England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		9th August 2004

Monday, 9th August 2004
1. MR JUSTICE CRANE: In these proceedings the claimant seeks to quash a certificate issued by the Secretary of State pursuant to section 70 of the Extradition Act 2003. On 19th July Harrison J directed an oral hearing of the application for permission. Then, on 27th July, a Divisional Court granted permission subject to the amendment of the claim form to raise the present issue, which is the only remaining issue. This is the hearing of the application for judicial review.
2. The request for permission by the Government of Albania arises under Part 2 of the 2003 Act. It is common ground that Albania is a category 2 territory. The scheme of section 70 is that there should be an extradition request and then a certificate issued by the Secretary of State. Section 70 reads, as far as is relevant, as follows:

"(1) The Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom.

...

(3) A request for a person's extradition is valid if -

(a) it contains the statement referred to in subsection (4), and

(b) it is made in the approved way."

I pause to say that there is no issue that this request was made in the approved way. Subsection (4) reads:

"The statement is one that the person -

(a) is accused in the category 2 territory of the commission of an offence specified in the request, or

(b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request."

The request here was made pursuant to section 70(4)(b), namely on the basis that there had been a conviction and, by implication at least, that the claimant was unlawfully at large.

3. The certificate issued read as follows:

"CERTIFICATE ISSUED PURSUANT TO SECTION 70 OF THE EXTRADITION ACT 2003.

Under section 70 of the Extradition Act 2003, the Secretary of State hereby certifies that the request from Albania, being a territory designated for the purposes of Part 2 of that Act, for the extradition of Fatmir Bleta is valid and has been made in the approved way."

4. If one goes to the request, it is common ground that there is no explicit statement in that request that the claimant was unlawfully at large.
5. Some reliance has been placed, at least in the skeleton arguments, on the legislative history of Part 2 of the 2003 Act. Under the previous Act, the Extradition Act 1989, it was a requirement, if there was to be extradition on the present basis, that the claimant should be, following conviction, unlawfully at large. The difference was that there was no requirement in the 1989 Act for a statement to that effect.
6. I have been referred to the Convention which underlies the 2003 Act. That is the European Convention on Extradition, which is to be found in the European Convention on Extradition Order 2001. Under Schedule 1 to the Order, the Convention is set out. So far as is relevant, it reads as follows:

"Article 1 - The obligation to extradite

The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

Under Article 12, headed "The request of supporting documents", paragraph 1:

"The request shall be in writing and shall be addressed by the Ministry of Justice of the requesting Party to the Ministry of Justice of the requested Party..."

Then other channels of communication are referred to. Paragraph 2:

"The request shall be supported by:

a. The original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party."

There are then other requirements for documents supporting the request.

7. The Convention basis for this limb of the obligation to extradite is to be found, first of all, in Article 1 in the words "wanted by the said authorities for the carrying out of a sentence" and in the wording of Article 12, referring to "a conviction and sentence or detention order immediately enforceable".
8. As is pointed out on behalf of both the Secretary of State and the Republic of Albania, there is no provision in the Convention for a statement specifically confirming that the relevant person is unlawfully at large.
9. There were some submissions in the skeleton argument provided on behalf of the Secretary of State that the requirement of a statement in Part 2 of the 2003 Act was, in effect, a drafting error. That submission has not been pursued, or at least emphasised, and I accept the submission of Mr Pearse-Wheatley, on behalf of the claimant, that that insertion must be assumed to be deliberate; indeed, it has a clear purpose, namely to simplify the process of extradition, and, if such a statement is included, to remove the need for the Secretary of State to inquire further into the law of the requesting state. That is particularly relevant since the Secretary of State is under an obligation to issue a certificate if certain requirements are fulfilled.
10. I have been helpfully referred to two authorities on the proper approach to the construction of extradition treaties and legislation giving effect to such treaties. In R v Governor of Ashford Remand Centre, ex parte Postlethwaite [1988] AC 924, Lord Bridge of Harwich, at pages 946-947, said this:

"In approaching the main issue two important principles are to be borne in mind. The first is expressed in the well known dictum of Lord Russell of Killowen CJ in In re Arton (No 2) [1896] 1 QB 509, 517 where he said:

'In my judgment these treaties ought to receive a liberal interpretation, which means no more than that they should receive their true construction according to their language, object, and intent.'

I also take the judgment in that case as good authority for the proposition that in the application of the principle the court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements'. The second principle is that an extradition treaty is 'a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to construed as though it were a domestic statute': Reg v Governor of Ashford Remand Centre, Ex parte Beese [1973] 1 WLR 969, 973, per Lord Widgery CJ. In applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing to justice those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose."

Lord Bridge was referring to a difference between the construction of extradition treaties and domestic legislation. However, in In Re Ismail [1999] AC 320, Lord Steyn, in the House of Lords, at pages 326-327, extended that principle of a broad and generous construction of extradition treaties to extradition statutes. I fully accept, in the light of those authorities, that a purposive construction should be adopted in construing the 2003 Act.

