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
		24/06/2015

Lord Justice Aikens:

The issue on this appeal

1. This is the judgment of the court to which both of us have made substantial contributions.
2. The Government of the Republic of Albania ("the Government") seeks the extradition of the appellant on the basis that he is Leke Prendi, an individual who is said to have been born on 27 September 1980 in the village of Fushe-Arrez, Albania. The Government seeks the appellant's extradition to serve a sentence of 21 years imprisonment for three offences. The sentence was imposed after a trial in the absence of the appellant. The offences are classified under Albanian law as murder, armed robbery and illegal keeping of military weapons. The appellant maintains that he is not Leke Prendi, but Aleks Kola and that he was born on 5 October 1980 in Gjakove in Kosovo. The sole issue on this appeal is whether the finding of District Judge Coleman ("the DJ") that the appellant was, on the balance of probabilities, Leke Prendi, can be sustained.
3. This is, in form, an appeal against the decision of the DJ of 26 November 2014 to send the appellant's case to the Secretary of State under section 87 of the Extradition Act 2003 ("the EA"). The proceedings are governed by Part 2 of the EA, the Extradition Act 2003 (Commencement and Savings) Order 2003 (SI 2101 of 2003) and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 3334 of 2003). Albania has therefore been designated as a Part 2 territory for the purposes of section 84 (7) of the EA.
4. We have set out the relevant sections of the EA in the Appendix to this judgment. Those sections are: 77(1), 78, 84(1) and (2), all of which are in Part 5 of the EA, and 202 and 205, which are in Part 3 under the heading "Evidence".

The offences and the proceedings in Albania

5. The relevant offences were committed in a single episode on 10 April 2000. Leke Prendi, with Anton Kola, Gjovalin Prendi, Anton Pali and Nikoll Nikoli planned to attack and rob passengers on a bus travelling from Fushe-Arrez to Kukes in Albania. The robbers armed themselves with automatic firearms and wore masks. At about 11pm they ambushed the bus which was carrying 22 clerics returning from a pilgrimage. The driver was forced to drive off the main road. The passengers' possessions were stolen from their bags. In the course of the robbery, the firearm carried by Leke Prendi fired by accident and mortally wounded Gjovalin Prendi. One of the robbers was caught by the police, but two of the surviving three robbers escaped. The subsequent criminal proceedings in Albania were conducted on the basis that Anton Kola was the robber caught by the police and that Leke Prendi and Nikoll Nikoli were the robbers who had escaped.
6. All three robbers were tried, convicted and sentenced on 13 December 2000 by the District Court in Puke, but only Anton Kola was present before the Court. The decision of the District Court records that Leke Prendi had a judicial status of "not convicted", which suggests that he had no previous criminal convictions. The judicial status of Anton Kola and Nikoli Prendi is recorded, in each case, as "convicted". On 30 March 2001 the Appellate Court in Shkoder rejected an appeal brought by Leke Prendi's court appointed lawyer and upheld the sentence of 21 years. Leke Prendi remained at large. At the time of his conviction and appeal he was 20 years old.

Subsequent events: the Interpol "red notice".

7. The International Criminal Police Organisation ("Interpol") publishes notices known as "red notices". Article 82 of Interpol's Rules on the Processing of Data states:

"Red notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters in order to seek the location of a wanted person and in his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action".

