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
		4 October 2006

1. MR JUSTICE WILKIE: This is an application by Robert Slator against a decision of the Bow Street Magistrates' Court on 21 December 2005, which refused to adjourn the application for an extradition order made by the interested party, the High Court of Dublin, and having refused the adjournment, went on to make an extradition order. Permission was given for this application for judicial review on 19 June 2006.
2. The claimant is a young man of 24 years of age, who has at that young age apparently a serious criminal record. The application for extradition by the Irish authorities arose out of an alleged incident on 18 July 2003 when it is said that Mr Slator seriously assaulted a man who has, as a result, been in a vegetative state. We are informed that the issue is contested, but on the basis that he acted in self-defence.
3. On 23 November 2004, a European Arrest Warrant was issued in respect of this matter. In the meantime, however, on 22 June 2004, the claimant pleaded guilty in this jurisdiction at Harrow Crown Court for two counts of robbery and two counts of possessing a firearm with intent to commit an indictable offence. On 1 December 2004, in respect of those matters, he was sentenced to nine years' imprisonment.
4. The application in respect of the European Arrest Warrant proceeded, and on 13 April 2005 the claimant was arrested upon that warrant. On 10 August 2005, an application was made before the district judge at the Bow Street Magistrates' Court that the extradition hearing should be adjourned until a time nearer the claimant's release date when he might in fact be extradited. That application was refused. The district judge, however, entertained the application afresh on 21 December 2005 when the matter was listed for a substantive hearing, but the application was no more successful on that occasion than it had been in August. The application to adjourn was refused.
5. The district judge then considered the application for an extradition order substantively. The claimant raised an argument in respect of his human rights and in particular Article 3. The district judge found nothing in that argument and made the order as requested.
6. The most significant piece of information about the operation of the extradition order is that, having been sentenced to nine years' imprisonment, the earliest date upon which Mr Slator would be eligible for release would be 23 December 2008, and his actual release must take place at a point between that date and 24 June 2010. The earliest potential release date, therefore, is more than three years after the date upon which the extradition order was made. It is in connection with that extensive delay that this application is essentially founded.
7. The application for extradition was made pursuant to Part 1 of the Extradition Act 2003. That Act seeks to speed up matters of extradition, and in particular in connection with category 1 territories, of which Ireland is one. Part 1 of the Act sets out a procedure which has no involvement whatever of the Secretary of State, where essentially the matter operates as between judicial authorities, and where orders made by the United Kingdom judicial authorities must take effect without any intervention of the Secretary of State.
8. Insofar as it is relevant to this application, section 10 of the Act deals with the initial stage of the extradition hearing. It applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing. Sub-section (2) provides that the judge must decide whether the offence specified in the Part 1 warrant is an extradition offence. Sub-section (4) provides that if the judge decides that question in the affirmative, he must proceed under section 11. Section 11 concerns bars to extradition, and sub-section (1) reads that if the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of a number of statutory bars, one of which, (c), is the passage time. Sub-section (5) provides that if the judge decides those questions in the negative, the judge must in the circumstances which arise proceed under section 21. Section 21 concerns human rights. Sub-section (1) provides that if the judge is required to proceed under this section by virtue of section 11, he must decide whether the person's extradition would be compatible with the Convention Rights within the meaning of the Human Rights Act 1998. Sub-section (3) provides that 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.
9. In those circumstances, and where there is no appeal -- a matter to which we will turn in a moment -- section 35 of the Act provides by sub-section (1) that if the appropriate judge orders a person's extradition to a category 1 territory, and no notice of appeal under section 26 is given before the end of the period permitted under that section, then by sub-section (3) the person must be extradited to the category 1 territory before the end of the required period. Sub-section (4) defines the required period in one of two ways: (a) ten days starting with the day on which the judge makes the order; or (b) if the judge and the authority which issued the Part 1 warrant agree a later date, ten days starting with the later date.
10. The reference in section 35 to section 26 is a reference to the prospect of an appeal against an extradition order.

