Case No: CO/7767/2005
Neutral Citation Number: [2005] EWHC Admin 2405
IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH DIVISION (DIVISIONAL COURT)
In the matter of an application for a writ of habeas corpus ad subjiciendum
And in the matter of Extradition Act 2003
Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 2 November 2005
Before :

LORD JUSTICE SCOTT BAKER
and
MRS JUSTICE RAFFERTY
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Between :

	NIKONOVS	Claimant	
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	THE GOVERNER OF HM PRISON BRIXTON
AND
THE REPUBLIC OF LATVIA 	Defendant	

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(Transcript of the Handed Down Judgment of
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Mr Joel Smith (instructed by Tuckers & Co) for the Claimant 
Mr Peter Caldwell (instructed by the Crown Prosecution Service) for the Interested Party

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Judgment

Lord Justice Scott Baker:

1.	The claimant, Vladimirs Nikonovs, by his claim sought a writ of habeas corpus ad subjiciendum. At the conclusion of the hearing on 6 October 2005 we granted his application, indicating we would give our reasons later. This we now do.
2.	The circumstances are as follows. Mr Nikonovs was the subject of a European Arrest Warrant issued by the Ogres District Court of the Republic of Latvia. Latvia has been designated as a category 1 territory for the purposes of Part I of the Extradition Act 2003. (“the 2003 Act”). The interested party, who resisted this application, is the Judicial Authority of the Republic of Latvia.
3.	The extradition of Mr Nikonovs was requested by the government of Latvia as he is accused of criminal conduct in Latvia described as theft, robbery and illegal acts with financial instruments which is said to have occurred between September 2003 and February 2004. On 30 September 2004 a warrant was issued for Mr Nikonovs’ arrest by the Ogres District Court. On 12 August 2005, the Ogres District Court issued a European Arrest Warrant and the Government of Latvia applied to the United Kingdom authorities for Mr Nikonovs’ arrest. At 11:55 on 16 September 2005, which was a Friday, he was arrested at his home in Boston in Lincolnshire on the authority of a warrant issued under Part I of the 2003 Act. At 20:25 on the same day he was further arrested at Boston police station under the same warrant.
4.	Section 4(3) of the 2003 Act requires that a person arrested under a Part I warrant “must be brought as soon as practicable before the appropriate judge.” At 5.45 on the morning of Saturday 17 September GSL Court Services, who were responsible for conveying Mr Nikonovs to court, telephoned the Boston Custody Suite to say that Mr Nikonovs would not be collected until Monday as Bow Street Magistrates Court was not open over the weekend. In fact this was an error, the court was open on Saturday. In the event Mr Nikonovs was not brought before a judge at Bow Street until 14:00 hours on Monday 19 September, which was nearly 66 hours after his arrest at Boston police station and some 74 hours after his arrest at his home.
5.	When Mr Nikonovs was not produced at Bow Street on 17 September District Judge Evans, who was sitting that day, expressed considerable displeasure. When Mr Nikonovs was eventually brought before the court at 14:00 hours on 19 September an application was made for his discharge under section 4(5) of the 2003 Act which provides:
“If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge.”
6.	District Judge Wickham refused the application and is recorded as observing that Boston was some distance from London and that Mr Nikonovs had been arrested on the evening of 16 September. He had of course been arrested somewhat earlier on that day at his home.
7.	It is Mr Nikonovs case that there was a breach of section 4(3) because he was not brought before the judge at Bow Street as soon as practicable and therefore it was mandatory to order his discharge under section 4(5). Accordingly, he had been held unlawfully ever since.
8.	There are essentially two issues for the court; first whether the relief of habeas corpus is available and second whether Mr Nikonovs was brought before an appropriate judge as soon as practicable.
Is habeas corpus available?
9.	The present case is concerned with Part I of the 2003 Act which is headed “Extradition to Category 1 Territories.” Part I comprises sections 1 – 68 of the Act.
10.	The starting point of the argument of Mr Caldwell, who has appeared for the Latvian government, is this. Section 34, which is headed Appeals general, provides as follows:
“A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part.”
11.	The provisions for an appeal in Part I are to be found in sections 26 and 28. It is common ground that an appeal made under section 26 can only relate to a decision made at the extradition hearing. Section 68 defines an extradition hearing as:
“The hearing at which the appropriate judge is to decide whether a person in respect of whom a Part I warrant was issued is to be extradited to the category I territory in which it was issued.”
