R Bulla v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SULLIVAN |
| Judgment Date | 07 December 2010 |
| Neutral Citation | [2010] EWHC 3506 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2010 |
| Docket Number | CO/15359/2009 |
[2010] EWHC 3506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Lord Justice Sullivan
CO/15359/2009
Mr R Menon (instructed by Russell Cooke) appeared on behalf of the Claimant
Mr J Jones (instructed by CPS) appeared on behalf of the Defendant
: This is an appeal under Section 103 (1) of the Extradition Act 2003, ("the Act") against the decision of District Judge Evans on 26 October 2009 to send the appellant's case to the Secretary of State under Section 87 (3) of the Act. On 3 December 2009 the Secretary of State ordered the appellant's extradition to Albania.
In very brief summary, the background to the matter is this: after being acquitted on a number of occasions and having had those acquittals annulled in his absence, this appellant was eventually convicted in his absence on 20 June 2003 of an armed robbery which had occurred on 23 June 1996. He was sentenced to 10 years' imprisonment.
There are a number of grounds of appeal against the District Judge's decision. For present purposes it is necessary to mention only one of those grounds. The District Judge earlier concluded that the minimum requirements for a fair trial as specified in Section 85 (8) were satisfied because the appellant would be entitled to a retrial if he was returned to Albania.
In so concluding in paragraph 31 of his judgment the District Judge said that he was bound to follow the decision in Armand Bogdani v Albanian Government [2008] EWHC 2065 (Admin).
The District Judge said that that case had reviewed the earlier decisions and had resolved an important question: "On the basis of material" then available, Bogdani had effectively reversed the Divisional Court's earlier decision in Government of Albania v Bleta [2005] EWHC 475 (Admin), in which the court had said that on the evidence then produced it could not be satisfied that the respondent would be entitled to a retrial. The court in Bleta had said that there were, "Too many loose ends".
Further information was provided to the court in Bogdani which persuaded it to revise that conclusion and to reach the conclusion that, in effect, the loose ends had been tied up.
When the present case last came before the Divisional Court on 22 July 2010 (Stanley-Burnton LJ and Nicol J) there was an application on behalf of the appellant to admit further expert evidence of a Mr Gorgji, an Albanian lawyer. Mr Gorgji's evidence by reference to a number of cases was that the appellant would not be entitled to a retrial. Mr Gorgji's evidence was not before the District Judge.
The court adjourned the matter, saying that it wanted an explanation as to why Mr Gorgji's evidence was not produced earlier. It also observed that there was some lack of clarity in the statement as to various matters. The opportunity was afforded to the appellant to put in a final version of Mr Gorgji's evidence.
According to the notes of Mr Jones who appears on behalf of the Republic of Albania, Nicol J asked for a reply from Albania regarding the practical application of article 147 of the Albanian Criminal Code in Albania. That reply was to be given within 28 days of any additional report submitted on behalf of the appellant.
In the light of the explanations provided on behalf of the appellant, the respondent now accepts that the fresh evidence produced on behalf of the appellant is admissible. Further evidence has also been produced in the shape of a decision of the Constitutional Court in Albania. To some extent that decision appears to be inconsistent with Mr Gorgji's evidence.
However, of greater significance is the fact that somewhat belatedly, the Albanian Government responded to Mr Gorgji's evidence and also sought to answer Nicol J's question. It did so on 19 October 2010.
I fully appreciate that there are often difficulties of interpretation in extradition cases of this kind, but making all due allowances for such difficulties, it does seem to me that a very great deal has been lost in the process of interpreting the responses of the Albanian government in this case.
The response makes it clear, Mr Jones accepts, that the expert evidence of Mr Gorgji, to the effect that the three individuals mentioned in his report did not have an automatic right to play for a retrial, was correct. Mr Jones submits that that appears to have arisen because of the particular circumstances in their cases, namely that appeals were made on their behalf to the Court of Appeal and later to the High Court. Those appeals were dismissed. It would appear that even though those appeals were made in their absence, that factor was sufficient to disentitle them to a retrial as of right. They had the power to ask for a review but the court apparently has a discretion as to whether or not to allow a review.
Perhaps of more significance is the response to Nicol J's question. I think rather than attempt to paraphrase that response I can do no better than simply read it out verbatim:
"The institute of the reinstatement in time limit that is regulated by Article 147 of the Code of Criminal Procedure provides opportunities to the parties of the criminal process due to...
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