Mark Summers

The judgment in Kapri v The Lord Advocate representing The Government of the Republic of Albania [2013] UKSC 48 has a number of surprising features.

First, it has nothing at all to do with the judgment that it purported to be an appeal against ([2012] HCJAC 84). The issues of interest that arose from that judgment, and outlined in the Case Preview on this blog, therefore must be taken to be settled by the judgment of the High Court of Justiciary. Instead, the Supreme Court’s judgment concerns an issue the substance of which was not decided at all by the High Court below, namely whether evidence of systemic judicial corruption is capable of meeting the “flagrancy” threshold required of prospective Article 6 ECHR violations in extradition (or expulsion) cases.

This was an issue that the Appellant was prevented from arguing below following an interlocutory judgment excluding his evidence ([2012] HCJAC 17) because he had not adduced it at first instance. Some background will put this in context.


Mr. Kapri’s extradition was sought by Albania under Part 2 of the Extradition Act to face retrial following his conviction in absence for an offence of murder. Extradition was ordered by the Sheriff. Mr. Kapri appealed to the High Court of Justiciary. Amongst his grounds of appeal was ground 5, an allegation that he faced a flagrantly unfair trial upon surrender owing to widespread systemic judicial corruption in Albania. He adduced cogent evidence from independent governmental and non-governmental sources in support. His problem was that this was not an issue he had ventilated before the Sheriff.

Section 104(4) of the 2003 Act provides that an appeal may be allowed where:

“…(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person’s discharge….” 

This provision (and like provisions elsewhere in the Act) have generated a great deal of litigation under the 2003 Act. In Miklis v Deputy Prosecutor General of Lithuania [2006] 4 All ER 808, the Administrative Court held that:

“…It should be remembered that s 27(4) of the Act, dealing with new evidence, refers to evidence at the appeal ‘that was not available at the extradition hearing’. The word ‘available’ makes it plain that, whilst I would not consider that the requirements of Ladd v Marshall [1954] 1 WLR 1489, had to be met where not only the liberty of the individual, but also matters relating to human rights are in issue, nonetheless the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the Appellant ‘keeping his powder dry’ he must expect the court to view any application to rely on such evidence with some scepticism…”

The leading case is Szombathely City Court & Ors v Fenyvesi & Anor [2009] 4 All ER 324 DC. The High Court held that:

“…In our judgment, evidence which was ‘not available at the extradition hearing’ means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained. If it was at the party’s disposal or could have been so obtained, it was available. It may on occasions be material to consider whether or when the party knew the case he had to meet. But a party taken by surprise is able to ask for an adjournment. In addition, the court needs to decide that, if the evidence had been adduced, the result would have been different, resulting in the person’s discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing. A party seeking to persuade the court that proposed evidence was not available should normally serve a witness statement explaining why it was not available. The appellants did not do this in the present appeal.

Fenyvesi recognizes that the obligation to consider fresh evidence may however be stronger in the case concerning human rights. In Fenyvesi, the High Court observed that the 2003 Act

“…is not expressed in terms which appear to give the court a discretion; although a degree of latitude may need to be introduced from elsewhere. As Latham LJ said in Miklis, there may occasionally be cases where what might otherwise be a breach of the European Convention on Human Rights may be avoided by admitting fresh evidence, tendered on behalf of a defendant, which a strict application of the section would not permit. The justification for this would be a modulation of section 29(4) with reference to section 3 of the Human Rights Act 1998… This apparent imbalance between defendants and judicial authorities arises from the fact that a defendant may have the benefit of Human Rights considerations which the judicial authorities do not…[However] even for defendants, the court will not readily admit fresh evidence which they should have adduced before the District Judge, and which is tendered to try to repair holes which should have been plugged before the District Judge, simply because it has a human rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant’s discharge. In short, the fresh evidence must be decisive.”

It is now widely recognised that human rights cases represent an exception to the general rigour with which s.104(4) is applied. In R (Gorczowska) v District Court in Torun Poland [2012] EWHC 378 (Admin), Collins J stated:

 “…This court is a public body and, in accordance with the terms of the Human Rights Act, has to take account of a party’s human rights in deciding any case. That seems to me to mean that it is more likely that the court should take account of evidence which goes directly to human rights, even if that evidence was not, but could have been, produced below. It does not mean that in every case it would be appropriate to take it into account, but it seems to me that it would not normally be right to ignore it…”

However, even in human rights cases, the fresh evidence must be decisive; Beretki v Harghita Law Court, Romania [2012] EWHC 336 (Admin).

