Antonia Ilia v Appeal Court in Athens (Greece)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 06 March 2015 |
| Neutral Citation | [2015] EWHC 547 (Admin) |
| Docket Number | Case No: CO/653/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2015 |
[2015] EWHC 547 (Admin)
Lord Justice Aikens
Mr Justice Nicol
Case No: CO/653/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Cooper (instructed by Faradays Solicitors) for the Appellant
James Stansfeld (instructed by CPS Extradition) for the Respondent
Hearing dates: 21/11/2014
Written submissions made on several dates thereafter. Latest received 24 February 2015.
This is the judgment of the court to which each of us has contributed.
The case so far
Antonia Ilia ("the appellant") is a citizen of the Greek Republic. She was a judge of the First Instance Court in Athens until her dismissal in July 2005. A few days before her dismissal she came to the UK and settled here under a false identity. She was arrested at her home in Sussex in May 2011. Originally the Public Prosecutor, Court of Appeal, Athens (the "Judicial Authority" or "JA") sought the appellant's extradition under five European Arrest Warrants ("EAWs"). Four of these EAWs are what are often called "conviction" EAWs, ie they requested the surrender of the appellant in order that she serve sentences passed on her by a court in Greece. We are no longer concerned with those EAWs, which we will call EAWs 1–4. The fifth EAW was, essentially, an "accusation" EAW although there are possible complications which we will explain below. We will call it "EAW 5" for short.
Greece is a Category 1 territory for the purposes of the Extradition Act 2003 (the " EA") so that Part 1 of the EA applies to the case and to this appeal. EAW 5 was issued on 8 April 2011. The Serious Organised Crime Agency certified EAW 5 on 9 May 2011. As stated above, the appellant was arrested on 15 May 2011.
Extradition proceedings have been very drawn out. On 16 January 2012 District Judge Purdy ("the DJ") rejected the appellant's challenges to all five EAWs and ordered her extradition on the basis of all those EAWs.
The appellant appealed. The matter came before Rafferty LJ and Underhill J (as he then was). There were two hearings before them, in March 2013 and June 2014 ( sic). Judgments in the appeal were handed down on 14 July 2014. Underhill LJ gave the substantive judgment.
On the appeal a large number of grounds were relied on by the appellant and her lawyers to oppose extradition. The history of the appeal, the grounds relied on and the conclusions of this court can all be read in the comprehensive and very clear judgment of Underhill LJ. The upshot of the appeal was: (1) the four conviction EAWs were withdrawn. Therefore the order of the DJ in relation to those EAWs was quashed and the appellant was discharged in respect of them. (2) In relation to EAW 5, all the grounds of appeal save for two were dismissed. (3) Rafferty LJ and Underhill LJ did not decide two grounds of appeal, neither of which had been raised before the DJ. These were: first, whether the conditions in the prison in which the appellant would be detained pending trial and would be imprisoned if convicted, were so poor that it would be contrary to the appellant's Article 3 rights to extradite her to Greece; secondly, whether, in relation to the "conviction" part of EAW 5, it would be a disproportionate interference with the appellant's Article 8 rights to extradite her.
This second issue concerned a sentence of 80 months for which the appellant's surrender was sought under EAW 5. At [38] of Underhill LJ's judgment he set out the explanation of the JA on how that sentence would, in fact, be reduced to one of only 20 months. In addition, account would have to be taken of the fact that the appellant had been held in custody for a period of 17 months and 21 days between 15 May 2011 and 6 December 2012. This period would have to be deducted from the outstanding sentence pursuant to the terms of Article 26 of the Council Framework Decision 2002 ("the FD"). At [99] of his judgment Underhill LJ records that the total sentence that remained to be served if the appellant were extradited on the "conviction" element of EAW 5 would be only 24 days.
