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
		10th May 2006

1. MR JUSTICE JACK: The underlying issue between Mr Orhan Atilla and the Home Department is whether Mr Atilla should be expedited to Turkey under the provisions of the Extradition Act 1989. That is the appropriate Act rather than the Extradition Act 2003 because the extradition proceedings are of long standing and, under the transitional provisions of the 2003 Act, the 1989 Act continues to apply. Mr Atilla was until 1994 the manager of a bank in Bursa. He is accused of having embezzled large sums and of threatening to shoot a bank inspector. He arrived in the United Kingdom from Turkey on 19th October 1994 and was first arrested on a provisional warrant on 26th June 1996.
2. The present position is that, in a letter dated 23rd January 2006, the Secretary of State declined to reverse his decision made in October 2004 to order Mr Atilla to be returned to Turkey pursuant to section 12 of the Act. In these proceedings for judicial review Mr Atilla seeks to have the decision reached in that letter quashed.
3. The issue addressed in that letter is whether prosecution for the offences of which Mr Atilla stands accused has become barred under Turkish law by the passage of time. The letter examines the material available to the Secretary of State on that and concludes that prosecution will not be barred until 26th June 2006, so Mr Atilla should be returned to Turkey. It is that conclusion as to the barring of criminal proceedings which is the subject of attack.
4. It is common ground between the parties that by section 4(1) of the Act and paragraph 2(1) of the European Convention on Extradition Order 2001, SI 2001 No 962, the restrictions set out in the Convention apply, including that in Article 10. The Convention is reproduced in Schedule 1 of the Order but there is no provision in the Order which states that the Convention shall be given legal effect or which even refers to the schedule, other than in its preamble. It appears that the reference in section 4 of the Act to "the limitations, restrictions, exceptions and qualifications, if any, contained in the Order" is to be read as incorporating such limitations, restrictions et cetera as are contained in the Convention because the Convention is set out as Schedule 1 to the Order. Article 10 of the Convention provides:

"Expedition shall not be granted when the person claimed has, according to the law of either the requesting or requested party, become immune by reason of lapse of time from prosecution or punishment."

5. The material before the Secretary of State came from three sources: the Turkish authorities; a Turkish lawyer, Mr Mehmet Erdogan, instructed by the Secretary of State to advise him; and two Turkish lawyers, Mr Yahya Simsek and Mr Serafettin Yavuz, instructed on behalf of Mr Atilla. I will attempt a summary.
6. In the extradition request dated 1st July 1996 Judge Mesuit Baykara, Chairman of the Second High Criminal Court in Bursa stated that the proceedings would be prescribed on 7th October 2004 in accordance with articles 102 and 104 of the Turkish Penal Code. That is ten years after the date of the alleged threats to shoot the bank inspector. It appeared that the period provided by section 102 was ten years for embezzlement because the offence of embezzlement carries heavy imprisonment of five to ten years.
7. It is not in dispute that article 104 provides for the interruption of the running of time by various events namely:

"... conviction of the accused, issuance of warrants of seizure or arrest, issuance of a subpoena, upon the questioning of the accused by judicial review authorities, rendition of a decision to initiate the final investigation or the submittal of an indictment by the public prosecutor to court".

Time then begins to run again but with the limitation that the total period may not exceed the period prescribed by article 102 by more than one half. That would give a total period here of 15 years if there was an appropriate event. The extradition request of 1st July 1996 did not avert to any effect which article 104 might have.

8. Mr Atilla was committed under section 9 of the Act on 22nd November 2001, and brought proceedings for habeas corpus, which were dismissed on 26th June 2002. The Secretary of State then made further enquiries of the Turkish authorities. By letter of 27th April 2004 from the Turkish Ministry of Justice he was informed that the period for embezzlement was ten years and that this had begun when the indictment was filed on 17th January 1995. That starting point appears to have been taken by reason of the operation of article 104. He was also informed that the period for the offence of threatening to shoot the bank inspector was five years, which had passed. The Secretary of State therefore determined that the period for embezzlement here expired on 17th January 2005 and that was the conclusion set out in his letter of 29th October 2004, which stated that an order had been signed for Mr Atilla's return to Turkey.
