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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gomes, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 168 (Admin) (05 February 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/168.html Cite as: [2010] EWHC 168 (Admin)

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IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/02/2010

Lord Justice Waller :

1. This is an application for judicial review brought by Rick Anthony Gomes against the decision of the Secretary of State for the Home Office on 26 August 2009, refusing to withdraw an order made to extradite Mr Gomes to Trinidad and Tobago. It was accepted by Mr Garlick QC, acting for Mr Gomes, that, in the light of the evidence now before the court, it would not be appropriate to grant the relief he sought of setting aside the Secretary of State's refusal but, he submitted, it was appropriate for the court to consider the decision-making process and his criticisms thereof.
2. In the light of the concession we announced our decision that the Secretary of State's refusal to withdraw the order for extradition would not be set aside. As accepted by Mr Garlick we also confirmed that the 28 day period for the surrender process should commence from the announcement of our decision. We also stated that our reasons and considerations of the criticisms made would be put in writing. These are those reasons.

Background facts

3. On 15 May 1998 Mr Gomes, along with a Mr Luis Blanco Gomez, was arrested in Trinidad, allegedly in possession of 27 kilogrammes of cocaine, a firearm and ammunition. The charges of possession of cocaine were dismissed at trial by Mr Justice Volney, who regarded the evidence of key police witnesses as so unreliable that he was not willing to allow the case go before the jury. Messrs Gomes and Gomez were discharged on 14 December 1999 on the drug-related counts. The prosecution announced in court that they would appeal, and Mr Gomes was bailed on the outstanding firearms charges. He left Trinidad two days later. On appeal by the prosecution, the Court of Appeal set aside the acquittals on 17 July 2000 and ordered a retrial.
4. A warrant was issued for Mr Gomes' arrest and he was arrested in the UK on 5 May 2006. Mr Gomes challenged his extradition, contending that it was barred by the passage of time under section 82 of the Extradition Act 2003 and by the risk that he would be subjected to "degrading treatment", contrary to Article 3 of the European Convention on Human Rights, due to the conditions in the Royal Gaol in Port of Spain and the Golden Grove prison, where Mr Gomes had been remanded prior to his 1999 trial.
5. District Judge Purdy rejected this challenge on 11 January 2007. He found that Mr Gomes had left Trinidad lawfully, but that the passage of time did not make it oppressive or unjust to return him there for trial. District Judge Purdy found that the conditions Mr Gomes had experienced, particularly in the Port of Spain prison, "left much to be desired", but that existing conditions, while "harsh", did not amount to degrading treatment under Article 3. [Paragraph 13 of judgment] On 9 March 2007 the Secretary of State ordered Mr Gomes' extradition.
6. On appeal to the High Court, Mr Gomes' case was joined with that of Mr Goodyer, whom the Government of Trinidad and Tobago was also seeking to have extradited to face drug-related charges, because the two cases raised similar issues regarding delay and the risk of Article 3 violations. After his initial arrest in Trinidad, in November 2002, Mr Goodyer had been held on remand in Golden Grove prison for two months prior to being released.
7. On 16 July 2007 the Ministry of Foreign Affairs of Trinidad and Tobago provided the British High Commission with a diplomatic assurance that Messrs Gomes and Goodyer would only be housed in Trinidad's new Maximum Security Prison ("MSP"), "both on remand and in the long term, following any conviction and sentence".
8. Judgment of the High Court in the appeal of Messrs Gomes and Goodyer was given by Sedley LJ on 22 August 2007. [2007] EWHC 2012. He noted that there was evidence of "appalling conditions" in both Golden Grove and Port of Spain prisons [Paragraphs 6 and 8 of judgment], but also noted the assurance given by the Trinidad Government if returned both men would be held in the MSP. [paragraph 6 of judgment] In light of this assurance, Sedley LJ held that the only question in relation to Article 3 was whether the conditions in the MSP violated the Convention, as claimed by counsel for Messrs Gomes and Goodyer. The Court ordered the case to be remitted with a direction to determine this issue. The Court also ordered the parties to agree on a joint expert to assess the conditions in the MSP. As the parties could not agree on a joint expert, Lord Ramsbotham of Kensington, formerly HM Chief Inspector General of Prisons, was appointed by Nelson J. Sedley LJ also remitted the case for reconsideration on the question of the passage of time.
