Shahoud v Swedish Judicial Authority - Extradition Appeal

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  Shahoud   v Swedish Judicial Authority [2026] EWHC 719 (Admin) (27 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/Admin/2026/719.html
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[2026] EWHC 719 (Admin) | | |
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| | | Neutral Citation Number: [2026] EWHC 719 (Admin) |
| | | Case No: AC-2024-LON-004187 |
**IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

In the matter of an appeal against an order for extradition
pursuant to section 26 of the Extradition Act 2003**

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 27 March 2026 |
B e f o r e :

Mrs Justice Eady DBE

Between:
| | AYMAN SHAHOUD | Appellant |
| | - and - | |
| | SWEDISH JUDICIAL AUTHORITY? | Respondent |

**Jonathan Swain (instructed by Sonn Macmillan Walker) for the Appellant
Reka Hollos (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 18 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on Friday 27 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
8. Mrs Justice Eady DBE:
9. Introduction
10. This is my judgment on the appellant's appeal pursuant to section 26 of the Extradition Act 2003 ("the 2003 Act"), against the decision of the District Judge ("DJ") to order his extradition.
12. The hearing before the DJ took place on 21 November 2024; representation was as it has been before me. The DJ's reserved decision was subsequently handed down on 18 December 2024. The appellant seeks to challenge that decision by way of appeal.
14. Considering this matter on the papers, by order seal dated 9 May 2025, Sheldon J refused the application for permission to appeal. Following an oral renewal hearing before Mould J, by order seal dated 1 December 2025, the appeal was permitted to proceed solely on ground 3, by which the appellant contends that the DJ erred in failing to find that, due to Swedish prison conditions, his extradition entails a real risk of a breach of his rights under article 3 European Convention on Human Rights ("ECHR").
16. In support of his application for permission, the appellant sought to rely on fresh evidence; Mould J directed that that application should be left to judge at the full hearing. Since then, the appellant has sought to apply to rely on further new evidence. For its part, the respondent contends that the fresh evidence is not decisive and should, therefore, not be admitted. To determine the application, I have considered the new evidence de bene esse; I return to this issue below.
18. The request and the relevant procedural history
19. The appellant's extradition is sought pursuant to a request made in respect of two separate extradition arrest warrants. The first ("AW1") is an accusation-type warrant, seeking the appellant's surrender to stand trial for an offence of fraud said to have been carried out between 21 March and 10 June 2021. The second ("AW2") is a conviction-type warrant seeking his surrender to serve the outstanding part of a sentence of 18 months' imprisonment for unlawful dealing in products subject to excise duty, an offence that was carried out between 31 May and 21 December 2021.
21. The appellant was arrested in Sweden in relation to the offence described in AW2 on 20 December 2021. He remained in pre-trial detention while the investigation continued and until the subsequent court proceedings had taken place.
23. On 23 June 2022, in the presence of his lawyer, the appellant was questioned about the alleged offence described in AW1; at that stage, the appellant was still in detention in relation to the offence described in AW2 and was accordingly not arrested in relation to the alleged offence described in AW1.
25. On 28 June 2022, pursuant to a court determination, the appellant was released from his pre-trial detention in relation to the offence in AW2.
27. On 11 July 2022, by decision of the Kalmar District Court, the appellant was sentenced to imprisonment for 18 months in relation to the offence described in AW2; taking into account time served, 11 months and 24 days of that sentence remain outstanding.
29. On 6 September 2022, it was determined that the appellant must surrender himself to serve the sentence in relation to the offence described in AW2; that decision was served on the appellant on 16 September 2022, and he was required to surrender himself on or before 21 November 2022. He did not do so. By that time, the appellant had left Sweden; he arrived in the UK on either 20 or 21 November 2022.
31. AW1 was issued on 22 January 2024 and certified by the National Crime Agency ("NCA") on 3 February 2024. The appellant was arrested pursuant to AW1 on 28 February 2024 and appeared at Westminster Magistrates' Court for the initial hearing on 29 February 2024, when the hearing was adjourned to 1 March 2024.
33. AW2 was issued on 29 February 2024, and certified by the NCA on 1 March 2024. The appellant was arrested pursuant to AW2 on 1 March 2024, when he appeared at Westminster Magistrates' Court for the adjourned initial hearing in relation to AW1 and the initial hearing in relation to AW2.
35. The appellant's evidence before the DJ, and the DJ's findings relevant to article 3 ECHR
36. At the extradition hearing on 21 November 2024, the following issues were in dispute: (i) whether the appellant was a fugitive in relation to AW1 and AW2; (ii) whether AW2 was sufficiently particularised and a valid warrant within the meaning of section 2 of the 2003 Act; (iii) whether the offence described in AW2 was an extradition offence; (iv) whether the appellant's extradition was compatible with his article 3 ECHR rights, both in relation to prison conditions (the issue before me) and threats allegedly made in relation to AW1; (v) whether the appellant's extradition was compatible with his rights under article 8 ECHR. Each of these points were resolved against the appellant, and only one of the issues raised in relation to article 3 ECHR is now before me on this appeal. As a result, it is inevitable that much of the evidence below, and a large part of the DJ's reasoning, is not relevant to my task on this appeal.
38. The appellant did, however, give evidence at the extradition hearing regarding his experience of pre-trial detention in Sweden. He explained that, in respect of the offence in AW2, he was produced before the Swedish court on 22 December 2021, when the prosecutor argued that he might interfere with witnesses or otherwise obstruct the course of justice as the investigation was ongoing. Given those concerns, the appellant was remanded into custody, where he was detained in solitary confinement and was unable to communicate with anyone outside the prison, including his own family. During this period of pre-trial detention, the appellant was produced before the Swedish court, by television link, every fifteen days, when his restrictions were reviewed by the court. He remained in custody, subject to this regime, until 28 June 2022, when he was released pursuant to a decision of the court.
