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
		17/11/2016

Mr Justice Cranston:

Introduction

1. This is a novel application to reopen an extradition appeal after the appellant, Andreas Seprey-Hozo, has been extradited. He was extradited to Romania under a European Arrest Warrant ("EAW") pursuant to Part 1 of the Extradition Act 2003 ("the 2003 Act"). The appellant claims that the prison conditions in Romania where he is serving his sentence of three years' imprisonment are in breach of Article 3 of the European Convention on Human Rights ("ECHR" or "the Convention"). Even if it is not possible for him to be returned to the UK, he argues that this court should reopen his appeal and declare in clear terms its disapproval of what the Romanian authorities have done: they gave an assurance that he would serve his sentence in Article 3 ECHR compliant prison conditions, but that assurance has been breached.

Background

2. On 22 December 2014, District Judge Coleman ordered the appellant's extradition to Romania under two conviction EAWs. He raised prison conditions in Romania on his appeal. On 5 October 2015, Supperstone J dismissed the appeal: Hozo v. Romania [2015] EWHC 3022 (Admin). An application for permission to appeal to the Supreme Court was lodged but Supperstone J refused to certify a question as being of sufficient public importance to go to the Supreme Court. The appellant was subsequently extradited to Romania in December 2015, and has been serving his sentence there since.
3. The basis of Supperstone J's decision regarding prison conditions in Romania was that in the light of Blaj v. Romania [2015] EWHC 1710 (Admin), and its approval of the assurance given by the Romanian Ministry of Justice on 26 February 2015 as to the treatment of UK extraditees in Romanian prisons, the appellant did not face a serious risk of being treated in an inhuman or degrading way contrary to Article 3 ECHR.
4. The Romanian assurance followed decisions in this court on Romanian prison conditions such as Florea v. Romania [2014] EWHC 2528 (Admin) ("Florea I") and Florea v. Romania [2014] EWHC 4367 (Admin) ("Florea II"). In summary, it guarantees that every person surrendered from Britain to Romania, pursuant to an EAW, will occupy the minimum space requirements laid down in both domestic and Strasbourg case law (as to the latter, see for example, Toma Barbu v. Romania, no. 19730/10, 30 July 2013, Tirean v. Romania, no. 47603/10, 28 October 2014 and Case of Eze v. Romania, no. 80529/13, 21 June 2016).
5. The appellant's case for reopening the appeal is that the Romanian authorities have breached this assurance to the UK, not only generally but specifically with regard to him. Mr Henley referred to the evidence from a number of UK extraditees adduced in the Westminster Magistrates' Court earlier this year in the case of Rusu v. Romania. The Romanian authorities then sent letters dated 14 and 24 June 2016, accepting that the assurances had not been met in relation to these persons but explaining how this had occurred. In his judgment of 11 August 2016 District Judge Purdy discharged Mr Rusu because of the risk to him that the assurances may not be met in his case.
6. With respect to the appellant, it is said, the assurance that he would not be held in inhuman or degrading prison conditions has not been fulfilled. He was supposed to have available to him a minimum of two square metres of space within a semi-open prison regime. The appellant has provided a handwritten witness statement of his own composition, a floor plan and photographic evidence of the worse conditions he is experiencing. His evidence is supported by the signed, handwritten statements of his cellmates. Mr Henley submits on his behalf that the evidence is clear that he has been subjected to inhuman and degrading conditions as a result of his incarceration.

Legal framework

7. That a requested person has been extradited is no absolute bar to a court considering the person's appeal. In Pilecki v. Poland [2008] UKHL 7, [2008] 1 WLR 325 the appellant had been mistakenly removed from the UK while his petition for leave to the appeal to the House of Lords was still pending. In a speech with which the other law lords agreed, Lord Hope noted (1) that the appellant had informed his English solicitor that he wished to continue his appeal and (2) that proceedings for declaratory relief had been commenced in the High Court and that the appellant would not seek any consequential orders from the House if the appeal was successful: [13]. Lord Hope then considered the merits of the appeal, which was dismissed.
8. Similarly, in Asztaslos v. Szekszard City Court, Hungary [2010] EWHC 237 (Admin), [2011] 1 WLR 252 a requested person was returned to Hungary as a result of an administrative error on the part of the British authorities before his appeal was heard. In Hungary he was held on remand to face criminal proceedings for which his extradition had been requested. On the appellant's behalf it was argued that the erroneous removal should not extinguish his statutory right of appeal here and that the court should hear the appeal in the normal way. In giving the judgment of Openshaw LJ and himself, Aikens LJ said that "certainly it would be most unjust if he were to be deprived of his right of appeal by an error on the part of the British authorities when an appeal was pending": [3]. The court went on to hear the appeal, which it dismissed.
9. Neither the House of Lords in Pilecki, nor the Divisional Court in Asztasles had to consider what would have happened if the requested person's appeal had been successful. Neither case involved the reopening of an appeal, since at that point the appeal was still ongoing.
10. The power of the High Court to reopen an extradition appeal is now contained in a specific rule, rule 50.27 of the Criminal Procedure Rules ("the CrPR"). Before rearrangement of the rules in October 2015, this was CrPR 17.27, which was introduced in 2014. Under rule 50.27(3)(b) the application to reopen the extradition appeal must give reasons why –

"(i) it is necessary for the court to reopen that decision in order to avoid real injustice,

(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and

(iii) there is no alternative effective remedy."

