IEHC 480 — IEHC 480 — High Court

THE HIGH COURT

Record No. 2026 105 EXT

[2026] IEHC 480

BETWEEN

MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

APPLICANT

AND

ADAM SABY

RESPONDENT

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

Introduction

1. This is an application for the surrender of the respondent to the United Kingdom (“the

issuing state”), pursuant to section 16 of the European Arrest Warrant Act 2003, as

amended (“the 2003 Act”), on foot of a Trade and Cooperation Agreement warrant

issued by His Honour Judge Karim Ezzat, Circuit Judge at Harrow Crown Court sitting

at Hendon Magistrates’ Court, London on the 2nd of April 2026 (“the warrant”).

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

IJA”). 3. The respondent was arrested on the 13th of April 2026 on foot of the warrant and brought

before this Court. No issue has been raised by the respondent in relation to his identity,

and I am satisfied that the respondent is the person identified in the warrant.

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

Background

5. The warrant is based on an arrest warrant issued at Harrow Crown Court for failure to

comply with bail conditions on the 2nd of April 2026.

6. The warrant relates to two offences of rape and sexual assault that are alleged to have

occurred on the 2nd of September 2022. A detailed description of the circumstances in

which the offences were alleged to have taken place is set out at Part E of the warrant.

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

intention to prosecute has been formed.

8. Part C of the warrant sets out that the rape offence carries a maximum sentence of life

imprisonment and the sexual assault offence carries a maximum sentence of 10 years’

imprisonment. Part E of the warrant sets out the relevant criminal statutory provisions

of the issuing state. It seems clear that the requirements of minimum gravity are met in

respect of each offence.

2 9. In circumstances where the rape offence carries a maximum sentence of life

imprisonment, Part H of the warrant confirms that the penalty or measure imposed will

be reviewed on request or at least after twenty years.

10. Correspondence can be made with offences in this State of rape contrary to section 48

of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape)

Act 1981, as amended, and sexual assault contrary to section 2 of the Criminal Law

(Rape) (Amendment) Act 1990, as amended.

11. Supplemental details in relation to technical omissions in Part I of the warrant were

provided by the IJA on the 2nd of April 2026 and no issue arises there.

Discussion

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

13. A notice of objection was filed on the 29th of May 2026 pursuant to Order 98, Rule 5

of the Rules of the Superior Courts 1986, as amended.

14. While the respondent puts the applicant on full proof in relation to the warrant, a single

substantive point of objection is raised, namely that the respondent would face detention

in inhuman and degrading prison conditions if surrendered such that there is a real risk

of breach of his rights under Article 3 of the European Convention on Human Rights

(“the ECHR”) and that, therefore, his surrender is prohibited by section 37 of the 2003

Act.

3 15. This submission is grounded on the assumption that, if surrendered, the respondent

would be detained at either Wormwood Scrubs Prison or Pentonville Prison in London.

This assertion is based on the fact that the respondent resided in Harrow, London and

that the alleged offending behaviour occurred in London.

16. Before turning to the basis for the legal submission, it is necessary to say something

more about what is asserted to be the particularly relevant parts of the factual

background.

17. At paragraph 5 of the points of objection, it is stated that after he was arrested:

“The Respondent was remanded in custody in Cloverhill Prison and was

assessed by the Primary Healthcare Team on the 21st of May 2026 for Suicidal

Ideation the limited information received is that he is being treated

appropriately.”

18. In the respondent’s written submissions, it is said that the respondent suffers from

“particular vulnerabilities as a young, non-English speaking Sudanese refugee with a

history of stress and suicidal ideation.”

19. In those submissions, it is stated that:

“It is confidently assumed that should he be surrendered, he would be remanded

in custody to Wormwood Scrubs or Pentonville prisons…”

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

4 1. “Mr Mohammed is likely, on surrender, to be remanded to Wormwood Scrubs

or Pentonville Prison.

2. Recent independent reports identify serious deficiencies at Wormwood Scrubs

and Pentonville Prison, including prolonged segregation, poor material

conditions, and an absence of meaningful human contact for extended periods.

3. Mr. Mohammed is a young 20 years of age, Sudanese refugee, does not speak

English, has a history of stress, and has experienced suicidal ideation for which

he was assessed in custody.

