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
		3rd March 2009

1. LORD JUSTICE GOLDRING: Sweeney J will give the first judgment of the court.
2. MR JUSTICE SWEENEY:

Introduction

3. This is an appeal against an order of District Judge Purdy, sitting at the City of Westminster Magistrates' Court on 3rd November 2008, that the appellant, Roman Kalniets, aged 24, be extradited to Latvia in order to face a prosecution for murder, pursuant to section 21(3) of the Extradition Act 2003 ("the 2003 Act").
4. The order followed a contested hearing, during which the appellant gave evidence to the effect, amongst other things, that he feared for his safety if, in the future, he was to be held in custody in a Latvian prison. The learned District Judge rejected the appellant's evidence as unimpressive. He found as a fact that there were no human rights risks to the appellant if he was to be returned to Latvia.
5. The sole ground upon which this appeal is now pursued is that the appellant's extradition would be contrary to section 21 of the 2003 Act, in that there is a real risk that the appellant's rights under Article 3 of the European Convention on Human Rights would be breached by the prison conditions that he is likely to be exposed to in Latvia if extradited, on the basis that it is likely that aspects of those conditions will amount to inhuman or degrading treatment.
6. In support of this ground, the appellant seeks to rely upon two pieces of fresh evidence as follows:

(1) An expert report by Marina Dombrovksa dated 20th February 2009, together with an addendum dated 26th February 2009.

(2) A report of the Committee for the Prevention of Torture on a visit to Latvia in 2004.

Despite the late arrival of this fresh evidence, there is no application for an adjournment of this argument by the respondent, but both the application to adduce the evidence and the appeal itself are opposed.

Background

7. The District Court of Ogre, a Latvian judicial authority, seeks the appellant's extradition for an offence of murder contrary to section 116 of Latvian criminal law, pursuant to a European arrest warrant issued on 16th April 2008, and certified by the Serious Organised Crime Agency on 9th May 2008. Latvia is a Category 1 territory under the 2003 Act. Accordingly, Part I of the Act applies to these proceedings. Latvia is a member of the EU, and a signatory to the European Convention on Human Rights.
8. The arrest warrant alleges that the appellant murdered one Mihails Mihalkins on 6th December 2006 in the following terms:

"On 6th December 2006, in the flat of Roman Kalniets in Spidolas Street 17-14, Lielvarde, Ogre District, Roman Kalniets shot with a hunting shotgun in the direction of Mihails Mihalkins and wounded him to death in the presence of Tatjana Cervakova and Vitalijs Alsevskis. On the next day the dead body of Mihails Mihalkins was taken to woods in Birzgale, Ogre District and buried there. On 14th April 2007 the suspect, Vitalijs Alsevskis, during examination of evidence on the spot, indicated the place where, on 7th December 2006, [the] dead body of Mihails Mihalkins was buried. There was a skull found which, in accordance with an expert opinion, was admitted as the skull of Mihails Mihalkins."

9. The appellant was arrested on 3rd August 2008. The extradition hearing was opened on 21st August 2008 and adjourned part heard. The substantive hearing took place on 3rd November 2008 before District Judge Purdy. No skeleton argument had been served for the hearing, although the court had directed that one be served by 24th October 2008. An application to adjourn to obtain further evidence appears to have been refused.
10. The appellant gave evidence that he feared for his safety if he was to be returned to Latvia. There was a letter from the judicial authority before the court, dealing with a number of the issues raised by the appellant. The appellant's evidence was that he had been in custody in Latvia in 2004-2005. The cells had 15-20 occupants in them. With the connivance of prison staff, he had been assaulted twice. He had not reported the assaults, but believed that he would suffer the same treatment again. In 2006, he asserted, he had been assaulted by persons unknown acting on behalf of the person who had alleged his involvement in the murder. Thus, he feared that he would be subject to extreme violence on his return.
11. In giving judgment, the District Judge indicated that he found the appellant to be an unimpressive witness. In those circumstances, he found that there was no human rights risk to the appellant, and ordered his extradition accordingly. The appellant filed a notice of appeal on 7th November 2008 and, following rulings by Collins J, Marina Dombrovksa's report was eventually served on 24th February 2009, therefore not long before this hearing.

The law

12. It is common ground that the aim of the Council Framework Decision establishing the European arrest warrant was to establish a simpler, quicker, more effective procedure, founded on Member States' confidence in the integrity of each other's legal and judicial systems: see, for example, the speech of Lord Bingham in Office of the King's Prosecutor v Armas [2005] UKHL 67.
13. The correct test for determining whether extradition from the United Kingdom should be stayed on the basis of a threat to the requested person's Article 3 rights in the requesting country was set out by Lord Bingham in R v Special Adjudicator ex parte Ullah [2004] UKHL 26, when he said:

"In relation to Article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment."

14. It is trite law that it is normally incumbent on those involved in litigation in first instance courts or tribunals, to advance their whole case at first instance, and to adduce all the evidence on which they want or need to rely. This appeal is brought under section 26 of the 2003 Act. The relevant conditions for a successful appeal are set out in section 27(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;

(c)if he had decided the question in that way, he would have been required to order the person's discharge."