40. It was the appellant's evidence that during his time in solitary confinement he was detained in his cell for 24 hours each day save for 30 to 60 minutes when he was allowed out of his cell on his own. He was allowed to communicate with his lawyer privately and was able to, and did, appeal against the conditions of his detention, but his appeals were rejected. The appellant said that, other than a telephone call ten days after arrest, he was only allowed contact outside the prison after about five-and-a-half months. He was allowed to send letters, but these had to be sent to his lawyer and then reviewed by the prosecutor before onward transmission to his home. He also received a letter from his children. The appellant had been detained in three prisons; he said the second was " much better. It was like a hotel "; he was in the third prison for fifteen days. During his solitary confinement, the appellant was not allowed to integrate with the other prisoners and he said he lost weight while subject to this regime.
42. The appellant also relied on an expert report of Mr Rodney Humphreys (Advokat and member of the Swedish Bar Association), and on the following statements and reports: the Istanbul statement on the use and effects of solitary confinement; a 2020 thematic report from the Swedish Parliamentary Ombudsman's special unit based on the Optional Protocol of the United Nation's Convention against Torture (the "OPCAT unit") entitled " Isolation of inmates in remand prisons "; the report to the Swedish government (dated 9 September 2021) on the visit by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") from 18 to 29 January 2021; and the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") concluding observations on the 8 th periodic report of Sweden (dated 20 December 2021).
44. The DJ summarised Mr Humphreys' evidence as follows:
46. "51. ... if the [appellant] is extradited pursuant to AW1 and AW2, and the only grounds for detention are flight risk and/or further offending, then it is likely that he will be accommodated in a prison and not a detention centre. If the prosecutor is of the view that there is a risk of interference with the investigation in AW1 then it is highly likely he will be detained in a detention centre where he would also be subject to restrictions. The place of detention and the imposition of restrictions would be decided by a District Court. Mr Humphreys' [sic] is of the view that, as the alleged offence described in AW1 was committed more than three years ago, it is likely he would be granted monitored visitation and/or telephone calls with his family and a shared cell. This is not guaranteed, however. The [appellant] would have the right to have decisions of detention and restriction reviewed fortnightly by the District Court and the right to appeal both detention and restriction to the Court of Appeal. Since 2021 there has been reform of Swedish law, so that "extraordinary circumstances" are required if a suspect is to be deprived of his liberty, during criminal investigations, for more than nine months. There remains no statutory absolute maximum limit on pre-trial detention, but it is rare that a suspect is detained for more than one year without the investigation being concluded and a trial held."
47. Before me, Mr Swain sought to emphasise findings within the OPCAT unit's 2020 thematic report relating to remand prisons, that:
49. (1) the majority of inmates in Swedish remand were held in conditions amounting to solitary confinement (that is, confined for more than 22 hours a day without meaningful human contact);
50. (2) the Swedish prison and probation service had had great difficulty in achieving its own objective that inmates with restrictions should have the opportunity for two hours of isolation-breaking measures a day, and had not fully achieved this in relation to inmates without restrictions: the objective was not achieved for 83% of inmates under restriction, and 33% for those with no restrictions;
51. (3) on inspection of one remand prison in February 2019, it was found that overcrowding had meant that the objective for isolation-breaking measures had not been achieved for any group held on remand;
52. (4) there were examples at one or two remand prisons during the inspection when inmates could remain at the remand prison even after restrictions had been lifted, because alternative placements were not available;
53. (5) Sweden's use of solitary confinement had been criticised by the CAT and CPT.
54. The DJ broadly accepted the appellant's evidence as to the conditions of his pre-trial detention in relation to the offence under AW2, which he found to be consistent with Mr Humphrey's report and the other materials that had been adduced. He found that, on surrender, the appellant:
56. "52. ... may be subject to a similar regime, but that the regime will not be as restrictive as the earlier regime as indicated by Mr Humphreys."
57. The DJ also referred to the case of Shiraz Ahmed v Swedish Economic Crime Authority [2017] EWHC 345 (Admin) in which it was observed that there had been no European Court of Human Rights ("ECtHR") decision that Sweden systematically violated article 3 rights by pre-trial detention with restrictions and no international consensus rebutting the presumption of compliance, by Sweden, with its obligations under the ECHR.
59. On this issue, the DJ concluded:
61. "54. In my judgment, the [appellant] has not demonstrated a real risk that he would be subjected to torture or to inhuman degrading treatment or punishment on surrender in contravention of Article 3. He has not provided the required compelling evidence. This is for the following reasons. Sweden is a signatory to the Convention and an EU members [sic] state. I can presume that it will comply with its Article 3 obligations. There is no international consensus rebutting that presumption of compliance. There is no ECtHR decision that Sweden systematically violated Article 3 rights by pre-trial detention with restrictions. It is likely, based on Mr Humphreys' evidence that the [appellant], on surrender, if detained at a detention centre and not a prison, would be granted monitored visitation and/or telephone calls with his family and a shared cell. That detention and restriction would be subject to fortnightly review by the District Court and the [appellant] would have the right of appeal against detention and restriction to the Court of Appeal. The situation in Sweden has changed since the [appellant's] departure. 'Extraordinary circumstances' would now be required for him to be detained, subject to that regime, for more than nine months. The review and appeal provisions in Sweden are effective. The [appellant] was released from detention by the court on 28 June 2022. This demonstrates that they are real safeguards. Moreover, it is clear that conditions in the Swedish prison estate are, at least, satisfactory. To adopt the phrase used by the [appellant] himself in relation to one of the prisons where he was detained: "it was like a hotel"."
62. Given those conclusions, the DJ was sure, and duly found, that the appellant's extradition was compatible with his article 3 right not to be subjected to torture or inhuman or degrading treatment or punishment on account of prison conditions in Sweden (paragraph 55, extradition judgment).
64. Fresh evidence
65. The appellant has applied to rely on new evidence in support of his appeal. This takes the form of a number of different reports (introduced through the second addendum report of Mr Humphreys), which (mostly) post-date the hearing before the DJ. Insofar as this material was unavailable at the time of the extradition hearing, the respondent accepts it could not (using all reasonable diligence) have then been adduced. The respondent contends, however, that this evidence (whether taken alone or in combination with any other material relied on by the appellant) does not establish the necessary " real risk " of treatment contrary to article 3 ECHR and should thus not be admitted as it cannot be said to be decisive (as for the test I must apply to fresh evidence, see the discussion under the legal framework below).
