England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		17th December 2004

1. MR JUSTICE FIELD: There are before the court an application for judicial review of a decision of District Judge Wickham sitting at Bow Street Magistrates' Court on 15th October 2004, and an appeal against an extradition order made by the same judge sitting in the same court on 25th October 2004.
2. The applicant/appellant is Mr Ali Handa. Mr Handa is a French national currently serving a sentence of 30 months' imprisonment for three offences of burglary, attempted burglary and two offences of common assault. This sentence was imposed at Southwark Crown Court on 6th August 2004. The offences were committed on various dates between 6th January 2004 and 1st February 2004.
3. On 14th September 2004, whilst in custody under the 30-month sentence ("domestic custody"), Mr Handa was arrested under a warrant issued by the High Instance Court of Paris ("the issuing authority") in relation to offences of murder and theft allegedly committed in Paris on the night of 10th December 2003. This warrant was a Part 1 warrant for the purposes of the Extradition Act 2003 ("the 2003 Act"). (All statutory provisions I refer to hereafter are provisions within that Act unless the contrary is stated).
4. Mr Handa was brought before Bow Street Magistrates' Court (the appropriate judge for the purposes of Part 1 of the 2003 Act) on 21st September 2004 for the initial hearing, contemplated by sections 7 and 8. At that hearing the extradition hearing contemplated by section 9 of the Act was formally opened but not begun. The issuing authority indicated that it would not be seeking Mr Handa's removal to France until his release from domestic custody, and informed District Judge Wickham that they were of the view that the extradition hearing should be adjourned until Mr Handa was released from domestic custody. It was also made clear on behalf of Mr Handa that he too wished to have the extradition hearing adjourned over to the end of domestic custody. His earliest release date was, and remains, 4th May 2005. The District Judge gave a provisional view that she was not minded to adjourn the extradition hearing and listed the matter for legal argument on 15th October 2004.
5. On that date both sides argued for an adjournment until Mr Handa had been released from domestic custody. The issuing authority's primary submission was that there were no provisions in United Kingdom law which allowed for a custodial sentence to be halted to allow for a prisoner to be removed to another jurisdiction. The judge's discretion should therefore be exercised in favour of the adjournment proposed. Paragraphs 18, 19 and 20 of the issuing authority's skeleton argument, served in support of their application for an adjournment, read:

"18. Irrespective of any ancillary consequences of a decision to adjourn the extradition hearing until the Defendant has been released from his United Kingdom sentence, the absence of any 'interruption' provisions which apply to domestic sentences when extradition proceedings are under way dictates that the hearing should be adjourned.

"19. The only practical alternative would be for the extradition hearing to take place, and then, if the Defendant does not appeal and is not extradited within the 'required period' under section 35, it would be open to him to apply to be discharged, and it would be a matter for the judge to rule under section 35(5) whether 'reasonable cause' had been shown for the delay.

"20. While the latter course may appear superficially attractive it would be unsatisfactory for Defendants who might have issues determined against them which they could have raised more forcefully at a later stage. Equally, it would be unsatisfactory for prosecuting authorities since it is strongly arguable that the failure of the law to make adequate provision is not of itself capable of amounting to reasonable cause."

6. Mr Handa submitted that there should be an adjournment until the end of domestic custody because, if an extradition order were made before the end of domestic custody, he would have to be remanded by the judge into extradition custody and this would mean him having to be produced at the court in London every 28 days for further remand, a requirement that would be most inconvenient because he was serving his sentence in the north of England and did not want to be transferred to Feltham Young Offenders' Institution, or to Belmarsh prison, where there is a video link.
7. The District Judge rejected both sides' submissions. She refused an adjournment, and on 25th October 2004 ordered Mr Handa's extradition. Her reasons for refusing an adjournment were:

"The High Instance Court of Paris seeks the return of Mr Ali Handa in respect of an allegation of murder. On 6th August 2004 the Southwark Crown Court sentenced to Mr Handa to 30 months' imprisonment in a Young Offenders Institution and it would appear that anything up to 6 months was spent in custody on remand before trial. The offences for which he is now serving are burglary, attempted burglary and related matters. Therefore the allegation for which he is sought in France, murder, is a much graver or serious charge compared with the matters in this country, and the allegations were committed before the matters for which he is detained here.