9. That decision resulted in an application for judicial review (which did not ultimately proceed). In consequence of the application the Secretary of State asked for an assurance from Turkey that the period for embezzlement expired on 17th January 2005 and not on 7th October 2004 as had first been stated by the Bursa court. That assurance was given in a letter from the Turkish Embassy dated 3rd December 2004. But a further letter from the Embassy dated 10th December 2004 stated that the period for the embezzlement charges starting on 17th January 1995 would not expire until 17th January 2010. It confirmed that the period for the threat was five years. Further clarification was sought. On 15th December the Turkish Embassy responded that the court at Bursa had concluded that the embezzlement carried a maximum sentence of 24 years, with a primary prescription period of 15 years, which had been interrupted by the indictment on 17th January 1995.
10. On 11th March 2005 a report by Mr Simsek and Mr Yavuz was served on behalf of Mr Atilla. This stated that, as the punishment for embezzlement was imprisonment for six to 12 years, the prescription period was ten years. It had been interrupted by the issue of a warrant in absentia by the Bursa Magistrates Court and again, on 17th January 1995, by the presentation of the indictment. So it had expired on 17th January 2005.
11. In the light of these conflicting views the Secretary of State then sought the advice of Mr Erdogan, which he provided on 7th March 2005. Mr Erdogan concluded that the maximum punishment for simple embezzlement was six to 12 years as provided by article 202 but was 16 years for the aggravated offence of embezzlement from a state bank. Under article 102 the prescriptive period was therefore ten years. Mr Erdogan stated that the Bursa court had misapplied article 13, on which the court had relied in stating in 2004 that the maximum imprisonment was 24 years and so the period was 15 years. He advised that the period had been recommenced by the Turkish warrant of arrest on 25th October 1994, by the filing of the indictment on 17th January 1995, and by Mr Atilla's provisional arrest in the United Kingdom on 26th June 1996. So the ten years ran from the last date. Mr Erdogan made it clear that whether the arrest of Mr Atilla in this country restarted the period: was not free from difficulty. He based his view that it did on a decision of the General Council of the Criminal Bench of the Supreme Court of Appeal delivered on 28th March 2000, which had considered the effect of an arrest in France.
12. In a further opinion faxed to the department on 13th April 1995 Mr Simsek and Mr Yavuz stated that the arrest in the United Kingdom did not restart the period; the events referred to in article 104 must occur in Turkey. They were of the view that the decision of 28th March 2000 did not bind the Bursa court and was in any event distinguishable. They stated that there were earlier contrary decisions and that distinguished legal professors took the other view.
13. The difference between the Turkish lawyers instructed on behalf of the parties thus came to this one point: did Mr Atilla's arrest in England restart the period in which he might be prosecuted? If it did not, in the words of article 10 of the Convention. He was immune from prosecution by reason of lapse of time.
14. In May 2005 the department sent Mr Erdogan's opinion together with the further opinion of Mr Simsek and Mr Yavuz to the Turkish authorities. A reply was received from the Turkish Ministry of Justice dated 9th June 2005. The letter dealt solely with the issue of what was the maximum sentence on the charges of embezzlement faced by Mr Atilla. It stated that the minimum sentence was 12 years for "specialised embezzlement". Mr Erdogan had referred to aggravated embezzlement with a maximum of 16 years. The letter did not comment on that. Nor did it comment on the issue of restarting the prescription period by Mr Atilla's arrest in England. So the letter did not advance matters. The Turkish authorities have never sought to rely on Mr Atilla's arrest in the United Kingdom nor had they expressed any view either way on that point.