The court must not give permission to reopen a decision unless each other party to the appeal has had an opportunity to make representations.

11. Until October 2014, extradition appeals fell not under the Criminal Procedure Rules but under the Civil Procedure Rules ("the CPR"), 52DPD.22. The power to reopen appeals under those rules is contained in CPR 52.17. It provides:

"(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless—

(a) It is necessary to do so in order to avoid real injustice;

(b) The circumstances are exceptional and make it appropriate to re-open the appeal; and

(c) There is no alternative effective remedy."

12. CPR 52.17 is of relatively recent origin. Prior to its adoption, the Court of Appeal, Civil Division, had held in Taylor v. Lawrence [2002] EWCA Civ 90, [2003] QB 528 that there was a residual jurisdiction in the court to reopen an appeal. That was to avoid a real injustice in exceptional circumstances where it was necessary to achieve the court's two principal objectives, one correcting wrong decisions and two, ensuring public confidence in the administration of justice. In reaching this conclusion, the court emphasised the importance of finality in litigation.
13. In the course of his judgment in Taylor v. Lawrence, Lord Woolf MR referred to Flower v. Lloyd (1887) 6 Ch D 297, where Sir George Jessel MR had held that there was no power to reopen an appeal even where the appellate judgment had been obtained by fraud, since there was the alternative remedy of bringing a fresh action to impeach the original decree. The court in Taylor v. Lawrence said that the jurisdiction to reopen an appeal was seldom to be exercised: [54]. Following Taylor v. Lawrence in October 2003, its principles were embodied in CPR 52.17.
14. In the absence of an express power to reopen criminal appeals in the Criminal Procedure Rules, the Court of Appeal, Criminal Division, applied Taylor v. Lawrence in R v. Yasain [2015] EWCA Crim 1277, [2016] QB 146. It held that it had jurisdiction to reopen an appeal where a defendant's successful appeal against conviction had been founded upon a mistake on the part of the appellate court in relation to whether the verdict had been properly taken in the Crown Court. Like the Court of Appeal, Civil Division, it held that it had a residual jurisdiction to reopen an appeal to avoid real injustice in the exceptional circumstances where there had been no factual basis for the court's earlier order, and a real injustice would arise if the defendant did not serve the sentence that had been imposed on him. Lord Thomas CJ said:

"[40]… There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission."

15. On several occasions the courts have considered applications to reopen extradition appeals, but never after the requested person's removal from the jurisdiction. As explained a moment ago, until 2014 these cases were considered under CPR 52.17. For example, in Taylor v. Governor of Wandsworth Prison [2009] EWHC 1020 (Admin), a case under Part II of the 2003 Act, the court held that there was no justification for reopening an appeal since, after the extradition order had been made and the appellant's appeal rights had been exhausted, he could have (i) made representations to the Secretary of State to reconsider extradition on human rights grounds and (ii) challenged an adverse decision by the Secretary of State by way of proceedings for judicial review. The court said:

"To allow the determination to be reopened is not only unnecessary but also undesirable, since it would create a duplication of procedures for advancing Convention arguments after the statutory appeal process had come to an end and would give rise all too easily to additional delay…": [34].

16. United States v. Bowen [2015] EWHC 1873 (Admin) was another Part II case. The application to reopen the appeal was made under a new rule introduced in 2014 in the Criminal Procedure Rules. The United States government had sought the requested person's extradition to face trial in New York but a District Judge discharged him on the ground that there was a real risk of a violation of his rights under Article 5 of the Convention. The appeal of the United States government was successful: [2015] EWHC 1873 (Admin).
17. The appellant then sought to reopen the appeal on the basis that the appellate court had been in error. He relied on materials which had previously been available to him, but which he had not used in resisting the appeal. Burnett LJ said that CrPR 17.27 (now CrPR 50.27) had a narrow scope. He said:

"[9] We would draw particular attention to the expectation that the jurisdiction under Crim PR 17.27 will not be exercised unless something has developed after the determination of the appeal. The jurisdiction is not designed to allow a disappointed party to the appeal to reconsider his arguments, material and evidence and come back to the court to have another go. Furthermore, we would emphasise the importance of finality in extradition cases by noting the observations of Lord Thomas in Abu Hamza v. Government of the United States [2012] EWHC 2736 (Admin) at [21] and [22], namely that there is an overwhelming public interest in both the proper functioning of extradition arrangements and in honouring extradition treaties, as well as there being an equally high importance in the finality of litigation. Finality of litigation is particularly important in extradition cases:

'because of the public interest in an efficient process, the need to adhere to international obligations and to avoid a recurrence of the delays which have so disfigured the extradition process in the past and to which successive appeals over time can subject it'."

