Neutral Citation Number: [2009] EWHC 897 (Admin)
Case No: CO/10602/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1st May 2009

Before :

LORD JUSTICE LAWS
MR JUSTICE OUSELEY
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Between :

	ANDREW SYMEOU	Appellant	
	
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	PUBLIC PROSECUTOR’S OFFICE AT THE COURT OF APPEALS, PATRAS, GREECE	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr E Fitzgerald, QC & Mr J Jones (instructed by Lynn & Associates) for the Appellant
Mr P Caldwell & Miss M Cumberland (instructed by The Crown Prosecution Service) for the Respondent

Hearing dates: 12th March 2009
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Judgment
This is the Judgment of the Court, prepared by Mr Justice Ouseley: 

1.	The Public Prosecutor at the Court of Appeals, Patras, Greece seeks the extradition of Andrew Symeou, a 20 year old British citizen, to face a charge equivalent to manslaughter, arising out of an assault in a night club in Laganas, Zakynthos, in the early hours of 20 July 2007. He is alleged to have punched in the head another young Briton, 18 years old, who had remonstrated with him for urinating on the floor of the club. The victim fell to the ground hitting his head; he was unconscious, and suffered brain injuries from which he died 2 days later. The Appellant denies that he committed the offence and says that he was elsewhere at the time. He left Greece at the end of his holiday on 22 July and returned to the UK, before he became aware that the police thought he was a suspect.

2.	A European Arrest Warrant was issued by the Greek authorities on 18 June 2008, was certified by the SOCA on 24 June, and on 26 June, Andrew Symeou was arrested at his home  in  London. On 30 October 2008, District Judge Purdy at the City of Westminster Magistrates’ Court ordered his extradition. He appeals to this Court under section 26 of the Extradition Act 2003, alleging errors of law in that decision: first and principally that extradition would be an abuse of process because of the way  the  Greek police had investigated the offence, within which was subsumed what had been a separate argument to the effect that a serious defect in its domestic procedure invalidated the Greek domestic arrest warrant and thereby invalidated the EAW; second, that the passage of time makes it unjust or oppressive to extradite him; and third that extradition would breach Articles 6 and 8 ECHR because of the risk that evidence would be admitted which had been obtained by coercion, and because the offence could be tried here.  

Abuse of Process

3.	It was not at issue but that the District Judge has an implied jurisdiction to order a person’s discharge if his extradition would constitute an abuse of process, even though that is not one of the bars to extradition specified in section 11 of the Act. Two of those bars merit note: section 13 which prohibits extradition where it appears that its purpose is trial or punishment on grounds including race, religion and nationality; section 14 which prohibits it where the passage of time makes extradition unjust or oppressive. Section 21 also requires the discharge of a person whose extradition would contravene his ECHR rights. The abuse jurisdiction is not to be implied therefore to cover those issues.

4.	The implication of a residual abuse of process jurisdiction was spelt out by Laws LJ in Bermingham and others v Government of the United States of America and another [2006] EWHC 200 (Admin) [2007] QB 727.  At para 97, Laws LJ said:

“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.”

5.	The Secretary of State’s wide discretion not to order extradition, and the requirement that a prima facie case be shown, had excluded the implication of an abuse jurisdiction under previous legislation, but it did not follow that the residual abuse jurisdiction under the 2003 Act could be implied so as to replace those powers. Indeed, such an implication would have been contrary to the purpose of Part 1 of the 2003 Act. 

6.	After saying that the prosecutor had to act in good faith, Laws LJ illustrated what could be bad faith, arising out of the arguments in that case: a prosecutor, knowing that he had no real case, pressing for extradition for some extraneous motive, or deliberately delaying proceedings to avoid the need to show a prima facie case. 

7.	This conclusion was elaborated in R ( Government of the United States of America) v Bow Street Magistrates Court  and Tollman [2006] EWHC 2256 (Admin) [2007] WLR 1157.  Lord Phillips CJ, after endorsing what Laws LJ had said, continued at para 82:

“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 [1990] 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.”

8.	Lord Phillips then considered how an allegation of abuse of process should be dealt with by the District Judge: first, he had to have reason to believe that an abuse may have taken place, which required the acts of alleged abuse to be identified with some particularity; second he had to consider whether that conduct, if established, could amount to an abuse of process; third he had to consider whether there were reasonable grounds for believing that such conduct may have occurred. But if so, he should not accede to extradition unless he had satisfied himself that such abuse had not occurred. The parties before us agreed that that was for the extradited person to prove on the balance of probabilities. However, as Lord Phillips said, the District Judge should call upon, here, the issuing judicial authority, for “whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.”

9.	Lord Phillips also cited in para 81 R (Kashamu) v Governor of Brixton Prison [2002] QB 88 in which Rose LJ, in the context of detention in the course of extradition proceedings, had pointed to the narrow scope of the abuse of process jurisdiction: was there bad faith or deliberate abuse of the English Courts’ procedure? It would be a very rare extradition case in which, although the statutory procedures had been followed, it would be possible to argue that abuse of process arose and made detention unlawful.