8. On 7 February 2005 Interpol published a red notice at the request of Albania in respect of Leke Prendi. The red notice gave Prendi's date of birth as 27 September 1980, and described him as 168cm tall with brown hair and brown eyes. The particulars of identity included a photograph of Prendi. We will call this "the Interpol photograph". The version of the Interpol photograph that we have seen is of relatively poor quality. The subject of the photograph is not looking squarely at the camera; he is turned away with his head poised downwards, so that most of the right side of his face is not shown. Based on our combined experience of looking at official photographs, in our judgment the photograph described above does not have the typical appearance of one taken by police or other authorities for official purposes.
9. There is no indication on the red notice of the date when the photograph was taken, which must, necessarily, have been sometime before the date of publication of the red notice on 27 February 2005. If this photograph is of Leke Prendi and assuming that his date of birth is 27 September 1980, then Leke Prendi could not have been older than 24 at the time the photograph was taken. If the photograph had been taken before Leke Prendi became a fugitive (on 10 April 2000), he could not have been older than 19 when the photograph was taken.
10. The red notice also contained information about Prendi's conviction and sentence.
11. In November 2007 Interpol Tirana published an "addendum/corrigendum" to the red notice. The addendum contained the same photograph as that found in the original red notice, but now included what purported to be copied images of the finger prints of Leke Prendi.
12. The publication by Interpol of the red notice and the addendum is confirmed by an email dated 25 July 2014 from the Interpol Secretariat General, stating that Leke Prendi was an "entity" registered in the Interpol AFIS/ICIS "since 2007-11-15". However, the information in the red notice was provided by Interpol Tirana, not the Interpol Secretariat General. In the extradition request by the Government to the United Kingdom there is no statement from Interpol Tirana explaining, in particular, when, how and by whom the Interpol photograph and the finger prints were taken or how the images of the fingerprints were created. The red notice itself is not referred to, or included with, the extradition request.
13. The red notice, with its addendum, triggered no response from any national crime agency until the events described below.
14. On 20 July 2013 the appellant was arrested in the United Kingdom on an allegation of common assault. He was taken to Northampton Police Station where his finger prints were taken. On 22 November 2013 Robert Unwin, a finger print specialist employed by the Metropolitan Police, compared the finger prints taken on 20 July 2013 with the finger prints image in the red notice. In his view, the finger prints were made by the same person. The appellant does not contest that finding.
15. On 17 November 2013 the Ministry of Justice of Albania issued the request for the extradition of Leke Prendi. On 16 December 2013 DC Matt Wagstaff went to Wellingborough Magistrates Court in Northampton and met the appellant, who was there in connection with the criminal proceedings for common assault. DC Wagstaff asked the appellant his name, and he replied that he was "Aleks Kola". DC Wagstaff asked the appellant his date of birth, and he replied "5 October 1980". In the light of the finger print match made by Robert Unwin on 22 November 2013, DC Wagstaff told the appellant that he believed that he, the appellant, was Leke Prendi, and that he was sought by the Government for offences committed in Albania. DC Wagstaff then arrested the appellant on a provisional warrant.
16. DC Wagstaff took the appellant to Northampton Police station where he was booked into custody. The custody record states the appellant's date of birth as 27 September 1980, ie. the date of birth of Leke Prendi. However, there is no evidence that the appellant gave that date to the custody officer as being his date of birth. He had given a different date of birth to DC Wagstaff at the Magistrates' Court, and DC Wagstaff in his evidence did not state, as might otherwise have been expected, that at the police station the appellant admitted that his date of birth was 27 September 1980, ie. the same date of birth as Leke Prendi.
17. Within the Government's extradition request there is a "Report" of Mr Albert Murcaj, Director of Prosecutions for the Judicial District of Puke, which is dated 10 December 2013. At the end of his report he states that there was not available "any fingerprint card, photos of the convicted". That statement would be consistent with Leke Prendi having no previous criminal convictions as might be inferred from the District Court records referred to in paragraph 6 above. However, Mr Murcaj's statement appears to be inconsistent with the fact that the red notice (based on information provided by Interpol Tirana), purports to contain copy images of the fingerprints of Leke Prendi. Additional documents were submitted in support of the Government's extradition request which included a further report of Mr Murcaj dated 8 May 2014. That document stated: "results that there is not available a fingerprint card or a photo of the defendant".

