QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE FIELD
|THE QUEEN ON THE APPLICATION OF ALI HANDA||(CLAIMANT)|
|BOW STREET MAGISTRATES' COURT||(DEFENDANT)|
|THE HIGH INSTANCE COURT OF PARIS||(INTERESTED PARTY)|
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MR J HARDY (instructed by CPS London) appeared on behalf of the DEFENDANT
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"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."
"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."
"A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part."
"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."
"(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."
"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."
"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..."
"Pursuant to section 36(3)(b) that the date from the which the required period is to run shall be 4th May 2005."