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
		11th November 2005

1. LORD JUSTICE MAURICE KAY: There is before the court an application for judicial review which arises in unusual circumstances. The claimant is the subject of a request for extradition by Australia. Australia is a category 2 territory pursuant to the section 69 of the Extradition Act 2003 and the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003. The extradition proceedings are therefore governed by Part 2 of the 2003 Act. It is no longer necessary to refer to the earliest stages of the proceedings. Suffice it to say that on 1st December 2004 a District Judge sent the case to the Secretary of State for a decision as to whether the claimant should be extradited pursuant to section 87(3) of the 2003 Act. On 27th January 2005 the Secretary of State made an order for extradition. Under the scheme of Part 2 the claimant had a right to appeal to the High Court. He duly exercised that right and on 23rd March 2005 the Divisional Court (comprising myself and Moses J as he then was) sent the case back to the District Judge pursuant to section 104(1B) of the 2003 Act with a direction that he decide again the relevant questions in relation to drugs and bail offences upon receipt of further evidence from the Australian Government. In due course the Australian Government furnished further evidence. However, on 14th June 2005 the District Judge again decided the question against the claimant. The question to which I refer is essentially a question in relation to Article 6 of the ECHR and is concerned with whether the Australian legislation which defines the offences is compliant with the standards of Article 6 in view of the reverse burden of proof that applies.
2. Having obtained a second adverse decision from the District Judge, the claimant now seeks a review of that decision. The difficulty he faces is that by section 104(7) it is provided:

"If the judge comes to the same decision as he did at the extradition hearing on the question that is . . . the subject of a direction under sub-section (1)(b) the appeal must be taken to have been dismissed by a decision of the High Court."

3. In other words, although the decision at the remitted hearing was a decision of a District Judge, it is deemed by section 104(7) to be a decision of the High Court. If that is correct, then there is an obvious difficulty about judicial review. The case for the claimant is that section 104(7) does not have the effect of barring an application for judicial review of the decision of the District Judge. However, if we decide that that is its effect, Mr Summers makes the alternative submission that this court should now certify points of law of general public importance in relation to both the underlying issue of Article 6 compatibility and the question of the jurisdiction of this court. In other words, his primary case is that this court retains jurisdiction to review the second decision of the District Judge but, if he is wrong about that, he invites this court to facilitate his passage to the House of Lords.
4. Against that background I now set out the principle provisions in relation to Part 2. The first task of a District Judge at an extradition hearing is to satisfy himself as to the requisite documents (section 78(2)). If they are not in order he must discharge the person before the court. If they are in order, he must satisfy himself that the person before the court is the person whose extradition is requested, that the offence specified in the request is an extradition offence and that copies of the requisite documents have been served on the person (section 78(4)). If satisfied about those matters, the District Judge then proceeds under section 79 which refers to "bars to extradition", namely the rule against double jeopardy, extraneous considerations as defined in section 81, the passage of time and hostage-taking considerations. In relation to certain countries, including Australia, the judge is not required to satisfy himself as to a prima facie case on the evidence. His next concern is whether the person's extradition would be compatible with his Convention rights. Section 87 provides:

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

(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."

5. Under Part 2 of the 2003 Act the Secretary of State then has a limited role. He must consider whether he is prohibited from ordering the person's extradition by reason of the death penalty in the requesting state, the requirement of speciality or by reason of an earlier extradition of the person to the United Kingdom from abroad. If he decides any of those matters in favour of the person, he must order discharge. On the other hand, if he decides those questions in the negative he must order extradition, save in circumstances which are not relevant to this case.
6. That deals with the primary decision-making framework. Appeals are then dealt with in sections 103-116. Section 103 provides:

"(1) If the judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited, the person may appeal to the High Court against the relevant decision . . .

(5) If an appeal is brought under this section before the Secretary of State has decided whether the person is to be extradited, the appeal must not be heard until after the Secretary of State has made his decision."

7. On an appeal under section 103, the High Court may:

"(a) allow the appeal;

(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;

(c) dismiss the appeal." (section 104(1)).

8. If the High Court remits the matter to the District Judge pursuant to section 104(1)(b) then:

"(6) If the judge comes to a different decision on any question that is subject of a direction under sub-section (1)(b) he must order the person's discharge.

