QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| ANDREW SYMEOU
- and -
|PUBLIC PROSECUTOR'S OFFICE AT THE COURT OF APPEALS, PATRAS, GREECE
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Mr P Caldwell & Miss M Cumberland (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 12th March 2009
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This is the Judgment of the Court, prepared by Mr Justice Ouseley:
Abuse of Process
"97. I should not leave the point without considering the nature of the juridical exercise involved in concluding as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the Court.
…The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson, Schmidt and Gilligan cases, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid's inference – follows."
"Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham LJ, in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, Ex p Ellison  RTR 220, 227:
"If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint."
83. The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on inquiry as to the possibility of this. The judge will usually, though not inevitably, be put on inquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought."
"I find Messrs Klitou and Kyriacou far from entirely satisfactory witnesses. Given the ordeal they recount, violence at the hands of police in a foreign land, their oral testimony in each individual's case was surprisingly uninspiring. They seemed to have great difficulty in recounting the apparent horror of their experience in the kind of detail one might expect. That said, I find for the limited purpose of these proceedings, each was certainly intimated if not subjected to some force by Greek police. Georgina Clay, as perhaps is obligatory for a Club 18-30 representative, was an altogether more impressive witness plainly prepared to hold her own with Greek police as with lawyers in this Court. There is contradictory material as to injuries sustained or not. No formal complaint was made as neither individual chose to; I make no criticism, albeit consular staff did pursue the matter at local political and police level. The tone of consulate e-mails strongly suggests anxious Greek police following an unlawful death in a popular resort with wide ramifications going beyond those immediately involved and putting pressure for a prompt and effective investigation. Such circumstances are not unknown in this jurisdiction as well as elsewhere."
"In short I am not persuaded of any abuse of the kind requiring the court to deny extradition as envisaged in Tollman  supra. As already found the investigation process may well be heavily, perhaps correctly, challenged and rigorously tested at trial. Evidence currently relied on may be excluded altogether. Such matters are the stock in trade of criminal trials. I reject, on the instant facts, any proper basis for holding that an abuse of process has occurred."
The residual abuse jurisdiction does not help the Appellant here.
"The principle on which this new system is based is the mutual recognition of criminal decisions between the member states. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender."
"53. In Office of the King's Prosecutor, Brussels v Cando Armas  2 AC 1, para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part I warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on co-operation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity – the very things that in dealings between member states the Framework Decision was designed to eliminate. In my opinion section 2(4)(c) does not require the text of the foreign law to be set out in the Part I warrant. Article 8(1)(d) of the Framework Decision states that among the information that the European arrest warrant must contain is "the nature and legal classification of the offence". Section 2(4)(c) requires no more than that.
54. Consistent with the Framework Decision, the judge need not examine the text of the foreign law in order to decide whether the conditions set out in section 64(3) are satisfied. Section 2(4)(c) is not to be read as requiring material to be included in a Part I warrant, not mentioned in the Framework Decision, that the judge does not need when he is conducting that exercise. A warrant which contains the statements referred to in section 2(2) is a Part I warrant for all purposes. So I do not think that it is possible to spell out of the language of the statute the requirement for which Miss Montgomery contends."
Passage of time
"While I hear the Defence concerns they all seem to be matters properly aired at trial. On the material before me I find myself agreeing with the prosecution contention namely what actual, rather than speculative, prejudice arises which cannot be properly addressed within a trial. Mr Caldwell relies on inter alia US State Department Country Reports acknowledging the Greek trial process is effective and capable of dealing with the complaints made. Lord Diplock's test is a 'risk of prejudice' by reason of delay at the trial. The risk will only discharge an extradition request if safeguards do not exist. On the material before me I find 'by reason of the passage of time' it would not be 'unjust or oppressive' to extradite Andrew Symeou."