The Case

The applicant was applying for permission to appeal the decision by the Senior District Judge that there were no barriers to his extradition to Montenegro should the Secretary of State determine that he should be extradited. The Government of Montenegro was seeking his extradition to stand trial on a number of different offences, including allegations of fraud, money laundering, and misuse of authority in a business, while he contended that the prosecution was politically motivated.

The grounds for appeal

The applicant sought permission to appeal on the grounds that the Senior District Judge erred in finding that:

1. the conduct in respect of one of the indictments did not amount to an extradition offence pursuant to section 78(4) of the Extradition Act 2023 (“2003 Act”),

2. extradition was not barred by section 81 of the 2003 Act because it was not made for the purpose of prosecuting or punishing the applicant on account of his political opinions (section 81(a)) and he would not be prejudiced at his trial, punished or have his personal liberty restricted on account of his political opinion (section 81(b), and

3. extradition would be compatible with Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Application to admit new evidence

The applicant also made an application to admit new evidence. This included seeking permission to rely a on document written by Dr Mark Hoare (which was described as an “interim report”) on the basis that it was evidence provided by an expert.

The court noted that Dr Hoare is an historian and describes himself as “an expert on the history of the former Yugoslavia, in particular the modern history of Bosnia-Hercegovina (above all of the WW2 anti-fascist resistance and the 1990’s conflict), the modern history of Serbia up until 1941, and the break-up of Yugoslavia and the 1990’s war).”

The court refused to admit the interim report as expert evidence. The judges stated that “we do not consider that [Dr Hoare’s] qualifications or experience demonstrate that he is an expert on the issues in this appeal on which he wishes to comment, namely whether prosecutions in this case, relating to conduct occurring in Montenegro from about 2008 onwards, were motivated by political considerations. We reject the submission of Mr Fitzgerald [the counsel for the applicant] that Dr Hoare is an expert as he is an historian familiar with the region and can comment objectively as an expert on those matters.”

The court also found that there was an additional ground not to admit the evidence as none of the observations made by Dr Hoare could have led the Senior District Judge to reach a different conclusion.

Learning points

Learning points for instructing parties:

• You should vet your potential expert witnesses carefully to ensure that they have the expertise to provide an opinion on the issues before the court.

• Even an eminently qualified expert in a professional field may not have the appropriate expertise for your specific case.

• Be cautious in submitting an expert report to the court with designations like "draft", "preliminary" or "interim" as this may lead the court to question whether the report represents the expert's settled opinion. 

Learning points for experts:

• When considering taking on a role, make sure that you have the expertise to provide an opinion on the issues before the court. It is best to acknowledge as early as possible if the issues are not within your area of expertise.

• Make sure your CV sets out your expertise in relation to the specific issues which you are being asked to address rather than describing your expertise more generally.