Leke Prendi aka Aleks Kola v The Government of the Republic of Albania
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWHC 1809 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6035/2014 |
| Date | 24 June 2015 |
[2015] EWHC 1809 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Kenneth Parker
Case No: CO/6035/2014
Alun Jones QC and Daniel Jones (instructed by Central Law Practice) for the Appellant
Daniel Sternberg (instructed by CPS Special Crime Division) for the Respondent
Hearing dates: 21/04/2015
The issue on this appeal
This is the judgment of the court to which both of us have made substantial contributions.
The Government of the Republic of Albania ("the Government") seeks the extradition of the appellant on the basis that he is Leke Prendi, an individual who is said to have been born on 27 September 1980 in the village of Fushe-Arrez, Albania. The Government seeks the appellant's extradition to serve a sentence of 21 years imprisonment for three offences. The sentence was imposed after a trial in the absence of the appellant. The offences are classified under Albanian law as murder, armed robbery and illegal keeping of military weapons. The appellant maintains that he is not Leke Prendi, but Aleks Kola and that he was born on 5 October 1980 in Gjakove in Kosovo. The sole issue on this appeal is whether the finding of District Judge Coleman ("the DJ") that the appellant was, on the balance of probabilities, Leke Prendi, can be sustained.
This is, in form, an appeal against the decision of the DJ of 26 November 2014 to send the appellant's case to the Secretary of State under section 87 of the Extradition Act 2003 ("the EA"). The proceedings are governed by Part 2 of the EA, the Extradition Act 2003 (Commencement and Savings) Order 2003 ( SI 2101 of 2003) and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 ( SI 3334 of 2003). Albania has therefore been designated as a Part 2 territory for the purposes of section 84 (7) of the EA.
We have set out the relevant sections of the EA in the Appendix to this judgment. Those sections are: 77(1), 78, 84(1) and (2), all of which are in Part 5 of the EA, and 202 and 205, which are in Part 3 under the heading "Evidence".
The offences and the proceedings in Albania
The relevant offences were committed in a single episode on 10 April 2000. Leke Prendi, with Anton Kola, Gjovalin Prendi, Anton Pali and Nikoll Nikoli planned to attack and rob passengers on a bus travelling from Fushe-Arrez to Kukes in Albania. The robbers armed themselves with automatic firearms and wore masks. At about 11pm they ambushed the bus which was carrying 22 clerics returning from a pilgrimage. The driver was forced to drive off the main road. The passengers' possessions were stolen from their bags. In the course of the robbery, the firearm carried by Leke Prendi fired by accident and mortally wounded Gjovalin Prendi. One of the robbers was caught by the police, but two of the surviving three robbers escaped. The subsequent criminal proceedings in Albania were conducted on the basis that Anton Kola was the robber caught by the police and that Leke Prendi and Nikoll Nikoli were the robbers who had escaped.
All three robbers were tried, convicted and sentenced on 13 December 2000 by the District Court in Puke, but only Anton Kola was present before the Court. The decision of the District Court records that Leke Prendi had a judicial status of "not convicted", which suggests that he had no previous criminal convictions. The judicial status of Anton Kola and Nikoli Prendi is recorded, in each case, as "convicted". On 30 March 2001 the Appellate Court in Shkoder rejected an appeal brought by Leke Prendi's court appointed lawyer and upheld the sentence of 21 years. Leke Prendi remained at large. At the time of his conviction and appeal he was 20 years old.
Subsequent events: the Interpol "red notice".
The International Criminal Police Organisation ("Interpol") publishes notices known as "red notices". Article 82 of Interpol's Rules on the Processing of Data states:
"Red notices are published at the request of a National Central Bureau or an international entity with powers of investigation and prosecution in criminal matters in order to seek the location of a wanted person and in his/her detention, arrest or restriction of movement for the purpose of extradition, surrender, or similar lawful action".
