Andrew Symeou v Public Prosecutor’s Office At The Court of Appeals, Patras, Greece
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 2009 |
| Neutral Citation | [2009] EWHC 897 (Admin) |
| Docket Number | Case No: CO/10602/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 May 2009 |
[2009] EWHC 897 (Admin)
Before : Lord Justice Laws
Mr Justice Ouseley
Case No: CO/10602/2008
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr E Fitzgerald, QC & Mr J Jones (instructed by Lynn & Associates) for the Appellant
Mr P Caldwell & Miss M Cumberland (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 12th March 2009
This is the Judgment of the Court, prepared by Mr Justice Ouseley:
The Public Prosecutor at the Court of Appeals, Patras, Greece seeks the extradition of Andrew Symeou, a 20 year old British citizen, to face a charge equivalent to manslaughter, arising out of an assault in a night club in Laganas, Zakynthos, in the early hours of 20 July 2007. He is alleged to have punched in the head another young Briton, 18 years old, who had remonstrated with him for urinating on the floor of the club. The victim fell to the ground hitting his head; he was unconscious, and suffered brain injuries from which he died 2 days later. The Appellant denies that he committed the offence and says that he was elsewhere at the time. He left Greece at the end of his holiday on 22 July and returned to the UK, before he became aware that the police thought he was a suspect.
A European Arrest Warrant was issued by the Greek authorities on 18 June 2008, was certified by the SOCA on 24 June, and on 26 June, Andrew Symeou was arrested at his home in London. On 30 October 2008, District Judge Purdy at the City of Westminster Magistrates' Court ordered his extradition. He appeals to this Court under section 26 of the Extradition Act 2003, alleging errors of law in that decision: first and principally that extradition would be an abuse of process because of the way the Greek police had investigated the offence, within which was subsumed what had been a separate argument to the effect that a serious defect in its domestic procedure invalidated the Greek domestic arrest warrant and thereby invalidated the EAW; second, that the passage of time makes it unjust or oppressive to extradite him; and third that extradition would breach Articles 6 and 8 ECHR because of the risk that evidence would be admitted which had been obtained by coercion, and because the offence could be tried here.
Abuse of Process
It was not at issue but that the District Judge has an implied jurisdiction to order a person's discharge if his extradition would constitute an abuse of process, even though that is not one of the bars to extradition specified in section 11 of the Act. Two of those bars merit note: section 13 which prohibits extradition where it appears that its purpose is trial or punishment on grounds including race, religion and nationality; section 14 which prohibits it where the passage of time makes extradition unjust or oppressive. Section 21 also requires the discharge of a person whose extradition would contravene his ECHR rights. The abuse jurisdiction is not to be implied therefore to cover those issues.
The implication of a residual abuse of process jurisdiction was spelt out by Laws LJ in Bermingham and others v Government of the United States of America and another [2006] EWHC 200 (Admin) [2007] QB 727. At para 97, Laws LJ said:
“97. I should not leave the point without considering the nature of the juridical exercise involved in concluding as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the Court.
…The implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson, Schmidt and Gilligan cases, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid's inference – follows.”
The Secretary of State's wide discretion not to order extradition, and the requirement that a prima facie case be shown, had excluded the implication of an abuse jurisdiction under previous legislation, but it did not follow that the residual abuse jurisdiction under the 2003 Act could be implied so as to replace those powers. Indeed, such an implication would have been contrary to the purpose of Part 1 of the 2003 Act.
After saying that the prosecutor had to act in good faith, Laws LJ illustrated what could be bad faith, arising out of the arguments in that case: a prosecutor, knowing that he had no real case, pressing for extradition for some extraneous motive, or deliberately delaying proceedings to avoid the need to show a prima facie case.
This conclusion was elaborated in R (Government of the United States of America) v Bow Street Magistrates Court and Tollman [2006] EWHC 2256 (Admin) [2007] WLR 115 Lord Phillips CJ, after endorsing what Laws LJ had said, continued at para 82:
“Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham LJ, in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, Ex p Ellison [1990] RTR 220, 227:
“If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint.”
83. The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on inquiry as to the possibility of this. The judge will usually, though not inevitably, be put on inquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought.”
Lord Phillips then considered how an allegation of abuse of process should be dealt with by the District Judge: first, he had to have reason to believe that an abuse may have taken place, which required the acts of alleged abuse to be identified with some particularity; second he had to consider whether that conduct, if established, could amount to an abuse of process; third he had to consider whether there were reasonable grounds for believing that such conduct may have occurred. But if so, he should not accede to extradition unless he had satisfied himself that such abuse had not occurred. The parties before us agreed that that was for the extradited person to prove on the balance of probabilities. However, as Lord Phillips said, the District Judge should call upon, here, the issuing judicial authority, for “whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not.”
