Antonia Ilia v Appeal Court in Athens, Greece
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 14 December 2022 |
| Neutral Citation | [2022] EWHC 3114 (Admin) |
| Docket Number | Case No: CO/0653/2012 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3114 (Admin)
Mr Justice Julian Knowles
Case No: CO/0653/2012
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Muthupandi Ganesan (instructed by Mordi & Co) for the Applicant
James Stansfeld and Robbie Stern (instructed by CPS) for the Respondent
Hearing dates: 22 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 14 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an application to re-open an extradition appeal, pursuant to Crim PR r 50.27. This provides:
“1.1.—a) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(1) Such a party must—
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the High Court officer and every other party.
(2) The application must—
(a) specify the decision which the applicant wants the court to reopen; and
(b) 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.
(3) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations.”
This case has a lengthy history. The Applicant's extradition to Greece was ordered as long ago as 2012. Since then there have been two substantive hearings in the Divisional Court (in 2014 (Rafferty LJ and Underhill LJ) and 2015 (Aikens LJ and Nicol J), reported at [2014] EWHC 2372 (Admin) and [2015] EWHC 547 (Admin) respectively), and one application to re-open the appeal in 2019, which was refused on the papers by Nicol J. This is therefore the second application to re-open the extradition appeal.
I will refer to the two Divisional Court judgments as ‘the First Judgment’ and ‘the Second Judgment’ respectively.
For the full history of the extradition proceedings up until March 2015 (when the Second Judgment was handed down), including the numerous delays and interlocutory hearings, the reader is referred to those two decisions.
There have also been parallel asylum proceedings. Asylum was refused by the Secretary of State, and the Applicant's appeal to the First-tier Tribunal was refused, as was an appeal to the Upper Tribunal. There is currently an application for permission to appeal to the Court of Appeal before that Tribunal, which was lodged earlier this month.
The Applicant was, until her dismissal for misconduct in July 2005, a judge of the First Instance Court in Athens. A few days before her dismissal she came to this country and settled under a false identity. She was arrested at her home in Sussex on 15 May 2011.
Taking matters shortly, the Applicant's extradition was originally concerned with five European arrest warrants (EAWs) issued by the Greek judicial authorities (being the public prosecutors in Athens and Piraeus). EAWs 1–4 related to alleged misconduct in the Applicant's role as a judge, for which she was sentenced in her absence to varying terms of imprisonment. EAW5 contained accusation and conviction elements, relating to a series of offences over the period 2000–2004, in which the Applicant was said to have corruptly abused her position as a judge and otherwise acted improperly.
Extradition was ordered by District Judge Purdy at Westminster Magistrates' Court on 16 January 2012.
The Applicant appealed, and Rafferty and Underhill LJJ gave judgment on 14 June 2014.
As recorded in that judgment at [13], during the appeal proceedings, and shortly prior to the judgment, the four conviction EAWs were withdrawn and the order of the district judge in relation to those EAWs was quashed. That left the Court to consider the Applicant's appeal under EAW5 only.
The Court allowed the Applicant's appeal against twelve ‘breach of duty’ offences in that warrant on the ground that they were not extradition offences under s 10 and s 65 of the Extradition Act 2003 (EA 2003). The Court dismissed all the remaining grounds of appeal, save for two, which were left undecided: (a) whether the conditions in the prison in which the Applicant would be detained were so poor/overcrowded that extradition would be contrary to her rights under Article 3 of the European Convention on Human Rights (ECHR); and (b) whether (in relation to the conviction part of EAW 5) extradition would constitute a disproportionate interference with the Applicant's rights under Article 8 of the ECHR, having regard to the short sentence of imprisonment (24 days) to which the Applicant would be subject for the conviction offences following the ‘falling away’ of a number of offences and having regard to other periods which served to be deducted from the original sentence (see at [38] and the Second Judgment, [7]).
In the Second Judgment, on 6 March 2015, Aikens LJ and Nicol J gave judgment on the remaining issues, having heard live expert evidence and full argument on Article 3 ECHR. The Court was satisfied that there were no substantial grounds for concluding that there was a real risk that the Applicant's Article 3 ECHR rights would be infringed. That was principally because there was an assurance from Greece that if she were to be extradited, she would be detained in the New Branch of the Independent Women's Prison Establishment at Korydallos.
As to Article 8 ECHCR, the Court noted that ‘there is no family life to consider nor are there any interests of minor children to take into account’ ([73]–[76]). The appeal was therefore dismissed on both grounds.
As I have said, the First and Second Judgments set out in great detail the delays in the extradition process which, even then, had occurred. I need not point out that one of the principal purposes of the EAW scheme was to reduce the delays which had bedevilled previous extradition regimes, even in relation to EU states which are also signatories to the ECHR (like Greece).
The Appellant was due to be extradited in December 2016 (the immigration proceedings then having ended), but she failed to attend the agreed meeting point with Sussex Police. When contacted by police officers, the Applicant claimed that she was sick, unable to travel and that she had obtained a sick note from her doctor. There were then proceedings in the magistrates' court about whether she was too ill to travel. Her claim was apparently not backed up by her doctor, who had refused to sign a sick note to that effect. The district judge said he could not be certain of the position, but gave a strong warning to the Applicant that there should be no further sick notes or attempts to avoid extradition.
The next date for removal was 19 January 2017. On this date, the Applicant obtained a note from the doctor at Heathrow Airport who deemed her unfit to fly after she claimed she was suffering from vertigo. In the interim, the Applicant lodged an application for judicial review of the decision to extradite her (this was refused) and, as I understand it, she made an application to re-open the immigration proceedings.
On 12 July 2019, the Applicant made her first attempt to reopen the extradition appeal. That application was advanced on the basis that a new Greek Penal Code had come into force on 1 July 2019, changing the conduct for which her extradition was sought (on the accusation part of EAW 5) from ‘felony’ offences to ‘misdemeanour’ offences. She submitted that this reform rendered the offences time barred, such that she could no longer be prosecuted for those offences. In the circumstances, she submitted that it would be disproportionate to extradite her to serve 24 or so days on the conviction matter.
A written response to the application (dated 8 August 2019) was provided by the Respondent and was supported by Further Information (FI). The FI confirmed that the introduction of the new Penal Code; however, the Penal Code had only partial effect on the conduct contained in the EAW. All but one of the accusation offences were now time barred, having been transformed into ‘misdemeanours’. However, the Applicant could still be prosecuted for the one offence unaffected by the changes, the offence of money laundering. As to the conviction matter of (originally) 80 months, whilst this was also impacted by the new Penal Code, it did not become time barred until 12 November 2019. At the time of the application, therefore, the Applicant still had to serve the remaining 24 days of that sentence and would be liable to serve any sentence on the one outstanding accusation matter in the event she were convicted of it.
The application to re-open was refused by Nicol J on 12 August 2019 on the papers. He held that the one outstanding accusation matter was serious and could potentially lead to a further custodial penalty in addition to the outstanding 24 days. In any event, he did not consider that the impact of the new Penal Code amounted to ‘real injustice’ or ‘exceptional circumstances’ within the meaning of Crim PR r 50.27.
The order for the Applicant's extradition therefore still stood, although her removal remained barred until the conclusion of her immigration proceedings.
According to the Applicant, on 28 June 2021, the First-tier Tribunal refused her asylum claim. On 19 October 2021, she was granted permission to appeal to the Upper Tribunal. On 21 September 2022, the Upper Tribunal refused her appeal. As I have said,...
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