Zarmaev v The Government of the Russian Federation

On an extradition appeal, fresh evidence may be admitted where it was unavailable at the extradition hearing, or where admission is necessary to avoid a breach of Convention rights, and there is a real prospect that it would have affected the result. The appeal court should not conduct a full rehearing. Where new evidence materially changes assumptions underpinning the original decision, focused human-rights questions may be remitted to the magistrates’ court.

The appellant appealed under section 103 of the Extradition Act 2003 against the former Chief Magistrate’s decision to send the extradition case to the Secretary of State. The Secretary of State had ordered extradition to the Russian Federation on allegations of firearm and ammunition offences and organising, inciting or aiding premeditated murder.

The appellant sought to adduce fresh evidence concerning his mental health, Russian criminal procedure, detention conditions, prosecution evidence and monitoring arrangements. The central issues were whether the evidence was available and material, and whether it affected the conclusions under articles 3 and 6 of the ECHR.

1. The court admitted fresh evidence and remitted the article 3 and article 6 questions to the magistrates’ court under section 104(1)(b) of the Extradition Act 2003.
2. Fresh evidence must ordinarily have been unavailable at the extradition hearing because it did not then exist or could not have been obtained with reasonable diligence. It must also create a real prospect that the result would have been different. The appeal court should avoid a full rehearing.
3. A limited modulation of the statutory test may be required where strict application would risk breach of the ECHR, consistently with section 3 of the Human Rights Act 1998.
4. The new medical evidence was excluded because the possibility of traumatic brain injury had already been identified and the further material did not create a real prospect of a different result.
5. Expert evidence on Russian procedure was admitted. The original decision had proceeded on the assumption of a jury trial, whereas it was now common ground that the trial would be by judge alone. Evidence concerning acquittal rates, the use of Ms Dukaeva’s evidence, monitoring and removal from pre-detention facilities might have affected the article 3 and article 6 assessments.
6. Ms Dukaeva’s evidence was admitted because it was unavailable despite reasonable efforts to obtain it and might have altered the original decision.
7. The remaining grounds were rejected. The findings on mental health, passage of time, article 8, extraneous considerations and specialty were open to the magistrate. If either remitted human-rights question was answered negatively, the appellant had to be discharged; if both were answered affirmatively, the case had to be sent to the Secretary of State.

• High Court (Administrative Court): the appeal was partly allowed. Fresh evidence was admitted and two human-rights questions were remitted to the magistrates’ court.
• Westminster Magistrates’ Court: on 25 February 2016, the former Chief Magistrate sent the case to the Secretary of State after finding no statutory or Convention bar to extradition.
• Secretary of State: ordered extradition on 17 April 2016.