4. Those personal features materially increase his vulnerability to isolation,

confusion, inability to access services, and mental deterioration in custody.

5. There is, at present no sufficiently specific assurance that he will not be

detained at Wormwood Scrubs or Pentonville, or if detained there, that he will

be protected from the features said to generate the Article 3 risk highlighted in

the most recent CPT report and the Prison Reform Trust Report from 2021.”

21. The reference to the “most recent” C.P.T. report from the issuing state regarding prison

conditions is said to be the Report to the United Kingdom Government on the visit to

the United Kingdom carried out by the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment of Punishment (CPT) from 13 to 23 May

2019 published on the 30th of April 2020, where specific criticisms were made of both

Wormwood Scrubs and Pentonville, particularly in relation to segregation.

22. At paragraph 89 of the C.P.T. report, it was said in relation to Wormwood Scrubs that:

“… in the three segregation units visited, the vast majority of prisoners were

locked in their cells for between 22 and 23 and a half hours per day and were

5 provided with no structured regime – no purposeful activities, nor access to

work. … these segregated prisoners lived in virtual solitary confinement with a

notable absence of any meaningful human contact. Moreover, the CPT is

extremely concerned by the fact that prisoners could be held in such conditions

for prolonged periods.”

23. At paragraph 92, the C.P.T. found in relation to Wormwood Scrubs that:

“… there were some shortcomings in the recording of data on the use of the

segregation unit, including its special accommodation cells…”

24. At paragraph 93, the C.P.T. recommended:

“… that the United Kingdom authorities put in place a psycho-social support

system for Rule 45 prisoners held in segregation units for longer than two weeks

and provide them greater opportunities for association and engagement in

activities…”

25. The respondent also relied on the following comment issued by the Chief Executive of

the UK Prison Reform Trust on the 18th of July 2025 in relation to Pentonville:

“We are running out of adjectives to describe the shocking and inhumane

conditions in our prisons–HMP Pentonville stands as a grim testament to a

system in crisis. A troubling lack of oversight and accountability has led to

unacceptable living conditions, with overcrowded, dirty cells, insufficient

bedding, and widespread infestations of mice and cockroaches. Prisoners are

spending over 22 hours a day locked in these conditions, with limited access to

showers, meaningful activities, or even adequate food.”

6 26. The respondent’s written submissions place heavy reliance on the decision of Binchy J.

in Minister for Justice v. Kerrigan [2019] IEHC 790. In that case, Binchy J., in the

context of a section 37 argument in relation to prisoner safety and prison violence,

considered a report from the Chief Inspector of Prisons which contained criticisms of

the regimes in Wormwood Scrubs and Pentonville.

27. Before considering the legal principles in greater detail, some observations need to be

made about the evidential basis for the arguments advanced.

28. Firstly, there is no affidavit evidence filed on behalf of the respondent at all. In the

course of exchanges with counsel at hearing, I was told that there had been requests

made to the prison authorities in this State for information in relation to such medical

treatment as the respondent may be receiving. While I do not doubt what I have been

told in that regard, it does not explain why not even an affidavit from the respondent

himself in relation to matters within his knowledge has been provided.

29. No medical or psychiatric reports have been provided, not even of an historic nature, in

relation to what has been asserted and there is no evidential basis to support the

proposition that the respondent suffers from an identifiable or recognised serious mental

illness.

30. Secondly, the C.P.T. report relied on by the respondent does contain criticisms of

Wormwood Scrubs in relation to its segregation units and the length of time that

7 prisoners were locked in cells, over prolonged periods, in the absence of a structured

regime or purposeful activities.

31. However, this is not the most recent C.P.T. report on prisons in the issuing state. A more

recent report was published on the 7th of July 2022, following a periodic visit to the

United Kingdom from the 8th to the 21st of June 2021. A response from the issuing state

was published in May 2022.

32. While counsel for the applicant frankly conceded that the most recent C.P.T. report is

not entirely favourable, it did record the updated position at Wormwood Scrubs and

expressly set out the improvements in the material conditions of detention, including

refurbishment and redecoration, replacement of old windows, functioning cell bells,

and clean exercise yards. It was also noted that the state of repair of the cells in the

segregation unit at Wormwood Scrubs had improved since the visit in 2019. In any

event, it seems to me that any Article 3 complaint before this Court should be grounded

on the most recent available material.