"As far as we can ascertain he will be due for automatic release no later than 4th May 2005, when he will have served 50% of his sentence. Equally this court is aware that often even that 50% of a sentence is not served, the actual time of detention or imprisonment appears to be at the discretion of the Home Office. The extradition hearing has begun. We have reached Section 23 subsection 2 which states that the appropriate judge 'may' adjourn the hearing until the sentence has been served. Argument has taken place and I am grateful for the skeletons and submissions of Mr Hardy for the High Instance Court of Paris and Mr Watson on behalf of Mr Handa.

"I do not propose to adjourn the extradition hearing under Section 23. It is a discretion given to me, and bearing in mind the gravity of the offences alleged in France, the comparative shortness of the outstanding sentence in this country, and that there is no real dissatisfaction in the terms suggested by paragraph 20 of Mr Hardy's skeleton argument, dated 14th October 2004 on behalf of the High Instance Court of Paris. I therefore decline to adjourn the proceedings and we should proceed."

8. On 25th October 2004, neither the issuing authority nor the District Judge raised the possibility of agreeing an extended period for Mr Handa's extradition under section 35(4)(b). It appears that no decision had by then been made whether to make such an agreement, the issuing authority apparently being under the impression from Article 24(1) of the Council Framework Decision that it could elect to postpone Mr Handa's surrender until he had served his sentence.
9. On 29th October 2004 Mr Handa filed his claim for judicial review and his notice of appeal against the extradition order. The consequence of this was that the requirement that Mr Handa be extradited within the required period under section 35(3) ceased to apply pending his appeal; see section 35(1)(b).
10. Mr Handa seeks judicial review of the decision not to adjourn the decision on the ground that it was Wednesbury unreasonable. On his behalf it is submitted that the appropriate judge faced with an adjournment under section 23, where the person is serving a domestic sentence, should take into account the following considerations:
11. (1) The representations made by the parties.
12. (2) The relative seriousness of the offences concerned, ie the offence that has led to domestic custody and the offence for which extradition is sought.
13. (3) The length of any domestic sentence still to be served.
14. (4) The impact of deferral on any relevant limitation period, the availability of evidence or its reliability, or the trial of a co-defendant in respect of offences disclosed by the Part 1 warrant.
15. (5) Whether the Part 1 warrant indicates that the person is accused or unlawfully at large after conviction.
16. (6) Whether the Part 1 authority will give appropriate undertakings under section 37 concerning custodial remand and return to the UK.
17. The following further contentions are also advanced in support of the broad submission that the refusal to adjourn was irrational. First, it is contended that the judge's decision ran contrary to the purpose for which the power in section 23 to adjourn was granted, namely to ensure that a person in domestic custody could be required to serve his sentence before his removal pursuant to an extradition order.
18. Secondly, it is contended that the refusal to adjourn gives rise to a real risk of confusion and absurdity should Mr Handa apply at the end of the required period for his discharge, because the issuing authority may well be unable to show that there is reasonable cause for delay when the cause is an absence of any provision in UK law permitting the termination of a custodial sentence to allow for the extradition of the prisoner.
19. Thirdly, it is submitted that the decision is contrary to ordinary principles and fairness because it creates a preventable risk of injustice by denying to Mr Handa the opportunity to raise before the appropriate judge issues barring his extradition which arise during his domestic custody. Fourthly, it is contended that the decision served no purpose other than administrative convenience; and fifthly it is argued that the decision increases the likelihood that Mr Handa will suffer a period of unreviewable, and therefore unlawful, detention under Article 5 ECHR when he is detained after completion of his domestic sentence pending his removal to France on an unspecified date.
20. Looming over the whole of Mr Handa's judicial review application is the question whether section 34 stops it dead in its tracks. That section reads:

"A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part."