10.	This citation of authority on the abuse jurisdiction and on how an abuse issue should be resolved is necessary because the agreement between Mr Fitzgerald QC for the Appellant and Mr Caldwell for the Respondent, that the abuse jurisdiction exists, rather masks the gulf which emerged between them during the hearing as to what its scope was, and highlights what the District Judge here was asked or not asked to do. Indeed, the scope of the jurisdiction lies at the heart of the issue in this case. 

11.	Although the precise way in which the abuse point was put on the facts has varied from the way in which it was put before the District Judge, in substance, the three factors remained essentially the same.  First, the Greek police, through violence and intimidation, had obtained statements from two of the Appellant’s friends which wrongly incriminated him and would be admissible against him at trial.    Second, other statements from British nationals who had been in the night club at the time, and which incriminated the Appellant, had been manufactured or manipulated by the Greek police, and were demonstrably unreliable.  Third, the Greek domestic arrest warrant was issued without compliance with the Greek statutory code of procedure; this failure had deprived the Appellant of an important safeguard, not so much for trial, but rather because it would have given him the opportunity to persuade the Greek judicial authorities that there was no real case against him before his arrest was sought at all. 

12.	First, we deal with the two statements alleged to have been obtained through coercion. Mr Klitou and Mr Kyriacou were on holiday with the Appellant. They were then 18 and 19 years old respectively. They had stayed on a couple of days longer than the Appellant as had already been planned. The police had shown photographs of people in nightclubs to witnesses, principally friends of the victim, who had picked out the assailant whom the police then tried to identify. The person picked out was the Appellant. The two were identified by hotel staff as friends of the Appellant. On 24 July 2007, they were interviewed separately about   events on 20 July 2007. Each had an interpreter.  Each said that all three were together in the nightclub at the time of the assault. Mr Klitou saw the Appellant urinating on the floor, which led to an altercation and to the Appellant throwing the punch which felled the victim. Mr Kyriacou saw a quarrel between a man and the Appellant over a girl which led to a crowd, some way away from where he was.  He did not see a blow struck but he did see the man with whom the Appellant had been quarrelling then lying on the floor. The Appellant left hastily. He told Mr Kyriacou the next day that he had struck the victim in the face, and when he saw him lying on the floor had panicked and run. 

13.	Mr Klitou and Mr Kyriacou signed statements in July 2008, describing what had happened at the Zakynthos police station. The three officers and the female interpreter appeared to be interviewing them separately, but going from one to the other while the interviews were underway. Both were punched in the face on numerous occasions, the more senior officer appeared to encourage the younger officer to hit them harder. Each received other blows and there were other acts of intimidation.  They were both kept there for eight hours and just said what they were told to say. Mr Kyriacou could hear his friend being beaten and being asked the same questions repeatedly. Mr Klitou went three hours without water, and six hours without food and then received only a little. He went to see his GP in England three days later, complaining of the pain in his jaw; there was tenderness but no swelling or bruises. 

14.	The District Judge heard oral evidence from Mr Klitou and Mr Kyriacou, as well as from the Club 18-30 representative. She said that when she went to the police station to identify the boys, she was given the same interpreter as they had, whose English was not very good and so she signed nothing until the company translator arrived.  She went to see the boys after they had got back to the hotel; one had a swollen face, and she got the impression that they had been made to say things that were not true. The hotelier who was very friendly with the Chief of Police would not allow the Consular official into the hotel to see the boys. 

15.	The District Judge also had an email from the British Vice Consul dated 25 July 2007 which refers to the two boys alleging via their Club 18-30 Tour representative that they had been beaten up by the police, and advised that Consular staff would ask them if they wanted to complain and if so, advise them how to do so.  The Consular staff reported that the boys looked well, had no bruises but were obviously very scared. They had said that they were beaten up when the Tour representative had left the police station. Now they just wanted to go home. Mr Kyriacou’s father rang Consular staff, after the boys returned home, to say that they did not want to complain but did want to know for sure what they had signed as it was in Greek and no one had explained. A few days later their parents did seek to complain. 

16.	On 30 July 2007, the British Ambassador, who was in Zakynthos, spoke to the Chief of Police about a spate of incidents in Laganas where the night club was, and raised these particular allegations. Later that day this Officer advised the Ambassador that he had made enquiries and found that the allegations against his officers were quite untrue.

17.	The District Judge found as follows:

“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.”

18.	Mr Fitzgerald criticised these findings.  The Judge had failed to find whether the accusations of physical violence were made out or not, but to find “for the limited purpose of these proceedings” that the two witnesses were “certainly intimidated if not subjected to some force” was at least a finding of coercion in the making of the statements. If in order to make full findings he needed to have evidence from the Greek police, he should have followed the procedure described by Lord Phillips in Tollman. It was not unknown for Governments whose actions were challenged in extradition cases to call witnesses to contradict the allegations against them.  The finding that the description of their ordeal was “surprisingly uninspiring” reflected an inappropriate test. There was also an explanation for why Mr Kyriacou might have come across like that, but that would require the admission of new evidence in the form of a psychiatric report.

