Awat Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy [2025] EWHC 593 (Admin)

[2025] EWHC 593 (Admin)

Case No AC-2023-LON-001608

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 14/03/2025

Before

MR JUSTICE SWIFT

Between

AWAT HAMASALIHApplicant

PUBLIC PROSECUTOR’S OFFICE,Respondent

BOLZANO COURT OF LAW, ITALYRespondent

Ben Cooper KC & Alex Tinsley (instructed by Birnberg Peirce Solicitors) for Applicant

Mark Summers KC & Catherine Brown (instructed by CPS) for Respondent

Hearing date, 12 February 2025

Approved Judgment

This judgment was handed down remotely at 14:00 on 14 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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Introduction

[1]The Applicant, Awat Hamasalih, is the subject of an extradition warrant issued by the Bolzano Court of Assizes on 30 November 2022 and certified by the National Crime Agency on 15 December 2022. The warrant is a conviction warrant. On 15 July 2019 at the Bolzano Court of Assizes (“the Bolzano Court”) the Applicant was convicted of an offence under article 270 of the Italian Criminal Code, that he had directed activities of Rawti Shax, an Islamist terrorist organisation. He was sentenced to 9 years’ imprisonment. The Applicant was one of three defendants at the trial. His appeal against conviction was dismissed by the Court of Appeal of Trento (“the Trento Appeal Court”) on 10 July 2020. There were then proceedings before the Court of Cassation which that court dismissed on 17 May 2022.

[2]The Applicant appeals against an extradition order made at Westminster Magistrates’ Court. I have before me two applications in that appeal, both made on 17 January 2025. The primary application, made by the Applicant, is for permission to rely on evidence not relied on at the extradition hearing. The other application, made by the Requesting Judicial Authority, is responsive; if the Applicant’s application to rely on new evidence is allowed, the Requesting Judicial Authority wishes to rely on new documents in response. If the Applicant’s application is refused the Requesting Judicial Authority’s application will fall away.

[3]The new evidence the Applicant wishes to rely on is substantial, comprising many documents, witness statements and statements from expert witnesses. All the new material concerns a ground of challenge to the extradition warrant that was not pursued at the extradition hearing. A brief description of the history of the extradition proceedings is required to put the application in context.

[4]The Applicant was arrested pursuant to the extradition warrant on 5 January 2023. The extradition hearing took place at Westminster Magistrates’ Court on 24 April 2023. An extradition order was made on 18 May 2023. At the extradition hearing the Applicant resisted extradition relying on the bar to extradition at section 12 of the Extradition Act 2003 (“the 2003 Act”), the rule against double jeopardy. In August 2017 the Applicant had been convicted at the Central Criminal Court of offences contrary to the Terrorism Act 2000: membership of a proscribed organisation, ISIS, contrary to section 11 of the 2000 Act; and three offences of possession of an article for the purposes of terrorism contrary to section 57(1) of the 2000 Act. He was sentenced to 6 years’ imprisonment. The submission made to the District Judge at the extradition hearing was that the conviction at the Bolzano Court was based on substantially the same facts as the convictions on the Terrorism Act 2000 offences. The District Judge rejected that submission in a carefully reasoned judgment.

[5]On 24 May 2023 the Applicant commenced his appeal against the extradition order. What were described as “holding grounds” of appeal were filed setting out a single ground of appeal: that the judge had reached the wrong conclusion on the section 12 issue. On 18 August 2023 the Applicant applied to amend the grounds of appeal. The proposed amended grounds comprised both the section 12 ground of appeal and a new ground of appeal described as “abuse of process”. The gist of this new ground was that the Applicant had not had a fair trial in Italy:(a) because he had not been permitted to attend the proceedings at the Bolzano Court either in person or by video link;

(b) that the interpreters appointed for the appeal at the Trento Appeal Court were inadequate;

(c) that the Trento Appeal Court had failed to act when the Applicant had said the interpretation was inadequate, such that the proceedings were not comprehensible to him;

(d) that the video link provided for the appeal hearing did not permit the Applicant to participate in the proceedings as the connection was poor and not all the proceedings could be heard; and

(e) because the Trento Appeal Court did not exercise its power under article 603 of the Code of Criminal Procedure to re-open the evidentiary phase of the proceedings. The application to amend the grounds of appeal also sought permission to rely on new evidence in the form of a report by an Italian lawyer, Professor Andrea Saccucci. That report was directed to the conduct of the appeal proceedings, whether the way that hearing had been conducted amounted to a “flagrant breach” of the fair trial rights under

ECHR article 6

, and whether any remedy for such breach remained available to the Applicant before the Italian courts.

