Atkinson and Another v Supreme Court of the Republic of Cyprus
| Jurisdiction | England & Wales |
| Judge | Maurice Kay LJ,Collins J |
| Judgment Date | 17 June 2009 |
| Neutral Citation | [2009] EWHC 1579 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/906/2009 CO/907/2009,CO/906/2009 & CO/907/2009 |
| Date | 17 June 2009 |
[2009] EWHC 1579 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Maurice Kay
Mr Justice Collins
CO/906/2009 CO/907/2009
Alun Jones QC, Abigail Bache and Dejan Mladenovic (instructed by Messrs Kaim Todner) appeared on behalf of the Claimant
Peter Caldwell and Rachel Barnes (instructed by Crown Prosecution Service Extradition Unit) appeared on behalf of the Defendant
As Approved by the Court)
: Each appellant is appealing against orders of District Judge Purdy dated 26 January 2009 that they be surrendered to Cyprus to serve sentences of three years imprisonment for offences of manslaughter and causing grievous bodily harm with intent. The extradition falls within Part 1 of the Extradition Act 2003 and was based on European Arrest Warrants (EAWs), which referred to the offences as murder and acts intending to cause grievous bodily harm. Murder is stated because “murder, grievous bodily injury” is referred to in Article 2(2) of the Council Framework Decision, (which Part 1 of the 2003 Act implements) and the word “murder” covers unlawful killing. Thus no point is taken on behalf of the appellants against the accuracy of the EAW.
While the case for each appellant had to be considered separately, the factual background in each was identical. Thus their cases were heard together before the District Judge and their appeals have been heard together before this Court. Each was represented by the same solicitors and counsel.
The facts which give rise to the convictions can be stated shortly since these appeals concern the manner in which those convictions resulted, not the underlying circumstances of the offences. The appellants were holidaymakers. They were among a group who got involved in a brawl with some Cypriots outside a disco in Protaras which resulted in one of that group suffering injuries which necessitated hospital treatment. The appellants' uncle, named Harrington, went to see the injured man and was told that the Cypriots who had been responsible had escaped on motorcycles.
Shortly after, an independent witness, also English, saw a group including the appellants throwing stones at Cypriots riding motorcycles outside the hospital. The appellants together with another man, Goodman, who had a knife, got into a car driven by Harrington. The car then pursued one of the motorcycles at high speed. This was the first pursuit. The car returned and the witness asked the driver, Harrington, “Are you after the Greek boys?” Harrington replied “They hurt one of our boys, they will get it”. When this was being said, Goodman was holding up his knife and the appellants were giggling. Thereupon a motorcycle with two Cypriots on it came by and the car set off after it. In due course, it collided with it and one of the riders was killed, the other was seriously injured. Neither had been involved in the brawl. The appellants chose not to give evidence but made unsworn statements, each stating he had had a great deal to drink and never had any intention of injuring anyone.
The appellants attended the hearing of the charges against them before the Assize Court. By a majority, that court acquitted them on 15 February 2007. The law of Cyprus permits the prosecution to appeal against an acquittal to the Supreme Court. Such an appeal was lodged on 28 February 2007. Unfortunately, there is no agreement as to the powers of the Supreme Court on such an appeal to receive or to act on fresh evidence. The Crown Prosecution Service has received a letter from the senior counsel in Cyprus who prosecuted the case against the appellants. She says that the Supreme Court has “extensive powers to hear or receive other evidence”. The Court has power she says to “re-examine the admitted evidence, to come to its own conclusions, to hear and admit further evidence and, where the circumstances of the case so require to hear anew any witnesses already heard by the first instance court”. Before the District Judge, Mr Alun Jones QC sought to rely on the website of the Supreme Court which stated that the Court “only hears evidence in exceptional and very rare circumstances”. This was not agreed by the Crown Prosecution Service. Subsequently, the appellants have obtained a report from Mr Nicos Clerides, a barrister of the Middle Temple who practises in Cyprus. He says that the Supreme Court on appeal against an acquittal has no power to hear any fresh evidence or conduct a trial. Its powers are limited by the relevant statutory provision since appeals by the Attorney-General against acquittals can only be brought on the following grounds:—
“(i) That there was no evidence on which the Assize or District Court could reasonably find a fact or facts to support such judgment;
(ii) That evidence was wrongly admitted or excluded;
(iii) That the Law was wrongly applied to the facts;
(iv) That there has been some irregularity of procedure.”