33. To return to Kerrigan, on which much reliance was placed, it must be observed that in

that case, notwithstanding the criticisms of Wormwood Scrubs and Pentonville, Binchy

J. expressly found that no real risk of an Article 3 breach had been established and that

the respondent’s surrender was not prohibited by section 37 of the 2003 Act.

34. At paragraph 33, Binchy J. said that:

“… This application can be decided by the application of the principles set forth

in Rettinger and Aranyosi, which are broadly the same. As Donnelly J. noted in

8 R.O, at para. 57 ‘the test identified by the CJEU [in Aranyosi] that must be met

before surrender is prohibited, is the same as that identified in Rettinger (and

indeed other cases from the ECtHR identified in Rettinger); there must be

substantial grounds for believing that following surrender a person will run a

real risk of being subject, in the issuing member state, to inhuman or degrading

treatment…’”

35. He continued at paragraph 35 to say that:

“… In this case, the reports of the Chief Inspector in relation to HMP

Pentonville and HMP Wormwood Scrubs undeniably raise serious concerns

about prisoner safety, such as to require action on the part of the prison

authorities (as per the recommendations of the Chief Inspector). However, it

seems to me that they do not elevate the risk posed to the respondent, if

surrendered and subsequently detained in either of those institutions, to that of

a ‘real risk’.”

36. He then observed at paragraph 36 that:

“… Moreover, and very importantly, the respondent failed to put forward any

objective evidence that he personally is at a greater risk than anybody else in

the prison population, such as was available to the court in R.O.”

37. Counsel for the applicant submitted, correctly in my view, that the governing approach

for a request for surrender under the Trade and Cooperation Agreement (“the TCA”) in

these circumstances has been identified by the Court of Justice of the European Union

(“the CJEU”) in Alchaster (Case C-202/24, ECLI:EU:C:2024:649).

9 38. In relation to the question of respect for fundamental human rights in the context of a

request for surrender under the TCA, the CJEU said at paragraphs 48-49 of Alchaster

that:

“Although it follows from the foregoing that an executing judicial authority is

in principle required to give effect to an arrest warrant such as those at issue in

the main proceedings, the fact remains that Article 524(2) of the TCA states that

no provision of Part Three of that agreement alters the obligation to respect

fundamental rights and legal principles as set out, in particular, in the ECHR

and, in the case of the European Union and its Member States, in the Charter.

The obligation to comply with the Charter, recalled in Article 524(2), is binding

on the Member States when they decide on the surrender of a person to the

United Kingdom, given that a decision on such surrender constitutes an

implementation Union law within the meaning of Article 51(1) of the Charter.

The executing judicial authorities of the Member States are therefore required,

when adopting that decision, to ensure respect for the fundamental rights

afforded by the Charter to the person who is the subject of an arrest warrant

issued on the basis of the TCA, without the fact that the Charter is not applicable

to the United Kingdom being relevant in that regard (see, by analogy, judgment

of 6 September 2016, Petruhhin, C‑182/15, EU:C:2016:630, paragraphs 52

and 53).”

10 39. The CJEU confirmed in principle that surrender can be refused where the existence of

a risk of a breach of fundamental rights has been established. At paragraph 51, it stated

that:

“Accordingly, the existence of a risk of a breach of those rights is capable of

permitting the executing judicial authority to refrain, following an appropriate

examination, from giving effect to an arrest warrant on the basis of the TCA

(see, by analogy, judgments of 25 July 2018, Minister for Justice and Equality

(Deficiencies in the system of justice), C‑216/18 PPU, EU:C:2018:586,

paragraph 59; of 31 January 2023, Puig Gordi and Others, C‑158/21,

EU:C:2023:57, paragraph 72, and of 21 December 2023, GN (Ground for

refusal based on the best interests of the child), C‑261/22, EU:C:2023:1017,

paragraph 43).”

40. The CJEU then went on to examine in detail the nature of the two-step process that

must be conducted in the context of surrender requests under the European Council

Framework Decision dated the 13th of June 2002 on the European Arrest Warrant and

the Surrender Procedures Between Member States as described in well-established

authorities such as Aranyosi and Căldăraru (Joined Cases C-404/15 and C-659/15

PPU, ECLI:EU:C:2016:198). The CJEU’s analysis led to the conclusion that the two-

step process cannot simply be transposed into a request for surrender under the TCA.

