Atkinson & Anor v Supreme Court of Cyprus

For extradition purposes, “trial” may comprise a continuing process ending only when the requesting state has made a final determination. Where an acquittal remains subject to a prosecution appeal, the appeal forms part of the trial process, even if the appellate court conducts only a legal review.

“Deliberately” absenting oneself ordinarily requires a conscious decision not to attend. Poor or incorrect legal advice does not necessarily prevent absence from being deliberate. Questions about the fairness of the process, including compliance with Article 6 of the European Convention on Human Rights, are principally addressed under section 21 of the Extradition Act 2003.

The appellants had been acquitted by the Cypriot Assize Court of offences arising from a road collision in which one motorcyclist died and another was seriously injured. The prosecution appealed. The Supreme Court of Cyprus reviewed the factual findings, concluded that the appellants shared a common intention to pursue and injure the motorcyclists, and substituted convictions and custodial sentences.

The appellants were represented by lawyers at the Supreme Court hearing but were not present. District Judge Purdy ordered their surrender under Part 1 of the Extradition Act 2003. The issues were whether the Supreme Court appeal formed part of their trial, whether their absence was deliberate, and whether surrender would breach their Convention rights.

1. The appeals were dismissed and the District Judge’s orders affirmed. The Supreme Court appeal formed part of the appellants’ trial. Under section 20(3) of the Extradition Act 2003, “trial” means the process leading to a final determination. An acquittal subject to a prosecution appeal is not final, so it is unnecessary to examine the appellate hearing in isolation or to decide whether the appeal could receive fresh evidence.

2. Part 1 must be construed purposively and consistently with the Council Framework Decision. The court should adopt a broad, internationalist approach that recognises differences between domestic criminal procedures. A construction imposing additional barriers to surrender, not required by the Framework Decision, should be avoided where the statutory language permits.

3. “Deliberately” in section 20(3) ordinarily means that the requested person made a conscious decision not to attend. It does not require an intention to evade justice. The appellants knew of the appeal and its possible consequences. The mistaken advice that the prosecution would fail did not prevent their decisions not to attend from being deliberate.

4. Whether the absence was deliberate is distinct from whether surrender would breach Convention rights. Article 6 compliance is assessed under section 21. The appellants had received a full hearing before the Assize Court and were represented on the legal issue before the Supreme Court. The trial process as a whole was therefore not shown to be incompatible with Article 6.

5. The court declined to follow the narrow construction of “trial” adopted in Government of Albania v Bleta. The concerns identified in that decision were better addressed under section 21, rather than by treating “trial” as a single domestic-style hearing.

The judgment itself records that District Judge Purdy ordered surrender on 26 January 2009. The Divisional Court dismissed the appeals and affirmed those orders.