On 14 March 2025, the High Court handed down judgment in Hamasalih v Public Prosecutor's Office, Bolzano, Italy [2025] EWHC 593 (Admin) in which it reaffirmed the two-stage test in Divisional Court in Szombathely City Court v Fenyvesi [2009] 4 All ER 324 relating to fresh evidence in extradition appeals.
In Fenyvesi, the appellant requesting judicial authority applied for permission to rely on fresh evidence to counter the requested persons' assertion they were at risk of prejudice at trial (which had been accepted by the lower court).
In considering the application, the court looked at the construction of sections 26, 27, 28 and 29 of the Extradition Act 2003 ("the Act"), and specifically the provisions under sections 27(4) and 29(4) which set out the court's powers on appeal:
"(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 the statutory provenance and obvious parliamentary intent of the Act did not favour a liberal construction of the provisions and evidence which was "not available at the extradition hearing" meant 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".
However, the court also acknowledged that in cases concerning human rights issues, "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".
It is this "latitude" which has been grappled with by the courts post Fenyvesi and which was considered in Hamasalih. Here, the Appellant's extradition was sought by the Italian authorities in relation to terrorism offences. At his extradition hearing before Westminster Magistrates' Court, he relied on the bar to extradition at section 12 of the Act, the rule against double jeopardy. His extradition was ordered and he applied for permission to appeal to the High Court.
By that time, the Appellant had dispensed with his original legal team and had instructed new lawyers.
In amended grounds of appeal, the Appellant abandoned the double jeopardy argument and sought to rely on a new ground, namely that extradition would breach his Article 6 rights under the European Convention on Human Rights ("the Convention"), citing various procedural flaws in the Italian trial process. He also sought to adduce fresh evidence in support of the Article 6 argument, which included transcripts of the Italian proceedings and expert reports on the Italian court process and the professional obligations of Italian lawyers.
An earlier rolled-up appeal hearing had been adjourned and the matter listed before Mr Justice Swift for a determination on the application to adduce fresh evidence.
It was argued on behalf of the Appellant that the fresh evidence should be allowed as it comprised a very strong case of a breach of his Article 6 Convention rights. The court found these submissions to be much more expansive than those in Fenyvesi, amounting to a contention that fresh evidence supporting a Convention rights argument should always be admitted if it is decisive.
Dismissing this argument, Mr Justice Swift held:
"(23) I do not accept the Applicant's submissions 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 requirements arise form the Convention itself. There is no requirement under the Convention that litigants should have multiple opportunities to present their cases."
While declining to identify all circumstances that might fall within the "occasional" category of cases recognised in Fenyvesi, the court was satisfied Hamasalih did not fall into that category. The Applicant had essentially sought to argue to argue that the evidence had not been adduced before the lower courts due to an 'error' by his previous legal representatives. Rejecting this contention, the court found there were no 'errors' on the part of the previous solicitor and counsel who had provided advice based on the information available to them; advice which was accepted by the Applicant.
The court refused the application to adduce the fresh evidence, finding it did not satisfy the first test of Fenyvesi as it was available at the time of the extradition hearing, or where it had not been available, it failed the second test as it was not relevant to the issues on appeal.
Conclusion
The judgment is a reminder to extradition practitioners that the fact fresh evidence relates to Convention rights does not override the Fenyvesi test. Where an application to adduce fresh evidence is made, this will need to be supported by an explanation as to why it was not available before the lower court.
While there may be circumstances in which it would be in the interests of justice to permit fresh evidence (for example, updated medical evidence relating to suicide risk[1]), the courts will not simply permit the introduction of new evidence, even if it does support a strong claim of breach of Convention rights.
Hamasalih also enforces the need for anyone subject to an extradition request to obtain specialist expert advice from the outset to ensure all issues are aired before the lower court as lack of representation[2], or alleged ineffective representation, is not a per se reason to admit fresh evidence.
[1] Savage v United States of America [2012] EWHC 3317
[2] Beshiri v Albania [2018] 1 WLR 3418
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