67. Considering this material de bene esse, the focus of the appellant's case in this regard can be summarised as follows:
69. (1) on 3 December 2025, the Swedish Ministry of Justice sent its ninth periodic report to the UN CAT, in which it was concluded that the number of inmates who were subject to restrictions had " increased overall " ? the appellant says that this supports his contention that he would be subject to some form of formal restriction in the event of his extradition;
70. (2) the Swedish authorities had further addressed de facto isolation, recording that 15% of detainees without restrictions, and 66% of those with restrictions, did not receive two or more hours of isolation-breaking measures per day;
71. (3) in May 2025, the Swedish Parliamentary Ombudsman's OPCAT unit had published two reports dealing with the issue of double occupancy (in particular, where two persons are accommodated in a cell designed for single use), one report dealing with remand facilities, where six of the 40 facilities had been inspected, the other with prisons (i.e. facilities used for convicted prisoners), where five of 46 facilities had been inspected), finding (relevantly):
72. a) for remand detainees: there was a lack of time alone, putting inmates at risk of various stress-related conditions and increased frustration and aggression; inmates had said that staff shortages meant they were not prioritised in respect of isolation breaking measures; various adaptations had been made to accommodate double occupancy, and there was an example where temporary measures had included a mattress being placed on the floor; equally, not all remand prisons had floor-to-ceiling doors separating the sanitary facilities, with three establishments, and the older part of a fourth, having just a curtain, blanket or similar temporary solution in place; cell sizes varied, and one remand prison had converted former interrogation rooms (less than six square metres) into double occupancy cells; inmates had complained of inadequate ventilation; one remand prison rented poorly designed space in a former police detention facility, in which, notwithstanding criticism in 2022, a quarter of the cells were double-occupied; inmates also reported an increased risk of incidents with cellmates, that it could take a "long time" for staff to get to the cell when called, and it was difficult to terminate placements.
73. b) for convicted prisoners: lack of time alone was again reported, with inmates being locked up with their counterpart for 12-14 hours a day and often participating in the same activity as their cell mate, which limited opportunity for private family calls; similarly, increases in stress, irritation and aggression were reported, and in all but one prison it had been reported that inmates were regularly threatened by their cellmate to leave or face violence, and inmates expressed the view that such incidents (which included instances of sexual assault) were underreported; none of the prisons were designed for regular double occupancy of cells, which varied in size from six to nine square metres, excluding sanitary space; inmates felt the ventilation in cells was inadequate; sanitary facilities did not always have a door, with some having just a saloon door or curtain to provide separation; and in one establishment (the women's prison at F?rings?) there was no sanitary facilities in cells and inmates would have to call to be let out to use the bathroom, and might have to wait two to three hours.
74. (4) both May 2025 reports by the OPCAT unit conclude with the following paragraph:
75. "I cannot draw any other conclusion from what has emerged from the investigation carried out than that the circumstances have extensive and serious consequences for the inmates. There is a risk that prison inmates will be subjected to inhuman or degrading treatment. The Prison and Probation Service urgently needs to review what measures are necessary to take to eliminate the risks associated with persons deprived of liberty sharing cells."
76. It is the appellant's submission that this evidence is such that, if adduced at the extradition hearing, it would (or ought to) have been decisive, providing substantial grounds for believing that, if extradited, he will face a real risk of being subjected to inhuman or degrading treatment. In such circumstances, the appropriate step would then be for the court to seek further information or assurance from the respondent.
78. Legal framework
79. The jurisdiction of the court on appeal
80. With the leave of the High Court, an appeal against an order for extradition may be brought on a question of fact or law. On such an appeal, section 27 of the 2003 Act provides that the court may allow the appeal if:
82. "(3) ... (a) the [DJ] ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
83. (4) ... (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the [DJ] deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge."
84. If the court allows the appeal it must quash the extradition order, and order the appellant's discharge (section 27(5)).
85. Fresh evidence
86. Fresh evidence, that is evidence which was not raised or available at the extradition hearing, may be considered by the court on appeal pursuant to section 27(4)(a) of the 2003 Act. As Lord Lloyd-Jones observed in Zabolotnyi v Mateszalka District Court, Hungary [2021] UKSC 14:
88. "57. In my view these conditions in subsection 27(4) are, strictly, not concerned with the admissibility of evidence. I agree with the observation of Laws LJ in District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin), with regard to the parallel provision in section 29(4) which applies to an appeal against discharge at an extradition hearing, that it does not establish conditions for admitting the evidence but establishes conditions for allowing the appeal. In my view this applies equally to section 27(4) which is not a rule of admissibility but a rule of decision. The power to admit fresh evidence on appeal will be exercised as part of the inherent jurisdiction of the High Court to control its own procedure. The underlying policy will be whether it is in the interests of justice to do so (Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin); [2009] 4 All ER 324, a decision in relation to section 29(4) of the 2003 Act , paras 4 and 6 per Sir Anthony May P; FK v Germany [2017] EWHC 2160 (Admin), para 26 per Hickinbottom LJ). In this context, however, an important consideration will be the policy underpinning sections 26-29 of the 2003 Act that extradition cases should be dealt with speedily and not delayed by attempts to introduce on appeal evidence which could and should have been relied upon below (Fenyvesi at paras 32-33)."
89. 58. Parliament in enacting sections 26-29 of the 2003 Act clearly intended that the scope of any appeal should be narrowly confined. The condition in section 27(4)(b) that the fresh evidence would have resulted in the judge deciding the relevant question differently is particularly restrictive. This is reflected in the judgment of the Divisional Court in Fenyvesi?"
90. In this case, it is common ground that the key question is whether I can be satisfied that the material in issue would have resulted in the DJ reaching a different decision, resulting in the appellant's discharge; it must be "decisive": see Szombathely City Court, Hungary v Fenyvesi [2009] EWHC 231 (Admin) paragraphs 32 and 35.
93. Sections 21 and 21A 2003 Act/article 3 ECHR
94. Where a person is alleged to be unlawfully at large after conviction of the extradition offence, by section 21 of the 2003 Act it is required that it must first be determined whether extradition would be compatible with the individual's rights under the ECHR; where the person has not yet been convicted, by section 21A it is necessary to decide whether extradition would be compatible with ECHR rights and proportionate. Under either provision, if those questions are answered in the negative, the individual must be discharged.