19.	We interpret the District Judge’s findings as recognising that he could not reach a final decision on any of the allegations made against the police. Nor should he have done so anyway: he had not heard from the police officers in question. He was simply trying to reach and express a view for the purposes of the extradition decision. He clearly does not   rule out that physical force was used; his findings read as if he thought that it might well have been used but he could not be sure how far the intimidation had gone in the light of the evidence about the injuries suffered by the witnesses. He clearly did not find either that it had occurred on the balance of probabilities.  We cannot go beyond those findings, even for the limited purpose of these extradition proceedings, and hold that that the allegations are fully made out. It would be rare that an appellate court, which has not had the benefit of hearing the evidence of the witnesses who were regarded as not wholly satisfactory, could find that their evidence should have been accepted.  Still less could we do so without evidence from the officers in question.

20.	Mr Fitzgerald’s argument, that the Judge’s reasons for not being satisfied about intimidation are inappropriate, cannot overcome that hurdle. The Judge explained that the witnesses could not remember in detail what had happened, and he had the benefit of hearing them being questioned on their statements. He also commented on the contradictory nature of the evidence about the injuries. Absent the Judge’s comment that their evidence was “surprisingly uninspiring”, the complaint about his appraisal of the witnesses would be unarguable. This perhaps curious language reflects, as we read it, the demeanour and lack of animation or obvious indignation with which the two described a very unpleasant ordeal. This may or may not be a useful tool for assessing the credibility of evidence about such events, but it was one which the Judge was entitled to deploy to the end which he did. 

21.	The Appellant sought permission to adduce further evidence in the form of a psychiatric report on the mental state of Mr Kyriacou, which commented on whether there was a clinical explanation for Mr Kyriacou’s evidence being “surprisingly uninspiring”.  The psychiatrist had not seen Mr Kyriacou give evidence, but Mr Kyriacou described to him what had happened at the police station in Zakynthos, and he read various relevant statements. From what Mr Kyriacou had to say about his symptoms, the psychiatrist concluded that “some of his symptoms are included within the diagnostic criteria for …PTSD”.  He did not suggest that this provided a clinical explanation for how the District Judge described his evidence, but there were certain introverted and reserved aspects to his personality which could have accounted for that.

22.	We have a discretion to admit this evidence under CPR 52.11(2), but we decline to do so. The basis upon which the discretion should be exercised was recently considered by the Divisional Court in the extradition context in Szombathely City Court and others v Fenyvesi [2009] EWHC 231 (Admin). In one sense this evidence was not available before the District Judge, and could not have been, because it was not known how he would react to the way in which Mr Kyriacou gave evidence, until judgment. However, we venture that if it is likely that a psychiatric report would assist in the appraisal of a witness’ evidence, itself an exceptional proposition, it is likely only to be in those cases in which it is obvious beforehand that it would be useful. So the issue would not in reality arise unexpectedly. Besides, it would be a quite exceptional case in which this Court on appeal could admit evidence designed to show that the Judge’s appraisal of the reliability, honesty and character of a witness whom he has heard give oral evidence, an everyday judicial task, could be affected by psychiatric evidence or evidence about the witness’ personality. In any event, here, the basis for the report and the limited nature of the psychiatric opinion demonstrate that it could not lead to a different appraisal of Mr Kyriacou from that of the District Judge. 

23.	For other reasons, which are at the heart of the issues in this appeal, such further evidence could not lawfully affect the District Judge’s or our decision. But this is not in essence a point about the admissibility of fresh evidence. It is about the scope of the abuse jurisdiction. 

24.	Mr Fitzgerald then argued that the conclusion of the District Judge, taken at face value, was enough to show a sufficient case that the Greek police had obtained evidence by violence to require the District Judge, applying what Lord Phillips had said in Tollman above, to satisfy himself that the violence had not in fact occurred. If it had occurred, that demonstrated an abuse of process and the extradition should not proceed.  The District Judge should have adjourned to allow the Greek police officers to give evidence to him about what had happened; he should then find as a fact whether what the two young men had said about the police conduct was right. If the Greek police did not attend, he would have to reach a conclusion on the evidence available before him.

25.	We accept for these purposes that the evidence before the District Judge, and on his findings, established a sufficient case for the District Judge to have to satisfy himself that the statements had not been obtained by coercion, but if and only if such a conclusion was necessary to show that the extradition process was not being abused. That turns on the true scope of the abuse of process jurisdiction, to which we come later. 

26.	Second, Mr Fitzgerald relied on the contradictions in some of the statements taken by the police from other witnesses, and the extraordinary consistency of other statements which those witnesses made: these each showed that the police were manufacturing or manipulating evidence. In the first group of statements taken by the police, a number of eye witnesses identified the person who hit the victim as the person who had been urinating on the floor: Mr Paglianico, Mr Burgess, Mr O’Gorman and Mr Mordecai. Mr Hares saw a man urinating and the aftermath of the punch but did not see the punch itself; he was told at the time that the urinating man had hit the victim and he relayed the description he had just been given by Mr O’Gorman. They were mostly friends of the victim. They did not see the perpetrator after the incident.