Sub-section (4) of section 26 provides that a notice of appeal must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.

11. Thus, if the district judge has proceeded properly through these various sections, then he must make an order, and that order must take effect within ten days of the order, or if the party applying for the warrant agrees, within ten days of some later date. The time for appealing against the district judge's making of the extradition order is one which has to be exercised within seven days.
12. Section 23, however, makes special provision when a person is serving a sentence in the United Kingdom. Sub-section (1) provides:

"This section applies if at any time in the extradition hearing the judge is informed that the person in respect of whom the Part 1 warrant is issued is serving a sentence of imprisonment or another form of detention in the United Kingdom.

(2) The judge may adjourn the extradition hearing until the sentence has been served."

It was this power to adjourn in respect of Mr Slator, who is serving a sentence of imprisonment, that the district judge was invited to exercise, but which he declined to exercise.

13. In essence, the claimant's case is that, given the facts, and in particular given the fact that the issuing authority had agreed that the requisite period for the coming into effect of the extradition order was to be ten days after his eventual release from the sentence of imprisonment, and given the fact that the Extradition Act 2003 contains no provision which enables a person's sentence being served in the United Kingdom to be interrupted by having him extradited pursuant to an order made under the Act, it was irrational of the district judge to decide that he could apply his mind to the questions which he was required to answer respectively under section 11 and section 21 of the Extradition Act 2003 when the relevant date for his extradition was more than three years from the date upon which he was being invited by the authority seeking the warrant to consider these matters.
14. It is acknowledged that it must inevitably be a matter of degree at what point, if at all, is it too long before the extradition order takes effect to enable a sensible assessment under section 11 and section 21 to be undertaken. The interested party to this application has suggested that the district judge was not acting irrationally in considering that he could apply his mind to these matters so far in advance of the extradition order taking effect, pointing out that the claimant is a young man in good health, that the facts of the matter in respect of which extradition was sought are relatively simple, that his defence of self-defence is one which is known and may be unlikely to be affected by the passage of time in its effective deployment, and that the Republic of Ireland is on any view a stable state in which human rights are entrenched, and that therefore it is unlikely that anything is going to occur within the next three years which would render the exercise by the district judge of his judgment in 2005 inaccurate or in any way unjust when the time came for the extradition order to take effect.
15. Furthermore, the interested party contends that in the unlikely event that circumstances were to change such that the extradition of Mr Slator was likely to fall foul of either of the sets of considerations under section 11 or section 21, then he could at that point launch proceedings either by way of seeking an order of habeas corpus or a judicial review. The interested party points out that, although there is no explicit entitlement under the Extradition Act 2003 to seek habeas corpus, in fact there have been applications for writs of habeas corpus in respect of the operation of the Extradition Act 2003. In particular our attention was drawn to the Divisional Court decision in Nikonovs v Governor of HM Prison Brixton & Republic of Latvia CO/7767/2005.
16. Ms Dobbin, for the claimant, says that the potential availability of habeas corpus or indeed judicial review is uncertain and problematic. She points out that the issues in Nikonovs concerned the operation of section 4 of the Extradition Act and concerned procedures, the failure to observe which, resulted in the detention of the claimant in that case being unlawful and therefore susceptible to that form of judicial intervention. In the present case, at no time prior to his actual extradition would Mr Slator be detained unlawfully. For the first period he would be detained pursuant to a lawful period of imprisonment. For the second period, he would be detained pursuant to a valid extradition order made by the court. There would be no decision of a Tribunal or a court which would be susceptible to judicial review some three years down the line.
17. We can see much merit in the argument of Ms Dobbin. It seems to us to be at the least highly problematical whether judicial review or habeas corpus would be available in circumstances where there is no question of the detention being unlawful.
18. Furthermore, although it must be a matter of fact and degree, in our judgment where the district judge is being invited to express his satisfaction over matters under section 11 and section 21 in respect of the ultimate extradition of a person which cannot take place for in excess of three years, then it is simply irrational for him to consider that he could properly do so at that distance in time.
19. It therefore follows that we agree with Ms Dobbin's primary contentions, namely that the decision not to exercise the power to adjourn, which he has under section 23, and the decision to proceed to make the extradition order purporting to exercise his judicial functions under section 11 and section 21 was irrational and wrong.
20. It therefore follows that this claim for judicial review must succeed. Normally, the sole order sought would be to quash the decisions respectively to refuse to adjourn, and to quash the extradition order pursuant to that refusal to adjourn, but we are minded to substitute an order which would effectively require the district judge to consider the question of extradition at a time which is sensible, having regard to the chronology to which we have referred, in relation to the earliest eligible release date of 23 December 2008. But we will welcome submissions from counsel as to the precise form of that substituted order.
21. LORD JUSTICE AULD: I agree with my Lord, for the reasons he has given. The order should be quashed and the matter should be adjourned. There should be substituted an order for adjournment for a date to be fixed, and we would, as my Lord said, invite submissions from the bar as to how that order might be precisely framed, keeping in mind the need to allow sufficient time before the date which can be reasonably confidently predicted as the earliest date of release.
22. Ms Dobbin?
23. MS DOBBIN: My Lord, in the first place the matter has to go back now to Westminster Magistrates' Court because there will have to be, as it were, a remand date in respect of the claimant, and again at this moment in time until the provisions in the new bill take effect, he will be remanded for 28 days. I have not had a chance to discuss with Mr Irwin a suitable form of words.
24. LORD JUSTICE AULD: Would you like to have a moment or two to discuss it?
25. MR IRWIN: Yes, please.
26. LORD JUSTICE AULD: We will rise for a minute or two.

