Green grass

Concerns we hold about the functioning of our criminal justice system are frequently put into context by a comparison with the systems of other countries. Rarely is this clearer than with requests for extradition by countries whose institutions and practices can be shown to fall short of our own, but with whom we have treaty obligations.

In Agius v Malta [2011] EWHC 759 (Admin), Sullivan LJ and Maddison J explicitly overturned a line of authorities established by Mitting J during 2010, thus re-establishing a requested persons' human rights as an issue that must always be considered (pursuant to section 21 of the Extradition Act 2003) by a district judge before ordering extradition to a part 1 territory.

The issues raised on Mr Agius' behalf were his rights pursuant to articles 3, 5 and 6 of the ECHR, specifically that if extradited to Malta he would be denied bail in circumstances contrary to article 5, imprisoned in conditions that violated article 3, and denied trial within a reasonable period contrary to article 6.

At first instance the district judge had followed three decisions of Mitting J (Rot v Poland [2010] EWHC 1820 (Admin), Dabkowski v Poland [2010] EWHC 1712 (Admin), and Klimas v Lithuania [2010] EWHC 2076 (Admin)). In Klimas it had been held that a district judge need not consider prison conditions in a convention category 1 state except in wholly extraordinary circumstances in which the constitutional order of the requesting state has been upset.

The district judge therefore concluded that in Mr Agius' case he did not need to address the issues raised by the defendant because he was entitled to assume that Malta would provide the defendant with all the protection he requires so as not to breach any of his human rights under the convention.

Notwithstanding that the district judge made 'backstop' findings of fact on which extradition was ultimately upheld, Mr Agius was clearly right to appeal the decision of 10 September 2010. On 21 January 2011 the grand chamber of the European Court of Human Rights gave a decision in MSS v Belgium and Greece (app 300696/09) that was almost immediately applied by Toulson LJ in Targosinski v Poland [2011] EWHC 312, who held that the assumption of compliance with the convention could be rebutted with clear and cogent evidence.

If there was any doubt as to which authority was to be preferred, it was comprehensively eliminated by the Divisional Court's decision in Agius. In a field of law in which our judges are increasingly encouraged to close their eyes and cover their ears, this decision could not be more welcome.