9. On reconsideration, on 24 April 2008, District Judge Purdy found that, based on the report and testimony of Lord Ramsbotham, the conditions in the MSP complied with the ECHR. He also found that the passage of time had not made it unjust or oppressive to return either Mr Gomes or Mr Goodyer to Trinidad for trial. Nelson J certified a point of law of general public importance to the House of Lords arising out of District Judge Purdy's approach to the passage-of-time bar. On 29 April 2009 the House of Lords held that neither Mr Gomes nor Mr Goodyer could rely on the passage of time as a bar to extradition and dismissed their appeals.
10. Mr Goodyer was extradited to Trinidad on 21 May 2009. Upon arrival, he was detained for four days in the Central Police Station in Port of Spain and then, after a court appearance on 25 May 2009, was transferred to Golden Grove Prison, where he spent the night before being transferred to the MSP.
11. Mr Gomes was not extradited at the same time as Mr Goodyer because he continued to challenge the extradition order made against him. He submitted representations to the Secretary of State on 5 May 2009 concerning further issues under the ECHR. In a letter of 6 May 2009 the Secretary of State declined to consider these representations. Mr Gomes did not seek judicial review of this decision. Mr Gomes made an application to the ECtHR for a stay of extradition pending an application to the Court. On 22 May 2009 the ECtHR rejected the application. Mr Gomes also submitted a series of representations to the UK Border Agency in May and June in support of a fresh human rights or claim for asylum. In a letter dated 22 July 2009, the UKBA refused to treat Mr Gomes' representations as a fresh asylum or human rights claim.
12. Meanwhile those advising Mr Gomes wrote to the Treasury Solicitor Mr Christopher Ashford for the Secretary of State asserting that they had evidence "forthcoming" that the assurance of 16th July 2007 had been breached in relation to Mr Gomes' co-joined appellant Mr Goodyer. They requested confirmation that Mr Gomes would not be removed until the matter had been fully investigated by them and the Secretary of State. By fax of 15th June 2009, Mr Ashford confirmed that Mr Gomes would not be extradited until the Secretary of State had fully investigated the situation and was satisfied everything was in order.
13. The evidence forthcoming was, it seems, a statement from a Mr Roland Jones as to the way in which Mr Goodyer had been treated on his extradition to Trinidad . The statement was dated 26th June 2009 and witnessed on 3rd July 2009. Roland Jones was a paralegal in the firm of solicitors who represented Mr Goodyer. He described Mr Goodyer's experiences prior to being transferred to the MSP, as reported over the telephone by Mr Goodyer's mother and by Mr Goodyer himself. Mr Goodyer had said that since arriving in Trinidad he had been "subject to appalling conditions". He reported that Mr Goodyer had been kept for four days over a weekend in the police holding cell where he "had had no food" and "had only managed to drink water from the overflow in the toilet in or in the vicinity of his cell". He reported that Mr Goodyer had, after the weekend, been moved to the Golden Grove, the "very prison" in which Mr Goodyer had been detained prior to his fleeing Trinidad . According to Mr Jones the object of the assurance given on 16th July 2007 was that Mr Goodyer would not have to spend any time in Golden Grove.
14. It is not apparent how much of the statement of Mr Jones was provided to the Secretary of State or to the authorities in Trinidad and Tobago. But two letters were received from the Attorney General of Trinidad and Tobago one dated 3rd July 2009 and the other dated 21st July 2009. The 3rd July letter said this about Mr Benjamin Goodyer's arrival in Trinidad:-

"Upon his arrival in Trinidad on the night of Thursday 21^st May 2009 Mr Goodyer was taken to the Central Police Station, Port-of-Spain, where he was processed. On Friday 22^nd May 2009 Sergeant Gift No 12593 executed 2 warrants on the prisoner. He remained in police custody at that location over the weekend and was taken to the Arima Magistrates' Court on Monday 25^th May 2009. After appearing at the Arima Magistrates' Court, he was on that date handed over to the Trinidad and Tobago Prison Service.

