Herdman & Ors v City of Westminster Magistrates Court

Extradition proceedings should ordinarily proceed expeditiously, but expedition must not produce unfairness. An adjournment is discretionary and will be interfered with only where the decision is unlawful, irrational or unfair. A requested person is an accused for Extradition Act 2003 purposes where the European Arrest Warrant, read as a whole, indicates that prosecution is intended. The court should adopt a cosmopolitan approach to the warrant and should use extrinsic evidence only exceptionally where its wording is equivocal. Fresh evidence on an extradition appeal must generally have been unavailable at the hearing and must be decisive. Evidence that could reasonably have been obtained earlier will ordinarily be excluded. Article 3 requires strong grounds for believing that extradition creates a real risk of torture or inhuman or degrading treatment.

Five British nationals were ordered by District Judge Tubbs to be extradited to Greece under European Arrest Warrants issued by the Deputy Public Prosecutor of the Appeal Court of Crete. They sought judicial review of the refusal to adjourn the extradition hearing and appealed under section 26 of the Extradition Act 2003.

The appellants argued that they needed further evidence from a Greek lawyer, that the warrants concerned investigation rather than prosecution, and that extradition would breach articles 3, 5 and 6 of the European Convention on Human Rights. They also sought to adduce extensive fresh evidence on appeal. The central issues were whether the adjournment decision was irrational, whether the warrants satisfied section 2, and whether any human-rights bar to extradition had been established.

1. Adjournment. The refusal of an adjournment was susceptible to judicial review, but the decision remained a matter for the District Judge’s discretion. The European arrest warrant scheme required speedy surrender, while preserving fairness. The appellants had known of the proceedings for several months and had more than six weeks before the full hearing. The Greek lawyer’s preliminary email did not justify further delay. The refusal was neither irrational nor unfair and was correct.
2. Fresh evidence. The principles stated in Szombathely City Court v Fenyvesi applied. Evidence was unavailable only if it did not exist or was not at the party’s disposal and could not have been obtained with reasonable diligence. Fresh evidence tendered by defendants had to be decisive. The appellants had chosen not to adduce evidence before the District Judge, and much of the material was available then. The new evidence was therefore inadmissible where it could not have changed the result.
3. Section 2. The court must examine the warrant as a whole. The warrants used the language of the English version of the Framework Decision and unequivocally indicated that the appellants were wanted for prosecution. Further investigation in Greece, or the possibility that no trial would follow, did not mean that they were merely suspects.
4. Article 3. The evidence about Greek prison conditions was disturbing, but it did not establish strong grounds for believing that these appellants faced a real risk of treatment contrary to article 3. General evidence of overcrowding and poor conditions, without a sufficiently individualised and current risk, fell well below the required threshold.
5. Articles 5 and 6. The evidence did not establish that the appellants would be denied a proper bail process or face a flagrant denial of a fair trial. Greece’s general bail arrangements were Convention-compliant, and no real risk of a flagrant article 6 violation was shown.
6. Permission for judicial review was refused and the statutory appeals were dismissed.

The judgment describes the extradition orders made by District Judge Tubbs in the City of Westminster Magistrates’ Court on 16 February 2010. The High Court refused permission for judicial review of the refusal to adjourn and dismissed the appeals under section 26 of the Extradition Act 2003.