High Court allows surrender to UK for rape charges despite Article 3 concerns regarding prison conditions.

THE HIGH COURT

Record No. 2026 105 EXT

[2026] IEHC 480

BETWEEN

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

APPLICANT

AND

ADAM SABY

RESPONDENT

JUDGMENT delivered by Mr. Justice Sean Gillane on 15 July 2026

Introduction

1. This is an application for the surrender of the respondent to the United Kingdom (“the issuing state”), pursuant to section 16 of the European Arrest Warrant Act 2003, as amended (“the 2003 Act”), on foot of a Trade and Cooperation Agreement warrant issued by His Honour Judge Karim Ezzat, Circuit Judge at Harrow Crown Court sitting at Hendon Magistrates’ Court, London on the 2nd of April 2026 (“the warrant”).

2. The warrant was issued by a competent judicial authority in the issuing state (“the IJA”).

3. The respondent was arrested on the 13th of April 2026 on foot of the warrant and brought before this Court. No issue has been raised by the respondent in relation to his identity, and I am satisfied that the respondent is the person identified in the warrant.

4. The matter came on for hearing before me on the 17th of June 2026.

Background

5. The warrant is based on an arrest warrant issued at Harrow Crown Court for failure to comply with bail conditions on the 2nd of April 2026.

6. The warrant relates to two offences of rape and sexual assault that are alleged to have occurred on the 2nd of September 2022. A detailed description of the circumstances in which the offences were alleged to have taken place is set out at Part E of the warrant.

7. As the respondent has already been charged with the alleged offences, it is clear that an intention to prosecute has been formed.

8. Part C of the warrant sets out that the rape offence carries a maximum sentence of life imprisonment and the sexual assault offence carries a maximum sentence of 10 years’ imprisonment. Part E of the warrant sets out the relevant criminal statutory provisions of the issuing state. It seems clear that the requirements of minimum gravity are met in respect of each offence.

9. In circumstances where the rape offence carries a maximum sentence of life imprisonment, Part H of the warrant confirms that the penalty or measure imposed will be reviewed on request or at least after twenty years.

10. Correspondence can be made with offences in this State of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981, as amended, and sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended.

11. Supplemental details in relation to technical omissions in Part I of the warrant were provided by the IJA on the 2nd of April 2026 and no issue arises there.

Discussion

12. The respondent is a Sudanese national and does not consent to his surrender.

13. A notice of objection was filed on the 29th of May 2026 pursuant to Order 98, Rule 5 of the Rules of the Superior Courts 1986, as amended.

14. While the respondent puts the applicant on full proof in relation to the warrant, a single substantive point of objection is raised, namely that the respondent would face detention in inhuman and degrading prison conditions if surrendered such that there is a real risk of breach of his rights under Article 3 of the European Convention on Human Rights (“the ECHR”) and that, therefore, his surrender is prohibited by section 37 of the 2003 Act.

15. This submission is grounded on the assumption that, if surrendered, the respondent would be detained at either Wormwood Scrubs Prison or Pentonville Prison in London. This assertion is based on the fact that the respondent resided in Harrow, London and that the alleged offending behaviour occurred in London.

16. Before turning to the basis for the legal submission, it is necessary to say something more about what is asserted to be the particularly relevant parts of the factual background.

17. At paragraph 5 of the points of objection, it is stated that after he was arrested: “The Respondent was remanded in custody in Cloverhill Prison and was assessed by the Primary Healthcare Team on the 21st of May 2026 for Suicidal Ideation the limited information received is that he is being treated appropriately.”

18. In the respondent’s written submissions, it is said that the respondent suffers from “particular vulnerabilities as a young, non-English speaking Sudanese refugee with a history of stress and suicidal ideation.”

19. In those submissions, it is stated that: “It is confidently assumed that should he be surrendered, he would be remanded in custody to Wormwood Scrubs or Pentonville prisons…”

20. The following is stated under the heading “Relevant facts and factual assumptions”:

1. “Mr Mohammed is likely, on surrender, to be remanded to Wormwood Scrubs or Pentonville Prison.

