England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2009

1. This is the judgment of the Court:

Introduction

2. In Barrow v Bankside Agency Limited [1996] 1 WLR 257, Sir Thomas Bingham MR said this at page 260:

"The rule in Henderson v Henderson (1843) 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed."

This passage concerns a rule of civil litigation which at first blush is somewhat removed from the central subject of this appeal. But the policy behind the rule in Henderson v Henderson has quite close affinity with the policy which lies behind authorities and statutes which regulate the admission on an appeal of evidence which one or other of the parties did not adduce at first instance.

3. It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. The same policy which underlies this contributes to the now very widespread requirement that an appeal or a claim for judicial review (which is appellate in nature) requires permission or leave. There are exceptions to this, of which perhaps the most obvious is an appeal to the Crown Court from a determination of a magistrates' court in a criminal matter, which may be brought without leave; at which fresh evidence may be adduced; and where the appeal is a full rehearing.
4. The policy that evidence should normally be received once only and at first instance is not unyielding, and a variety of rules has developed to guide the usually discretionary circumstances in which an appeal court will receive fresh evidence. The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so. Thus section 23(1) of the Criminal Appeal Act 1968 enables the Criminal Division of the Court of Appeal to receive any evidence which was not adduced in the proceedings from which the appeal lies "if they think it necessary or expedient in the interest of justice". This reflects a necessary perception of criminal justice that a conviction which is in truth unsafe should not be upheld for want of fresh evidence which may establish that it is indeed unsafe.
5. By contrast, rule 52.11(2) of the Civil Procedure Rules provides that the appeal court will not receive evidence which was not before the lower court unless it orders otherwise. This rule, taken alone, is unvarnished, but a civil appeal court's starting point will always be the overriding objective that the rules are a procedural code to enable the court to deal with cases justly.
6. The discretion to admit fresh evidence afforded by statute and rule in criminal and civil appeals respectively, although it remains a discretion, is not unregulated. Intrinsically the principles of justice would expect the court to ask why the evidence was not adduced at first instance, and whether there is a good reason or excuse for not doing so – for the policy is that litigants should normally adduce their whole case and evidence at first instance. The court would also be expected to ask what part the fresh evidence would play, if it were adduced; and in particular whether it is credible and whether it would or might lead to a different outcome of the case. The appeal court might also be expected to consider how it would itself deal with the fresh evidence if it were admitted. Would it hear the fresh evidence orally and subject to cross examination? Or would it make a paper assessment of the fresh evidence to judge how it fits in with evidence which was adduced at first instance, which, if that was oral evidence, the appeal court would not itself hear orally? Or would the appeal court, if it allowed the appeal, remit the matter to the lower court for rehearing or reconsideration? Or would the appeal court, exceptionally, itself conduct a full rehearing?
7. On these latter points, a civil appeal court will not receive oral evidence unless it orders otherwise (rule 52.11(2)); has power to hold a full rehearing, but rarely does so (rule 52.11(1)(b)) and see generally E.I. Du Pont Nemours v S.T. Du Pont [2006] 1 WLR 2793); and has power to order a new trial or hearing or to refer any claim or issue for determination by the lower court (rule 52.10(2)). The Criminal Division of the Court of Appeal from time to time hears oral evidence; and has power upon allowing an appeal against conviction to order a new trial upon a fresh indictment (sections 7 and 8 of the 1968 Act).
8. As to the more general considerations, section 23(2) of the 1968 Act reflects in particular form the expectations to which we have referred and includes in one of the particular matters to which, in considering whether to receive any evidence, the Court of Appeal is required to have regard "whether there is a reasonable explanation for the failure to adduce the [fresh] evidence" in the proceedings from which the appeal lies.
9. In civil appeals before the inception of the Civil Procedure Rules, the leading authority on admitting fresh evidence was Ladd v Marshall [1954] 1 WLR 1489, which again reflected in particular form the expectations to which we have referred. The Court of Appeal would only receive fresh evidence on special grounds, which included that the evidence could not have been obtained with reasonable diligence for use at the trial. In brief – for an extended exposition is not necessary here – since the inception of the Civil Procedure Rules, the principles reflected in Ladd v Marshall remain relevant, but the court is not placed in a straightjacket of previous authority – see Hertfordshire Investments v Bubb [2000] 1 WLR 2318, Hamilton v Al-Fayed [2001] EMLR 15 at paragraph 11. The Court of Appeal has also regarded it as against principle to admit fresh evidence, if to do so would require the court to conduct a new and very different hearing from that which occurred at first instance.
10. In both the criminal and civil jurisdictions, attention is paid to the question whether it appears to the court that the fresh evidence may afford any ground for allowing the appeal (section 23(2)(b) of the 1968 Act); or whether the fresh evidence would probably have an important influence on the result of the case (Ladd v Marshall). In neither jurisdiction does the court have to decide, when it is considering admitting the evidence, that it would or would be likely to be decisive. There is a common practice sometimes adopted, if the court is unable at an early stage to judge the effect of the evidence, of hearing or reading the evidence contingently, and deciding later in the proceedings whether formally to admit it or not.
11. All this is very well known background to the question which is central to the present appeal which concerns the construction and effect of section 29(4) of the Extradition Act 2003.

