Parker v The Republic of Argentina

On an appeal under the Extradition Act 2003, fresh evidence may be admitted only where it was genuinely unavailable at the extradition hearing and would probably have changed the decision so as to require the person’s discharge. Evidence is unavailable only if it did not exist or could not have been obtained with reasonable diligence. The test is strict and reflects the need for extradition proceedings to proceed speedily. The appellate court must also be satisfied that the evidence would have produced a different outcome, rather than merely that it might have affected the lower court’s reasoning.

Argentina requested the extradition of Anthony Parker under Part 2 of the Extradition Act 2003. On 23 December 2011, Senior District Judge Riddle found the arrest warrant valid, identified a prima facie case, and rejected challenges based on oppression under section 91 and possible interference with Articles 5 and 6 of the European Convention on Human Rights.

On appeal under section 103, Parker sought to rely on a report from Dr Verdu concerning Argentine prison conditions, pre-trial detention, bail and medical treatment. The report had not been before the Senior District Judge. The central issue was whether the conditions in section 104(4) permitting fresh evidence were satisfied.

1. Application refused. The court rejected Parker’s application to rely on Dr Verdu’s report. The appeal was to be re-listed for a full hearing.
2. Section 104(4) of the Extradition Act 2003 requires both that the evidence was unavailable at the extradition hearing and that, if admitted, it would have led the judge to decide a question differently and order the appellant’s discharge.
3. Following the guidance in Szombathely City Court v Fenyvesi [2009] 4 All ER 324, evidence is unavailable only if it did not exist at the time or was not at the party’s disposal and could not have been obtained with reasonable diligence. The appellant had been represented by experienced lawyers during lengthy proceedings. There was no evidence that funding difficulties or other circumstances prevented obtaining comparable expert evidence before the final extradition hearing.
4. The decisive-condition requirement was also unmet. The court could not be satisfied that Dr Verdu’s evidence would have caused a different conclusion on oppression under section 91 or on Articles 5 and 6. The existing medical evidence suggested that Parker’s conditions were reasonably stable, and evidence from the Argentine authorities indicated that medical treatment would be available.
5. The court relied on the comparison with Lucy Wright (also known as Lucy Robertson) v The Government of Argentina [2012] WL 609160, where similar evidence had not established incompatibility with Article 5. In the present case, the respondent would also seek to cross-examine Dr Verdu and had produced evidence challenging material parts of her report.
6. The case did not fall within the rare category in which the statutory approach could be modified by reference to section 3 of the Human Rights Act 1998.

• High Court (Administrative Court): The court refused permission to rely on Dr Verdu’s fresh evidence under section 104(4) of the Extradition Act 2003. The substantive appeal was directed to be re-listed.
• City of Westminster Magistrates’ Court: On 23 December 2011, Senior District Judge Riddle decided that the warrant was valid, that the documents disclosed a prima facie case, and that extradition was not oppressive or incompatible with Articles 5 or 6.