Short adjournment

27. MS DOBBIN: My Lord, our suggested form is as follows:

"This matter be remitted to the City of Westminster Magistrates' Court for the district judge to adjourn the extradition hearing to a date approximate to the claimant's date of release from his domestic prison sentence when that date is known [because we do not know if he will be the released at the earliest point or not]."

28. LORD JUSTICE AULD: Say the last phrase again, will you?
29. MS DOBBIN: It reads:

"... to adjourn the extradition hearing to a date approximate to the claimant's date of release from his domestic sentence when that date is known."

30. LORD JUSTICE AULD: That necessarily implies that it is approximately before the date of release, does it?
31. MS DOBBIN: But that would be proper because no-one would want there to be any great delay.
32. LORD JUSTICE AULD: Of course, but approximate could be before or afterwards, that is the point. You need to put "before" in there somewhere, do you not?
33. MS DOBBIN: How about if we said: "shortly before the claimant's date of release?"
34. LORD JUSTICE AULD: That could be a couple of days; it could be two or three weeks. So far as practicable, I think a certain period would be preferable. One has to allow for the processes to grind slowly.
35. MS DOBBIN: Mr Irwin suggests 28 days.
36. LORD JUSTICE AULD: Yes, I think that would be -- and that of course would follow the court quashing the extradition order.
37. MS DOBBIN: Yes. My Lord, would you like me to draft that order and then forward it to your associate?
38. LORD JUSTICE AULD: If you would draft it and Mr Irwin agree it and then submit it to the associate, and he can let us see it. If there are any difficulties, we can let you know. The associate very helpfully says if you let him have a manuscript of your joint rendition, then he will draw up the order in the ordinary way for you. I am grateful to you for your assistance. Now, are there any consequential applications?
39. MS DOBBIN: No, my Lord. There is the Community Legal Services Funding order in place, but I think I still have to ask if you will grant it, as it were.
40. LORD JUSTICE AULD: The normal order?
41. MS DOBBIN: Yes.
42. LORD JUSTICE AULD: Absolutely.
43. MS DOBBIN: I am grateful.
44. LORD JUSTICE AULD: We are grateful to both of you for your assistance.