RECENT DEVELOPMENTS IN EXTRADITON APPEALS

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1 RECENT DEVELOPMENTS IN EXTRADITON APPEALS There have been some important decisions of the higher courts in the last two years relating to appeals, particularly in European Arrest Warrant (EAW) cases, many of which are of equal application in other extradition cases. The EAW regime was introduced throughout the European Union in a hurry after 9/11 with little consideration for procedural safeguards required to balance its streamlined surrender procedure based on the concept of mutual recognition of warrants issued by national courts. The recent case of Herdman v Greece [2010] EWHC 1533 (Admin) is another harsh reminder for defence practitioners that courts are right to refuse adjournments where there has been ample time to obtain defence expert evidence (over six weeks in that case), that new evidence must not have been available in the court below and must be decisive and that the threshold for showing a real risk of a total denial of article 6 rights was a high one. All defence practitioners in extradition cases need to take careful note of the strict procedural requirements applied by the courts. Appeal on matters of law and fact The Extradition Act 2003 (EA 2003) provides a single statutory right of appeal to the High Court for both the defendant and the Requesting State against decisions made by the judge in the magistrates court and (in Category 2 cases) the Secretary of State for the Home Department (SSHD). The defendant cannot be returned while an appeal is outstanding. Appeals in Category 1 (EAW) cases The relevant provisions of the EA 2003 are sections A defendant may appeal the judge s decision to order his extradition to the High Court, provided he did not consent. The appeal may be brought on a question of law or fact. The procedure and time limits for appeal are very strict: Notice of an appeal must be filed and served within seven days, starting with the day on which the order is made The appellant s notice must be endorsed with the appellant s date of arrest The appellant must serve a copy of the notice on the CPS (acting as the representative of the requesting state) The High Court must begin to hear the substantive appeal within 40 days of the person s arrest, although the High Court can extend this if it is in the interests of justice to do so. Appeals in Category 2 cases The relevant provisions of the EA 2003 are sections Also see paragraphs 22.6A(5)-(12) of the Practice Direction to CPR Part 52 for further detail. A defendant may appeal the judge s decision to send his case to the SSHD to the High Court, provided he did not consent. Again, the appeal may be brought on a question of law or fact. No appeal can be brought under s.103 if the SSHD has ordered the person s discharge. As with Category 1 cases, the procedure and time limits for appeal are very strict: 1

2 Notice of an appeal must be filed and served within 14 days, starting with the day on which the SSHD informed the defendant of the order against him The appellant must serve a copy of the notice on the CPS (acting as the representative of the requesting state) and the Home Office The High Court must begin to hear the substantive appeal within 76 days of the appellant s notice being filed Where an appeal has been brought before the SSHD has made his decision, the 76 days does not start until the day on which the SSHD informs the defendant of his decision, and importantly, the appeal must not be heard until after the SSHD has made his decision. Relevant case law on procedure The leading case on appeal procedure is the linked House of Lords decision in Mucelli v Government of Albania and Moulai v Deputy Public Prosecutor in Cretiel, France (21 January 2009). It was held that a notice of appeal must be "given" both to the representative of the authority (by serving) and to the relevant court office (by filing or lodging). The Court confirmed that it does not have any power to extend the time limits for service. The House of Lords also dealt with service at the end of the 7 or 14 day period - where the requisite recipient's office is closed during part of the last day, the notice will be validly filed or served if it is given at any time during the day, before midnight e.g. by fax or posting through the door. Where the requisite recipient's office is closed during the whole of the last day, the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i.e. the next business day). The earlier case of Amoako v DPP [2006] confirmed that with respect to a Category 1 appeal, the 7 days commenced from the calendar day the decision was given, even if it was not handed down until after the end of the business day at 4.30pm. It would be unfair and uncertain to read the relevant section of the statute any differently. The recent Administrative Court case of R (Mann) v City of Westminster Magistrates' Court & Ors (19 January 2010) confirms how important it is to comply with the strict time limits for appeal. Mr Mann s lawyer had served his notice of appeal one day late. The High Court held there was: no power to extend time of service no power to apply for judicial review or habeas corpus no power to reopen the extradition hearing under the slip rule in section 142 MCA 1980 no power to judicially review the decision of SOCA to enforce the extradition order. The only means to remedy serious injustice is by an application to the ECHR for a grant of interim measures under Rule 39 or through diplomatic channels (see below for more information on the Rule 39 procedure). The importance of serving the appeal notice on the CPS within the time limits was emphasised in Henderson v Court of Appeal of Aix En Provence [2009] EWHC 1701 (Admin). In this case, the appeal notice was filed with the court within 7 days, but not served on the CPS until later. The failure to serve on the CPS rendered the appeal irredeemably out of time. EU law (Framework Decision of 13 June 2002) and Article 13 ECHR do not require the court to entertain an appeal in defiance of and in circumvention of the statutory time limit. Evidential Rules In relation to Category 1 cases, section 27(4) allows the High Court to receive fresh evidence on appeal, provided it was not available at the extradition hearing. Unsurprisingly, the question of what amounts to fresh evidence and its availability has been considered in numerous cases before the High Court. 2

