Ilia v Appeal Court In Athens (Greece) & Anor

In extradition proceedings, the requesting authority must establish dual criminality by reference to the actual conduct alleged. The person sought receives the benefit of genuine uncertainty about whether that conduct would amount to an offence in England.

A person tried in absence may be extradited only where the statutory requirements concerning deliberate absence or an absolute right to a retrial are satisfied. Formal assurances from the requesting judicial authority may ordinarily be relied on unless there is a proper evidential basis for questioning them.

Allegations of political motivation, unfair trial or abuse of process require substantial or reasonable grounds supported by cogent evidence. The strong presumption that a Council of Europe state will comply with its Convention obligations remains relevant.

The appellant, formerly a judge in Athens, challenged extradition to Greece under five European arrest warrants. The District Judge ordered extradition on all five warrants.

During the appeal, warrants 1–4 were withdrawn after the relevant sentences were commuted. The substantive appeal therefore concerned warrant 5, which related to convictions for misdemeanours and outstanding felony charges. The appellant relied on dual criminality, specialty, trial in absence, political motivation, fair-trial concerns, abuse of process, prison conditions and article 8 proportionality.

The central issues were whether extradition could proceed on the conviction element of warrant 5 and whether the evidence required refusal or further investigation of extradition on the accusation element.

1. Warrants 1–4. The warrants having been withdrawn, the District Judge’s order was quashed and the appellant was discharged under section 42 (3) (b) of the Extradition Act 2003.
2. Dual criminality. Under section 65 (3), the conduct actually alleged had to constitute an offence under English law. The court applied the approach in Norris v United States of America [2008] AC 920. The particulars of the “breach of duty” misdemeanours did not allege the personal interest, bribery or sufficiently serious abuse of public trust required for misconduct in public office. The requesting authorities had not discharged the burden, and those matters were not extradition offences.
3. Late point and specialty. The appellant could not raise the separate “concealment” dual-criminality point after circulation of the draft judgment. The Greek prosecutor’s particularised assurance that the sentence would be recalculated by excluding the non-extraditable matters was sufficient. Extradition on the remaining conviction matters would therefore not breach specialty, applying the reasoning in Brodziak v Circuit Court of Poland [2013] EWHC 3394 (Admin).
4. Trial in absence. Deliberate absence requires knowledge of the criminal proceedings and of the nature and cause of the accusation. Flight and adoption of a new identity, without proof of knowledge of later proceedings, were insufficient. The District Judge’s finding concerning warrant 5 was inadequate. However, the Greek authority gave an unequivocal assurance of a retrial or appeal equivalent to a retrial, satisfying section 20 (5).
5. Political motivation, fair trial and abuse. The evidence did not establish substantial grounds for believing that the warrant was politically motivated or that the appellant faced a real risk of an unfair trial. The abuse-of-process approach in R (Government of the USA) v Bow Street Magistrates Court [2007] 1 WLR 1157 produced the same result. The court could not use abuse jurisdiction as an indirect challenge to the factual or evidential basis of the warrant.
6. Prison conditions. Fresh evidence concerning Korydallos women’s prison was sufficiently substantial to require a response from the Greek authorities. The appeal on warrant 5 was accordingly adjourned on the prison-conditions issue alone. All other grounds were dismissed. The article 8 issue was left undecided pending determination of that issue.

1. High Court (Administrative Court): Ilia v Appeal Court In Athens (Greece) & Anor [2014] EWHC 2372 (Admin) quashed the extradition order and discharged the appellant on warrants 1–4, dismissed all grounds concerning the other issues, and adjourned warrant 5 for a further hearing limited to prison conditions.
2. City of Westminster Magistrates’ Court: District Judge Purdy ordered extradition on all five warrants on 16 January 2012.