15. The similar provisions of section 29(4) of the 2003 Act have recently been the subject of penetrating analysis by this court in The Szombathely City Court and Others v Fenyvesi and Fenyvesi [2009] EWHC 231 (Admin), in which the judicial authority sought to introduce fresh evidence after the failure of its case at first instance. Giving the judgment of the court, Sir Anthony May, President, (with whom Silber J agreed) said:

"32. In our judgement, 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.

...

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."

The rival submissions

16. Mr Daniel Jones, on behalf of the appellant, accepts that no efforts were made at the lower court to obtain the sort of material that is now placed before this court. He submits, in oral and written argument, that:

(1) Those who now represent the appellant are not in a position to say why his previous solicitors did not seek to obtain evidence of this type, but the appellant should not be disadvantaged by what may have been the failings of his previous solicitors to properly pursue this aspect of the case. The court should be generous in favour of a lay defendant with no understanding of the legal complexities and consequences.

(2) As to the report and the addendum of Marina Dombrovksa, an experienced Latvian lawyer practising in criminal law and drawing on her own experience, her report indicates that the appellant, if extradited, is likely to be held on remand for many months in Riga Central Prison and, if convicted, in a closed prison thereafter. It is her assertion that whilst there have been improvements in the Latvian prison system, conditions in Riga Central Prison are such as to breach Article 3. In that regard, there are three specific passages on page 8, page 9 of the addendum and pages 16 and 17 of the main report, at which point the witness refers to the Office of the Latvian Ombudsman, and to claims made in 2007 of bad conditions in Latvian prisons. The witness concludes:

"Thus, most probably [the] defendant's Article 3 ECHR rights would be breached... since living conditions in Latvian prisons, de facto, are still not in line with human rights standards."

(3) The court should take into account the Committee for the Prevention of Torture 2004 Report, which, although now some 5 years old, is a good guide to the fact that conditions in Latvian prisons are still likely not to be Article 3 compliant in the respects referred to in the 2004 Report.

(4) There have been a number of cases before the European Court of Human Rights in which there have been findings that conditions in prison violate Article 3, although not, we note, in relation to Latvian prisons.

(5) In order to fulfil the test in the ex parte Ullah case (above), the appellant must demonstrate that if extradited he is likely to be sent to a prison where there is a real risk that the prison conditions to which he is subject will breach his Article 3 rights, in the sense that it is likely that aspects of those conditions will amount to inhuman or degrading treatment, as evidenced in the reports to which I have just made reference, and which also finds support from the appellant's assertions in evidence, albeit rejected by the learned District Judge.

17. Mr John Jones, on behalf of the respondent, argues that:

(1) The court should decline to admit the fresh evidence, as it plainly touches on a live issue that was before the lower court and was rejected by the District Judge. The material could and should have been obtained by the exercise of due diligence before that hearing, and there is no witness statement giving any explanation whatsoever as to why that due diligence was not pursued.

(2) Marina Dombrovksa is simply a Latvian lawyer who only qualified to practise in 2005, and it is not clear that she should be regarded as an expert on Latvian prison conditions.

(3) Her report is largely innocuous; when the addendum is taken into account, it does not even reach any clear conclusion that the appellant would be held in custody at Riga Central Prison; and her assertions that "most probably the appellant's Article 3 rights would be breached" come out of the blue, and are unparticularised in the report.

(4) Insofar as the report of the Committee for the Prevention of Torture is concerned, it is simply too old to reflect any future risk in 2009, and there is no decided case before the European Court in which an adverse finding under Article 3 has been made in relation to a Latvian prison.

(5) Taken together, the fresh evidence does not begin to reach the high threshold required of an Article 3 breach in a foreign case, the more so when one considers the nature of the allegation and its gravity, on the one hand, and the prospect of an alleged murderer walking free against Article 3 allegations of this type, on the other hand.

The merits

18. No witness statement is advanced to explain why the proposed fresh evidence was not advanced, as it should have been, before the District Judge. 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.
19. However, given that there were undoubtedly problems between the defendant and his then lawyers at the lower court, I have nevertheless considered the contents of the fresh evidence with care de bene esse. In my view the respondent's submissions as to the content and effect of the fresh material are correct. Applying the test annunciated by Lord Bingham in the ex parte Ullah case (above), it simply does not, as a matter of fact, show strong grounds for believing, whether by itself or in combination with the appellant's evidence, that if returned he faces a real risk of being subjected to inhuman or degrading treatment or punishment. Judged, therefore, against section 27(4)(b) of the 2003 Act, it follows that, even if admitted, it could not be established that the new evidence would have resulted in the judge deciding the Article 3 question differently. In short, on the facts of this case, the fresh evidence is simply not decisive.
20. I would therefore dismiss the appeal.
21. LORD JUSTICE GOLDRING: I agree.
22. MR DANIEL JONES: My Lord, I have one application. That is for the costs to be assessed in the usual way.
23. LORD JUSTICE GOLDRING: Yes.
24. MR DANIEL JONES: I am grateful. Thank you, my Lord.
25. LORD JUSTICE GOLDRING: Which of you is now expected in front of Hallett LJ in the Court of Appeal?
26. MR JOHN JONES: It is me, I am afraid. I trust and hope that I am not overly expected in that court. I am going to make my way straight there.
27. LORD JUSTICE GOLDRING: Thank you both.