The Proceedings before District Judge Coleman

18. The appellant appeared at an initial hearing before District Judge Purdy on 17 December 2013. No preliminary issues were raised. The case was adjourned because the appellant remained subject to the outstanding prosecution for common assault. The final hearing before the DJ was held on 17 October 2014. At that hearing Daniel Jones of counsel appeared on behalf of the appellant.
19. The appellant contended before the District Judge that he was not the person requested by the Government and so must be discharged pursuant to section 78(4) and (5) of the EA. In addition, the appellant submitted that he would not be entitled to a retrial if extradited, so that in any event he should be discharged under section 85(5) of the EA. The appellant chose not to give oral evidence before the DJ. He relied on an unsworn statement in which he asserted that he was Aleks Kola and that he was not Leke Prendi. In that statement he also asserted that he had left Kosovo when we was about 16 years old, that he had gone to Italy and then to Belgium before coming to the UK in 2000. The statement gave very little detail of his immigration history, but it did exhibit an immigration status document showing that he had been granted discretionary leave to remain in the United Kingdom until 2015. His PNC record disclosed that he had received a caution for theft on 7 July 2001.
20. The DJ admitted the red notice in evidence under section 202(5) of the EA. Although the document was not authenticated, the DJ considered it to be "a document from a reliable source": see paragraph 16 of the DJ's reasons. The judge said that in a case of disputed identity, a fingerprint match was of decisive importance. A fingerprint expert instructed by the defence had stated that he was concerned about the fingerprints in the red notice because there was no indication of when and where the fingerprints were taken. The judge observed that these circumstances affected the weight that he could place on the fingerprint evidence, but concluded that that evidence remained "persuasive", that is, it showed that the appellant and the requested person, Leke Prendi, had the same fingerprints: see paragraph 18.
21. The judge also found that there were "similarities of features" between the person shown in the Interpol photograph and the person before him. The judge did not particularise what these features were. He could not be sure that it was the same person, but he concluded that the photographic image was "not unlike him": see paragraph 20.
22. The appellant had been measured at Northampton Police Station following his arrest on 16 December 2013 and was found to be 179cm tall. On the red notice the height of Leke Prendi is stated to be 168cm. In his oral evidence to the DJ, DC Wagstaff had said that he was not aware of the method of measurement used for obtaining the particulars set out in the red notice. It is unclear how DC Wagstaff's ignorance of that procedure could be regarded as a reason to cast doubt on the accuracy of the precise measurement shown in the red notice, which is a document put forward by the Government as originating from Interpol Tirana, and purporting to give reliable particulars of the wanted person. The judge, however, noted DC Wagstaff's evidence on this point and said that he had to treat the evidence of height as recorded in the red notice "with a degree of care": see paragraph 21.
23. The DJ also noted that the surname of "Kola" given by the appellant was the surname of Anton Kola, one of the co-defendants of Leke Prendi, and one of those who was convicted of the extradition offences. The DJ added that the custody record for the appellant gave his date of birth as 27 September 1980, the same date of birth as registered in Albania for Leke Prendi. The DJ did not refer to the evidence that, upon arrest on 16 December 2013, the appellant had told DC Wagstaff that his date of birth was 5 October 1980. If the DJ had intended to infer that the appellant had himself given to the custody officer a date of birth of 27 September 1980, he did not explain what evidence, if any, supported that inference and it would appear contrary to the evidence before the DJ: see paragraph 15 above. The DJ remarked that " those differences" could have been explained by the appellant if he had chosen to give evidence.
24. The DJ concluded by saying that, having carefully considered the weight he attached to each piece of evidence and the totality of that evidence, he was satisfied on the balance of probabilities that the appellant was Leke Prendi, the person requested by the Government. So the DJ ordered that the case be sent to the Secretary of State.

The Appeal in this Court: (1) the applications to introduce new evidence.