96. Article 3 ECHR provides that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment; an obligation that extends to conditions of imprisonment in which a person may be held if extradited (Soering v UK (1989) 11 EHRR 439, paragraph 91).
98. As a signatory to the ECHR and a member of the European Union, there is a presumption that the respondent will be capable of affording adequate protection to an extradited person's rights under the ECHR. In Rae v United States of America [2022] EWHC 3095 (Admin), Chamberlain J explained the reasoning behind this presumption:
100. "45. The reason why ECHR states are presumed, absent cogent evidence to the contrary, to comply with ECHR standards is because they have assumed the obligation in international law to do so and taken steps to implement that obligation in their domestic law ? and their good faith in that regard is to be presumed. ..."
101. The relevant principles that will be applied by domestic courts in this regard were set out by the Divisional Court in Elashmawy v Italy [2015] EWHC 28 (Admin), (summarised from the earlier re-statement in Krolik (and others) v Several Judicial Authorities in Poland [2013] 1 WLR 490), as follows:
103. "50. ... (1) member states of the Council of Europe are presumed to be able and willing to fulfil their obligations under the ECHR, in the absence of clear, cogent and compelling evidence to the contrary. (2) That evidence would have to show that there was a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment. (3) This presumption is of even greater importance in the case of member states of the European Union. In such cases there is a strong, albeit rebuttable, presumption that EU member states will abide by their Convention obligations. Each member state is entitled to have confidence that all other EU states will abide by their Convention obligations. (4) The evidence needed to rebut the presumption? and to establish a breach of Article 3 by the EU member state? (our emphasis) will have to be powerful."
104. In Krolik, the Divisional Court explained that the evidence needed to rebut the presumption would need to amount to " something approaching an international consensus " (see paragraph 7), such as:
106. "6. ... a significant volume of reports from the Council of Europe, the UNHCR and NGOs ...
107. And see Elashmawy, at paragraphs 90 and 104.
108. More generally, in Elashmawy, the Divisional Court summarised the correct approach in cases where it is alleged that prison conditions in the requesting state would give rise to a real risk of treatment that would breach article 3 ECHR, as follows:
110. "49. ... (1) The extradition of a requested person from a Contracting state to another state (whether or not a Contracting state) where that person will be held in detention (either awaiting trial or sentence or in order to serve a sentence lawfully imposed) can give rise to an Article 3 issue, which will engage the responsibility of the Contracting state from which the extradition of the requested person is sought. (2) If it is shown that there are substantial grounds for believing that the requested person would face a "real risk" of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country then Article 3 implies an obligation on the Contracting state not to extradite the requested person. (3) Article 3 imposes "absolute rights", but in order to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. In general, a very strong case is required to make good a violation of Article 3. The test is a stringent one and it is not easy to satisfy. (4) Whether the minimum level is attained in a particular case depends on all the circumstances, such as the nature of the treatment, its duration, its physical and mental effects and, possibly, the age, sex, and health of the person concerned. In that sense, the test of whether there has been a breach of Article 3 in a particular case is "relative". (5) The detention of a person in a prison as a punishment lawfully imposed inevitably involves a deprivation of liberty and brings with it certain disadvantages and a level of suffering that is unavoidable because that is inherent in detention. But lawful detention does not deprive a person of his Article 3 rights. Indeed, Article 3 imposes on the relevant authorities a positive obligation to ensure that all prisoners are held under conditions compatible with respect for human dignity, that they are not subjected to distress or testing of an intensity that exceeds the level of unavoidable suffering concomitant to detention. The health and welfare of prisoners must be adequately assured. (6) If it is alleged that the conditions of detention infringe Article 3, it is necessary to make findings about the actual conditions suffered and their cumulative effect during the relevant time and on the specific claims of the complainant. (7) Where prison overcrowding reaches a certain level, lack of space in a prison may constitute the central element to be taken into account when assessing the conformity of a given situation within Article 3. As a general rule, if the area for personal space is less than 3 metres2, the overcrowding must be considered to be so severe as to justify of itself a finding of a violation of Article 3 ... (8) However, if overcrowding itself is not sufficient to engage Article 3, other aspects of the conditions of detention will be taken into account to see if there has been a breach. Factors may include: the availability for use of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements."
111. The court's task is to examine the present and prospective position on the basis of the clear and cogent evidence before it: Elashmawy at paragraph 90. As Chamberlain J observed in Rae:
113. "64 (a) The prohibition of Article 3 ill-treatment is absolute. There is no distinction to be drawn between the minimum level of severity required to meet the Article 3 threshold in the domestic context and the minimum level required in the extra- territorial context. The extradition of a person by a contracting state will raise problems under Article 3 where there are serious grounds to believe that he would run a real risk of being subject to treatment contrary to Article 3 in the requesting state: see, most recently, Sanchez-Sanchez, at [99] [Sanchez-Sanchez v United Kingdom (Application No.22854/20, Judgment 3 November 2022)]. "Serious grounds" in this context means "strong grounds": Ullah, [24] [R (Ullah) v Special Adjudicator [2004] 2 AC 323 ].
114. (b) Article 3 is not "relativist" ...
115. (c) However, the question whether treatment reaches the minimum level of severity required to engage Article 3 is intensely fact-sensitive and contextual. In a domestic case, the court is looking backwards at a concrete factual situation. In an extra-territorial case, the court is looking forward and attempting to gauge whether there is a real risk of Article 3 ill-treatment. Given the highly contextual nature of the assessment required, this may make it more difficult to establish a real risk of a breach ...
116. (d) This is particularly so where the requesting state is one with a long history of respect of democracy, human rights and the rule of law ..."
117. The fact-sensitive nature of the court's assessment was also stressed in Ahmad v United Kingdom (2013) 56 EHRR 1, where it was observed that this inevitably meant that a risk of a violation of article 3:
119. "178. ... will not be readily established prospectively in an extradition ... context."
120. " Real risk " has been defined as " something distinctly less than a probability ": Zorig Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489, paragraph 39. In Rae, it was held that a risk of between five to 13 percent could be sufficient:
122. "77. ... the statistical risk of the appellant being placed in a non-conforming cell is somewhere between 5% and 13%, i.e. a "real" one."