We wrote to the Commissioner of Prisons to ascertain Mr Goodyer's location and we received a response dated the 30^th June 2009 advising that he was being held at the Maximum Security Prison in response to the undertaken (sic) given by the Ministry of Foreign Affairs. A copy of the said letter is attached for your attention.

We wish to assure you that at all times we have sought to comply with the terms of the Diplomatic Assurance given to your Government and we hope the above is sufficient to clarify any misinformation conveyed to Mr Goodyer's solicitors."

15. The letter of 30th June 2009 enclosed with that of 3rd July simply said "I am to inform that Benjamin Goodyer was received into prison custody on May 25 2009. The inmate is being held at the Maximum Security Prison in response to the undertaking given by the Ministry of Foreign Affairs."
16. The 21st July 2009 letter from the Attorney-General of Trinidad and Tobago was in following terms:-

"We wish to advise that in the case of Mr Gomes, there is an outstanding warrant for his arrest issued by the Court of Appeal of Trinidad and Tobago on the 11^th February 2000. A copy of same is attached for your attention.

This being the case, upon his return to Trinidad, he will immediately be arrested and handed over to the Prison Authorities. In pursuance of the Diplomatic undertaken (sic) given by the Government of Trinidad and Tobago on the 16^th July 2007, he will be taken to the Maximum Security Prison to await a date of hearing from the High Court of Justice. Unlike Benjamin Goodyer, he will not have to be taken to the Central Police Station to be processed before being taken to the Maximum Security Prison.

Once a date is set for Mr Gomes' return to Trinidad arrangements will be made with the Prison Authorities to receive him from the escorting officers at the airport where he will then be taken to the Maximum Security Prison.

We hope the above is sufficient however please do not hesitate to contact us should you require anything further."

17. Mr Garlick in his submissions pointed out that neither the prison authorities nor the Attorney General actually refer to the fact that Mr Goodyer spent one night in Golden Grove or explain how that came about.
18. All the above letters were sent on to solicitors acting for Mr Gomes under cover of a letter dated 28 July 2009 from Mr Ashford in which he said "As you will see from the enclosures to this letter, the points you made in your faxes are without foundation". By the letter Mr Ashford also told Mr Gomes' solicitors that unless an application for judicial review of the decision of the United Kingdom Border Agency was lodged by 31 July 2009, arrangements would be made for his extradition. It must have been obvious that if there was to be any application to the Secretary of State to reconsider the position it should be made with urgency. In particular if it was to be said that there remained an issue over the one day in Golden Grove and an issue as to whether the further assurance given could not be relied on, that point could have been made straightaway.
19. No application for judicial review was lodged in respect of the decision of the United Kingdom Border Agency. No point was taken as to why the further assurance should not be relied on and the Secretary of State therefore arranged for Mr Gomes to be extradited on 27 August.
20. On 25 August 2009, at the eleventh hour, Mr Gomes submitted representations to the Secretary of State as to why he should not be extradited. We were told that in some way an extension of time was granted to Mr Gomes (who was in custody) for the making of further representations personally but were shown no documents that confirmed that position or indicated what extension was given. Mr Gomes, in a document which we were told he drafted himself with the help of another prisoner, took the following points:- first that he could only be returned for the drug trafficking offence where he was facing a retrial, and the passage of time was such that he should not be returned. Second, that he was at real risk of having his Article 3 rights violated by being detained in prisons other than the MSP, as had happened to Mr Goodyer. Finally, he argued that he was at real risk of violation of his Article 3 rights by being birched, whipped or lashed under Chapter 13:04 of the Trinidad and Tobago penal code and that the Secretary of State should seek assurances from Trinidad he would not be subjected to such punishment. Mr Gomes also asked the Secretary of State to seek assurances that he would receive credit against any sentence in Trinidad for time spent on remand in the UK and that he would receive comparable medical care to that he received in the UK.
21. In support of his argument that he was at risk of being detained in a prison other than the MSP, Mr Gomes relied on the witness statement by Mr Ronald Jones. Mr Gomes made no reference whatever to the letter of 21st July 2009 and the further assurance given.
22. On 26 August 2009 the Secretary of State rejected Mr Gomes' representations. He rightly took the view that, unless there was a new circumstance, he was "entitled to rely on the conclusion as to Convention rights, which was reached during the statutory extradition process". He rejected Mr Gomes' representations about the passage of time on the basis that the House of Lords had dismissed Mr Gomes' appeal on this ground. He relied on the fact that District Judge Purdy had concluded that extradition would not be incompatible with Mr Gomes' Article 3 rights. He took the view there had been no change in circumstances since the end of the statutory extradition process, but, for "the avoidance of doubt", he also said that Mr Gomes' extradition would not violate his Convention rights. The letter ended in this way:-

