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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Klemis v United States District Court Southern District Of Illinois [2019] EWHC 3403 (Admin) (26 November 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/3403.html Cite as: [2019] EWHC 3403 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
B e f o r e :
MRS JUSTICE MCGOWAN DBE
____________________
RICHARD KLEMIS | Applicant | |
- and - | ||
UNITED STATES DISTRICT COURT | ||
SOUTHERN DISTRICT OF ILLINOIS | Respondent |
____________________
MR T. CADMAN (instructed by the U.S Government) appeared on behalf of the Respondent
____________________
Crown Copyright ©
LORD JUSTICE SINGH:
Introduction
Factual background
Current proceedings
Material legislation
"(1) If this section applies in relation to a person, as soon as practicable after the relevant time the person must be brought before the appropriate judge for the judge to decide whether the person is to be extradited again to the territory in which the overseas sentence was imposed.
(2) The relevant time is the time at which the person would otherwise be released from detention pursuant to the UK sentence (whether or not on licence)."
"(1) If this section applies, this Act applies as it would if
(a) a valid request for the person's extradition to the territory had been made;
(b) the request contained a statement that the person had been convicted of the relevant offence;
(c) the relevant offence were specified in the request;
(d) the hearing at which the appropriate judge is to make the decision referred to in section 187(1) were the extradition hearing;
(e) the proceedings before the judge were under Part 2.
(2) As applied by subsection (1) this Act has effect with the modifications set out in Part 2 of Schedule 1.
(3) The relevant offence is the offence in respect of which the overseas sentence is imposed."
"(a) the rule against double jeopardy;
(b) extraneous considerations;
(c) the passage of time;
(d) hostage-taking considerations.
(e) forum."
"(3) The conditions are that
(a) the judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
Decision of the Magistrates' Court
"Mr Klemis had a seven day trial in 2015. He was found guilty and given 20 years. Sections 186-187 EA therefore apply. I find that the five conditions in s.186 are satisfied and I therefore make an order for his re-extradition to the United States to serve the sentence imposed in respect of all nine Counts that Mr Klemis was convicted of in Illinois on 8th May 2017 [that should be 2015]".
Grounds of appeal
i. Ground 1, under s.87 and Art. 6 on which Art.5 is, as Mr Hawkes fairly acknowledges, entirely parasitic.
ii. Ground 2, under s.87 and Art. 8.
iii. Ground 3, under s.138 of the Act, concerning Counts 2 and 4 of the US indictment. Again, the applicant seeks leave to amend his grounds of appeal out of time to add this Ground 3.
Submissions of the parties
i. The applicant has the right to challenge the decision of the Senior District Judge of 14 December 2018. The Judge fell into clear error in proceeding to hear and decide the case as quickly as she did, failing to make any assessment of the human rights issues at stake.
ii. There are grounds to believe that, although the applicant is essentially fit to plead and stand trial, his mental health is such that he would not be capable of presenting and arguing an application for permission to appeal his US convictions under s.2255. He is likely to have to litigate in person as there is no right to state-funded counsel to prepare a s.2255 application. The applicant relies on Dr Farnham's report dated 30 October 2019 and his supplementary report dated 12 November 2019, which evidences his mental health (see in particular para.83 of the main report dated 30 October).
iii. There are strong grounds to believe that the applicant's US conviction for the offence of distribution of heroin resulting in death, contrary to the US Code s.841(a)(1), is at least arguably unsafe. The applicant proposes to advance a scientific argument, which disputes the evidence of the state's toxicologist. It is noted that there was no challenge to the toxicology evidence at trial and the US Court of Appeals was only concerned with the very high "plain error" test and did not consider any contra expert evidence. The applicant also raises concerns in relation to the telephone evidence at trial, and the failure to challenge prosecution witnesses many of whom had themselves been granted immunity from prosecution.
iv. The US Government's waiver, in relation to the s.2255 application's one-year limitation period, will be illusory if the applicant cannot prepare argument on one of the major issues in question, i.e. toxicology. This issue will be highly complex, it will include an attack on his original trial attorney's handling of the case.
v. Under Ground 1 it is submitted that, in breach of his Art.6 rights, the applicant has no effective remedy for ineffective assistance of counsel at his trial. The applicant does not have the capacity to file and argue a s.2255 motion as a litigant-in-person and state-funded appointment of counsel is discretionary, there is no entitlement to it as of right. Furthermore, the applicant's removal back to the UK in August 2017 has caused loss of necessary materials. He was not permitted to bring any of his trial papers, legal correspondence and advice and the whereabouts of these is now unknown. The applicant submits that his re-extradition would constitute a "flagrant breach" of his right to a fair trial and would also amount to a breach of Art.5. Furthermore, as the corollary of his convictions is a very lengthy sentence of imprisonment, the applicant's extradition would also interfere with his Art.8 rights.