123. Assessing whether the " real risk " test is met involves, however, looking at both the risk of being subjected to the treatment and the extent to which the treatment would fall below the article 3 minimum: see Rae at paragraph 76, referring to the decision of the Divisional Court in A v France [2022] EWHC 841, where, considering evidence of detention accommodation falling below three square metres per inmate, it was nevertheless held that risk of a violation of article 3 ECHR could be discounted:
125. "67. ... Personal space falling below 3m? per inmate generates a strong presumption of violation, but the issue is neither stark nor binary. ... a good deal of flexibility is required, and the overall picture needs to be considered. Questions of statistical probability and of fact and degree are also germane. I am not overlooking the 0.04m? shortfall for the 24 inmates, but the modesty of the deficit is a factor to be borne in mind, as well as the fact that a shortfall of 0.37m? only applies to three inmates."
126. As a general rule, where overcrowding reduces the area of personal space to less than three square metres per prisoner in a multi-occupancy cell (not including the space occupied by in-cell sanitary facilities), there is a weighty but rebuttable presumption of a violation of article 3: Mursic v Croatia (2017) 65 EHRR 1 at paragraph 110; Florea v Romania [2014] EWHC 2528 (Admin) at paragraph 9. A v France provides an example of a case in which that presumption was rebutted; that may also be so where the following factors are cumulatively met: any reductions in the required minimum personal space are " short, occasional and minor "; such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities; where the applicant is held in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his detention: Mursic at paragraph 138, relied on in Adamescu v Romania [2020] EWHC 2709 (Admin) at paragraph 69.
128. The removal of an individual from associating with other prisoners on the grounds of security, discipline or protection does not in itself amount to inhuman treatment or degrading punishment; whether it does so requires a fact specific assessment to be carried out, having regard to " the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned " : Van der Ven v Netherlands (2004) 38 EHRR 46, paragraph 51. In R (on the application of AB) (Appellant) v Secretary of State for Justice (Respondent) [2021] UKSC 28, it was observed that, in the case law of the ECtHR, emphasis was placed on the need for an evaluation of the circumstances of the individual case. Certainly, the court has never laid down precise rules which, if met, would mean that the treatment attains the minimum level of severity required for article 3 ECHR, although it has emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely: Ahmad v UK, paragraph 210.
130. In Shiraz Ahmed v Swedish Economic Crime Authority? [2017] EWHC 345 (Admin) the Divisional Court considered the compatibility of restrictive conditions in Sweden with a detainee's rights under articles 3 and 5 ECHR; rejecting the challenge, at paragraph 34, Beatson LJ held:
132. "On the evidence before him, in particular the information provided by the judicial authority in the further information of 3 March 2016, the judge was correct to conclude that the conditions of detention to which the appellant will be subject do not risk breaching his rights under Articles 3 and 5 of the ECHR. The argument that he will be held in extended isolation and restrictions which constitute inhuman or degrading treatment or punishment, and that the conditions in which he will held are not susceptible of "effective challenge" is utterly unarguable. Although lack of contact with others might be capable of amounting to a violation of Article 3, the evidence of access to information to newspapers and correspondence and association with other prisoners, albeit subject to supervision, does not suggest that the appellant will be in solitary confinement. I do not consider that the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which makes recommendations about detention conditions in Sweden, and in particular the fact that pre-trial detention is without limits, and about visitors, constitutes an international consensus of the sort required. There have been no pilot judgments against Sweden in the European Court of Human Rights which decide that Sweden systematically violates Article 3 Rights by pre-trial detention with restriction. The arguments based on Article 5 are also untenable given the supervision of a competent court with a review every two weeks including consideration of the proportionality of the detention."
133. In article 3 cases involving questions as to the conditions of detention in the requesting state, the approach that the court will take was explained in Shumba v France [2018] EWHC 1762 (Admin), as follows:
135. "34. Article 3 can in principle apply where a Contracting State proposes to extradite a person to another state, whether or not that other state is itself a party to the ECHR. ....
136. 35. There must be substantial grounds for believing that, if extradited, the Appellant faces a real risk of being subjected to inhuman or degrading treatment.
137. 36. Once such evidence has been adduced by the Appellant it is for the requesting state to dispel any doubts about it: see? Saadi v Italy? [2009] 49 EHRR 30, at paragraphs. 129 and 140.
138. 37. There is a presumption that parties to the ECHR, ..., are willing and able to fulfil their obligations, in the absence of "clear, cogent and compelling" evidence to the contrary. However, that presumption can be rebutted where that evidence comes from an internationally recognised source or is specific to an individual.
139. 38. There may also be a duty on the Court in this jurisdiction to request further information from the state concerned where this is necessary to dispel any doubts.
140. 39. In the context of prison overcrowding, there will be a strong presumption of a breach of Article 3 if any of the following criteria are absent: (1) a private sleeping place within a prison cell; (2) at least 3m? of floorspace per prisoner; and (3) an overall surface area of the cell which is such as to allow the detainees to move freely between the furniture items.
141. 40. Where a detainee is allocated between 3 and 4m? of personal space, a violation of Article 3 will be found if there are other aspects of inappropriate physical conditions: in particular, regard will be had to access to outdoor exercise; natural light or air; availability of ventilation; adequacy of room temperature; access to private toilet facilities; and compliance with basic sanitary and hygiene requirements."
142. The guidance provided in Shumba reflects the approach set out by the Court of Justice of the European Union in Aranyosi and Calderaru C-404/15 and C-659/15PPU [2016] 3 WLR 807, at paragraphs 88-96. In Aranyosi, it was explained:
144. "88. ... where the judicial authority of the executing member state is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing member state, having regard to the standard of protection of fundamental rights guaranteed by EU law ... that judicial authority is bound to assess the existence of that risk when it is called upon to decide on the surrender to the authorities of the issuing member state of the individual sought by a European arrest warrant. The consequence of the execution of such a warrant must not be that that individual suffers inhuman or degrading treatment."
145. Further observing that:
146. "89. To that end, the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention condition prevailing in the issuing member state and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention. That information may be obtained from, inter alia, judgments of international courts, such as judgments of the Court of Human Rights, judgments of courts of the issuing member state, and also decisions, reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN."
