England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/04/2011

Mr Justice Sweeney :

Introduction

1. The Appellant, who is now aged 35, is a Polish citizen. He first came to this country on 24 July 2005. He appeals, under the provisions of section 26 of the Extradition Act 2003 ("the Act"), against two orders, each made under section 21(3) of the Act in the City of Westminster Magistrates' Court, that he be extradited to Poland (a Category 1 territory), as follows:-

i) An order made by Senior District Judge Workman on 29 June 2010, following an uncontested hearing during which the Appellant was represented by the Duty Solicitor, in connection with an European Arrest Warrant ("EAW") issued by the Circuit Court of Torun on 5 May 2010, and certified by the Serious Organised Crime Agency ("SOCA") on 8 June 2010, in respect of:-

a) An offence of fraud in relation to property of high value alleged to have been committed in Bydgoszcz and Torun in the period from 24 September 2001 to 27 November 2002 – for which the appellant was sought for prosecution.

b) An offence of fraud committed in Grudziadz, Inowroclaw, Plock and Wlocklawek in the period from 8 February 2002 to 27 November 2002 and in respect of which the appellant was convicted and sentenced to 2 years' imprisonment – for which he was sought in order that he serve a remaining balance of 1 year 8 months and 21 days' imprisonment, as ordered by the District Court of Wloclawek on 12 July 2006.

ii) An order made by District Judge Tubbs on 11 November 2010, following a contested hearing on 27 September 2010 during which the Appellant represented himself, in connection with an EAW issued by the Regional Court of Bydgoszcz on 29 July 2009, and certified by SOCA on 6 July 2010, in respect of:-

a) An offence of persistently neglecting his duties concerning the employment legislation and social insurance, alleged to have been committed in the period from June 2003 to August 2004 – for which the appellant was sought for prosecution.

b) An offence of appropriating entrusted property ("swindling"), alleged to have been committed on 19 August 2004 – for which the appellant was also sought for prosecution.

2. There is a preliminary issue in relation to the appeal against the uncontested order made on 29 June 2010, namely as to whether the Appellant (who now represents himself in both the appeals) complied with the mandatory provisions of section 26(4) of the Act, CPR Part 52.2, and paragraph 22.6A(3)(a) of the Practice Direction to CPR Part 52 by serving a notice of appeal on the Crown Prosecution Service ("CPS"), which has represented the First Respondent throughout, within the seven day period thereby prescribed.
3. Notwithstanding the preliminary issue, the court heard argument de bene esse in relation to the appeal against the order made on 29 June 2010, as to which the Appellant advanced two grounds of appeal, namely that:-

i) Neither of the offences in the EAW issued on 5 May 2010 were extradition offences as defined in the Act.

ii) He was convicted of the second offence in absentia, and thus should have been discharged under the provisions of s.20(7) of the Act.

4. As well as the two grounds advanced by the Appellant at the hearing, the papers before the court include six additional grounds of appeal in relation to the order made on 29 June 2010, namely that:-

i) Extradition was barred by reason of the rule against double jeopardy.

ii) Extradition was unjust and/or oppressive via the passage of time.

iii) Extradition was incompatible with the appellant's human rights – in particular those under Articles 3, 6 and 8 of the European Convention.

iv) Extradition was unjust and/or oppressive by reason of the appellant's mental condition.

v) The proceedings constituted an abuse of process.

vi) Article 4 (6) of the Framework Decision applied so as to bar extradition.

5. As to the appeal against the contested order made on 11 November 2010, the Appellant advanced three grounds of appeal at the hearing, namely that the learned Judge was wrong to conclude that :-

i) The alleged offence of persistently neglecting his duties concerning the employment legislation and social insurance was an extradition offence as defined in the Act.

ii) The Appellant was aware of the allegation of appropriating entrusted property before he left Poland and that thus extradition was not barred by the passage of time.

iii) Article 4(6) of the Framework Decision did not apply.