41. At paragraphs 79-80, the CJEU stated that:

“Therefore, where the person who is the subject of an arrest warrant issued on

the basis of the TCA claims before that executing judicial authority that there is

a risk of a breach of Article 49(1) of the Charter if that person is surrendered to

11 the United Kingdom, that executing judicial authority cannot, without

disregarding the obligation to respect the fundamental rights enshrined in

Article 524(2) of that agreement, order that surrender without having

specifically determined, following an appropriate examination, within the

meaning of paragraph 51 above, whether there are valid reasons to believe that

that person is exposed to a real risk of such a breach.

… the executing judicial authority must, however, take into account the long-

standing respect by the United Kingdom for the protection of the fundamental

rights and freedoms of individuals, including as set out in the Universal

Declaration of Human Rights and in the ECHR, which is expressly referred to

in Article 524(1) of the TCA, and the provisions laid down and implemented in

United Kingdom law to ensure respect for the fundamental rights set out in the

ECHR (see, by analogy, judgment of 19 September 2018, RO, C‑327/18 PPU,

EU:C:2018:733, paragraph 52).”

42. At paragraph 82, the CJEU found that, when read in conjunction with the Charter of

Fundamental Rights of the European Union, the TCA requires:

“… the executing judicial authority to examine all the relevant factors in order

to assess the foreseeable situation of the requested person if he or she is

surrendered to the United Kingdom, which, unlike the two-step examination

referred to in paragraphs 52 to 54 above, assumes that both the rules and

practices that are generally in place in that country and, if the principles of

mutual trust and mutual recognition are not applied, the specific features of that

person’s individual situation are to be taken into account simultaneously.”

12 43. The CJEU concluded its analysis in saying at paragraph 85 that:

“Consequently, the executing judicial authority may refuse to give effect to an

arrest warrant on the basis of Article 524(2) and Article 604(c) of the TCA, read

in conjunction with Article 49(1) of the Charter, only if it has, having regard to

the individual situation of the requested person, objective, reliable, specific and

properly updated information establishing substantial grounds for believing

that there is a real risk of a breach of Article 49(1) of the Charter (see, by

analogy, judgments of 6 September 2016, Petruhhin,

C-182/15, EU:C:2016:630, paragraph 59, and of 19 September 2018, RO,

C-327/18 PPU, EU:C:2018:733, paragraph 61).”

44. This area of law was the subject of recent review by McGrath J. in Minister for Justice

v. Dumitri [AKA Cerban] [2025] IEHC 69 and I gratefully adopt his summary of the

legal principles.

45. Dumitri also concerned an objection to surrender to the United Kingdom based on

prison conditions, and reliance was placed by the respondent on the 2022 C.P.T. report

in relation to Pentonville Prison and Wandsworth Prison. The main issues raised in the

report concerned overcrowding and interprisoner violence.

46. At paragraph 16, McGrath J. put the position in the following terms:

“Following on from the Judgment of the CJEU in Alchaster, the principles of

mutual trust and confidence that underlie the operation of the Framework

Decision and the consideration of applications from member states of the

13 European Union, do not apply to the consideration of TCAWs received from the

United Kingdom under the Trade and Cooperation Agreement.”

47. Having set out the relevant parts of Alchaster, as quoted above, McGrath J. stated at

paragraphs 19-20 that:

“The principles governing the consideration of such objections would appear

largely similar to those which have been applied by the Irish Courts when

considering applications for surrender from other third countries with which

this State has more traditional extradition arrangements, such as by way of

example the United States of America, Canada and Australia. In considering

any application from a third country, and objections made to surrender thereto,

a Court will proceed on the basis that the third country will act in good faith

and furthermore that such a state, with whom Ireland has after all agreed to

enter into an extradition arrangement or treaty, will behave in a manner which

will respect and vindicate the rights of the proposed extraditee.

Furthermore, although the Court will of course consider any relevant past or

historic matters which touch upon any claim that there is a substantial risk that

extradition to a third country will expose an extraditee to a risk of harm if now

surrendered to that state, any assessment of such a risk must be forward looking

and therefore any past matters must be relevant to the assessment of any future

risk.”