2. Recent independent reports identify serious deficiencies at Wormwood Scrubs and Pentonville Prison, including prolonged segregation, poor material conditions, and an absence of meaningful human contact for extended periods.

3. Mr. Mohammed is a young 20 years of age, Sudanese refugee, does not speak English, has a history of stress, and has experienced suicidal ideation for which he was assessed in custody.

4. Those personal features materially increase his vulnerability to isolation, confusion, inability to access services, and mental deterioration in custody.

5. There is, at present no sufficiently specific assurance that he will not be detained at Wormwood Scrubs or Pentonville, or if detained there, that he will be protected from the features said to generate the Article 3 risk highlighted in the most recent CPT report and the Prison Reform Trust Report from 2021.”

21. The reference to the “most recent” C.P.T. report from the issuing state regarding prison conditions is said to be the Report to the United Kingdom Government on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) from 13 to 23 May 2019 published on the 30th of April 2020, where specific criticisms were made of both Wormwood Scrubs and Pentonville, particularly in relation to segregation.

22. At paragraph 89 of the C.P.T. report, it was said in relation to Wormwood Scrubs that: “… in the three segregation units visited, the vast majority of prisoners were locked in their cells for between 22 and 23 and a half hours per day and were provided with no structured regime – no purposeful activities, nor access to work. … these segregated prisoners lived in virtual solitary confinement with a notable absence of any meaningful human contact. Moreover, the CPT is extremely concerned by the fact that prisoners could be held in such conditions for prolonged periods.”

23. At paragraph 92, the C.P.T. found in relation to Wormwood Scrubs that: “… there were some shortcomings in the recording of data on the use of the segregation unit, including its special accommodation cells…”

24. At paragraph 93, the C.P.T. recommended: “… that the United Kingdom authorities put in place a psycho-social support system for Rule 45 prisoners held in segregation units for longer than two weeks and provide them greater opportunities for association and engagement in activities…”

25. The respondent also relied on the following comment issued by the Chief Executive of the UK Prison Reform Trust on the 18th of July 2025 in relation to Pentonville: “We are running out of adjectives to describe the shocking and inhumane conditions in our prisons–HMP Pentonville stands as a grim testament to a system in crisis. A troubling lack of oversight and accountability has led to unacceptable living conditions, with overcrowded, dirty cells, insufficient bedding, and widespread infestations of mice and cockroaches. Prisoners are spending over 22 hours a day locked in these conditions, with limited access to showers, meaningful activities, or even adequate food.”

26. The respondent’s written submissions place heavy reliance on the decision of Binchy J. in Minister for Justice v. Kerrigan [2019] IEHC 790. In that case, Binchy J., in the context of a section 37 argument in relation to prisoner safety and prison violence, considered a report from the Chief Inspector of Prisons which contained criticisms of the regimes in Wormwood Scrubs and Pentonville.

27. Before considering the legal principles in greater detail, some observations need to be made about the evidential basis for the arguments advanced.

28. Firstly, there is no affidavit evidence filed on behalf of the respondent at all. In the course of exchanges with counsel at hearing, I was told that there had been requests made to the prison authorities in this State for information in relation to such medical treatment as the respondent may be receiving. While I do not doubt what I have been told in that regard, it does not explain why not even an affidavit from the respondent himself in relation to matters within his knowledge has been provided.

29. No medical or psychiatric reports have been provided, not even of an historic nature, in relation to what has been asserted and there is no evidential basis to support the proposition that the respondent suffers from an identifiable or recognised serious mental illness.

30. Secondly, the C.P.T. report relied on by the respondent does contain criticisms of Wormwood Scrubs in relation to its segregation units and the length of time that prisoners were locked in cells, over prolonged periods, in the absence of a structured regime or purposeful activities.

31. However, this is not the most recent C.P.T. report on prisons in the issuing state. A more recent report was published on the 7th of July 2022, following a periodic visit to the United Kingdom from the 8th to the 21st of June 2021. A response from the issuing state was published in May 2022.

