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 WC2A 2LL
		30th July 2007

1. LORD JUSTICE LEVESON: As long ago as 12th October 2006 the Secretary of State ordered the claimant's extradition to the United States of America. He then appealed to this court seeking an order that the extradition be quashed. The matter came before a Divisional Court, Scott Baker LJ and David Clarke J, on 2nd January 2007 and was dismissed. Thereafter, by way of a letter, the claimant asked the court to certify a point of general public importance and also sought leave to appeal to the House of Lords. The matter came back before the court on 22nd March 2007, whereupon the court declined to certify a point of general public importance. As far as the litigation was concerned the matter was therefore at an end.
2. On 24th April 2007 an application was made to the City of Westminster Magistrates' Court for the claimant's discharge under section 118(7) of the Extradition Act 2003 on the basis that he had not in fact been extradited. The district judge determined that the period within which the claimant could be extradited had not expired, having been extended by a combination of sections 114 and 118 of the Act. The claimant now seeks to review that decision.
3. The statutory framework is on the face of it, comparatively straightforward. Section 114 of the Act provides that an appeal lies to the House of Lords from the decision of the High Court on an appeal under a number of the provisions of the legislation. It provides:

"(4) Leave to appeal under this section may 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 Crown Court granting leave the point is one which ought to be considered by the House of Lords.

(5) An application to the House of Lords for leave to appeal under this section made be made before the end of the permitted period which is 14 days starts from the day upon which the court makes its decision on the appeal to it.

(6) An application to the House of Lords for leave to appeal under this section must be made before the end of the permitted period which is 14 days starting with the day on which the High Court refuses leave to appeal."

It is worth observing that there is no mechanism whereby an application can be made to the House of Lords if a point of law of general public importance has not been certified. Not surprisingly, no application has been made in this case.

4. I turn to section 118 of the Act which deals with extradition following appeal. Subsection (1) makes it clear that the section applies if there is an appeal to the High Court against a decision relating to a person's extradition, and the effect of the decision of the relevant court on the appeal is that a person is to be extradited there. Subsection (2) mandates that a person must be extradited to a category 2 territory before the end of the required period, which is 28 days starting with (a) the day on which the decision of the relevant court on the appeal becomes final, or (b) the day on which proceedings on the appeal are discontinued. Under subsection (3) the relevant court is the High Court if there is no appeal to the House of Lords against the decision of the High Court on appeal.

When the decision of the High Court becomes final is defined by subsection (4) in these terms:

"The decision of the High Court on the appeal becomes final-

(a) when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if there is no such application;

(b) when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the House of Lords for leave to appeal;

(c) when the House of Lords refuses leave to appeal to it;

(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought before the end of that period."

5. Pausing there, it is remarkable that Parliament, having defined the circumstances in which an appeal to the House of Lords may be mounted as requiring the certification of a point of law of general public importance, did not then reflect the possibility that such a certificate might be refused in the codified list of circumstances in which the decision of the appeal to the High Court becomes final.
6. It was in those circumstances that the district judge determined that, having applied to the High Court for leave to appeal to the House of Lords, subsection (a) did not apply and therefore an extra period must be allowed permitting an appeal to the House of Lords from the High Court, notwithstanding the certificate had been refused under section 118(4)(b).
7. Although this decision was initially supported by those responding to the appeal, in this court reference has now been made to the obligations of the United Kingdom Government set out in Article 23 of the Council Framework Decision of 13th June 2002 on the European Arrest Warrants and Surrender Procedures between Member States. That article prescribes time limits for surrender of the person requested, and so describes them:

"(1) The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned.

(2) He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant."