3 What amounts to fresh evidence? The High Court first provided guidance on what amounted to fresh evidence in Miklas v Deputy Prosecutor General of Lithuania [2006] EWHC 1032 (Admin). Further evidence had been put before the High Court about the treatment of offenders in Lithuania and the defendant s health. In reaching its decision, the court highlighted the fact that the statute explicitly referred to evidence at the appeal that was not available at the extradition hearing. Latham LJ held that the word available makes it plain that, while the requirements of Ladd v Marshall [1954] 1 do not have to be met where the liberty of the individual and human rights are in issue, nonetheless the court will have to be persuaded that there is some good reason for the material not having been made available to the district judge in the magistrates court. The relevant principles and meaning of not available at the extradition hearing were set out in the Fenyvesi case, Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), which is now the leading case on fresh evidence. In Fenyvesi, the CPS were seeking to adduce new evidence on behalf of the Requesting State after the failure of their case at first instance. Sir Anthony May, President, (with whom Silber J agreed) said at Paragraph 32: "In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different, resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the District Judge, and which is tendered to try to repair holes which should have been plugged before the District Judge, simply because it has a human rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive." If you wish to adduce fresh evidence, it is therefore advisable to serve a witness statement explaining why it was not available before the magistrates court. Paragraph 32 of Fenyvesi has been cited in several cases, including Sondy (12 January 2010) and Kalniets v District Court of Ogre [2009] EWHC 534 (Admin). (See section below on the alleged negligence of solicitors and the submission of evidence.) 1 [1954] 1 W.L.R Leave to adduce further evidence on appeal will only be granted (1) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (2) if the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (3) if the evidence is such as is presumably to be believed. 3

4 In Kalniets, the appellant s lawyers were criticised for not submitting a witness statement explaining why the proposed fresh evidence had not been advanced, as it should have been, before the district judge. In the case of Ignaoua, Khemiri & Chehidi v The Judicial Authority of the Courts of Milan & Ors [2008] EWHC 2619 (Admin), an unsuccessful application for habeas corpus, documents which had not been previously considered and which indicated that the Requesting State was prepared to deport suspected terrorists irrespective of risks of breaches of Article 3 were held to constitute fresh evidence. The defendants had demonstrated that the existence of the evidence was not known to them at the time of the magistrates court hearing. In Navadunskis v The Serious Organised Crime Agency [2009] EWHC 1292 (Admin), a notice of appeal had been issued out of time. The appellant commenced judicial review proceedings against SOCA, seeking to rely on an expert report that had not been before the district judge. The court held that if an individual wished to raise a human rights case as part of his challenge to extradition he should do so at the extradition hearing and it was too late for human rights to be introduced at any application for judicial review. The appellant had not raised a human rights case at the extradition hearing and the expert report upon which he sought to rely could not be described as a supervening event. The need to demonstrate a good reason for not relying on the evidence before the district judge was underlined again in the recent case of Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin). In this case the defendant had been extradited to Hungary as the result of an administrative error while extradition proceedings were still ongoing. The High Court held that even though he had been surrendered, his right of appeal was not extinguished. In relation to the admission of fresh evidence, in this case expert evidence on meaning of the warrant, the court held: In the present case, there was no expert evidence before the District Judge. Mr Lewis invited us to admit expert evidence on the appeal. We did not do so. In our view extrinsic factual or expert evidence on this topic should not be permitted on appeal unless there are exceptional reasons to do so and where there is good reason why it was not produced before the District Judge. In another recent case, Mihociu v Central Court of the District of Pest, Hungary [2010] EWHC 708 (Admin), the EAW had not disclosed the fact of a prior extradition warrant arising from the same facts. The defence unsuccessfully tried to establish the fact of the prior extradition before the district judge, who ruled that no prior extradition had occurred. Evidence was only obtained after the extradition was ordered. The High Court cited Fenyvesi and held that this fresh evidence was admissible as there was no lack of diligence on the part of the appellant s lawyers - the fact that the information was available on the internet did not detract from this. In any event, it would have been unfair to exclude evidence demonstrating the factual error by the district judge. However, despite this finding, the court ordered the defendant s extradition, holding that fresh evidence from the Requesting State explaining events was also admissible. This demonstrated they had not acted in bad faith in omitting to reveal the existence of the previous warrant. In another case decided this year, this time an appeal against the discharge of the Defendant, Usti Nad Labem Regional Court, Czech Republic v Janagi [2010] EWHC 463 (Admin), the Requesting State was permitted to adduce fresh evidence. The district judge had refused to adjourn the case at first instance to enable Requesting State to obtain information as to whether the defendant s conviction was final. Again the High Court cited Fenyvesi, holding that there had been no want of diligence on part of Requesting State, as procedures for obtaining evidence from abroad were cumbersome and time consuming. It was artificial not to admit the fresh evidence when correctness of refusal to adjourn was in issue. Both the original and fresh evidence established that the defendant had an unfettered right to re-trial and therefore the EAW was not invalid. 4

