England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2010

This is the Judgment of the Court, prepared by Mr Justice Blair:

1. The Deputy Public Prosecutor of the Appeal Court of Crete, a Greek Issuing Judicial Authority, seeks the extradition of six requested persons, namely the five claimants/appellants, Daniel Mark Bell, Sean Kevin Branton, George Oliver Hollands, Curtis Mathew Steven Taylor and Benjamin Peter Herdman, and one other, Joseph Peter Bruckland, all pursuant to European Arrest Warrants issued on 29 September 2009, and certified by the Serious Organised Crime Agency on 24th November 2009. As regards Bruckland, proceedings stand adjourned under s. 22 Extradition Act 2003, since he is facing a domestic criminal charge of assault occasioning actual bodily harm in the Hove Crown Court. As regards the others, extradition was ordered by District Judge Tubbs in the City of Westminster Magistrates' Court on 16 February 2010. The matter comes before this court, first, by way of an application for permission to apply for judicial review of the judge's decision refusing their application for an adjournment of the 16 February 2010 hearing, and second, by way of an appeal under s. 26 Extradition Act 2003. On 26 March 2010, Collins J ordered the proceedings to be heard together. The five people bringing the proceedings are claimants in the judicial review application, and appellants in the s. 26 appeal, and for convenience we will refer to them in this judgment as the appellants. The Crown Prosecution Service appears as interested party in the judicial review proceedings, and the Deputy Public Prosecutor of the Appeal Court of Crete is the respondent to the statutory appeal. Both have the same representation, and for convenience we shall refer to them in this judgment as the respondent.
2. Each of the European Arrest Warrants (EAWs) states that it relates to one offence of "jointly and intentionally commit[ting] severe physical injury", contrary to various articles of the Greek Penal Code. The offence is the European Framework List offence of "[attempted] murder, grievous bodily injury". The alleged conduct in respect of which the appellants' extradition is sought is detailed in section E ("Offences") of the warrants. In summary, it alleged that at approximately 5 a.m. on 17 June 2008, in the town of Malia, Heraklion, Crete, the appellants (together with Joseph Bruckland) intentionally and jointly hit the victim, another UK national called Robert Hughes, twice on the head using a glass bottle and then, after he had fallen down, kept on hitting and punching him, mostly on the head, until he was saved by some passers-by. The victim it is said suffered life threatening brain and facial injuries, requiring neurosurgery and a long period of rehabilitation. The precise nature of the appellants' cases varies, but in substance each of them denies any participation in the alleged incident, and maintains their innocence of the charge.
3. As noted, the alleged incident took place on 17 June 2008. What happened afterwards, in summary, is as follows. On 19 June 2008, the appellants made statements to the police, and thereafter returned to the UK. On 13 May 2009, summonses were issued for them to appear before the court in Crete on 17 June 2009. On 3 June, the appellants' solicitor wrote to the court in Heraklion asking for certain information. The appellants did not appear on 17 June, and after a number of chasing letters from their solicitors, on 28 September 2009 the court responded to the effect that it could not provide information sought without written authorisation from the appellants, and that if copies were desired of the witness statements, the appellants should appoint a lawyer who could do so.
4. The EAWs, as already indicated, were issued on 29 September 2009, but the appellants were not arrested until 4 December 2009. All the appellants appeared that day at the City of Westminster Magistrates' Court and were remanded in custody (though by 18 December 2009, they had all been granted bail). The matter was listed for hearing on 11 December 2009 with an expectation that it would not be effective on that date. For the purposes of that hearing, an outline argument had been prepared on behalf of the appellants dated 10 December 2010. As well as bail, it dealt with defences to extradition, raising an argument that the EAWs failed to satisfy the requirements of s. 2 Extradition Act 2003, because they failed to indicate whether the person sought was wanted because he was accused, or convicted, or wanted merely for interrogation. A brief intimation was also given of an argument based upon what was said to be a threatened breach of Art. 5(4) ECHR, it being stated that the appellants wished to investigate further. With that in mind, on 23 December 2009, the appellants' solicitors applied to the Legal Services Commission for prior authority for the preparation of an expert report on Greek law.
5. On 23 December 2009, the appellants' solicitors also wrote again to the issuing judicial authority. On 28 December 2009, the Appeals Prosecutor of Crete wrote to Eurojust to the effect that criminal prosecution had been instituted against the appellants (and Bruckland), that they had not been convicted in their absence, and that the Heraklion court of first instance had competence. (This letter was not copied to the appellants' solicitors by the CPS until 2 February 2010.)
6. The appellants' skeleton argument explains that on 30 December 2009, the case was listed for mention, and an effective hearing date of 16 February 2010 was fixed (it was fixed for half a day). At the hearing, concerns were raised by appellants' representatives regarding their ability to be ready for an effective hearing on 16 February. Accordingly, the skeleton argument explains that it was clarified that the fixture was subject to any application by the defence, if granted, notice of which was to be given as far in advance of the hearing as possible. The next entry in the appellants' chronology prepared for this appeal is on 18 January 2010, when the Legal Services Commission granted authority for an expert report on Greek law, as requested on 23 December 2009.
7. On 4 February 2010, the appellants' solicitors wrote to the City of Westminster Magistrates' Court requesting an adjournment of the hearing listed for 16 January 2010. That day, the CPS responded objecting to the application on the basis that the defence solicitors had known since the summonses to attend the court in Greece the previous summer that they would require the services of a Greek lawyer. In respect of the questions raised by the defence, it stated that these had been forwarded to the Greek authorities, but "I do not need to remind you that Greek authorities are under no obligation to respond. Further, the Greek authorities are entitled to rely on the contents of the European Arrest Warrants alone". By letter of 9 February 2010, the Court of First Instance of Heraklion wrote to the Public Prosecutor of the Court of Appeals of Crete to the effect that it was not "advisable" to answer the appellants' solicitors' letter of 23 December 2009, because the answers to the questions "ensue from the documents of the case file which have been made available to the advocate of the accused persons and to the Crown Prosecution Service".
8. On 12 February 2010, the Greek lawyer (Mr John Kyriakides) who had been instructed by the appellants to provide an opinion pursuant to the Legal Services Commission authority given on 18 January 2010 emailed the appellants' solicitors to the effect that he now had part of the file, and especially the part concerning the issue under investigation. Mr Kyriakides said that the "EAW was indeed legally issued within the framework of the [conduct] of the Ordinary Investigation". He confirmed the contents of an earlier email in that regard. He set out the procedure that would follow extradition, in particular as regards bail. Such measures, he says, would be "valid for a maximum period of 18 months during which period it is expected that they will be sent to trial (some or all of them)". He said that he believed that "this completes our mandate". (This email was shown to the respondent and to the court at the hearing on 16 February 2010, and we have been provided with a copy.)
9. On 15 February 2010, the defence filed a note referring to some of the above matters, and stating that, "Not all the information in the court file has yet been made available. It appears that if the defendants are extradited, they may be liable to spend up to 18 months either in custody or on bail, or a combination of both, pending a decision whether to send them, or some of them to trial. It is expected that the remaining information from the file will be made available to the Greek lawyer instructed by the defence in the next ten days. Accordingly, an adjournment of a few weeks will be requested, to allow for service of this evidence, to allow for a reply by the investigating magistrate, and for any evidence in rebuttal to be served by the CPS". A note in response was filed on behalf of the respondent dated 15 February 2010 to the effect that any suggestion that the judicial authority was obliged to answer any questions posed by the defence was misconceived, and that the court should proceed to the full extradition hearing as scheduled.
10. That was how matters stood on 16 February 2010. The case came on for hearing before District Judge Tubbs on that day, and the appellants applied for an adjournment. Following submissions from both sides, and sight of the email of 12 February 2010, the District Judge refused the application, and the hearing proceeded. The defence did not present any evidence. The District Judge concluded that their extradition would be compliant with their convention rights within the meaning of the Human Rights Act 1998, and ordered their extradition to Greece. On 20 February 2010, the appellants lodged their appeal notice and grounds of appeal. This was followed on 17 March 2010 by an application for judicial review of the refusal to adjourn the proceedings.
11. Following the appeal, the appellants have produced a considerable body of evidence which was not before the judge. It was mainly produced either shortly before, or at the outset of the hearing before this court. The admissibility of this material will be addressed later in this judgment. For the present it is sufficient to say that the appellants' case is that they were not allowed a proper opportunity at their extradition hearing of advancing a proper defence to these proceedings, and are facing intolerable, disgusting and unacceptable conditions in prison, as foreign suspects not as accused, for months or years before a judgment is made on their conduct. In broad terms, the issues raised therefore are (1) whether the appellants are entitled to judicial review in respect of the decision to refuse them an adjournment, and (2) whether the District Judge erred in her finding that the appellants were accused persons, as opposed to being merely suspected of the allegations against them, and erred in her finding that their extradition was compatible with their ECHR rights.