25. In this appeal each party sought permission to introduce new evidence. First, the Government asked permission to put in evidence an email (exhibited to a further statement of DC Wagstaff made on 13 April 2015) sent on 9 April 2015 to DC Coyle by Bujar Mema, Interpol Tirana. In this email it is stated that the fingerprint images (shown on the red notice) "originated from Lezhë Police Commissariat, received on 12 June 1999". Mr Alan Jones QC, who led Mr Daniel Jones on behalf of the appellant on the appeal, did not formally object to the admission of this evidence. Mr Jones submitted that it was of no material assistance on the issue of identity.
26. Secondly, the appellant sought permission to put in evidence a statement dated 2 April 2015 of Clive Evans, a forensic imaging investigator. Mr Evans stated that he had compared photographs of the appellant, taken on 19 March 2015, with the Interpol photograph in the red notice. It is unnecessary to consider Mr Evans' report in detail. It is sufficient to note his opinion that there were significant differences between the two sets of imaging "that would permit the elimination of [the appellant] as a candidate for Leke Prendi", and that the imagery evidence gave no support to the contention that Leke Prendi and the appellant were the same person.
27. Mr Daniel Sternberg, who appeared on behalf of the Government, vigorously opposed the application to admit Mr Evans' evidence. For reasons that will become apparent below, it is not necessary finally to determine the admissibility of this evidence. We will only say that, having considered the statements of Martin Henley (counsel originally instructed by the appellant for the proceedings before the DJ) and Ms Neena Baba, solicitor at Central Law Practice having the conduct of those proceedings from 22 May 2014, we are very doubtful, to put the matter at its lowest, whether the evidence of Mr Evans could not have been obtained, with the exercise of reasonable diligence, before the DJ. If so, then this evidence would fail the first of the two tests established in Hungary v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324 for determining whether "fresh evidence" on an extradition appeal should be considered.
28. Thirdly, the respondents attempted to adduce further evidence after the hearing of the appeal. On 1 May 2015 the court received from Mr Sternberg a "Note to the Court on Further Information received on 30 April 2015". This further information is contained in a document signed by Mr Albert Murcaj dated 10 April 2015. It is headed (in the translated version) "Information". The document was received by those instructing Mr Sternberg on 29 April 2015. There had been no indication to the court during the hearing on 21 April that further material might be en route from the Government. For present purposes it is paragraphs 10 and 11 of Mr Murcaj's "Information" that is important. The first states that the fingerprint cards and photographs of persons sentenced or wanted are administered by "Police Commissariats, District Police Directorates and Interpol Offices in the relevant police search offices and not by the relevant Prosecutor's Office". Therefore, "it is stated that the card is not under possession of the prosecutor's office". The second attempts to explain the difference in the height recorded in the red notice (163cm) and that recorded at the Northampton police station (179cm) as being the result of "the possible physical growth and increased body height" between a person who was aged 19 on the first occasion and 35 on the second.
29. In his Note, Mr Sternberg submitted that the court should receive this evidence, despite its very late production. He said that the statement about how the fingerprint cards and photographs were "administered" (viz. "taken") by the police commissariats and so forth provided an answer to the suggestion that there was no information before the court about how fingerprints were taken and stored in Albania.
30. We invited submissions from Mr Jones on this application. He strongly opposed it and submitted that there was no explanation of why this material had not been obtained earlier, let alone any attempt to fulfil the first Fenyvesi test that the material could not have been obtained with reasonable diligence beforehand. Furthermore, Mr Jones referred to the remarks made by this court in Ilia v The Appeal Court in Athens [2015] EWHC 547 (Admin) at [15] where it deprecated attempts to introduce materials after the conclusion of a hearing, unless the circumstances were exceptional.
31. We indicated to the parties that we would not receive this new material and that we would state our reasons in the main judgment. The principal reason is that there is no explanation of why this material was not produced earlier. It has always been clear, from the moment that the appellant's expert had questioned the provenance of the fingerprints, that this was in issue. So too was the provenance of the Interpol photograph. There was no explanation of why the court was not told that further material was on its way at the time of the hearing. There was no application during the hearing to permit the respondent to adduce further material on the issue of the provenance of the fingerprints and Interpol photograph if it arrived after the hearing had been concluded. We repeat what was stated in the Ilia case. Once the hearing has been concluded, unless there are exceptional circumstances, the court will not receive further evidence unless it is specifically sought by the court or the parties agree it should be provided and the court agrees that it should be accepted. None of those situations arises in this case.