Discussion

18. On behalf of the appellant, Mr Henley contends that this is an exceptional case. There is clear and cogent evidence that shows that the appellant has been kept in conditions which fall far below the conditions that the Romanian authorities assured the High Court he would be kept in if extradited. There is a sustained, continuing breach of Article 3 ECHR and of a Romanian government assurance. Reopening of an appeal in this case is for the correction of an injustice and to ensure that justice is done. At the very least, submits Mr Henley, the court should show its disapproval of the way it has been misled and make a declaration. There is no alternative remedy by way of appeal to the Supreme Court. Nor is judicial review or habeas corpus available, because Supperstone J's decision is not amenable to judicial review and the appellant is no longer within the jurisdiction for there to be a habeas application. Mr Henley contends that the court is duty bound, at the very least, to make a declaration.
19. Following the hearing in this case, on 4 November 2016, the Divisional Court gave judgment in Romania v. Zagrean [2016] EWHC 2786 (Admin), concerning prison conditions for requested persons extradited from the UK to Romania. By letters in August, September and October 2016 the Romanian authorities reconfirmed the assurance given in February 2015, gave details of how it intended to comply, and guaranteed that appropriate personal space would be were sufficient to show that there was no real risk of a breach of Article 3 ECHR. In light of Romania v. Zagrean the premise of Mr Henley's argument is undermined, unless the argument is that somehow the Romanian authorities have overlooked the appellant's situation. If that were the case, I still see no basis for reopening his extradition appeal.
20. Just assume that an extradited appellant, who has exhausted all appeals in this jurisdiction, is unquestionably being held in prison conditions violating Article 3 ECHR and that is in breach of an assurance given by the authorities in the requesting state. I can well accept that would be a real injustice. However, CrPR 50.27(3)(b) requires not only that there be a real injustice as a consideration to reopening an extradition appeal, but that it is necessary for the court to reopen the appeal in order to avoid a real injustice. To my mind that requires consideration of whether reopening the appeal will provide a practical remedy for the injustice in that appellant's case.
21. The remedy under the 2003 Act where an extradition appeal is allowed is to discharge the appellant from the effect of the EAW. Once the EAW has been enforced, and the person extradited, a decision to discharge would have no effect. If the court as a remedy granted a declaration, there is no way of knowing whether the authorities in the requesting state would feel morally obliged to remove the appellant from the non-compliant ECHR prison conditions. Clearly they would have no legal obligation to act. Either way, there is no reason to conclude that reopening the appeal would lead to the avoidance of the real injustice as regards that appellant. The court should eschew gestures.
22. Moreover, I am not persuaded of the absence of an effective, alternative remedy. Mr Henley sought to give this concept a narrow ambit. The origin of the alternative, effective remedy consideration in the current rules lay, he contended, in Sir George Jessel MR's judgment in Flowers v. Lloyd, adopted by Lord Woolf in Taylor v. Lawrence. It meant an alternative judicial remedy. In the particular circumstances of that case Sir George Jessel MR was dealing with, there was an alternative remedy, in law, in England.
23. In my view consideration of an alternative, effective remedy in CrPR 57.17(1)(c) is not confined to judicial remedies. If any authority is needed for that it comes from R v. Yasain, where the Court of Appeal considered that the Criminal Cases Review Commission, a non-curial body, offered an alternative remedy to reopening a criminal appeal where there was fresh evidence.
24. With extraditions to EAW countries the assumption must be that there are both curial and non-curial remedies open to an appellant. These are countries which are Convention states and Member States of the European Union. Although the remedies in Romania may not necessarily match those available elsewhere, there have been cases about Romanian prison conditions before the Romanian courts and the European Court of Human Rights: see Romania v. Zagrean, [42], [48]. In Florea II, Blake J identified the possibility of matters being taken up by the prisons' ombudsman in Romania and human rights bodies: at [25]. In his statement in this case, the appellant says nothing about having attempted to pursue any of these remedies.
25. These alternative remedies weigh especially heavily in this type of case. A practical consideration is that the court is in no position to make findings about the conditions which the appellant is presently experiencing in Romania. The appellant has adduced evidence but the Romanian authorities have not been invited to respond. If they did respond, and contested the appellant's evidence, the court could not easily resolve the matter. The fact is that this court is not the appropriate forum for adjudicating the matter.

Conclusion

26. Finality weighs heavily in litigation and especially so in extradition proceedings if all appeals have been exhausted and the requested person has been extradited. In old money the court is functus officio. Pilecki and Asztaslos are distinguishable, since in those cases the appellate process in this country was still ongoing and there was no final decision on the requested person's extradition, albeit that the appellants in those cases had been mistakenly removed from the UK. In my view CrPR 50.27 for the reopening of an extradition appeal has no purchase, at least in EAW cases, once a person has been extradited pursuant to a final decision of this court. Any remedy for the extradited person lies elsewhere. I dismiss the application.