The judicial review application

12. In refusing the adjournment, the District Judge said that the grounds upon which an adjournment was sought were set out in the appellants' note of 15 February 2010. It had also been argued before her that the proceedings should be adjourned so that there would not have to be a further separate extradition court hearing in relation to Joseph Bruckland at the conclusion of his criminal trial in the domestic courts. She stated as follows:

"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."

13. In their submissions in support of the application, the appellants rely on what they characterise as the slow and unexplained pace of events between the date of the alleged crime and the arrests in December 2009. The investigating magistrate did not answer letters written by the appellants' solicitor after the summons were received in May 2009 until just before the warrants were issued. Nine weeks elapsed between the issue of the arrest warrants and the appellants' arrests. The time between the arrests and extradition hearing, including the issues raised by the initial remands in custody, and the interruption of the Christmas break, was under eleven weeks. The extradition hearing was held less than a month after prior authority was granted for an expert. Where there is an out of jurisdiction expert whose enquiries depend upon information from third parties, it is contended that it is irrational and unreasonable to suggest that the report could or should have been secured in time for the hearing. The fact that the appellants had been aware of the proceedings in Greece since they received summonses in May 2009 is, it is submitted, an irrelevant consideration, because until they were arrested on the warrants, they could not have been expected to commence building a case in order to resist their extradition, and funding from the Legal Services Commission would not have been available before proceedings commenced. Finally, reliance is placed on a statement of 17 March 2010 of the appellants' solicitor to the effect that in her experience, it is highly unusual for a court to refuse an adjournment in a case such as this particularly for a first listed full hearing. In the circumstances, it is contended that the District Judge acted irrationally and unfairly in refusing the appellants' application to adjourn.
14. The respondent has relied on the importance of speedy resolution of extradition proceedings. The requesting authority is not obligated to add information to that contained in the European Arrest Warrant, it is submitted, and indeed the evidence of the appellants' Greek lawyer is to the effect that letters of the kind sent by the appellants' solicitor are not common practice in criminal proceedings in Greece. The response from the Greek authorities was, it is submitted, consonant with the scheme of the European Framework Decision (Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states). The terms of the email of 12 February 2010 from the appellants' Greek lawyer show that he had been asked to consider the position as regards bail with a view to an Article 5 argument, and that no effort was made prior to the hearing to develop any wider human rights arguments. A great deal of the evidence now relied on (see below) could have been produced at the hearing before the District Judge, including material from the US Department of State and reports to the Government of Greece by the CPT, all of which is readily available on the internet. There was nothing irrational, it is submitted, about the judge's refusal to grant an adjournment, there was no real prejudice suffered by the appellants, and no reason to override her disposition on the basis that new material might give rise to claims of a speculative nature.
15. We express our conclusions as follows. It is not in dispute that, in principle, the judge's refusal to adjourn was susceptible to challenge by way of judicial review, subject to the usual caveat that the question of adjournment is a matter within the discretion for the court in question, and is not likely to be interfered with by an appellate court (e.g. Crown Prosecution Service v Picton [2006] EWHC 1108 summarising earlier authority). A significant consideration in this regard is that the European arrest warrant scheme is designed to facilitate expeditious extradition, as explained by Lord Bingham in Dabas v High Court of Justice in Madrid [2007] 2 AC 31 at [4]:

"… 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 [42], "The effect at which it aims is that of swift, speedy surrender". This has been emphasised in many cases, for example Mucelli v Albania [2009] UKHL 2, Lord Neuberger at [66], Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324, Sir Anthony May P at [29]. 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.

16. With that in mind, we set out our conclusions as regards the hearing on 16 February 2010. It was argued before the District Judge that she should adjourn pending Mr Bruckland's trial in the Crown Court. This was not argued before us, and it is no longer in dispute that she was right to proceed with the case of the appellants albeit a further hearing would be required to deal with Mr Bruckland's case. Mr Alun Jones QC also made it clear on behalf of the appellants that he was not suggesting that the District Judge should have adjourned to enable further consideration on the issue as to whether the warrants were for the purpose of prosecution, as opposed to investigation. His submission is that the refusal to adjourn was irrational because the appellants reasonably required a report from a Greek lawyer, and there had not been time to obtain it.
17. It is right to say that there is no dispute that the appellants did reasonably require a report from a Greek lawyer. They obtained authority from the Legal Services Commission to obtain such evidence on 18 January 2010, and a Greek lawyer (Mr John Kyriakides) was duly retained. The appellants' skeleton argument explains that he was instructed to make inquiries as to an anticipated point on whether the appellants were accused or merely suspected. It is explained that in light of the preliminary enquiries he made, the appellants had been made aware of potential breaches of Article 5 by reason of long pre-charge detention. The respondent's response on this point is that the question of bail appears already to have emerged given the reference to "a threatened breach of Article 5 (4)" contained in the appellants' outline argument dated 10 December 2009. In any event, Mr Kyriakides reported to the appellants' solicitors by email of 12 February 2010. In it, Mr Kyriakides said among other things that he now had part of the file, and especially the part concerning the issue under investigation. He said that the European Arrest Warrant was legally issued, and set out the procedure that would follow extradition, in particular as regards bail. Such measures, he says, would be valid for a maximum period of 18 months during which it was expected that the appellants would be sent to trial (some or all of them). The appellants say that these preliminary observations raised serious issues which had to be fully explored. The respondent points however to his conclusion, which is that, "I believe that this completes our mandate. Should our firm's services be required for the next steps in the above described procedure, let me know, and I shall send you our financial proposal". Mr Kyriakides did not address the further arguments under Articles 3 and 6 ECHR that have been raised before us. However these issues were not raised before the District Judge, and the correctness of her decision on whether or not to adjourn must depend on the case as it was presented to her, and not on the extended ambit of further points taken on appeal.
18. Reliance has been placed on Olah v Regional Court in Plzen, Czech Republic [2008] EWHC 2701 (Admin), a claim for judicial review in which Moses LJ, with whom Blake J agreed, stated at [8]: "Section 34 of the 2003 Act does not oust the court's jurisdiction by way of judicial review". This, as we have mentioned, is common ground. In that case, the court quashed a refusal to grant an adjournment (which had not been opposed by the requesting state), and remitted the case to the judge. But the timeframe in Olah had been extremely short, the date of arrest being 21 May 2008, with the initial hearing on 22 May 2008, and the extradition hearing listed for 3 June 2008. There were issues as to the defendant's psychiatric state, which his counsel had not had time to appraise. The facts of Olah bear no relation to the facts of the present case. The question—and the only question that remains in issue on this judicial review application—is whether the judge should have adjourned the hearing to enable the defence to obtain further evidence from the Greek lawyer as regards the bail Article 5 issue. There was in our view no reason to adjourn on this basis, and as set out below, even with the lapse of some months between the hearing at first instance and the hearing of the appeal, the appellants have been unable to produce any evidence from their Greek lawyer or otherwise that gives rise to an arguable bar to extradition on Article 5 grounds. As the District Judge noted, the hearing had been listed for more than six weeks, and she was perfectly entitled to find that the defence had had ample time to prepare for it. Her decision to refuse an adjournment was not irrational, and indeed we consider it to have been correct. In those circumstances, permission to bring these proceedings for judicial review is refused.