147. The existence of evidence of a " real risk " would not, however, mean that the judicial authority concerned must refuse to execute the arrest warrant; as was made clear in Aranyosi, this would lead to a second stage, whereby a request must be made to the issuing state for:
149. "95. ... all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained ...."
151. Submissions
152. The appellant's case
153. The appellant's submissions are made (1) in relation to the conclusions reached by the DJ (on the material available at the extradition hearing and on the basis of the fresh evidence), and (2) on a stand-alone basis, on the fresh evidence adduced on appeal.
155. (1) The conclusions reached by the DJ. The appellant contends the DJ was wrong in the conclusion he reached as to the conditions in which the appellant would be placed if extradited, when the evidence before the DJ demonstrated that the low threshold (per Rae) had been crossed to establish a " real risk " that he would be detained pursuant to a restrictive regime. It is the appellant's case that the DJ's finding that he " may " be subject to a restrictive regime if surrendered to Sweden is akin to an acceptance of " real risk ". Alternatively, it is said that, on the evidence before the DJ, which he had essentially accepted, that was the necessary inference: as the OPCAT unit's 2020 report demonstrated, the majority of remand inmates were held in condition amounting to solitary confinement whether or not they were the subject of a restrictive regime.
157. Even if the DJ had been entitled to reach the conclusion that no " real risk " had been demonstrated on the evidence adduced before him, the appellant contends that the fresh evidence showed that threshold was crossed and would have been determinative of this issue had it been available at the extradition hearing. In this regard, the appellant relies on the Swedish Ministry of Justice's ninth periodic report sent to the UN CAT in December 2025, which showed that, in 2024, the number of inmates subject to restrictions had " increased overall ", with 66% not receiving two or more hours of isolation-breaking measures per day, and that 15% of those with no restrictions also suffered similar de facto isolation.
159. (2) Fresh evidence as a stand-alone ground of challenge. The issue in this respect was whether the new evidence (not available as at the date of the extradition hearing) would have resulted in the DJ deciding the relevant question differently (Fenyvesi). In addition to the Swedish Ministry of Justice's report referenced above, which related to numbers of detainees under restrictions and/or suffering de facto isolation, the appellant relies on the OPCAT unit's May 2025 reports on double occupancy: accepting it was not the role of the OPCAT unit to make a conclusive pronouncement as to whether conditions amounted to a breach of article 3 ECHR, the reports provided clear, cogent, and up-to-date compelling evidence that met the low threshold required to demonstrate a " real risk " of such a breach. Acknowledging this was not a " bright line " case, and the appellant could not say that the risk identified was of detention in an area under three square metres (Mursic), it was nevertheless contended that the evidence demonstrated a combination of features - relating to overcrowding, inappropriate cell space, inadequate ventilation, and degrading sanitary facilities ? that, had this been available before the DJ, would have led to the conclusion that there was a real risk of a breach of article 3, such as to require further information/assurance from the respondent.
161. The respondent's position
162. The respondent emphasised the starting point must be that, as an ECHR signatory and EU member, it is to be afforded the benefit of a presumption of compliance; its primary submission is that ? however viewed ? the appellant's challenge had not discharged the burden to rebut that presumption. Although not a precondition, the respondent said it was instructive there was no ECtHR judgment (let alone a pilot judgment), or wider evidence at an international level, finding Swedish detention conditions gave rise to a risk of a breach of article 3 ECHR. Moreover, in Shiraz Ahmed the Divisional Court had rejected arguments relating to restrictive conditions in pre-trial detention in Sweden; although that decision dated back to 2017, the evidence in that case was essentially the same as that relied on by the appellant (save that legislative reform had since limited the time period for which restrictions could be placed on detainees).
164. To the extent the appellant's case focused on conditions of isolation, there was no bright line as to what would amount to a prima facie breach of article 3: this required an intensely fact-sensitive inquiry, focused on the position of the appellant. The DJ had carried out a careful assessment of the evidence, and his finding as to what " may " happen had to be viewed in context. First, it would only be if the appellant was placed in a detention centre (on remand) that he could face restrictions, but (per the evidence of Mr Humphreys) that was unlikely given (i) he would be detained in the prison estate as a convicted prisoner under AW2 (addressing issues of flight risk and re-offending); and (ii) the length of time since the offending relevant to AW1 (dating back to 2021) made restrictions to address risk of interference with the investigation unlikely. Second, if the appellant was held in pre-trial detention, Mr Humphreys' evidence was that this was likely to be subject to fewer restrictions than he had previously experienced; that Mr Humphreys had added the caveat that " This is not guaranteed " was a statement of the obvious, not of the likelihood of any risk. This did not mean the imposition of restrictions was arbitrary: the evidence showed decisions had to be justified and were subject to court oversight. As for the nature of the restrictions Mr Humphreys envisaged, the DJ had correctly found these would not meet the threshold to establish a " real risk " of a breach of article 3 ECHR and the further evidence now adduced would not impact upon that conclusion (see Van der Ven paragraph 51).
166. As for new evidence relating to double occupancy: first, as the appellant had accepted in argument, there was no real risk that he would be detained in conditions of less than three square metres; second, the OPCAT unit's 2025 reports were based on a very small sample of prisons across the estate; third, and, in any event, the evidence demonstrated:
168. (1) for remand detainees: benefits to double occupancy, with both inmates and staff reporting this could increase support and reduce isolation; confirmation that inmates must have at least one hour outdoors each day, and, where an inmate had no right to association, that they must be offered isolation-breaking measures; any use of mattresses was temporary and was not widespread; all of the cells inspected had a sanitary space, separated by a floor-to-ceiling door in two establishments and in part of a third, by a saloon door in one, and otherwise by a curtain, blanket or similar.
169. (2) for convicted prisoners: double occupancy cells were " equipped with a bunk bed with two beds, two bedside tables, two bedside lamps, two televisions, a desk, a chair and various types of storage space "; in all the male institutions, double cells had a sanitary area with a washbasin and a toilet; in two of the prisons all sanitary facilities were separated by a floor-to-ceiling door, and that was true for parts of two further prisons; in only two of the four prisons did some cells (proportion not provided) have separation by saloon doors, a curtain or no separation.
