Awat Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy

On an appeal under the Extradition Act 2003, the strict two-stage approach to fresh evidence remains applicable where the proposed evidence supports a Convention-rights argument. The evidence must ordinarily have been unavailable at the extradition hearing, and must be decisive. The court retains a limited power to apply that test with latitude where necessary to avoid a possible breach of Convention rights, but that exception is occasional and cannot become a general entitlement to a rehearing. Tactical decisions by represented parties not to pursue an available issue will rarely justify admission of the evidence on appeal.

The applicant appealed against an extradition order made by Westminster Magistrates’ Court. At the extradition hearing he relied on the statutory bar against double jeopardy under section 12 of the Extradition Act 2003, but that argument was rejected and was later abandoned.

On appeal, the applicant sought to rely on extensive new evidence in support of a fresh argument that his Italian conviction followed proceedings involving a flagrant breach of article 6 of the Convention, particularly through ineffective legal representation. Earlier applications to amend the grounds and rely on new material had resulted in adjournments and directions. The central issue was whether the proposed evidence satisfied the statutory approach to fresh evidence, including the recognised possibility of latitude in exceptional Convention-rights cases.

1. The application was refused. The proposed fresh evidence was not admitted. The court made no decision on the requesting judicial authority’s responsive application, which was left for later consideration if necessary.
2. The governing approach was that stated in Szombathely City Court v Fenyvesi. The test has two stages. First, the evidence must have been unavailable at the extradition hearing because it did not then exist, was not at the applicant’s disposal, or could not have been obtained with reasonable diligence. Secondly, the evidence must be decisive in the statutory sense: it must have resulted in a different decision and required the applicant’s discharge.
3. The provisions in sections 27(4) and 29(4) of the Extradition Act 2003 are rules governing when an appeal may succeed, rather than rules of admissibility. The court’s power to admit evidence derives from its inherent jurisdiction, informed by the policy that extradition appeals should be dealt with speedily and should not become rehearings.
4. The reference in Fenyvesi to applying the test with latitude permits occasional flexibility where necessary to avoid a breach of Convention rights. It does not create a general rule that decisive evidence supporting an article 6 argument is admissible. The Convention does not require litigants to have multiple opportunities to present their cases.
5. The present circumstances did not justify latitude. The applicant had experienced solicitors and counsel at the extradition hearing. They considered the matters now advanced and made informed tactical decisions not to pursue them. The applicant’s later evidence also showed that the complaints could have been raised earlier and that parts of his account were unreliable. Evidence that could have been obtained and relied on at the extradition hearing therefore failed the first stage of the test.
6. Evidence irrelevant to the only permitted ground of appeal, and a petition filed in another forum which merely pleaded a case, were inadmissible for those additional reasons. The fact that some material already before the District Judge might incidentally assist the article 6 case did not disapply the Fenyvesi criteria.

• Westminster Magistrates’ Court: an extradition order was made on 18 May 2023.
• High Court (Administrative Court): the applicant’s appeal proceedings continued before Swift J. The application to rely on new evidence was refused. Directions were left for the further conduct of the article 6 ground.