15. The Secretary of State's letter of 23rd January 2006 set out this history and the views expressed. It stated that he was obliged to reach a decision whether article 10 barred extradition, which he must do by forming his reasonable and proportionate view on all the material before him. It accepted that the prescription period was ten years, that being undisputed between the expert advising him and those advising the claimant. The letter also accepted that article 13(2), relied on by the Bursa court, did not apply. It identified the issue as the possible restarting of the period by Mr Atilla's provisional arrest in the United Kingdom. On that issue the letter stated:

"Article 104 of the Turkish Code provides (as translated) that the new period begins to run from 'conviction of the accused, issuance of warrants of seizure or arrest, issuance of a subpoena, upon the questioning of the accused by judicial authorities, rendition of a decision to initiate the final investigation, or the submittal of an indictment by the public prosecutor to the court'. As to that, the Secretary of State notes that Mr Erdogan points to a case of the General Council of the Criminal bench of the Turkish Court of Appeal (Decision 4-50/52 date 28th March 2000), which concluded that a foreign arrest did not serve to 're-set' the limitation period. Although Messrs Simsek and Yavuz dispute the effect of the judgment and whether it is binding in Turkish law on courts of first instance, stating that the case 'had to be dealt with specially', it is notable that they do not assert that there exists any more recent Supreme Court of Appeal decisions in which a different approach has been taken. Whether or not there have been other earlier cases in which a different position has been adopted (Messrs Simsek and Yavuz cite case E 27/175 dated 11/5/81 and number 1475/1883 of 13/395), the Secretary of State submits that it is open to him on the information summarised in this letter to believe that the position advised and adopted by Mr Erdogan is tenable, reasonable and is supported by Turkish case law. For these reasons, the Secretary prefers and accepts Mr Erdogan's opinion that the limitation period is 10 years from 26th June 1996, ie 26th June 2006. This period is also within the maximum period of 15 years permitted by article 104 of the Turkish Penal Code.

"In so concluding, the Secretary of State notes that the contrary conclusion would both encourage defendants to flee the Turkish jurisdiction in the belief that the statue of limitations continued to run, and would place unrealistic pressure on those requested states in which they were found, if that limitation period continued to run during the currency of the extradition process. Moreover, it seems to the Secretary of State that Mr Erdogan's opinion that the period was re-set on the date of provisional arrest, but not on the date of the later full order arrest is one that accords with fairness and common sense."

16. It was submitted by Mr John Hardy on behalf of Mr Atilla that the Secretary of State was bound to comply with Article 10 of the Convention and that he must satisfy himself so that he was sure that the return of Mr Atilla to Turkey would be lawful. He submitted that in the circumstances that there were before the Secretary of State conflicting opinions (including what he called "the alarmingly inaccurate view of Turkish authorities") the Secretary of State had no firm basis on which to make any decision. So, Mr Hardy submitted, he could not be sure that the return of Mr Atilla would not contravene Article 10 and therefore he should not order Mr Atilla's return.
17. Mr Hardy submitted that the Secretary of State should have applied the criminal standard of proof because of the nature of the decision to be made and the combined effect of section 12 and Article 10. As to the nature of the decision, he argued that it involved Mr Atilla's human rights under Articles 5 (the right to liberty and security) and 8 (the right to respect for private and family life) of the European Convention on Human Rights. Article 10 of the Extradition Convention, he pointed out, is mandatory in it terms: "Extradition shall not be granted when...", and section 12 provides that "the Secretary of State may order him to be returned unless his return is prohibited by this Act..." As an alternative to his submission that the criminal standard applied, Mr Hardy submitted that, in the same way as in civil cases a higher standard is required in situations of gravity such as fraud, a higher standard of proof should be applied in the situation here.
18. It was submitted on behalf of the Secretary of State by Mr Hugo Keith that it was the task of the Secretary of State to form a reasonable and proportionate view on the material which was before him, which he had done. Mr Keith submitted that the Secretary of State had reached a rational and considered opinion with which this court should not interfere. He submitted that if the matter was to be approached in terms of standard of proof, the ordinary civil standard should apply. He did not accept that Mr Atilla's human rights were engaged. In my view, it is difficult to see why, if Mr Atilla is taken into custody, his right under Article 5 not to be deprived of his liberty save in accordance with a procedure prescribed by law should not be engaged.
19. Reference was made by Mr Keith to the principle that, where a dispute arises before a English court as to foreign law, the issue is treated as one of fact to be determined by the court applying the civil standard of proof to the evidence before it and, in the absence of satisfactory evidence as to foreign law, it will be assumed that the foreign law is the same as English law: see, among other authorities, Bumper Corporation V Commissioner of Police [1991] 1 WLR 1362. It is accepted between the parties here that the issue as to the relevant Turkish law is an issue of fact. But the Secretary of State is neither a court nor is he acting as a court in the present situation and the principles set out in Bumper can only have a very limited application. Further, issues of foreign law are rather different in their nature to ordinary issues of fact, as the discussion in this case demonstrates.
