England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26th April 2001

26th April 2001

1. LORD JUSTICE KENNEDY: We have before us an application by Mr Bishop on behalf of Mr Marais that the proceedings in this court should be adjourned either sine die, or for a period of six months, perhaps, in order to enable the Secretary of State to reach a conclusion in relation to a concurrent application for asylum. Mr Bishop points out that it now emerges that his client is to be seen relatively shortly and further interviewed in relation to the asylum application and that in consequence it can reasonably be expected there will be a decision. In fact helpfully Mr Sales, on behalf of the Secretary of State, has indicated that, so far as the time scale is concerned, there can be a decision within a relatively few number of weeks and that thereafter, allowing for the possibility of an appeal, there might be a further period of, say, 16 weeks before the matter was dealt with at appellate level should there be in the first instance a refusal. We are now in a position where there is at any rate some indication of what the time span is.
2. Mr Bishop submits that there are at least two good reasons why the court should not proceed further at this stage in the extradition matter. The first being that, of course, the extradition proceedings will become an irrelevance if in fact his client is granted asylum. The relevance is of importance because it means that costs which would otherwise be incurred would not then be incurred.
3. Secondly, he submits that in order to further his client's position in the proceedings, if his application for asylum were unsuccessful, he might wish to deploy confidential information which at this stage he is only happy to deploy in relation to the application for asylum, but not prepared to deploy in relation to the extradition proceedings where the respondent government is an authority to which, at any rate in the first instance, he would prefer not to disclose the material which he has available. That is an understandable position on the basis of the information which is before the court.
4. However, the difficulty is, as has been made clear in the information also made available to the court by the Secretary of State and by counsel for the respondents, that proceedings of this type are of their nature somewhat lengthy, that is to say both extradition proceedings, on the one hand, and asylum proceedings on the other. They involve different issues. There is in each case a need for the proceedings to proceed with as much expedition as is reasonably possible.
5. Furthermore, as Mr Sales points out, even if Mr Bishop's client chooses in the extradition proceedings not to deploy his case to the fullest extent that he would otherwise choose at this stage, it is still open to him to deploy it more fully at a later stage should he wish to do so. The reality is that the hurdle which he has to cross in the asylum application is somewhat lower than that which he would have to cross in the extradition proceedings, although, as Mr Bishop points out, different bodies may be considering the material in those two different sets of proceedings.
6. All that said, it seems to us quite clear that the interests of justice require at this stage that these proceedings take their normal course. Accordingly, we are not prepared to grant the application for an adjournment made by Mr Bishop. The case will simply be listed in the normal course of events.
7. I can, however, say this. The current state of the list is such that it will not be listed in the next week or two. The probability is – and I put it no higher than that – that it may not even be listed before 31st July. In those circumstances there is a realistic possibility on the information with which we have been supplied that in fact the asylum application will have been dealt with before the matter is listed before the court for final consideration. That is not a matter which is determinative so far as today's decision is concerned. The matter will simply be listed in the normal course of events.
8. There is no application effectively by Mr Scannell, but so far as Mr Scannell's position is concerned the situation is somewhat different. He has obtained leave to challenge a decision by the magistrate not to adjourn pending the outcome of the asylum application. That has become a matter for consideration by this court. He sees no reason why the matter should not take its place in the list in the ordinary course of events; nor do we. Accordingly, in so far as that matter has thus far not been listed as a matter of convenience, it will now simply be listed in the ordinary course of events. The time scale to which I have already referred, so far as our researches go, will be broadly the same.
9. Having made that ruling, does anyone have any views as to which of these matters should be dealt with first? We would not necessarily accede to it, but we would listen to it.

MR BISHOP: I don't think there is much I can say.

LORD JUSTICE KENNEDY: Viewed as at today, there might be a certain advantage in keeping them together, but it seems to me that the situation may well change radically. I do not know.

MR BISHOP: I have no objection to that happening, my Lord. It may be that we can gain valuable assistance from that taking place.

LORD JUSTICE KENNEDY: If no one makes the application I will say no more about it, but I merely gave you the opportunity to express any view you might have.