Appeal to this court: (2) the arguments of the parties on the issue of identity

32. Mr Alun Jones' first argument concerned the admissibility of the red notice in the extradition proceedings. He submitted that if the red notice (which contained the Interpol photograph and, most importantly, the fingerprint images) was not admissible, then the Government could not establish, on a balance of probabilities, that the appellant was Leke Prendi. Mr Jones submitted that because the red notice was not duly authenticated under section 202(2) of the EA, the District Judge ought not to have received the red notice into evidence in the exercise of his discretion under section 202(5). He argued that although section 202(5) was framed in wide terms, there had to be a limitation on the scope of receivable evidence under that provision, lest other important provisions of the EA were subverted and the rationale reflected in such provisions were undermined. In support of these arguments, Mr Jones referred, in particular, to section 77 (judge's powers at extradition hearing) and he drew our attention to the statements of members of the Supreme Court in R(B and others) v. Westminster Magistrates' Court and others [2014] UKSC 59 [2014] 3WLR 1336, in which the court had to decide whether there was power under Part 2 of the EA permitting an appropriate judge to order that extradition proceedings be held in private to the exclusion of one party, or to make witness anonymity orders.^[1]
33. Mr Jones submitted that section 84 of the EA now created its own more expansive, but exclusive and comprehensive code for the admission of hearsay evidence in extradition proceedings, or at least indicated a strong legislative steer as to the applicable policy in respect of hearsay. Mr Jones accepted that section 202 of the EA permitted first hand hearsay to be admitted in extradition proceedings, but, on the authorities interpreting the forerunner provisions to that section, it did not permit second hand or remoter hearsay.^[2] Mr Jones submitted that the relevant fingerprint evidence would, therefore, not have been admissible in domestic English criminal proceedings, being at best third or remoter hand hearsay. Therefore it was not admissible in these extradition proceedings.
34. Mr Jones's second argument was that, even if the Government could overcome these technical objections to admissibility, the fingerprint evidence was simply inadequate to show that the appellant was the requested person. In this case the photographic evidence tended, if anything, to undermine the Government's request. The circumstances in which the fingerprints of an unconvicted man had been obtained remained unexplained, and the local prosecutor had twice stated that no photographs or fingerprints of Prendi were available.
35. Mr Daniel Sternberg, on behalf of the Government, first emphasised that the Government did not need to show a prima facie case on all issues, including (if relevant) identity. The authorities to which Mr Jones referred were cases in which the requesting state had the burden of demonstrating a prima facie case. In Mr Sternberg's submission, the proper approach to an evidential question concerning identity was illustrated by Savvas v.Government of Italy [2004] EWHC 1233 (Admin) where Maurice Kay LJ stated that section 9(2) of the Extradition Act 1989 (which is in terms very similar to section 77(1) of the EA) "is concerned with procedural powers and orders and not with the rules of criminal evidence". In that case Maurice Kay LJ observed that the disputed piece of information had come from official and authenticated sources, and that, no doubt, "a District Judge would accord it greater weight than some elusive piece of hearsay from an unofficial source". Moses J agreed with Maurice Kay LJ. Mr Sternberg argued that the observations of Lord Mance JSC and Lord Hughes JSC in the R(B) case were strictly obiter, and they did not fatally undermine the approach to the specific issue of identity taken in Savvas. Mr Sternberg agued that section 84 of the EA was in terms limited to the proof of a prima case, and had no application to evidential matters touching on identity.
36. Mr Sternberg also drew attention to two further cases concerning identity which, he argued, had similarities to the present case. In Riza Vatoci v. Government of Albania [2011] EWHC 1295 (Admin) the requesting state relied on photographs which the appellant submitted were of poor quality and about which the provenance was unspecific. Sir Anthony May PQBD, with whom Sweeney J agreed, held at [18] that "section 202 of the 2003 Act makes the photographs admissible in evidence and makes the assertion of the Albanian authorities that these are the photographs of the person they wanted extradited also admissible in evidence". Sir Anthony later stated, at [22], that the evidence on identity was "fairly sparse and most of it was of questionable value", but nonetheless held, at [24], that the Court should not interfere with the judge's conclusion, which had been open to him, that the appellant was the requested person.
37. In Stefan v. The Republic of Albani [2007] EWHC 3267 (Admin) the appellant had challenged, amongst other things, the admission of finger print evidence. In that case a British police officer had travelled to Albania and had obtained various unidentified fingerprints (of persons wanted by the authorities) from Interpol Tirana. On the officer's return to the UK, it was found that one set of fingerprints matched those of the appellant held on the National Computer and Immigration databases. The officer then asked the Albanian authorities for the origin of the fingerprints, and Interpol Tirana informed him that the local police in Kavajë, Albania stated that the finger prints were those of the named requested person. That was a case where the appellant had stated in evidence that he had never been to Albania at all, an assertion that left him with little, if any, credibility.
38. There was also in that case photographic evidence and the appellant had given evidence and had been cross-examined. Dyson LJ held that each of the three elements of evidence (photographic, fingerprint and the impression made by the appellant in the witness box) was "relevant and probative", and that the judge was entitled, on a balance of probabilities, to conclude that the appellant was the requested person. Jack J agreed.

