b) of the 2003 Act:

“I do not think section 13(b) is as restricted as Mr Ball contends. However, in light of my conclusions on his third line of resistance, nothing turns on this. I accept that section 13(b) “prejudice” is “at trial”. I accept that the focus is on the “fact” and not the “quality” of punishment, detention or restriction of liberty. I accept that the relevant discriminatory act would need to be that of a requesting state authority. And I cannot see in TCA article 601(1)(h)—or its predecessor recital (12)—such clarity as could drive any expanded “conforming interpretation”. I agree with Mr Ball that “restriction of liberty” could be solitary confinement in the serving of a custodial setting. But I cannot accept that such solitary confinement would necessarily need to be imposed by a sentencing judge at a trial. The context in which Collins J in Zadvornovs spoke of section 13(b) as focusing on the “criminal process” was in rejecting arguments based on “general” restrictions on the way in which non-citizens “can conduct their lives in Latvia” (see para 4), which he said applied “quite independently of” and were “unaffected by” the “criminal process” (see para 5). Suppose there is an instrument or law, policy or practice—which could have come into force before or after the trial process —which means that all sentenced prisoners of a particular “race” will now serve their sentences in solitary confinement. Or suppose there is an instrument which means sentenced prisoners of a particular “political opinion” are excluded from automatic early release. These could be implemented by courts who supervise sentence. These measures are not part of the trial or sentencing. But nor would I regard them as “wholly” independent of, or “unaffected” by, the criminal process. I think they would fit within the ordinary and natural meaning of section 13(b), and I do not think authority would preclude that conclusion. But whether any of this would matter in the present case depends on what I make of the third line of resistance: the evidential basis…”

The Applicant submits that the decision in Ozbek is inconsistent with the two Divisional Court decisions in Lodhi v Governor of Brixton Prison [2002] EWHC 2029 (Admin) and Lodhi v Secretary of State for the Home Department [2010] EWHC 567 (Admin). The Respondent contends that the decisions in Lodhi, which were under the precursor Act, were based upon concessions made by the parties in those cases and are not persuasive; hence Ozbek should be followed.

It does not appear to me that in Prusianu Fordham J was doubting the logic of Ozbek or stating that prejudicial bias extends beyond the fact of punishment; indeed, he expressed himself to be following Ozbek. He intended to illustrate, I think, that the boundary of the application of the approach in Ozbek might not be at the door of the sentencing court. He gave examples of measures, which might be introduced, imposing distinct punishments on prisoners with a relevant characteristic. That is quite distinct from segregating prisoners, for example, on the basis of gender or by reference to other policies for the management of the prison population.

I accept that the Applicant’s submission might nevertheless be made out in principle if the purpose or effect of CAR prisons (rather than the bare fact of their existence and use) was to impose a distinct form of punishment on foreign nationals which was harsher than that imposed upon citizens of the requesting state in equivalent circumstances. It seems to me to be likely that if such an argument were advanced simply by reference to the conditions in CAR prisons (rather than, for example, by reference to differences in the calculation of time served in, or release from, the CAR prison estate) then it would be necessary to show Article 3 breaches in any event.

Whilst it is true that the SDJ observed that CAR prisons were, at the time of judgment, in the process of being closed and that it was entirely possible that all of the CAR prisons would have ceased operation by the time of any potential trial in 2023 that was not the entirety of the basis for his rejection of the arguments advanced by the Applicant on the topic. He plainly considered that the Applicant had fallen well short of establishing that he would be subject to harsher conditions.

Mr Weiss's evidence on the issue (adduced by the Applicant), proved to be substantially limited in its scope and currency. Mr Weiss accepted under cross-examination that:

The proposed reliance on Mr Sabelli's report is similarly unavailing and adds little, if anything, to the Applicant's case. Mr Sabelli’s expert credentials are, as the Respondent submits, dubious. It is not clear that he has ever visited a CAR prison. He possessed no information in relation to the number of operational CAR prisons, merely stating this was “unclear”, nor did he know the number of prisoners placed in them or the criteria for such placement. His “report” on conditions amounted to a mere two paragraphs. One paragraph noted 15 deaths over a 15-year period (2003-2018) in the Eloy Federal Contract Facility but failed to provide any context for these deaths or explain their relevance to the Applicant suffering prejudice by reason of his nationality or sexuality. The other paragraph merely cited a 2014 report on five CAR prisons, a document already relied upon by Mr Weiss, thus adding no new substantive information. Mr Sabelli has been the subject of prior judicial criticism for providing opinions beyond his expertise and relying on outdated or unsubstantiated material.