The appeal under s. 26 Extradition Act 2003

19. The Grounds of Appeal dated 18 February 2010 are that:

(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.

20. We will have to clarify what findings the judge was asked to make and did in fact make, but at this stage it is sufficient to set out the grounds as above. It is stated in the grounds that the adjournment having been refused, the appellants were not in a position to present any evidence in support of the arguments already expressed in their written statement of issues. It is contended that they should be permitted to rely upon the fresh evidence adduced on the basis that it was not available at the extradition hearing (Extradition Act 2003, section 27(4)). On this basis, there is a considerable body of such evidence adduced on the appeal broadly consisting of the following:

(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.

21. The witness statement referred to from Ms Karen Todner is a further witness statement handed in at the outset of the appeal which explains the various steps taken to obtain the evidence, and the difficulties encountered in that regard. Collins J had ordered on 26 March 2010 that any translations of the Greek court file and any written advice from a Greek lawyer be served no later than 6 weeks after the date of the Order (i.e. by 7 May 2010), but we are told that a large volume of additional material was served by the appellants on the respondent on 28 May 2010.
22. The principles that govern the admission of fresh evidence on an extradition appeal were recently set out in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324. In that case, the issue was whether the court should admit fresh evidence sought to be tendered on appeal by the judicial authorities in question. Sir Anthony May P (sitting with Silber J) stated the underlying principle as follows:

"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".

23. Fenyvesi being an appeal against discharge at the extradition hearing, the relevant conditions as regards fresh evidence were contained in s. 29(4) Extradition Act, which are substantially to the same effect as the provisions in s. 27(4) that govern the present appeal and are as follows:

"(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.

24. Evidence which was "not available at the extradition hearing", it was held, 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 (see at [32]). In the result, the court dismissed the judicial authorities' appeal. As regards appeals by defendants, such as in the present case, the court said (at [33] – [36]) that there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, which a strict application of the section would not permit (see Latham LJ in Miklis v Lithuania [2006] EWHC 1032 (Admin) at [3]). However 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, and the fresh evidence must be decisive.
25. In the present case, effectively all the evidence is sought to be adduced on appeal. The appellants chose not to adduce evidence after their application for an adjournment was refused. A similar point arises as regards the issues which the appellants argue on the appeal. The Grounds of Appeal state that the District Judge concluded that the appellants' extradition would be compliant with their convention rights within the meaning of the Human Rights Act 1998. That is correct, but it is wrong to state (as the Grounds of Appeal go on to state) that she "incorrectly concluded" that their extradition was compatible with their rights under Articles 3, 5 and 6. She reached no such conclusion because, as the respondent points out, the only issues that were raised before her were a section 2 argument (raised in writing but not pursued orally) and (as part of the adjournment application) an expressed wish to raise an Article 5 argument. No indication was given that there would also be further arguments under Article 3 and Article 6 as have been advanced on this appeal. So there are two objections taken on this appeal, first as to the evidence, and second as to the arguments which the appellants should be permitted to raise.
26. In the latter regard, the appellants rely on Hoholm v The Government of Norway [2009] EWHC 1513 (Admin), where at [40] Stanley Burnton LJ (with whom Wilkie J agreed) said that "where an issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, he is in general, if not always, entitled to raise that issue on appeal to this Court, even though the issue was not raised at that hearing". A different view was taken in Khan v United States of America [2010] EWHC 1127 (Admin), where at [43] Griffith-Williams J said that, "The parties cannot return to court to advance arguments they could have put forward at first instance but chose not to do so". Agreeing at [54], Thomas LJ says that, "It is important that all the issues are raised and all the evidence called before the District Judge at the extradition hearing. It was the intention of Parliament that the process be expeditious; such expedition cannot be achieved without all the evidence being called as well as all the issues being raised at that hearing". In fact, the Hoholm reasoning is not open to the appellants in the present case in any event, since the Article 3 and 6 issues are not available to be raised by them on the evidence adduced at the extradition hearing, for the simple reason that there was none. In practice, in this case, the new issues and the fresh evidence go together.
27. The liberty of the appellants is at stake in these extradition proceedings, as they and their families are well aware, and the facts are unusual, in that (albeit wrongly as we have held), the appellants chose to put in no evidence before the District Judge, and to challenge the refusal of the adjournment instead. We have carefully considered all the evidence that we were asked to consider in the submissions made to us by Mr Alun Jones QC on their behalf, as well as by Mr Hugo Keith QC for the respondent. Both parties were content that the effect of the new evidence, if admissible, should be decided on the basis of the written material. We have also considered all of the issues which the appellants seek to argue on the appeal. We will accordingly deal with questions of admissibility along with our conclusions on such issues. These were as follows.