[6]The application for permission to appeal was considered on the papers by Farbey J by reference to the proposed amended grounds of appeal. She refused permission to appeal and refused permission to rely on Professor Saccucci’s witness statement. So far as concerns the abuse of process ground of appeal Farbey J’s reasons were as follows:

“3. On the papers before me, there is no satisfactory explanation as to why the evidence contained in Prof Saccucci’s report of 2 October 2020 was not available in time for the hearing before the District Judge on 5 January 2023. It is plain and obvious that fair trial rights or questions of abuse of process (if meritorious) could and should have been raised at the extradition hearing: there is nothing obscure about any of the points that the Appellant now seeks to raise under Ground 2 and no proper reason they could not have been ventilated before District Judge Zani. 4. There was ample opportunity for the Appellant (who was represented by counsel and solicitors) to produce all relevant evidence in relation to the issues that he would have wished to raise before the District Judge. The late production of the fresh evidence and the belated attempt to rely on abuse of process represent an illegitimate and unmeritorious attempt to use this court as a court of first instance. The abuse of process arguments are in any event unarguable as amply demonstrated in the Respondent’s Notice. The conditions for the admissibility of fresh evidence or the raising of a fresh issue under section 27(4) of the Extradition Act are not even arguably met.”

[7]The application for permission to appeal was renewed by a notice signed by the Applicant’s wife on his behalf on 3 December 2023. By this time the Applicant was representing himself. The application was renewed both in respect of the section 12 issue (under the heading “double jeopardy”) and on a new ground set out under the heading “fair trial”. This latter ground was to the following effect:(a) that the Applicant had not been present for the trial at the Bolzano Court and had not received any summons to attend that trial;

(b) that he had not had a lawyer at that trial;

(c) that the lawyer who had represented him at Trento Appeal Court (Avv. Plati) had had no contact with him either before during or after the appeal hearing; and

(d) the interpretation provided for the appeal hearing was so poor that the Applicant could not understand the proceedings.

[8]The renewed application for permission to appeal was listed for hearing on 7 March 2024. On 28 February 2024 the Applicant (who had by that time instructed new lawyers) applied to adjourn the hearing, to amend the grounds of appeal (“the Further Amended Grounds”) and for directions to permit him to rely on new evidence, namely of transcripts and other documents concerning the hearings at the Bolzano Court. The application to adjourn the 7 March 2024 hearing was refused. At the hearing, Bourne J allowed the application further to amend the grounds of appeal, gave directions permitting translation and service of the new documents the Applicant wanted to rely on, and adjourned the hearing of the renewed application for permission to appeal pending service of those translated documents. I am satisfied at that hearing Bourne J did not give the Applicant permission to rely on any of the new documents. At that time, Bourne J was not able to consider any such application because the documents the Applicant wished to rely on had not been translated into English.

[9]The Further Amended Grounds may be summarised as follows. The section 12 ground of appeal has been abandoned. The ground of appeal now relied on is to the effect that extradition would be in breach of Convention rights because the proceedings in Italy were conducted in flagrant breach of article 6. The matters relied on are as follows:(a) Avv. Franzini, the lawyer who represented the Applicant at the trial at the Bolzano Court, never spoken to him;

(b) that Avv. Plati did not speak to the Applicant in respect of the appeal; and

(c) that Avv. Plati commenced and pursued the appeal to the court of Cassation without any instructions from the Applicant. Overall, the case pursued in the Further Amended Grounds is that the Applicant had no effective legal representation either at the trial before the Bolzano Court or at the appeal before the Trento Appeal Court. The other criticisms of the appeal hearing as to translation and the quality of the video link appear to have fallen away.

[10]The renewed application for permission to appeal was listed for hearing for a second time on 15 May 2024. The application came before Holgate J. For a second time the hearing was largely ineffective. Between the two hearings the Applicant had served translated versions of the documents filed in advance of the hearing before Bourne J, but had also served further witness statements exhibiting further documents. Holgate J refused permission to appeal on what was described as the “abuse of process” ground and ordered a rolled-up hearing on the article 6 ground. By this time the “abuse of process” ground comprised a complaint that the United Kingdom prison authorities had established the video link to the appeal hearing at the Trento Appeal Court without compliance with provisions in the Crime (International Cooperation) Act 2003.

[11]The rolled-up hearing was listed for 17 December 2024. Shortly before that hearing the Applicant provided a further bundle of documents he wanted to rely on. The new documents included a further expert statement on Italian law from a new expert, Avv. Nicola Canestrini. This report concerned the professional obligations of the Italian lawyers with reference to the duties to communicate with and seek instructions from their clients. The 17 December 2024 hearing was also adjourned. By this time the Applicant’s attempts at every possible opportunity to raise and rely on new evidence had rendered the appeal chaotic. I gave directions that the Applicant file a consolidated application covering all new evidence, identify definitively what it was (in terms of new evidence) he wished to rely on, and explain, document by document, why the information had not been relied on at the extradition hearing. The documents provided in support of the Application Notice dated 17 January 2025 include a schedule of the new evidence. In all, there are 21 documents or witness statements. I shall return to the detail of this below.