170. (3) generally: the reports did not provide evidence giving rise to a real risk of an article 3 breach in respect to: state of repair, cleanliness, and issues relating to infestations; provision of personal hygiene products and cleaning materials; access to natural light, ventilation and appropriate temperature; length of time in cell and purposeful activities; exercise and education; or access to healthcare.
171. Looked at holistically, the respondent submits that the new evidence does not meet the threshold required to find a real risk of a breach of article 3 ECHR. If, however, the court were to find that the appellant had rebutted the presumption of compliance, the necessary next step would be to seek further information from the respondent under the second stage of the Aranyosi procedure.
173. Analysis and decision
174. As is common ground before me, as a signatory to the ECHR and a member of the EU, there is a presumption that the respondent will be capable of affording adequate protection to an extradited person's ECHR rights. The burden of displacing that presumption is on the appellant, who is required to adduce clear, cogent, and compelling evidence, demonstrating that, if extradited to the respondent's territory, there is a real risk that he will be subjected to torture or inhuman or degrading treatment or punishment (Krolik; Elashmawy; Rae). The standard required for such evidence has been described as " something approaching an international consensus " (Krolik; Elashmawy), although that may be obtained from reports and other documents produced by bodies of the Council of Europe or under the aegis of the UN, as well as from judgments of international courts, such as the ECtHR (Aranyosi).
176. " Real risk " does not, however, require that the risk is probable, or more likely than not (Zorig; Rae); it simply means that the risk is " real ", both in terms of the likelihood of the individual being subjected to the treatment in issue and the extent to which that treatment would fall below the standards required by article 3 ECHR (Rae).
178. At the extradition hearing, the appellant's case was focused on what was said to be a real risk of a breach of article 3 due to the restrictive regime he contended he was likely to be subjected to if extradited under AW1 and detained on remand. That was the focus of the appellant's own evidence (inevitably, as he had never surrendered to his post-conviction sentence on AW2, his only experience was of pre-trial detention), and of the expert opinion evidence provided by Mr Humphreys. There was (and is), however, no suggestion that such a regime would be imposed on the appellant if detained in the prison estate for the offence under AW2. Moreover, the evidence before the DJ was that the restrictive regime the appellant had previously experienced on remand had been imposed because there was considered to be a risk of interference with the investigation. Given the time that had passed since the offending alleged in relation to AW1, Mr Humphreys' view was that, even if held in pre-trial detention, it was likely the appellant would not be subjected to the same kind of restrictions. As for the extent to which the treatment in issue might fall below the standards required under article 3 ECHR, as the DJ found, the position was not dissimilar to that considered by the Divisional Court in Shiraz Ahmed (save that pre-trial detention in Sweden can no longer be without limitation of time).
180. The DJ's findings thus have to be seen in context. Considering the likelihood of the appellant being subjected to the treatment in issue (a restricted regime with severe limitations on his freedom of association), the reality is that, if extradited on AW2, it is most likely that he will be detained in a prison, with no such restrictions; if, however, there is a good reason for him to be remanded in a pre-trial detention centre (in relation to the offence under AW1), the passage of time since the offence was committed means it is likely that he will not be under the same restrictions as he experienced before. This is not a case such as Rae, where the evidence before the DJ was capable of being reduced to a percentage range, but it is nevertheless clear that, if extradited, there is no real risk of the appellant being subjected to the kind of regime imposed during his earlier period of pre-trial detention. Mr Humphreys' observation that the position was " not guaranteed " merely confirmed that the relevant decision would ultimately be for the prison authorities, but any such decision would ? as the DJ found ? be susceptible to challenge by the appellant on application to the court.
182. As for the extent to which the treatment in issue might fall below the standards required under article 3 ECHR, the DJ permissibly found that similar restrictions to those complained of by the appellant (also imposed during periods of pre-trial detention) had been held not to give rise to an arguable risk of a breach of article 3 ECHR in Shiraz Ahmed. The DJ did not thereby fail to have regard to the evidence provided in the OPCAT unit's 2020 report, but was entitled to view that as not passing the threshold to demonstrate a " real risk " of a breach of article 3 in circumstances in which (as the DJ found, or was otherwise not in dispute) the appellant will be granted monitored visitation and/or telephone calls with his family, will be accommodated in a shared cell, and will have access to newspapers, correspondence, and have some form of association (albeit constrained) with inmates outside his cell. On the evidence available at the extradition hearing, I am unable to say that the DJ ought to have decided the issue before him differently.
184. My conclusion in this regard does not change upon consideration of the fresh evidence relating to the experience of isolating conditions, as set out in the Ministry of Justice's ninth periodic report from December 2025. As the case-law makes clear, my focus has to be on the appellant's case, and, as the evidence makes clear, given his extradition is sought in relation to a conviction warrant (AW2), the strong likelihood is that he will be accommodated in a prison with no restrictions. Allowing that there is a possibility that he will be placed in pre-trial detention in relation to AW1 (albeit that might be after he has served his sentence in respect of the offence relating to AW2), the evidence (per Mr Humphreys) is that this is likely to be without significant restrictions. Looking forward, and engaging in the highly contextual, intensely fact-sensitive, assessment required (Ahmad v UK; Rae), I do not find that the fresh evidence in this regard would have resulted in the DJ reaching a different decision on the question raised in respect of the risk of a breach of article 3 ECHR.
186. The other aspect of the appellant's fresh evidence challenge puts the potential article 3 breach in a different way. Rather than complaining of inhuman or degrading treatment arising from being detained in conditions of isolation or solitary confinement, the appellant's objection relates to double occupancy rates in prisons and detention centres, where cells designed for single use are increasingly being used to accommodate two inmates. As is apparent from the reports relied on by the appellant in this regard, the issue arises from an increase in the number of detainees in the prison estate: double occupancy of cells originally designed for single use is one of the measures that has been adopted to address this issue. There is no suggestion that there is any premeditation in this practice, that this is a measure calculated to break the resistance or will of any inmate, or that it reveals an intention to debase or humiliate those who are detained; the question is whether the effect of the practice gives rise to a real risk that, if extradited, the appellant will suffer a breach of his article 3 ECHR rights.