32. While counsel for the applicant frankly conceded that the most recent C.P.T. report is not entirely favourable, it did record the updated position at Wormwood Scrubs and expressly set out the improvements in the material conditions of detention, including refurbishment and redecoration, replacement of old windows, functioning cell bells, and clean exercise yards. It was also noted that the state of repair of the cells in the segregation unit at Wormwood Scrubs had improved since the visit in 2019. In any event, it seems to me that any Article 3 complaint before this Court should be grounded on the most recent available material.

33. To return to Kerrigan, on which much reliance was placed, it must be observed that in that case, notwithstanding the criticisms of Wormwood Scrubs and Pentonville, Binchy

J. expressly found that no real risk of an Article 3 breach had been established and that the respondent’s surrender was not prohibited by section 37 of the 2003 Act.

34. At paragraph 33, Binchy J. said that: “… This application can be decided by the application of the principles set forth in Rettinger and Aranyosi, which are broadly the same. As Donnelly J. noted in R.O, at para. 57 ‘the test identified by the CJEU [in Aranyosi] that must be met before surrender is prohibited, is the same as that identified in Rettinger (and indeed other cases from the ECtHR identified in Rettinger); there must be substantial grounds for believing that following surrender a person will run a real risk of being subject, in the issuing member state, to inhuman or degrading treatment…’”

35. He continued at paragraph 35 to say that: “… In this case, the reports of the Chief Inspector in relation to HMP Pentonville and HMP Wormwood Scrubs undeniably raise serious concerns about prisoner safety, such as to require action on the part of the prison authorities (as per the recommendations of the Chief Inspector). However, it seems to me that they do not elevate the risk posed to the respondent, if surrendered and subsequently detained in either of those institutions, to that of a ‘real risk’.”

36. He then observed at paragraph 36 that: “… Moreover, and very importantly, the respondent failed to put forward any objective evidence that he personally is at a greater risk than anybody else in the prison population, such as was available to the court in R.O.”

37. Counsel for the applicant submitted, correctly in my view, that the governing approach for a request for surrender under the Trade and Cooperation Agreement (“the TCA”) in these circumstances has been identified by the Court of Justice of the European Union (“the CJEU”) in Alchaster (Case C-202/24, ECLI:EU:C:2024:649).

38. In relation to the question of respect for fundamental human rights in the context of a request for surrender under the TCA, the CJEU said at paragraphs 48-49 of Alchaster that: “Although it follows from the foregoing that an executing judicial authority is in principle required to give effect to an arrest warrant such as those at issue in the main proceedings, the fact remains that Article 524(2) of the TCA states that no provision of Part Three of that agreement alters the obligation to respect fundamental rights and legal principles as set out, in particular, in the ECHR and, in the case of the European Union and its Member States, in the Charter.

The obligation to comply with the Charter, recalled in Article 524(2), is binding on the Member States when they decide on the surrender of a person to the United Kingdom, given that a decision on such surrender constitutes an implementation Union law within the meaning of Article 51(1) of the Charter. The executing judicial authorities of the Member States are therefore required, when adopting that decision, to ensure respect for the fundamental rights afforded by the Charter to the person who is the subject of an arrest warrant issued on the basis of the TCA, without the fact that the Charter is not applicable to the United Kingdom being relevant in that regard (see, by analogy, judgment of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 52 and 53).”

39. The CJEU confirmed in principle that surrender can be refused where the existence of a risk of a breach of fundamental rights has been established. At paragraph 51, it stated that: “Accordingly, the existence of a risk of a breach of those rights is capable of permitting the executing judicial authority to refrain, following an appropriate examination, from giving effect to an arrest warrant on the basis of the TCA (see, by analogy, judgments of 25 July 2018, Minister for Justice and Equality (Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586, paragraph 59; of 31 January 2023, Puig Gordi and Others, C‑158/21, EU:C:2023:57, paragraph 72, and of 21 December 2023, GN (Ground for refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017, paragraph 43).”

40. The CJEU then went on to examine in detail the nature of the two-step process that must be conducted in the context of surrender requests under the European Council Framework Decision dated the 13th of June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States as described in well-established authorities such as Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15 PPU, ECLI:EU:C:2016:198). The CJEU’s analysis led to the conclusion that the twostep process cannot simply be transposed into a request for surrender under the TCA.