Analysis and conclusion

39. The first task of the DJ in this case (given that there were no arguments on the preliminary matters identified in section 78(2)) was to decide whether the person appearing before him was "the person whose extradition is requested". As that issue was in dispute, it had to be decided by evidence. The burden of proof must be upon the requesting state. It has to satisfy the appropriate judge of that question on a balance of probabilities: see section 78(4) and (5).
40. The direct evidence before the DJ concerning the issue of whether the appellant is Leke Prendi, was contained in the original red notice, the "addendum/corrigendum" to it, Robert Unwin's conclusion that the fingerprint images in the red notice matched those of the appellant taken in Northampton police station, DC Wagstaff's statement of 16 December 2013 and the custody record's statement of the appellant's height. The other materials, such as Mr Murcaj's two reports, the statement in the Albanian District Court's decision that Leke Prendi was of "not convicted" status, the second witness statement of DC Wagstaff and the email exhibited to it, all go to the issue of the weight of the direct evidence.
41. We accept the submission of Mr Jones that if the red notice was not admissible as evidence of the matters stated in it, then the Government could not prove, on a balance of probabilities, that the appellant was Leke Prendi, the requested person. This is because the only direct links between the identity of the person before the DJ and that of Leke Prendi are the facts that can be derived from the red notice and the addendum/corrigendum: viz that the finger prints of Leke Prendi are those in the images in the red notice; that the Interpol photograph is that of Leke Prendi and that Leke Prendi had (at least in 2005) the description (particularly the height) given at paragraph 1.15 of the red notice.
42. So there is a threshold question of law to be decided: in what circumstances may a document be received as evidence of the facts stated in it in extradition proceedings in relation to a category 2 territory on an issue of identity (section 78(3) and (4)), when that document concerned has not been authenticated in accordance with section 202(4)? This requires an analysis of the effect of sections 77, 84 and 202 of the EA.
43. In the R(B) case, Lord Mance stated, at [19], that extradition proceedings were to be treated as criminal proceedings in a general sense (although certainly not a prosecution) and that "the natural effect of section 77(1) [of the EA] is to provide for all aspects of [the exercise of the magistrates' powers], including the admission and admissibility of evidence". With respect we agree. Lord Mance quoted from the speech of Lord Hoffmann in R v Governor of Brixton Prison ex p Levin [1997] AC 741 at 746-7 for the proposition that the consequence was that magistrates in extradition proceedings (governed in that case by section 9(2) of the 1989 Act) should apply "the normal rules of criminal evidence and procedure". In this regard, the reference to sections 9 and 10 of the Criminal Justice Act 1967 in section 205 of the EA would appear to reinforce the proposition that, with regard to the aspects of evidence referred to, extradition proceedings are to be treated as if they were criminal proceedings.
44. Lord Mance went on to consider the effect of section 202 of the EA. He stated, at [20], that the effect of section 202(3) is that if a document is issued in a category 2 territory and it is duly authenticated, then that document may be received in evidence in extradition proceedings as evidence of matters stated in it "about which otherwise oral evidence would have to be called". We note at this point that in Friesel v Government of the USA [2009] EWHC 1659 (Admin), Cranston J (with whom Pill LJ agreed) stated that if a document has been authenticated in accordance with section 202(3) then it will be admissible as evidence of the matters stated in it even if it contains hearsay, although the weight to be given to the particular contents may well depend on how close the maker of the statement is to the source: see [36] and [37].
45. Lord Mance then considered section 202(5). Because that section could not possibly authorise a "closed material procedure", he found it unnecessary to determine the precise ambit of that sub-section. His only comment was that, on its face, section 202(5) "simply extends the power to admit a document as evidence of its contents to unauthenticated documents". With respect, we agree that section 202(5) is permissive in the sense that it allows the court at an extradition hearing to receive in evidence a document that has not been authenticated in accordance with section 202(4). But the decision on whether a particular unauthenticated document will be received as evidence of its contents remains a matter for the appropriate judge. Given that extradition proceedings are, in general, to be regarded as criminal proceedings, the rules relating to the admission of evidence in criminal proceedings will, at the very least, guide the judge in deciding whether or not any particular unauthenticated document should be received as evidence of its contents.
46. Lord Hughes, whilst rejecting the proposition that extradition proceedings were either a criminal prosecution or "criminal proceedings for all purposes", did accept that the English rules of criminal evidence (including those in the Police and Criminal Evidence Act 1984) applied to them: see [68 (ii)]. Lords Neuberger and Reed agreed with the judgments of Lord Mance and Lord Hughes. Lord Toulson dissented. The combined effect of the judgments of Lords Mance and Hughes with which the majority agreed must be, therefore, that the English rules of criminal evidence will, at least prima facie, apply to extradition proceedings. We say prima facie, because there may be limited specific circumstances in which the wording of section 202(5) can be used to receive an unauthenticated statement which does not meet the English rules of criminal evidence. One particular example was canvassed in R(B), viz. where evidence is adduced on issues of "extraneous considerations", human rights and abuse of process: see Lord Mance's judgment at [23]. We do not need to go further than that for the purposes of the present case. In particular, we do not need to decide whether the statements of Maurice Kay LJ in Savvas v Government of Italy [2004] EWHC 1233 (Admin) at [9] are consistent with those of the Supreme Court in the R(B) case. We note that Savvas was not cited to the court in R(B).