The Fenyvesi Issue

[12]The judgment of the Divisional Court in Szombathely City Court v Fenyvesi

[2009] 4 All ER 324

is part of the canon of extradition law; it is regarded as a definitive statement of the approach to be taken when, in appeal proceedings under the 2003 Act, an appellant seeks to rely on evidence not relied on at the extradition hearing.

[13]In Fenyvesi the respondents to the appeal hearing were the requested persons. Their surrender was sought by Hungarian judicial authorities pursuant to accusation warrants. Those warrants had been discharged by the District Judge in reliance on section 13 of the 2003 Act. The judge had accepted the requested persons’ evidential case that, as Roma persons, were they to be surrendered they might be prejudiced at trial by reason of their race. On appeal, the appellant requesting judicial authorities applied for permission to rely on new evidence to counter the contention that the requested persons were at risk of prejudice at trial.

[14]On considering the application, the court first referred to the rule in Henderson v Henderson, (1843) 3 Hare 100, and said this:

“3. It is normally incumbent on litigants in first instance courts or tribunals in which evidence is adduced to advance their whole case at first instance and to adduce all the evidence on which they want or need to rely. In most cases, the purpose and function of an appeal is to review the decision of the lower court upon the evidence which was adduced before the lower court. An appeal court is not generally there to enable a litigant who has lost in the lower court to advance their case upon new and enlarged evidence which they failed to adduce in the lower court. Litigation should normally be conducted and adjudicated on once only. It is generally neither fair nor just that the expense and worry of litigation should be prolonged into an appeal because a party failed to adduce all the evidence they needed at first instance. The same policy which underlies this contributes to the now very widespread requirement that an appeal or a claim for judicial review (which is appellate in nature) requires permission or leave. There are exceptions to this, of which perhaps the most obvious is an appeal to the Crown Court from a determination of a magistrates’ court in a criminal matter, which may be brought without leave; at which fresh evidence may be adduced; and where the appeal is a full rehearing. 4. The policy that evidence should normally be received once only and at first instance is not unyielding, and a variety of rules has developed to guide the usually discretionary circumstances in which an appeal court will receive fresh evidence. The underlying policy often is that fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so. Thus s 23(1) of the Criminal Appeal Act 1968 enables the criminal division of the Court of Appeal to receive any evidence which was not adduced in the proceedings from which the appeal lies ‘if they think it necessary or expedient in the interests of justice’. This reflects a necessary perception of criminal justice that a conviction which is in truth unsafe should not be upheld for want of fresh evidence which may establish that it is indeed unsafe.”

The court then considered the Henderson principles in the context of the right of appeal permitted under the 2003 Act (in section 26 – 27 for appeals against extradition orders; in sections 28 – 29 for appeals against decisions to discharge warrants) and, specifically the provisions in sections 27(4) and 29(4). Under each of these provisions (which are materially the same) an appeal may be allowed if specified conditions are met:

“(4) The conditions are that— (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 appropriate 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.”

The court concluded that the statutory purpose of the 2003 Act required that the notion of whether evidence had been “not available at the extradition hearing” be narrowly construed: see the judgment at paragraph 29. (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 appropriate 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.”

[15]The court’s reasoning continued between paragraphs 32 and 35, and may be summarised as follows. The provisions in sections 27(4) and 29(4) do not concern the admission of evidence per se but rather the conditions to be met before an appeal may be allowed. However, the court should not admit evidence unless it was “not available” at the extradition hearing. Evidence that is “not available” at an extradition hearing is:

“… 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.”

Even when this requirement is met, the conditions at subsection (4)(b) – (c) must be met – i.e., the evidence must also be decisive. Thus, the test for admitting evidence in an appeal on the application of an appellant when that evidence was not relied on at the extradition hearing follows the pattern set by subsections 27(4) and 29(4). It is a test in two stages: the first stage concerns availability and follows from subsection (4)(a); the second stage depends on the evidence being decisive and follows from subsection (4)(b) – (c). The test is a strict test, required by the purpose pursued by the Framework Decision and the 2003 Act, that extradition cases should be dealt with speedily. Further, admitting new evidence that would require an appeal to be conducted as a full rehearing – i.e. entailing oral evidence and cross examination – will be a “quite exceptional course.”

[16]Protection of Convention rights may require an exception to the strict approach to the admission of new evidence. In Fenyvesi (at paragraph 34), the court accepted, following the observations made by Latham LJ in Miklis v Deputy Prosecutor General of Lithuania

[2006] 4 All ER 808

, that “a degree of latitude may need to be introduced” and:

“… 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.”