11. I turn to the wording of the 2003 Act section 70. The first question is whether a specific statement in the actual words of the Act is required. Mr Pearse-Wheatley, in my view correctly, conceded at an early stage that the actual words of the Act were not required. If there was an equivalent expression indicating a liability to immediate arrest following the relevant conviction, that would, he concedes, be sufficient. However, he submits that if there is no such statement or equivalent statement, then the request cannot be valid.
12. In response to a question whether, in the circumstances of this case, to which I shall return later, there were any realistic possibilities other than the claimant being unlawfully at large, he listed various possibilities: firstly, that there might have been an amnesty; secondly, there might have been a withdrawal of the complaint by the family of the victim of the murder of which the claimant was convicted; thirdly, that there might have been, despite the description of the conviction as becoming final, the possibility of an appeal, or at least a request for reconsideration, bearing in mind that the conviction was in the claimant's absence; fourthly, that there might be some statute of limitations; fifthly, there might be some provision for early release, which might in some way operate even if the claimant had not been in custody, and one might add also, it seems to me, there might be a requirement of some further order, in the absence of evidence that the claimant ever became aware of his actual conviction, before he became liable to immediate arrest.
13. The submissions on behalf of the Secretary of State and the Government of Albania are that even if there is no equivalent statement or a statement in the actual words of the Act, the Secretary of State is entitled to look at the request, together with the documents incorporated in it by reference, in order to determine whether the request is in effect stating that the claimant is unlawfully at large following a conviction.
14. Those latter submissions on behalf of the Secretary of State and the Government of Albania, I accept in principle. Even if the actual words of the Act are not incorporated in the request, and even if there is no equivalent wording, in my view, at least in a clear case, it is permissible for the Secretary of State to look at the request itself and its supporting documents to see whether the matter is clear. Adopting a purposive interpretation of the 2003 Act, it seems to me that that is, in effect, an examination of whether the request contains the necessary statement.
15. It therefore becomes necessary to look at the request itself further in this case. The request, which was dated 11th May 2004, is headed "Request for extradition from United Kingdom to the Republic of Albania of the Albanian citizen Fatmir Bleta" and is addressed to the Home Office of the United Kingdom. Then the following paragraph:

"Ministry of Justice of the Republic of Albania, in reliance to Article 12 of European Convention on Extradition, forwards its request for extradition from the United Kingdom of the Albanian citizen Fatmir Bleta ..."

(The omitted words refer to details of his identity, but identity is not in dispute).

16. The defendant, and the interested party in particular, rely on the words used in that paragraph "in reliance to Article 12". The argument, particularly of Mr Summers, is that the Republic of Albania, by referring to Article 12, was representing that the requirements of Article 12 were fulfilled. To that submission I shall return.
17. There is then set out in the request a short description of the proceedings, which related to the death of a man called Zenuni on 15th September 1998. The request goes on to note that in reliance on the evidence submitted to the judicial hearing, the First Instance Court at Tirane, through its decision on 19th May 1999, decided as follows:

"Convicting the citizen Fatmir Bleta and sentencing him to 13 years imprisonment for the criminal offence of 'murder' and 'illegal weapon possession' committed on 15.09.1998."

There are then set out the documents attached, namely: the decision of the first instance court; the decision imposing the security measure "arrest in prison"; a report on the criminal offence by the district prosecutor; the birth certificate of Fatmir Bleta; and, the text of applied legal provisions. The legal provisions included simply related to the available sentences for the relevant offences.

18. The decision of the Tirane District Court reveals that the proceedings were in the absence of the present claimant, although he was represented by Pelivan Luci, who one assumes, although I do not think it is anywhere set out, was representing him as his lawyer. The nature of the conviction and the sentence of 13 years for the two offences are then set out. The record of the proceedings continues:

"Complaint can be taken against this decision at the Appeal Court of Tirane, within 10 days since the following day of pronouncement of this decision.

Tirane, 19.05.1999."

Then there are signatures and there is a note that the document contains a seal certifying that the decision has become final. Indeed, if one looks at the document in Albanian, it is clear that, although the original order was dated 19th May 1999, they is certainly at least some kind of stamp and a hand-written date, 29th May 1999, which would be entirely consistent with the note at the bottom of the translation.

19. The "Decision: 'Imposing on security measure'" was made on 9th December 1998, in other words following the alleged offences but of course before the hearing. In effect, there was what, in English terms, would be a warrant of arrest.
20. I do not think anyone quarrels with the implication that that was never executed, and that the proceedings at court took place in the absence of the present claimant.
21. Some reliance has been placed on the existence of that warrant of arrest, as I shall call it, but in my view that is by no means conclusive as far as the defendant is concerned, or indeed the Government of Albania. It is quite clear that it is the conviction that is relied on, and as to the conviction, of course, there is no doubt. The question is whether, following that conviction, the claimant was unlawfully at large. It would be speculation to know whether in Albanian law, as in English law, following conviction the liability to arrest arises as a result of that conviction or whether the warrant of arrest continues to have any effect.
22. There is also reliance on the part of the Secretary of State and of the Government of Albania on the note that the decision of the first instance court had become final.
23. In that connection I was referred to R (Guisto) v Governor of Brixton Prison & another [2003] 2 WLR 157. That was a decision of the Divisional Court presided over by the Vice President of the Court of Appeal (Criminal Division). The decision involved a consideration of Schedule 1 of the Extradition Act 1989. In that case the applicant had been convicted in his absence. It therefore became relevant to know whether he was liable to extradition under the relevant United States of America Extradition Order 1976 as someone who had been convicted for contumacy, in which case he was to be regarded as an accused person, or whether he was to be regarded as a fugitive criminal in the wording of the 1989 Act. The context, therefore, was somewhat different, but in the judgment of Gibbs J, with which Rose LJ agreed, the court said this:

"49. In my judgment, the test of whether a conviction is for contumacy involves examining the nature of the conviction itself and the extent to which it is regarded as final in the jurisdiction of the requesting country. As is pointed out in the cases cited, there is no statutory definition of contumacy. It is a question of fact to be based on expert evidence about the law of the requesting country. The mere fact that the 'conviction' in question is recorded as a conviction until set aside is not determinative. Nor is the fact that there are procedures open to the applicant to challenge the conviction.

50. If, on the one hand, the courts of the requesting country regard the conviction as provisional, and subject to automatic revocation on the applicant's submission to the jurisdiction, or susceptible as a matter of course to successful challenge by the applicant, then, no doubt, the conviction will be regarded as 'for contumacy'. But where the law and procedures make it quite clear that the court regards its decision as final, then it will not be regarded as for contumacy; of itself, the availability of procedural rights to apply to have it set aside, or of appeal, will not alter the essence of the conviction.