20. I consider that, when on behalf of a person sought to the extradited an issue is properly raised as to the application of article 10, it is the duty of the Secretary of State to make appropriate enquiries so that he is in a position to make a decision. That will normally involve a communication with the authorities of the requesting state as well receiving the submissions made on behalf of the person in question. He is entitled also to seek independent advice as he did here. He is naturally free to accept or to reject, in whole or in part, what he is told by the requesting state. It will not often happen, as it did here, that the information from the requesting state will be contradictory in some respects. That is a factor for him to take into account and it will suggest the need for particular care.
21. I think that the concept of a burden of proof is inappropriate in this situation. The Secretary of State is not conducting a trial: he is making a decision. It is inappropriate to say that there is a burden on the requesting state to satisfy the Secretary of State that a prosecution is not barred by the passage of time. If it is wrong to refer to a burden of proof, it is wrong also to refer to a standard of proof. But that does not of itself prevent the submission being made that the Secretary of State must be satisfied to a high standard that the passage of time has not provided a bar.
22. I have concluded, however, that the Secretary of State is not required to be satisfied to a particular standard that the intended prosecution is not barred by lapse of time. In particular, he is not able only to order extradition where he is satisfied so that he is sure that the prosecution is not barred. I to not think that this is required as a matter of the construction of the statutory provisions. Nor was any authority cited to us pointing to that conclusion. Of course, if the material before the Secretary of State shows that it is more probable than not that the prosecution is barred, he will make no order. But that is no more than to state the obvious. The Secretary of State's decision is then subject to a review by the court in accordance with the ordinary principles of administrative law, in particular those relating to rationality or reasonableness and relevant and irrelevant considerations. What I may call the seriousness of the decision is a reason for the Secretary of State to take particular care and it may be a reason for the court to subject his decision to a more stringent examination. The remarks of Henry LJ in R v Secretary of State for the Home Department ex parte Patel [1995] 7 Admin LR 56 at 70 are apposite:

"The statutory question that the Minister had to answer was whether it would be unjust or oppressive to return the applicant by reason of the passage of time in all the circumstances of the case. That was a question profoundly affecting the liberty of the subject and the safeguards against unjust extradition afforded to him ... Therefore the Minister must exercise his discretion with the greatest care, just as the reviewing court must approach their task with the care that a matter concerning the liberty of the subject requires, while never losing sight of the fact that their task is one of review not appeal."

There the court was addressing a question under section 12(2) of the 1989 Act, which provided that the Secretary of State should not make an order where it would be unjust or oppressive to return the person.

23. In Ramda v Secretary of State for the Home Department and the Government of France [2005] EWHC 2526 (Admin) this court had to consider whether the Secretary of State should have declined to return Rachid Ramda to France because he would not have a fair trial. The court approached the question on the basis that it was for the Secretary of State to form a view on the basis of the material before him. The approach of the court in that case is consistent with the approach that seems to me correct here.
24. If, contrary to my view, it is right to look at the approach to be adopted by the Secretary of State in terms of standard of proof, I consider that the standard should be the civil standard. I agree with Lord Justice Keene will say on this.
25. It is possible that the material before the Secretary of State as to an issue under Article 10 might be such that no rational view could be formed. In my view, that is not the situation here. Although some of the statements that had been made are contradictory, the Secretary of State has been able to thread his way through, identify the narrow point at issue and make a reasoned and rational decision. It is evident that considerable care has been taken. The reasoning itself was not criticised: the submission was solely that the Secretary of State could not be sure that his conclusion was correct. As I have stated, that is not the test.
26. Mr Hardy submitted that at least the Secretary of State should have sought further information from the Turkish authorities as to the possible effect of Mr Atilla's arrest in England. He did so but the answer dated 9th June 2005 did not refer to the point. The Secretary of State then had to decide whether a further attempt should be made or whether, given the history of the matter, it was better to reach a decision on the basis of the available material. It is evident that the latter course was decided on and I do not think that it can be criticised.
27. I therefore conclude that the Secretary of State's decision is not one with which this court should interfere and that the application must fail.
28. In Jaffar v Governor of HM Prison Brixton and the Government of Spain [2003] EWHC 3077 (Admin) Lord Woolf CJ remarked on the superior ability of the Spanish court to determine the question of limitation which arose in that case and which was there yet to be considered by Secretary of State in making his decision under section 12. Equally here the court in Bursa will be able to hear argument on behalf of Mr Atilla on the question of prescription. I refer to this not to diminish the role of the Secretary of State in the present case but to point out that his decision is not the end of the issue.
