Kalniets v District Court of Ogre

On an appeal under the Extradition Act 2003, fresh evidence must satisfy the statutory requirements that it was unavailable at the extradition hearing and would have produced a different decision requiring discharge. The test is strict. Evidence that could reasonably have been obtained earlier will normally fail at the first hurdle. Evidence bearing a human rights label does not justify a lower threshold.

For an Article 3 challenge to extradition, the appellant must show strong grounds for believing that return would expose him to a real risk of torture or inhuman or degrading treatment or punishment. Fresh evidence must be sufficiently cogent and decisive to establish that risk and to show that the extradition judge would have reached a different conclusion.

The appellant appealed against an order made by District Judge Purdy at Westminster Magistrates’ Court on 3 November 2008 directing his extradition to Latvia to face prosecution for murder under section 21(3) of the Extradition Act 2003.

At the extradition hearing, the appellant gave evidence that he feared violence and unacceptable prison conditions in Latvia. The District Judge rejected that evidence and found no human rights risk. On appeal, the appellant sought to adduce a Latvian lawyer’s report and a 2004 report of the Committee for the Prevention of Torture. The central issues were whether the evidence was admissible as fresh evidence and whether it established a real risk of treatment contrary to Article 3.

1. The appeal was dismissed. The court applied the statutory fresh-evidence requirements in section 27(4) of the Extradition Act 2003. The appellant had to establish that the evidence was unavailable at the extradition hearing, that it would have caused the relevant question to be decided differently, and that discharge would then have been required.
2. Following The Szombathely City Court and Others v Fenyvesi and Fenyvesi [2009] EWHC 231 (Admin), evidence is unavailable only if it did not exist at the hearing or was not at the party’s disposal and could not have been obtained with reasonable diligence. The appellant provided no witness statement explaining why the evidence had not been obtained earlier. The suggestion that previous solicitors might have failed to pursue the issue carried little weight. The evidence therefore failed under section 27(4)(a).
3. Even if admitted, the evidence was not decisive. Applying R v Special Adjudicator ex parte Ullah [2004] UKHL 26, the material did not show strong grounds for believing that return to Latvia would expose the appellant to a real risk of inhuman or degrading treatment or punishment. It also failed to show that the District Judge would have decided the Article 3 question differently, as required by section 27(4)(b).
4. The high threshold for fresh evidence applies equally where the evidence is advanced under a human rights ground. The court therefore dismissed the appeal. Costs were to be assessed in the usual way.

• High Court (Administrative Court): Kalniets v District Court of Ogre [2009] EWHC 534 (Admin) dismissed the appeal.
• Westminster Magistrates’ Court: District Judge Purdy ordered extradition to Latvia on 3 November 2008.