On 7 February 2005 Interpol published a red notice at the request of Albania in respect of Leke Prendi. The red notice gave Prendi's date of birth as 27 September 1980, and described him as 168cm tall with brown hair and brown eyes. The particulars of identity included a photograph of Prendi. We will call this "the Interpol photograph". The version of the Interpol photograph that we have seen is of relatively poor quality. The subject of the photograph is not looking squarely at the camera; he is turned away with his head poised downwards, so that most of the right side of his face is not shown. Based on our combined experience of looking at official photographs, in our judgment the photograph described above does not have the typical appearance of one taken by police or other authorities for official purposes.
There is no indication on the red notice of the date when the photograph was taken, which must, necessarily, have been sometime before the date of publication of the red notice on 27 February 2005. If this photograph is of Leke Prendi and assuming that his date of birth is 27 September 1980, then Leke Prendi could not have been older than 24 at the time the photograph was taken. If the photograph had been taken before Leke Prendi became a fugitive (on 10 April 2000), he could not have been older than 19 when the photograph was taken.
The red notice also contained information about Prendi's conviction and sentence.
In November 2007 Interpol Tirana published an "addendum/corrigendum" to the red notice. The addendum contained the same photograph as that found in the original red notice, but now included what purported to be copied images of the finger prints of Leke Prendi.
The publication by Interpol of the red notice and the addendum is confirmed by an email dated 25 July 2014 from the Interpol Secretariat General, stating that Leke Prendi was an "entity" registered in the Interpol AFIS/ICIS "since 2007–11–15". However, the information in the red notice was provided by Interpol Tirana, not the Interpol Secretariat General. In the extradition request by the Government to the United Kingdom there is no statement from Interpol Tirana explaining, in particular, when, how and by whom the Interpol photograph and the finger prints were taken or how the images of the fingerprints were created. The red notice itself is not referred to, or included with, the extradition request.
The red notice, with its addendum, triggered no response from any national crime agency until the events described below.
On 20 July 2013 the appellant was arrested in the United Kingdom on an allegation of common assault. He was taken to Northampton Police Station where his finger prints were taken. On 22 November 2013 Robert Unwin, a finger print specialist employed by the Metropolitan Police, compared the finger prints taken on 20 July 2013 with the finger prints image in the red notice. In his view, the finger prints were made by the same person. The appellant does not contest that finding.
On 17 November 2013 the Ministry of Justice of Albania issued the request for the extradition of Leke Prendi. On 16 December 2013 DC Matt Wagstaff went to Wellingborough Magistrates Court in Northampton and met the appellant, who was there in connection with the criminal proceedings for common assault. DC Wagstaff asked the appellant his name, and he replied that he was "Aleks Kola". DC Wagstaff asked the appellant his date of birth, and he replied "5 October 1980". In the light of the finger print match made by Robert Unwin on 22 November 2013, DC Wagstaff told the appellant that he believed that he, the appellant, was Leke Prendi, and that he was sought by the Government for offences committed in Albania. DC Wagstaff then arrested the appellant on a provisional warrant.
DC Wagstaff took the appellant to Northampton Police station where he was booked into custody. The custody record states the appellant's date of birth as 27 September 1980, ie. the date of birth of Leke Prendi. However, there is no evidence that the appellant gave that date to the custody officer as being his date of birth. He had given a different date of birth to DC Wagstaff at the Magistrates' Court, and DC Wagstaff in his evidence did not state, as might otherwise have been expected, that at the police station the appellant admitted that his date of birth was 27 September 1980, ie. the same date of birth as Leke Prendi.
Within the Government's extradition request there is a "Report" of Mr Albert Murcaj, Director of Prosecutions for the Judicial District of Puke, which is dated 10 December 2013. At the end of his report he states that there was not available "any fingerprint card, photos of the convicted". That statement would be consistent with Leke Prendi having no previous criminal convictions as might be inferred from the District Court records referred to in paragraph 6 above. However, Mr Murcaj's statement appears to be inconsistent with the fact that the red notice (based on information provided by Interpol Tirana), purports to contain copy images of the fingerprints of Leke Prendi. Additional documents were...
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