The extradition hearing

12. Three Hungarian Judicial Authorities seek the extradition of Roland and Kalman Fenyvesi, the respondents, who are ethnically of Roma origin and culture, upon a total of 6 European Arrest Warrants. District Judge Purdy conducted hearings during the summer and early autumn of 2008 in the City of Westminster Magistrates Court at which each respondent gave oral evidence. There was written evidence from Dr Martin Kovats, an active academic whose doctoral thesis was entitled "Roma in Hungary"; evidence from Filip Hauzer, who is President of a Roma minority self government in Hungary; and Dr Nidhi Trehan who had lived in Hungary between 1995 and 1999 and whose doctoral research on Roma and human rights in Hungary was pending when she wrote her report, but had been awarded by the time she gave evidence.
13. The respondents contended before the district judge that their extradition to Hungary, a Category 1 territory under the 2003 Act, was barred by extraneous considerations (section 13) and that the judge should order their discharge because their extradition would be incompatible with their Convention Rights within the meaning of the Human Rights Act 1998 (section 21). They contended for the purposes of section 13 that the warrants were issued for the purpose of prosecuting or punishing them on account of their race and that, if they were extradited, they might be prejudiced at their trial or punished or detained by reason of their race.
14. The evidence called by or on behalf of the respondents was detailed and unchallenged before the district judge because the appellants did not themselves adduce any evidence. Their counsel no doubt did his best to challenge evidence that was given where this was internally possible, and he duly submitted that the conditions of section 13 and 21 were not met on the evidence that was before the court. But he had to accept that he was unable to gainsay much, if any, of the evidential matters which the district judge set out in his ruling. There was no application for an adjournment to enable the appellants to fill the evidential lacuna.
15. The gist of the respondents' case was that they had been and feared that they would be victimised in their home county in Hungary because of their Roma origin. They had been subjected to violence because they are Romas at the hands of the police and prison officials; and had been afforded inadequate or no legal representation in courts from which the public were exceptionally excluded because they are Romas. Roland Fenyvesi's uncle's house had been burned to the ground by skinheads. Filip Hauser gave evidence that in Vas County the police adopt the stance of beat them up first and ask questions later. They would not receive this treatment if they were not Roma. There was always a missing Roma prisoner when he visits prisons each month and the following month there were signs that that person and other Romas had been beaten. Kalman Fenyvesi spoke of beatings and other assaults by the police.
16. The district judge's conclusions included that he was not persuaded that the European Arrest Warrants were issued because the respondents are of Roma origin. He was persuaded however that, if the respondents were extradited, they might be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their race. As to section 21, he concluded that there were strong grounds for concluding that there was a real risk, if the respondents were returned, that they would suffer inhuman or degrading treatment at the hands of prison officials in breach of article 3 of a Convention; and that there would be a very real risk of a flagrant denial of the fair trial as required by article 6 of the Convention. He accordingly discharged each of the 6 European Arrest Warrants. He said, importantly, that nothing in his ruling was necessarily to be taken as a precedent for any other European Arrest Warrant involving Roma from Hungary or elsewhere. His ruling was specific to the respondents and on evidence largely unique to them. This is obviously correct, not least because the ruling was given upon unchallenged evidence.