41. At paragraphs 79-80, the CJEU stated that: “Therefore, where the person who is the subject of an arrest warrant issued on the basis of the TCA claims before that executing judicial authority that there is a risk of a breach of Article 49(1) of the Charter if that person is surrendered to the United Kingdom, that executing judicial authority cannot, without disregarding the obligation to respect the fundamental rights enshrined in Article 524(2) of that agreement, order that surrender without having specifically determined, following an appropriate examination, within the meaning of paragraph 51 above, whether there are valid reasons to believe that that person is exposed to a real risk of such a breach.

… the executing judicial authority must, however, take into account the longstanding respect by the United Kingdom for the protection of the fundamental rights and freedoms of individuals, including as set out in the Universal Declaration of Human Rights and in the ECHR, which is expressly referred to in Article 524(1) of the TCA, and the provisions laid down and implemented in United Kingdom law to ensure respect for the fundamental rights set out in the ECHR (see, by analogy, judgment of 19 September 2018, RO, C‑327/18 PPU, EU:C:2018:733, paragraph 52).”

42. At paragraph 82, the CJEU found that, when read in conjunction with the Charter of Fundamental Rights of the European Union, the TCA requires: “… the executing judicial authority to examine all the relevant factors in order to assess the foreseeable situation of the requested person if he or she is surrendered to the United Kingdom, which, unlike the two-step examination referred to in paragraphs 52 to 54 above, assumes that both the rules and practices that are generally in place in that country and, if the principles of mutual trust and mutual recognition are not applied, the specific features of that person’s individual situation are to be taken into account simultaneously.”

43. The CJEU concluded its analysis in saying at paragraph 85 that: “Consequently, the executing judicial authority may refuse to give effect to an arrest warrant on the basis of Article 524(2) and Article 604(c) of the TCA, read in conjunction with Article 49(1) of the Charter, only if it has, having regard to the individual situation of the requested person, objective, reliable, specific and properly updated information establishing substantial grounds for believing that there is a real risk of a breach of Article 49(1) of the Charter (see, by analogy, judgments of 6 September 2016, Petruhhin, C-182/15, EU:C:2016:630, paragraph 59, and of 19 September 2018, RO, C-327/18 PPU, EU:C:2018:733, paragraph 61).”

44. This area of law was the subject of recent review by McGrath J. in Minister for Justice v. Dumitri [AKA Cerban] [2025] IEHC 69 and I gratefully adopt his summary of the legal principles.

45. Dumitri also concerned an objection to surrender to the United Kingdom based on prison conditions, and reliance was placed by the respondent on the 2022 C.P.T. report in relation to Pentonville Prison and Wandsworth Prison. The main issues raised in the report concerned overcrowding and interprisoner violence.

46. At paragraph 16, McGrath J. put the position in the following terms: “Following on from the Judgment of the CJEU in Alchaster, the principles of mutual trust and confidence that underlie the operation of the Framework

Decision and the consideration of applications from member states of the European Union, do not apply to the consideration of TCAWs received from the United Kingdom under the Trade and Cooperation Agreement.”

47. Having set out the relevant parts of Alchaster, as quoted above, McGrath J. stated at paragraphs 19-20 that: “The principles governing the consideration of such objections would appear largely similar to those which have been applied by the Irish Courts when considering applications for surrender from other third countries with which this State has more traditional extradition arrangements, such as by way of example the United States of America, Canada and Australia. In considering any application from a third country, and objections made to surrender thereto, a Court will proceed on the basis that the third country will act in good faith and furthermore that such a state, with whom Ireland has after all agreed to enter into an extradition arrangement or treaty, will behave in a manner which will respect and vindicate the rights of the proposed extraditee.

Furthermore, although the Court will of course consider any relevant past or historic matters which touch upon any claim that there is a substantial risk that extradition to a third country will expose an extraditee to a risk of harm if now surrendered to that state, any assessment of such a risk must be forward looking and therefore any past matters must be relevant to the assessment of any future risk.”