Lord Phillips also cited in para 81 R (Kashamu) v Governor of Brixton Prison [2002] QB 88 in which Rose LJ, in the context of detention in the course of extradition proceedings, had pointed to the narrow scope of the abuse of process jurisdiction: was there bad faith or deliberate abuse of the English Courts' procedure? It would be a very rare extradition case in which, although the statutory procedures had been followed, it would be possible to argue that abuse of process arose and made detention unlawful.
This citation of authority on the abuse jurisdiction and on how an abuse issue should be resolved is necessary because the agreement between Mr Fitzgerald QC for the Appellant and Mr Caldwell for the Respondent, that the abuse jurisdiction exists, rather masks the gulf which emerged between them during the hearing as to what its scope was, and highlights what the District Judge here was asked or not asked to do. Indeed, the scope of the jurisdiction lies at the heart of the issue in this case.
Although the precise way in which the abuse point was put on the facts has varied from the way in which it was put before the District Judge, in substance, the three factors remained essentially the same. First, the Greek police, through violence and intimidation, had obtained statements from two of the Appellant's friends which wrongly incriminated him and would be admissible against him at trial. Second, other statements from British nationals who had been in the night club at the time, and which incriminated the Appellant, had been manufactured or manipulated by the Greek police, and were demonstrably unreliable. Third, the Greek domestic arrest warrant was issued without compliance with the Greek statutory code of procedure; this failure had deprived the Appellant of an important safeguard, not so much for trial, but rather because it would have given him the opportunity to persuade the Greek judicial authorities that there was no real case against him before his arrest was sought at all.
First, we deal with the two statements alleged to have been obtained through coercion. Mr Klitou and Mr Kyriacou were on holiday with the Appellant. They were then 18 and 19 years old respectively. They had stayed on a couple of days longer than the Appellant as had already been planned. The police had shown photographs of people in nightclubs to witnesses, principally friends of the...
To continue reading
Request your trial
-
Minister for Justice and Equality v Dariusz Stalkowski and Another
...AER (D) 18 (SEP) HAYNES v COURT OF MAGISTRATES, MALTA 2009 EWHC 880 (ADMIN) 2009 EXTRAD LR 189 2009 AER (D) 212 (NOV) SYMEOU v GREECE 2009 1 WLR 2384 2009 EWHC 897 (ADMIN) 2009 EXTRAD LR 251 2009 AER (D) 13 (MAY) BULGARIA v ATANASOVA-KALAIDZHIEVA 2011 EWHC 2335 (ADMIN) 2011 155 36 SJLB 35 Z......
-
Fatjon Kapri V. Her Majesty's Advocate (for The Republic Of Albania)
...of protecting accused persons from unfair trial (Allen v HM Advocate 2010 SCCR 861, Lord Clarke at para [6] citing Symeou v Greece [2009] 1 WLR 2384 and Gomes v Trinidad and Tobago [2009] 1 WLR 1038, Lord Brown at para 35). Accordingly, on 20 January 2011, having reached the view that there......
-
Paul Dunham and Another v Government of the United States
...doubtful whether a decision under an entirely different extradition regime is of much assistance. 29 In Symeou v Public Prosecutor's Office at the Court Of Appeals, Patras, Greece [2009] EWHC 897 (Admin), Ouseley J, giving the judgment of the court, reiterated that the abuse of process juri......
-
Hanif Mohammed Umerji Patel v The Government of India and Another
...the choice of documents accompanying the request, there might be a good submission of no case." (emphasis added) 16 In Symeou v Public Prosecutor's Office, Patras, Greece [2009] 1 WLR 2384, Laws LJ re-iterated: "The residual abuse jurisdiction identified in R (Bermingham) v Director of Seri......
-
Challenging the European Arrest Warrant
...in England as it is in Ireland. at 783. [2009] EWHC 1894 (Admin). [2007] EWHC 2123 (Admin). Para. 20. [2007] EWHC 814 (Admin). [2009] EWHC 897 (Admin). [1978] 1 WLR [2007] EWHC 1770 (Admin). [2009] EWHC 1394 (Admin). [2009] EWHC 1893 (Admin). [2009] EWHC 2748 (Admin). Para. 8. [2009] EWHC 2......
-
European Arrest Warrant
...other than through their legal representatives who could make representations on the issue before the Supreme Court. Symeou v Greece [2009] EWHC 897 (Admin) 21. The respondent public prosecutor of the requesting state had sought the extradition of the appellant to face a charge equivalent t......
-
Running before We Can Walk? Mutual Recognition at the Expense of Fair Trials in Europe's Area of Freedom, Justice and Security
...delays due to prosecution errors, Andrew was nally 55 Symeou v Public Prosecutor’s O ce at Court o f Appeals, Patras, Gree ce [2009] EWHC 897 (Admin) at para. 65.56 See para . 2(b)(iii) Running before We Can Wal k?New Journal of Eu ropean Crimina l Law, Vol.4, Issue 1–2, 2013 97released......