EXTRADITION ? Abuse of Process ? Residual abuse jurisdiction ? Allegation that requesting state?s police manufactured evidence obtained through violence and intimidation ? Whether scope of abuse jurisdiction extending to consideration of misconduct by authorities other than requesting prosecuting authority ? Whether jurisdiction to consider failure to comply with Greek statutory procedure when issuing arrest warrant ? Human Rights Act 1998, Sch 1, Pt I, arts 6, 8 ? Extradition Act 2003, ss 14, 26

Symeou v Public Prosecutor?s Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin); [2009] WLR (D) 146

QBD: Laws LJ, Ouseley J: 1 May 2009

The jurisdiction to order a person?s discharge if his extradition would constitute an abuse of process did not extend to consideration of misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial.

The Divisional Court of the Queen?s Bench Division so stated when dismissing an appeal by the appellant, Andrew Symeou, under s 26 of the Extradition Act 2003 against the extradition order made by District Judge Purdy sitting at the City of Westminster Magistrates? Court on 30 October 2008. The grounds for the appeal were that (1) the extradition would be an abuse of process because of the way the Greek police had investigated the offence, including issuing a domestic arrest warrant which did not comply with the Greek statutory code of procedure, thereby invalidating the European arrest warrant issued under the European Council Framework Decision of 13 June 2002, (2) that the passage of time between commission of the offence and the date of arrest, due to the inexcusable dilatoriness of the Greek authorities, made it unjust or oppressive to extradite the appellant, and (3) that extradition would breach arts 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms because of the risk that evidence would be admitted which had been obtained by coercion and because the offence could be tried in England and Wales.

OUSELEY J, giving the judgment of the court, said that the issue was the scope of the implied residual abuse of process jurisdiction. The public prosecutor was seeking the extradition of the appellant to face a charge equivalent to manslaughter arising out of an assault in a night club. The appellant alleged that the Greek police had obtained manufactured evidence against him through violence, intimidation and manipulation and, furthermore, that the arrest warrant?s non-compliance with the Greek code of procedure rendered it invalid. It was accepted that there was an implied jurisdiction not to order extradition where it was the good faith of the requesting authorities which was at issue because it was their request coupled with perverted intent and purpose which constituted the abuse of the extradition processes of the requested state: see R (Bermingham) v Director of the Serious Fraud Office [2007] QB 727, para 97 and R (Government of the United States of America) v Bow Street Magistrates? Court [2007] 1 WLR 1157, para 82. However the abuse jurisdiction of the requested state did not extend to consideration of misconduct or bad faith by the police of the requesting state in the investigation of the case or preparation of evidence for trial. The reason for the distinction lay in the respective functions of the courts of the requested and requesting state. The former were entitled to ensure that their duties and functions under Pt I of the Extradition Act 2003 were not being abused. It was the exclusive function of the latter to try the issues relevant to the guilt or otherwise of the individual which included admissibility and weight of evidence, and for the trial court to decide whether its own procedures had been breached. Since those issues were for decision by the trial court in the requesting state, it could not be an abuse of the extradition process of the requested state for such an issue to be shown to exist and for its resolution to be available only in the courts of the requesting state. The judicial systems of the countries of the European Union had to be regarded as capable of providing sufficient minimum safeguards for a fair trial in a civilised country. Nor, with regard to the arrest warrant, was there jurisdiction for an English court to form a view on Greek criminal procedure and on the effect in Greek law of any breach of its procedural rules. Since the principal focus of s14 of the 2003 Act was on the effect of passage of time rather than on whether the requesting state was culpably responsible for it and, despite the delay of one year, there was no evidence of prejudice to the appellant or that he would not be dealt with fairly by the court of trial, there was no substance to that ground of appeal. Further, since it would be very difficult to show that there was a real risk of total denial of art 6 rights through extradition and trial by a member of the European Union and a signatory to the Human Rights Convention or that the interests mutually engaged in the extradition process under the Framework Decision should be set aside on art 8 grounds, that ground of appeal failed also.

Appearances: Edward Fitzgerald QC and John Jones (Linn & Associates, Harwich) for the appellant; Peter Caldwell and Melanie Cumberland (Crown Prosecution Service, Special Crime Division) for the respondent.

Reported by: Jeanette Burn, barrister