6. As well as the three grounds advanced by the Appellant at the hearing, the papers before the court include three additional grounds of appeal against the order made on 11 November 2010, namely that the learned Judge was also wrong to conclude that:-

i) The Appellant would receive a fair trial in Poland

ii) There were no substantial grounds to believe that there was a real risk that the appellant's Article 3 and 6 rights would be breached after his return to Poland.

iii) Extradition was compatible with Article 8

The broad legal background

7. As Poland is a Category 1 territory, Part 1 of the Act applies.
8. The aim of the Council Framework Decision that established the EAW system was to create a simpler, quicker, more effective procedure, founded in Member States' confidence in the integrity of each other's legal and judicial systems – see, for example, the speeches of Lord Bingham in The Office of the King's Prosecutor v Armas [2006] 2 AC 1 and Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31.
9. Section 27 of the Act provides that:

"(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition."

10. As to section 27(4)(a) it is, of course, normally incumbent on those involved in litigation in first instance courts or tribunals to advance their whole case at that stage, including all the evidence on which they want or need to rely.
11. In giving the judgment of the court in The Szombathely City Court & Others v Fenyvesi & Fenyvesi [2009] 4 AER 324, which was concerned with the identically worded s.29(4)(a) of the Act, Sir Anthony May, President said:_

"32. In our judgement, 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. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different, resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

…

35. 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. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive."

12. In Kalniets v District Court of Ogre [2009] EWHC 534 (Admin), which was followed in Sondy v Crown Prosecution Service [2010] EWHC 108 (Admin), this Court ruled that the approach to new evidence enunciated in Fenyvesi should also apply to s.27(4)(a) of the Act. In Sondy the court further ruled that if an appellant criticises those who represented him during the extradition hearing, for example as part of seeking to place new evidence before the court, he must formally waive privilege and invite his former lawyers to deal with the allegations against them. The court pointed out that appeals cannot proceed upon the basis of untested and speculative assertions.
13. However, the position in relation to raising legal issues on appeal that were not raised during the extradition hearing is quite different. In Hoholm v Norway [2009] EWHC 1513 (Admin), which was concerned with a Part 2 case and the identically worded s.104(4)(a) of the Act, this court (Stanley Burnton LJ & Wilkie J) held that the section distinguished between the approach to new legal issues and the approach to new evidence. Thus the court ruled that where a legal issue was available to be raised by an appellant on the evidence adduced at the extradition hearing, the appellant was in general, if not always, entitled, on a proper reading of s.104, to raise that issue on appeal to the Divisional Court, even though the issue was not raised at the hearing. It seems to me that the same approach to legal issues must apply in relation to s.27(4)(a).

The preliminary issue.

14. As I have already touched on above, the combined effect of section 26(4) of the Act, CPR Part 52.2, and paragraph 22.6A(3)(a) of the Practice Direction to CPR Part 52 is, amongst other things, to require an appellant to serve his notice of appeal on the respondent within a prescribed seven day period.
15. In relation to the uncontested order made on 29 June 2010, the seven day period expired at midnight on 5 July 2010.
16. In Mucelli v Government of Albania [2009] 1 WLR 276 the House of Lords held, by a majority, that:-

i) An appellant must lodge and serve a notice of appeal on the court and the respondent within the seven day period prescribed.

ii) It is not possible to extend that prescribed time period.

iii) Any failure to serve a notice of appeal within the prescribed time period will thus mean that there is no valid appeal before the court.

iv) Any such appeal would thus be irredeemably out of time and could not proceed.

17. In accordance with section 206 of the Act, the burden therefore lies on the Appellant to prove, on the balance of probabilities, that he served a notice of appeal on the CPS before midnight on 5 July 2010.
18. In a witness statement dated 24 February 2011, the Appellant asserted, amongst other things, that:-

i) On Wednesday 30 June 2010, the day after the uncontested order was made, he tried to contact the Duty Solicitor who had represented him.

ii) In the result, he spoke to a lady at the solicitor's office, who advised him that legal aid was not available for an appeal, and that he should research on the internet how to appeal on his own behalf.