29. LORD JUSTICE KEENE: I agree that this claim for judicial review should fail. The Secretary of State has the power to order the claimant's return to Turkey under section 12(1) of the 1989 Act unless that return is prohibited by the Act, which in the present case means prohibited as a result of Article 10 of the European Convention on Extradition set out in Mr Justice Jack's judgment.
30. The dispute before the Secretary of State was whether by reason of lapse of time the prosecution of the claimant on the embezzlement charges had become barred under Turkish law. There is no issue between the parties as to the proposition that questions about the content of foreign laws are ones of fact. Equally, there is no dispute that it was for the Secretary of State to determine this issue of fact concerning the Turkish law.
31. At the heart of this judicial review challenge is the test to be applied by the Secretary of State when deciding this issue of fact. I do not find Mr Hardy persuasive when he argues that the Secretary of State should only accept a view of foreign law different from that put forward by the foreign government concerned if the different view is incontrovertibly correct. This overstates the significance to be attached to the view put forward by the requesting state as to its law. No doubt the Secretary of State will regularly accept a statement made by a foreign government as to the law of that state as being correct but if there is evidence to the contrary he is not bound to accept that statement. Nor indeed does this claimant wish the most recent statements by the Turkish authorities as to the law of Turkey to be accepted as accurate. He wishes them to be rejected in part in so far as they deal with the length of the limitation period, if I may so describe it. The claimant has supplied the Secretary of State with expert evidence to the effect that the evidence from the Turkish authorities on that point is wrong and, indeed, he has successfully persuaded the Secretary of State that that is the case and that the correct limitation period is ten years.
32. It is on the issue of what events restart or reset the limitation period that Mr Hardy seeks to attach weight to the views of the Turkish authorities. But, when one looks at the documents emanating from those authorities, one can see that they have not applied their minds to the effect of any event later than the indictment of 17th January 1995, because they were advocating a limitation period of 15 years which would not expire until 2010. I do not believe that the Secretary of State was prevented from making the finding he did merely because of the absence of reference in the Turkish government's representations to the arrest in this country of the claimant on 26th June 1996.
33. As for the standard of proof, I do not accept that, when making a finding of fact of this kind about foreign law, the Secretary of State is required to be satisfied to the criminal standard of proof. In addition to the points already made by Mr Justice Jack, I would emphasise that in none of the many extradition cases coming before this court by way of judicial review of a ministerial decision has such an approach been suggested. That is perhaps not surprising. The Secretary of State is not conducting a criminal trial but simply finding certain facts. Any criminal trial in the present case would take place in Turkey, where the courts would also be able to pronounce, and indeed to do so definitively, on the issue of whether the prosecution is time barred. That is relevant to any question of the appropriate standard of proof to be applied by the Secretary of State. In fact, if the claimant's advisers are right on all the points which they put forward, the claimant would have a defence of time bar if a prosecution is pursued in Turkey.
34. If and in so far as the concept of the standard of proof may be applicable to ministerial decisions of this kind, some guidance can be obtained from another case concerning the removal of a person from this country, albeit under a deportation order: Secretary of State for the Home Department v Rehman [2001] UKHL 47; [2003] 1 AC 153. In the House of Lords, Lord Slynn said that the specific facts on which the Secretary of State relied when reaching his conclusion that Mr Rehman was a danger to national security should be proved on the ordinary civil balance of probability: see paragraph 22.
35. I accept that one would expect the Secretary of State to take very considerable care in matters such as this because of the issues involved, as was said in Patel and also in the R v Secretary of State for the Home Department, ex parte Osman 30th July 1992, unreported save in The Independent of 10th September 1992. But it seems to me that the Secretary of State in the present case applied his mind with very great care to the point in dispute. His decision is a careful, well-reasoned one and in my judgment not one capable of being described as perverse. He had before him the expert evidence of Mr Erdogan. That evidence explained in cogent fashion why the arrest in England restarted the period in which the claimant could be prosecuted and did so by reference to a recent decision of the General Council of the Criminal Bench of the Turkish Supreme Court of Appeal. In so far as Mr Erdogan's evidence conflicted with the evidence submitted on behalf of the claimant, the Secretary of State spelt out why he preferred Mr Erdogan's. He was entitled to do so.
