Neutral Citation Number: [2006] EWHC (Admin) 1616
Case No: CO/7770/2005
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3rd July 2006
Before :

LORD JUSTICE LATHAM
MR JUSTICE MCCOMBE
and
MRS JUSTICE DOBBS
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Between :

	ANDREA BARDHOK PRENGA
(aka NDRE BARDHOK SUMA & NDRE SUMA)	Appellant	
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	THE REPUBLIC OF ALBANIA	Respondent	

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Joel Smith  (instructed by Tuckers & Co of London) for the Appellant
Peter Caldwell  (instructed by the Crown Prosecution Service) for the Respondent

Hearing dates : 13th June 2006
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Judgment 

Lord Justice Latham : 
1.	This is an appeal under Section 103 of the Extradition Act 2003 (the 2003 Act) against a decision of District Judge Tubbs on the 20th July 2005 sending the appellant’s case to the Secretary of State for his decision as to whether the appellant should be extradited to Albania.  The request for extradition by the Government of the Republic of Albania is based on the appellant’s conviction for two offences of murder and possession of an illegal weapon for which he was sentenced on the 15th October 1996 to 25 years imprisonment.  The conviction was upheld by the Appeal Court in  Tirana on the 27th November 1996.  But the appellant absconded from prison on the 13th March 1997 and remained at large until arrested in this country.   It is common ground between the parties that the only question before us is whether the appellant’s conviction was the result of a confession or admission obtained by torture or other ill treatment amounting to a breach of Article 3 of the European Convention on Human Rights.  In determining that question we are not restricted to considering the validity of the decision of the District Judge on the basis of the material before her, but are entitled under Section 104 of the 2003 Act to take account of material which was not available to the District Judge.  Ultimately the question is whether or not we are satisfied by the whole of the material now available to this court that the appellant has established on the balance of probabilities that his conviction was so procured; if he fails to discharge that burden the appeal must be dismissed.
2.	The appellant’s case is that whilst in police custody before his trial he was subjected to persistent beatings intended to force him to make a confession.  These continued up to the time of his trial.  He accepts that he admitted the offences before the trial judges.  He did so, in circumstances to which I will return to in more detail later, on the advice of his lawyer and in order to avoid being returned to prison custody and exposed to further ill treatment.  He accepts that he appealed and that his appeal was dismissed.  But, on his account, the appeal process was corrupted by the fact that his original lawyer was not permitted to conduct the appeal; and a lawyer, of whom he had no knowledge, acted for him at the time of the appeal and apparently withdrew the appeal on his behalf but without any instructions from him.  Before the District Judge, his account was supported by statements from the Albanian Human Rights Centre, Mr Brati, his lawyer at his trial, and Mr Jaku who appears to have been a police officer concerned with investigating the crimes.
3.	The conclusions of the District Judge on the basis of the evidence given by the appellant and the material to which I have referred was as follows:
“Mr Prenga gave evidence that whilst he was at the police station he was physically assaulted by police officers who beat him with truncheons and wooden sticks to make him admit the offence and this continued for about a month.  A declaration from the Albanian Centre of Human Rights dated February 2005 stated, inter alia (i) a survey was done in the month of July 1996 in the prison of the district of Puke to oversee how detained people were treated (ii) that the survey ascertained that detained people in the prison were under constant ill-treatment by the Police Staff serving there.(iii) that one of the ill-treated was the detained Andrea Prenga (Ndrea Suma) who was ascertained as being seriously ill-treated, covered in haematomas, “everywhere in his face, in his head and elsewhere.
The survey and the constant complaints to the authorities were not put in evidence. 
Mr Prenga said in evidence that no written confession was made or tape recorded but that he had finally, in order to stop the ill treatment, made a verbal admission in front of the Police Staff.  
When it came to the trial it was common ground that Mr Prenga was legally represented  and that the penalty for murder was no longer capital punishment but imprisonment.  It was Mr Prenga’s evidence that his lawyer had asked him whether he wanted to plead guilty or not guilty.  The lawyer also advised him that he would have a reduction by ⅓ of his sentence of imprisonment if he pleaded guilty.  There is no evidence in the documentation of a confession having been made at the Police Station.  Mr Prenga said that he pleaded guilty on his lawyer’s advice.  His lawyer had also told him that he could appeal.  The appeal papers showed the grounds of the appeal as being that his acceptance of his complicity and his mitigating circumstances and his age had not been taken into consideration by the original court in passing sentence.  Although Mr Prenga was legally represented at his appeal he maintains, without contradiction, that he was not personally present.   
There is some evidence that Mr Prenga was ill treated at the Police Station when detained by the police.  There is no evidence that the ill treatment, if it happened, was to procure a confession or that a confession was made.