(1) The section 2 point (accusation/suspicion)

28. Section 2 of the Extradition Act 2003 Act, so far as material, provides that a Part 1 warrant is one which contains a statement that (a) the person in respect of whom the warrant is issued is accused in the relevant territory (here Greece) of the commission of an offence specified in the warrant, and (b) the warrant is issued with a view to his arrest and extradition to the territory for the purpose of being prosecuted for the offence. Further sub-sections provide for warrants issued in respect of persons alleged to be unlawfully at large after conviction of an offence.
29. The District Judge said that the Judicial Authority had covered s.2 in some detail both in written and oral argument in answer to issues raised in the defence written submissions. She records that the defence made no oral submissions in relation to s.2 before her at the hearing. In the event, she found that the warrants clearly set out that the appellants are wanted for the purpose of prosecution, are compliant with the requirements of s.2 of the Act, and are valid Part 1 warrants.
30. It is contended for the appellants that, considering the case as a whole, it is clear that their return is sought in order to investigate the allegations against them rather than to prosecute one or all of them for the offence. The case does not, it is submitted, get past the stage of suspicion against any of appellants, and it is, accordingly, likely that they will be detained in disgusting prison conditions even before a decision is made as to whether they will be charged.
31. The correct approach in such cases has been set out following a review of the earlier authorities in Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) by Aikens LJ (sitting with Openshaw J) who said at [38]:

"(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."

32. It is clear therefore that in determining whether a person is accused of an offence, as opposed to only being under suspicion or investigation, regard is had to the terms of the warrant. The warrants in this case use the phrases that are used in the English language version of the EAW annexed to the Framework Decision (it has not been suggested otherwise). Applying Asztaslos, there is accordingly no (or very little scope) for argument on the purpose of the warrant. In the present case, it is in our judgment clear (as has been submitted on behalf of the respondent) that the warrant indicates unequivocally that it is for the purpose of the requested persons being prosecuted for the offence identified. Among other places, this appears from the description of the circumstances in which the alleged offence was committed, which is set out in section E of each of the warrants. This alleges that the appellants (together with Bruckland) intentionally and jointly hit Robert Hughes on the head using a glass bottle. Mr Kyriakides' letter of 4 June 2010 produced by the appellants for the appeal hearing appears to support this view, stating that the case now stands at the stage of the Ordinary Investigation, which takes place in Greece only after the Public Prosecutor presses charges against someone for a specific offence. There are obviously differences of procedure in this jurisdiction and in Greece, hence the importance of the "cosmopolitan" approach referred to in Asztaslos and the earlier case law. In particular, the fact that some further pre-trial evidential investigation in Greece could result in no trial taking place in respect of one or more of the appellants does not mean that they are suspected as opposed to being accused for these purposes. In our view, the conclusions of the District Judge on the s. 2 point were correct.