36. I can see no basis, therefore, for this court finding that the Secretary of State's decision was flawed. I too would dismiss this application.
37. Yes, any applications?
38. MR HARDY: My Lord, I have two applications at this juncture. The first is -- I hope will not be viewed as impertinent. My Lord Mr Justice Jack referred to Article 6 of the European Convention on Human Rights as being an article that I put forward as being prospectively engaged in the exercise. My Lord, in fact I cited Article 5 and Article 8. For the reasons put forward, if I may say so, by your Lordship in your Lordship's judgment, I did not and could not properly advance Article 6.
39. MR JUSTICE JACK: Well, I will remove, when reviewing the transcript, the reference to 6 and insert 8 and I will also remove my remark about 6.
40. MR HARDY: I am very grateful. My only other application at this juncture is for assessment. Can I indicate that I will take instructions and give advice as to the issue of certification and an application for leave? My Lords, the present position of the statute is that in fact I have 28 days in which to apply to this court. It used to be 14 but an amendment has been affected by the Courts Act. It is not my intention under any circumstances to seek to reconvene this court or to invite it to reconvene. If I make any application I will seek your Lordship's leave to make it on the papers and invite your Lordships to resolve it on the papers.
41. LORD JUSTICE KEENE: Yes. We would be anxious, Mr Hardy, that you should not be taking the full 28 days, for obvious reasons. I am not sure whether this court has the power to curtail that period of time. Does it?
42. MR HARDY: My Lord, it is a statutory entitlement but I am conscious that whilst --
43. MR KEITH: Could I assist, my Lord? I have a copy of the up-to-date statutory provision.
44. LORD JUSTICE KEENE: Yes, Mr Keith. (Handed)
45. MR HARDY: My Lord. If I may, I was just saying that I am conscious of my -- both my duty to my client and my duty to this court and my responsibilities in general, may I put it that way?
46. LORD JUSTICE KEENE: Just bear with me a moment, Mr Hardy, will you? (Pause) The 28 days appears to me to relate to the application for leave to appeal rather than to the application for a certificate.
47. MR HARDY: Yes. My Lord, there is no express provision dictating that an application for a certificate must be made within a certain period of time. But it follows, my Lords, that if I make an application for leave to appeal, as I am entitled to do, within 28 days, I must, as a prerequisite, have a certificate and therefore we would submit that both applications can in effect be dealt with together. Can I indicate at this juncture that I have grappled with the formula for the certified point. It relates in short to the issue of whether there is a standard or a test to be applied at all and, if so, what. I would envisage being able to submit an application to certify within perhaps 14 days. I would invite your Lordships not to make a direction because I would query whether or not your Lordships are entitled to, as it were, on the face of it reduce what is a statutory entitlement. I merely indicate that I am conscious of my duties and responsibilities in this case.
48. LORD JUSTICE KEENE: Thank you. Mr Keith?
49. MR KEITH: My Lord has the point precisely which is that the statutory obligation to make an application in 28 days is in connection only with the application for leave to appeal, both to this court -- either to this court or to your Lordships in the House of Lords. The obligation on an applicant to seek a point of law of general public importance is not so bad. It is the experience, certainly of myself and I know of Mr Hardy, that, where a applicant for judicial review has failed in his attempt, that they seek immediately the leave of the court to certify a point of general importance in the giving of the judgment. Mr Hardy is extremely experienced in this area and in far more complex cases had been easily capable of producing a question for consideration of your Lordships.
50. LORD JUSTICE KEENE: That may be, Mr Keith. Of course, even if that happens, Mr Hardy still does have the 28 days under the statutory provision, does he not, to seek the leave to appeal of this court?
51. MR KEITH: No, my Lord, because if your Lordships refuse to certify a point of law of general public importance --
52. LORD JUSTICE KEENE: Of course, that kills it stone dead. But what if we grant the certificate?
53. MR KEITH: If you grant the certificate then he has the 28 days but, my Lord, it is 28 days from the granting of the certificate so we need to have 14 days to make any application to you to certify, 28 days thereafter for leave. We would find ourselves on the day of the expiry of the extradition period. Therefore I would invite your Lordships to invite Mr Hardy to make his application today. I have been able, in the short time since your Lordships gave judgment, to formulate my response to why an application should fail. I am sure it is well within Mr Hardy's capabilities to advance an argument as to why it should succeed.