51. I do not consider it helpful to adopt the two-stage approach suggested by Mr Hines. In my view the correct approach should be that already cited from the judgment of Evans LJ in In re Sarig [[1993] COD 472], namely to examine the nature of the conviction itself.

52. On the facts of this case there is, in my view, no doubt that this conviction, although arrived at in absentia, was intended to be final. The facts relating to the trial, as described by Mr Morgenthau, make this absolutely clear. The applicant was warned that if he voluntarily absented himself he would be tried and sentenced in his absence. He did voluntarily absent himself. Nevertheless, time was allowed for him to appear; when he failed to appear, the trial went ahead but he was provided with counsel to represent him. Witnesses were called and cross-examined, counsel addressed the jury, the judge summed up, and the jury convicted.

53. On the evidence it is well established in United States law (as in recent times in the law of England and Wales: see R v Jones (Anthony) [2002] 2 WLR 524) that a trial may proceed in a defendant's absence if he has voluntarily absented himself. The evidence about United States law shows that there are established procedures to ensure fairness to a defendant in those circumstances, as already outlined. The evidence lodged on behalf of the respondents, as well as the applicant, indicates nothing to suggest that the conviction is to be regarded as anything but final. There is nothing in the relevant parts of the 1989 Act to place convictions in absentia in a special category (unlike a provision in the Fugitive Offenders Act 1967, now repealed).

54. In my view, therefore, the finding of the district judge that this was a conviction for contumacy was in error."

24. I have set out the quotation in relation to finality in some detail because counsel relied on it, but it is to be noted that the notion of finality may have various meanings in the laws of various states, and in Guisto the court was considering the law of the United States, a law with similar origins to that of England and Wales, and in a case where there was evidence about the nature of the proceedings themselves and their legal significance.
25. I have also been referred, initially by Mr Pearse-Wheatley, to the case of Cesarino Urru v Governor of Her Majesty's Prison Brixton and the Government of Italy, a decision of the Divisional Court on 22nd May 2000, of which I have been provided with a transcript. The principal judgment was delivered by the Lord Chief Justice, Lord Bingham. There are certain parallels, although also certain differences, from the present proceedings. In that case the applicant for habeas corpus was an Italian national who had been convicted of extradition crimes in Italy. In that case the relevant decision under attack was the decision of the magistrate, who had reached the conclusion, as he put it, "taking the whole picture together" that the government had established that that defendant was unlawfully at large. The Italian Government faced the difficulty that not all their evidence pointed in the same direction, and there was a specific letter which referred to the defendant as "never" having been unlawfully at large, but Lord Bingham went on at paragraph 25 as follows:

"The second problem is that a second duly authenticated order of enforcement was made against the applicant on 21 February 1998 ... At the end of the order in translation before us the public prosecutor at the Court of Turin orders:

'Members of the Police Forces, therefore, to ensure the identity of the one convicted and, after handing him a copy of the present order, to take him to the nearest custodial centre, there to serve the above-mentioned punishment.

26. That language may indicate that the applicant is already regarded as unlawfully at large and therefore liable to arrest which, if so, would of course support the government's case. But it may, as it seems to me, be authority to arrest him when he has been found and when he had been handed a copy of the order, which would suggest that he was not unlawfully at large until those steps had been accomplished. In the absence of expert evidence of Italian law I do not know how the magistrate could, or how we can, chose between those hypotheses.

27. In our own country the rules are clear and well understood by English lawyers. A sentence of imprisonment ordinarily takes effect when passed. It cannot be ordered to take effect at a date earlier than that on which it is passed. It cannot be ordered to take effect on any date later than that on which it is passed, unless it is ordered to be served consecutively to another sentence. Unless the defendant is released on bail, in which event there is a clear obligation to surrender to custody at a given time and place, a sentence of imprisonment takes effect immediately. It is tempting for an English lawyer to suppose that other jurisdictions follow the same rules. It is, however, notorious that they do not. The applicant, it seems, was lawfully at liberty during and after his trial in 1993 in Turin. When his conviction and sentence were confirmed in 1995 he was not present and there is no material to suggest that he was liable to immediate incarceration if he had been present. We do not know what the order of 8 May 1996 provided, but if it was in similar terms to the order of 21 February 1998 its effect is open to doubt."