48. McGrath J. also followed the approach of Edwards J. in Attorney General v. O’Gara [2012] IEHC 179, where he held that the well-known “Rettinger principles” could be applied with “appropriate modification” when considering objections to surrender on human/fundamental rights grounds in a U.S. extradition case.

49. Having reviewed the authorities, McGrath J. held at paragraph 23 that: “… Although the principles of mutual confidence and trust do not apply when considering objections in the context of a TCAW warrant, this Court must nonetheless approach fundamental / human rights objections to surrender to the United Kingdom cognisant of it being a party to the European Convention on Human Rights, its long standing respect for the protection of fundamental rights as set out in that Convention and the provisions in place in UK law to ensure the protection of such rights and freedoms.”

50. Even in the context of applying what might be called a “weaker” presumption in a request for surrender under the TCA, McGrath J. concluded that the evidence put before the court by the respondent did not give rise to concerns that, if surrendered, he would be exposed to inhuman and degrading treatment such as to give rise to a possible breach of Article 3 of the ECHR. He was satisfied that the respondent had failed to demonstrate even a generalised risk of ill treatment such that might raise Article 3 issues or concerns.

51. At paragraph 42, McGrath J. said that: “I have arrived at this conclusion firstly having considered the CPT Report of 2022 (which is a report which deals with prison conditions generally). I do not consider the matters referred to in that report as providing evidence of a generalised risk of ill treatment that would amount to a breach of Article 3 of the Convention. As already observed, insofar as overcrowding is concerned there is no objective evidence to support the contention that overcrowding in UK prisons is at a level that would engage Article 3 of the Convention. There is, for example, no evidence of detainees being held in conditions where they are provided with less than 3m2 or 4m2 per inmate – a figure below which a presumption of overcrowding can arise.”

52. I feel compelled to reach a similar conclusion here. There is a substantial evidential deficit in this case. Notwithstanding the fact that there is no evidence that the respondent would be detained in either identified prison, as asserted, I also note that the issuing state’s response to the 2022 C.P.T. report has been published and counsel for the applicant has submitted that this is relevant to any “forward looking” assessment.

53. That response sets out the financial commitments to improved maintenance and cleaning in respect of Wormwood Scrubs specifically. Access to primary healthcare is described as “generally good” and mental health referrals are triaged according to risk with emergency referrals dealt with on the same working day when received by the Mental Health In-Reach Team. Urgent referrals are dealt with within 24 hours and routine referrals are dealt with within 1 to 5 working days.

54. In relation to double occupancy, the response states that prison cell occupancy in England and Wales is certified by the Prison Group Director (“the PGD”) in accordance with Prison Service Instruction (PSI) 17/2012 Certified Prisoner Accommodation. Cells with a Certified Normal Accommodation of one are only shared where a PGD has assessed them to be of adequate size and condition. The response states that the PGD for Wormwood Scrubs has assessed these cells to be of an adequate size and condition for double occupancy.

55. The response contains a reference to a £3.8 billion investment plan to deliver 20,000 modern prison places across England and Wales by the mid-2020s.

56. The response also identifies a commitment to a new statutory target of 28 days for prison to hospital transfers for prisoners with severe mental health problems. It sets out the detail of a suite of therapeutic activities for those with mental health difficulties. It also states that the segregation policy is subject to regular multidisciplinary review and additional training was being pursued.

57. In applying the test as set out in Alchaster and amplified in Dumitri, I am satisfied that it has not been established that this particular respondent would, if surrendered, be exposed to inhuman and degrading treatment such as to give rise to a possible breach of Article 3 of the ECHR.

58. I am satisfied that the warrant is in compliance with section 11 of the 2003 Act.

59. The name and address of the judicial authority that issued the warrant and its telephone number, fax number and email address are set out on the face of the warrant.

60. I am satisfied that I am not required to refuse the respondent’s surrender under sections 22, 23 or 24 of the 2003 Act. I am also satisfied that I am not required to refuse surrender for any other reason pursuant to Part 3 of the 2003 Act.

Conclusion

61. For the reasons set out above, I reject the points of objection raised by the respondent to surrender. I, therefore, propose to make an order for surrender to such person as is duly authorised to receive him on behalf of the issuing state.