54. MR HARDY: My Lord, with respect, my learned friend is wrong. Can I invite your Lordships' attention to section 2? The application for leave must be made within 28 days beginning with the relevant date --
55. LORD JUSTICE KEENE: Which is the date of the decision of the court below, which is today.
56. MR KEITH: Indeed. So, in terms of an application for leave, I am required to make that application within 28 days of today. My Lord, again with respect to my learned friend, the position is quite simple: that is a statutory entitlement. A prerequisite of the grant of leave is a certificate but there is no restriction on the application for leave in the Act other than the 28-day one and if your Lordships were to require me, for example, to make the submission now regarding the certificate and if your Lordships were then to refuse me a certificate, it follows that your Lordships would be depriving me of a statutory entitlement that I have on the face of the statute.
57. LORD JUSTICE KEENE: There is nonetheless no reason why we should not require you to make any application for leave in writing, as you indicate, within seven days, is there? I do not, at the moment, think it is going to impose a huge burden on you either, Mr Hardy?
58. MR HARDY: My Lord, it is not. I would invite your Lordships simply, in the light of the submissions that I hope I have made in an appropriate manner, in the proper spirit -- I would simply invite your Lordships to indicate that this court would expect an application to be made before the ultimate end of the relevant period and your Lordships' expression of opinion will weigh heavily upon my mind.
59. LORD JUSTICE KEENE: What troubles me, of course, is that if we were to certify but to refuse leave, you are then entitled to petition their Lordships and you have a further 28 days in which to do that.
60. MR HARDY: My Lord, yes and I respectfully hazard a guess that if that course were followed it would be unlikely that your Lordships would determine any petition for leave before 26th June. That is the simple reality. I would invite your Lordships to address the issue of whether there is a point of law of general public importance in this case without, as it were, any consideration of the future course of events. That the pure issue of law.
61. LORD JUSTICE KEENE: Yes.
62. MR HARDY: I simply invite your Lordships not to make or purport to make a direction which I respectfully submit, without extensive argument, is not within your Lordships' powers on the face of the statutory provision.
63. LORD JUSTICE KEENE: I think our ability to direct that any application for a certificate be made within a shorter period is within our powers.
64. MR HARDY: Your Lordship has expressed, if I may say so, strongly the view that an application should be made within seven days. Whether that is formally the direction or no, I have that very much in mind.
65. LORD JUSTICE KEENE: Mr Keith, do you want to say anything further?
66. MR KEITH: My Lord, I would invite the court to make a direction. There can be only one reason for seeking to avoid the mandatory effect of such a direction, which is that we are now in the territory in which -- we are now in the last chance saloon in relation to the remaining legal point open to the applicant.
67. LORD JUSTICE KEENE: Anything further, Mr Hardy?
68. MR HARDY: No, my Lord. (Pause)
69. LORD JUSTICE KEENE: Mr Hardy we are going to direct that any application for a certificate be made on behalf of your client within seven days of today.
70. MR HARDY: So be it, my Lord.
71. LORD JUSTICE KEENE: We understand that both parties are content for that application to be dealt with in writing. We will seek to give our decision on that certificate as quickly as possible and so we would encourage the Secretary of State to put in any response very rapidly: I am afraid we would say within two days.
72. MR HARDY: My Lord, it will be a matter of hours. I do not suppose the Secretary of State would want to be diligent on this.
73. LORD JUSTICE KEENE: Mr Hardy, we are at the moment of the view that we are not empowered to curtail the period for the application for leave to appeal. We would merely hope that those advising the claimant would feel able to do so quickly as well so that this matter can be dealt with on its merits and that these procedural steps do not themselves determine the issue.
74. MR HARDY: My Lord, I have that very much in mind. I forget whether I formally made an application for assessment in this case.
75. LORD JUSTICE KEENE: You did. I am not sure we determined it but we grant you an order to that effect. No application as to costs, I take it, in respect to the Secretary of State?
76. MR KEITH: No, my Lord.
77. LORD JUSTICE KEENE: Thank you both very much indeed. We will retain the papers of course for the purpose of dealing with the application, if one comes in.