The appeal

17. The appellants appeal against this ruling. The appeal turns entirely on whether the court is persuaded to consider fresh evidence not adduced before the district judge. Mr Caldwell, for the appellants, accepted that, absent the fresh evidence, the appeal must fail. At the conclusion of the oral hearing, we refused to entertain the fresh evidence and dismissed the appeal. These are our reasons.

The fresh evidence

18. The proposed fresh evidence consists of documents in two substantial lever arch files in total running to some 450 pages. The first file is introduced by a letter dated 27^th November 2008 from the Hungarian Ministry of Justice and Law Enforcement. This speaks of a meeting with representatives of the Crown Prosecution Service in the Hague on 14^th November 2008 – after the decision of the district judge – at which differences between Hungarian and United Kingdom proceedings were explained and advice given on the type of evidence which would be needed in the City of Westminster Magistrates Court. Understandable concern is expressed at the outcome of this case before the district judge. Much evidential material is then referred to and attached about the respondents and the offences with which they are charged in Hungary. This material, if it were admitted and accepted, would give details of the alleged offences and their victims and about the court proceedings, and would enable the appellants to challenge the veracity of parts at least of the evidence adduced by or on behalf of the respondents. There was no expert opinion because of the short time available.
19. The second file is introduced by a General Report dated 26^th November 2008, with much information about the Roma Minority Self-Government System in Hungary; about the only three cases against Hungary that have been taken to the European Court of Human Rights, only one of which was brought by a person who relied on his Roma origins; a description of the activities of the Legal Defence Bureau for National and Ethnic Minorities and of the Equal Treatment Authority; the Office of Justice; the National Equal Opportunities Network; the Roma Anti-discrimination Network Service; the Independent Law Enforcement Complaint Board; and the Prosecution Service. There are also memoranda prepared by the Department of Law Enforcement Supervision and Planning and the Hungarian Prison Service.
20. There is no explanation why none of this material was made available before the district judge. In particular, there is no witness statement which attempts to give such an explanation.
21. We have considered this proposed fresh evidence in some considerable, but not exhaustive, detail. We consider that, if it were admitted, it might well afford a ground for allowing the appeal, or, in other terminology, it might well have an important influence on the result of the case. We are not, however, able to say that it would be decisive nor that it would have resulted in the district judge deciding the matters before him differently. We can put it no higher than that the proposed fresh evidence would have, by some means, to be weighed together with the evidence adduced or to be adduced on behalf of the respondents, before the court could determine whether the district judge ought to have decided the issues under section 13 and 21 differently.
22. Mr Caldwell did not attempt to persuade us that the proposed fresh evidence would be decisive. He fairly accepted that, if it were admitted, the court could not in fairness to the respondents consider its detail and import without, first, an adjournment of the appeal to enable the respondents to consider it and respond to it; and, second, a full rehearing before this court which would include this court hearing orally all the evidence which was adduced before the district judge. This was because, as the parties agree, there is no power under the 2003 Act for this court to remit the matter for further hearing before the district judge on additional evidence of the question which he has already decided – see section 29 of the 2003 Act whose structure and content does not embrace this possibility; and because this court could not fairly decide questions arising from the evidence, when it had not itself heard all the evidence orally and when matters arising from the appellants' proposed fresh evidence had not been put to the respondents in cross examination.
23. Mr Caldwell submitted – rightly, we think – that it was technically open to the court to conduct the appeal as a full rehearing (see rule 52.11(1)(b) of the Civil Procedure Rules). He sought to persuade us that this was an individual appeal in which it would be in the interests of justice to do so. But he acknowledged that in general such a course, and the consequent delay and complication, would be well beyond the parliamentary contemplation of the 2003 Act and the European Framework Decision which Part 1 of the Act implements. The court's very strong disinclination from following this course and the reasons for it feed through to the question of construction upon which this appeal depends, and to the exercise by the court of any discretion to be derived from that construction.