48. McGrath J. also followed the approach of Edwards J. in Attorney General v. O’Gara

[2012] IEHC 179, where he held that the well-known “Rettinger principles” could be

14 applied with “appropriate modification” when considering objections to surrender on

human/fundamental rights grounds in a U.S. extradition case.

49. Having reviewed the authorities, McGrath J. held at paragraph 23 that:

“… Although the principles of mutual confidence and trust do not apply when

considering objections in the context of a TCAW warrant, this Court must

nonetheless approach fundamental / human rights objections to surrender to the

United Kingdom cognisant of it being a party to the European Convention on

Human Rights, its long standing respect for the protection of fundamental rights

as set out in that Convention and the provisions in place in UK law to ensure

the protection of such rights and freedoms.”

50. Even in the context of applying what might be called a “weaker” presumption in a

request for surrender under the TCA, McGrath J. concluded that the evidence put before

the court by the respondent did not give rise to concerns that, if surrendered, he would

be exposed to inhuman and degrading treatment such as to give rise to a possible breach

of Article 3 of the ECHR. He was satisfied that the respondent had failed to demonstrate

even a generalised risk of ill treatment such that might raise Article 3 issues or concerns.

51. At paragraph 42, McGrath J. said that:

“I have arrived at this conclusion firstly having considered the CPT Report of

2022 (which is a report which deals with prison conditions generally). I do not

consider the matters referred to in that report as providing evidence of a

generalised risk of ill treatment that would amount to a breach of Article 3 of

the Convention. As already observed, insofar as overcrowding is concerned

15 there is no objective evidence to support the contention that overcrowding in

UK prisons is at a level that would engage Article 3 of the Convention. There

is, for example, no evidence of detainees being held in conditions where they

are provided with less than 3m2 or 4m2 per inmate – a figure below which a

presumption of overcrowding can arise.”

52. I feel compelled to reach a similar conclusion here. There is a substantial evidential

deficit in this case. Notwithstanding the fact that there is no evidence that the respondent

would be detained in either identified prison, as asserted, I also note that the issuing

state’s response to the 2022 C.P.T. report has been published and counsel for the

applicant has submitted that this is relevant to any “forward looking” assessment.

53. That response sets out the financial commitments to improved maintenance and

cleaning in respect of Wormwood Scrubs specifically. Access to primary healthcare is

described as “generally good” and mental health referrals are triaged according to risk

with emergency referrals dealt with on the same working day when received by the

Mental Health In-Reach Team. Urgent referrals are dealt with within 24 hours and

routine referrals are dealt with within 1 to 5 working days.

54. In relation to double occupancy, the response states that prison cell occupancy in

England and Wales is certified by the Prison Group Director (“the PGD”) in accordance

with Prison Service Instruction (PSI) 17/2012 Certified Prisoner Accommodation. Cells

with a Certified Normal Accommodation of one are only shared where a PGD has

assessed them to be of adequate size and condition. The response states that the PGD

16 for Wormwood Scrubs has assessed these cells to be of an adequate size and condition

for double occupancy.

55. The response contains a reference to a £3.8 billion investment plan to deliver 20,000

modern prison places across England and Wales by the mid-2020s.

56. The response also identifies a commitment to a new statutory target of 28 days for

prison to hospital transfers for prisoners with severe mental health problems. It sets out

the detail of a suite of therapeutic activities for those with mental health difficulties. It

also states that the segregation policy is subject to regular multidisciplinary review and

additional training was being pursued.

57. In applying the test as set out in Alchaster and amplified in Dumitri, I am satisfied that

it has not been established that this particular respondent would, if surrendered, be

exposed to inhuman and degrading treatment such as to give rise to a possible breach

of Article 3 of the ECHR.

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

59. The name and address of the judicial authority that issued the warrant and its telephone

number, fax number and email address are set out on the face of the warrant.

60. I am satisfied that I am not required to refuse the respondent’s surrender under sections

22, 23 or 24 of the 2003 Act. I am also satisfied that I am not required to refuse surrender

for any other reason pursuant to Part 3 of the 2003 Act.

17 Conclusion

61. For the reasons set out above, I reject the points of objection raised by the respondent

to surrender. I, therefore, propose to make an order for surrender to such person as is

duly authorised to receive him on behalf of the issuing state.

18