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
		31 January 2012

1. MR JUSTICE MITTING: On 30 January 2006 the court chairwoman of Kraslava District Court in Latvia issued an accusation European arrest warrant against the appellant on charges of theft of 6.63 tonnes of railway rails and concurrent intentional damage, offences said to have been committed in October 2004 in Latvia.
2. The warrant was certified by SOCA on 24 October 2011. The appellant was arrested on 24 November 2011. At an uncontested extradition hearing on the following day, 25 November, Deputy Senior District Judge Wickham ordered his extradition.
3. A notice of appeal was issued in time on 30 November 2011. The grounds of appeal settled by solicitors were:

"The [Appellant] submits that there are medical reasons why his extradition is incompatible with the Extradition Act 2003."

4. The ground sought to be relied upon is that it would be oppressive by reason of the appellant's physical condition to extradite him to Latvia.
5. The basis of the argument is that subsequent to the hearing, on either 29 or 30 November, the appellant obtained from a Latvian source his own medical card. It is dated 29 November 2011. It bears a fax header of 30 November 2011. It appears to be in regular order, and is signed and sealed by a doctor. It records in translation that the appellant fell ill in 2002 with infiltrative tuberculosis of the upper lobes of both lungs. He received treatment for that condition from 12 May until 24 September 2002, when, as the note records:

"He unwarrantedly stopped the treatment."

6. At the end of the treatment two small tuberculomas had emerged and in 2003 he was transferred to an inactive group register. He had his last check-up on 14 December 2004 when his lungs were found to be emphysematous and there was a tuberculoma shadow with clear contours on the left lung and a small tuberculoma in the second segment of the right lung.
7. If the appellant committed the offences identified in the warrant, his condition did not prevent him from embarking upon what must have been quite an arduous course of activity in removing 6.63 tonnes of railway rails.
8. The appellant was asked, I am told by Mr Brownhill and accept, by the solicitor who represented him at the extradition hearing whether he had any medical problem, to which he replied, "No". He now says that it would be oppressive to remove him to Latvia because of the conditions which he would experience in the Latvian prison estate.
9. Two documents are relied upon. The first is an article appearing in The Lancet on 11 December 2004, in which, based upon the historic condition of Latvian prisons, the following comments were made:

"So where should Latvia's leaders look to stem TB transmission? Doctors agree that the highest risk environment of all is Latvia's overstretched prison system ...

A March, 2004, project report on a Finnish-funded initiative to improve TB control in Latvian prisons complained that overcrowding, inadequate ventilation, and bad sanitation facilities remain commonplace in the 15 institutions in the country, putting both prison staff and other prisoners at 'considerable risk' of infection."

10. The US Department of State report for 2010, published on 8 April 2011, noted that complaints had been made to the Latvian prison's ombudsman, which included complaints about:

"... inadequate privacy in living spaces and bathrooms, severely dilapidated physical plants, lack of heat, inadequate sanitary facilities, lack of hot water, inadequate places to sit, inadequate work and educational opportunities, and inadequate access to open space and fresh air."

11. The report also noted that in November the new Minister of Justice announced publicly:

"... that improvement of prison conditions would be a priority for his ministry."

12. The report also notes that other complaints of human rights infringements in the Latvian prison estate identified by the constitutional court and made the subject of orders by them had been the subject of remedial action taken by the Latvian state.
13. On that slender basis Mr Brownhill submits that the section 25 bar is made out.
14. The first point to be made is that if that argument was to be raised it should have been raised at the extradition hearing when evidence could have been led and tested, and the Latvian state could have had an adequate opportunity to put in a response to the allegations.
15. The admission of evidence at this late stage on appeal is only permissible if it was not "available at the extradition hearing". The meaning of that phrase was authoritatively determined by this court in Fenyvesi [2009] EWHC 231 (Admin) at paragraph 32:

"In our judgment, evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party's disposal or could have been so obtained, it was available."

This evidence was available at the extradition hearing in the sense there explained. It could have been obtained with reasonable diligence on the part of the appellant, as was demonstrated by the fact that he obtained it within at most five days of the extradition hearing itself.

16. Accordingly, and for that reason, I decline to admit this further evidence to raise the section 25 issue. For the sake of completeness I should add that had I admitted it, I would not have found that the section 25 bar was established. The skeletal evidence relied upon does no more than demonstrate that the appellant did and probably still does suffer from inactive tuberculosis, a condition which might be exacerbated and might be converted into active tuberculosis if conditions in the Latvian prison estate are the same as those described in The Lancet article of December 2004. But a number of speculative leaps of faith have to be made before that conclusion could be reached. This appellant has not bridged the necessary gaps.
17. Accordingly, and for both of those reasons, I reject this appeal.
18. MR BROWNHILL: I am grateful, my Lord. Might I ask for the usual assessment?
19. MR JUSTICE MITTING: Public funding assessment of the appellant's costs.
20. MR BROWNHILL: I am grateful.