Ignaoua & Ors v The Judicial Authority of the Courts of Milan & Ors

Where an extradition order has been challenged by the statutory appeal route, Extradition Act 2003, section 34 excludes a collateral challenge by habeas corpus. This remains so where the challenge relies on evidence said to undermine the earlier decision. A fundamental change occurring after the statutory appeal may instead justify an application to reopen the appeal under CPR 52.17, but only in exceptional circumstances and where necessary to avoid real injustice. Such an application must not become a rehearing or tactical extension of extradition proceedings. Fresh evidence must materially undermine the basis of the earlier appeal decision, particularly where the alleged consequence is exposure to treatment contrary to Article 3 of the ECHR.

The claimants were detained under European Arrest Warrants issued for their extradition to Italy. The District Judge ordered extradition under sections 21(1) and 21(3) of the Extradition Act 2003, and the Divisional Court dismissed their statutory appeals on 28 July 2008: [2008] EWHC 1988.

The claimants then sought habeas corpus, relying on fresh evidence said to show a real risk that Italy would deport them to Tunisia, where Article 3 ill-treatment was accepted to be a risk. They also relied on pending asylum proceedings and refugee status. The central questions were whether habeas corpus remained available after the statutory appeal and, if not, whether the Divisional Court’s decision could be reopened under CPR 52.17.

1. Jurisdiction. The applications for habeas corpus were refused. Section 34 of the Extradition Act 2003 provides that a decision attracting a statutory appeal may be questioned only by an appeal under the Act. The extradition order itself authorised continued detention under section 176(6). A habeas application seeking to invalidate that order was therefore a prohibited collateral challenge.
2. Effect of In re Hilali. The House of Lords decision, [2008] UKHL 3; [2008] 1 AC 805, established that habeas corpus was excluded where the decision was one against which the Act provided a right of appeal. The earlier Divisional Court reasoning in Hilali v Governor of Whitemoor Prison, [2007] EWHC 939, could not support a different result.
3. Reopening the appeal. The court granted permission to apply under CPR 52.17, applying the principles in Taylor v Lawrence, [2002] EWCA Civ 90; [2003] QB 528. The application had to satisfy the exceptional-circumstances and real-injustice requirements, and there had to be no alternative effective remedy. The statutory appeal decision remained the starting point. The procedure could not be used to rerun the appeal with additional evidence.
4. The genuinely new documents did not materially undermine the Divisional Court’s reasoning. They did not establish a pattern beyond the single post-Saadi v Italy incident already considered, nor did they affect the significance of extradition under the Framework Decision, mutual judicial confidence, or the absence of evidence that Italy would deport a person extradited under a European Arrest Warrant to a real Article 3 risk.
5. The asylum claim and refugee status added nothing material. The applications for habeas corpus and to reopen the appeal were refused. The injunction was continued only until 10.30 am the following day, subject to any petition to the House of Lords. There was no order as to costs, save for legal aid taxation.

• Divisional Court: the statutory appeals against the extradition order were dismissed on 28 July 2008: [2008] EWHC 1988.
• High Court (Administrative Court): habeas corpus was refused and the application to reopen the appeal was refused on the merits.