26. As I have already noted, one difference between the case of Urru and the present case is that there was a specific letter contradicting the case of the Government of Italy. The other important difference, of course, is that Mr Urru had never been actually in custody, and therefore the question arose at what stage, if at all, he became unlawfully at large.
27. Having noted those differences, it seems to me that the warning of Lord Bingham about the dangers of supposing that other jurisdictions follow the same rules as in England and Wales is to be heeded. There is undoubtedly a temptation to conclude in the present case, in the absence of any positive evidence, that Albanian law may, by the conviction of the claimant, even in his absence, have imposed an obligation for immediate surrender. However, the 2003 Act is new. I am told that this particular provision has not come before the court before. Mr Pearse-Wheatley is undoubtedly correct in stressing that the need for the Secretary of State to concern himself with the law of the requesting state is removed if the statement as to the relevant defendant being unlawfully at large is included.
28. My conclusion is that it is only in a clear case that the Secretary of State should conclude, in the absence of a statement by the requesting state, that the relevant defendant is not only at large but unlawfully at large.
29. I return to the submission made on the basis that because the Government of Albania in its request specifically referred to Article 12, it should therefore be assumed that the provisions of Article 12 were complied with. I fully accept the proposition that, in the absence of evidence to the contrary, the good faith of the requesting state can be assumed -- no doubt the good faith of the Government of Italy was assumed in the case of Urru. But all states are capable of errors, including, I have to say, as we all know, our own country. In my view, although some of the alternative possibilities put forward by Mr Pearse-Wheatley are undoubtedly very much less likely than others, it is, in my view, in the absence of a statement that this claimant was unlawfully at large, or the equivalent statement, unsafe to fill in the gap.
30. When Mr Qureshi was making submissions, I taxed him with the suggestion that he was, in effect, submitting that, in the absence of evidence to the contrary before the Secretary of State, the Secretary of State was entitled to assume that the claimant was not only at large, but unlawfully so. In my view, his submissions came very near to making that assertion, although he would not accept, I think, that he went that far.
31. Here one has the position that there was a conviction of the claimant. There is no dispute that the inference is he has never been in custody in connection with that. There is no evidence before the court, and none before the Secretary of State in the request, that the claimant ever became aware of his conviction or its terms, and in my view there are possible situations in which, although he was at large in the United Kingdom, as is obvious, he was not unlawfully so in the sense that he was liable to immediate arrest in Albania. It is by no means impossible that there were procedures which would need to be gone through, or proceedings that had been gone through, which would make that proposition doubtful.
32. The provisions of the new Act have made it potentially simple and obvious and beyond argument that a claimant convicted is unlawfully at large. In my view the court should hesitate before seeking to fill a gap which could so easily have been filled. For those reasons, I have come to the conclusion that the certificate issued by the Secretary of State falls to be quashed. I will consult counsel on what order should follow.
33. MR PEARSE-WHEATLEY: My Lord, the request is that the certificate be quashed and the claimant released. My Lord, that is what I ask for.
34. MR JUSTICE CRANE: If I simply quash the decision, then I suppose that would have the effect of removing any basis for his detention.
35. MR PEARSE-WHEATLEY: Yes.
36. MR JUSTICE CRANE: Subject, of course, to what might happen in the future.
37. MR PEARSE-WHEATLEY: My Lord, I have now found the passage. In fact, it is quash the conviction, stay the proceedings at Bow Street Magistrates and order the release of the applicant. My Lord, those are my requests to the court.
38. MR JUSTICE CRANE: Let me hear Mr Qureshi.
39. MR QURESHI: My Lord, I will be inviting your Lordship to grant permission for this matter to be placed before their Lordships' House. In the course of those submissions I will be inviting your Lordship to consider the relevant authorities and the statutory provisions, which, certainly on one view, and the decision of their Lordships' House in the case of McCaffery, a decision of 1984, require the court to commit the individual into custody or, in the alternative, to grant bail on conditions pending the outcome of any application that is made for leave to appeal. My Lord, if I could hand the relevant material up. My Lord, whilst I am taking your Lordship through the material, I hope I will be able to formulate the point of law --
40. MR JUSTICE CRANE: Do you have anything written down?
41. MR QURESHI: My Lord, I was writing for your Lordship's judgment.
42. MR JUSTICE CRANE: I know you were, but ...
43. MR QURESHI: My Lord, I have written half of it down. I am going to formulate the remainder --
44. MR JUSTICE CRANE: Obviously I have not heard what Mr Pearse-Wheatley says, but I am not unsympathetic. The test will be whether there is a matter of general importance.
45. MR QURESHI: Indeed.
46. MR JUSTICE CRANE: Well, I am not unsympathetic to the idea that there is. As I understand it, this particular point and any point like it has not come before the court before.
47. MR QURESHI: Indeed, my Lord.
48. MR JUSTICE CRANE: I have to say I would be minded to leave it to the House of Lords to decide whether leave to appeal should be granted, but, subject to anything Mr Pearse-Wheatley says, you would be pushing at an open door in relation to the importance aspect.
49. MR QURESHI: My Lord, in which case the route that I would invite your Lordship to proceed along would be, if your Lordship were minded not to accede to my request for permission to be granted, but rather that the matter then be placed before their Lordships' House within the requisite period of time, within 14 days, in the interim I would invite your Lordship, invoking the jurisdiction provided in section 5 of the Administration of Justice Act 1960, to remand Mr Bleta in custody.
50. MR JUSTICE CRANE: You will need to refer me to that.
51. MR QURESHI: My Lord, I shall, and in doing so perhaps we should start off with the text by the authors Nicholls, Montgomery and Knowles, which, in my respectful submission, neatly encapsulates the provision.
52. MR JUSTICE CRANE: Yes, this is what you have just handed me.
53. MR QURESHI: My Lord, I have. (1) is the extract from the text, (2) is the decision in McCaffery and (3) are the extracts from the Administration of Justice Act. Starting with (1) the second page of the extract, under the heading "Appeals to the House of Lords", paragraph 8.61. This is a criminal cause or matter, of that there is no doubt, extradition. Authority for that, my Lord can find in the case of Montgomery:

"8.61. An appeal does lie to the House of Lords in extradition cases with permission. Permission must be sought from the Divisional Court [and your Lordship is sitting as a Divisional Court in the vacation] in the first instance. If permission is refused, leave must be sought from the House of Lords itself."

Your Lordship will see the footnote there: "The Divisional Court almost invariably refuses leave to appeal, leaving it to the House of Lords to decide which cases it wishes to hear".

54. MR JUSTICE CRANE: I had not of course read this particular passage, but that is the general approach.
55. MR QURESHI: Indeed, my Lord. The learned authors no doubt, as a product of their own considerable experience, were simply echoing or confirming the position that your Lordship had indicated. But then one deals with the position which is the position here, namely:

"8.62. In judicial review cases both a certificate of general public importance and permission are required.