iii) He started to carry out such research and, as a result, on Friday 2 July 2010 sought advice from a clerk at the Salford County Court (the nearest court to his home address in Manchester) as to how to properly lodge an appellant's notice and supporting documentation.

iv) The advice that he was given included the necessity, within seven days of the original order, to lodge an appellant's notice and grounds at the Administrative Court Office and to serve all necessary documentation on those representing the first respondent.

v) On Monday 5 July 2010 he attended the Administrative Court Office and, with some help from a clerk, duly lodged a notice and grounds of appeal.

vi) The clerk stressed to him the need to serve the documentation on the first respondent, via the CPS, that same day, and provided him with an address at "2 Suffolkbridge Road, London SE7 9HS" together with fax and telephone numbers – one of which was 0203 357 0427.

vii) He then returned to Manchester from where he faxed the notice and grounds to the CPS, and retained the log report from the fax machine with his other appeal documents.

viii) On 12 July 2010 he was arrested in connection with the EAW issued by the Regional Court of Bydgoszvz, was advised by the arresting officer to take with him all his papers in connection with his appeal against the uncontested order, and did so.

ix) He was then remanded in custody to Wandsworth Prison.

x) On 15 July 2010, when moving in a hurry from one Wing to another in Wandsworth Prison, he left all his papers (including the vital fax log report) in his original cell, after which all the papers were lost.

xi) The court should also consider the fact that normally, if there was no service on the Respondent, extradition would be enforced within about ten days – citing examples.

19. The Appellant thus made clear in the witness statement that his case was that having left the Administrative Court Office on Monday 5 July 2010 he returned to Manchester, and that it was from there that he effected service by fax. It was in support of that account that the appellant addressed the court during the hearing of the appeal.
20. That account must, however, be contrasted with the content of a number of documents (and in particular a letter to the CPS dated 6 December 2010) from Messrs Atlee Chung & Company (the solicitors who were instructed by the Appellant until shortly before the hearing of the appeal) setting out the Appellant's then instructions.
21. Those instructions are recorded as being that at approximately 2.30 – 3p.m. on 5 July 2010 the Appellant went to the office of the CPS extradition team on the 5^th floor of the City Westminster Magistrates' Court and there served the papers on a lady who accepted service, but who said that she did not have the materials to provide a receipt. Thereafter, at approximately 3.30p.m. (and thus, it must be, whilst still in London) the Appellant also scanned and faxed the notice and grounds to the CPS fax number provided to him by the Administrative Court Office.
22. The First Respondent relies upon a witness statement dated 2 February 2011 by Hannah Pye, a barrister seconded to the Extradition Unit of the Special Crime Division of CPS Headquarters, who had conduct of the proceedings against the Appellant. She stated, amongst other things, that:-

i) The caseworker who was on duty at the City of Westminster Magistrates' Court on 5 July 2010 no longer works for the CPS.

ii) However, if appeal documents were served at the room on the 5^th floor of the Magistrates' Court they would have been forwarded to the Extradition Unit at 2 Southwark Bridge Road via a secure courier service - yet no appeal documents from the Appellant were received in that way.

iii) The Extradition Unit office systems are designed to record all incoming documentation, and thus if the Appellant's documentation had been faxed that would have been recorded in the relevant CPS records.

iv) The CPS only became aware of the appeal on 9 July 2010, and then only as a result of correspondence from the Administrative Court Office, and did not actually receive the Appellant's notice until as late as 31 August 2010.

23. Against that background, it seems to me that:-

i) There have been significant variations in the account put forward by the Appellant.

ii) It is difficult to see how those variations, in particular as to when and how service was affected, can be the product of innocent mistake.

iii) In any event, the accounts of being refused a receipt, and of the loss of the vital fax log report without trace, stretch credibility to breaking point.

iv) In contrast the First Respondent's evidence, although system based, is clear.

24. In the result, I conclude that the Appellant has failed, by some margin, to prove on the balance of probability that he served his notice of appeal on the CPS before midnight on 5 July 2010. Therefore, in accordance with Mucelli (above), the appeal against the uncontested order made on 29 June 2010 is irredeemably out of time and cannot proceed.