vi. Under Ground 2, it is submitted that compounding the disproportionate interference with his Art.8 rights, the US Government will not deduct the time the applicant has spent in custody during these re-extradition proceedings. Mr Hawkes submits that the applicant is a British citizen, that he has three children in this country and that removing him to the US would be a disproportionate interference with his right to respect for private and family life.
vii. Under Ground 3, the applicant argues that causing death or serious injury by supplying heroin are not extradition offences pursuant to s.138 of the Act as they would not constitute an offence in England and Wales. The applicant seeks leave to amend his grounds of appeal out of time pursuant to r.50.17(b)(i) to add Ground 3. He argues that there is a clear distinction to be drawn between the law in the US, which criminalises drug offences which result in death or serious injury, and the law in the UK, which does not unless there is evidence that the drugs were actually administered by the offender. It is not in dispute that the offence of manslaughter could not be made out in this jurisdiction unless it can be proved that the defendant himself administered the drug he supplied to the deceased and would not be made out if the deceased administered the drug himself.
i. The applicant unsuccessfully appealed the first extradition order in 2013.
ii. The applicant failed to raise before the Senior District Judge the issues that he now seeks to raise on appeal and is therefore barred from raising points on appeal, both because they would require the admission of fresh evidence and because they raise new issues which were not argued before the lower court. It is not accepted by the respondent that the test for admission of fresh evidence in Szombathely City Court & Ors v Fenyvesi & Anor [2009] EWHC 231 (Admin) has been met, and therefore it is submitted that any apparent fresh evidence ought to be deemed inadmissible.
iii. The applicant seeks to advance matters in an extradition appeal which are properly matters for the courts in the US.
iv. The applicant's arguments do not pass the required threshold for the grant of permission or, if permission is granted, for any appeal to be allowed.
i. Article 6: it is submitted that the evidential threshold for establishing a breach of Art.6 is a high one and requires a standard higher than mere belief or anecdotal reports. It requires there to be a flagrant denial of justice or the complete denial or nullification of the right. It is submitted that the case advanced by the applicant does not come close to reaching this high bar. See the decision of the House of Lords in R (on the Application of Ullah) v Special Adjudicator [2004] 2 AC 323, where it was held that, where a person seeks to resist extradition on the basis of convention rights other than Art.3, the threshold is a very high one.
ii. Article 8: it is argued that the test is that in the Supreme Court decision in HH v Deputy Prosecutor of The Italian Republic, Genoa [2013] 1 AC 338 - in other words, whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition - it is submitted that there is little or no evidence before the Court to suggest that the effect on the applicant's family life would be one which is exceptionally severe taking into account the relevant matters put before the Court, and that the applicant has only just finished serving a lengthy domestic sentence in the UK.
iii. Turning to s.138 of the Act, under which the applicant argues that causing death or serious injury by supplying heroin are not extradition offences pursuant to s.138 as they would not constitute an offence in England and Wales: the respondent notes that it is clear that the counts which the applicant seeks to have removed from the indictment would attract a penalty punishable by 12 months' imprisonment had they taken place in England and Wales.
Application to seek permission to amend the grounds of appeal to include Grounds 2 and 3
The applicant's other grounds
"... it is my professional opinion that Mr Klemis, if returned to the United States, will have an opportunity to raise any new issues he may wish to advance concerning the propriety of his convictions and sentence in motion under 28 U.S.C. § 2255 filed in the trial court. Those issues will not avail him, however, unless Mr Klemis has good grounds to challenge the fundamental procedural fairness or the substantive legality of his convictions or sentence. To maximize his chances of success, he will need the assistance of a lawyer who is not only well versed in federal criminal law, but also experienced in the area of post-conviction remedies. I cannot and do not offer any opinion about whether such issues exist in his case, as I have not studied the underlying record or conducted any new investigation."
"Mr Klemis described himself as exclusively heterosexual in orientation. He confirmed that he has had two significant relationships in his life. The first was with a woman ... who he met at the age of seventeen after he had returned from the United States the first time. They were together for thirteen or fourteen years, but he was in prison for seven of them. Their children are now aged fifteen and twenty, he does not have any contact with them."
"Mr Klemis confirmed a second significant relationship with a woman ... between between 2004 and 2009. They have a son... now aged eleven. He told me that he does not have any contact with his son."
Conclusion
MRS JUSTICE McGOWAN: I agree.