Herdman and Others v Deputy Public Prosecutor Appeal Court of Crete, Greece
| Jurisdiction | England & Wales |
| Judge | Sir Anthony May P,Blair J |
| Judgment Date | 23 June 2010 |
| Neutral Citation | [2010] EWHC 1533 (Admin) |
| Docket Number | Case No: CO/3678/2010,CO/3678/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2010 |
[2010] EWHC 1533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Sir Anthony May
President Of The Queen's Bench Division
Mr Justice Blair
Case No: CO/3678/2010
Mr Alun Jones QC and Ms Rebecca Hill (instructed by Kaim Todner) for the Appellants
Mr Hugo Keith QC and Ms Gemma Hobcraft (instructed by the Crown Prosecution Service) for the Interested Party (in the Judicial Review) and the Respondent (in the statutory appeals)
Hearing date: 9 June 2010
This is the Judgment of the Court, prepared by Mr Justice Blair:
The Deputy Public Prosecutor of the Appeal Court of Crete, a Greek Issuing Judicial Authority, seeks the extradition of six requested persons, namely the five claimants/appellants, Daniel Mark Bell, Sean Kevin Branton, George Oliver Hollands, Curtis Mathew Steven Taylor and Benjamin Peter Herdman, and one other, Joseph Peter Bruckland, all pursuant to European Arrest Warrants issued on 29 September 2009, and certified by the Serious Organised Crime Agency on 24th November 2009. As regards Bruckland, proceedings stand adjourned under s. 22 Extradition Act 2003, since he is facing a domestic criminal charge of assault occasioning actual bodily harm in the Hove Crown Court. As regards the others, extradition was ordered by District Judge Tubbs in the City of Westminster Magistrates’ Court on 16 February 2010. The matter comes before this court, first, by way of an application for permission to apply for judicial review of the judge's decision refusing their application for an adjournment of the 16 February 2010 hearing, and second, by way of an appeal under s. 26 Extradition Act 2003. On 26 March 2010, Collins J ordered the proceedings to be heard together. The five people bringing the proceedings are claimants in the judicial review application, and appellants in the s. 26 appeal, and for convenience we will refer to them in this judgment as the appellants. The Crown Prosecution Service appears as interested party in the judicial review proceedings, and the Deputy Public Prosecutor of the Appeal Court of Crete is the respondent to the statutory appeal. Both have the same representation, and for convenience we shall refer to them in this judgment as the respondent.
Each of the European Arrest Warrants (EAWs) states that it relates to one offence of “jointly and intentionally commit[ting] severe physical injury”, contrary to various articles of the Greek Penal Code. The offence is the European Framework List offence of “[attempted] murder, grievous bodily injury”. The alleged conduct in respect of which the appellants’ extradition is sought is detailed in section E (“Offences”) of the warrants. In summary, it alleged that at approximately 5 a.m. on 17 June 2008, in the town of Malia, Heraklion, Crete, the appellants (together with Joseph Bruckland) intentionally and jointly hit the victim, another UK national called Robert Hughes, twice on the head using a glass bottle and then, after he had fallen down, kept on hitting and punching him, mostly on the head, until he was saved by some passers-by. The victim it is said suffered life threatening brain and facial injuries, requiring neurosurgery and a long period of rehabilitation. The precise nature of the appellants’ cases varies, but in substance each of them denies any participation in the alleged incident, and maintains their innocence of the charge.
As noted, the alleged incident took place on 17 June 2008. What happened afterwards, in summary, is as follows. On 19 June 2008, the appellants made statements to the police, and thereafter returned to the UK. On 13 May 2009, summonses were issued for them to appear before the court in Crete on 17 June 2009. On 3 June, the appellants’ solicitor wrote to the court in Heraklion asking for certain information. The appellants did not appear on 17 June, and after a number of chasing letters from their solicitors, on 28 September 2009 the court responded to the effect that it could not provide information sought without written authorisation from the appellants, and that if copies were desired of the witness statements, the appellants should appoint a lawyer who could do so.