8.63. If the defendant succeeds before the Divisional Court and the requesting state wishes to appeal to the House of Lords, the Divisional Court has the power to detain the defendant in custody or to admit him to bail pending the appeal under section 5 of the Administration of Justice Act 1960. The Court should always be asked to exercise this power, and should do so of its own motion if no request is made by the requesting state. In Government of the United States of America v McCaffery the Divisional Court released the defendant unconditionally after he had succeeded in his application for habeas corpus. By the time the government's appeal was allowed by the House of Lords he had disappeared. The Divisional Court's failure to use its powers under section 5 was severely criticised by Lord Diplock:

'I would accordingly allow this appeal and would set aside the order of the Divisional Court of 20 October and 28 November 1983. But so far as its effect upon McCaffery is concerned, to set aside these orders is no more than a brutum fulmen. This is because the Divisional Court either overlooked or disregarded the fact that the warning given by this House in Reg v Merriman [1973] AC 584, in relation to the Criminal Appeal Act 1968, was equally applicable to the importance of making an order under section 5 of the Administration of Justice Act 1960 (which, by section 15, is made applicable to appeals to the House of Lords in proceedings upon application for habeas corpus in criminal matters), directing that the person restrained shall not be released except on bail so long as the appeal to the House of Lords is pending.

If ever there was a case for an order of this kind instead of an unqualified order for discharge of the person awaiting surrender for an extradition crime, the instant case provides a prime example. The Divisional Court, for reasons that I have not found easy to follow in the judgments, regarded itself as entitled to decline to follow the recent judgment of another Divisional Court in the Nielsen case which not only was prima facie binding upon them but to their knowledge was under appeal to this House. To make matters worse the court made an unqualified order for McCaffery's discharge on 20 October 1983 when they announced their decision to allow the appeal, but adjourned to a later date the expression of their reasons for doing so and also the question of whether or not to grant leave to appeal to the House of Lords. The second order by which leave to appeal to this House was granted was not made until 28 November 1983. By then it was too late. By virtue of sections 5 and 15 of the Administration of Justice Act McCaffery is not liable to be detained again. The procedure which the court chose to follow in relation to McCaffery's discharge is, in my view, inapplicable."

56. If one then turns to the Administration of Justice Act behind tab 3; does your Lordship have that?
57. MR JUSTICE CRANE: Yes.
58. MR QURESHI: The first section "Right of appeal":

"(1) Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor -

(a) from any decision of the High Court in a criminal cause or matter [extradition being a criminal cause or matter] ...

(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."

59. If one then moves forward to section 5, which is in the extract at page 15 (pagination at the bottom of the page), "Power to order detention or admission to bail of defendant":

"(1) Where the defendant in any proceedings from which an appeal lies under section one of this Act would, but for the decision of the court below, be liable to be detained, and immediately after that decision the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal, the court may make an order providing for the detention of the defendant, or directing that he shall not be released except on bail (which may be granted by the court as under section 4 above), so long as any appeal under section one of this Act is pending."

The remainder of the provisions are dealing with Mental Health Act situations.