21. Turning to Mr Handa's substantive appeal against the order of extradition, his grounds of appeal are that, given that he was not going to be extradited until 4th May 2005 at the earliest, the judge could not properly have decided on 25th October 2004 whether any of the bars to extradition set out in section 11 applied, or whether his extradition would be compatible with his Convention rights pursuant to section 21(1).
22. Sections 11 and 21(1) provide:

"11(1) If the judge is required to proceed under this section he must decide whether the persons's extradition to the category 1 territory is barred by reason of -

"(a) the rule against double jeopardy;

"(b) extraneous considerations;

"(c) the passage of time;

"(d) the person's age;

"(e) hostage-taking considerations;

"(f) speciality;

"(g) the person's earlier extradition to the United Kingdom from another category 1 territory;

"(h) the person's earlier extradition to the United Kingdom from a non-category 1 territory.

"(2) Sections 12 to 19 apply for the interpretation of subsection (1).

"(3) If the judge decides any of the questions in subsection (1) in the affirmative he must order the person's discharge.

"(4) If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20.

"(5) If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21."

23. Section 21 reads:

"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).

"(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.

"(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued.

"(4) If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory.

"(5) If the judge remands the person in custody he may later grant bail."

24. In my view, there is a very real linkage between the appeal and the application for judicial review. This arises out of the potential impact of the court's decision on the appeal on the judicial review application. The potential impact is this. If the appeal succeeds, Mr Handa will be entitled to be discharged and the judicial review application will fall away. If, on the other hand, the appeal fails, it is open to this court under section 36(3)(b) to agree with the issuing authority that the required period in which Mr Handa must be extradited should be extended to the end of domestic custody. If such an agreement is reached, a substantial part of the complaint about the effect of the decision will have gone, possibly to the extent that even if section 34 is not a bar to the judicial review application, no greater relief would be granted on that application than would result from a failed appeal coupled with an agreed extension of the required period.
25. Accordingly, I think it appropriate to deal with the substantive appeal before dealing with the application for judicial review.
26. Sections 26 and 27 provide:

"26(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

"(2) But subsection (1) does not apply if the order is made under section 45 or 47.

"(3) An appeal under this section may be brought on a question of law or fact.

"(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

"27(1) On an appeal under section 26 the High Court may --

"(a) allow the appeal;

"(b) dismiss the appeal.

"(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

"(3) The conditions are that --

"(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

"(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

"(4) The conditions are that --

"(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

"(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

"(c) if he had decided the question in that way, he would have been required to order the person's discharge.

"(5) If the court allows the appeal it must --

"(a) order the person's discharge;

"(b) quash the order for his extradition."