27.	Mr Paglianico, Mr Burgess and Mr O’Gorman described the perpetrator in virtually the same terms in their first statements: “ a young man around 19-21 years old, of muscular build, around 1.8m in height with black very short hair and wearing a blue Polo short-sleeved shirt and shorts. Furthermore he was dark complexioned with dark eyes.” Mr Hares was given  a description of a man of “medium height, around 1.65, tanned, of muscular build, with short, straight hair, a little longer in the middle of his head, with brown eyes, who was wearing a blue short-sleeved shirt (POLO) and a dark black or (dark) brown pair of Bermuda shorts, aged 19-21.”  Mr Fitzgerald says that these are too similar to have been provided by witnesses from their own unaided recollections. Mr Mordecai described the assailant as “tall, aged 18-22, light complexioned with a heavy Northern English accent and a lot of pimples on his face.”  Mr Fitzgerald says that this latter description cannot be a description of the Appellant; there were others who were at one time possible suspects. One of these statements was taken on 20 July, two on 22 July and two in the early hours of 23 July 2007.

28.	A Mr Gibson learnt that the police were looking for someone in connection with the assault at this night club, and having taken video and stills of a party at that club on 18 July 2007, which he had stored on his laptop, he took the laptop to the police on 23 July to see if this would assist in identifying the person who committed this assault. The photographs were displayed on the screen to the five witnesses named above. All five saw them together, according to later evidence.  Mr Gibson’s statement to the Greek police, made at midday on 23 July 2007 says that each of them “saw and noted, and identified with complete certainty and confidence” which one was the perpetrator.

29.	Between about 17.00 and 18.00 that same day, all five of those who already had made statements to the Greek police made further statements. They were in identical terms. Each said that having examined Mr Gibson’s photographs on his laptop: “I identified with complete certainty and I am absolutely sure that the individual shown in about the middle of the photograph, who had a slightly artistic looking goatee, is the perpetrator…..At this point I wish to point out that the perpetrator had shaved off his goatee on the day of the incident and had left only slightly long sideburns.”  This therefore included identification by Mr Hares who had not seen the incident, and although he had seen the man urinating had not offered his own description of that man, and by Mr Mordecai, whose description of the perpetrator had rather differed from the others. Mr Fitzgerald repeats with greater emphasis the point which he made earlier about the suspicious similarity of the descriptions: the police must have written this down for the witnesses to sign, regardless of its truth.  

30.	Mr Fitzgerald also produced a detailed chronology which he said showed that on 23 July 2007, and on earlier occasions, from the times at which the participation of police officers and interpreters was noted on the statements, some of them must have been carrying on two interviews at once, or using pre-prepared statements. 

31.	A Coroner’s Inquest was held in Wales for the purposes of which statements were taken from these five witnesses by the South Wales Police in November 2007. Mr Fitzgerald contrasted their content with the statements made to the Greek police. Mr Paglianico saw the man urinating but, contrary to what he had told the Greek police, did not see the punch. He saw only the aftermath; and the man he identified from the laptop was the urinating man. It was the Greek police who told him that it was this man who punched the victim. The man he described, and whom he saw for about 5 seconds   from 1-1 ½ m away, was white but with dark skin, dark short hair  crew cut on the sides, longer and spikier on top, big build, about 5 foot 9 inches,  about 19 years old, and wearing a blue Polo shirt. Mr Burgess said that he did not see the punch, contrary to what he told the Greek police.  He had not recognised anybody from the laptop photographs they were shown by the police. Neither he nor Mr Paglianico said anything about what they had told the Greek police. Mr O’Gorman’s statement is not clear as to whether he identified the urinating man as the assailant or his friend. When they had looked at the photographs on the laptop, they had pointed out two males, one of whom looked very much like the assailant and the other like one of his friends. He was quite but not 100 percent sure that he had identified the man correctly. The others were more concerned to identify the man who had been urinating. So his evidence was similar to what he had told the Greek police. Mr Mordecai said that he had seen a man urinating, and gave a description of a tanned white male, stocky build, about 6 foot tall, wearing a blue round neck T shirt, and full length jeans. This man’s friend was over 6 foot tall, average build, a badly pocked marked complexion, with shortish blonde hair. He picked these two out on the laptop. He had made two statements to the Greek police which were translated and signed. Contrary to what he had told the Greek police, he said that he had not seen who had hit the victim.  Mr Hares described the man urinating as white, well tanned 5 foot 10 inches tall, quite stocky, black spiky hair, wearing a blue Polo shirt and dark jeans. He had picked out this man and one other from the photographs on the laptop. He referred to signing one statement which was read to him in English.  The statement of the tour leader suggests that these witnesses may even have been shown a photograph with the Appellant circled and marked as the suspect. 

32.	Although the essence of these points was made to the District Judge, they do not feature expressly in his findings or conclusions.  Again, we accept for the purposes of this case, that there is evidence which, if relevant to an abuse of the extradition process, was of sufficient cogency to require the District Judge to seek evidence to show that no abuse had in fact occurred before ordering extradition.

33.	In our judgment, the reason why these two strands to the abuse argument cannot succeed is this. The focus of this implied jurisdiction is the abuse of the requested state’s duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority.  We emphasise those latter two words.   That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse.  If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state.  

34.	The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial.

35.	The reason for the distinction lies in the respective functions of the courts of the requested and requesting state in the EAW framework. The former are entitled to ensure that their duties and the functions under the Extradition Act 2003 Part 1 are not being abused. It is the exclusive function of the latter to try the issues relevant to the guilt or otherwise of the individual. This necessarily includes deciding what evidence is admissible, and what weight should be given to particular pieces of evidence having regard to the way in which an investigation was carried out. It is for the trial court in the requesting state to find the facts about how statements were obtained, which may go to admissibility or weight, both of which are matters for the court conducting the trial.  It is the function of that court to decide whether evidence was improperly obtained and if so what the consequences for the trial are.  It is for the trial court to decide whether its own procedures have been breached.

