Symeou v Public Prosecutor -Patras, Greece

In a Part 1 extradition case, the residual abuse-of-process jurisdiction protects the integrity of the requested state’s extradition process. It is concerned with bad faith by the requesting prosecuting authority, not alleged police misconduct in the investigation or disputes about evidence for trial.

The requested state’s court should not determine foreign criminal procedure, the validity in foreign law of a domestic warrant, or the admissibility and weight of foreign trial evidence. Those matters are for the trial court in the requesting state, absent cogent evidence of prosecutorial bad faith or a collateral purpose.

Under section 14 of the Extradition Act 2003, the material question is whether delay has caused proved prejudice making extradition unfair. Assertions of prejudice and of inadequate foreign safeguards do not suffice.

The Greek prosecuting authority sought the appellant’s surrender under a European arrest warrant to face a charge equivalent to manslaughter arising from an alleged assault in Zakynthos. The appellant denied involvement.

On 30 October 2008, District Judge Purdy at the City of Westminster Magistrates’ Court ordered extradition. The appellant appealed under section 26 of the Extradition Act 2003. He alleged abuse of process arising from coerced or manipulated witness evidence and an allegedly defective Greek domestic arrest warrant. He also relied on delay under section 14 and on Articles 3, 6 and 8 ECHR.

The central issues were whether those complaints could be determined by the English extradition court and whether they barred surrender.

1. Appeal dismissed. The residual abuse jurisdiction exists to prevent abuse of the requested state’s extradition process, but it is narrow. It is not an additional means of raising matters covered by the statutory bars in the Extradition Act 2003.

2. The jurisdiction concerns bad faith by the requesting prosecuting authority. A request made for a collateral purpose, or despite knowledge that the prosecution cannot succeed, may amount to abuse. Alleged misconduct by police in the requesting state while investigating the offence or obtaining evidence does not, without more, establish abuse of the extradition process.

3. Accordingly, the District Judge was not required to investigate whether Greek police had coerced statements or manipulated identification evidence. The admissibility and weight of such evidence, and the facts concerning how it was obtained, were matters for the Greek trial court. The court rejected the submission that the English court should conduct a partial inquiry into those matters before surrender.

4. The court likewise had no jurisdiction, save in a true case of prosecutorial abuse, to determine disputed questions of Greek criminal procedure or whether an alleged defect in the Greek domestic arrest warrant invalidated the European arrest warrant. The mutual-recognition system under Part 1 required a swift and simplified surrender process. There was in any event no cogent evidence that the prosecutor had acted in bad faith.

5. For section 14, the focus was the effect of delay, not culpability for it. The appellant had to establish clear facts showing specific and serious prejudice which made surrender unjust or oppressive. The asserted evidential disadvantages and concerns about witnesses were either speculative, unrelated to the period of delay, or capable of fair treatment at trial. There was no oppression and no established trial prejudice sufficient to bar extradition.

6. The human-rights grounds also failed. There was no sound evidence of a real Article 3 risk, nor the cogent evidence required to show a real risk of a total denial of Article 6 rights in Greece. Article 8 did not outweigh Greece’s legitimate and primary interest in prosecuting an alleged offence committed on its territory, notwithstanding that a prosecution might also be possible in England and Wales.

• High Court (Administrative Court): dismissed the appeal against extradition on 1 May 2009: [2009] EWHC 897 (Admin).
• City of Westminster Magistrates’ Court: District Judge Purdy ordered the appellant’s extradition on 30 October 2008.