5 Circumstances where a new issue is raised on appeal as opposed to new evidence In Hoholm v The Government of Norway [2009] EWHC 1513 (Admin), the High Court considered whether, if an issue had not been raised before the magistrates court (in this case double criminality) was it competent for the appellant to raise it on appeal? To the court s surprise, counsel informed them that they had not found any previous decision of the High Court that dealt with whether an appellant could raise a new issue on appeal. The court held the fact the EA 2003 distinguishes between a new issue and new evidence was significant, before concluding that where an issue was available to be raised by an appellant, on the evidence adduced at the extradition hearing, the appellant is in general, if not always, entitled to raise that issue on appeal to this court, even though the issue was not raised before the district judge. At paragraph 18: In the present case, the Appellant does not seek to adduce any new evidence. Her case has been made by reference to the documents before the District Judge. Her appeal is therefore not affected by the requirement that new evidence should not have been available at the extradition hearing. If, contrary to my view, the double criminality issue was "raised" before the District Judge, she was entitled to argue before this Court that that requirement was not satisfied. The claimant was entitled to raise the issue on appeal because extradition was an infringement of liberty. While the court was concerned to ensure that those who were the subject of conforming requests for extradition were lawfully extradited, the legal requirements for extradition had to be observed. However, in the very recent case of Khan v Government of the United States of America [2010] EWHC 1127 (Admin) (19 May 2010), when disproportionate sentence was not argued at first instance, the court held that there was no good reason for not raising the issue, the appellant s previous representatives having taken the view that the issue was unarguable, and in any event there was no fresh evidence capable of giving rise to an Article 3 risk. The court commented that earlier cases cited on fresh evidence, Piotrowski, Miklis, Bogdani and McKinnon, all predated Fenyvesi. Whilst the courts will often be disposed to consider new evidence, it will now be rare for such evidence to survive the strict test in Fenyvesi. Allegations of negligence against previous representatives In Kalniets (see above) it was argued that the fresh evidence should be admitted because the appellant had problems' with his then lawyers. It was held: The speculative suggestion that it might have been the fault of the appellant's then lawyers carries little or no weight. Judged against the principles enunciated in the Fenyvesi case (above), this case therefore falls, factually, at the first hurdle and cannot, in the terms of section 27(4)(a) of the 2003 Act, succeed. Despite this finding, the judge considered the fresh evidence and concluded that there was still insufficient evidence to demonstrate the real risk of a breach of Article 3 by the Requesting State and therefore on the facts of the case, the fresh evidence was simply not decisive. This paragraph from Kalniets quoted above was also cited in the recent case of Sondy v The Crown Prosecution Service [2010] EWHC 108 (Admin). In this case an Article 8 argument was abandoned by the appellant s representative before the district judge. His new representatives alleged that the original representatives had been negligent and attempted to argue the Article 8 issue. However, no notice of these criticisms had been given to the previous representatives and they had not been formally asked for their response. Furthermore, although the appellant might be deemed to have waived privilege, he had not expressly done so. Mr Justice Openshaw held that the practice commonly followed in the Court of Appeal Criminal Division should have been followed here; the appellant should have been formally invited to waive his privilege and, whether he did so or not, the lawyers should have been asked by the court to deal with the points made against them, having regard to whether privilege has been waived or not. If the appellant did not waive privilege, then of course an adverse inference could in any event be drawn against him. But none of that was done here. The result is that his allegations against 5