188. Before turning to the evidence in the May 2025 OPCAT unit reports relied on in this regard, it is helpful to set out some of the context explained in Mr Humphreys' addendum report. As Mr Humphreys makes clear, the OPCAT reports are intended to identify problems and provide recommendations for the Swedish prison and probation service. Mr Humphreys' expectation is that:
190. "... the Swedish Prison and Probation Service will face severe criticism if it does not employ its best efforts to carry out the recommended measures. The ... decisions and recommendations of [the OPCAT unit] are ... in general taken very seriously, and acting against them would likely be perceived as defying or breaking the law. That being said, it is clear from the material that I have reviewed ... that there is a significant problem of overcrowding and that the Swedish Prison and Probation Service are facing a great challenge in solving every problem in a fully satisfactory way."
191. Mr Humphreys then refers to various measures taken to address the problem of overcrowding, which include: (i) an increase in funding for the Swedish prison and probation service from 14.1 billion SEK (in 2023) to 26 billion SEK (in 2027); (ii) the building of 3,000 new prison places; (iii) an increase in the number of inmates who will serve their sentence in their native countries; and (iv) an agreement with Estonia concerning the renting of prison placements in that country (likely to be approved by the Swedish parliament in spring 2026). Acknowledging that there will be varying timescales for these measures (and not all will be of direct relevance for the appellant), this evidence supports the view that Sweden is alive to its ECHR obligations and is not complacent when faced with issues of overcrowding in its prisons and detention centres.
193. As for the problems that have been identified from current levels of occupancy, as the appellant has acknowledged, the evidence does not suggest there is a real risk that he will be accommodated in a cell allowing less than three square metres for each inmate. That, however, is not the limit of the inquiry; even where the allocation of personal space exceeds the Mursic minimum, other aspects of the conditions of detention will be taken into account to see if there has been a breach, which may include the availability of private lavatories, available ventilation, natural light and air, heating, and other basic health requirements (Elashmawy at paragraph 49(8); Shumba at paragraph 40). In seeking to conduct the necessarily prospective assessment that this requires, it is common ground that there is no bright line to be drawn: a minimum level of severity has to be demonstrated by evidence that is clear, cogent, compelling and up-to-date, and regard has to be had to the overall picture, taking account of questions of statistical probability and of fact and degree (A v France).
195. As for the nature of the evidence, the respondent has criticised the appellant's reliance on reports based on visits to a very limited number of prisons and detention centres, questioning how helpful this evidence can be, given that it is not known whether the appellant is likely to be accommodated in any of the establishments in issue. That, however, is an unfair criticism; not least, as the appellant observes, because it is the respondent that is best placed to say where he is likely to be accommodated if surrendered according to its request. Moreover, it is apparent that the two OPCAT unit reports in question relate to visits to a broadly representative range of establishments (catering for different sexes, different categories of detainee, and so on) and, if I were to find that this provided evidence that met the necessary threshold (the first stage under Aranyosi or Shumba), it would then be for the respondent to provide further information and/or assurances as to where it is envisaged that the appellant will be accommodated.
197. The better point made by the respondent is that the evidence in question is not drawn from any decision of the ECtHR (pilot judgment or otherwise) or of a domestic court, nor is it derived from a body that represents an international consensus of opinion. As Mr Humphrey's addendum report emphasises, the OPCAT unit is part of a respected state entity within Sweden, which serves an important function in identifying problems within the prison and probation system, and making recommendations for how these are to be addressed; its role is not, however, to make a determination as to whether there has in fact been a breach of article 3 ECHR.
199. Turning then to the detail of the information provided in the reports, as the respondent has observed, it is not all one way. Although the reports highlight problems arising from accommodating two inmates in cells originally designed for one, they also identify benefits, with inmates and staff reporting that:
201. "... inmates who share a cell can support each other and ... become less isolated"
202. Without discounting the negative aspects of double occupancy, it is apparent that the picture is more nuanced than the appellant's criticism allows. As observed in the report relating to remand detainees:
203. "Although attitudes to double occupancy thus varied, the majority of the inmates interviewed ... provide remarkably similar description of the situation. One inmate described it in a way that summarises the common but complex view that emerged during inspections: " There really is nothing good about double occupancy except you are not alone." He also noted that " Double occupancy works fine, but everyone needs alone time.""
204. As for the other physical conditions, I bear in mind that some of the issues identified were plainly temporary (such as the use of a mattress on the floor while a bunk bed installed), and have to be seen in the context of the steps being taken to adapt the cells for double occupancy to a more general standard that ensures each cell is equipped with a bunk bed with two beds, two bedside tables, two bedside lamps, two televisions, a desk, a chair and various types of storage space. The cells have access to natural light and, although ventilation was raised as an issue by some inmates and staff, there was evidence that checks had been undertaken by management to ensure that the ventilation provided met relevant standards for the accommodation in issue. As for sanitary facilities, the evidence suggests that almost all the units visited had some means of ensuring privacy, or that inmates secured their own means (using a blanket or sheet) of providing a makeshift barrier.
206. I have taken time to read the May 2025 OPCAT unit reports and do not seek to downplay the issues they raise. That said, as the respondent has observed, the reports do not provide evidence of establishments in a poor state of repair, with issues in terms of cleanliness or infestations, that fail to provide adequate healthcare, or where access to natural light, ventilation, and appropriate temperature is such as to give rise to serious concern, or where there is inadequate provision of personal hygiene products and cleaning materials. Moreover, allowing for the inherent consequences of lawful detention in a custodial setting, I do not find that the evidence demonstrates that the length of time spent in cells, or that allowed for purposeful activities, exercise and education is such as to suggest there is a real risk of a breach of article 3 ECHR.
208. In reaching my conclusion, I consider it relevant not only that (as the DJ found) restrictions placed on those on remand are subject to regular review by the courts and can be challenged by way of appeal, but that there is an expectation that failure to carry out the recommendations of the OPCAT unit " would likely be perceived as defying or breaking the law " (per Mr Humphreys' addendum report). Having fully considered the fresh evidence de bene esse, I do not find that, had this been available at the extradition hearing, this would have resulted in the DJ deciding the question under sections 21 or 21A of the 2003 Act differently.
210. For the reasons provided, I therefore refuse the application to rely on fresh evidence and dismiss the appeal.

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