(2) Article 3 ECHR

33. The weight of the argument of Mr Jones QC was directed to Article 3 (which as already indicated, was not raised before the District Judge). It was submitted that it is apparent from the material provided by the Symeou family, Mr Piromallis and the various international agencies (in particular the US Department of State Reports) that prison conditions in Greece are so poor as to breach prisoners' human rights. This breach is founded upon the overcrowding, the general hygiene and conditions, the humiliating toilet facilities and the inability of the authorities to protect individuals from violence and abuse perpetrated by non-state agents. It is submitted that to extradite the appellants to these sorts of prison conditions would be to expose them to, not just a real risk of inhumane and degrading treatment, but to the overwhelming probability of it.
34. The appellants rely on a legal opinion of Mr Symeou's Greek lawyer, Mr Georgios D. Pyromallis, of 25 May 2010 (it is misdated 15.10.10). He describes conditions of detention in Korydallos prison in Athens, which is, he says, the only penitentiary for pre-trial detainees, and where the appellants will be detained if bail is refused. He says that the prison is often described as a human warehouse and a seed bed of crime, where the conditions of detention are terrible. It is grossly overcrowded, and majority of prisoners are foreigners incarcerated for drug related crimes. The cells are small (about 6-12 m²⁾, and dirty, cockroaches and mice wander about, and inmates are not provided with items such as toothpaste and soap. Healthcare is deficient, and frequently inmates have to be transferred to civilian hospitals. There are no educational facilities, and no gym, and there have been, he says, numerous incidence of violence, sometimes with the collusion of the staff, and sexual harassments and even rapes occur. Gang violence means that living in jail is a continuous danger. Conditions are even worse as regards non-Greek speaking prisoners, since instructions, signage, documents, et cetera are provided only in the Greek language. In her most recent witness statement (it is not signed or dated) Ms Todner describes attending the prison with Mr Pyromallis on 12 May 2010, and she says that she became quite upset listening to Mr Symeou speak.
35. Mrs Helen Symeou is Andrew Symeou's mother, and describes how following a holiday of her son Andrew in the summer of 2007 in Xante, Greece, he was arrested in June 2008 in connection with the death of Jonathan Hiles. We were taken to her statement as regards Mr Symeou's removal to Greece, and the conditions in which he faced the initial court proceedings in Xante (she describes her son as absolutely terrified). The cells in Xante, she says, looked like something out of the Wild West, without bedding, filthy dirty, and stifling hot, and the people in the next cell were all Albanian immigrants. Her son was bitten by fleas from the blankets provided. At that point, she says that the family believed that bail was likely, since her uncle has an apartment in Athens which he offered as accommodation pending trial. When bail was refused, her son went into complete shock and collapsed. He was taken to Patras where the conditions were similar to those in Xante. Then he was transferred to the under 21's prison in Avalona, where he was in a cell with three others, and the toilet consisted of a hole in the corner of the room. He was there for four months until he turned 21, when he was transferred to Korydallos prison in Athens. There were gangs of Albanians and Arabs fighting over drugs deals there, and he was put in the Gamma wing, which is very dirty, with rats, cats and cockroaches, and no proper showers. There were severe riots while he was there. As a result of Mrs Symeou's complaints, she says that her son was moved to Alpha block which is for people accused of economic crime. He was kept in a cell with four others, who were heroin addicts, and a hole in the corner of the cell was the toilet. He is on medication, and there is no gym, and the potential for exercise is severely limited.
36. Her son's statement deals with the conditions of his incarceration, initially in Avalona prison, and later in Korydallos prison in Athens. He describes conditions in Korydallos as truly terrible, with overcrowded cells and no privacy. Although it had not happened to him, when he was in the Gamma wing he heard screams of a man being raped. The riots were between Albanians and Africans, and were about drugs, and were incredibly violent. There are very few English people in the prison. The shower room is awful, because people do not want to go to the toilet in their cells, so the floor of the shower room is covered in excrement. Every instruction is in Greek, and his position has been very difficult to understand. There are mice and cockroaches in Gamma wing, and Alpha is slightly better, but there are still mice. He was not offered any education in Korydallos. The window is about 2 foot by 3 foot, and the cell is boiling hot in the summer, and he can only describe prison conditions as terrible. He believes he is subject to a miscarriage of justice, and the only reason he was not given bail is that he was not from Greece. Though these statements (and that of Andrew Symeou's father) are undated and unsigned, Ms Todner's witness statement is to the effect that they have now been amended by hand and signed.
37. This evidence, it is submitted, is consistent with the third party material case before the court on the appeal. A 2009 Human Rights Report on Greece issued by the US Department of State on March 11, 2010 deals with prison and detention centre conditions, stating that they do not meet international standard. Observers noted that facilities (that is detention facilities) were seriously overcrowded, degrading, inhuman and unsanitary. So far as prison is concerned, Korydallos is not specifically mentioned, though it is stated that poor prison conditions led to multiple prison protests during the year. The Ministry of Justice reported that, as of June, the total prison population was 11,328 (a decrease of 470 from September 2008), while the official capacity of the prison system was 7,543. After the November 2008 18-day hunger strike of an estimated 8,000 inmates protesting overcrowding, the Ministry of Justice announced the early release of up to 5,500 prisoners and new measures for improving prison conditions. The early releases began in December 2008, but fewer than 1,000 prisoners had been released as of September. In October the new minister ordered the release of 1,200 illegal immigrants held in detention centres. The facilities for detained immigrants have led to a ruling against the Greek government by the ECHR.