Further brief observations as to the appeal against the order of 29 June 2010

25. Although the appeal cannot proceed I propose, in deference to the arguments that were addressed to the court as to the merits, and because the Appellant represents himself, to make some further brief observations.
26. Although the order was uncontested, the Appellant would have been entitled, in accordance with Hoholm v Norway (above), to raise on appeal the legal issue of whether the offences alleged in the EAW were extradition offences as defined in the Act.
27. That said, it seems to me that both offences plainly are extradition offences. As to the first offence, s.64(2) of the Act applies – the conduct alleged took place in Poland and no part of it occurred in the United Kingdom, the warrant labels the offence as fraud which is within the European Framework list, and the warrant shows that the maximum sentence is 10 years' imprisonment (exceeding the 3 year minimum required). As to the second offence, s.65(2) of the Act applies – the conduct alleged took place in Poland and no part of it occurred in the United Kingdom, the warrant labels the offence as fraud which is within the European framework list, and the warrant shows that a sentence of two years was imposed (exceeding the 12 month minimum required).
28. Given that the EAW indicates on its face that the sentence for the second offence was not passed in absentia, the second ground of appeal would have been dependant on fresh evidence that the Appellant sought to put before the court. That evidence was in the form of witness statements from the Appellant and the lawyer instructed by him in Poland, a chronology by the Appellant and assertions made by him in his Skeleton Argument. The admissibility of the fresh evidence was based upon criticisms of the Duty Solicitor who represented the Appellant at the extradition hearing. However, contrary to the procedure required in such circumstances by Sondy v Crown Prosecution Service (above), there was nothing from the Duty Solicitor before the court in response to the allegations made against him, and thus no firm basis upon which it could be argued that the high threshold of admissibility identified in the Fenyvesi case (above) was met. In addition, there were clear indications that even if sentence was passed in absentia, the Appellant must have deliberately absented himself. Accordingly, in my view, this ground would also have failed.
29. The first five additional grounds of appeal (see paragraph 4 above) also depended upon the same fresh evidence and therefore, in my view, would also have failed.
30. Nor was there any merit in the sixth additional ground, given that Article 4(6) of the Framework Decision was not implemented in the Act.
31. Thus, if this appeal had been able to proceed, I would have dismissed it on the merits.

The appeal against the order of 11 November 2010

Ground 1

32. The Appellant asserts that the alleged offence of persistently neglecting his duties concerning the employment legislation and social insurance was not an extradition offence as defined in the Act.
33. In paragraph E3a of the EAW the offence is described as "persistent infringing the employment legislation" contrary to Article 218 section 1 and Article 12 of the Penal Code.
34. In paragraph E2a the circumstances in which the offence was committed are said to be as follows:-

"In the period from June 2003 till August 2004, being the owner of the CHIP PLUS enterprise in Bydgoszcz in 19b, Wojska Polakiego, he persistently neglected his duties concerning the employment legislation and social insurance by not signing up the worker as subject to the social insurance and not making the due payments of the retirement insurance fee for ZUS, with which he was acting to the detriment of Witold Szufrajda, employed in his enterprise."

35. In paragraph C1a of the EAW the maximum length of sentence is said to be two years' imprisonment.
36. In a submission dated 9 September 2010, which was signed by the Chief Justice of the Regional Court, and which was in evidence at the extradition hearing under the provisions of s.202 of the Act, further details of the alleged offence were set out, including the fact that the Appellant had damaged the Treasury of the Republic of Poland.
37. In her judgment the learned Judge ruled that the offence was an extradition offence upon the basis that it came within the criteria of s.64(3) of the Act, in that:-

i) The alleged conduct took place wholly within Poland.

ii) The judicial authority had satisfied her that if the conduct had taken place in this country it would constitute the offences of being knowingly concerned in the fraudulent evasion of contributions contrary to s.114 of the Social Security Administration Act 1992, and/or cheating the public revenue, and/or false accounting contrary to s.17 of the Theft Act 1968.

iii) The maximum sentence of two years exceeded the minimum twelve months required.