There was no trial at which the prosecution authorities relied on any confessions as Mr Prenga accepted his guilt.
I cannot be satisfied that an evidential basis has been established to show that the plea of guilty was procured by any ill-treatment he received.  He was legally represented and on his own account had a choice whether to plead guilty or not.  Neither at the trial nor at his appeal did he raise the issues that he now raises before this court, that his deceased father and another were responsible for the crime in 1992.
I am not persuaded that this is one of those, what Lord Justice Rose described in R (Kashamu) –v- Governor of Brixton Prison AC [2002] QB 887 at 900 as “very rare extradition cases” where it is possible to argue that an abuse of process has rendered the detention unlawful under Article 5 “because of bad faith or deliberate misuse of the English Courts Procedure”.  The evidence does not in my view establish a proper basis to displace the assumption that the requesting state is acting in good faith.”
4.	Before us, Mr Smith, on behalf of the appellant, submits that the District Judge failed to give adequate weight to the material provided particularly from the Albanian Human Rights Centre as to the ill–treatment the appellant received, and to the statement of the lawyer Mr Brati in which he states that there was an intervention by the judge suggesting that there had been recordings taken of statements by the appellant during his detention, and the statement by the investigating officer expressing doubt about the guilt of the appellant.  Indeed there was material before the District Judge that an  informal enquiry concluded that the true perpetrator was the appellant’s father and that the appellant had an alibi.  He has put further material before us which was not available to the District Judge which he submits strengthens significantly the appellant’s case.  This consists of a further more detailed statement from the Albanian Human Rights Centre, a new and, it is said more accurate, translation of the statement of the lawyer Mr Brati, who has unfortunately now died, and a further witness statement of the appellant dealing with the issue in question in the appeal.
5.	As far as the statement from the Albanian Human Rights Centre is concerned, the additional evidence relates to the content of the interview which, it is said, took place between the Human Rights Centre members and the appellant.  The relevant passages are as follows:
“After numerous difficulties we managed to have a brief interview with Andrea who informed us that in the cell he was, masked policemen entered and attacked him with rubber and wooden clubs.
“If you do not accept the charges, you shall have a grave for sure”  they used to repeat to him whenever they tortured him.  While Andrea kept saying he was innocent irrespective of the fact that he might be executed.
On July 30th 1996 we managed to contact Ndue Jaku, who was a police officer charged to deal with the file of Adrea Prenga.
After getting from us sureties for not mentioning his name Mr Jaku told us he was under constant pressure from his superiors in the police.
“Andrea is innocent in no data is there anything to prove that the murder has been committed by him, but he was tortured in order to make him accept the accusation for canon reasons.  He was not allowed to have a defending lawyer.  From confidential sources it results that the real murders are Andrea’s father together with a killer from Shkodra, named Gjon Gjeka.  Andrea is a victim of canon law vengeance, instigated by the son of the victim named Anton Lleshi, occupation policeman in the Police Station of Puke”
6.	In Mr Brati’s statement, as now translated, he records that it was his view that the appellant had been subjected to psychological and physical abuse.  At the hearing he denied that he was the perpetrator.  The judge interjected “We are in possession of recordings during the investigation where you have accepted the murder, it is in you interest to accept the accusation ....”  His statement continues to the effect that he considered that the file did not disclose any evidence against the appellant and he asked for an adjournment for further inquiries, bearing in mind that the penalty was death.  He confirmed that capital punishment was in existence at the time in Albania.  The statement says nothing about the nature of the advice that he gave to the appellant, nor the circumstances in which the court ultimately came to convict him.  Mr Brati concluded:
“I appeal to the court judgment, but also in the appeal, as far as I remember, this matter was not dealt with because allegedly the accused had himself withdrawn the appeal, which for me consisted a violation of basic human rights.”
7.	In his final witness statement the appellant himself states:
“I pleaded guilty to the murder of Mark Lleshi and Nickoll Mardoda for a number of reasons.  Firstly I did not wish to return to the police station at Puke.  I believed that if I pleaded not guilty I would be returned to the police station and be tortured again, whereas if I pleaded guilty I would be sent to prison.  Secondly, I wished to avoid the possibility of the death penalty.  My lawyer had advised my that I risked being sentenced to death if I was convicted after a trial.  Thirdly, I accepted my lawyer’s advice that I would be best to assert my innocence at an appeal hearing.  For these reasons I pleaded guilty.  I maintain that I am innocent and I do not know why my appeal hearing was discontinued.”