24. The appellants have advanced no reason – and certainly no good reason – why they did not adduce the proposed fresh evidence before the district judge. They had full opportunity to do so, as the following brief summary of the conduct of the first respondent's case before the district judge indicates.
25. The first respondent was arrested on 23^rd April 2008 and brought before the Westminster Magistrates Court the following day. From 19^th May 2008, the date of the first respondent's skeleton argument, those representing the appellants knew that the first respondent would raise the issues which succeeded before the district judge under sections 13 and 21 of the 2003 Act. On 30^th May 2008, the first respondent served an additional skeleton argument with a report from Dr Kovats and a United States State Department Country Human Rights Report for Hungary dated 11^th March 2008. The first respondent gave evidence on 5^th June adopting a witness statement that had been served three days earlier. The second respondent's witness statement was served on 9^th June – it was amended on 1^st September – and the report of Nidhi Trehan was dated 22^nd June. The hearing was adjourned to 23^rd June, when Filip Hauzer attended and a witness statement was taken from him. The hearing was adjourned without further argument or evidence to 17^th July, the first respondent being directed to serve Filip Hauzer's witness statement on the Crown Prosecution Service by 20^th June. Mr Hauzer gave evidence on 28^th August. Closing submissions were made on 19^th September. The district judge's ruling was given on 17^th October 2008. At no stage did the appellants ask for an adjournment or indicate that they would want to challenge the respondents' evidence other than by cross-examination or submission. The proposed fresh evidence was first served on 9^th January 2009.
26. As we say, no explanation, excuse or good reason is tendered in evidence or forensically for the failure to adduce this evidence before the district judge. As we understood him, Mr Caldwell accepted that the Crown Prosecution Service are the litigation representatives of the appellants in this jurisdiction, so that service of documents on them constitutes service on the appellants; and the Crown Prosecution Service's knowledge of the proceedings constitutes knowledge by the appellants. The appellants' response to the respondents' cases was limited, so we understand, to a letter dated 8^th July 2008, in which it was said generally that the Republic of Hungary, as a member since 1^st May 2004 of the European Union, is a democratic state whose legal and judicial systems secure strict protection of the rule of law and of human rights. The Ministry of Justice and law enforcement would consider it unacceptable if the Crown Prosecution Service (so it is put) reached a different conclusion on the basis of opinion testimony of non-competent persons.
27. In the absence of evidence and recognising the constraints thereby imposed upon him, Mr Caldwell tentatively invited us to infer that there was a misunderstanding by the Hungarian judicial authorities as to the way in which extradition proceedings operate in this jurisdiction, which might in the interests of international good relations be regarded as something of a good reason why they did not provide the Crown Prosecution Service with evidence to be adduced before the district judge in opposition to the respondents' evidence and case. But Mr Caldwell accepted that this was really speculative, and that other or additional, but even less helpful, inferences might equally be available. The fact is that there is no reason, let alone a good reason, before the court. Equally, there is no evidence to support a case that any of the proposed fresh evidence could not with reasonable diligence have been adduced before the district judge. The appellants' representatives knew what the respondents' case was in good time to prepare and serve the kind of evidence which is now proposed. There was, as we have said, no application for the hearing to be adjourned for the purpose of obtaining evidence. We can only suppose that a decision was taken, if only by those representing the appellants in this jurisdiction, that the hearing should proceed without such evidence. This is not a promising start for the application to adduce the fresh evidence which is the only life line of the appeal.

