, Another one bites the dust 3: leadingcounsel.co.uk
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Another one bites the dust 4

Mr Mann no doubt thought that the matters referred to last week had concluded matters, but he was wrong because on 6 October 2008, a European arrest warrant was issued and on 18 February 2009 this was certified here by the Serious Organised Crime Agency. Consequently Mr Mann was arrested on 19 March 2009 and released on conditional bail. Therefore the matter he thought was dead and buried was very much alive. His case went before Senior District Judge Timothy Workman, sitting at City of Westminster Magistrates Court who, applying the principles we have looked at in this series of articles, in August 2009 ordered Mr Mann's extradition. However during that hearing there were apparent failures in the approach of Mr Mann's representatives. As Lord Justice Moses put it, "Possibly in the mistaken belief that District Judge Day's conclusion (note-the decision referred to last week when that judge found that he would not give a football banning order against Mr Mann because there had not been a fair trial in Portugal) would be sufficient, his then lawyers did not call either Mr Mann or any other witnesses. Senior District Judge Workman examined the notes of the trial and concluded that Mr Mann had had adequate time and facilities for the preparation of his defence and that the judge's conduct throughout the trial met the requirements of Article 6 of the European Convention. He reached that conclusion although he agreed to alter his judgment to reflect the fact that the defendant did not see his lawyer until the morning of the trial. He rejected the argument that injustice had been occasioned by the passage of time.". Whether or not the District Judge ought to have acted in that way, and whether he ought to have indicated that witnesses needed to be called if Mr Mann was to substantiate his point, is another matter. It was what happened then which was catastrophic. The then lawyers for Mr Mann missed the time for serving an appeal by one day, and therefore, as we have seen under the relevant provisions, that means that the appeal cannot be entertained. Cranston J so held on 25 August 2009. Attempts were made to get the District Judge to re-open his extradition hearing, but on 2 November 2009 such Judge ruled (understandably and correctly) that he had no jurisdiction to do so. The hearing which was heard by Lord Justice Moses and another judge was an attempt by Mr Mann's fresh legal team (Mr Mann is being supported by the group Fair Trials International) to find another way round the problem. They brought judicial review proceedings to try and achieve that result. Ingenious though this was, it failed. It is apparent from the judgment of Lord Justice Moses that the court was deeply troubled by the case. However ultimately courts have to apply the law whether they like it or not.

In consequence the likelihood is that Mr Mann will be sent to Portugal to serve his sentence. Lord Justice Moses put the matter this way. " I cannot leave this application without remarking upon the inability of this court to rectify what appears to be a serious injustice to Mr Mann. ..... Through no fault of his own, his lawyers failed to act with the result that he has never had the opportunity, by way of appeal, to advance his case that he is being deprived of a fair hearing. .......I should stress that the apparent injustice does not stem from what Mr Mann contends to have been an unfair and unlawful hearing. Whether he is right about that is disputed by the Portuguese issuing judicial authority, the Judicial Court in Albufeira. The injustice stems from the successive failures of his former lawyers. If this case had fallen within the jurisdiction of the Court of Appeal, Criminal Division, that court would have had little difficulty in ensuring that an appellant did not suffer, whatever the procedural delays, from the incompetence of his former lawyers. But Part 1 of the Extradition Act 2003 permits no such remedy against the failures of the previous lawyers. ...... this court is powerless to act. It has no jurisdiction. ....... I only feel it necessary to mention these facts in the hope that either the European Court of Human Rights, in the exercise of its powers to make a holding order under rule 39 or the diplomatic authorities in the United Kingdom or in Portugal, can strive to achieve some measure of justice for Mr Mann, a justice of which he has been so signally deprived by those on whom he had previously relied. "

Whether diplomatic or other moves will save Mr Mann from being imprisoned remains to be seen. There seems an almost biblical irony in a judge called Moses being prevented from doing justice by the rules when he wanted to do so. (Perhaps this series on European arrest warrant should have been termed "the 11th Commandment"). Thus as we have seen with the arrangement with America, and now with the European arrest warrant, you can be shipped off for trial or sentence abroad with relatively modest means of protection from the courts here. It is easy to assume that this could not happen to you, but that would be a very dangerous assumption. You could find yourself involved in the tail end of some commercial transaction here which then had some link to America where the prosecuting authorities there were scattering charges against foreigners like confetti. You could have been in the wrong place at the wrong time while on a continental holiday (or possibly not have even been there but have someone say you had been) and then find yourself subject to an arrest warrant. Anything which hinders the powers of the courts here to ensure that justice is done is to be deprecated.

Nor is the unfortunate case of Mr Mann the only one. We will look next week at another disturbing case.

Michael J. Booth QC