The EAWs, as already indicated, were issued on 29 September 2009, but the appellants were not arrested until 4 December 2009. All the appellants appeared that day at the City of Westminster Magistrates’ Court and were remanded in custody (though by 18 December 2009, they had all been granted bail). The matter was listed for hearing on 11 December 2009 with an expectation that it would not be effective on that date. For the purposes of that hearing, an outline argument had been prepared on behalf of the appellants dated 10 December 2010. As well as bail, it dealt with defences to extradition, raising an argument that the EAWs failed to satisfy the requirements of s. 2 Extradition Act 2003, because they failed to indicate whether the person sought was wanted because he was accused, or convicted, or wanted merely for interrogation. A brief intimation was also given of an argument based upon what was said to be a threatened breach of Art. 5(4) ECHR, it being stated that the appellants wished to investigate further. With that in mind, on 23 December 2009, the appellants’ solicitors applied to the Legal Services Commission for prior authority for the preparation of an expert report on Greek law.
On 23 December 2009, the appellants’ solicitors also wrote again to the issuing judicial authority. On 28 December 2009, the Appeals Prosecutor of Crete wrote to Eurojust to the effect that criminal prosecution had been instituted against the appellants (and Bruckland), that they had not been convicted in their absence, and that the Heraklion court of first instance had competence. (This letter was not copied to the appellants’ solicitors by the CPS until 2 February 2010.)
The appellants’ skeleton argument explains that on 30 December 2009, the case was listed for mention, and an effective hearing date of 16 February 2010 was fixed (it was fixed for half a day). At the hearing, concerns were raised by appellants’ representatives regarding their ability to be ready for an effective hearing on 16 February. Accordingly, the skeleton argument explains that it was clarified that the fixture was subject to any application by the defence, if granted, notice of which was to be given as far in advance of the hearing as possible. The next entry in the appellants’ chronology prepared for this appeal is on 18 January 2010, when the Legal Services Commission granted authority for an expert report on Greek law, as requested on 23 December 2009.
On 4 February 2010, the appellants’ solicitors wrote to the City of Westminster Magistrates’ Court requesting an adjournment of the hearing listed for 16 January 2010. That day, the CPS responded objecting to the application on the basis that the defence solicitors had known since the summonses to attend the court in Greece the previous summer that they would require the services of a Greek lawyer. In respect of the questions raised by the defence, it stated that these had been forwarded to the Greek authorities, but “I do not need to remind you that Greek authorities are under no obligation to respond. Further, the Greek authorities are entitled to rely on the contents of the European Arrest Warrants alone”. By letter of 9 February 2010, the Court of First Instance of Heraklion wrote to the Public Prosecutor of the Court of Appeals of Crete to the effect that it was not “advisable” to answer the appellants’ solicitors’ letter of 23 December 2009, because the answers to the questions “ensue from the documents of the case file which have been made available to the advocate of the accused persons and to the Crown Prosecution Service”.
On 12 February 2010, the Greek lawyer (Mr John Kyriakides) who had been instructed by the appellants to provide an opinion pursuant to the Legal Services Commission authority given on 18 January 2010 emailed the appellants’ solicitors to the effect that he now had part of the file, and especially the part concerning the issue under investigation. Mr Kyriakides said that the “EAW was indeed legally issued within the framework of the [conduct] of the Ordinary Investigation”. He confirmed the contents of an earlier email in that regard. He set out the procedure that would follow extradition, in particular as regards bail. Such measures, he says, would be “valid for a maximum period of 18 months during which period it is expected that they will be sent to trial (some or all of them)”. He said that he believed that “this completes our mandate”. (This email was shown to the respondent and to the court at the hearing on 16 February 2010, and we have been provided with a copy.)
On 15 February 2010, the defence filed a note referring to some of the above matters, and stating that, “Not all the information in the court file has yet been made available. It appears that if the defendants are extradited, they may be liable to spend up to 18 months either in custody or on bail, or a combination of both, pending a decision whether to send them, or some of them to trial. It is expected that the remaining information from the file will be made available to the Greek lawyer instructed by the defence in the next...
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