"For the reasons set out above, the Secretary of State considers that he is entitled to rely on the conclusion as to Convention rights which was reached during the statutory extradition process, but for the avoidance of any doubt, he does not consider that any of the matters upon which Mr Gomes relies could possibly preclude his extradition on the basis that it would be incompatible with Convention rights.

To that end, the Secretary of State has noted that Mr Gomes does not appear to contest that Mr Goodyer is being held at the High Security Prison. The Secretary of State does not consider that an initial delay in processing a prisoner or bringing him before a Court (after extradition) and which results in a limited delay before he is held in a Convention compliant prison could possibly engage Article 3. Mr Gomes could have raised the issue of being birched, whipped or lashed at any time in the extradition proceedings, so it is not an event which has arisen after the conclusion of the statutory extradition process. In any event, it is not clear why such a punishment would be administered in Mr Gomes' case nor is it accepted that such treatment would, in the circumstances in which it is envisaged it would be administered, breach Article 3 of the ECHR. The Secretary of State has no power to consider passage of time and it does not, in any event, engage Convention rights. The issue of credit being given for time being spent in custody does not engage Convention rights either. Mr Gomes does not suggest that he is so gravely ill that extradition might be incompatible with Convention rights and the Secretary of State is not obliged to seek undertakings from foreign states where there is no issue of a Convention right being engaged [McKinnon v SSHD [2009] EWHC 2021 (Admin)].

The Secretary of State does not consider that these matters (nor any other matter upon which Mr Gomes relied) could possibly meet the high threshold which must be met before extradition would be incompatible with Convention rights.

For the avoidance of doubt, the arrangements made for Mr Gomes' extradition remain in place."