38. As regards arrest procedures and treatment while in detention, the report states that the law requires judicial warrants for arrests, except when they are made during the commission of a crime, and prohibits arbitrary arrest orders. In practice, police did not always follow these provisions. Police are required to bring persons who are detained before an examining magistrate within 24 hours. The magistrate has a maximum of 24 hours to issue a detention warrant or order the detainee's release. Pre-trial detention may last up to 18 months, depending on the severity of the crime. A panel of judges may release detainees pending trial. Pre-trial detainees made up approximately 30 percent of those incarcerated and contributed to prison overcrowding, according to figures provided by the Ministry of Justice. Some defence lawyers and legal activists asserted that pre-trial detention was supposed to be reserved for exceptional cases but that it had become the norm. They also asserted that the detention period was excessively long. Bail is available for defendants detained on felony charges unless a judicial officer determines that the defendant is a flight risk. The law provides detainees the right to contact a close relative or third party, access a lawyer, and access medical services. In felony cases, the bar association provides lawyers to indigent defendants. While detainees were generally informed promptly of charges against them, foreign detainees sometimes did not have access to a court-appointed interpreter. Many detained persons complained that they were not informed of their rights in a language they could understand. The CPT reported in June that it continued to receive complaints from detainees who had been denied contact with a close relative, lawyer, or doctor. This report was published after the hearing on 16 February 2010, but an earlier report was available as of February 25, 2009. These submissions to us focused on the later report, as providing the most current appraisal.
39. A report to the Government of Greece on the visit to Greece carried out by the CPT from 23 to 29 September 2008 was published by the Council of Europe on 30 June 2009. As regards to ill-treatment, it states that the CPT's delegation received a considerable number of allegations of ill treatment of persons held by law enforcement officials under suspicion of having committed a criminal offence. The alleged ill-treatment consisted mostly of kicks, punches and blows with batons, often inflicted during questioning though more serious incidents had been reported. As the CPT states, the credibility of the prohibition of torture and ill treatment is undermined each time officials responsible for such acts are not held to account. The CPT called upon the Greek authorities to take immediate steps to ensure that all persons deprived of their liberty by enforcement officials have an effective right to notify a close relative or third party of their situation, and to have access to a lawyer, and are informed about these rights in an appropriate language, as from the very outset of their deprivation of liberty. The report contains considerable detail as regards to the treatment of irregular migrants who are detained. It does not deal with Korydallos prison, which does not appear to have been visited on this occasion.
40. Again, our attention has been drawn in particular to this report as providing the most current appraisal, rather than an earlier 8 February 2008 report as regards a visit by the CPT from 20 to 27 February 2007. However, we have read this report too, and note that the CPT recommended that the Greek authorities deliver the clear message to staff at Korydallos that physical ill-treatment of prisoners is not acceptable and will be the subject of severe sanctions. It is reported that material conditions in Korydallos remained largely the same as those observed in 2005. The overcrowding remained very high, with a population of 2,043 at the time of the visit for an official capacity of 640. It is reported that the measures outlined in the Greek authorities' response as regards this issue refer generally to the ongoing prison-building programme, to regulations on extending alternatives to imprisonment and on conditional release, and to a better use of existing prison capacity. However, no specific information or timetable was provided on how the conditions in Korydallos or any other prison visited in 2005 would be improved. There has been no noticeable development in the intervening period, three or even four prisoners placed in cells originally designed for single occupancy. The CPT recommended that the Greek authorities take concrete steps to reduce the overcrowding in Korydallos and to improve the material conditions. In the course of the 2007 visit, the delegation heard the same complaints about the lack of purposeful activities as those made during the 2005 visit. Reference is also made to Korydallos prison in a Human Rights Watch letter, but this is dated April 23, 2001, and the research is now nearly ten years old, and reliance was not placed on it in argument.
41. Reference should also be made to the letter of 4 June 2010 from Mr Kyriakides, the appellants' Greek lawyer. He draws attention to the fact that the separation of young offenders from adult inmates has never been implemented. The living conditions in Greek prisons, he says, are far from perfect. The rapid increase in inmates, the fact that a vigorous programme of constructing new (and for that matter better equipped) prisons has only been implemented in the last few years, the lack of even the minimum prescribed number of penitentiary staff and a coherent legislative framework are, he says, some of the reasons why the Greek prison system is overcrowded and operates in an unsatisfactory manner.
42. That is in summary the evidence. The high threshold required to establish 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 stated by Lord Bingham in R v Special Adjudicator ex parte Ullah [2004] 2 AC 323 at [24], where 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."

