Zelenko v Prosecutor General's Office of the Republic of Latvia

The High Court may extend an expired deadline in an extradition appeal under Crim PR r 50.17(6)(a), provided the appeal has not been finally concluded. The discretion should be exercised using the structured three-stage approach in Denton v TH White Ltd, adapted to extradition by taking account of finality, the interests of the requesting state, the public interest in extradition, and the need to avoid injustice or oppression. A medical assurance is sufficient where, read as a whole, it recognises the requested person’s specific treatment needs and provides for that treatment. Fresh evidence under s 27(4) of the Extradition Act 2003 must be both unavailable at the original hearing and capable of affecting the result.

The appellant appealed under s 26 of the Extradition Act 2003 against an order for his extradition to Latvia to face drug charges. His earlier appeal succeeded on the medical-condition issue under s 25, but the court allowed Latvia an opportunity to provide suitable medical assurances. The assurances were received before the deadline but were filed and served late because of an admitted administrative error.

The restored appeal concerned whether the High Court retained jurisdiction to extend time, whether the Latvian assurances were sufficient, and whether fresh evidence concerning COVID-19 restrictions in Latvian prisons should be admitted.

1. Jurisdiction. The appeal had not concluded because the earlier order indicated the eventual outcome but did not order the appellant’s discharge or quash the extradition order. Under Crim PR r 50.17(6)(a), the court could therefore extend the expired deadline. The court rejected the argument that it was functus officio and held that an application to reopen under r 50.27 was unnecessary.
2. Extension of time. The failure to comply with the order was serious and significant, and the explanation—human error—was unacceptable. Applying the three stages identified in Denton v TH White Ltd, however, the overall justice of the case favoured relief. The default was at the lower end of culpability, the Latvian authorities had responded promptly, the application was made shortly after the deadline, prejudice was limited, and a further hearing would have been required in any event. Time was extended to 31 October 2019.
3. Medical assurances. The Latvian prison and medical authorities’ responses, read together, accepted the appellant’s specific need for liver monitoring, gastroscopy, HIV treatment and associated specialist care. They were sufficiently clear despite being expressed through Latvian medical procedures and technologies. The court also admitted a later Latvian response because it had power to seek further information where the interests of justice required it, applying the approach in FK v Stuttgart State Prosecutor’s Office, Germany.
4. Fresh evidence. The COVID-19 material was unavailable at the original hearing, but it did not show that the appellant’s treatment would be affected. The statutory test, explained in Szombathely City Court v Fenyvesi, was therefore not satisfied.
5. The appeal was dismissed. The CPS and NCA were directed to ensure that the appellant’s medical records and medical reports were sent to the Latvian authorities without delay if extradition occurred.

1. High Court (Administrative Court): Deputy Senior District Judge Ikram ordered extradition on 17 January 2019.
2. High Court (Administrative Court): On 3 October 2019, the appellant’s medical challenge under s 25 of the Extradition Act 2003 was accepted, subject to Latvia providing adequate assurances.
3. High Court (Administrative Court): The present Divisional Court extended time, accepted the assurances and dismissed the restored appeal.