Rexha v Serious Organised Crime Agency

An appeal will be re-opened under CPR 52.17 only in exceptional circumstances where re-opening is necessary to avoid real injustice and no effective alternative remedy exists. The jurisdiction is exercised very sparingly. Fresh evidence or a change of circumstances will not ordinarily justify re-opening where the applicant could have obtained or created it earlier with reasonable diligence. A party cannot rely on an artificially created change of circumstances, particularly where material facts were deliberately omitted from the foreign proceedings and the resulting decision was obtained on a one-sided basis.

The applicant’s extradition to Italy had previously been ordered after the Divisional Court rejected his appeal and concluded that he would be entitled to a re-trial under section 20 of the Extradition Act 2003. After permission to appeal on a point of law was refused, he applied to the Rome Court of Appeal to set aside his conviction. That application was refused.

He then sought to re-open the extradition appeal under CPR 52.17, contending that the Italian decision was a fundamental change of circumstances or new evidence showing that no re-trial was possible. The central issue was whether the statutory conditions for re-opening the final appeal were satisfied.

1. Application refused. The court refused permission to re-open the appeal under CPR 52.17, discharged the injunction, and extended the time for extradition by ten days.
2. The jurisdiction under CPR 52.17 has a high threshold. The conditions are cumulative: re-opening must be necessary to avoid real injustice; the circumstances must be exceptional and make re-opening appropriate; and there must be no alternative effective remedy. The jurisdiction is to be exercised very sparingly.
3. Applying Ignaoua v The Judicial Authority of the Courts of Milan and Others [2008] EWHC 2619 (Admin) and the principles in Ladd v Marshall [1954] 1 WLR 1489, evidence which could with reasonable diligence have been put before the earlier appellate court will generally be excluded. A material change created by the applicant’s own deliberate choices is subject to the same objection.
4. The Rome application was made late and omitted material matters, including the applicant’s detention, bail and licence restrictions, the extradition context, and the anticipated post-surrender re-trial. It therefore did not address the application contemplated by the earlier Divisional Court. The Rome decision did not fundamentally undermine that court’s conclusion because it had been reached on materially different facts and in a different procedural context.
5. The omissions and the attempt to rely on the resulting decision amounted to an abuse of the court’s process. Any difficulty concerning re-trial prospects had been brought about by the applicant’s own timing and tactics. The requirements of CPR 52.17 were therefore not met.

• Divisional Court: The applicant’s extradition appeal was dismissed on 17 May 2012 in [2012] EWHC 1274 (Admin). The court held that he would be entitled to a re-trial in Italy.
• High Court (Administrative Court): The application to re-open the appeal was refused under CPR 52.17. The injunction was discharged and extradition time was extended by ten days.