38. In support of this ground the Appellant argued that:-

i) It was incumbent on the Second Respondent to prove to the criminal standard that the conduct relied upon would, if perpetrated in this country, amount to a criminal offence.

ii) Hertel v Government of Canada [2010] EWHC 2305 (Admin) is authority for the proposition that if three alternative scenarios are put forward on behalf of the requesting authority then it has failed to prove its case to the required standard.

iii) That was what happened in this case.

39. Whilst it was incumbent on the Second Respondent to prove its case to the criminal standard on this issue, I have no doubt that the learned Judge was correct to conclude that it had done so. Given the breadth of conduct alleged, it did amount, in all, to the three overlapping offences which the learned Judge identified. In contrast, the Hertel case was concerned exclusively with cheating the revenue, and the requesting authority sought to suggest that, on the facts, three categories of tax charge potentially arose. The court ruled that, on the particular facts, it could not be sure that any one of those categories applied and that thus a corresponding offence had not been proved. The factual position in the appellant's case was wholly different.
40. For the sake of completeness I should add that I have no doubt that the learned Judge was also right to conclude that the offence of appropriating entrusted property ("swindling") was an extradition offence, as it undoubtedly met the criteria in s.64(2) of the Act.

Ground 2

41. The Appellant asserts that the learned Judge was wrong to conclude that he was aware of the allegation of appropriating entrusted property before he left Poland, and that therefore extradition was not barred by the passage of time.
42. In argument the Appellant accepted that he was aware, before leaving Poland, of the investigation into the allegation that he had neglected his duties in connection with the employment legislation and social insurance. Indeed, he indicated that he had accepted an offer by the prosecution to plead guilty, to receive a suspended sentence, and to pay the monies owed. He said that the case had then been referred to a Judge for approval or otherwise, and that he had been sure that that was the end of the matter.
43. In the submission signed by the Chief Justice that was in evidence at the extradition hearing (see paragraph 35 above) it was made clear that there was a court hearing on 20 July 2005 (four days before the Appellant first came to this country) concerning the Appellant's application for voluntary punishment, that the Appellant was on personal notice of that hearing, and that he failed to attend. The submission indicated that thereafter there were a number of further hearings that the Appellant failed to attend, culminating in the issue of a domestic warrant in February 2007 and (after information had been received that the appellant was in this country) the issue of the EAW on 29 July 2009. The submission also made clear that the Appellant had not informed the court of his intention to leave the country, and that he was regarded as being a person hiding from justice.
44. The Appellant asserted in argument that the allegation of appropriating entrusted property ("swindling") arose from a simple dispute with a customer of a window replacement business that he ran about the return of a normally non-refundable deposit. He accepted that the police had been involved at one stage, and that he had been on unconditional bail, but asserted that the matter had all been sorted out amicably before he had left Poland in July 2005, and that he had thought that the case was closed.
45. In her judgment, the learned Judge said this in relation to the Appellant's knowledge and the passage of time bar:-

"The law on this issue is not in dispute. The allegations date from 2003/4. The Defendant in evidence accepts that he was aware of the allegations, he had been questioned by the police and had made arrangements with the Polish Prosecutor to pay an agreed fine before he left Poland on 24 July 2005. I accept his evidence on those points. In addition he stated that he had left permission for monies, paid into a court in Poland on another matter, to be transferred for payment of the agreed fine on these extradition matters and that he was sure that he had cleared everything when he left Poland. I do not accept his account on this. Even on his own evidence the prosecution had notified him that the court would have to sanction any proposed transfer of monies and he did nothing to check that the transfer had occurred. He also stated in evidence that he had not supplied his UK address and contact details to the Polish court or prosecutor but stated that he had supplied them to the Polish Embassy in London in August 2005.

I do find that the Defendant left the Polish jurisdiction aware of the proceedings against him and aware that the matter had not finally been concluded and without supplying his UK address to the court or the prosecution. He has, therefore, been author of the delay in these proceedings and, applying Gomes and Goodyer v Trinidad and Tobago [2009] UKHL 21, he may not rely on the bar of the passage of time.