23. The letter is signed by Mr Ashford. It does not expressly refer to the letters of 3rd July or of 21st July 2009. Mr Garlick submits that Mr Roland Jones' evidence as to a breach of the original assurance and as to what had occurred when Mr Goodyer was first detained on return to Trinidad was obviously a new circumstance, and thus it was perverse for the Secretary of State to say in the letter there was no new circumstance. Miss Cumberland's response was to submit that the only explanation for the Secretary of State to be saying there was no new circumstance was because of the inquiries that had been made, which indicated the reason why Mr Goodyer had been held in a police station and which had produced the further assurance under which it was clear Mr Gomes would be detained in the MSP right from the outset. Mr Ashford had actually said in his letter of 28th July that these letters showed Mr Gomes' allegations were unfounded.
24. On the evening of 26 August 2009 an application was made for an injunction to restrain the removal of Mr Gomes pending an application for judicial review of the decision made by letter of 26th August. Mr Garlick did not know of the letter of 21st July and thus did not draw Nichol J's attention to the fact that a further assurance had been given. He relied on two grounds as providing an arguable case for judicial review. First the treatment of Mr Goodyer, as demonstrated by the statement of Roland Jones, and in that regard he relied both on the alleged breach of Mr Goodyer's Article 3 rights and the fact that detention in a police station and Golden Grove was a breach of the assurance previously given, that detention would be in the High Security Prison only. He also relied on the risk of corporal punishment.
25. The only point on which Nichol J thought there was an arguable case for judicial review related to the evidence of Roland Jones and the treatment of Mr Goodyer. But, as I say, he was not shown the letter of 21st July or told how that letter came to be written. Mr Garlick did not know of that letter or its history, but the duty is on the applicant making an application of this sort to make full disclosure of points against him. It is no excuse to say that counsel did not know of it – the duty lies on the applicant primarily.
26. In the result Nichol J granted an injunction preventing the extradition until determination of Mr Gomes' application for permission to apply for judicial review and requiring Mr Gomes to make any application by 4.00 pm on 28 August. The application was duly issued and served on the defendant on 28 August still without any reference to the 21st July letter.
27. On 13 October 2009 Mr Gomes filed a witness statement from Mr Goodyer himself, dated 9 October 2009, describing the conditions he experienced prior to being transferred to the MSP on 26 May 2009. Mr Goodyer stated that the cell in which he had been housed in the Central Police Station measured seven by seven feet and housed five other people. He said that there was only a hole in the ground for use as a lavatory and that the only source of running water in the cell was a tap approximately two feet above this hole. He said that there was only one bench in the cell and that he had had to sleep on the floor next to the hole. He said that the food supplied was unfit for human consumption and that he refused to eat it. As a result, he said, he was not given his medication. Mr Goodyer said that on his transfer to Golden Grove Prison he was put into a cell measuring ten by ten feet with 12 others. There was only a bucket for use as a lavatory and no running water. Mr Goodyer also complained about the conditions in the MSP.
28. On 16 November 2009 Cox J granted permission to apply for judicial review. Cox J also made an order that the Crown Prosecution Service ("CPS") were an interested party in the proceedings. The real interested party was in fact the Government of Trinidad and Tobago and on 13 November 2009 they had filed a skeleton argument and witness statements with the court. Herman Narace, the police officer who brought Mr Goodyer to the Central Police Station, said in his statement that he was unaware that Mr Goodyer was only to be kept in the MSP until Mr Goodyer himself mentioned this on arrival at the Central Police Station and that it had not been possible to take Mr Goodyer to the MSP without a judicial officer issuing a remand warrant against him. Mr Garlick was critical of the way in which the Government of Trinidad and Tobago had not put in place a system to make certain that their assurance was kept.
29. A statement from Vernley Gift, a police sergeant, further explained the necessity in Mr Goodyer's case of the need to execute two outstanding warrants before he could re-appear before the magistrate, and how the delay in bringing Mr Goodyer before the court was due to the fact that his warrants were not found until 4pm on Friday 22 May 2009, by which time it was too late to bring Mr Goodyer before a judicial officer. Mr Garlick suggested that there was some inconsistency between the assurance given by the letter of 21st July, which provided that Mr Gomes would be taken directly to the MSP without appearing before a judicial officer and Mr Gift's evidence that all prisoners must have a remand warrant issued by a magistrate before they can be accepted into custody. However, the explanation given by Mr Summers, to the effect that Mr Goodyer had fled prior to his committal for trial whereas Mr Gomes had fled after his first trial, provided an (or the) explanation for that apparent inconsistency.
30. A statement from Augustus Williams, the Sergeant of Police at the Central Police Station, said that Mr Goodyer had been housed in an air-conditioned cell with a lavatory, a bunk bed and overhead lighting and that there were only 14 prisoners, spread across ten cells, in the Central Police Station at the time Mr Goodyer was there. Mr Williams also stated that Mr Goodyer had repeatedly refused the food served at the Police Station, but that he had requested and been given bottled water and that he had been given his medication once and refused it on another occasion.
31. Due to an administrative oversight, this evidence was not placed before Cox J. The Government of Trinidad and Tobago applied for reconsideration of the decision of 16 November on the basis of this further evidence, but Cox J determined, on 15 December 2009, that, even considering this evidence, Mr Gomes' claim deserved a full hearing.
32. On 27 January 2010 the Government of Trinidad and Tobago filed two further affidavits. The first was from Sunita Harrikisoon, the Legal Executive in the Ministry of the Attorney General who was responsible for Mr Gomes' and Mr Goodyer's extradition files, explaining that she was on leave when arrangements were made for Mr Goodyer's return to Trinidad and that the temporary attorney who made the arrangements was unaware of the assurance regarding the MSP due to an administrative oversight. Ms Harrikisoon also stated that all the necessary parties were now aware that Mr Gomes was to be detained nowhere other than the MSP.
33. The second affidavit was from Conrad Barrow, the Senior Superintendent of Prisons in Trinidad, stating, among other things, that he would personally ensure that Mr Gomes would be only be housed at the MSP. Mr Barrow also stated that Mr Goodyer was held in Golden Grove prison in a cell with four other persons, not 12 as Mr Goodyer himself had said.
34. It is these latter two affidavits which made it impossible for Mr Garlick to resist the argument that even if there were legitimate points to be made on the decision making process, no relief should be granted.