[17]The judgment in Fenyvesi was considered by the Supreme Court in Zabolotnyi v Mateszalka District Court Hungary

[2021] 1 WLR 2569

: see per Lord Lloyd-Jones at paragraphs 57 – 60. Neither the approach nor the analysis in Fenyvesi was doubted. In particular, the Supreme Court confirmed that subsections 27(4) and 29(4) were not rules of admissibility but “rules of decision”; agreed that the power to admit evidence was found in the court’s inherent jurisdiction and rested on a general criterion of the interests of justice; and further agreed that what would be in the interests of

justice for this purpose would be informed by:

“… the policy underpinning sections 26 – 29 of the 2003 Act that extradition cases should be dealt with speedily and not delayed by attempts to introduce on appeal evidence which could and should have been relied upon below (Fenyvesi, paragraphs 32-33).”

[18]The submissions on the Applicant’s application in this case have focused on the extent of the “latitude” referred to in paragraph 34 of the judgment in Fenyvesi; the latitude to allow an appeal notwithstanding the strict terms of subsection 27(4) and 29(4) of the 2003 Act, to avoid what might otherwise be a breach of Convention rights; and in consequence, the latitude to submit new evidence for that purpose. The submission for the Applicant emphasised that the new evidence in this case goes to his claim that the proceedings in Italy involved a flagrant denial of article 6 rights and, that taken together, the new evidence comprises a very strong case of such a breach. In addition to paragraph 34 of the judgment in Fenyvesi, the submission also relied on the judgments of Collins J in Gruchala v Poland

[2013] EWHC 1177 (Admin)

; of Kenneth Parker J in Savage v UnitedStates of America

[2012] EWHC 3317 (Admin)

and of Hickinbottom LJ in Zarmaevv Russian Federation

[2017] EWHC 2705 (Admin)

[19]I do not think that the judgment in Gruchala assists. Although at paragraph 8 of his judgment, Collins J said that if on appeal “compelling evidence” was available to show that extradition would be in breach of Convention rights that evidence should be admitted even if it could have been presented at the extradition hearing, that observation was obiter. In that case there was no such evidence and no application to rely on new evidence was before the court.

[20]In Savage, at the extradition hearing the requested person relied on psychiatric evidence to support a contention that if extradited he would be a suicide risk. The District Judge had rejected that evidence. On appeal, in support of the same contention, the requested person sought to rely on a new psychiatric report from a different psychiatrist. In his judgment, Kenneth Parker J referred to paragraph 34 of the judgment in Fenyvesi on his way to concluding that “given how matters had proceeded below” (which was not further explained) and the requested person’s “depressive conditions” he was “disinclined to rule out … up to date and competent medical opinion regarding the nature and extent of suicide risk”. Thus, not only were the circumstances of that case far-removed from those of this one, but also the conclusion reached by the court on that occasion was entirely consistent with the point made at paragraph 34 of the judgment in Fenyvesi that there might “occasionally” be situations which warranted some relaxation of an otherwise strict approach modelled on the conditions of the 2003 Act for a successful appeal.

[21]By contrast, the Applicant’s submission on this application is much more expansive. It amounts to a contention that new evidence is to be admitted if it supports a Convention rights argument so long as it is decisive. The consequence of this submission would be that where the new evidence concerned a claim that extradition would be in breach of Convention rights, the first part of the Fenyvesi test would not apply. Not only would this be a significant modification of the Fenyvesi approach (even accounting for “latitude”), it would also be a poor fit with subsections 27(4) and 29(4) of the 2003 Act which prescribe circumstances in which an appeal may succeed. This cannot be the effect of the reference at paragraph 34 in Fenyvesi to latitude in “occasional” cases. Most appeals include an argument based on Convention rights (most often that extradition would be a disproportionate interference with article 8 rights). If the Applicant’s submission is correct the exception to the rule in Fenyvesi would not be the occasional case. It is notable that there are numerous examples of cases where the court has not acted on the premise that new evidence must be admitted in an appeal simply because the evidence supports the submission that extradition would entail a breach of Convention rights. In his submissions for the Requesting Judicial Authority, Mr Summers KC referred to examples: LMNvTurkey

[2018] EWHC 210 (Admin)

per Holroyde LJ at paragraphs 28 and 35 – 38; Romania v Varga

[2019] EWHC 890 (Admin)

per Irwin LJ at paragraphs 38 – 39 and 51; and Turner v Ireland (No1)

[2024] EWHC 1526 (Admin)

per Holgate J at paragraphs 27 and 34 – 35.