8.	It seems to me that on the material before her the District Judge was right to take the view that there was evidence that Mr Prenga was ill-treated in the police station whatever the status of the material  provided by the Albanian Human Rights Centre may be.   There is no reason to doubt the appellant’s evidence about having been beaten.  But the question which we have to determine relates essentially to the circumstances surrounding the hearing at which he was convicted on the 15th October 1966.  And in assessing the material provided by the appellant, we, like the District Judge, have to take into account the documentation provided by the Republic of Albania.  The official translation of the findings of the District Court of Puke records that, at the hearing, both the appellant and the prosecutor asked “for an expedited hearing”.  It records that the court heard the defendant who “accepted the crime for weak (sic) motives in complicity and illegal weapon possession, demonstrated regret....”.
9.	The Court record then sets out the facts of the murders of the two victims.   The most significant part deals with what was clearly the appellant’s own account of the matter to it in the following terms:
“Concerning the homicide of the victim Mark Lleshi, the defendant did not want to kill him but he intended to kill for revenge the victim Gjergj Markdodaja but he had to foresee that the shooting with a fire weapon towards the two victims could kill also the victim Mark Leshi.  So that the defendant did not intend the killing of the victim Marc Lleshi but he has caused the consequence.  As the defendant explains and as it comes out of the investigation file, there were found at the scene of the event round fourteen cartridges of an automatic weapon.  After the commission of the crime, the defendant left to an unknown destination.  With regard to the motives of the complicity, the defendant declares that he has been with his father and they had both decided to take revenge against the defendant Gjergtja Markdoda, who in 1989 had killed the brother of the defendant.”
10.	It was in these circumstances that the court sentenced the appellant to 25 years imprisonment.  It is now accepted on behalf of the appellant that capital punishment was no longer available for the crime of murder at the time of his trial.  
11.	As far as the appeal was concerned, the document recording the outcome of the appeal records that the appellant made the following complaints
“I have to accepted (sic) the complicity,
Mitigating circumstances and my age have not been taken into consideration,
The court had to sentence me in accordance with the previous Code and consequently it worsened my position.”
12.	It went on to record the following:
“Following hearing the preliminary claims of the representative K Capo who asked for terminating the proceedings since he abandoned his complaint, the prosecutor S. Demiri who asked for accepting the request and after a consultation about the claims, 
Finds out: 
The defendant has filed a complaint against the decision and the district prosecutor filed a responding petition asking for upholding the decision. 
The defendant abandoned the complaint in front of the hearing panel and he can do this in reliance to Article 418-4 of the Criminal Procedure Code.”
13.	This latter document is unsatisfactory in the context of the dispute between the parties.  It is unclear whether the appellant was present; it will be remembered that he denies that he was there.  It does not shed any light on why the appellant might have wished to withdraw his complaint.  And there is a fundamental dispute about the translation of the document.  Mr Smith disputes that in the Albanian original, the appellant was accepting his complicity.  He asserts, but there is no evidence to this effect, that a true translation would show that he was denying complicity.
14.	Be that as it may, I do not consider that the problems arising out of the document relating to the appeal affect the outcome of this case.  I am prepared to accept, for the reasons that I have given, that the appellant was subject to ill-treatment.  I am also prepared to accept that that may have been with a view to seeking to obtain a confession from him.  But the evidence both from him and from Mr Brati as to the circumstances surrounding the trial on the 15th October 1996 are wholly insufficient, in my judgment, to displace the presumption that the court document recording the hearing accurately reflects what was in effect a full admission to the court of his involvement in the murder of the two victims.  The court relates a detailed circumstantial account given by him of what he did and why.  It is, in my view significant that neither Mr Brati nor the appellant deal with the assertion implicit in the court record of proceedings that the appellant had himself given this detailed account of the circumstances of the offence to the court.   The fact that Mr Jaku, whose statements were not subject to any investigation, had doubts as to the guilt of the appellant cannot be sufficient additional support for the appellant’s case to justify the conclusion that he has established on the balance of probabilities that the only basis of the conviction was a  confession or admission made by reason of torture or other Article 3 ill-treatment.  And both the appellant and Mr Brati suggest that one motive for making a false confession was the wish to avoid the death penalty which, as I have said, is now accepted to have been incorrect, as the death penalty had been abolished.   This casts doubt, in itself, on the reliability of their evidence
15.	In those circumstances this appeal must be dismissed.

Mrs Justice Dobbs:  I agree. 
Mr Justice McCombe:  I also agree.