12.	The decision of the district judge was not made at the extradition hearing and cannot be appealed under section 26. Section 28 gives a power of appeal where a judge orders a person’s discharge at the extradition hearing. That section too cannot apply for the same reason. Further, Mr Nikonovs was not discharged.
13.	Mr Caldwell submits there are good reasons why a decision made under section 4(5), namely whether section 4(3) has been complied with, should not be amenable to appeal. The decision is one of fact and judgment; once made it should not be open to reconsideration. The 2003 Act was intended to streamline and speed up the extradition process, and to permit appeals on issues of this kind will have the opposite effect. Whilst there is force in this argument up to a point, it does, as Mr Caldwell readily accepted, leave a very unsatisfactory state of affairs where someone has plainly and on any view not been brought before the court as soon as practicable. A claimant might have been held for a matter of months or even years, rather than days, before he was brought before a judge. What then if the judge refuses to order his discharge?
14.	For the claimant, Mr Joel Smith’s submission is that the right to apply for habeas corpus is unaffected by section 34 of the 2003 Act. Parliament intended all decisions under Part I be appealable  or reviewable; section 34 is not an ouster clause; it merely relates to appeals under section 26 and section 28 which are concerned with the extradition hearing itself. Alternatively, if the court is against him on these submissions he argues it is untenable to construe section 34 as an ouster clause on the authorities of Pyx Granite Co Limited v  Ministry  of Housing and Local Government [1960] AC 260 and Anisminic v Foreign Compensation Commission [1969] 2 AC 147. If the section can be construed as a non-ouster clause it should be, because otherwise a whole variety of decisions under sections 4 to 8 would be both unappealable and unreviewable. Finally, Mr Smith submits that if his first three submissions fail this case involves a jurisdiction review in the same way as Pinto v the Governor of HM Prison Brixton and the First Section of the Criminal Court in Lisbon [2004] EWHC 2986 Admin. 
15.	On one view, read literally, the meaning of section 34 is clear enough. Decisions under Part I made by a judge cannot be questioned except on an appeal. As there is no provision for any appeal against a judge’s decision under section 4(5), whether it is right or wrong, the judge’s decision must stand. But, submits Mr Smith, section 34 is only intended to relate to appeals that are provided for in Part I i.e. sections 26 and 28 decisions made at the extradition hearing. In other words section 34 only bites on circumstances where a statutory right of appeal is provided for. Habeas corpus and indeed judicial review (for present purposes there is no relevant distinction) remain available in the ordinary way to challenge all other decisions under Part I. 
16.	Mr Caldwell did not persist very strongly with his submissions that the court has no jurisdiction to grant habeas corpus. He accepts, following the rule in Pepper v Hart [1993] AC 593, that there is sufficient ambiguity as to the meaning of section 34 to justify the introduction of Parliamentary material to assist in its true construction. 
17.	He agreed that the court should look at Hansard’s record of the House of Lords debate on the Extradition Bill. The following passages seem to me to be a compelling indication of the intention of the legislature.
(1). On 26 June 2003 Baroness Anelay of St Johns, before the Grand Committee, quoting the minister in the House of Commons:
“The common law right of habeas corpus goes back many centuries and there is nothing in the Bill that affects it………. It is always open to a fugitive to raise habeas corpus issues. At every stage, the district judge is required to consider whether remanding in custody or granting bail is appropriate and to ensure that custody issues are properly taken into account.”
(2). On the same occasion Baroness Scotland of Asthal said:
“Let me make clear from the start that there is certainly no attempt to remove habeas corpus by the measures in the Bill. The provisions seek to abolish the statutory habeas corpus which was first introduced in 1967 and then consolidated through the Extradition Act 1989, and replace it with a different appeal system. Habeas corpus, as we know and love it, which was given birth to by Magna Carta remains.
During the Bill’s passage in the other place, various assertions were made that we might be abolishing habeas corpus. I want to make it absolutely clear that any such concerns are quite wrong. The common law right of habeas corpus remains; anyone who is subject to extradition can bring a common law habeas corpus claim. Whether it will succeed is obviously an entirely a different matter.”
A little later she said:
“I hope the Members of the Committee will accept that the procedures which the Bill puts in place comply fully with the principles of habeas corpus. And although, as I have said, there would be nothing to prevent a person bringing a habeas corpus claim, it is hard to see how it could possibly succeed, the principles having already been satisfied by the scheme created in the statute. For that reason I cannot see why we need to include a special provision requiring the High Court to consider habeas corpus factors.”
Given these assurances Baroness Anelay withdrew her amendment to provide for the express retention of habeas corpus in the Bill.
18.	Habeas corpus is directed to the lawfulness of a person’s detention. Section 34 is silent as to the right to challenge by habeas corpus the lawfulness of continuing detention resulting from a erroneous decision of a judge under subsection 4(5) not to discharge the claimant. True by subsection 4(6) a person is to be treated as continuing in legal custody until he is discharged under subsection (5) but I would not regard lawful custody as continuing after a decision is taken not to discharge him when he should have been discharged. Absent a right of appeal, did Parliament really intend habeas corpus should not be available? Did Parliament really intend that a person who ought to have been discharged because he should have been brought before the appropriate judge sooner, but nevertheless remains in custody, should have no remedy? In my view the passages from Hansard that I have cited make the answer clear beyond a peradventure. It would in my judgment require the strongest words in a provision such as section 34 to remove the ancient remedy of habeas corpus.
19.	In Linnett v Coles [1987] QB 555,561 Lawton L.J said that a writ of habeas corpus was probably the most cherished sacred cow in the British Constitution; but the law had never allowed it to graze it in all legal pastures. However, the one legal pasture in which it has grazed freely for many years is extradition, as is apparent from the House of Lords debate to which I have referred. For my part I am unpersuaded the 2003 Act has condemned this pasture to setaside. In my judgment the remedy is available in this case and the court has jurisdiction to entertain the claimant’s application.
20.	It is therefore unnecessary to deal with Mr Smith’s alternative submissions. I would, However, say a word about Pinto’s case. Mr Pinto was arrested under the authority of a European Arrest Warrant. He challenged the validity of the warrant and therefore all steps taken under the 2003 Act that were initiated by it. The Divisional Court held that the warrant was invalid and granted habeas corpus. Counsel for the judicial authority conceded that such relief should be granted in that case. But the obvious distinction between Mr Pinto’s case and the present is that Mr Pinto’s challenge was not to any decision of the judge but to the judge’s jurisdiction to do anything under the invalid warrant. I do not think Mr Pinto’s case is comparable to the present case at all.
Was he brought before a judge as soon as practicable? 
21.	Whether or not the claimant was brought before the judge at Bow Street as soon as practicable is a question of fact. Two points should be noted. First the criterion is  practicable rather than the more elastic reasonably practicable. Second, the draughtsmen has chosen the practicability rather than the more precise criterion of a specified period as, for example, 48 hours in section 6(3). There will no doubt be cases at the margins where views could reasonably differ whether the applicant was indeed brought before the appropriate judge as soon as practicable. But that is not this case. The only reason why Mr Nikonovs was not brought before the court on Saturday 17 March was because GSL Court Services were under the mistaken impression that the Bow Street court was closed on that day. No one suggests it was not practicable to bring him to London that day. He could have been brought to Bow Street and the district judge was very unhappy that he was not. He was not, in the event, brought before District Judge Wickham at Bow Street until 14:00 hours on the Monday afternoon. In these circumstances I have no hesitation in concluding that the applicant was not brought before an appropriate judge as soon as practicable.
22.	District Judge Wickham should have directed Mr Nikonovs’ release under section 4(5) because he was not brought before an appropriate judge as soon as practicable and was therefore no longer being lawfully held. For these reasons, therefore, it was in my judgment appropriate to grant a writ of habeas corpus. In my view, habeas corpus only lies in cases such as the present if the decision of the district judge is Wednesbury unreasonable or irrational i.e. such that no reasonable judge could have reached that conclusion. This, however, is not one of those cases at the margins where different conclusions could reasonably be reached on practicability. It plainly would have been practicable to bring Mr Nikonovs to Bow Street on the Saturday. The only reason GLS Court Services did not do so is because they were under the mistaken impression the court was shut.
23.	These are my reasons for granting Mr Nikonovs’ application. 
Mrs Justice Raffety:
24.	I agree.