MR BISHOP: It might, of course, affect the list, the timing of the hearing, and therefore the listing arrangements. I think we would expect Marais's case to take a full day. I can't speak for Karpichkov.

LORD JUSTICE KENNEDY: I think you may be about to receive some assistance, I am not sure. (Pause).

MR SCANNELL: My Lord, I think I have nothing to say on the matter.

LORD JUSTICE KENNEDY: You probably were not able to hear what Mr Bishop just said now. He said that he thought that his case might take a full day. Can you help us as to length in your case?

MR SCANNELL: I think it could take up to a day as well. My Lord, the reason I said I was not able to say anything is because I don't know the precise basis of the habeas application. It may be that we are dealing with completely different things.

LORD JUSTICE KENNEDY: Viewed as at today, I would be inclined to say that the estimate for the two together might be a day and a half, but I think one does have to have regard to the fact that times may change considerably before the matter is listed.

MR SALES: Could I say something, my Lord? In essence the Secretary of State's interest in the Marais case falls with your Lordship's ruling today.

LORD JUSTICE KENNEDY: Well, that was the one on which we wished to have the assistance of the Secretary of State.

MR SALES: Because that was the point of principle on which the Secretary of State desire to be heard.

The point of principle, if it remains such, in relation to the Karpichkov matter will be the first thing to be sorted out in relation to the Karpichkov proceedings in the judicial review, and the Secretary of State will retain his interest on that point of principle.

I raise this point, my Lord, because it is perhaps important to identify what is going to happen next in each set of proceedings because it is going to be substantially different in the Marais matter. The extradition process will now continue, but in the Karpichkov matter the first thing that will happen is a judicial review hearing in relation to the question of adjournment or not by the magistrate rather than the substantive extradition matter.

Now my learned friend, Mr Scannell, says that he thinks that will take a day, sorting out the question of adjournment. We do say it would not be anything like a day. We have sorted out the problem in relation to Marais this morning in the course of about an hour, and there is no reason why a judicial review court, particularly in the light of your Lordship's ruling this morning, should not be able to dispose of that issue within the space of hour or two hours at most.

As to what then happened to the --

LORD JUSTICE KENNEDY: The matter would then have to go back to the magistrate.

MR SCANNELL: Yes. So, my Lord, in view of the different issues that will arise and the very different stage that has been reached in the two sets of proceedings we do respectfully question whether there is now much sense in listing them together.

LORD JUSTICE KENNEDY: I am also conscious of the fact that you have indicated that the decision in Karpichov on the asylum application will be likely to be made by about eight weeks, which means by 21st June. If one adds on to that the 16 weeks you added on to it that means by 11th October when one could have a decision in relation to it in any event.

MR SCANNELL: The timetable is different as well. My Lord, I thought it right to point that out.

LORD JUSTICE KENNEDY: No, it's very helpful. I don't think one can say any more at this stage. Miss Malcolm, you were about to say something.

MISS MALCOLM: I was going to add my penny worth and say as far as Marais is concerned the full habeas corpus will involve decisions on three different areas, the political area, plus two factual issues about the state of South African jails and the legal position ex parte Hilthen and Bassi (?), which don't, as far as I can see, have any bearing on Karpichkov's case. I suspect that trying to get us all together for a two day hearing at the court's convenience is likely to be more difficult than simply coinciding diaries between ourselves. I would urge a diversion of courses from hereon.

MR SCANNELL: Could I say that I agree with that, having now heard from my friends what in fact the positions are.

LORD JUSTICE KENNEDY: You do not think there is any point in keeping them together. Now, Mr Lewis, you haven't stood up. It's time you did.

MR LEWIS: Just for the record my time estimate, given that I think it be sensible for them to be dealt with separately, for my part I can't imagine making submissions for more than half an hour, so I would have thought two hours would be adequate for the adjournment on the judicial review so far as Karpichkov is concerned.

LORD JUSTICE KENNEDY: If we have not made it clear – and I trust I did – what the effect of the judgment today is, is that as a matter of generality there will be no adjournment of proceedings in this court arising out of extradition simply because of the existence of a concurrent application for asylum. Thank you all very much.