Another one bites the dust 9
Last week we saw the background to how the court came to consider the extent of the abuse jurisdiction. The court expressed the position this way. "We accept for these purposes that the evidence before the District Judge, and on his findings, established a sufficient case for the District Judge to have to satisfy himself that the statements had not been obtained by coercion, but if and only if such a conclusion was necessary to show that the extradition process was not being abused. That turns on the true scope of the abuse of process jurisdiction, to which we come later.". Thus the nature of the jurisdiction determined the extent to which you needed to make factual findings.
The other point made on behalf of the appellant was that contradictions within the statements taken by the Greek police from other witnesses, and certain points of unusual consistency between those statements, indicated that the police were manufacturing or manipulating evidence. In particular this related to a high degree of correlation in the description said to relate to the appellant, which it was said were so close as to have to have been in some way prompted. This view was said to be the clearer because the time log showed that the police must have been undertaking more than one interview with witnesses simultaneously, and as regards the position as a whole the court recorded it thus regarding statements: "They were in identical terms. Each said that having examined Mr Gibson's photographs on his laptop: "I identified with complete certainty and I am absolutely sure that the individual shown in about the middle of the photograph, who had a slightly artistic looking goatee, is the perpetrator....At this point I wish to point out that the perpetrator had shaved off his goatee on the day of the incident and had left only slightly long sideburns." This therefore included identification by Mr Hares who had not seen the incident, and although he had seen the man urinating had not offered his own description of that man, and by Mr Mordecai, whose description of the perpetrator had rather differed from the others. Mr Fitzgerald repeats with greater emphasis the point which he made earlier about the suspicious similarity of the descriptions: the police must have written this down for the witnesses to sign, regardless of its truth.".
There was also the point made on behalf of the appellant that certain evidence of witnesses differed substantially from evidence given by those witnesses at the coroner's inquest in Wales. The court accepted again that, subject to the extent of the abuse jurisdiction, that was evidence which might be relied upon to say that matters had not operate properly.
In paragraphs 33 and 34 of the judgment the court expressed the scope of the abuse jurisdiction in this way. "In our judgment, the reason why these two strands to the abuse argument cannot succeed is this. The focus of this implied jurisdiction is the abuse of the requested state's duty to extradite those who are properly requested, and who are unable to raise any of the statutory bars to extradition. The residual abuse jurisdiction identified in Bermingham and Tollman concerns abuse of the extradition process by the prosecuting authority. We emphasise those latter two words. That is the language of those cases. It is the good faith of the requesting authorities which is at issue because it is their request coupled with their perverted intent and purpose which constitutes the abuse. If the authorities of the requesting state seek the extradition of someone for a collateral purpose, or when they know that the trial cannot succeed, they abuse the extradition processes of the requested state. The abuse jurisdiction of the requested state does not extend to considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial." The court summarised it this way." It is for the trial court to decide whether its own procedures have been breached."
Thus unless there was evidence to show that the state and prosecuting authority itself was acting improperly, all the defects in the procedure were to some extent neither here nor there. This means that it is for all practical purposes extremely difficult to challenge the arrest warrant. What the courts are saying is that if there is a challenge to how the case has proceeded, the courts should assume that that will be dealt with in the country seeking extradition. In other words it is up to the Greek authorities to consider whether Greek procedures have been abused.
Compare this with a point made by the appellant's MP during the House of Commons debates, 14 January 2010, showing how in practice this was dealt with." More worrying, though, is that even though the public prosecutor is aware of the allegations, she has so far refused to acknowledge that anything of the sort could possibly have ever happened. In her proposal to the judicial counsel of Zante, without even bothering to have investigated the allegations, which all of us would agree are serious in their own right and clearly relevant to the case against Andrew, she dismisses the allegations out of hand as "trite" and claims that "nothing of the kind had occurred." How can she assert with such confidence and certainty that nothing of the kind occurred, if the allegations have never been investigated? If this is the cavalier attitude to justice that Andrew can anticipate when the case comes to court, how can he expect to receive a fair trial?"
The English courts outlined the theory, but this constitutes the practice. The effect of the arrest warrant is that you can be extradited and be left to the local court to investigate alleged wrongdoing, even if there is no real basis for confidence that that will ever happen.