47. Section 84(2) and (3) and section 86(2) and (3) deal with specific situations where the appropriate judge has to decide whether there is a prima facie case against the person requested and the judge has before him a statement made by a person in a document. That statement will be admissible in evidence if the two preconditions set out in section 84(2) or 86(2) are satisfied. The second of those is that "direct oral evidence by the person of the fact would be admissible" and section 84(3) and 86(3) sets out the factors to which the judge must have regard when deciding (for the purposes of section 84(2) or 86(2)) whether to treat a statement made by a person in a document as admissible evidence of a fact. Whilst those factors do not apply directly to the question of whether unauthenticated documents should be received in evidence under section 202(5), the factors set out in section 84(3) and 86(3) may well be relevant on the facts of a particular case.
48. What is the effect of our analysis of sections 77 and 202 in respect of the admissibility of the red notice and the addendum/corrigendum in the extradition proceedings? With respect to the DJ, a statement that it was admissible as evidence of the facts stated in it because it is "a document from a reliable source" does not accurately reflect the correct test, which is: is this document, which has not been authenticated in accordance with section 202(3), admissible as evidence of the facts stated in it, according to the English rules of criminal evidence? The short answer to that question must be "no".
49. The red notice plus the addendum/corrigendum is a collection of facts in the form of the Interpol photograph, the fingerprint images and the description of Leke Prendi. But whoever made up the red notice could not speak to the truth of any of those facts directly. They all came from sources other than Interpol Tirana. There is no evidence to suggest that the person who correlated the information to make up the red notice obtained the various elements directly from the person who took the Interpol photograph, took the finger prints, or measured Leke Prendi's height. There is no evidence about when, where or how the Interpol photograph was taken, Leke Prendi's height measured, or where the fingerprints were actually taken. The email of 9 April 2015, from Interpol Tirana, would appear to be a multiple hearsay statement of where "the fingerprints" were "received" in 1999 without giving any details of when, where and why the finger prints were actually taken. Thus there is nothing to demonstrate that those are, indeed, a photograph of Leke Prendi, his finger prints or even that it was his height at the relevant time.
50. In those circumstances, even if we accept that Interpol Tirana is a "reliable source", that does not prove that the actual sources of the information are reliable and that is not something that simply proves itself by putting the information into an Interpol red notice. Accordingly, we conclude that the DJ was wrong to admit the red notice as evidence at all. As we have stated already, if it is not admitted, then (as Mr Sternberg effectively accepted) the Government cannot prove, on a balance of probabilities, that the person before the DJ was Leke Prendi.
51. However, we would go further. Even if the DJ was correct to admit the red notice as evidence of the facts stated in it, he had to consider the weight of those facts in the light of other evidence and then decide whether the Government had proved identity to the necessary standard. In our view the judge was wrong in his analysis of the evidence and arrived at the wrong conclusion, for a number of reasons.
52. First, the Interpol photograph: as noted above, it does not look like an official photograph. Moreover, there is the evidence, also noted above, that no photograph of Leke Prendi was available to the prosecuting authorities. Even if the prosecuting authorities do not take the photographs, the fact that Mr Murcaj stated, twice, that no photograph was available suggests that attempts had been made to find if a photograph of Leke Prendi existed and the answer was that none did.
53. Secondly, the finger prints: their provenance is not demonstrated. As we point out above, there is nothing beyond the assertion of Interpol Tirana that the finger prints in the images attached to the addendum/corrigendum are those of Leke Prendi.
54. Thirdly, the height of Leke Prendi. Either the figure of 168cm is the correct height of Leke Prendi at the age of between 19 and 24, in which case it would be improbable (in the absence of any evidence) that he should grow a further 11 cm by the age of 35; or the figure of 168cm is not correct, in which case there is nothing by which to judge whether the height of the appellant matches that of Leke Prendi. As we have already noted above, the DJ's reasoning based on DC Wagstaff's lack of knowledge of how any Albanian authorities might have measured Leke Prendi does not make the evidence about height any more reliable.
55. Fourthly, the evidence about date of birth does not assist the Government. Assuming Leke Prendi's birth date is 27 September 1980, there is no evidence that this is the birth date of the appellant. Such evidence as there is – the appellant's own statement to DC Wagstaff – is that he was born on 1 October 1980. He has never stated that his birth date is 27 September 1980.