[22]The high point of the Applicant’s submission is paragraph 35 of Hickinbottom LJ’s judgment in Zarmaev. Having set out paragraphs 32 – 34 of Fenyvesi, Hickinbottom LJ summarised the position as follows:

“35. Therefore, where an appellant is seeking to adduce fresh evidence on an extradition appeal to this court, he must show that: (i) the evidence did not exist at the time of the extradition hearing, or was not at the disposal of the appellant and which he could not with reasonable diligence have obtained; or (ii) the evidence, if admitted, might avoid a breach of the ECHR; and, in either case (iii) there would have been a real prospect of the result of the extradition hearing before the magistrate being different had the evidence been before him.”

With respect to Hickinbottom LJ, his (ii) is not an accurate summary of the point made in Fenyvesi. More significantly, it is not a proposition that can stand together with the judgment of Lord Lloyd-Jones in Zabolotnyi. (i) the evidence did not exist at the time of the extradition hearing, or was not at the disposal of the appellant and which he could not with reasonable diligence have obtained; or (ii) the evidence, if admitted, might avoid a breach of the ECHR; and, in either case (iii) there would have been a real prospect of the result of the extradition hearing before the magistrate being different had the evidence been before him.”

[23]In the premises, I do not accept the Applicant’s submission that new evidence will always be admissible to support a Convention rights argument so long as it is decisive evidence. Rather, in all cases, the working premise is that both parts of the Fenyvesi test apply. Occasionally the test may be applied with “latitude”. No different requirement arises from the Convention itself. There is no requirement under the Convention that litigants should have multiple opportunities to present their cases.

[24]It would be futile to attempt to anticipate let alone codify all circumstances that might fall within the occasional category of cases recognised at paragraph 34 of the judgment of Fenyvesi. I am, however, satisfied that the circumstances of the present case do not fall into that category. First, at the extradition hearing, the Applicant had professional representation by solicitors and counsel. The lack of professional representation at an extradition hearing is not per se a reason to admit new evidence into an appeal: see Beshiri v Albania

[2018] 1 WLR 3418

, per Irwin LJ at paragraphs 21 – 22. However, in the present case the Applicant was represented by experienced solicitors and counsel and informed decisions were made by the Applicant and his lawyers as to the matters that should be pursued at the extradition hearing. The present application is an attempt to reverse those decisions. That will rarely, if ever, be a course that should be permitted: compare Khan v United States of America

[2010] EWHC 1127 (Admin)

per Griffith Williams J at paragraphs 41 – 44.

[25]For the purposes of this application the Applicant has waived privilege so far as concerns the solicitors and counsel who acted for him at the extradition hearing. Alastair Lyon of Messrs Birnberg Peirce, the solicitors presently acting for the Applicant, has made a statement (his seventh in these proceedings, dated 17 January 2025) that summarises exchanges between the Applicant and his previous solicitors and some of the advice given, and exhibits documents from the client file. It is apparent from this that the Applicant did raise some complaints about the conduct of the appeal proceedings in Italy including about his ability to understand the proceedings and the extent to which he was able to speak to his Italian lawyer (Avv. Plati). However, it is equally apparent both from the documents exhibited to Mr Lyon’s statement and the separate witness statement dated 12 April 2024 made by Katy O’Mara the solicitor who acted for the Applicant at the extradition hearing, that the Applicant’s solicitors and counsel considered those matters and advised to the effect that they did not give rise to points that should be pursued at the extradition hearing. Mr Cooper KC, who now appears for the Applicant, relying on the judgment of the Supreme Court in Public Prosecutor’s Office of the Athens Court of Appeal vO’Connor

[2022] 1 WLR 903

, submitted that this was a situation in which the Applicant ought not be prejudiced by the “errors” of his lawyers. However, the circumstances in O’Connor were very different. In the present case there were no “errors” on the part of solicitors and counsel who acted for the Applicant at the extradition hearing. Based on the information available to them, those lawyers advised on how the extradition hearing should be conducted and the Applicant accepted that advice. There is no suggestion that the Applicant was unable to understand the advice given. It is apparent from what I have seen, which is only a small part of the client file, that tactical decisions were taken on the points to be pursued at the extradition hearing. That is an inevitable part of the preparation for every extradition hearing. There is nothing to suggest that in this regard, this case was any different from any other.

[26]Second, when it comes to what happened in the Italian proceedings, the Applicant is not a consistent or reliable narrator. He has made or prepared various documents in these proceedings.(1) An unsigned proof of evidence served on the judicial authority on 13 February 2023. In a later, unsigned, statement (6 March 2024, see below) the Applicant states he signed a copy of this proof in February 2023.

(2) An unsigned document headed “Proof of evidence relating to hearing on 10 July 2020”. I am told this document was relied on in an earlier set of extradition proceedings.

(3) The grounds of renewal in this appeal, dated 3 December 2023 were prepared by the Applicant.

(4) A statement dated 6 March 2024, unsigned but supported by a witness statement made by Mr Lyon which confirms that the statement prepared for the Applicant sets out the instructions he gave to Mr Lyon. A signed version of this statement, dated 13 April 2024 was served on the Requesting Judicial Authority.