36.	As those issues are for decision by the trial court in the requesting State, it cannot be an abuse of the extradition process of the requested state for such an issue to be shown to exist and for its resolution to be available only in the courts of the requesting state.  The courts of the requested State cannot decide, let alone do so on partial and incomplete evidence, what it is for courts of the requesting state within the EAW Framework to decide about such issues and with what effect on the trial.

37.	The circumstances of this case illustrate the point. Mr Fitzgerald’s submission would require the Greek authorities, as part of the extradition process, to call evidence before the District Judge to show that the statements of the two Appellant’s friends were not obtained in fact in breach of Greek law, and if they had been, he would also then have to decide whether or not they should be admissible in a Greek court.  He would also have to decide whether the way in which the statements of the other five witnesses was taken involved any manipulation of the evidence, an issue which could well be bound up with the reliability of all of the witnesses. He would then have to decide what the Greek court is better placed to decide as part of a trial, on their admissibility or weight. This form of partial second guessing about how the trial court would or should decide issues properly before it, would run clean counter to the intentions of Part 1 of the Extradition Act 2003. 

38.	It follows that no investigation was required by the District Judge into the issues surrounding the taking of the two groups of statements. He was right to conclude as he did:

“In short I am not persuaded of any abuse of the kind requiring the court to deny extradition as envisaged in Tollman [2004] 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. 

39.	The absence of even an investigation before extradition into what has been shown by the Appellant here may seem uncomfortable; the consequences of the Framework Decision may be a matter for legitimate debate and concern.  But we have no doubt but that the common area for judicial decisions in criminal matters  means that the judicial systems of the countries of the European Union must be regarded as capable of providing sufficient minimum safeguards for a fair trial in a  civilised country, including provisions for the exclusion of evidence obtained by coercion.  The same process would be applied in reverse were English authorities to seek the extradition of a Greek citizen who contended that the English police had obtained evidence by violence or manipulation.  It would be for the English and not the Greek Courts to resolve the issues.   

40.	Mr Fitzgerald contended that the Prosecutors were tainted by the misdeeds of the police, and therefore even on this premise, the request was an abuse by the Prosecutors themselves. They were well able, he submitted, to see the similarities in the five identifying statements, in three of the original statements and the way in which those two sets of statements had varied. They were aware of the limited and inadequate investigation of the complaints by Mr Klitou and Mr Kyriacou. We are prepared to accept that the Prosecutors could see what the documents appear to show, but we do not accept that without more they were bound to conclude that the police could have no contrary explanation. Mr Caldwell suggested some. More importantly, the Prosecutors’ task was to take an independent view of the strength of the case bearing in mind that a trial court, if not an examining magistrate on the application of the Appellant, would be the actual court of decision on the strength of the case. It is not for this Court to rule on the strength of the case, or to point out what parts of the evidence might be sounder than others. But it is evident to us that a reasonable Prosecutor could conclude that, although there might be difficulties ahead, the evidence against the Appellant could not be described as all manufactured or obviously inadmissible. 

41.	The remaining strand to the abuse argument concerns the validity of the European Arrest Warrant, an argument which depends on the validity of the Greek domestic warrant and the requirements of Greek criminal procedure. If the argument is to succeed at all, it required the District Judge, and now this Court, to form a view on Greek criminal procedure and on the effect in Greek law of any breach of its procedural rules.

42.	Greece is a category 1 country for the purposes of the 2003 Act. Section 2 of the Act requires an EAW to contain a statement that the person required by the warrant is accused of the offence specified, and is sought with a view to his prosecution, together with specific information, including particulars of any other warrant issued in the requesting state for his arrest for that offence, i.e the domestic arrest warrant, and particulars of the circumstances of the offence.  The statement and information required was in the EAW issued here. But submitted Mr Fitzgerald that is not the end of the matter. 

43.	The EAW was invalid because the domestic warrant upon which it was based was issued in breach of a statutory requirement enacted for the protection of suspects. This warrant was issued on 27 May 2008. Fortified by an opinion from Mr Pyromallis, a member of the Athens Bar and a criminal law practitioner since 1996, it was contended that no valid arrest warrant could be issued under the Greek Criminal Procedure Code unless the Investigating Judge had first summoned the suspect to appear before him for examination. Only if the suspect refused to appear or other exceptional circumstances applied, could the requirements of Articles 270 and 276 of the Code be dispensed with. The Appellant had never been asked to appear. None of the exceptional circumstances applied, and although the provision could be dispensed with in the case of a fugitive from justice, the Appellant was not a fugitive, and had simply left Greece at the end of his holiday. Nor was his address unknown to the police; they had had it from a very early stage. The Judicial Authority appeared to have tried to go through the proper process by asking the Judicial Authority in England to take an unsworn statement from the Appellant, but had failed to pursue the matter. Draft Requests dated August 2007, prepared by the Assistant State Prosecutor (District Courts) under the 1959 European Convention on Reciprocal Judicial Assistance in Criminal Matters, were returned by the Assistant State Prosecutor Appeals because they did not make clear to the Appellant that his statement was sought as an uncharged suspect, did not provide him with the relevant information as to his rights or as to the basis upon which he was a suspect. It was rather an ineptly fashioned draft Request.  In reality, opined Mr Pyromallis, the Appellant was being discriminated against on grounds of his residence in a foreign country. 