60. So, my Lord, in this context in a moment I will seek to articulate the point of law of general public importance which I submit requires to be placed before their Lordships' House, and if your Lordship is minded to grant permission then plainly the effect of section 5 is that the detention order takes effect until it has been conclusively determined. Alternatively, if your Lordship were not minded to grant permission but left the defendant and/or the interested party, assuming the interested party sought permission to appeal, to petition their Lordships' House for permission to appeal, then until the matter was determined by their Lordships' House, again, the detention order would take effect.
61. Insofar as the point of law of general public importance is concerned, my Lord, again if the speed with which I have sought to articulate the point of law -- forgive me, my Lord. My Lord, tempting though it is to try and furnish your Lordship with the point of law of general public importance immediately in an ex tempore fashion, I have written it down, but it may perhaps be useful if I liaise with Mr Pearse-Wheatley to see whether we can come to a form of words which is suitable for both.
62. MR JUSTICE CRANE: It is common practice for such points to be rather carefully drafted, and I think the suggestion you are now making is a good one. The question is: what is the way forward? Perhaps I could just ask Mr Pearse-Wheatley. Mr Pearse-Wheatley, subject to drafting, do you dispute the proposition that there is likely to be here a point of general public importance?
63. MR PEARSE-WHEATLEY: No.
64. MR JUSTICE CRANE: You do not dispute that?
65. MR PEARSE-WHEATLEY: No, I do not.
66. MR JUSTICE CRANE: In other words, subject to drafting, and Mr Summers I take it you do not dispute that there is a potential matter of public importance?
67. MR SUMMERS: My Lord, no.
68. MR JUSTICE CRANE: I make it clear that I shall certify, subject to the drafting. Now, that leaves the question of, first of all, what precise order I make today on the present proceedings. Secondly, whether I grant leave to appeal, and I have given my preliminary view about that. Thirdly, the question of bail.
69. MR PEARSE-WHEATLEY: Yes.
70. MR JUSTICE CRANE: Now, one possibility would be for me simply to adjourn now while counsel try and draft it. The other possibility is for it to be, on the question of the drafting, mentioned to me or even submitted to me overnight.
71. MR PEARSE-WHEATLEY: Yes.
72. MR JUSTICE CRANE: Now, do you think you going to be in a position to produce a sensible draft now or ...
73. MR QURESHI: My Lord, I would not wish to tempt fate by suggesting that the draft that I have produced is sensible or that it will --
74. MR JUSTICE CRANE: Thinking of the practice both here and in the Court of Appeal Criminal Division, it is very often left over. I am rather inclined to think that if counsel between them can try and agree a draft, it may be one can be agreed, but if not, at least theoretically, I could have a further hearing, but in the absence of any disagreement at least I could no doubt make the pronouncement in open court of what the point was without necessarily anybody attending.
75. MR PEARSE-WHEATLEY: My Lord, the likelihood of disagreement I would think is very slim. It is very unlikely I shall disagree with Mr Qureshi on the question.
76. MR JUSTICE CRANE: Yes. These points of general public importance get sometimes rightly criticised when they get to the House of Lords for not raising a proper matter, so I think what I will do, subject to anything further anybody wants to say, is leave over the precise drafting of the question either for agreement or for, I suppose, handing down at some later date, probably this week, well, handing down in any event but a hearing if it proves to be necessary, it probably will not, but assume that I shall be granting that certificate and deal with other matters this afternoon.
77. MR QURESHI: My Lord, I am content with that.
78. MR PEARSE-WHEATLEY: My Lord, forgive my ignorance, but is it possible to incorporate in the question effectively an appeal from your Lordship's ruling on the first part of your Lordship's judgment. I suspect the answer is "no", but, in my respectful submission, that too is a point of public importance as to whether the Secretary of State can look beyond the failure under section 70. Your Lordship was against me on that point, but for me in respect --
79. MR JUSTICE CRANE: Thinking aloud, I would have thought that does arise. Although you made a limited concession, beyond that the matter was not agreed. There was the question of whether one could look beyond the actual words or their equivalent.
80. MR PEARSE-WHEATLEY: Yes.
81. MR JUSTICE CRANE: And there was the further question, which might be more difficult to draft as a matter of general public importance because it depended on a particular view of the request, but it may be that some question along the lines of to what extent the Secretary of State is entitled to look beyond the words or their equivalent.
82. MR PEARSE-WHEATLEY: I am grateful, my Lord. Having given those indications, I am sure that my learned friend, Mr Qureshi, and I can draft an appropriate question.
83. MR JUSTICE CRANE: Right. You say that the order of the court should be the quashing of the decision, and presumably on the question of bail you say there should be bail?
84. MR PEARSE-WHEATLEY: There should be, yes, my Lord. My Lord, I say that if your Lordship feels that there must be bail, in effect, rather than a complete discharge, the Secretary of State's certificate being quashed, in my respectful submission that can and should be on bail. I do not know if your Lordship wishes me to address you on --
85. MR JUSTICE CRANE: I think you should. The fact is that, leaving aside the wording of the Act, you face the fact that here is Mr Bleta in the United Kingdom and he has been convicted of murder in Albania.
86. MR PEARSE-WHEATLEY: Yes.
87. MR JUSTICE CRANE: Without, as it were, pre-judging the outcome of any appeal there might be, there are perhaps matters of concern.
88. MR PEARSE-WHEATLEY: Quite so, my Lord. It is something of an irony, your Lordship having found that there is insufficient evidence that he is subject to immediate detention in Albania, that he should be immediately detained in this country.
89. MR JUSTICE CRANE: It does not follow.
90. MR PEARSE-WHEATLEY: I know, my Lord, but somewhat of an irony to a layman.
91. MR JUSTICE CRANE: There is very little doubt, I have to say -- and I am dealing with bail at the moment -- that, first of all, he has been properly convicted, there is nothing to indicate to the contrary, and, secondly, there is not actually any positive case put forward on his behalf that if he is returned to Albania he will not go and serve that sentence.
92. MR PEARSE-WHEATLEY: Yes.
93. MR JUSTICE CRANE: There is of course the rather more limited question of whether he is liable to immediate arrest and is therefore technically unlawfully at large in the way that was discussed in Urru, but as far as the merits of whether he is going to serve that sentence is concerned, there is not, frankly, anything put forward on his behalf to suggest that he should not serve it.
94. MR PEARSE-WHEATLEY: No. My Lord, this is not an appropriate forum for those arguments, but there are those arguments, and indeed had your Lordship not ruled in the way you had, we would have been at the committal hearing tomorrow in Bow Street where those arguments would have been rehearsed, and, in particular, reference to section 84 of the Extradition Act whether the proceedings in Albania complied with the European Convention on Human Rights, upon which we felt we were on strong grounds. My Lord, I entirely accept what you say, but what I do urge upon the court, particularly against the background of what might be described as success today, is that this man should have bail. May I hand up two documents: one is from the Home Office, showing that he has exceptional leave to remain, and the second is from Derby City Council, which has the advantage at least of showing his address.