(5) A signed statement from the Applicant dated 17 January 2025.

[27]In the statement served on 13 February 2023, the Applicant said that he did not receive a summons to attend the trial in Italy (at the Bolzano Court), and referred to the fact that at the time of the trial he was in prison in England serving the sentences imposed on him following conviction on the Terrorism Act 2000 charges. The Applicant repeated these points in the application to renew the application for permission appeal, dated 3 December 2023. What the Applicant said about not receiving a summons was not true. On 22 March 2018 the Applicant signed a certificate of service that he had received the summons. A letter of the same date from DC Stevens of the Kent Police confirms that DC Burns visited HMP Dovegate that day and gave the documents to the Applicant. On 25 May 2018 the Applicant signed a further document that, among other matters, confirmed that the summons had been served on him on 22 March 2018.

[28]In the same statement, and again in the 3 December 2023 renewal application, the Applicant stated that he did not have a defence lawyer at the trial and did not instruct anyone to represent him at the trial. This too was untrue or, at best, highly economical with the truth. In the document the Applicant signed on 25 May 2018 he stated that he agreed to be represented at the trial by “Avv. Enrica Franzini” (sic). Avv. Franzini was a court-appointed public defender.

[29]Copies of the two signed documents from 2018 were served in these proceedings in February 2024. Since then, the Applicant has provided two statements, on 6 March 2024 and 17 January 2025. In the March 2024 statement, the Applicant accepts that in March 2018 “a very small accusation document” was served on him but says he did not understand it as it was in Italian and English, and he was only provided with a Kurdish language translation sometime later. This claimed lack of understanding is inconsistent with what is said in the letter from the Kent Police dated 22 March 2018 that records the visit. In the January 2025 statement the Applicant says that Avv. Franzini had not been mentioned to him by anyone until these appeal proceedings. He says that he did not understand from the visits in 2018 that she was presenting him or that a trial was taking place. This is entirely implausible. On the form the Applicant signed on 25 May 2018, after the reference to representation by Avv. Franzini, the following was written in manuscript:

“In consultation with my legal representative in the United Kingdom – David Nicholson.”

The only explanation for this manuscript addition is that it records what the Applicant had said after being told about Avv. Franzini in 2018.

[30]In the statement made on 17 January 2025 the Applicant seeks to explain what he said in the statement served in February 2023 and the December 2023 renewal application by saying that when in February 2024 he saw the documents from 2018, they helped “jog” his memory. He also says that had he been asked more detailed questions by the solicitors who previously represented him he would have said then what he has now said. I do not accept this explanation. It is implausible that the Applicant had forgotten the events in 2018 leading to the trial in 2019. All of them would have been out of the ordinary events for a person, like the Applicant, serving a prison sentence in this country. The suggestion that the failure to remember these events is that no one asked him the right questions smacks of yet further economy with the truth, revealing the Applicant as willing to tailor what he is prepared to say depending on what he considers to be to his own advantage, from time to time.

[31]The significance of this for present purposes – i.e. whether this case is one in which some form of departure from a strict application of the two stage Fenyvesi test is appropriate – is that these matters satisfy me(a) that the complaints about representation at the appeal proceeding at Trento Appeal Court could have been raised at the extradition hearing; and

(b) that so far as concerns the trial at the Bolzano Court, at the time of the extradition hearing the Applicant was well aware both that he had been notified of the proceedings and that Avv. Franzini had been appointed to act for him at the trial.

Admissibility of the new evidence in this appeal

[32]The new evidence that the Applicant seeks to rely on is as follows.(1) Statements by Mr Lyon dated 7 March 2024, 12 April 2024 and 11 November 2024 exhibiting correspondence between his firm and Avv. Franzini the lawyer who represented the Applicant at the trial at the Bolzano Court, and Avv. Plati who represented the Applicant at the appeal at Trento Appeal Court. The correspondence dates from the period February to September 2024.

(2) Transcripts (and English translations) of the proceedings at the Bolzano Court on 23 October 2017, 15 January 2018, 25 August 2018, 8 October 2018, 9 October 2018, 10 December 2018, 4 February 2019, 4 March 2019, 7 May 2019, and 15 July 2019. These documents were served on the Requesting Judicial Authority on 12 April 2024.

(3) Documents from 2018 and 2020 concerning service of documents on the Applicant in prison.

(4) The decision of the Court of Cassation given on 17 May 2022 and a document dated 23 July 2022 which formally records the end of the proceedings before the Court of Cassation. Both these documents were served on the Requesting Judicial Authority on 28 February 2024.

