Awat Wahab Hamasalih v Italian Judicial Authority

On a renewed application for permission to appeal in extradition proceedings, a proposed ground alleging violations of fundamental rights should not be rejected as obviously meritless where the applicant’s circumstances differ materially from related cases and newly obtained evidence may bear on the issue. There is no absolute bar to relying on a ground not raised before the extradition judge. Where permission was refused on paper and a ground is later added, a further paper stage is unnecessary; the amended application may proceed to oral renewal. Extradition proceedings must nevertheless be conducted expeditiously.

The applicant sought permission to appeal against an extradition order made by District Judge Zani on 18 May 2023. Italy sought his extradition to serve a nine-year sentence for directing a terrorist organisation. He had waived attendance at his Italian trial but was legally represented, and later participated in appeal proceedings by video link.

The initial grounds concerned double jeopardy and were later supplemented by an abuse-of-process and fair-trial challenge based on Articles 5 and 6 of the Convention. Farbey J refused permission on paper. After a change of solicitors, further Italian court material was obtained and the applicant sought permission to amend and directions for translated evidence. The central issues were whether the amended ground should be admitted and how the renewed permission application should proceed.

1. Permission to amend granted. The court allowed the applicant to add the proposed ground based on Articles 5 and 6 of the Convention, and directed that relevant Italian documents be translated and served. The representation order was extended to meet the translation cost.
2. The amended ground could not safely be dismissed as obviously without merit. Although similar arguments had been rejected in the related cases of Rahim and Hamad, the applicant’s circumstances were materially different. He had not attended the trial, questions about waiver were personal to him, and further information might emerge concerning his Italian lawyers.
3. Lateness did not justify refusing the amendment at that stage. The proposed ground concerned fundamental rights; there had been a change of representatives and a change in the view taken of the possible grounds; and evidence from the Italian court file had only recently been pursued and obtained. Under section 27(4)(a) of the Extradition Act 2003, there was no absolute bar to raising on appeal a ground not advanced at the extradition hearing.
4. The applicant might still fail to show that the amended ground was arguable or that the new evidence should be admitted. Those questions were to be assessed after the evidence had been translated and properly presented.
5. Under Crim PR 50.17(1)(b)(ii) and 50.22(2), paper consideration of a permission application was permissible but not a right. Refusal on paper carried a right to oral renewal. Where a ground was added after paper refusal, a further paper stage was unnecessary and would cause delay contrary to the requirement for expedition in extradition proceedings. The matter was directed to be listed for a two-hour oral renewal hearing in the period 13–24 May 2024.

1. District Judge Zani ordered extradition on 18 May 2023 and rejected the applicant’s double-jeopardy argument.
2. Farbey J refused permission to appeal on the papers on 24 November 2023.
3. High Court (Administrative Court) granted permission to amend the grounds and gave directions for translated evidence and an oral renewal hearing. The merits of permission to appeal were not finally determined.