ATG have now seen a translation of the 2009 Athens trial papers that led to Mr Hay's conviction on a charge of misappropriating and selling on valuable artefacts that belonged to the Greek state. Judgment certainly appears to have been passed as a result of a number of suppositions that are entirely unsupported by evidence.
Mr Hay has consistently protested his innocence.
Previous ATG news reports related how his plight first came to media attention in 2008 when it was revealed that, without his knowledge, the Greek authorities had applied to have him deported to Athens under a European Arrest Warrant (EAW), a measure devised to fast track suspects in terrorism cases.
EAWs allow countries to apply for extraditions without requiring them to show any evidence pointing to guilt. They also allow those countries to pass on any ongoing costs associated with the extradition to the recipient country.
So concerned are the UK government about potential abuse of this system that the Home Office has announced a comprehensive review of EAWs.
Mr Hay's case centres on a transaction between him and Athens-based antiquities dealer Anna Patrikiadou, a regular client of his, dating to 1999.
According to Mr Hay, he issued Mrs Patrikiadou with an invoice for a small number of minor artefacts and broken pieces which he sold to her for £1880 when she visited him in London. She took the items away in two small packages weighing a total of around 15 kilos, he told the court through his lawyers.
In her evidence, however, Mrs Patrikiadou said the invoice referred to a much larger consignment of artefacts she bought from Mr Hay, valued at more than 190,000 euros at 1999 prices. It was this that the Greek authorities seized from her Athens gallery in 2000, a year after it had been given the all-clear by the Inspectorate of Antiquities Sales. She would have needed to get clearance in order to acquire a licence to sell the items.
The seizure followed growing suspicions among the authorities about the size of the consignment and the "makeshift nature" of the paperwork that accompanied it.
What is astonishing, says Mr Hay, whose appeal will be heard on December 17, is that the Greek courts accepted the Athens dealer's explanation despite the invoice not matching the objects in any way. The court papers appear to show the judges following the logic that Mrs Patrikiadou would not have submitted the consignment for assessment if she suspected that they had been illegally excavated. She was later acquitted on all charges.
However, they failed to question why Mr Hay would have taken the risk of selling illegally excavated antiquities for as little as £1880 when they were worth more than 190,000 euros, a fact he would surely have known as an antiquities specialist.
The court also concluded that Mr Hay's failure to supply documentation showing his legal possession of the large consignment pointed to his guilt, but, as Mr Hay argued, he had never owned or come into contact with the consignment and so wouldn't have had any such documentation. In other words, he was deemed guilty on the absence of evidence.
Particularly concerning was that the court also seemed to accept without question that it was Malcolm Hay himself who had sent Mrs Patrikiadou the large consignment from London. The accompanying despatch paperwork could have been sent by anyone, he explained. All they had to do was add his name. The identity of the sender is not something that is checked, said Mr Hay.
He was therefore convicted notwithstanding that there was no evidence linking him with the possession or despatch of the goods which were seized from Mrs Patrikiadou in Greece and very strong reasons, based on the invoice and the respective values, to doubt that the goods he sold Mrs Patrikiadou were, in fact, the goods seized from her in Greece.
Also ignored was the testimony of defence witness Eleni Papathymiou, an archaeologist who has known Mr Hay since 1995. The translation of her testimony is confusing as it does not include the questions put to her, but she appears to confirm that she had seen the small collection of fragments that Mr Hay says he sold to Mrs Patrikiadou, as well as a dossier of what Mrs Patrikiadou says he had sold her, and that the two did not match. "Hay does not deal in the sort of objects shown to me… only coins and potsherds," she told the court. "At most they would have weighed 15 kilos and had a value of 5000 euros. Those shown to me in the photographs [put forward by Mrs Patrikiadou] are worth more than 100,000 euros."
Mr Hay is also angry that invoices he issued to Mrs Patrikiadou for other transactions were ignored in evidence.
"The invoice in this case did not detail each piece because it was all junk, worth no more than about £3 a piece," he told ATG. "As the other invoices I issued to Mrs Patrikiadou show, I detail each object separately when it has a price of over £50. The invoice I issued in this case was totally valid under English law and utterly appropriate for what I was selling."
Mr Hay and his counsel have argued consistently that as the alleged offence took place in London - a fact acknowledged by all parties to the case including the court - the Greek authorities should have no jurisdiction in the matter.
However, the Athens court argued that since the recovered consignment contained artefacts that had been illegally excavated, the Greek state had been deprived of them and their value, giving Greeks courts jurisdiction under their own criminal code, where Greek criminal provisions apply "to a foreign national for an act committed abroad which is defined by them as a felony or misdemeanour, where such act is directed against a Greek citizen…".
The pending appeal hearing on December 17 is just the latest hurdle in what has been more than three years of tribulation for Mr Hay, which so far has cost him a six-figure sum.
As previously reported, the first he became aware that anything was seriously wrong was on July 14, 2007, when he returned to London's City Airport from abroad. He was told that there was a problem with his passport, but it turned out to be a delaying tactic while the police were alerted. After an hour's wait, officers armed with automatic weapons arrived and told him that he was the subject of an EAW.
He was handcuffed and taken to Forest Gate police station where he was held for two days in the cells and then taken before an extradition tribunal.
Horseferry Road magistrates later threw out the EAW application because of irregularities in relation to the criminal proceedings in Greece and the delay of ten years. However, the trial in Greece went ahead anyway. It was conducted in Mr Hay's absence - for fear of his instant incarceration once he stepped onto Greek soil - and he was convicted.
Mr Hay appealed in Greece. That should have had the effect of delaying further attempts to obtain his extradition, but Mr Hay was arrested once more on February 2 this year when he returned to the UK from another overseas trip. He was removed from the plane at Heathrow and spent another night in the cells before appearing at Westminster Magistrates Court.
"I was brought before the same judge who had presided at the last tribunal in 2007/8 and she remembered the case and wondered if she had not already dealt with it," he told ATG.
"The problem is that when I was sentenced and an appeal was lodged, the sentence was suspended until the hearing of the appeal, but there is a 'caution' applied which should be paid."
He had been given legal advice not to pay the caution, which had led to the issue of a new EAW against him on the same charges. He later paid the caution.
The question now is, if Mr Hay loses his appeal on December 17, will the Home Office intervene to delay his extradition pending their review of EAWs?
By Ivan Macquisten
