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Another one bites the dust 8

A number of criticisms were made of the district judge's findings by leading counsel for the appellant. The first was the level of finding which was made. It was suggested that it was inappropriate to make findings "for the limited purpose of these proceedings", and that in any event a finding that the two witnesses were "certainly intimidated if not subjected to some force" was a finding that the statements were not freely made. If the district judge felt hampered by the fact that he did not have evidence from the Greek police said to have been involved, then it was suggested that the procedure referred to by Lord Phillips CJ (as he then was) in R (Government of the United States of America) v Bow Street Magistrates Court and Tollman [2007] WLR 1157, should be followed, namely that the court should enquire into the position (see the third paragraph ofAnother one bites the dust part 6). There was also an attack on the basis upon which the District Judge found that Mr Kyriacou gave a "surprisingly uninspiring" account of the violence. Moreover on behalf of the appellant, they sought to adduce additional psychiatric evidence as to why he might have come across in that way.

One of the key considerations which influence the court was inability to go behind factual findings of the judge and the problems regarding allowing fresh evidence to be adduced. For adducing fresh evidence see the article Adducing fresh evidence part 1 (and succeeding articles in that series). In terms of overturning factual findings, although the courts will overturn findings in appropriate circumstances, in general they are very reluctant to do so and it is very difficult to get them to do so. The courts generally consider that a judge who was seen witnesses, has a particular advantage from having observed their demeanour in order to decide whether they are truthful, and so is this an advantage in determining what findings to make. Although in an appropriate case therefore if it is obvious that the judge has gone wrong (say from answers and the transcript where the judge has ignored what was actually said), appeal courts are reluctant to interfere.

Unfortunately this meant that the court ended up with a curious halfway house. The court had not heard from the Greek police officers. The finding by the district judge as to the exact level of coercion by the police was said to be unclear, but the appeal court was not prepared to go behind it, and at the same time the absence of the Greek police officers meant that it was difficult to make absolute findings. To some extent this Mrs the point. If it was going to be said the court could not make findings without the Greek police officers being present, and if normally they would not have been present, then how on earth was the court ever going to properly embark upon inquiry which Lord Phillips had suggested it might do? This objection was essentially brushed aside as an improper attempt to both impugn the judge's findings and necessitate some form of extensive enquiry which would not be practicable. It may have been based upon this possibly self-evident point. If the purpose of the arrest warrant was to make extradition easy, then allowing an enquiry would subvert that very purpose. Unfortunately however failing to allow one, even when there is evidence which suggests that there may have been improper behaviour (albeit not determinative), essentially means that there is very little protection at all in response to a warrant.

Nor was the court impressed by the suggestion that psychiatric evidence could be or should be adduced. The psychiatrist, whilst not having seen Mr Kyriacou give evidence, had had Mr Kyriacou describe to him what had happened at the police station in Zakynthos. The psychiatrist also read various relevant statements. The psychiatrist concluded that "some of his symptoms are included within the diagnostic criteria for ...PTSD". (Post-traumatic stress disorder). The Psychiatrist did not say that this explained the way the District Judge described Mr Kyriacou's evidence, but stated that there were certain introverted and reserved aspects to his personality which could have accounted for that. Whilst accepting the proposition that this evidence was addressed towards the demeanour of the witness, and so one could say that before any trial since it was not known how the district judge would react then one could not know whether one would need to adduce evidence to deal with it, the court was unimpressed that the idea of allowing it in. They did not see it was appropriate to use such evidence to effectively attack the judge's interpretation of the consequences of the demeanour of witnesses. (Although one can pose the question, why not? If the evidence showed that as a result of misunderstanding the nature of the witnesses personality the judge had gone astray, surely that should not be ignored?).

Essentially the approach of the court was governed by their restrictive approach to the extent of the "abuse" jurisdiction. That approach was no doubt at least in part designed so as not to emasculate the fast track procedure which the arrest warrant was designed to bring in (although of course the concomitant lack of protection is part of the problem). We will see their approach on this next week.

Michael J. Booth QC