The reason why this court did not make a decision on the Article 3/prison conditions issue was that expert evidence on conditions in the prison in which the appellant would be remanded and imprisoned if convicted, the Korydallos women's prison, had been served on behalf of the appellant at a very late stage in the appeal process. This evidence of Professor Tsitselikis was "fresh" evidence because the Article 3/prison conditions point had not been taken before the DJ. Rafferty LJ and Underhill LJ decided that, despite the fact that this was new evidence, it should be admitted: see [93] of the judgment of Underhill LJ. As he summarised the position, at [94]:
"The upshot is that I believe that we are obliged to admit the evidence of Professor Tsitselikis and to give the [JA] the opportunity to answer it. That gives rise to certain case-management questions, which I would propose that we deal with as follows."
Underhill LJ then set out a timetable for the JA to respond to the evidence of Professor Tsitselikis and it was ordered that both he and any expert relied on by the JA should be available for cross-examination at a further hearing. The court also decided that it could not deal with the Article 8 arguments until the Article 3 issue had been decided so that issue was also adjourned in consequence.
In accordance with directions made by Rafferty LJ and Underhill LJ further information was provided by the JA on 30 September 2014. That information contained an assurance that upon surrender the appellant would be detained in Greece in the New Branch of the Independent Women's Prison Establishment at Korydallos, which has been called for convenience "the New Wing".
The hearing of the Article 3/prison conditions and Article 8 issues was due to be heard by a differently constituted Divisional Court consisting of the Lord Chief Justice and Foskett J on 29 October 2014. In fact the hearing did not go ahead that day. Instead the court granted authority for Professor Tsitelikis to provide a further report, dealing with a new assurance. That report was served on 6 November 2014. In addition, a report from Assistant Professor Koulouris, also on behalf of the appellant, was served.
The hearing of the Article 3/prison conditions and Article 8 issues finally took place before the present constitution on 21 November 2014. On that occasion we heard oral evidence from Professor Koulouris and Professor Tsitelikis via video-link. We heard submissions from Mr Ben Cooper, counsel for the appellant, and Mr James Stansfeld, counsel for the JA. As a result of questions asked in cross-examination of Professor Tsetselikis, he promised to provide the court with further materials, in particular a statement given by the Greek Minister of Justice (Mr Charalambos Athanasiou) to the Permanent Parliamentary Committee on the Penitentiary System on 19 November 2014. This material was provided. Subsequently, on 8 December 2014, a general election was called in Greece, which was to be held on 25 January 2015. The Secretary General of the Ministry of Justice, one of those who gave the assurances, then resigned.
On 5 January 2015 the court received an unsolicited email from the solicitors for the appellant which stated that they had been contacted by Professor Koulouris who said that, as a result of the elections, there could be radical changes in the administrative structure of the Ministry of Justice and the political leadership of the prison administration. Professor Koulouris also stated that, whichever party or parties formed the new government, there was likely to be a review and reform of prison policies, which might put in question the applicability of the assurances given in the appellant's case by the then current Minister of Justice and Secretary General of Crime Policy of the Ministry of Justice. The implicit request was that this court should await the outcome of the elections before completing its judgment.
As is well known, the Greek general election resulted in a wholesale change of government. On 1 February 2015 the appellant submitted, again unsolicited, a joint statement from Professors Tsitselikis and Koulouris of the same date. On 4 February 2015 the JA lodged an email with the court, objecting to this document being received by the court. That email was followed by a three page document described as "Appellant's observations on the IJA's submissions" of 5 February 2015. On 9 February this court made an order that it would permit the joint statement to be admitted. We gave the JA 14 days in which to respond. The court made it clear that it would thereafter receive no more evidence from the parties on any issue as it wished to finalise its judgment. The material from the JA was finally received by the court on 24 February 2015.
We appreciate that the circumstances of this case are unusual, but we strongly deprecate the practice adopted by the appellant and her advisors in this case (both before Rafferty LJ and Underhill LJ and us) of serving further evidence and submissions after the hearing has been completed, without asking the court whether it wished or permitted such further materials to be adduced. When a hearing has been concluded, unless there is a particular matter that has been left outstanding, that must be the end of submitting further materials or observations to the court, unless the court specifically asks for, or agrees to...
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