Submissions of the Parties

35. As regards the decision of 26th August Mr Garlick argues that it was flawed and/or Wednesbury unreasonable, on the basis that the affidavit of Mr Jones raised a complaint that Mr Goodyer's Article 3 rights had been violated and that the Secretary of State had failed to conduct a proper appraisal of this complaint. Mr Gomes argued that whether or not the Secretary of State was relying on the 21st July letter there was a "positive obligation" on the Secretary of State to conduct an "effective and thorough investigation" of whether there was a real risk that Mr Gomes' extradition would violate his Convention rights. Mr Garlick argued that it was "perverse" for the Secretary of State to rely on the conclusions as to Convention rights reached during the statutory extradition process and not to find there had been a change of circumstances revealing a risk of violations of his Convention rights.
36. Mr Garlick acknowledged that the courts take a "relativist" approach to Article 3 in extradition proceedings, but submitted that the treatment Mr Goodyer received in Golden Grove prison amounted to an Article 3 violation even on this approach.
37. As regards the letter of 21st July and further assurance given Mr Garlick argued that the explanations offered by the Trinidadian authorities, as to why Mr Goodyer was not processed and transferred promptly to the MSP, are unsatisfactory; he pointed out the lack of any reference to Golden Grove and how Mr Goodyer came to be there even for a short time. He suggested that this cast doubt on the reliability of the further assurance of 21st July and that further inquiries needed to be made. It is only the further affidavits which provide an assurance on which the Secretary of State may rely and that have lead to the concession as to relief.
38. Miss Cumberland, for the Secretary of State, submitted that the jurisdiction which the Secretary of State has post-the extradition process is a limited one, only exercisable if some new matter has come to light after completion of the extradition process. The question is then not whether the Secretary of State properly exercised a discretion but whether, objectively, there was evidence before the Secretary of State that there was a real risk that Mr Gomes' Article 3 rights would be infringed. She referred us to the judgment of Stanley Burnton LJ in McKinnon v Home Secretary [2009] EWHC 2021 (Admin) paragraphs 62 to 66.
39. She pointed out that the allegations of Mr Goodyer were drawn to the attention of the Secretary of State and to the Attorney General of Trinidad and Tobago in June 2009. She accepted that the allegations then made raised two points as "new" points since the end of the extradition process. The two points raised these questions – did they amount to showing a risk that Mr Gomes' Article 3 rights would be infringed? Did they cast doubt on original assurance given by Trinidad and Tobago as to where Mr Gomes would be detained?
40. She submitted that inquiries made at the time the allegations were first made known produced the letters of 3rd July and in particular of 21st July and that those letters were before the Secretary of State and demonstrated that objectively there was no risk to Mr Gomes that his Article 3 rights would be infringed and no risk that assurances would not be kept; alternatively if objectivity is not the correct test, once the letters were received the Secretary of State was justified in taking the view that any "new" matters had been dealt with and that is reflected in the letter of 26th August, to the effect that there were no new matters.
41. In addition she submitted that, objectively viewed, a short period in a police station and one night in Golden Grove with Mr Goodyer ending up in a High Security Prison could not itself demonstrate a risk that Mr Gomes' Article 3 rights were likely to be infringed.
42. In the alternative she submitted the most that could be said is that the Secretary of State failed to make further inquiries. If he had done the evidence shows that he would have discovered that Mr Goodyer's assertions were powerfully challenged; that the reasons why Mr Goodyer was taken to the police station and detained for one night in Golden Grove were understandable and showed no deliberate breach of the original assurance and gave no reason to doubt that final assurance.