Section 104(4) also allows the court to hear fresh legal issues on appeal. On one reading of s.104(4)(a) the ability to raise a fresh legal issue on appeal is not constrained in any way at all. That is the construction that initially prevailed in Scotland; in Trajer v Lord Advocate 2009 JC 108 the High Court of Justiciary’s view was that the language of the Act permitted it to hear an appeal based on a new issue without any form of constraint or need for justification of the course taken below. So too in England, see Hoholm v The Government of Norway [2009] EWHC 1513 (Admin). However, the matter is often more nuanced than that. Raising a fresh issue will almost invariably require the admission of fresh evidence to substantiate it. Where fresh evidence is required to make good the fresh legal issue, the court will apply the principles applicable to fresh evidence: Engler v Her Majesty’s Advocate [2010] ScotHC HCJAC 42. In England, see Herdman, Taylor, Hollands, Branton & Bell v City of Westminster Magistrates’ Court & Ors. [2010] EWHC 1533 (Admin).

Mr. Kapri’s problem was that he was seeking to rely on fresh evidence (not simply raise a fresh issue). He had to satisfy the Fenyvesi test. He failed to do so because the High Court held that

“…the material contained in both of the reports in question is of a wholly general nature and contains nothing to suggest that any of the concerns identified would be of application to the appellant’s case. Nothing within either report supports the appellant’s contention that “he” would face an unfair trial on his return to Albania or in any way supports his contention that any retrial would lack the fundamental requirements of Article 6… Accordingly, in our view, the proposed new evidence…is irrelevant to the ground of appeal in question and ought not to be admitted for this reason” [at 30]

In those circumstances, it was

“…unnecessary to decide whether…section 104 of the Act entitles an appellant to rely on new evidence, even if it could have been made available at the extradition hearing. In so far as the cases of Trajer v Lord Advocate and Engler v Lord Advocate might be thought to differ on this point we would incline to the view that the decision in Engler ought to be preferred…” [at 31].

 It was essentially against this ruling that Mr. Kapri was given permission to appeal to the Supreme Court.

 The Supreme Court’s treatment of the fresh evidence

The second surprising thing about the Supreme Court’s judgment is that it makes no mention, save by way of background introduction [at 9-11], of the law on fresh evidence, or issues, at all. It does not address the perceived conflict between Trajer and Engler. It does not address whether Engler applies to fresh evidence as well as fresh issues. It does not consider section 104 at all. Given that the same debate has raged in England, and also resulted in conflicting authority there, that is disappointing.

The Supreme Court instead focussed solely on the High Court’s decision that Mr. Kapri’s evidence was inadmissible to any Article 6 ECHR issue because it was “general” and not defendant-specific. It is entirely unsurprising that the Supreme Court should have overturned this aspect of the High Court’s judgment [at 32]. The Strasbourg extradition jurisprudence on this is abundantly clear. In cases where a defendant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the ECtHR considers that the protection of the Convention enters into play when the defendant establishes, where necessary on the basis of NGO or country materials, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned. In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features if to do so would render illusory the protection offered by the Convention.See, for example, Yakubov v Russia (2011) App. 7265/10 (First Section) Nov. 8, at §§79-92; Sultanov v Russia (2010) App. No. 15303/09 (First Section) Nov 4 at §§69-74; Gaforov v Russia (2010) App. No. 25404/09 (First Section) Oct. 21, at §§128-140; Ryabikin v The Russian Federation (2010) App. No. 8320/04 (First Section) June 19, at §114; Khaydarov v Russia (2010) App. No. 21055/09 (First Section), May 20, at §§102-110; Khodzhayev v Russia (2010) App. No. 52466/08 (First Section), May 12, at §§94-103; Muminov v The Russian Federation (2008) App. No. 42502/06 (First Section) Dec. 11, at §95.

In cases of systemic violation, that ‘group’ can mean any criminal suspect returned to that country.See Ergashev v Russia (2011) App. No. 12106/09 (First Section) Dec 20 at §§112-113; Karimov v Russia (2010) App. No. 54219/08 (First Section) July 29, at §§99-100; Isakov v Russia (2010) App No. 14049/08 (First section) July 8, at §§109-110; Ryabikin at §§121-122. Kolesnik v Russia (2010) App. No. 26876/08 (First Section) June 17, at §§68-72; Garayev v Azerbaijan (2010) App. No. 53688/08 (First Section) June 10, at §§70-75; Kaboulov v Ukraine (2010) 50 EHRR 970 at §§111-112;

Neither is it remotely surprising that the Supreme Court should conclude that evidence of systemic judicial corruption is capable of meeting the “flagrancy” threshold as recently defined in Othman v United Kingdom (2012) 55 EHRR 1 and Ahorugeze v Sweden (2012) 55 EHRR 2.