8. Miss Dobbin, for the Secretary of State, points out that section 36 of the 2003 Act which deals with extradition following appeal follows the same language. As a result, she concedes that in some way this legislation ought to be construed so as to ensure that time is only extended beyond the conclusion of High Court proceedings if a certificate is in fact provided, notwithstanding that leave has been refused. As I have said, section 118(4) appears, on the face of it, to be comparatively straight forward, albeit it does not provide or reflect for the possibility of the need for a certified question. Having regard to the obligation which the statute intended to meet, however, it seems to me that it is proper to construe section 118(4) so as to make clear that where no point of law has ever been certified there is in fact no permitted period for applying to the House of Lords. After all, the House of Lords will only entertain a lawfully brought application and in the event that the High Court refuses to certify a point of law, no such application could ever properly be brought. Thus, there is no permitted period for applying to the House of Lords in the event of a certified question being refused. In those circumstances time cannot be extended as the district judge ruled.
9. In my judgment, that is a legitimate construction of this provision consistent with the Council Framework and consistent with what I anticipate the legislature intended but did not specifically identify. In those circumstances, this application for judicial review should succeed.
10. MR JUSTICE STANLEY BURNTON: I agree.
11. I would only express my sympathy with the district judge who read section 118 literally, and so read resulted in the decision which he made.
12. MR JONES: My Lord, I apply for costs.
13. MS DOBBIN: My Lord, this has not been canvassed with my learned friend, but it seems to me that those costs ought to be out of central funds.
14. LORD JUSTICE LEVESON: Why?
15. MS DOBBIN: My Lord, essentially because these funds will come out of State funds, come what may.
16. LORD JUSTICE LEVESON: There are arguments about which pot it comes from. It is somewhat concerning that the Crown Prosecution Service ran an argument which presumably was originally supported by the Secretary of State.
17. MS DOBBIN: The Secretary of State ran it.
18. LORD JUSTICE LEVESON: All right, the Secretary of State ran the argument.
19. MS DOBBIN: My instructing solicitor informs me that the Secretary of State will pay the costs, to be assessed if not agreed.
20. LORD JUSTICE LEVESON: Is there a schedule of costs?
21. MR JONES: No, my Lord, we have discussed this and, I hope not usurping the function of the court, it was agreed before we came into court. We do believe they will be agreed and if not agreed they will be assessed.
22. LORD JUSTICE LEVESON: Why is there not a schedule? Because that way we can assess costs.
23. MR JONES: My Lord, we did think we were agreed about this before we came into court. The problem is, my Lord, I was out of the country on Friday. I thought all this was disposed of ---
24. LORD JUSTICE LEVESON: Mr Jones, I am not for a moment suggesting that you would sully yourself with the mundane matter of money, but I am concerned that this is classically a case whereby we could just avoid all questions of assessment, which costs time and money, and deal with it.
25. MR JONES: My Lord, that is why I said that my instructing solicitors and Mr Ashford discussed it, and they believe they will agree.
26. LORD JUSTICE LEVESON: I have given you enough of a hard time, Mr Jones. I am unhappy that this has not been done. I would not expect the costs of the detailed assessment should have to be one that fall to the Secretary of State because had a schedule been prepared on this simple matter we would have been able to deal with it and save the costs of the detailed assessment. So on the basis that in the absence of agreements no order is made for the costs of the detailed assessment, I will make that order.
27. MR JONES: Just to be sure where we are, my Lord, it would obviously be inappropriate that the matter goes back to the same district judge for what would be a formality. In my respectful submission they would ask for a quashing order and a mandatory order directing (inaudible) to the district judge. The quashing order is probably sufficient and we do not need to go back to the court below.
28. MR JUSTICE STANLEY BURNTON: I would thought that was the proper course.
29. LORD JUSTICE LEVESON: Does that impact in any way -- and I am not encouraging the United States Government to start again, that is a matter for them -- on any other steps that might be taken?
30. MR JONES: We would say it does not. He simply discharge, as may be the case, if another time was not observed; but that is not, in our submission, I don't want to litigate it here but it is not in any convey a bar to the Government of the United States issuing a ---
31. LORD JUSTICE LEVESON: Very good. We agree.