If he had been entitled to rely on this bar I would not have found it would be either unjust or oppressive by reason of the passage of time to extradite him. The relevant period is not too long. The Defendant was aware of the detail of the allegations within a few months. The Defendant's submission as to "unjustness" relied on the fact he had now destroyed his own copies of the invoices and receipts as Polish law only required business receipts to be kept for 5 years, and the difficulties of tracing relevant witnesses in those circumstances. The allegations will to a great extent depend on documentary evidence and, if the Defendant has chosen not to preserve his copies, the prosecuting authorities will have preserved relevant items. I am not persuaded that relevant witnesses will not be traceable or available to give evidence on behalf of the Defendant.

…

I do not find that the Defendant's extradition is barred by reason of the passage of time…"

46. It seems to me that, on the evidence before her, the learned Judge was entitled, for the reasons that she gave, to reach the conclusions that she did, and that nothing that the Appellant has placed before this court alters that position.

Ground 3

47. Article 4(6) of the Council Framework Decision of 13 June 2002 provides that:-

"The executing judicial authority may refuse to execute the European Arrest Warrant: ….

6. If the European Arrest Warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law."

48. Although this issue does not appear to have been raised before the learned Judge, the Appellant argues that:-

i) The court should refuse to execute the EAW in accordance with Article 4(6) – particularly given the need to attach weight to the possibility of increasing his chances of re-integrating into society when any sentence imposed on him expires.

ii) In the alternative, the court should make his extradition subject to the condition that he will be returned to this country after trial, and allowed to serve any sentence or pay any penalty here.

49. In my view there is no merit in this ground. As I have already touched on above, Article 4(6) was not implemented in the Act. In any event, it is of no application in respect of these offences in relation to which the appellant is sought for prosecution. Finally, as Miss Westcott points out on behalf of the Second Respondent, once the matters in Poland are concluded the Polish authorities will have no power to stop the Appellant coming back to this country.

The additional grounds.

50. As indicated above, it is also asserted in the papers before the court that the learned Judge was wrong to conclude that:-

i) The Appellant would receive a fair trial in Poland.

ii) There were no substantial grounds to believe that there was a real risk that the Appellant's Article 3 and 6 rights would be breached after his return to Poland.

iii) Extradition was compatible with Article 8.

51. In relation to these grounds it is important to recall that Poland is a Category 1 territory, and a signatory to the European Convention of Human Rights, and thus it is to Poland that the Strasbourg Court would look to uphold the appellant's rights – see KRS v United Kingdom [2008] ECHR 1781.
52. Against that background, Miss Westcott in her Skeleton Argument drew the court's attention to the decision of the House of Lords in Gomes v Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038, at paragraph 35, as to the ready assumption that Council of Europe countries are capable of protecting an accused against an unfair trial.
53. In addition, in Targosinski v Poland [2011] EWHC 312 (Admin) and Agius v Malta [2011] EWHC 759 (Admin) this court underlined the assumption that a Category 1 state will be able to, and will, fulfil its convention obligations, and made clear the need for clear and cogent evidence to rebut that assumption
54. In my view, there was no clear and cogent evidence before the learned Judge to indicate a real risk that the Appellant would not receive a fair trial or that his Article 3 and 6 rights would otherwise be breached. Nor is there any such evidence in the papers before the court. Accordingly, the learned Judge's reasoning and conclusions in these regards cannot be faulted.
55. Nor, in my view, can the learned Judge's reasoning and conclusions in relation Article 8 be faulted either, and nor is there anything else in the papers before the court which causes me to take a contrary view – particularly given the principles enunciated by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] 2 AC 487 (exceptionally serious interference with Article 8 rights required).
56. It follows that there is no merit in the additional grounds.

Conclusion

57. For the reasons I have set out above, and if my Lord agrees, I would dismiss both appeals.

Lord Justice Jackson

58. I agree.