 But that still left the fact that Mr. Kapri’s evidence was all fresh evidence not adduced at first instance and which did not satisfy the Fenyvesi test for admission. It was evidence that existed at the time of the hearing before the Sheriff and which could have been obtained at that time with reasonable diligence. This does not appear to have troubled the Supreme Court at all. The Supreme Court says simply that: 

“…It is always tempting to resort to short cuts. But where a person’s liberty and his right to a fair trial is at issue that temptation must be resisted. It is plain that the matter must be properly investigated before a decision is taken as to whether the appellant’s extradition to Albania should go ahead…”

The Fenyvesi human rights exception discussed above thus appears to have been elevated above all else, and the contrary principles of due diligence etc. consigned, at least in human rights cases, to the bin of illegitimate “short cuts”. Undoubtedly correct in the outcome, it is nonetheless disappointing that the issue received no direct attention from the Supreme Court.

The status of extradition proceedings

The third surprising aspect of the Supreme Court’s judgment is the conclusion [at 20 & 23] that extradition proceedings are not criminal proceedings.

The issue arose in this way. The 2003 Act precludes any appeal to the Supreme Court from the Scottish High Court (s.114(13)). However, under the Scotland Act 1998, appeal may lie as a “devolution issue” because ECHR compatibility was a devolution issue (see BH & Ors v The Lord Advocate & Ors [2012] 3 WLR 151, SC). That is changed by the Scotland Act 2012, which amends the definition of ‘devolution issue’ and excludes issues of ECHR (or EU law) compliance in criminal cases. Instead, these become “compatibility issues”, to which different appellate powers arguably apply.

The Supreme Court held that extradition proceedings are not “criminal proceedings” because they involve no determination of a criminal charge (as to which, see the discussion in Lukaszewski & Ors v The District Court in Torun, Poland & Ors [2012] UKSC 20). That one should be assumed to follow from the other is surprising. Not least of all because the House of Lords has previously expressly held that extradition proceedings are indeed criminal proceedings (such that the Police & Criminal Evidence Act 1984 applied to them): see In re: Levin [1997] UKHL 27 per Lord Hoffman:

“…I think that extradition proceedings are criminal proceedings. They are of course criminal proceedings of a very special kind, but criminal proceedings nonetheless…Both case law and the terms of the Extradition Act 1989 point to extradition proceedings being categorised as criminal. First, the cases…the cases demonstrated that “the matter in respect of which the accused is in custody may be ‘criminal’ although he is not charged with a breach of our own criminal law…Secondly, the Extradition Act 1989. Section 9(2) and paragraph 6(1) of Schedule 1 require that extradition proceedings should be conducted “as nearly as may be” as if they were committal proceedings before magistrates. Committal proceedings are of course criminal proceedings and these provisions would make little sense if the metropolitan magistrate could not apply the normal rules of criminal evidence and procedure. The suggestion of counsel in Francis that extradition proceedings were “sui generis” would only make matters worse, because it would throw doubt upon whether the magistrate could apply the rules of civil evidence and procedure either…”

Levin was followed by the House of Lords in R v Commissioner of Police for the Metropolis, ex p. Rottman [2002] 2 AC 692 at §64. See also, for example, Cuoghi v Governor Of HM Prison Brixton [1997] 1 WLR 1346 (extradition proceedings fall within the statutory expression “criminal cause or matter” in section 18(1)(a) of the Supreme Court Act 1981).

It is surprising that the Supreme Court reached the conclusion that it did without referring to any of the established authority on this issue. Indeed, this is perhaps the most surprising aspect of the Supreme Court’s judgment and may well have very profound consequences. Not only procedurally in Part 2 cases required to establish a case to answer (what principles should now be applied to that determination? Does PACE 1984 not now apply?), but more generally. It calls into question, for example, the basis of the court’s judgment in R (Raissi) v Secretary of State for the Home Department [2008] QB 836 on ex gratia compensation for miscarriages of justice.