The Extradition Act 2003

28. The appeal is brought under section 28 of the 2003 Act. The relevant conditions for a successful appeal in this case are in section 29(4) to the effect that:

"(a) … evidence is available that was not available at the extradition hearing;

(b) the … evidence would have resulted in the judge deciding the relevant question differently…."

so that he would not have been required to order the respondents' discharge.

29. The statutory provenance and obvious parliamentary intent of the 2003 Act does not favour a liberal construction of these provisions. One aim of the European Framework Decision, as given in paragraph 5 of its preamble, was to remove complexity and potential for delay inherent in extradition proceedings – see also the opinion of Lord Hope of Craighead in Dabas v High Court of Justice, Madrid [2007] AC 31 at paragraph 53; and Lord Neuberger in Mucelli v Albania [2009] UKHL 2 at paragraph 66. Article 17 of the Framework Decision provides in terms that a European Arrest Warrant shall be dealt with and executed as a matter of urgency. Time limits are provided for and section 31 of the 2003 Act and the resulting practice direction (paragraph 22.6A of the Part 52 Practice Direction) predicate a speed of proceeding which was scarcely achieved before the district judge in the present case, let alone upon an appeal at which large amounts of fresh evidence might freely be admitted. As we say, Mr Caldwell accepted that it was beyond the real contemplation of the legislation – if not literally beyond its technical scope – that fresh evidence might generate the need for a full rehearing in this court.
30. Mr Caldwell rightly did not contend that evidence that "was not available at the extradition hearing" simply meant evidence which was not adduced at the extradition hearing. He referred to paragraph 3 of the judgment of Latham LJ in Miklis v Lithuania [2006] EWHC 1032 (Admin) concerning section 27(4) of the 2003 Act, which is the materially identical provision to section 29(4) for appeals against an extradition order. Latham LJ said that the word "available" makes it plain that the court will require to be persuaded that there is some good reason for the material not having been made available to the district judge. He did not consider that the requirements of Ladd v Marshall had to be met, where not only the liberty of the individual, but also matters relating to human rights are in issue. Any suggestion of an appellant keeping his powder dry would be viewed with some scepticism. Latham LJ was prepared to accept that the material provided by one person in Miklis could not have been obtained in time for the hearing before the district judge. He was less convinced about other medical evidence, but in the circumstances was prepared to admit it.
31. One reading of this passage suggests a discretionary latitude which the wording of the section does not readily provide. In addition, the passage does not address the further restrictive condition in section 29(4)(b) that the fresh evidence would have resulted in the judge deciding the relevant question differently, which is more restrictive than the parallel considerations in Ladd v Marshall or section 23 of the 1968 Act.
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.
33. The court, we think, may occasionally have to consider evidence which was not available at the extradition hearing with some care, short of a full rehearing, to decide whether the result would have been different if it had been adduced. As Laws LJ said in The District Court of Slupsk v Piotrowski [2007] EWHC 933 (Admin) at paragraph 9, section 29(4)(a) does not establish a condition for admitting evidence, but a condition for allowing the appeal; and he contemplated allowing fresh material in, but subsequently deciding that it was available at the extradition hearing. The court will not however, subject to human rights considerations which we address below, admit evidence, and then spend time and expense considering it, if it is plain that it was available at the extradition hearing. In whatever way the court may deal with questions of this kind in an individual case, admitting evidence which would require a full rehearing in this court must be regarded as quite exceptional.
34. Section 29(4) of the 2003 Act is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998. But such Human Rights Act considerations do not extend for the benefit of judicial authorities seeking the enforcement of a European Arrest Warrant for whom section 29(4) is of no avail if they are unable to come within its clear terms. This apparent imbalance between defendants and judicial authorities arises from the fact that a defendant may have the benefit of Human Rights considerations which the judicial authorities do not. We say this without overlooking the decision of a division of this court in Bogdani v Albanian Government [2008] EWHC 2065 (Admin), where the court admitted in the interests of justice a further explanation of Albanian statutory law to assist in its construction in an appeal which raised an issue under section 85(5) of the 2003 Act – see paragraphs 45 and 46 of the judgment of Pill LJ. The court at an earlier hearing had contemplated the admission of this material without objection at that stage. Technically evidence of foreign law is regarded as evidence of fact in this jurisdiction. But we doubt whether such evidence was a significant parliamentary concern underlying section 29(4). The court would naturally wish to be properly informed as to relevant legal principles of the law of a foreign state.
35. 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.

Conclusion

36. As is abundantly apparent, the appellants have made no case whatever that the proposed fresh evidence was not available at the extradition hearing before the district judge. Nor have they shown that the proposed fresh evidence would be decisive. Their application to admit it was hopeless. It was for these reasons that we refused the application and dismissed the appeal.