(7) If the judge comes to the same decision as he did at the extradition hearing on the question that is (or all the questions that are) the subject of a direction under sub-section (1)(b) the appeal must be taken to have been dismissed by decision of the High Court."

9. If the Secretary of State orders a person's extradition, the person may appeal to the High Court under section 108 and the High Court may either allow or dismiss the appeal provided that certain conditions are satisfied.
10. An appeal lies to the House of Lords from a decision of the High Court on an appeal under, inter alia, section 103, but only with the leave of the High Court or the House of Lords which leave must not be granted unless (a) the High Court has certified that there is a point of law of general public importance involved in the decision and (b) it appears to the court granting leave that the point is one which ought to be considered by the House of Lords (section 114(4)).
11. Finally, section 116 provides:

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

12. There is no doubt that the purpose of the 2003 Act was to provide streamlined procedures and to avoid successive and repeated applications which, under the 1989 Act, often had the effect of unduly prolonging extradition proceedings. At the same time, it was also intended that the subject of an extradition request should have resort to fair procedures in which to challenge adverse decisions. Although we have been referred to passages in Hansard and prior documents which preceded this legislation, the purpose and intention to which I have referred are apparent from the face of the Act.
13. Mr Hardy (on behalf of Australia) and Mr Perry (on behalf of the Secretary of State who has been permitted to intervene) submit that the language of section 104(7) is clear and unambiguous. Where this court has remitted a question to the District Judge under section 104(1)(b) but the District Judge has come to the same conclusion as he did at the original extradition hearing, "the appeal must be taken to have been dismissed by a decision of the High Court". In these circumstances, judicial review of the second decision of the District Judge is simply unavailable. This is made abundantly clear by section 116 which limits challenges to decisions of District Judges to the appeal procedure described by Part 2. Accordingly, a deemed decision of the High Court is not amenable to judicial review by the High Court nor to any route of appeal save that, in an appropriate case, the deemed decision may result in an appeal to the House of Lords under section 114 subject to certification and leave.
14. Mr Summers takes issue with that stance and starts from the position that if a second decision of a District Judge is demonstrably wrong in law but does not raise an issue of general importance, it would be highly unusual if there were no process of appeal or review in relation to it. He therefore makes strenuous submissions in support of a right to apply for judicial review of the second decision of the District Judge.
15. Mr Summers seeks to characterise section 104(7) as an ouster provision. As such, he submits that it attracts the approach to construction referred to by Viscount Simonds in Pyx Granite Company Ltd v Ministry of Housing and Local Government [1960] AC 260 at page 286:

" . . . it is a principle not by any means to be whittled down that the subject's recourse to Her Majesty's courts for the determination of his rights is not to be excluded except by clear words. That is . . . a 'fundamental rule' from which I would not for my part sanction any departure . . . the inalienable remedy of Her Majesty's subjects to seek redress in Her courts."

