Sondy v Crown Prosecution Service

On an appeal against extradition, fresh evidence is admissible only where it was unavailable at the extradition hearing, or could not have been obtained with reasonable diligence. The appellant must also show that the evidence would have led the extradition judge to decide an issue differently and would then have required discharge under section 27(4) of the Extradition Act 2003. Allegations that previous lawyers were incompetent do not, without properly tested evidence, establish that material was unavailable. Where the substance of the proposed evidence was already available and could have been presented below, the statutory conditions are not met.

The appellant appealed against an order made by District Judge Riddle at Westminster Magistrates’ Court on 17 June 2009 directing his extradition to Poland to serve the balance of a sentence for robbery. At the extradition hearing, arguments based on the passage of time and Article 8 of the Convention were abandoned. On appeal, he sought to rely on further evidence about his mother-in-law’s health and care needs, and alleged that his former lawyers had negligently failed to advance the Article 8 case. The central issue was whether the statutory conditions for admitting fresh evidence under section 27(4) of the Extradition Act 2003 were satisfied.

1. The appeal was dismissed. The extradition order had been inevitable because no defence was pursued before the magistrate.
2. Under section 27(4) of the Extradition Act 2003, an appeal may succeed only if: an issue is raised or evidence is produced which was not raised or available at the extradition hearing; the issue or evidence would have caused the extradition judge to decide a question differently; and that different decision would have required the appellant’s discharge.
3. Applying Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), evidence is unavailable where 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 same approach applies to evidence adduced by a person ordered to be extradited, as confirmed in Kalniets v District Court of Ogre in Latvia [2009] EWHC 534.
4. The further evidence about the mother-in-law’s condition was substantially available at the original hearing. Much of it had already been included in the appellant’s proof of evidence. The medical records could have been obtained earlier, and the additional diagnoses did not materially alter the position. There was also no adequate medical evidence showing how extradition would harm her, or substantial evidence excluding alternative family, community or social-services care.
5. Untested allegations of professional negligence could not establish that the evidence was unavailable. The court also stated that, where such allegations are made, the appellant should ordinarily be invited formally to waive privilege and the lawyers concerned should be given an opportunity to respond, subject to privilege. The absence of that procedure made the allegations incapable of proper testing, but did not cure the failure to satisfy section 27(4).
6. The time for extradition was extended under section 36(3) and (4) of the Extradition Act 2003, so that extradition could take place within the ten-day period commencing on 2 February 2010.

• High Court (Administrative Court): The Divisional Court dismissed the statutory appeal against the extradition order and extended the time for extradition under section 36 of the Extradition Act 2003.
• Westminster Magistrates’ Court: District Judge Riddle ordered extradition to Poland on 17 June 2009.