Disposal

56. Accordingly, we must conclude that the Government has not proved, on a balance of probabilities, that the appellant is Leke Prendi, the person requested. If the Government had troubled to obtain an authenticated statement in accordance with section 202(4), the situation might have been different. But it did not. We must therefore allow this appeal.
Appendix: relevant provisions of the Extradition Act 2003.

Sections 77(1), 78, 84(1) - (6), 202 and 205

77 Judge's powers at extradition hearing

(1) In England and Wales, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the summary trial of an information against the person whose extradition is requested.

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78 Initial stages of extradition hearing

(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include)—

(a) the documents referred to in section 70(9);

(b) particulars of the person whose extradition is requested;

(c) particulars of the offence specified in the request;

(d) in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory;

(e) in the case of a person alleged to be unlawfully at large after conviction of an offence, a certificate issued in the category 2 territory of the conviction and (if he has been sentenced) of the sentence.

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) If the judge decides that question in the affirmative he must decide whether—

(a) the person appearing or brought before him is the person whose extradition is requested;

(b) the offence specified in the request is an extradition offence;

(c) copies of the documents sent to the judge by the Secretary of State have been served on the person.

(5) The judge must decide the question in subsection (4)(a) on a balance of probabilities.

(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.

(7) If the judge decides those questions in the affirmative he must proceed under section 79.

(8) The reference in subsection (2)(d) to a warrant for a person's arrest includes a reference to a judicial document authorising his arrest.

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84 Case where person has not been convicted

(1) If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.

(2) In deciding the question in subsection (1) the judge may treat a statement made by a person in a document as admissible evidence of a fact if—

(a) the statement is made by the person to a police officer or another person charged with the duty of investigating offences or charging offenders, and

(b) direct oral evidence by the person of the fact would be admissible.

(3) In deciding whether to treat a statement made by a person in a document as admissible evidence of a fact, the judge must in particular have regard—

(a) to the nature and source of the document;

(b) to whether or not, having regard to the nature and source of the document and to any other circumstances that appear to the judge to be relevant, it is likely that the document is authentic;

(c) to the extent to which the statement appears to supply evidence which would not be readily available if the statement were not treated as being admissible evidence of the fact;

(d) to the relevance of the evidence that the statement appears to supply to any issue likely to have to be determined by the judge in deciding the question in subsection (1);

(e) to any risk that the admission or exclusion of the statement will result in unfairness to the person whose extradition is sought, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings.

(4) A summary in a document of a statement made by a person must be treated as a statement made by the person in the document for the purposes of subsection (2).

(5) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

(6) If the judge decides that question in the affirmative he must proceed under section 87.

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202 Receivable documents

(1) A Part 1 warrant may be received in evidence in proceedings under this Act.

(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—

(a) it purports to be signed by a judge, magistrate or officer of the territory;

(aa) it purports to be certified, whether by seal or otherwise, by the Ministry or Department of the territory responsible for justice or for foreign affairs;

(b) it purports to be authenticated by the oath or affirmation of a witness.

(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.

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205 Written statements and admissions

(1) The provisions mentioned in subsection (2) apply in relation to proceedings under this Act as they apply in relation to proceedings for an offence.

(2) The provisions are—

(a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement in criminal proceedings);

(b) section 10 of the Criminal Justice Act 1967 (proof by formal admission in criminal proceedings);

(c) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28) (proof by written statement in criminal proceedings);

(d) section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (proof by formal admission in criminal proceedings).

(3) As applied by subsection (1) in relation to proceedings under this Act, section 10 of the Criminal Justice Act 1967 and section 2 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 have effect as if—

(a) references to the defendant were to the person whose extradition is sought (or who has been extradited);

(b) references to the prosecutor were to the category 1 or category 2 territory concerned;

(c) references to the trial were to the proceedings under this Act for the purposes of which the admission is made;

(d) references to subsequent criminal proceedings were to subsequent proceedings under this Act.

Note 1   Mr Jones referred us to the statements of Lord Mance at [18] on the effect of section 77, with whom Lords Neuberger and Reed agreed and the statement of Lord Hughes at [68] and [69].    [Back]

Note 2   Mr Jones referred us to Douse v. Governor of Pentonville Prison [1983] 2 AC 464 at 470, per Lord Diplock; R v.Governor of Pentonville ex parte Kirby [1979] 1 WLR 541 at544, per Croom-Johnson J; and Fernandez v.Governor of HMP Brixton [2004] EWHC 2207 (Admin) at para 47 per Auld LJ.    [Back]