44.	The District Judge rejected those contentions: it was not for the English Courts to enquire into compliance by the Greek authorities with their own law, in the absence of a “blatant” irregularity creating an abuse of process. He thought that any irregularity in the domestic warrant would be challengeable in the Greek Courts.  

45.	Mr Fitzgerald seeks in this Court to rely on   fresh evidence in the form of a further opinion from Mr Pyromallis. This opinion takes issues with the District Judge’s view that the validity of the domestic warrant could be challenged in the Greek Courts.  First, he says its invalidity goes to the validity of the EAW. That is not new and remains a matter upon which his expertise is irrelevant. Second, he says that no remedy has been created by statute in respect of invalidity in domestic arrest warrants. The Appellant would therefore have been deprived of his fundamental rights to be heard before a warrant was issued, without a remedy. For good measure, Mr Pyromallis also took issue with submissions made to the District Judge by counsel for the Respondent, and with the way the District Judge distinguished a decision of a colleague District Judge, neither of which are matters which could be relevant or persuasive to us. 

46.	We are not prepared to admit this new evidence. The only possibly relevant part which is actually new relates to the absence of a statutory remedy for the breach of the Code in the issue of a warrant without this safeguard being observed, if on the correct understanding of the Code there was such a breach. That evidence could have been obtained beforehand, and did not only arise as a result of some unexpected point in the District Judge’s decision. The comment is not a key part of his conclusion either. Mr Pyromallis does not say that the Greek Court trying the case would ignore any relevant prejudice to the presentation of his case which the Appellant could show had been caused by any breach of Greek procedural law if there had been one.  Indeed, it is very difficult to see why the English Courts should give a remedy for a breach of Greek procedural obligations which Greek legislation has declined to provide; and so it is difficult to see that the evidence could make a difference to the outcome of this appeal. And for another and more fundamental reason to which the District Judge referred and to which we shall come, this evidence could make no difference to the outcome of this appeal. 

47.	Mr Fitzgerald submitted that this failure by the State Prosecutor had deprived the Appellant of an important or even fundamental safeguard: he had not been able to set out his side of the case, or to explain to the Prosecutor the serious deficiencies in the way in which the police had investigated the case and gathered evidence. This might have persuaded the Prosecutor not to issue the Greek Warrant, as was the purpose of the procedure. The EAW was an abuse of the extradition process by the Prosecutor because he knew that the procedure had not been gone through, and that that was the Prosecutor’s fault.  The Appellant had been prejudiced by this failure because he had not been able at an early stage to deal with the fact that the witnesses were identifying a man who was bearded a day before the assault and clean shaven at the time. The opportunity had been lost to check that the CCTV footage at Stansted Airport, through which the Appellant returned to the UK, showed him still bearded.  He could not now set about finding witnesses other than his two friends who could say that he was not wearing a blue Polo shirt that day, nor deal with any other aspects of his defence including the time at which he arrived at the night club, which he says was after the incident. For example, he could not examine the CCTV footage of the night club which was shown, inconclusively, to the five witnesses, or obtain receipts which might support the time he said that he had arrived at the club, or obtain the active assistance of the police in following up leads suggesting that one of two other named persons might have been the assailant.  We shall deal with the specifics of this so far as necessary in the context of the passage of time arguments. 

48.	There was a conflict of evidence before the District Judge as to whether there had been a breach of the Greek Criminal Code by the Prosecutor. The Patras Court of Appeals Deputy Prosecutor says that no prior summons to a suspect is necessary before a warrant is issued, if the examining magistrate decides that there is “serious evidence” of the accused’s guilt.  The issue of the warrant had been delayed because of the workload in the Prosecutor’s office. The Court would not take into account any evidence that had been obtained through punishable acts, such as violence by the police to obtain statements. The Appellant would have the chance to go before the examining magistrate after he had been extradited to seek the dismissal of his case before trial. 

49.	In our judgment, the District Judge’s fundamental concern about hearing evidence about the Greek Prosecutor’s compliance with domestic law was well- founded. The EAW system follows the Council Framework Decision of 13th June 2002 which envisages the creation of a common area of justice, in which there would be free movement of judicial decisions in criminal matters, a common judicial area replacing traditional forms of co-operation. A new and simplified system of surrender of suspects for prosecution was to be created. As Lord Hope put it in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, at para 42:

“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.”

50.	Lord Hope then applied that principle to the question of whether a judge considering an extradition order based on a EAW needed information not specified in section 2 in order to test whether the conduct alleged constituted an offence  against the law of the requesting state.  Although that is not the issue here, what he said is apposite to the argument which does arise. In paragraphs 53 – 55 he said: 

“53.  In Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 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.”