95. MR JUSTICE CRANE: Yes. Of course, the difficulty is I do not actually know anything about the circumstances in which Mr Bleta came to this country.
96. MR PEARSE-WHEATLEY: No.
97. MR JUSTICE CRANE: Or, subject to seeing this now, his family circumstances.
98. MR PEARSE-WHEATLEY: My Lord, I may help a little with that. As to how he came to this country, my Lord, with great respect, it may be academic that, because he has now exceptional leave to remain, so that obviously has been examined by the Home Office.
99. MR JUSTICE CRANE: I know, but he must have put forward some grounds, must he not, for asking for exceptional leave to remain?
100. MR PEARSE-WHEATLEY: Yes.
101. MR JUSTICE CRANE: And I do not know what those were.
102. MR PEARSE-WHEATLEY: My Lord, on the face of it, though, he has exceptional leave to remain. My Lord, may I address you on the basis that that is effective?
103. MR JUSTICE CRANE: I do not suppose he said anything about the proceedings in the Tirane first instance court.
104. MR PEARSE-WHEATLEY: Our position is that he did not know anything about them, my Lord, of course.
105. MR JUSTICE CRANE: Yes, I follow.
106. MR PEARSE-WHEATLEY: My Lord, the family have settled in Derby, as one of the documents I handed up to you shows. Two of his sons are here in court today. They speak good English. They have been educated in the English system. The family is very well established in Derby. Mr Bleta himself does not speak English, to the extent of really not speaking English. The document I handed up shows that Mrs Bleta unfortunately suffers from serious mental illness, and at the time of his arrest Mr Bleta was a full-time carer for his wife.
107. MR JUSTICE CRANE: Was any application made for bail?
108. MR PEARSE-WHEATLEY: Yes, in the magistrates' court.
109. MR JUSTICE CRANE: When was that?
110. MR PEARSE-WHEATLEY: My Lord, it was about a month ago.
111. MR JUSTICE CRANE: Before whom?
112. MR PEARSE-WHEATLEY: My Lord, I did not make the bail application and I do not believe that I have a record of who the magistrate was.
113. MR JUSTICE CRANE: But it was a fully argued bail application?
114. MR PEARSE-WHEATLEY: It was fully argued, yes. Here we are, Mr Evans.
115. My Lord, we would say that the circumstances have changed as a result of today's hearing, but we say that in any event Mr Bleta effectively has nowhere to go. Obviously he cannot go back to Albania. There is no other European country where he would have any affinity. His children speak English. He also has a daughter, who, I think at the age of 18, is taking over the role of mother to the family. It has been extremely difficult for the family and, in my respectful submission, there is absolutely no reason to think that Mr Bleta will commit a further offence if given bail or that he would abscond in all the circumstances. As I say, he has found haven in this country, there is nowhere obvious that he would go. He is not in a position obviously to put forward sureties, the family have no money whatsoever. He is, of course, in a position to be subject to conditions as your Lordship may think appropriate. He presumably has a local police station in Derby and he could report there every day. Whatever other conditions your Lordship thinks are appropriate could be complied with. In my respectful submission, it is very unlikely that Mr Bleta will abscond, particularly in view of the outcome of today's hearing.
116. MR QURESHI: My Lord, in opposing the application for bail, could I start off by asking whether your Lordship was handed up a document, and I am told I was given a copy of the very same document, dated 29th July 2002, headed "Home Office".
117. MR JUSTICE CRANE: Yes.
118. MR QURESHI: My Lord, is the name at the top "Gjevahire"?
119. MR JUSTICE CRANE: Yes, it is.
120. MR QURESHI: My Lord, it is a point that I have to make because, having been given this document at a very late stage, your Lordship will see the name "Gjevahire Bleta", there is no other reference to "Fatmir". Your Lordship will also see the date of birth, 7th July 1963.
121. MR JUSTICE CRANE: I think that Gjevahire Bleta is his wife. She is referred to in the other document.
122. MR QURESHI: My Lord, yes, but I cannot see any reference to Mr Bleta being granted exceptional leave to remain.
123. MR JUSTICE CRANE: Quite right, yes.
124. MR QURESHI: Indeed, it is not even the name but the date of birth, and your Lordship can see in the extradition bundle, document 44, that Mr Fatmir Bleta has a date of birth of 6th July 1960.
125. MR JUSTICE CRANE: Yes. I cannot for the moment see any reason to doubt -- exceptional leave to remain has also been granted, it seems, to someone called Elsa Bleta.
126. MR QURESHI: Yes.
127. MR JUSTICE CRANE: She is one of the children.
128. MR QURESHI: My Lord, yes. The only point I make is that the name of Mr Fatmir Bleta is not on the document, but it is a point of information. No doubt my learned friend will clarify it because no doubt he has a similar document in his file of a similar date with the name Fatmir Bleta, but that is beside the point. What your Lordship is being asked to do is to grant bail who an individual who, firstly, has been convicted of murder; secondly, is facing a 13 year prison sentence in Albania; thirdly, when arrested, on 21st April 1998, he made an inculpatory statement to the police, and your Lordship has seen that statement, no doubt in the papers.
129. MR JUSTICE CRANE: It was inculpatory in the sense he admitted part in the incident.
130. MR QURESHI: My Lord, yes. He admitted that he was joking about (inaudible), did not realise there was a bullet in the gun, the gun went off accidentally. So what is the point? The point is effectively one of mitigation, ie manslaughter, he was reckless or something of that -- he is not saying, "It was not me, I was not there, you have the wrong man".
131. MR JUSTICE CRANE: I do not think there is much future in getting involved in the argument about the ultimate merits, or lack of them, because there is no doubt the court convicted him of deliberate killing.
132. MR QURESHI: My Lord, yes. Insofar as I rely on that, simply to illustrate that we have, to all intents and purposes -- putting to one side the formality which section 70 imposes upon the Secretary of State and the requesting state -- a conviction for one of the most serious offences possible and a long prison sentence, and an individual who, on the face of it, arrived in the United Kingdom in circumstances which have not been explained, certainly shortly after the offence took place. Now, if the individual is capable of leaving a jurisdiction where he or she, on his or her own admission, accepts the facts that gave rise to the fatality, perhaps not the legal consequences, but the facts, then one is driven to the conclusion that there is a serious risk that the very same individual, in an effort to evade the consequences that would flow from extradition, could evade the jurisdiction again.
133. It appears that a bail application was made before District Judge Evans. The only change in circumstances that my learned friend wishes to deploy before your Lordship is your Lordship's ruling. There are no sureties. It is not suggested that there is any other factor that would militate against what I would submit is a very serious risk that Mr Bleta would abscond if granted bail, and the dour warning that their Lordships' House gave in McCaffery as to appeals being rendered nugatory is ever more present when one is concerned with a case which is as serious as this.
134. So for those reasons, my Lord, I would submit that bail should not be granted and that Mr Bleta should be remanded in custody pending determination of the appeal which will be placed before their Lordships' House. Unless I can assist further.
135. MR JUSTICE CRANE: Thank you.
