R (Janis Berners) v Westminster Magistrates’ Court; Janis Berners v Council of The Criminal Matters Court Regional Court of Riga Latvia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Mrs Justice Rafferty |
| Judgment Date | 07 May 2010 |
| Neutral Citation | [2010] EWHC 1010 (Admin) |
| Docket Number | CO/12818/2009,Case Nos: CO/1139/2010 & |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2010 |
[2010] EWHC 1010 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Before: Lord Justice Pill
and
Mrs Justice Rafferty
Case Nos: CO/1139/2010 &
CO/12818/2009
Aaron Watkins (instructed by AP Law) for the Appellant
Rebecca Hill (instructed by CPS) for the Latvian Authority
Hearing date: 14 April 2010
Lord Justice Pill:
This is an appeal against a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court on 26 October 2009. The judge ordered the extradition to Latvia of Mr Janis Berners (“the appellant”) pursuant to section 21(3) of the Extradition Act 2003 (“the 2003 Act”). The judge rejected the appellant's case that extradition would be incompatible with his rights under the European Convention on Human Rights, article 3. The appellant gave evidence and written evidence from Dr Sandra Rimsa was before the court. The appellant appeals to this court by virtue of section 26 of the 2003 Act. He also applies for judicial review, seeking to quash the decision of the Magistrates' Court for procedural unfairness.
The appellant is sought by the Latvian Judicial Authority (“LJA”), pursuant to a European Arrest Warrant (“EAW”) dated 12 November 2007, for the purpose of serving a sentence of 5 years imprisonment imposed on 30 October 2007 in respect of 4 offences. Latvia has been designated a Category 1 territory pursuant to section 1 of the 2003 Act and Part 1 of the Act, as amended, applies. The appellant was arrested on 1 April 2009 and produced at City of Westminster Magistrates' Court.
Following earlier adjournments, oral evidence was heard on 22 September 2009. Due to a lack of court time on that day, the judge invited closing submissions in writing. These were supplied by both prosecuting and defence counsel. When the judge delivered judgment, on 29 October 2009, it emerged that he himself had not been supplied with the written submissions on behalf of the appellant. The judge asked counsel for the appellant whether there was anything in those written submissions he had not dealt with in the judgment. Counsel told him that “the main argument which concerned an investigatory breach of article 3 had not been addressed at all”.
The judge also raised the possibility of re-opening proceedings. Counsel for the LJA, Ms Nice, had left court. Before this court is an agreed note of the judge's subsequent statement. He stated:
“The possibility of re-opening proceedings was discussed. The learned judge indicated he may have the power to do so, but considered it better for counsel for the defendant to discuss the matter with Ms Nice and, if thought appropriate, return to court to address the judge as to what should be done. In fact no further mention of this matter was raised before the judge. The learned judge helpfully made it clear for the defendant's benefit that the seven day appeal period should be considered to start from the day of judgment.”
In his judgment on 29 October, the judge summarised the evidence given by the appellant and in Dr. Rimsa's report. He also considered CPT (Committee for the Prevention of Torture) reports on Latvia dated February 1999, October 2002 and May 2004. The judge summarised the evidence of the appellant about prison conditions in Latvia, which the appellant had experienced previously. Conditions were intolerable, the appellant said, and there is a real risk of his suffering at the hands of prison officers. Further, he had enemies in the Latvian underworld against whom the prison authorities were incapable of protecting him.
The judge found the appellant “an unconvincing witness, … he has exaggerated his concerns”. There was no medical evidence to support the appellant's contentions. The judge noted:
“He makes no allegations that he suffered any physical violence either at the hands of prison guards or inmates, when last incarcerated. He seems more concerned about the quality and quantity of food provided.”
The judge did not find the report of Dr Rimsa, a recently qualified lawyer, helpful.
Having considered the CPT reports, the judge noted various shortcomings in the Latvian prison system highlighted. He stated:
“There is no scope for complacency, but it must be noted the reports are not condemning the whole prison system as being non-compliant with article 3 ECHR. There is nothing in the reports, or on my assessment of the defendant's evidence, anything to show that he is at a real risk of being subjected to article 3 ill-treatment either from the guards or fellow prisoners.”
On the evidence, the judge was entitled to reach that conclusion. The judge rejected the appellant's claim based on article 3. He added that the case was a “prime example” of a worrying trend in extradition cases that challenges which are “devoid of merit” are made and proceedings prolonged so that persons can serve more of their sentences in English prisons where conditions are perceived to be preferable to those awaiting them on surrender.
For the appellant, Mr Watkins accepted his difficulty in challenging the judge's conclusion on article 3, given the high threshold involved. He based his claim on the judge's failure to consider his closing written submissions. That was linked with a submission that, as a result, no consideration had been given to what he described as his main argument in those submissions, an alleged breach of the duty to investigate which arises from article 3. Mr Watkins submitted that it was a free-standing obligation for which there must be a remedy.
Mr Watkins submitted that the failure to hear a party is a fundamental defect. Had the judge considered the written submissions, it might have tipped the balance on credibility in the appellant's favour. The strong comment about absence of merit made by the judge at the end of his judgment demonstrates a hostile attitude by the judge, it was submitted.
Further, in the absence of the written submissions, the judge did not consider, when assessing whether there had been a breach of article 3, the lack of enquiry by the Latvian Authorities into the earlier ill-treatment of the appellant. The allegations relate to conduct a number of years ago. This failure demonstrated a continuing breach of article 3 and was relevant to an assessment of future risk, it was submitted.
To re-open the proceedings in the Magistrates' Court, when the non-delivery to the judge of the written...
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