27. In the light of these provisions, Mr Handa is constrained to submit that the District Judge either ought to have decided the question whether he should be extradited differently, or that the issue as to whether she should have ordered extradition so far in advance of his removal to France was an issue that was not raised at the extradition hearing. Moreover, under section 27(2), this court may only allow Mr Handa's appeal if the decision it is said the District Judge ought to have made would have required her to order Mr Handa's discharge. The decision that it is said that the District Judge should or would have made was to decline to order extradition so far in advance of the end of domestic custody. However, in my judgment, that decision would not have required the District Judge to order Mr Handa's discharge. Accordingly, Mr Handa's substantive appeal cannot succeed and must be dismissed.
28. In the course of argument, Mr Hardy for the issuing authority invited our agreement to extend the required period to 4th May 2005 or such other date on which Mr Handa is released from domestic custody should we dismiss the appeal. We also heard counsel for Mr Handa on this proposed extension. In my judgment, this court can agree to the proposed extension. 4th May 2005 is only five and a half months away. None of the possible bars to extradition, including incompatibility with Convention rights, would apply if the order were made today and I can see no real risk of any of those bars arising in the interim period.
29. I return to Mr Handa's judicial review application. Putting section 34 on one side for the moment, I am of the clear view that the decision not to grant the requested adjournment was irrational for the reasons advanced in the second of the further contentions advanced by Mr Handa to which I have already adverted. Given: (i) the absence of any provision in UK law permitting the termination of domestic custody to allow for extradition; (ii) the manifest difficulty the issuing authority was bound to have in showing reasonable cause for the delay in Mr Handa's extradition; and (iii) the absence of any reasons of any weight against there being an adjournment, there was only one decision that was Wednesbury reasonable and that was to grant the adjournment that was being sought by both parties.
30. Before turning to the other contentions advanced in support of the irrationality submission, I would observe that the absence of any provision in UK law permitting the interruption of domestic custody is something that Parliament seems to have overlooked when enacting the 2003 Act. Sections 259 and 260 of the Criminal Justice Act 2003 allow for the removal of persons from the UK in asylum and immigration cases, but no provision is made in that Act, or anywhere else, for the removal in extradition cases of persons serving domestic sentences. The absence of such a provision entirely undermines section 37 ("Undertaking in relation to person serving sentence in UK") and section 186 ("Re-extradition"). I need hardly say that the sooner Parliament fills this yawning gap the better.
31. I turn then to the other contentions advanced in favour of the irrationality argument. Whilst I agree that the considerations identified by Mr Handa's counsel, Mr Hines and Mr Watson, are matters to which the appropriate judge ought ordinarily to have regard, it is my view that none of the further contentions constitute grounds, whether taken singularly or in combination, for establishing that the decision was irrational.
32. In deciding what remedy to order if grounds for judicial review are made out, the court looks at the situation prevailing at the time of judgment. In my opinion, the extension of the required period proposed by the issuing authority consequent on the dismissal of the substantive appeal would reverse those consequences of the decision that render it irrational. Accordingly, even if section 34 posed no bar to the judicial review application, I would make no order on that application, but instead would dismiss the appeal and agree to the proposed extension of the required period. In proceeding in this way I would be able to uphold the validity of the decision whilst at the same time securing a just outcome.
33. It follows in my opinion that it is unnecessary to decide Mr Handa's judicial review application and I make no order thereon. Instead, I would dismiss the substantive appeal and order, under section 36(3)(b), that the required period be extended to 4th May 2005, or such other date as may be Mr Handa's earliest date of release from the domestic sentence he is currently serving. It is accordingly unnecessary to decide whether section 34 precludes an application for judicial review of a decision made under Part 1 of the 2003 Act. The resolution of that question must await other proceedings.
34. LORD JUSTICE TUCKEY: I agree. Now, Mr Hardy, you had a point on your minute of order and Field J has one too.
35. MR HARDY: My Lord, indeed. I will defer to my Lord Field J in that case.
36. MR JUSTICE FIELD: The provision refers to the date, and, speaking for myself, I thought that the agreement should focus on the date from which the ten-day required period runs.
37. MR HARDY: My Lord, I fear -- and I am grateful to Mr Watson, he and I have had a relatively frantic short adjournment discussing the appropriate draft -- that I have fallen into error. I am not inviting my Lords to extend the required period, because the required period runs from the point in time at which the order for extension is made. Thus, I have asked your learned Associate to retrieve her computer so that my Lord, Tuckey LJ's clerk can email to the Associate the draft which was originally sent down so that it can be amended so that this court orders an extension of the period.
38. MR JUSTICE FIELD: Well, I have a suggested draft, Mr Hardy, if that would be of any use. If I take it slowly, it could be noted. The final part of the proposed order would read:

"It is further ordered pursuant to section 36(3)(b) of the Extradition Act 2003 that the date from which the required period is to run shall be 25th April 2005 or such other date which is ten days prior to the appellant's earliest date of release..."