136. MR DUNKELS: My Lord, I adopt the submissions of my learned friend for the Secretary of State, so I also ask for remand in custody for the reasons he has outlined.
137. MR JUSTICE CRANE: Do you want to say anything?
138. MR PEARSE-WHEATLEY: Solely this. Presumably the provisions of the Bail Act apply to this application, as to all bail applications. The criteria for refusing bail tend to fall into three headings, the two most important being whether he would commit further offences and, in my respectful submission, the circumstance of the offence with which he is accused make it very unlikely that he would commit a further offence; secondly, that he would abscond. That, of course, is the most important consideration for this court, but in my respectful submission, for the reasons which I have already put forward to this court, it is highly unlikely that Mr Bleta will abscond. He will no doubt feel that it is likely that he is not to be extradited in view of your Lordship's ruling, and that is another exceptional reason why it is likely that he would not go to the desperate measures to escape the jurisdiction. He simply does not have the resources to do it now, and of course he cannot go back, as I have said, to Albania.
139. MR JUSTICE CRANE: Can I just ask this. Suppose the Government of Albania were to decide to submit a new request; is there anything to stop them doing that?
140. MR PEARSE-WHEATLEY: My Lord, I am not aware that there is.
141. MR JUSTICE CRANE: You see, there is the point of law, which is potentially important, but if they were to submit a request that complied, and it may well be their case that he is unlawfully at large, the Secretary of State would then be bound to set the proceedings in motion again.
142. MR PEARSE-WHEATLEY: My Lord, it occurs to me that there is a reason why that may not be possible. Your Lordship knows that there are very strict time limits within the Extradition Act. We would argue that it would be an abuse of the process of the court --
143. MR JUSTICE CRANE: I can see you might argue that, and you could also say that there are human rights arguments, which I am not in a position to consider today, but I am just pointing out that, although the decision may be taken to pursue this application for leave to appeal and perhaps an appeal, there might be other routes and that might place the claimant in some difficulty.
144. MR PEARSE-WHEATLEY: We say that it is highly unlikely, if their Lordships' House agree with the ruling of this court, that it would be possible for the Government of Albania simply to start again.
145. MR JUSTICE CRANE: I am not so sure about that because if the Government of Albania have felt they could, in good conscience, include the particular words in the request, just thinking about it from the point of view of bail considerations, there does not seem any real reason to suppose they could not have done -- that is, I know, speculation -- then you would not be here today, you would be making your submissions no doubt in another context tomorrow, but --
146. MR PEARSE-WHEATLEY: My Lord, your Lordship knows that under 74(11) of the Extradition Act there is a 45 day period within which after a man has been arrested and put in custody the requesting government must provide --
147. MR JUSTICE CRANE: That is beyond that.
148. MR PEARSE-WHEATLEY: If governments were simply able to, if either their case collapsed or they felt they were not going to get the deadline, just drop it and start again, in my respectful submission that would completely defeat the time limits laid down by Parliament for very good reasons.
149. MR JUSTICE CRANE: Well, I think there is no need for me to reach any view about that today. It is not appropriate probably. Anyway, you say you would have arguments about that.
150. MR PEARSE-WHEATLEY: Certainly.
151. MR JUSTICE CRANE: Shortly, it seems to me quite plain that I should exercise the power to consider either detention or admission to bail and, as things stand today, it seems to me I ought to refuse bail. There is, in my view, reason for anxiety in relation to absconding, bearing in mind the difficulties that the claimant faces and bearing in mind also that, subject to any human rights arguments that may be put forward, no positive reason to think that he has been wrongly convicted has in fact been put forward. In the circumstances of today, it seems to me that I must refuse bail.
152. If the matter were to proceed to an appeal and leave were to be granted and there were to be delay, there are plainly considerations relating to the family which might -- and I only say "might" -- require a reconsideration of the bail situation if the matter was protracted, but beyond that I do not think I can go, and I am certainly not holding out any hopes.
153. In the light of that, plainly my order must be, subject to any further submissions, that the certificate be quashed. The final order will include the matter of general public importance. Unless there is any further argument about it, I shall refuse leave to appeal, in the usual way, leaving it to the House of Lords. I shall remand the claimant, as he is for this purpose, in custody.
154. MR PEARSE-WHEATLEY: Thank you, my Lord.
155. MR JUSTICE CRANE: In the course of drafting the matter of general public importance, can I ask that an overall order be submitted and I will -- well, let me put it like this. Subject to any need for a further hearing, I will simply deal with it on paper.
156. MR QURESHI: My Lord, I am extremely grateful. Towards the end of this week I will be out of the jurisdiction, in any event, on Thursday and Friday.
157. MR JUSTICE CRANE: I am available for the rest of this week and in fact next, but if in the next day or two this can be submitted.
158. MR QURESHI: I shall endeavour to do this as soon as possible tomorrow.
159. MR JUSTICE CRANE: Right.
160. MR PEARSE-WHEATLEY: My Lord, the only thing that concerns me is that my client faces a period of being in custody. There must be, in my respectful submission, a definitive period.
161. MR JUSTICE CRANE: Yes, you are quite right. Presumably there is a period for applying for leave to appeal to the House of Lords.
162. MR QURESHI: My Lord, there is a definitive period. The suggestion that somehow Mr Bleta's fate is left in limbo is not fair, because if your Lordship refuses permission then your Lordship will see, application for leave to appeal, page 13 of the extract that I provided your Lordship with, section 2 of the Administration of Justice Act, "an application to the court below for leave to appeal shall be made within the period of fourteen days beginning with the date of decision of that court; and an application to the House of Lords for such leave shall be made within the period of fourteen days beginning with the date on which the applications is refused by the court below", and I indicated at the outset that we have a 14 day window.
163. MR JUSTICE CRANE: Yes. Does the House of Lords operate during August?
164. MR QURESHI: My Lord, one would imagine that some of their Lordships, certainly one hopes that there is a sufficient quorum to determine an application for permission.
165. MR JUSTICE CRANE: If I may say so, Mr Qureshi, I think you better find out about that. As things stand today, we will leave the 14 day period as it stands. It is really a matter for you. If you or those instructing you discover that there is a difficulty about placing it before the House of Lords within that time, then you will need to make an application. Presumably I have power to extend the time, if necessary.
166. MR QURESHI: My Lord, the 14 day period requires the making of the application, not the determination.
167. MR JUSTICE CRANE: I see. There is no problem about you making it?
168. MR QURESHI: No, my Lord, as long as it is lodged within the 14 day period --
169. MR JUSTICE CRANE: I think that meets your point.
170. MR PEARSE-WHEATLEY: I am grateful.
171. MR JUSTICE CRANE: Whether it will go before anybody at the moment is, I am afraid, not a matter for me.
172. Thank you very much for your submissions.