England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 June 2008

1. LORD JUSTICE LATHAM: Mr Powles, on behalf of the Albanian Government, has made an application today for the court to receive fresh evidence in relation to the legal position in Albania. Not surprisingly, that application is resisted by Mr Yeo, on behalf of the appellant. The position is that this court has, on two previous occasions in the cases of Bleta [2005] EWHC 475 and Mucelli [2007] EWHC 2632, held that material presented to the court was insufficient to meet the requirements of section 85 of the Extradition Act as to the right to retrial of a person convicted in his or her absence in Albania who has, as is the case of this particular appellant, not fled the country deliberately to avoid trial. The position, Mr Yeo says, is even starker in the present case, in that there have been a number of applications for an adjournment in the court below in order to provide further material upon which the Albanian Government could rely in order to satisfy the requirements of section 85 as to retrial.
2. We are sympathetic to the arguments of Mr Yeo, but it seems to us that this is an area which really should now be resolved as best the courts of this country can on the best material which can be produced to deal with this issue. It will then, we would hope, mean that any further applications in relation to such situations by Albania can be dealt with on the basis of an established principle of law.
3. Accordingly, what we propose to do is to adjourn the case today for the Albanian Government to have 28 days in which to produce such material as it considers will assist to ensure that the requirements of Article 3(1) and (2) of the Protocol and section 85 of the Extradition Act are met. The appellant is to have 14 days thereafter in which to consider the material and to determine whether or not to put in further evidence in response. The matter is then to be restored to the list as soon as possible thereafter.
4. The court's concern in particular, so that the matter can proceed in a focused fashion, is the extent to which it can properly be said that, firstly, Article 6 of the European Convention, by reason of its application in Albania, results in a right to a retrial which is not dependent upon the discretion of the court in relation to the extension of time for making an application; secondly, the extent to which it and the provisions of Article 3 of the Protocol as applied in Albania may produce once again the right to a retrial, or whether it will remain a matter of discretion for the Albanian court to determine in a case such as this whether the time limit commences at the time of his surrender to the Albanian authorities and therefore whether the time limit in Article 147 applies at the time of his surrender to the Albanian authorities, or is capable of being taken as starting at some other earlier date so as to preclude him from now being able to exercise his rights under Article 147.
5. MR JUSTICE NELSON: I agree that the adjournment should be granted. I agree with some hesitation because of all the previous adjournments that have occurred, but this is a serious criminal offence with which the request is concerned, and the important issues relating to Article 3 and section 85 should be clarified so that the court can express a clear opinion on it.
6. I, for my part, emphasise, as my Lord has, that the nature of the assurance given by the requesting party has to be such as to be sufficient to guarantee to the person claiming the right to a retrial which safeguards the rights of the defence, and it is only if such assurance is sufficient to guarantee a right to a retrial, that the relevant test will be satisfied. But in all the circumstances, I think it appropriate that the adjournment be granted.
7. MR YEO: I am grateful, my Lords. Might I ask two things? If the possibility, if it came to pass, that no evidence was brought by the Albanian Government within 28 days, do your Lordships anticipate a hearing at that stage?
8. LORD JUSTICE LATHAM: Yes, I should add the rider that if in fact the Albanian Government produces no evidence within 28 days, or indicates that it does not seek to put before the court any further evidence than that which we have already received, then the matter can go before the court as soon as possible after the 28 days or after the indication has been given that they are not proposing to rely on any other material.
9. MR YEO: There was one other matter I was going to raise, and it relates to another case. I do not ask your Lordship to do anything about it today, but there is a case, I believe the man's name is Kallmi, and it was decided by the Westminster Magistrates' Court in a different courtroom on the same day as this one. The same issues arise. Obviously, it is for those involved in that case to make the necessary applications, but in your Lordship's view would it make sense if both cases came back to the court together on the same day?
10. LORD JUSTICE LATHAM: Mr Powles, you would not wish to oppose that, would you?
11. MR POWLES: My Lord, no.
12. LORD JUSTICE LATHAM: That simply underlines, it seems to me, the need really to use this present case as a vehicle for trying to resolve this issue, and hopefully once and for all, subject to any changes in Albanian law.
13. MR YEO: Yes, my Lord.
14. MR POWLES: My Lord, may I just clarify something; that is earlier I stated that the right questions had been asked. I should state for the record I was not responsible for drafting them, and nor have I actually seen those questions, but knowing that counsel instructed before me had full grasp of the case, and I am sure that --
15. LORD JUSTICE LATHAM: Could I ask you, Mr Powles, to communicate with him -- Mr Jones was it?
16. MR POWLES: My Lord, yes, it is Mr Jones.
17. LORD JUSTICE LATHAM: Yes, communicate with him and indicate to him the areas of concern that we have, just in case that that affects the questions that he thinks need to be asked. Remember the point I was making was that, in relation to the human rights aspect of it, I think it could be said, and this is where I was very anxious to get the point across because of your point about the human rights aspect not being considered, so to speak, in the other two cases, that where there is, as there is in Article 147, an entitlement to a re-hearing subject to a time limit, then that meets the requirements of Article 6, or is capable of meeting the requirements of Article 6. The Article 6 point does not really meet the difficulty which is the problem of when the ten-day period in which to apply commences.
18. MR POWLES: My Lord, yes.
19. LORD JUSTICE LATHAM: That is the critical question, and whether Article 3(2) helps you in that regard is perhaps one of the most important issues.
20. MR POWLES: My Lord, yes.