(5) A witness statement dated 12 April 2024 by Katy O’Mara then of ITN solicitors, the solicitor who acted for the Applicant at the extradition hearing, and a statement made by Mr Lyon dated 17 January 2025 which exhibits documents from ITN solicitors’ client file and contains a summary of some of the dealings between the Applicant and his then solicitors and counsel in the period 2019 to 2023.

(6) A witness statement dated 13 May 2024 by David Nicholson, the solicitor referred to in the manuscript addition to the document signed by the Applicant on 25 May 2018 as the Applicant’s “legal representative in the United Kingdom”.

(7) Witness statements made by the Applicant (a) unsigned but accepted to have been served on the Requesting Judicial Authority on 13 February 2023; (b) unsigned but concerning “a hearing on 10 July 2020” served on the Requesting Judicial Authority before the extradition hearing; (c) unsigned, dated 6 March 2024; and (d) signed and dated 17 January 2025.

(8) A witness statement dated 17 January 2025 made by Nishtman Kherzi.

(9) Expert reports by: (a) by Professor Andrea Saccucci dated 2 October 2020 first served in these proceedings under cover of an Application Notice dated 18 August 2023; (b) by Nicola Canestrini dated 12 November 2024; and (c) by Amani Nazur dated 5 December 2024. Professor Saccucci’s report concerns the conduct of the appeal proceedings at Trento Appeal Court, specifically whether the court had responded appropriately to complaints made by the three appellants before it (including the Applicant) concerning the quality of the translation of the proceedings and whether those appellants had the opportunity to participate in the appeal proceedings. Mr Canestrini’s report addresses the professional obligations owed by Italian lawyers to their clients with reference to obligations to communicate with their clients, act on their instructions and keep them informed about their case.

(10) A petition filed by the Applicant with the United Nations Working Group on Arbitrary Detention. The petition raises a claim against the Italian state that the trial in Italy was not fair. The petition is undated. I am told that it was filed with the UN Working Group on 1 November 2023. The copy of it was served on the Requesting Judicial Authority on 2 May 2024.

[33]The Applicant accepts that items (1) – (6), (7)(c), and (9)(a) – (b) above could have been provided at the extradition hearing. Mr Lyon’s statement dated 17 January 2025 explains that so far as these materials concern the appeal proceedings at Trento Appeal Court, they were not obtained for or relied on at the extradition hearing because the Applicant and his then legal advisors decided that the argument that any defects in the conduct of the appeal proceedings would provide a bar to extradition would not succeed. Mr Lyon’s account also draws on matters referred to by Katy O’Mara in her statement (dated 12 April 2024). No doubt the view taken at the time as to the likelihood that these complaints would provide a bar to extradition was informed by the judgment of Sir Ross Cranston in Rahim and Hamad v Assize Court of Bolzano

[2020] EWHC 2748 (Admin)

handed down on 8 October 2020. Messrs Rahim and Hamad had been the Applicant’s co-defendants at the trial in the Bolzano Court and the appeal at Trento Appeal Court. Their submissions that they should not be extradited because the appeal proceedings had been conducted unfairly were rejected by Sir Ross Cranston.

[34]For the reasons already given (see above at paragraphs 24 – 25) this explanation is not sufficient for the purposes of the first part of the Fenyvesi test.

[35]So far as the documents at (1) – (6), (7)(c), and (9)(a) – (b) concern the trial at the Bolzano Court they also fail the first part of the Fenyvesi test. The only explanation given for the failure to obtain and rely on these documents at the extradition hearing is hinted at in the Applicant’s witness statement dated 17 January 2025 where he suggests he made no mention of Avv. Franzini to Ms O’Mara because Ms O’Mara “never mentioned Ms Franzini to me”. This is not a plausible explanation given that in the statement he made in February 2023 (item (7)(a) above) the Applicant said, “I did not have a defence lawyer”. As I have explained above, the lack of truth in that statement is revealed by the document the Applicant had signed on 25 May 2018 which stated he agreed “to be represented by my lawyer Avv. Enrica Franzini (sic) … in consultation with my legal representative in the United Kingdom – David Nicholson.” My conclusion is that the Applicant chose to tell the lawyers who represented him at the extradition hearing that he had not been represented at the hearing at the Bolzano Court. That is the explanation for the failure then to raise the matters he now wishes to rely on concerning the conduct of those proceedings. Item (4) comprises the decision of the Court of Cassation and the formal notification of that decision. These documents too could have been relied on at the extradition hearing.

[36]Items (7)(a) and (b) are statements of the Applicant prepared prior to the extradition hearing, served on the Requesting Judicial Authority before that hearing but not relied on at the extradition hearing. I am told that the Applicant did not give evidence at the extradition hearing. These documents therefore also fail the first part of the Fenyvesi test and are inadmissible for that reason.

[37]Item (8) is a statement of an interpreter made on 17 January 2025. He gives evidence as to the quality of a Kurdish language version of a document provided by the Bolzano Court. He states the translation was poor and would have been difficult to understand. This evidence could have been obtained for the extradition hearing had the Applicant chosen at that time to raise this issue.