6 them cannot properly be tested or challenged. This seems to me to be entirely unsatisfactory. Appeals cannot proceed on the basis of untested and speculative assertions of this kind. Furthermore, an application to adduce evidence that had been abandoned by the previous representative was held inadmissible, following the decisions in Fenyvesi and Kalniets. Therefore, before the court will allow the introduction of new evidence or issues that the appellant s previous representatives either overlooked or chose not to introduce, a high evidential threshold must be passed and the previous representatives should be given the opportunity to respond. Without this, any application to introduce such evidence is bound to be unsuccessful. Appeals to the Supreme Court The EA 2003 (as amended by the Constitutional Reform Act 2005) also provides for a right to appeal to the Supreme Court with leave where the case involves a point of law of general public importance. 2 An appeal is only permitted if: (i) The judge in the High Court certifies (immediately after judgment or on an application within 14 days) that the relevant conditions are satisfied i.e. that a sufficient case has been made out to justify an application for permission to appeal to The Supreme Court and that all parties consent; and (ii) The Supreme Court (on an application made within one month of the judgment) gives permission for the appeal. Appeals to the European Court of Human Rights There are three key requirements that must be satisfied before an appeal to the European Court of Human Rights (ECtHR) can be lodged: 1. The defendant must be a victim of a violation of one of more of the articles of the European Convention on Human Rights (ECHR) e.g. the decision of the Supreme Court to order extradition would breach the Article 3 prohibition on torture or inhuman and degrading treatment. 2. The defendant must have exhausted of all their domestic remedies. 3. The application to the ECtHR must be made within six months of the conclusion of the UK court proceedings. It is not necessary to complete the official ECtHR application form within the six month period. A letter detailing the defendant s name, address and nationality, country against which the application is being made, facts of the case and the article of the Convention that have been breached is sufficient. However, it important that any directions subsequently made relating to the completion and submission of the form are complied with, otherwise the court may direct that the six month rule has not been met. The ECtHR may decide at this stage whether the application is admissible. If it decides that the application is inadmissible at this stage, it does not need to give reasons and there is no right to appeal this decision. 2 The Supreme Court of the United Kingdom was established by Part 3 of the Constitutional Reform Act 2005 and came into being on 1 October It replaces the House of Lords in its judicial capacity and has assumed the jurisdiction of the House of Lords under the Appellate Jurisdiction Acts 1876 and

7 If the application is admissible, the application is then allocated to one of the four sections of the ECtHR. A panel of seven judges will consider the case. If the case is very significant, it can be transferred at any stage to the Grand Chamber (a panel of seventeen judges) for a decision. The application will also be communicated to the government, who will be invited to respond. The panel of judges will then decide if the application is admissible. It can be ruled inadmissible if either the requirements above have not been complied with or if it is manifestly unfounded. If it is ruled inadmissible at this stage, reasons will be provided, but again there is no right of appeal. If the application is admissible the judges will then consider the merits of the application and decide if the Convention has been breached. Once a section of the ECtHR has made its decision on the merits of the application either party can ask to have the application referred to the Grand Chamber. The Grand Chamber will only rarely agree to a referral. This is the only form of appeal that the rules of the court permit. There is no appeal from a final decision made by the Grand Chamber. Conclusion Extradition cases require lawyers on both sides to apply the utmost care to procedural compliance; especially in the early stages of a case. No hearing can be treated as routine and a failure to observe this can be fatal to the success of the case as the CPS, acting for the Government of Hungary learnt to its cost in the Fenyvesi case itself when expert evidence could have been adduced at first instance. In the majority of cases, great care is needed to ensure that all arguable points are presented with supporting evidence at first instance. Attempts at late repairs to cases by either side at the appeal stage will not be well received. Peter Binning is a partner and Anna Rothwell a solicitor at Corker Binning, the London law firm which specialises in fraud, regulatory and general criminal litigation. August