Law relating to admission of fresh evidence on appeal under the Extradition Act 2003 ought to be heard by Supreme Court

On 28 November 2017, the High Court (Hickinbottom LJ and Green J) certified the following points of law (but refused leave to appeal) in the case of FK v Stuttgart State Prosecutor's Office, Germany[2017] EWHC 2160 (Admin) (handed down on 19 September 2017):

Question 1:

Under the Extradition Act 2003, in what circumstances, if any, is it permissible for a respondent to an appeal to seek to rely on fresh evidence which was available at first instance (or could have been available with due diligence), and which is not in response to fresh evidence adduced by an appellant?

Question 2:

Is it ever permissible for a Part 1 warrant which fails to comply with the requirements of section 2 of the Extradition Act 2003 to be corrected through the provision of information extraneous to the warrant?

Question 2 is the same question as that certified in Alexander v The Public Prosecutor’s Office, Marseille District Court of First Instance, France [2017] EWHC 1392 (Admin).

Question 1 arose in FK as, following the first appeal hearing before Sir Stephen Silber, the judge asked the Crown Prosecution Service to secure further information from the Requesting Judicial Authority relating to dual criminality.  The matter was then relisted before a Divisional Court for a rehearing.

The points of law are important as they go to the regulation of fresh evidence on appeal, as well as the (inherent) jurisdiction of the High Court to seek further information from Requesting Judicial Authorities.

Graeme Hall was instructed by Shah Law Chambers at first instance and on appeal. Hugh Southey QC led at the appeal before the Divisional Court.