39. And then you track your wording until the end of the provision. It would of course be sensible to check that the 25th April is the date allowing for ten days. I think it is, but that obviously would need to be confirmed.
40. MR HARDY: I confess to no greater facility with mathematics than my Lord has in these matters.
41. MR JUSTICE FIELD: And I think the wording, "such other date which is ten days prior" captures what the section requires.
42. MR HARDY: My Lord, my learned friend Mr Watson has drawn to my attention that he is, in any event, in custody in pursuance to the order of the District Judge, and therefore he remains in extradition custody irrespective of any movement in his earliest date of release. I wonder in the circumstances whether it would be open to the parties to have liberty to apply should any development take place vis a vis his earliest date of release which might warrant an amendment to the order proposed.
43. LORD JUSTICE TUCKEY: I do not think there is any objection to that. But I mean, is my Lord's proposed wording --
44. MR HARDY: Considerably more appropriate than mine, my Lord, is the way I would describe it.
45. LORD JUSTICE TUCKEY: Well, it fixes on the date, which is what the section requires. Do you want any time to consider it? I do not know, Mr Watson, do you have a view about this?
46. MR WATSON: The only observation I have is that, given that Mr Handa is in extradition custody in any event, there is no danger of him being released before 4th May 2005 and therefore the date on this order, taking into account the ten-day period, could be definitive, ie it could read "shall be 25th April 2005" and it is unnecessary to say "or such other date", which in the circumstances might add to any confusion later. It might be more appropriate to leave it as a single date with liberty to apply.
47. LORD JUSTICE TUCKEY: It must be right that he is in custody for two reasons. One is because he is serving a sentence imposed by a domestic court, and the second is that he is subject to an extradition order.
48. MR WATSON: Yes, my Lord, and it is on that basis that I do not think the second heading is necessary.
49. LORD JUSTICE TUCKEY: We are not going to get into ten-day trouble, are we?
50. MR HARDY: My Lord, the concern that I have upon instant reflection of the proposal of Field LJ's is this. He is not going to finish serving his sentence, so far as is known until 4th May, and the order as proposed by my Lord would require his removal on that very day. The purpose, we would submit, of subsection 3(b) of section 36 allowing the ten days after the extended period must be to enable those matters which sometimes go wrong in administrative arrangements to be put right. On the face of it, the order that is proposed gives the High Instance Court of Paris in effect one day and one day only on which to effect the removal of Mr Handa.
51. Therefore, whilst I entirely concur with the proposed draft in terms of its language, I would submit that the correct date should remain as 4th May.
52. MR JUSTICE FIELD: Do you accept Mr Watson's submission that, standing his extradition custody, there is no need to provide for such other date?
53. MR HARDY: That no qualification is necessary, my Lord, I do accept that, yes.
54. LORD JUSTICE TUCKEY: It would be much simpler if the order said that and then you have the belt and braces of liberty to apply if something goes wrong. So the order will read -- let us all be clear about it shall we:

"Pursuant to section 36(3)(b) that the date from the which the required period is to run shall be 4th May 2005."

55. Full stop. With liberty to apply. Right? Can you make sure that the Associate in this drafting exercise between us has it absolutely spot on before you leave?
56. MR HARDY: Indeed so, my Lord.
57. LORD JUSTICE TUCKEY: Otherwise, we will make the order which you have proposed in the minute.
58. MR HARDY: May I with great respect raise one matter pertaining to my Lord's judgment. That is this. There is confusion in the papers about when the District Judge made the order that she did. In fact, her determinations were all on 15th October, including the order of extradition. The reference to the 25th October appears to be a typographical error on page 33, and it may have been brought about by the fact that the learned Senior District Judge, having given her judgment, then provided a written note of it.
59. MR JUSTICE FIELD: I see. I was looking at the chronology in Mr Watson's skeleton argument.
60. MR HARDY: I think that they also influenced Mr Watson's skeleton argument. Would your Lordships allow us just a moment to confer on this. (Pause). As ever, Mr Watson's chronology is right and I apologise for mentioning that. I had it noted myself as 15th October and the typographical error as such is mine.
61. LORD JUSTICE TUCKEY: So what my Lord has said stands?
62. MR HARDY: Indeed.
63. LORD JUSTICE TUCKEY: It is nice to know that judges are sometimes right.
64. MR HARDY: It is refreshing to know that counsel are sometimes wrong.
65. LORD JUSTICE TUCKEY: Well, one side is always wrong. May I keep, just in case we need it next week, this volume, which is from your side, Mr Watson?
66. MR WATSON: Certainly, my Lord.
67. LORD JUSTICE TUCKEY: You can have it back for Christmas if you want. I am sure you will look forward to receiving it. Thank you both very much.