43. This is not affected by the difference of judicial opinion in R (Wellington) v Secretary of State for the Home Department [2009] 1 AC 335 as to the desirability of extradition as a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the level of severity necessary to amount to a violation of article 3. At [87], Lord Brown (who was in the minority on this issue) makes it clear that the risk of article 3 ill-treatment, the necessary precondition of an article 3 bar upon extradition, will not be readily be established. In this regard, he cited paragraph 87 of the Grand Chamber's judgment in Saadi v Italy (2008) 24 BHRC 123 as follows:

" … 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."

44. With that in mind, we express our conclusions on the evidence as follows. There is no doubt that what is said as to conditions in Korydallos prison is disturbing, particularly in the statement from Mrs Symeou. She goes into a considerable amount of detail as to day to day life in that prison, and the previous places in which her son had been held, describing the conditions in which he is held as "absolutely inhumane". Although it can fairly be said, as the respondent does say, that the report from Mr Pyromallis addresses the conditions of detention in Korydallos prison "in broad brush terms", Ms Todner explains that she personally went with Mr Pyromallis to the prison, and spent time with Andrew Symeou on her own. She describes his account of conditions as very distressing. Further, the evidence receives a degree of support from the letter from Mr Kyriakides (the appellants' Greek lawyer) dated 4 June 2010, who describes living conditions in Greek prisons as "far from perfect", and from the third party evidence.
45. On this appeal we are however concerned with the position of the appellants rather than that of Mr Symeou and, so far as personal vulnerabilities do not arise, with whether systemic human rights violations are made out (Miklis v The Deputy Prosecutor General of Lithuania [2006] EWHC 1032 at [11], Latham LJ). The appellants' position differs from Mr Symeou's in various respects. Unlike him, they are all over 21, and will presumably not on that basis be sent to the young persons' institution Avalon, where he spent a considerable time (a substantial part of his statement and that of his mother is concerned with conditions before he arrived at Korydallos). It may also be of some relevance to note that, as Wafa Shah explains, the application submitted to the European Court of Human Rights on his behalf asserts breaches under Articles 5, 6 and 14 of the ECHR, but not Article 3. In fact, an Article 3 case was rejected by this court in Andrew Symeou's case (Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece [2009] 1 WLR 2384 at [65]), though this of course was prior to the accounts of his experience following extradition. There are other points to take account of as well. With regard to the specific difficulties for non-Greek speaking prisoners that have been highlighted in the evidence, with signage and instructions solely available in the Greek language, we accept that this must add significantly to the difficulties that such prisoners have. The same unfortunately must be true of non-English speaking prisoners extradited to this country. As regards the third party reports from the US Department of State and the CPT, these clearly indicate very considerable difficulties in relation to overcrowding and conditions generally. But we consider that the respondent is correct to say that they also indicate measures that have been taken to address such issues, including early release mechanisms. In particular, in terms of potential Article 3 mistreatment—in other words the facts that are relevant to the present issue—the current reports mainly relied on in argument before us are focused on immigration detention centres and police holding cells, rather than on prisons. Finally, despite the submissions to the contrary that have been made on their behalf, it is not certain that the appellants will be denied bail. They face a different (albeit serious) charge from that faced by Andrew Symeou, who faces a charge equivalent to that of manslaughter.
46. In the light of those considerations, we come to consider whether the evidence on which the Article 3 submission is based is admissible on this appeal. As regards availability at the extradition hearing, some of it, such as the State Department reports, plainly was available. Evidence from the appellants' lawyer was also available, and not produced because he was not asked to address Article 3. Evidence relating to Mr Symeou's case is not so straightforward, since he was represented by different lawyers, and as a matter of fact, his case appears to have come to the attention of the appellants' lawyers only after the extradition hearing. However available or not, the evidence is only admissible if it would have been decisive, in the sense that having got it, the judge would have decided the case differently: see Fenyvesi above. In our judgment, taken individually or as a whole, it would not have been decisive. Having considered the evidence, we are of the view that it falls a long way short of the high threshold necessary to establish an Article 3 bar to extradition. Disturbing and deplorable though the accounts of the prison conditions we have seen are, they do not show strong grounds for believing that these appellants, if returned to Greece, face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. Even if the evidence had been available at the hearing, the result in our judgment would have been the same. It follows that it is inadmissible, and that the appeal on this ground fails.