[38]Item (9)(c) is a statement in the form of a letter dated 5 December 2024 by Amani Nazir, a Mental Health Practitioner in the Mental Health Team at HMP Wormwood Scrubs. Mr Nazir summarises psychological treatment the Applicant received for anxiety and depression after his arrival at HMP Wormwood Scrubs in April 2023. This evidence is inadmissible as it is not relevant to any issue in the appeal. The consequence of the decision by Bourne J to permit the Applicant to rely on the Further Amended Grounds attached to the 28 February 2024 Application Notice taken with Holgate’s J decision at the renewal application on 15 May 2024, is that there is only one ground of appeal, the article 6 ground of appeal.

[39]Item (10) is undated but, I am told, was filed with the UN Working Party on 1 November 2023, i.e. after the extradition hearing. This document cannot advance the Applicant’s article 6 case in this appeal as it is no more than a case pleaded in a different forum. It is not evidence of what happened in the Italian proceedings.

[40]Mr Cooper also submitted that notwithstanding that the evidence listed above could have been provided at the extradition hearing, it should be admitted now:(a) because the article 6 issue is already before the court; and

(b) because some documents that were relied on at the extradition hearing (for the purposes of the submission on section 12 of the 2003 Act) contain information relevant to the article 6 submission and, in the appeal will be relied on for the purpose of the article 6 ground of appeal in any event. Neither of these points is persuasive. In this appeal the decision granting the Applicant permission to amend his grounds of appeal to rely on the article 6 ground was taken without reference to whether the evidence relied on in support of that ground should be admitted. This is not the approach that is always taken. Often the court will consider an application for permission to amend together with the application to admit evidence to be relied on in support of the proposed amended grounds of appeal and will grant permission to amend only if satisfied that having regard to such evidence as is admissible, the proposed ground of appeal is properly arguable. That was not the course taken in this case. But the Applicant can gain no advantage from the order in which the decisions on each of the applications are taken. The decision to grant permission to amend did not and could not pre-empt proper consideration of an application for permission to admit any new evidence relied on in support of the article 6 ground.

[41]Mr Cooper’s second point is essentially opportunistic. The evidence at the extradition hearing included the judgment of the Bolzano Court, documents concerning the appeal hearing at the Trento Appeal Court, and the judgment of that court. At the extradition hearing these documents were relied on for the purpose of the argument under section 12 of the 2003 Act. Should any of them contain information relevant to the Applicant’s new article 6 case (on which I say nothing) that is simply a matter of chance. It is not a reason for disapplying the Fenyvesi criteria when deciding whether to admit other new evidence said to support the article 6 ground of appeal.

[42]By way of further variation on the same theme, Mr Cooper submitted that as there would be some evidence relevant to the article 6 ground of appeal everything else the Applicant wished to rely on in support of that ground should be admitted to avoid the risk that the court might come to the “wrong conclusion” on the article 6 ground of appeal. There is no substance to this submission. The court would not reach the “right” answer on an appeal by relying on inadmissible evidence. It is entirely possible that the Applicant’s case on the article 6 ground of appeal will be prejudiced by his inability to rely on the new evidence but that is no more than the consequence of attempting on an appeal to rely on an entirely new argument that was available at the time of the extradition hearing but not pursued.

Disposal

[43]For the reasons above the Applicant’s application to rely on new evidence is refused.

[44]The reasons above have not considered one item on the schedule attached to the Applicant’s 17 January 2025 Application Notice, a letter dated 5 December 2024 from the Bolzano Court to the Crown Prosecution Service, responding to a request for further information made by the Crown Prosecution Service. It may be that in consequence of my decision to refuse the remainder of the Applicant’s application, the information in this letter will not be relevant to the issue in this appeal. However, I take no position on that for now. If the Requesting Judicial Authority wishes to rely on the information in the letter in response to the appeal it may apply to do so.

[45]I would be grateful if the parties could now consider what further directions are necessary for the rolled-up hearing of the appeal. In the first instance it will be necessary for the Applicant to consider and set out the arguments that will now be advanced in support of the article 6 ground of appeal. Once that has happened the Requesting Judicial Authority should consider whether it wishes to apply to admit any further evidence in response to such case as it will now need to meet. As I said at the outset of this judgment, the Requesting Judicial Authority did make its own application on 17 January 2025 to rely on new evidence. Mr Summers explained that application was purely responsive to the Applicant’s application and would not need to be determined if the Applicant’s application failed. For now, I make no decision on the Requesting Judicial Authority’s application and leave it to the Requesting Judicial Authority to consider what if any further application it should make once the shape of the Applicant’s case on the article 6 ground of appeal is known. ________________________________________