Klemis v United States District Court Southern District Of Illinois

On an application for permission to appeal against re-extradition, the High Court will not investigate the safety of the foreign conviction or act as an appellate court for the foreign proceedings. Where the challenge relies on Convention rights other than article 3, the applicant must show a real risk of a flagrant denial or nullification of the relevant right. The existence of a discretionary power to appoint publicly funded counsel does not establish such a risk where the foreign courts are expected to exercise their functions properly and fairly. Article 8 requires a balance between the individual and family circumstances and the strong public interest in honouring extradition arrangements and enforcing serious sentences. New grounds requiring fresh evidence or raising matters that could and should have been advanced earlier may be refused out of time.

The applicant had previously been extradited to the United States to face drug charges, convicted and sentenced to 20 years’ imprisonment. He was returned to the United Kingdom to complete the balance of his domestic sentence. When that sentence expired, Westminster Magistrates’ Court ordered his re-extradition under sections 187 and 189 of the Extradition Act 2003.

The applicant sought permission to appeal. He alleged a prospective breach of article 6 because of difficulties in pursuing a post-conviction application in the United States, sought to add an article 8 ground, and sought to add a statutory challenge concerning whether two counts were extradition offences. The central issues were whether the new grounds should be admitted out of time and whether the proposed article 6 challenge met the high threshold applicable to resistance to extradition.

The Divisional Court, Singh LJ giving the judgment and McGowan J agreeing, refused permission to amend the grounds of appeal and refused permission to appeal.

1. The proposed challenge under section 138 of the Extradition Act 2003 was raised for the first time at a very late stage. The applicant knew the nature of Counts 2 and 4 before his original extradition and could have raised the point then or before the Magistrates’ Court. If meritorious, it would have constituted a bar to extradition. There was no good reason to permit its late addition.

2. The article 8 ground was also raised late and required fresh evidence. Applying the criteria in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin), there was no warrant for admitting that evidence or permitting the amendment. In any event, the ground had no reasonable prospect of success. Article 8 required a balancing exercise between the applicant’s circumstances and the strong public interest in honouring extradition treaties and ensuring that persons convicted of serious offences served their sentences, as explained in HH v Deputy Prosecutor of The Italian Republic, Genoa [2013] 1 AC 338. The evidence did not suggest exceptionally severe effects on family life.

3. The article 6 ground had no reasonable prospect of success. The Court did not sit on appeal from the United States trial court and could not determine the merits of criticisms of trial counsel or any application under Title 28 of the United States Code, section 2255. The applicable test was whether there was a real risk of a flagrant denial of the right to a fair trial. That threshold was very high, consistently with R (on the Application of Ullah) v Special Adjudicator [2004] 2 AC 323.

4. The United States courts were expected to exercise their judicial functions properly and fairly. The existence of a discretionary power to appoint publicly funded counsel, together with the United States Government’s assurance that it would not oppose such an application, did not establish a real risk of a flagrant denial of justice.

Permission to add Grounds 2 and 3 was refused, and permission to appeal on Ground 1 was refused. The judgment was certified as suitable for citation.

1. Westminster Magistrates’ Court ordered the applicant’s re-extradition to the United States on 14 December 2018 under the Extradition Act 2003.
2. High Court (Administrative Court) refused permission to add the proposed article 8 and section 138 grounds and refused permission to appeal on the article 6 ground: [2019] EWHC 3403 (Admin).