The “expert report” of Ms Emma Kaufman (identified in the Applicant's solicitor's witness statement as such) dating to 2019 is, in fact, an article published by “Chicago Unbound” for the University of Chicago Law School. I note that Ms Kaufman has not been instructed to provide a report in these proceedings, nor does the document contain an expert declaration. In short, it is not an expert report commissioned for this case. Even if it were to be considered as evidence, I observe that this article was cited and footnoted in Mr Weiss's report, which was presented before the SDJ. It is not “new” evidence and was plainly available at the earlier hearing.

The article by Ms Jade Wilson, entitled “How Trump could impact US LGBTQ+ asylum rules” appears to be a screenshot from the internet, published on a website called “Context”. Significantly, no background information on Ms Wilson is provided, and her credentials remain unknown. Furthermore, its subject matter relates to asylum procedures, which have not been raised in any ground of appeal in these proceedings. The updated grounds of appeal do not refer to this article, nor does the application to rely on new material identify its relevance to the issues before me. In my judgment, this material is not relevant to the section 81(b) grounds advanced by the Applicant concerning conditions in CAR prisons or prejudice based on nationality or sexuality in the context of detention.

The Applicant's argument in relation to sexuality appears, again, to concern the potential for him to be housed, for his own protection, in an SHU. This argument fails for the same reasons as previously set out under Article 3 and Article 14. If the Applicant were to be housed in an SHU, it would be for his own protection. He will not be prejudiced at his trial, nor punished or detained, by reason of his sexuality. Articulating this argument under section 81(b) does not alter its fundamental nature or bring it within the statutory bar.

In my judgment, even if the new material is taken into account; there is no reliable, up-to-date, or cogent evidence of the CAR regime, its eligibility criteria, or the prevailing conditions within such facilities, still less any credible basis to suggest that the Applicant is likely to be exposed to them. The SDJ had the benefit of hearing expert evidence and making findings on the factual matrix. I conclude that the SDJ was justified in deciding that the factual premise in relation to prejudice within CAR prisons was not established. The evidence relied upon was, demonstrably weak, outdated, and speculative.

For fresh evidence to be admissible on appeal, it must generally satisfy the criteria established in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324. That test requires the evidence to be both unavailable at the extradition hearing and decisive.

Whilst the Executive Order of President Trump is new, in the sense that it postdates the decision appealed, I conclude that none of the documents tendered as fresh evidence meet the necessary criteria for their admission. The Kaufman article was available at first instance, whilst Ms Wilson’s article and Mr Sabelli's report, for the reasons set out above would not have led to a different conclusion. The application to adduce fresh evidence is therefore refused.

The new grounds are being advanced at a late stage in proceedings that have spanned over four years. The Applicant has had the benefit of a succession of highly experienced legal teams, including leading and junior counsel who were “specialist extradition practitioners”. None of them sought to raise the proposed grounds of appeal at any earlier stage.

As the Respondent observes the Applicant previously chose to present his case through the prism of Article 14 ECHR, despite the Respondent pointing out that any discrimination issue could, if meritorious, be pleaded pursuant to section 81. This suggests that a conscious decision was made as to the grounds to pursue.

As Swift J stated in Hamasalih v Italy EWHC [2025] EWHC 593, when considering an application to amend grounds and adduce fresh evidence, in circumstances where an applicant:

“was represented by experienced solicitors and counsel and informed decisions were made by the Applicant and his lawyers as to the matters that should be pursued at the extradition hearing. The present application is an attempt to reverse those decisions. That will rarely, if ever, be a course that should be permitted”.

In Khan v United States of America [2010] EWHC 1127 (Admin), Griffith Williams J observed that the parties “cannot return to court to advance arguments they could have put forward at first instance but chose not to do so”.

Whilst I acknowledge that there has been a change of counsel, little explanation has been provided as to why these proposed grounds of appeal were not pursued before the SDJ. Notwithstanding that I have considered the substantive arguments to which they give rise. I refuse the application to advance them at this stage.