QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE BLAIR
| (1) BENJAMIN HERDMAN, (2) CURTIS TAYLOR, (3) GEORGE HOLLANDS, (4) SEAN BRANTON, (5) DANIEL BELL
|- and -
|CITY OF WESTMINSTER MAGISTRATES' COURT
CROWN PROSECUTION SERVICE
THE DEPUTY PUBLIC PROSECUTOR, APPEAL COURT, CRETE, GREECE
Mr Hugo Keith QC and Ms Gemma Hobcraft (instructed by the Crown Prosecution Service) for the Interested Party (in the Judicial Review) and the Respondent (in the statutory appeals)
Hearing date: 9 June 2010
Crown Copyright ©
This is the Judgment of the Court, prepared by Mr Justice Blair:
The judicial review application
"Extradition proceedings should be pursued and heard expeditiously but I have considered carefully whether it is in the interests of justice to proceed today. I am not persuaded that the proceedings against all the Defendants should be adjourned because of Mr Bruckland's position. There is no certainty as to what date his domestic proceedings will conclude. Further and separate court time will need to be put aside for his case but that does not mean that the remaining Defendants should not be dealt with today. The other important consideration is whether the defence have had proper time to prepare for today's proceeding. The hearing has been listed for more that 6 weeks, having been fixed on 30 December 2009. The Defendants and their legal representative have been aware of these criminal proceedings since the Summer of 2009. I find therefore the defence has had ample time to prepare for this hearing."
"… Part 1 of the 2003 Act must be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA; OJ 2002 L190, p1). This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial cooperation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions."
As Lord Hope put it at , "The effect at which it aims is that of swift, speedy surrender". This has been emphasised in many cases, for example Mucelli v Albania  UKHL 2, Lord Neuberger at , Szombathely City Court v Fenyvesi  EWHC 231 (Admin),  4 All ER 324, Sir Anthony May P at . This does not of course admit of unfairness in what are, as has been pointed out for the appellants, very serious proceedings for the parties concerned. But we do not accept the suggestion that has been made in their evidence that the day fixed for the first full hearing may readily be adjourned. Any such suggestion is wrong, and both parties must be prepared for an effective hearing in the normal way.
The appeal under s. 26 Extradition Act 2003
(1) The District Judge erred in her finding that the appellants were accused persons, as opposed to being merely suspected of the allegations against them.
(2) The District Judge erred in her finding that the appellants' extradition was compatible with their human rights under the European Convention. Specifically, she incorrectly concluded that the Appellants' extradition was compatible with their:
a) Article 3 rights to freedom from inhumane and degrading treatment, notwithstanding prison conditions in Greece; and
b) Article 5 right to liberty, notwithstanding the prospect of their imprisonment for up to 18 months pending a decision to charge; and
c) Article 6 right to a fair trial.
(1) Documents relevant to the appellants' status (as suspects or accused), namely the statement of a Greek lawyer, Mr George Pyromallis, and the Greek case file;
(2) Documents relating to prison conditions, namely the statement of Mr Pyromallis, the statements of the family of Andrew Symeou, the statement of the appellants' solicitor, Ms Karen Todner, and various reports including the US Department of State Human Rights Reports for Greece and Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT); Andrew Symeou is a young UK national who was extradited last year to Greece in respect of an unrelated incident, following an unsuccessful appeal to this court.
(3) Documents addressing bail proceedings and the refusal of bail by the Greek courts (Article 5), namely the statement of Mr Pyromallis, the statements of the Symeou family, and documents pertaining to Andrew Symeou's application to the European Court of Human Rights with regards his continued detention.
(4) Witness statements of each appellant
(5) A witness statement of Wafa Shah of Fair Trials International relating to bail in Symeou's case.
(6) A letter dated 4 June 2010 from Mr John Kyriakides (the appellants' Greek lawyer who sent the email of 12 February 2010) to the appellants' solicitor, dealing with various matters including bail and prison conditions in Greece.
"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".
"(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.
(1) The section 2 point (accusation/suspicion)
"(1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal. (2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act. (3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified. (4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure. (5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant. (6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself. (7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
(2) Article 3 ECHR
"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."
" … the court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment … in the event of a person being removed from the territory of the respondent state by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof … before … finding that the enforcement of removal from the territory would be contrary to article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion."