Antonia Ilia v Appeal Court in Athens, Greece

Permission to reopen an extradition appeal under Crim PR r 50.27 is an exceptional remedy. The applicant must show that reopening is necessary to avoid real injustice, that the circumstances are exceptional and that no alternative effective remedy exists. Injustice alone is insufficient; reopening must provide a practical remedy.

A person represented by a lawyer instructed to conduct the trial is not legally absent for the purposes of Extradition Act 2003. Changes in conviction status, prison conditions or delay will not justify reopening where they do not establish a real risk of Convention breach or practical injustice. Finality is particularly important in extradition proceedings.

The applicant’s extradition to Greece had been ordered in 2012. The Divisional Court allowed part of her appeal in 2014 and dismissed the remaining Article 3 and Article 8 issues in 2015: [2014] EWHC 2372 (Admin) and [2015] EWHC 547 (Admin). A first application to reopen, based on changes to Greek criminal law, was refused in 2019.

The applicant made a second application under Crim PR r 50.27. She relied on a later Greek conviction, alleged absence from trial, alleged abuse of process, prison conditions, delay, specialty, and mental health. The central question was whether these matters established the statutory conditions for reopening the concluded extradition appeal.

1. Application refused. The high threshold in Crim PR r 50.27 was not met. Reopening is to be exercised rarely because finality has particular importance in extradition proceedings. The applicant had to show both real injustice and that reopening was necessary to avoid it, together with exceptional circumstances and no alternative effective remedy.
2. The later Greek conviction did not make the applicant legally absent from her trial. Under Extradition Act 2003, and applying Cretu v Local Court of Suceava, Romania [2016] 1 WLR 3344 at [34(iii)], an accused who has instructed a lawyer to represent her is not absent, even if physically absent. Any complaint about the lawyer’s participation was a matter between the applicant and the lawyer. The nine-month delay in raising the conviction point also undermined the claim of injustice.
3. There was no abuse of process. An issuing judicial authority need not provide a running commentary on the prosecution, except perhaps where the warrant is withdrawn or otherwise ceases to support extradition. Zakrzewski v Polish Issuing Judicial Authority [2013] 1 WLR 324 concerned maintaining an accurate warrant during extant proceedings and did not assist once the extradition proceedings had ended.
4. The new prison evidence did not establish an Article 3 risk or exceptional circumstances. The evidence indicated average personal space above the relevant 3 m² threshold. Short or temporary reductions, time spent outside cells, and the absence of evidence that the prison was violent or uncontrolled further weakened the claim. Marku v Nafplion Court of Appeal, Greece [2016] EWHC 1801 (Admin) concerned the men’s prison and did not establish a risk in the women’s prison.
5. The Article 8, specialty and mental-health points failed. Delay may affect proportionality where prosecuting authorities have lacked urgency, but that principle had little application where the delay followed the applicant’s own asylum proceedings. Article 27 of the EAW Framework Decision supplied speciality protection, and the evidence did not approach the oppression threshold in section 25 of the Extradition Act 2003.

• High Court (Administrative Court) — the second application to reopen the extradition appeal was refused.
• Divisional Court — the applicant’s appeal was partly allowed in 2014 in relation to certain offences and otherwise left two issues outstanding: [2014] EWHC 2372 (Admin).
• Divisional Court — the remaining Article 3 and Article 8 grounds were rejected in 2015: [2015] EWHC 547 (Admin).
• High Court — an earlier application to reopen was refused on the papers in 2019.