16. Numerous examples of this approach are to be found in the text books. See for example Bennion, Statutory Interpretation, 4th edition, pages 83 to 85. However, in my judgment section 104(7) is not correctly characterised as an ouster provision. The structure of Part 2 of the 2003 Act provides expressly for access to the courts in the form of the District Judge with a right of appeal to the High Court. In most cases, the High Court will dismiss or allow the appeal. The fact that it provides for a different procedural route where the High Court considers it inappropriate finally to dispose of the appeal itself does not mean that the procedure of remitting the case to the District Judge is an ouster. What the Act does is not to oust the jurisdiction of the court but to restrict the number of appeals. I do not consider that that attracts any special rule of construction.
17. The real difficulty which Mr Summers faces is the clear and unambiguous language in which section 104(7) is expressed and the lack of any sensible meaning that can be given to the sub-section other than the one contended for by Mr Hardy and Mr Perry. The only alternative meaning which Mr Summers can offer is that section 104(7) is simply a procedural provision to deal with the extant appeal which gave rise to the remittal to the District Judge under section 104(1)(b). His submission is that as the appeal was neither allowed under section 104(1)(a) nor dismissed under section 104(1)(c) it was necessary to enact section 104(7) so as to provide for a deemed dismissal. In my judgment this is not correct. Section 104(1) permits the High Court to dispose of the appeal in any one of three ways. It does not require that, if the High Court resorts to section 104(1)(b), it is still necessary for there to be a disposal by dismissal. In this regard, Mr Perry emphasises section 104(6). If, on the remittal, the District Judge finds in favour of the person sought to be extradited, it is the District Judge who gives finality to the appeal by ordering a discharge. It is not necessary for the appeal to be deemed to have been allowed by the High Court. This wholly undermines Mr Summers' alternative analysis and construction of section 104(7). If it does not have the alternative meaning and purpose for which he contends, and I am sure that it does not, it can have no sensible meaning other than the one with which he seeks to take issue.
18. In support of his construction, Mr Summers has invited us to consider Hansard. In my judgment, we ought not to seek guidance from Hansard because of the clarity and lack of ambiguity which I have described. However, I record that the passage upon which Mr Summers seeks to place reliance does not seem to me to be as helpful to his submission as he suggests. It is to be found in a speech of Baroness Scotland of Asthal, Minister of State at the Home Office, who was resisting an amendment which would have reinserted the right to apply for habeas corpus which was said to have been removed in relation to Part 1 of the Bill. The passage is to be found in Hansard for 26th June 2003, Grand Committee, columns gc162-164. Whilst the Minister was anxious to emphasise that the Bill did not provide access to the High Court and whilst she used the words "the fugitive can bring his case back to the High Court and seek to have the judgment of the lower court overturned", I do not consider that she was addressing the position which obtains under section 104 of Part 2.
19. I entirely accept that a statutory structure in which, in one limited situation, a decision of a District Judge will usually be final, is novel, particularly in the context of Convention rights. However, the context is one in which there has already been access to the High Court and the sole remaining task of the District Judge is to reconsider a question in the light of the judgment of the High Court. Where the High Court itself has all the necessary material, it is more likely to answer the question itself, for example by reference to section 104(4)(a). That would have been the case here if the Divisional Court had had before it the expert evidence on Australian law. However, in the absence of that evidence, it exercised its power to remit. What has to be borne in mind is that the purpose of the 2003 Act was to reduce the amount of to-ing and fro-ing with multiple and successive appeals.
20. As Mr Perry points out, it is not unusual for a first instance decision on material not to attract a right of appeal or further appeal. For example, the Court of Appeal Criminal Division may receive fresh evidence but be unpersuaded by it. In those circumstances, the appellant has no further redress. Indeed, the same can be said in the present context if the High Court deals with fresh evidence under section 104(4)(a) but is unpersuaded by it. There is no general principle that such a determination must attract a right of appeal or further appeal. Mr Summers seeks to answer this by referring to the inferior status of the District Judge. However, I do not consider that he can elevate that to a matter of principle.
21. Finally, Mr Summers refers to the relationship between section 87(3) and section 104(7). By section 87(3), if the District Judge concludes that the person's extradition would be compatible with his Convention rights he "must send the case to the Secretary of State for his decision whether the person is to be extradited". It is suggested that this creates a tension with section 104(7). In my judgment, it does not. Where section 104(7) is in play, the District Judge has already sent the case to the Secretary of State and the Secretary of State's functions under section 93 are extremely limited. They do not extend to a consideration of the Human Rights implications. To the extent that they embrace consideration of the existence of the death penalty in the requesting state that is a specific matter provided for by sections 93 and 94 without express reference to the Human Rights Act and the ECHR. There would be no purpose at all in the District Judge sending the present case to the Secretary of State again under section 87(3) after the redetermination upon the remittal. That is not what the Act requires. Once the Secretary of State has ordered the extradition under section 93(4), he has no further power to reconsider the matter on general Human Rights grounds following the second decision of the District Judge.
22. I therefore conclude that in the circumstances that have arisen the decision of the District Judge is deemed to be a decision of the High Court pursuant to section 104(7). It is not amenable to further appeal or review in this court unless it is suitable for consideration by the House of Lords.
23. In anticipation that this might be the outcome of the present case, Mr Summers has made a contingent application inviting certification of points of law of general importance as a prelude to an application for leave to appeal to the House of Lords. He has submitted two draft questions relating to the underlying dispute, namely the inter-relationship of the reverse burden of proof and Article 6 of the ECHR. He has also indicated that, upon consideration of our judgments, he may wish to formulate a third question dealing with the very issue that our judgments will have sought to resolve. Mr Hardy does not take issue with the certification of any of the proposed questions. Mr Perry is neutral. I consider that there are points of law of general public importance involved in the decision of the District Judge and also in the jurisdictional point with which this judgment has been concerned. Subject to the approval of the drafting of a further question, I would certify three points of law of general public importance but I would not grant leave, preferring the question of leave to be left to their Lordships.
24. MR JUSTICE PENRY-DAVEY: I agree.
25. MR SUMMERS: My Lord, I am grateful. My Lord, in anticipation of your Lordship's judgment we have attempted to formulate a suitable third question. Between us we have come up with two different drafts and I think it is fair to say that either of us would be happy with the other's. May I please read one of the drafts. It says:

"In a case following an order of the High Court under section 104(1)(b) of the Extradition Act 2003, whether section 104(7) operates so as to prohibit any appeal under section 103(1) against the decision of the District Judge following remittal."

My Lord, if your Lordship feels that that is clumsy or inappropriate, I know Mr Perry has a different formulation that you may wish to consider.

26. LORD JUSTICE MAURICE KAY: Ought it to refer to judicial review as well as appeal?
27. MR SUMMERS: My Lord, for my part, no. There was never any dispute amongst the parties that this application for judicial review was one that this court could entertain. I do appreciate that your Lordships have dealt with the question of whether the District Judge's second question could itself have been the subject of a judicial review. That is not something I argue before your Lordship. It is not something I would wish to argue before their Lordships' House.
28. LORD JUSTICE MAURICE KAY: Mr Perry, what is your text?
29. MR PERRY: My Lord, Mr Summers actually has my text. I gave it to him. It is not so far different. It seems to me that that encapsulates in that question the essential point.
30. LORD JUSTICE MAURICE KAY: Mr Hardy, do you wish to offer an opinion? Do you wish to arbitrate between the other two?
31. MR HARDY: Not perhaps in the way your Lordship may think. I do not seek to dissuade your Lordship from the view you have already expressed. Our primary position was that the point of law is not sufficiently general to attract public importance, if I may put it that way.
32. LORD JUSTICE MAURICE KAY: The jurisdictional point?
33. MR HARDY: Indeed, yes. For the reasons canvassed in argument yesterday the likelihood of this scenario arising on a regular basis is remote indeed. That said, my Lord, we do not seek to dissuade the court from the view the court has taken. We are content with either draft.
34. LORD JUSTICE MAURICE KAY: We have only heard one. Mr Perry, are you content with the question Mr Summers read out?
35. MR PERRY: Yes.
36. MR SUMMERS: May I hand that up, please?
37. LORD JUSTICE MAURICE KAY: No, better than that, you can keep it and would you draft an order that incorporates the three questions?
38. MR SUMMERS: My Lord, yes. The only other matter that I would wish to raise is the issue of what was once called Legal Aid assessment or Legal Aid taxation. I think it is now Legal Services funding assessment or something of that nature.
39. LORD JUSTICE MAURICE KAY: Whatever it is, you would like it.
40. MR SUMMERS: Yes, my Lord.
41. LORD JUSTICE MAURICE KAY: No problem.
42. MR SUMMERS: My Lord, I do not know whether your Lordships are intending to hand down a copy of your Lordships' judgment today.
43. LORD JUSTICE MAURICE KAY: I dictated it last night. It was typed while we were sitting this morning. Neither of us had read it until five minutes before we came into court. Although my clerk is a very good typist, I would like to brush it up a little bit. There will be a transcript in due course. I cannot say it is a case in which the transcript will be back within a couple of days because I am not here next week but I shall be here a week on Monday. If I direct expedition of the production of the transcript and it is ready for me a week on Monday it will be available a week on Tuesday. Is that enough?
44. MR SUMMERS: My Lord, yes. I, of course, have 14 days in which to petition their Lordships. That makes a slightly tight timescale for receipt of the transcript. If that is the earliest, that is the earliest.
45. LORD JUSTICE MAURICE KAY: I am afraid it is. It is an unapproved document, in any event, at the moment. One often finds when one is reading these things that quite apart from the typos one might want to put the odd sentence in a slightly different way.
46. MR SUMMERS: My Lord, yes.
47. LORD JUSTICE MAURICE KAY: Thank you all very much.