As will become apparent, I do not think that the precise extent of the Court's powers (if any) to receive or consider fresh evidence is material. I am content to approach my decision on the basis that there is no power to consider fresh evidence so as to reach a finding of fact material to deciding guilt. I suspect that evidence which is relied on to establish a procedural irregularity may be admitted and a conclusion of fact reached, but that would not go to guilt. Further, as happened in these cases since both appellants were legally represented before the Supreme Court, material which went to mitigation was put forward and taken into account. It is common ground that there is no possibility of any further review or retrial.
The Assize Court attached no weight to the appellants' statements and found:—
“… the facts of the case point to a conduct over an extended period of time which included more than one pursuit of motorbikes and which provided the possibility to the accused to understand the actions which were taking place and to react irrespective of the form of this reaction might have taken.”
It decided that there was a common purpose, namely to punish those who had injured their friend. But there was no common understanding as to the manner in which this punishment would be meted out. Thus there was, it decided, no positive encouragement of Harrington (who pleaded guilty) which could make the appellants guilty.
The Supreme Court decided that the facts found showed that the appellants were bent on vengeance against the motorcyclists for injuring their friend. The first pursuit was described by the independent witness as a “death race”. This, coupled with the conversation with the witness just before the second pursuit which led to the death and injury, showed that the appellants were clearly party to a common intention to “get” the motorcyclists. This meant they were guilty together with Harrington. I have no doubt that that conclusion was inevitable and the same verdict would have resulted if the trial had been held in England.
It is to be noted that the appeals against the acquittals were brought on three grounds. The first was that the Assize Court had “applied wrongly the law to the real facts of the case”. The second was that “there was no proof on the basis of which the Assize Court could reasonably establish a fact necessary for founding its judgment”. This was an allegation that the two particular conclusions reached were unreasonable. The third was that the Assize Court had misconstrued the prosecution case as to the common illegal purpose of those involved in the offending behaviour. Thus the Supreme Court was not asked to nor did it consider any fresh evidence save in relation to mitigation. It was concerned only to determine whether on the facts found by the Assize Court the decision to acquit was wrong in law. It determined it was and so it substituted convictions.
Following the acquittals, the appellants left Cyprus. It is not suggested that there was any reason why they should not have done and no steps were taken by the prosecution in Cyprus to prevent them from so doing. The prosecution could have requested that arrest warrants were issued to ensure their presence at the Supreme Court, but did not do so. Thus they did not attend the hearing at the Supreme Court, but each was represented by counsel who were able to make submissions on their behalf and to mitigate in relation to the sentences to be imposed. It is clear that neither appellant was prejudiced by his absence from the Supreme Court and the convictions were fully justified.
The notices of appeal to the Supreme Court were sent to the Home Office for service on the appellants. Each was sent by recorded delivery with a covering letter in standard form which was singularly unhelpful inasmuch as it asserted that the documents enclosed constituted either a summons for a forthcoming court date or a judgment. No court date was given. Further, the letter stated:—
“You are not obliged under U.K. law to comply with the court's decision or to take any action.”
However, it did indicate that the recipient might wish to seek independent legal advice. Mr Atkinson received his but Mr Binnington had moved from his address and did not. However, his lawyer contacted his mother by e-mail on 26 February 2007, since he had been notified of the intention to appeal. He said that the appeal notice had to be served personally on Mr Binnington and, if it was not “the appeal will be dismissed without a hearing”. That was an incorrect...
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