DP, R (On the Application Of) v Leoben Regional Court, Austria

An extradition appeal may be reopened under Civil Procedure Rules 1998, rule 52.17 where reopening is necessary to avoid real injustice, the circumstances are exceptional, and no alternative effective remedy exists. A disputed late medical development may satisfy the threshold for reopening. The question whether a requested person is fit to plead will ordinarily be determined by the requesting state, unless the person would indisputably or inevitably be unfit. Under section 25 of the Extradition Act 2003, the court must nevertheless determine whether extradition would be unjust or oppressive. Reopening does not require discharge: where medical evidence is conflicting and the requesting state has a system capable of resolving the fitness issue, extradition may remain neither unjust nor oppressive.

The claimant had been ordered to be extradited to Austria by the City of Westminster Magistrates’ Court. The High Court upheld that order in [2009] EWHC 383, and the order became final on 10 December 2009. The claimant later sought to reopen the appeal under rule 52.17 after obtaining psychiatric evidence stating that he had Asperger’s syndrome, bipolar affective disorder, depression and was unfit to plead. The requesting court obtained contrary evidence from another consultant psychiatrist.

The application raised whether the appeal should be reopened and whether section 25 of the Extradition Act 2003 required discharge because extradition would be unjust or oppressive.

1. The appeal was reopened under rule 52.17. The governing requirements were that reopening be necessary to avoid real injustice, that the circumstances be exceptional and that no alternative effective remedy exist. The late psychiatric evidence, if accepted, represented a radical and exceptional change of circumstances, and the disputed factual and legal issues justified reopening.

2. The court approved the approach in Lynch [2010] EWHC 109 (Admin). Fitness to plead is ordinarily a matter for the courts of the requesting state. The English court need not determine it unless the requested person would indisputably or inevitably be unfit. That approach was consistent with the purpose and context of the framework directive and was not plainly wrong.

3. Section 25 of the Extradition Act 2003 required this court to decide whether the claimant’s physical or mental condition made extradition unjust or oppressive. The issue could not simply be left to the requesting state.

4. The conflicting psychiatric evidence did not establish that extradition would be unjust or oppressive. The Austrian authorities had a system capable of determining the claimant’s fitness to plead, and the contrary report gave powerful reasons for considering that the claimant was exaggerating his symptoms. The section 25 application was therefore dismissed.

5. The court certified a point of law for possible consideration by the Supreme Court, with the precise wording to be settled between the parties.

• High Court (Administrative Court): the City of Westminster Magistrates’ Court ordered extradition on 10 October 2008. The High Court upheld that order on appeal in [2009] EWHC 383.
• High Court (Administrative Court): the extradition appeal was reopened under rule 52.17, but the application for discharge under section 25 of the Extradition Act 2003 was dismissed.