Conclusion

43. It seems to me that it is convenient to look at the matter in four stages, the first three revolving round the letter of 21st July. First, once the Secretary of State had the further assurance of 21st July 2009, did that mean objectively there was now no risk of Mr Gomes' Article 3 rights being infringed or, alternatively, was it reasonable for the Secretary of State to take that view? Second, when the Secretary of State made the decision on 26th August 2009, did he have the letter of 21st July in mind as evidence on which he could rely? Third, if the answer to that second question is that he did not, would an inquiry have revealed that letter and would it have provided the evidence that Mr Gomes' Article 3 rights were not at risk? Fourth, if the 21st July letter must be ignored for some reason, was he entitled to dismiss Mr Gomes' application on the basis that he did "not consider that an initial delay in processing a prisoner or bringing him before a court (after extradition), and which results in a limited delay before he is held in a Convention-compliant prison, could possibly engage Article 3."?
44. I should start by considering the nature of assurances. As regards assurances from the requesting state, the starting point is that they are likely to be reliable. In Ahmad and Aswat v The Government of the United States of America, Laws LJ applied the "fundamental assumption that the requesting state is acting in good faith" in holding that the United States would honour undertakings it had given to the UK in connection with an extradition case. [2006] EWHC 2927 (Admin) at paragraph 101. This assumption "may be contradicted by evidence". Mr Garlick argued that such contradiction was supplied by the failure to comply with the original undertaking issued with respect to Mr Goodyer. But, even if that failure might have undermined the initial assurance given on 16 July 2007, there is no reason to doubt the renewed assurance, in the letter of 21 July 2009.
45. Mr Garlick submitted that because the renewed assurance did not refer to Golden Grove it was not reliable. That does not seem to me to follow. What the Secretary of State is interested in is whether Mr Gomes is to be taken straight to the MSP. Once he has that assurance that is sufficient.
46. It is accepted that the Secretary of State did not mention this assurance in the 26th August letter as a reason for rejecting Mr Gomes' representations. There is furthermore, I accept, no evidence as such that the Secretary of State actually relied on the letter of 21 July in making his decision. But the letter had to be prepared in haste as a result of the late application by Mr Gomes, and it seems to me almost impossible to imagine, having regard to the fact that Mr Ashford signed the letter of 26th August, that the decision-maker did not have in mind the correspondence in July, and in particular his conclusion in the letter of 28th July. Indeed the only logical explanation for the view expressed, that there were no new matters, is that such matters as had been raised had been resolved satisfactorily.
47. Even if the conclusion reached in paragraph 46 were not justified, the criticism of the Secretary of State would have to be that he did not make proper inquires in relation to the allegations that were being made by Mr Goodyer. Further inquiries would have been bound to produce the assurance, as per the letter of 21st July, and, as already indicated, that would have provided a legitimate basis for refusing to withdraw the extradition order. On that basis the court would be bound to refuse relief.
48. The final question I have posed is, if the investigations which took place in July and resulted in the letter of 21st July letter must be ignored for some reason, was it open to the Secretary of State to say what he did about the "initial delay in processing" a prisoner. Taken literally the statement can be justified, i.e. a minor delay in getting a prisoner to a Convention-compliant prison would not of itself have engaged Article 3. But, if the letter of 21st July must be ignored and what was before the Secretary of State was for the first time the allegations being made by Mr Goodyer, it was no longer just a simple question of delay. What was being alleged was serious mistreatment in places where Mr Goodyer was being detained, and that those places did not comply with the assurance. Those allegations needed investigation, and that indeed is what had occurred. But I make clear that in my view that was necessary and that insofar as it might be understood that the view of the Secretary of State was that that was not necessarily so, I would differ.
49. My conclusion, accordingly, is that the Secretary of State's decision was lawful in that objectively the letter of 21st July provided the assurance necessary that there was no risk to Mr Gomes' Article 3 rights and the Secretary of State did rely on it. In any event, even if this letter was not before the Secretary of State, the obligation on the Secretary of State to make inquiries would have produced this letter and on that basis this court would have refused relief. A fortiori the evidence now before the court demonstrates that Trinidad and Tobago's breach of the original assurance was innocent and that the further assurance relating to Mr Gomes is to be relied on.
50. For these reasons the appeal was dismissed.