Challenging identity: in what circumstances can an unauthenticated document be admitted into evidence to establish identity in extradition proceedings?

On 24 June a Divisional Court (Aikens, LJ & Kenneth Parker, J) handed down judgment in the case of Prendi (aka Kola) v The Government of the Republic of Albania. For once, the central issue in this Albanian case was not whether the appellant would be entitled to a retrial, having been convicted in his absence. The appellant disputed being Mr Prendi. He asserted that he was Mr Kola and that the request for extradition from Albania was not for him. The District Judge decided on the balance of probabilities that the appellant was Mr Prendi and sent the case to the Secretary of State for the Home Department who then ordered his extradition.

The facts

On 10 April 2000, Leke Prendi, together with Anton Kola, Gjovalin Prendi, Anton Pali and Nikoll Nikoli planned to attack and rob passengers on a bus in Albania.  They ambushed the bus which was carrying 22 clerics returning from a pilgrimage.  During the robbery, a firearm carried by Leke Prendi discharged by accident and killed Gjovalin Prendi.

Leke Prendi was convicted in his absence and sentenced to 21 years imprisonment. As a result of the conviction an INTERPOL Red Notice was issued on 7 February 2005. The Red Notice gave Prendi’s date of birth as 27 September 1980 and described him as being 168cm tall. The Red Notice included a photograph which was described by the court as being of ‘relatively poor quality’.

In November 2007, INTERPOL published an addendum to the Red Notice that contained copied images of the finger prints of Leke Prendi. Crucially, there was no statement from INTERPOL explaining when, how and by whom the INTERPOL photograph and the finger prints were taken or how the images of the fingerprints were created.

On arrest the appellant gave his name as Aleks Kola and date of birth as 5 October 1980. When measured at the police station, he stood 179cm tall. The appellant challenged identity under s78(4)(a); which states that the judge at the extradition hearing must decide whether the person appearing or brought before him is the person whose extradition is requested. This question is to be decided on the balance of probabilities.

The judge determined (having admitted into evidence the INTERPOL Red Notice and the INTERPOL addendum) that the person before him was Mr Prendi.

Challenge on appeal

The appellant submitted that the criteria for admitting into evidence the Red Notice and addendum material were not met as they were not ‘authenticated’ documents. Section 202 Extradition Act 2003 sets out when a document adduced in proceedings may be ‘receivable’.

(1)………..

(2)……….

 (3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.

(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—

(a) it purports to be signed by a judge, magistrate or officer of the territory;

(aa) it purports to be certified, whether by seal or otherwise, by the Ministry or Department of the territory responsible for justice or for foreign affairs;

(b) it purports to be authenticated by the oath or affirmation of a witness.

(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.

It was conceded by the representative acting on behalf of the Government of Albania that if the Red Notice and addendum notice were not receivable into evidence, then the Government would not be able to establish that the appellant was Leke Prendi on the balance of probabilities. 

Question of law 

The question the court grappled with was: ‘in what circumstances may a document be received as evidence of the facts stated in it in extradition proceedings in relation to a category 2 territory on an issue of identity, when that document concerned has not been authenticated in accordance with section 202(4)?’

Analysis

The court concluded that extradition proceedings are to be regarded as a type of criminal proceedings and therefore English rules of criminal evidence applied (applying the Supreme Court case of R(B and others) v. Westminster Magistrates’ Court and others [2014] UKSC 59)  These ‘rules of evidence’ provide a basis upon which the judge at the extradition hearing can decide whether or not an unauthenticated document should be received as evidence of its content.

The judge at first instance applied the wrong test. He held that the Red Notice was admissible because the document came from a ‘reliable source’ (i.e. INTERPOL). The court on appeal held that the correct test was: ‘is this document, which has not been authenticated in accordance with section 202(3), admissible as evidence of the facts stated in it, according to the English rules of criminal evidence?’  

The court concluded that the answer to the above question must be ‘no’ as it did not prove the actual sources of the information were reliable. For example, there was no evidence to suggest that:

1. The person who correlated the information to make up the red notice obtained the various elements directly from the person who took the INTERPOL photograph, took the finger prints, or measured Leke Prendi’s height.
2. There was no evidence about when, where or how the INTERPOL photograph was taken, Leke Prendi’s height measured,  or where the fingerprints were actually taken.

Having found that the Red Notice should not have been admitted into evidence, the court allowed the appeal and discharged the appellant.

Points for practitioners to be aware of 

In any case under Part 2 of the Extradition Act 2003 where identity is disputed, it is important to consider carefully the basis upon which the requesting state seeks to adduce evidence as to identity. Practitioners should apply English rules of evidence to challenge unauthenticated documents from the requesting state that seek to establish the requested person’s identity.