QUEEN'S BENCH DIVISION
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MR JUSTICE BEATSON
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(Official Shorthand Writers to the Court)
MR N SWEENEY QC (instructed by Crown Prosecution Service) appeared on behalf of the INTERESTED PARTY
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"(1) A police officer of at least the rank of superintendent may apply for the extension or further extension of the period specified in a warrant of further detention.
(1A) The person to whom an application under subparagraph (1) may be made is
(a) in the case of an application falling within subparagraph (1B), a judicial authority; and
(b) in any other case, a senior judge.
(1B) An application for the extension or further extension of a period falls within this subparagraph if
(a) the grant of the application otherwise than in accordance with subparagraph (3AA)(b) would extend that period to a time that is no more than fourteen days after the relevant time; and
(b) no application has previously been made to a senior judge in respect of that period.
(2) Where the period specified is extended, the warrant shall be endorsed with a note stating the new specified period ...
(7) In this paragraph and paragraph 37 'senior judge' means a judge of the High Court or of the High Court of Justiciary."
I have omitted a number of subparagraphs that deal more precisely with the calculation of the time and other matters.
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
It is submitted that that provision guarantees the right of a detained person to have a decision extending the period of detention reviewed or made the subject of an appeal. We were taken to a passage in the judgment of the Strasbourg court in Garcia Alva v Germany, application number 23541/94, judgment of 13th February 2001. At paragraph 39 it is stated:
"The Court recalls that arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the 'lawfulness', in the sense of the Convention, of their deprivation of liberty. This means that the competent court has to examine 'not only compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention'."
The paragraph goes on to provide that a court examining an appeal against detention must provide guarantees of a judicial procedure and makes comments as to what those guarantees are.
"There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all."
Similarly, Lord Scarman stated at page 392 GH:
"In the present case the Court of Appeal has sought to construe s.441(3) of the Companies Act 1948, which declares a decision of the High Court to be not appealable, in the same way as a provision excluding appeal from a statutory tribunal. But the High Court is not an inferior tribunal. It is one of Her Majesty's courts of law. It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place. It has inherited the jurisdiction of the superior common law courts of first instance."
The same point underlies what was said by Lord Salmon at page 386 AB.