Article 5

47. The appellants contend that in light of the treatment of Andrew Symeou and the evidence of Mr Piromallis it is apparent that the appellants face a very real risk of flagrant breaches of their Article 5 rights. In particular, it seems inevitable, it is submitted, that they will be refused bail on the discriminatory basis that they are not Greek nationals, whether or not their families are able to secure fixed addresses within the Greek jurisdiction. Further, they will not be entitled to a prompt, fair and open bail application or to any meaningful appeal if and when bail is refused. In this way extradition will lead to a flagrant denial of Article 5 rights. It is submitted that the possibility that these appellants will be detained for months or years, without formal charge, and without bail, in unacceptable prison conditions is repugnant to the spirit of co-operation underlying the European arrest warrants system.
48. The respondent contends that there is nothing to suggest that the appellants will not have access to the opportunity to apply for bail. The determination of bail is a matter for the competent court in the relevant jurisdiction. There can be no guarantees as to bail; it depends on the circumstances of the alleged offence and the alleged offender. Simply because Mr Symeou was denied bail does not mean that these appellants will therefore automatically be denied bail. They have some characteristics in common—Mr Symeou and the appellants are all young British men, who are alleged to have become involved in a violent offence whilst on holiday with friends some time back. However, they have been charged with different offences (Mr Symeou with manslaughter and the appellants with inflicting severe physical injury), and—which may be relevant to any consideration of bail—the appellants failed to attend following their summonses last summer (Mr Symeou was never summonsed). Reliance on Mr Symeou's bail refusal, it is submitted, does not begin to demonstrate to any standard, let alone the heightened standard required in these proceedings, that these appellants will be deprived of their liberty in such a way as to violate their Article 5 rights.
49. In rejecting the ECHR arguments, the District Judge recorded that the appellants had indicated that they would have wished to prepare and raise matters under Article 5 if an adjournment had been granted. Again, evidence has now been put in on the appeal in this regard. We have referred to some of it above. In this court, the main point made on the appellants' behalf is that Andrew Symeou was, it is contended, wrongly deprived of bail on the grounds solely or mainly of his nationality. There is, it was submitted, a strong probability that the appellants would be treated the same way. Reference has been made to the application on Symeou's behalf on Article 5 grounds to the European Court of Human Rights dated 14 December 2009. The application, we were told, is still pending.
50. The position on the evidence as regards Andrew Symeou is as follows. He was initially refused bail by the Zakynthos Magistrate, and on 9 August 2009, the Public Prosecutor made submissions to the effect that he should continue to be held in custody. These submissions had to do with the seriousness of the offence alleged against him, and likelihood that he would abscond if freed. On 14 September 2009, his appeal was refused. On 18 January 2010, following a hearing at which (according to the translation that we have seen) he was represented by Mr Pyromallis, the Zakynthos Council of Judges ordered his continued detention on grounds to do in particular with the seriousness of the alleged offence. His case came up for trial on 4 June 2010, but we are told that it was adjourned because of non-attendance of witnesses. He was then granted bail on conditions and subject to sureties.
51. Our conclusion as regards Article 5 is as follows. The general arrangements in Greece as to the grant of bail are ECHR compliant. This is conceded by Mr Alun Jones QC. It is also reflected in the evidence of Mr Pyromallis. There are judicial mechanisms in place that enable the refusal of bail to be reviewed, and the evidence of Mr Kyriakides is to the effect that there are no limits to the number of appeals that a defendant is entitled to file. If the Greek courts treat the non-residence of defendants as a material consideration, the same applies in the case of foreign nationals facing a criminal trial in this country. The appellants have not in any way shown that their bail requests will be dealt with improperly, and there is no Article 5 bar to extradition in this case, and this ground fails.

Article 6

52. Article 6 was not raised before the District Judge. According to the appellants' skeleton argument, having consideration to the experiences of the appellants on their initial arrest for these matters, the significant pressure applied by the family of Robert Hughes in this case, the discriminatory way in which they will be treated on return, and to the gaping discrepancy between the way in which they and prosecution witnesses will be, and have been treated, there is a real risk of a flagrant breach of the appellants' right to a fair trial.
53. These points were not developed in oral argument before us. The stringent test applied to ascertain whether there would be a "flagrant breach" of Article 6 rights was explained in EM (Lebanon) v Secretary of State for the Home Department [2009] 1 AC 1198 by Lord Bingham at [34] - [35], and by Lord Phillips in RB (Algeria) v Secretary of State for the Home Department [2009] 2 WLR 512 at [141]. As this court (Laws LJ and Ouseley J) said in Symeou [2009] EWHC 897 (Admin) at [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. No such risk is made out on this appeal.

Conclusion

54. Permission is refused in respect of the application for judicial review, and the appeals are dismissed.