51.	Although Lord Hope couches his language in terms that the judge “need not concern himself” with the criminal law of the requesting state, the thrust is that he should not do so, except in true abuse of extradition process cases, and should not do so, not as a matter of discretion, but as a matter of jurisdiction. Such inquiry is simply not his task. The effect of the Framework Decision, and the interpretation of the 2003 Act Part I, go further than the traditional assumption of good faith between sovereign states and a need to accommodate different national legal processes. 

52.	The circumstances of this appeal illustrate the point, and the way in which the contrary view would undermine the legislative intention. The context is an extradition case, pursuant to what is intended to be a simplified decision-making process in an area of mutual recognition of judicial decisions in criminal matters. There is a disagreement among the Greek lawyers about what the Greek Code of Criminal Procedure requires. It would be quite extraordinary   for the District Judge to hear evidence from competing experts on Greek law, including the Prosecutor of the requesting state, so as to rule as a matter of fact on what Greek  law was, then to find whether in fact the actions of the Prosecutor had breached whatever the law was found to be, then to rule on the effect on the validity of the warrant of a breach of its Code, each of which might be quite uncertain in Greek law, and then to rule on whether that caused the EAW to be invalid as a matter of English law implementing  the Framework Decision. And if extradition then ensued, the matter would be dealt with by the Greek Courts who would be unlikely to regard the views of the English Courts on Greek law as of more than passing interest. If it did not ensue, the Greek Courts would never have the chance to put it right. 

53.	The District Judge, on this basis and he recognised this was probably right, should not have considered evidence about Greek domestic law. If he had ruled that on the facts that there had been a breach of domestic law and that that in Greek law invalidated the domestic warrant, he would have trespassed beyond his functions. It follows from Dabas that even if he concluded that the domestic warrant was invalid in Greek domestic law, he had no jurisdiction to rule that the EAW itself was thereby invalidated. 

54.	All that is of course subject to the possibility that there has been an abuse of the extradition process by the prosecutor. Proving such an allegation would require very cogent evidence. The facts here simply do not begin to show it even if the District Judge had concluded that there had been a breach of Greek law and a failure to issue a summons when one should have been issued. It is plain that the Prosecutor took the view that the law, and the state of the evidence, did not require such a process, even though it was initiated, and could have been pursued.  That could not show an absence of the assumed good faith, such as an attempt to pervert the system to obtain an extradition which could not otherwise have been maintained, or to obtain the return of the Appellant for some collateral purpose.  There was no basis either upon which the District Judge should have adjourned the hearing so that the matter could be investigated.

55.	Accordingly, the abuse of process arguments all fail.

Passage of time 

56.	Extradition is barred where the passage of time between the commission of the offence,  20 July 2007, and the date of arrest, 26 June 2008, makes it unjust or oppressive to extradite the requested person; s14  of the 2003 Act. Both parties agree that the lapse of time between July 2007 and June 2008 is markedly shorter than that which usually features in arguments under this provision; but that does not preclude the operation of the section either. 

57.	Although “unjust” is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, and “oppressive” to the hardships which he faces because of changes to his circumstances in the period in question, the circumstances covered are in substance all of those which would make extradition unfair. The focus is on the effect of events which would not have occurred if the trial had taken place with ordinary promptitude; Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 HL.  The principal focus of the section is on the effect which the passage of time has had rather than on whether the requesting state was culpably responsible for it; The Government of Croatia v Spanovic [2007] EWHC 1770 ( Admin). This provision should not be dissected, and turned into a series of sharp edged rules about the way in which particular features should be judged; La Torre v the Republic of Italy [2007] EWHC 1370 ( Admin), per Laws LJ. 

58.	The Appellant put the following points forward: the Appellant was not a fugitive from justice at any stage, which is not at issue.  The Greek authorities had been inexcusably dilatory because they had not summoned him as they should or at least could have done, and had then waited for nearly a year before the arrest warrant was issued for a very serious charge against a young man whose details they had within a very few days and who had been identified allegedly by eye witnesses in statements made shortly after the assault. The Appellant would not be able to provide concrete evidence of where he was at the time of the assault because the trail would have gone cold. Had he been summoned, there were steps which could have been taken to support his defence: examination of CCTV footage and obtaining receipts from various night clubs to establish when he entered the one in question, interviews of his alibi witnesses, investigation of mobile phone photos to show what he was wearing, (some of which might still be available), examination of the victim’s trousers for DNA, examination of the CCTV footage at Stansted Airport at the time of his return, now irretrievable,  which would have shown that he could not have been clean shaven at the time of the assault; and  proper investigation of the other named suspects.  His two friends, who had made statements incriminating him, and which they said had been obtained by police violence, would not return to Greece to give evidence because they would face perjury charges if they gave evidence which differed from that which they had given in their statements which bore some form of solemn declaration as to their truth.  Their statements would simply be read instead and there was no evidence of adequate safeguards or investigation to prevent the admission of evidence which had been obtained by police violence and manipulation. 

59.	Mr Fitzgerald submitted that the District Judge’s conclusions on this point were erroneous in law and did not grapple with the substance of the points made. The District Judge found:

“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.” 

60.	There is nothing in the arguments about oppression. There are no changes in the Appellant’s circumstances which have occurred between July 2007 and June 2008. He knew on 24 July 2007, very shortly after his return to England that he was a suspect, and that his friends had made statements incriminating him. He had not been therefore unaware of the possibility of charges for sometime, with a developing sense of security, unable to take steps to advance his case. The arguments about the absence of a pre-arrest summons and the limitations of the investigation into the allegations made against the police about how the two statements from the Appellant’s friends were taken do not show that extradition would be oppressive. The former would be dealt with during the trial in so far as it bore upon the admissibility or weight to be attached to evidence. The latter is of some relevance to the question of the admissibility of the two statements, but admissibility lies at the heart of the point and is a matter for the court of trial, which that court is able fairly to decide. 

61.	There are disadvantages which have arisen during the period in question, although some would have arisen within a short space of time anyway, such as loss of CCTV footage of other clubs and receipts, in so far as the Appellant did not keep them.  He was aware very quickly that he was a suspect, and made a statement detailing his recollection of the evening, and sought legal advice. The absence of urine DNA tests on the victim’s trousers is not due to the passage of time, but to the manner of investigation. The Appellant would largely have been in the hands of the police, whatever the passage of time, for the investigation of leads which might show that others were responsible. A summons, if one were necessary, would not have resolved these points. The Appellant does have the advantage from the passage of time of the statements made by the prosecution witnesses to the South Wales police. The risks which his friends might face if they gave evidence in Greece which differed from their statements to the police appear largely dependant on the extent to which those statements are found to have been obtained by violence. This Court is entitled to assume in the absence of clear evidence to the contrary, in a Framework case, that that issue would be dealt with fairly by the court of trial.  There is no clear evidence to the contrary, even if there is some evidence that the Greek police do sometimes use methods which are forbidden to them under Greek law.  This may happen in all EU countries.  We also agree with what Mitting J said in Krzyzowski v The Circuit Court in Gliwice Poland [2007] EWHC 2754 (Admin): all Part 1 states are required to comply with Article 6 ECHR; it would undermine the whole purpose of the legislation for s 14 to be interpreted so as to require proof of the procedures and, we would add, presumably of their effective application as well, something not readily measured. 

62.	In reality, the problems faced by the Appellant are no greater than are commonly faced by many defendants charged with equally serious offences. The Courts of England and Wales are able to deal fairly with the effect of those problems. There is no proper basis for supposing that the Courts of Greece would not also be able fairly to deal with them.  We emphasise that this Court will require clear proof of the facts of any prejudice which is asserted; plausible assertions do not suffice.  It will also require a proper legal and evidential basis before concluding that there is a genuine and significant risk of unjustified perjury proceedings and that it is that which causes friendly witnesses to refuse to attend a trial to give truthful evidence.  Neither of those points was met here. 

63.	No doubt the extradition process could have been handled more swiftly, yet this is not the sort of period which normally leads to allegation of culpable delay. That is not the focus of the section anyway. But in so far as any part could have been dealt with more quickly, there is no evidence of any specific and serious problem which that caused for the Appellant in the preparation of his case.

64.	Accordingly we agree with the District Judge’s conclusions on this point. 

Human Rights

65.	There is no sound evidence that the Appellant is at a real risk of being subjected to treatment which would breach Article 3 ECHR, even if there is evidence that some police do sometimes inflict such treatment on those in detention.  Regrettably, that is a sometime feature of police behaviour in all EU countries.

66.	It would be very difficult to show that there was a real risk of a total denial of the Article 6 rights through extradition and trial by a member of the European Union, and a signatory to the ECHR. Such evidence as there is about the way the police may sometimes behave and about the investigation does not go close to this high hurdle. The Courts of Greece are required by law to exclude evidence obtained in the way it is alleged the statements of Mr Klitou and Mr Kyriacou were obtained, and it is to be assumed in a Framework case, that they will apply that law conscientiously. If the evidence is admitted, it will be have been found by the court of competent jurisdiction,  obliged to comply with Article 6, not to have been so obtained. It is not sensible then to ask whether there is a real risk that it might make an error in that decision; that might be thought a risk to which all Courts are prey. The Greek Courts, it is to be assumed in the absence of the most cogent contrary evidence, will appraise fairly arguments about the admissibility or weight to be given other statements if found by them to have been obtained by manipulation.  

67.	Article 8 rights to private and family life may commonly be engaged in the trial of a suspect, just as they would be if the assault had taken place in a night club in South Wales, and the Appellant faced trial there. It would take a very strong case for the interests which are mutually engaged in the extradition process under the Framework Decision to be set aside on Article 8 grounds. The only point of any substance is that the Appellant could be tried in England and Wales, where he lives, as do most of the witnesses and as does the victim’s family. There is clear jurisdiction to try him in England and Wales because the victim abroad was a UK national; s9 of the Offences against the Person Act 1861. The local police have expressed no interest, even contingently, in prosecuting the Appellant, whereas the Greek authorities do intend to pursue the matter if they can. The state where the assault took place has an obvious, prime and legitimate interest in the detection, trial and punishment of those who offend on its soil. There may also be for instance an array of particular interests,  perhaps public order  in particular places where the effects of drunken behaviour are felt, which justifiably animate its pursuit of someone who could be tried elsewhere, and which are to be respected within the extradition process.  

68.	There is nothing in the ECHR points.

69.	This appeal is accordingly dismissed.