Berners, R (on the application of) v Council of the Criminal Matters Court (Riga Latvia)

In extradition proceedings, a failure to consider a party’s post-hearing written submissions is a serious procedural error. Relief nevertheless depends on whether consideration of the submissions could realistically have affected the decision.

Article 3 requires assessment of the risk of future ill-treatment. A failure by the requesting state to investigate alleged past ill-treatment cannot itself justify refusing extradition unless it has a material bearing on future risk. Extradition cannot be refused merely to punish a state for past investigative failures.

The appellant appealed under section 26 of the Extradition Act 2003 against an order by the Westminster Magistrates’ Court for his extradition to Latvia to serve a five-year sentence. He also sought judicial review for procedural unfairness.

After the hearing, the magistrates’ court judge delivered judgment without having received the appellant’s written closing submissions. The appellant argued that this affected the assessment of his credibility and failed to address an alleged investigative obligation under article 3 of the Convention. The central issues were whether the proceedings could have been reopened, whether judicial review was available, and whether the omission could have affected the article 3 conclusion.

1. Outcome. The statutory appeal was dismissed and the renewed application for permission to apply for judicial review was refused.
2. The right to be heard is fundamental. A judge’s failure to consider post-hearing written submissions is a serious procedural defect. However, the court must assess whether consideration of the submissions could realistically have produced a different result.
3. The decision in R (on the application of Mann) v the City of Westminster Magistrates’ Court [2010] EWHC 48 (Admin) did not exclude reconsideration immediately after an extradition order where a basic or procedural error was brought to the judge’s attention. The case was distinguishable because the statutory proceedings in Mann had ended and the appeal notice had not been filed within seven days. Section 142 of the Magistrates’ Courts Act 1980 might permit rescission in the interests of justice before the extradition hearing had concluded.
4. Section 34 of the Extradition Act 2003 did not oust judicial review. The court referred to Olah v Regional Court in Plzen, Czech Republic [2008] EWHC 2701 (Admin), where judicial review remained available for procedural defects.
5. Article 3 required the court to determine whether surrender created a real risk of future treatment contrary to the Convention. The alleged failure to investigate events occurring years earlier had no significant demonstrated bearing on future risk. It could not properly justify refusal of extradition or establish an abuse of process.
6. Even assuming a more favourable credibility assessment, the written submissions contained no detailed analysis capable of altering the result. Consideration of them therefore could not properly have led to a different article 3 conclusion.

• High Court (Administrative Court): dismissed the appeal against the Westminster Magistrates’ Court extradition order and refused renewed permission to apply for judicial review.
• Westminster Magistrates’ Court: ordered extradition to Latvia under section 21(3) of the Extradition Act 2003.