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Posted by: Gherson Extradition

Is INTERPOL a reliable source?

On 24 June 2015 the High Court gave its judgment in the case of Leke Prendi aka Aleks Kola v Albania [2015] EWHC 1809 (Admin). The appeal focused on the extent to which the judge at first instance was entitled to rely upon information contained in an INTERPOL Red Notice when deciding whether the defendant before him was in fact the person who was sought by the Albanian authorities. The case provides important guidance as to the admissibility of evidence in extradition proceedings but also highlights one of the major failings of the INTERPOL Red Notice system.

In 2005, INTERPOL published a Red Notice at Albania's request in respect of an offender sought to serve a 21-year sentence for murder, armed robbery and illegal keeping of military weapons. The Notice gave the requested person's date of birth and described his height and appearance. The particulars of identity included a photograph of the person sought. In 2007, INTERPOL published an addendum to the original Notice, containing the same photograph but also including what purported to be copied images of the requested person's fingerprints. In 2013, the appellant was arrested in the UK on an allegation of common assault. His fingerprints were taken and a fingerprint specialist indicated that he believed that the appellant's fingerprints matched those contained in the Red Notice. Extradition proceedings were therefore commenced against him.

At the extradition hearing, the appellant's case was simply that he was not the person requested in the Red Notice and so had to be discharged. Section 202 of the Extradition Act 2003 states that evidence can be admitted into evidence in extradition proceedings if it is "duly authenticated". This means that the document must either be:

- Signed by a judge, magistrate or officer of the territory; or

- Certified by the Ministry or Department of the territory responsible for justice or foreign affairs; or

- Authenticated by the oath or affirmation of a witness.

However, section 202(5) clarifies that this does not prevent a document that has not been duly authenticated in the above way from being admitted into proceedings. The judge admitted the Red Notice in evidence under this section. Although the notice was not authenticated, he considered it to be a document from "a reliable source", namely INTERPOL, so that it could be admitted as evidence of the facts contained within it. On that basis, he concluded that he was satisfied that the appellant was the person requested in the notice and ordered the case to be sent to the Home Secretary for a decision on the appellant's extradition.

On appeal the High Court considered the judge's decision and reviewed the principles that govern the admissibility of evidence into extradition proceedings. The High Court reiterated that extradition hearings were generally to be regarded as criminal proceedings, and the normal English rules of criminal evidence would prima facie apply to extradition proceedings. The judge's statement that he was admitting the document as it was from "a reliable source" did not accurately reflect the proper test of admissibility. Whoever had made up the Notice in INTERPOL could not speak to the truth of any of the facts contained within it. The facts all came from sources outside INTERPOL, and there was no evidence to suggest that the person who had compiled the information to make up the Notice had obtained the various elements directly from the person who had taken the photograph, taken the fingerprints, or measured the requested person's height. There was no evidence about when, where or how the photograph and fingerprints were taken or the height measured. In those circumstances, even if INTERPOL, who published the Notice, was accepted as a reliable source that did not prove that the actual sources of the information contained in the Notice were themselves reliable.

On that basis, the judge was wrong to admit the Red Notice into evidence at all, and without it the requesting state could not prove that the appellant was in fact the requested person. However, the High Court went further and held that even if the judge was correct to admit the Notice as evidence of the facts stated in it, he had to consider the weight he was able to apply to those facts in the light of the other evidence and decide whether the requesting state had proved identity to the necessary standard. The High Court held that the judge was wrong in his analysis of the evidence and that he had arrived at the wrong conclusions as to identity. The appeal was therefore allowed.

Legally, this appeal clarifies and reiterates the evidential test to be applied by the judge when considering the admission of evidence in extradition proceedings however; it is of much broader relevance in terms of the INTERPOL Red Notice system.

INTERPOL publishes Red Notices in response to requests from the authorities of its members across the world. These Red Notices are then circulated throughout its system and are often also published on their public website. INTERPOL acts effectively as a notice board and an infrastructure for sharing information between the police authorities of its members. Its Notices are treated differently around the world but in many countries a Red Notice is given the same weight as a domestic arrest warrant and an individual subject to a Red Notice is liable to immediate arrest and in many cases detention. Travel becomes extremely dangerous and many businesses will refuse to contract with individuals who are subject to a Red Notice.

Many people are shocked to learn that INTERPOL does not independently verify the information it publishes in advance of the publication of a Red Notice.

This case highlights the very real weaknesses that exist in the system and the potential for real harm to be incurred. The appellant in this case was arrested - and very nearly extradited - on the basis of information contained in a Red Notice. This information did not match his name, date of birth or height. The photograph was unclear and did not appear to be an official photograph as might be taken by the authorities, furthermore there was no information as to when where or why the fingerprints that were linked at a later date to the Notice were taken. There were therefore, very real questions about the authenticity of the information contained in the Red Notice. The information was provided to INTERPOL from Albania but there was no evidence of where the photograph, fingerprints or other biometric information was originally obtained or as to its accuracy.

The system that currently exists to challenge the accuracy of information held by INTERPOL is both cumbersome and inefficient. Applications to the CCF (The Commission for the Control of INTERPOL's files) can take many months or even years to resolve and the process itself is far from transparent. Individuals who are disappointed with the response they receive from INTERPOL have no opportunity to seek a judicial review.

The willingness of the judge at first instance to accept the Red Notice as being from "a reliable source" highlights the very real responsibility that INTERPOL has to ensure that the information it circulates is accurate and appropriate. It must be wrong that such potentially damaging information can be placed on the INTERPOL system and circulated with no initial check of its authenticity. The current system for challenging Notices is unnecessarily opaque and unfit for purpose.

Gherson have extensive experience in assisting individuals who find themselves subject to INTERPOL Red Notices and extradition requests across the world. If you believe you are subject to a Red Notice or may face extradition proceedings please do not hesitate to contact us should you wish to have a confidential discussion with a member of our team.



25 June 2015

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