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
		23rd October 2007

1. LORD JUSTICE RICHARDS: The claimant, Mr Szklanny, challenges a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court on 21st September 2007, to extend time for the claimant's extradition to Poland from midnight of 23rd September to midnight of 30th September 2007. The matter comes before this court by order of Stanley Burnton J as an application for permission to apply for judicial review with the substantive hearing to follow if permission is granted. For reasons that I will come to, I think that the case before us is an arguable one and that permission should be granted and that the matter should be dealt with as a substantive application for judicial review.
2. The proceedings were settled by solicitors acting for the claimant but legal aid has since been refused and the claimant has appeared before us today in person. He has addressed us briefly, but clearly, in English. We made clear to him that the court had read and considered all the written documentation previously submitted on his behalf and that it was unnecessary for him to take us through that material again. The Polish judicial authority appears as an interested party, represented by Ms Cumberland of counsel.
3. I can deal relatively briefly with the factual and legal background. The claimant's extradition is sought under a European arrest warrant issued by the district court in Katowice, Poland. On 7th September, following a full hearing at the City of Westminster Magistrates' Court, the claimant's extradition was ordered pursuant to section 21(3) of the Extradition Act 2003. It seems that the Polish judicial authority was informed of that order for extradition on 11th September. The time for appealing under section 26 against the order expired on 13th September. No notice of appeal was filed.
4. The timetable for extradition where there is no appeal is set out in section 35, the material parts of which read as follows:

"(1) This section applies if—

(a) the appropriate judge orders a person's extradition to a category 1 territory under this Part, and

(b) no notice of an appeal under section 26 is given before the end of the period permitted under that section.

...

(4) The required period is—

(a) 10 days starting with the first day after the period permitted under section 26 for giving notice of appeal against a judge's order, or

(b) if the judge and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.

(5) If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay..."

5. The first day that the claimant could have been extradited was 14th September. In the ordinary course, he had to be extradited within the period of ten days specified under section 35(4)(a), a period which expired on 23rd September. The normal period is subject, however, to the possibility of extension under section 35(4)(b) and it is the exercise of that power by the court which is in issue in this case.
6. At the hearing on 21st September, District Judge Nicolas Evans considered a request by the Polish judicial authority for an extension of time. A letter dated 20th September, which was placed before the court, stated this:

"The takeover of the surrendered person is not possible on 21st September for the reasons independent of this Court. In particular, it is impossible to arrange a plane convoy within such a short period of time (and also no plane tickets are available). Also, the date of 25th September 2007 that was suggested to the British party has not been accepted by the British party.

Therefore we would like to ask you - according to the above mentioned regulations - to surrender Tomasz Szklanny to the Polish party on some other day agreed, within 10 days beginning from 25th September 2007."

7. After hearing submissions, the judge ruled in favour of an extension of time but a shorter extension than was sought. An agreed note of his ruling, as I understand it not approved by the judge, reads as follows:

"The CPS was under a duty to inform Poland that no appeal had been lodged against the extradition order, and that the 10 day period to collect Mr Szklanny had begun. 'Poland should have been told on 14th September' that no appeal had been lodged. 'Therefore five or six days were lost to the Poles' in making surrender arrangements. 'I don't understand why that happened. They [the CPS] are at fault. I have to look at a Polish JA [Judicial Authority] who wants a man to face sentence. I don't think any criticism can be levelled at the JA. On the 19th September 2007 they tried to make arrangements'. He did not give the requested extension for 10 days from the 25th September 2007. Instead he ruled 'I agree to extend time until midnight on Sunday 30th September 2007'."

8. Although the agreed note records the judge as saying that the CPS were at fault, the information that the judge himself has quite properly supplied to this court in an acknowledgment of service suggests a more cautious approach and gives one a fuller understanding of the surrounding circumstances:

"4. The Polish authorities should have been informed that no appeal had been lodged and that a flight could now be booked on the first working day i.e. on Monday 17th September 2007.

5. In fact notification was not sent until Wednesday 19th September 2007. This meant that 5 of the available 10 days were lost to the Polish authorities before they could begin to make arrangements.

6. When I extended the time limit for extraditing Mr Szklanny, at a hastily convened hearing late on the afternoon of Friday 21st September 2007, I did not have an opportunity to have enquiries made as to why it was that all those five days were lost. I am in the same position today.

7. On the limited information available to me, I felt there could be no criticism of the Polish authorities and any 'fault' there might be was down to the CPS(SOCA). I cannot rule out the possibility that no criticism can be levelled against anybody.

8. In giving the extension that I gave to midnight on 30th September 2007 I was aware that my decision might not be passed to the Polish authorities until the morning of Monday 23rd September (I assumed nothing would be done at weekends) and also that collections are not arranged over weekends. Thus I was putting pressure on CPS/SOCA and the Polish authorities to move very quickly (which I am pleased to see they did).

...

10. Although the full circumstances as to why extradition could not be effected during the initial 10 day period are not known there is nothing to suggest that the JA failed to act appropriately."

9. It seems to me that great caution must be exercised in relation to the admission of additional reasons that the court sets out in an acknowledgment of service; but that in the circumstances of the present case, where everything was done in haste and only brief reasons were given at the time and where there was no full transcript or approved note of the decision, it is permissible to have regard to the fuller explanation given by the judge in the acknowledgment of service.
10. The way the case was put on the claimant's behalf in the grounds settled when he had legal representation is as follows. First, the powers given by section 35(4)(b) to extend the time limit for extraditing the requested person give effect to paragraph 3 of Article 3 of the European Framework Decision on the European arrest warrant and the surrender procedures between member states. Article 23 is headed "Time limits for surrender of the person" and reads:

"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 ten days after the final decision on the execution of the European arrest warrant.

3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event the surrender shall take place within ten days of the new date thus agreed.

4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within ten days of the new date thus agreed.

5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released."

11. The second element in the argument on the claimant's behalf is that it is well established that national courts are subject to an interpretative obligation to construe national laws so far as possible to obtain the result sought to be achieved by framework decisions: see for example Dabas v High Court of Justice in Madrid, Spain [2007] UKHR 6, [2007] 2 WLR 254, applying Criminal Proceedings against Pupino [2006] QB 83, a decision of the European Court of Justice. This interpretative obligation has been described as "very strong": see The Governor of HMP Wandsworth v Antanas Kinderis [2007] EWHC 998 (Admin) at paragraph 36.
12. Third, the power under section 35(4)(b) must therefore be read in line with the paragraph of article 23 to which it gives effect, namely paragraph 3, which allows for an extension where extradition is prevented by circumstances beyond the control of any of the member states.
13. Fourth, reference is made to observations of Laws LJ in Kinderis in the context of section 47 of the 2003 Act, which contains provisions equivalent to those in section 35 but applicable after an appeal to the High Court or House of Lords rather than after the first instance decision in the Magistrates Court. Section 47(4) contains the same language as section 35(5), namely that in the specified circumstances discharge must be ordered "unless reasonable cause has been shown for the delay". At paragraph 29 of his judgment in Kinderis, Laws LJ described the instances of postponement in article 23(3) and (4) of the Framework Decision as "dovetailing" with section 47(4) of the 2003 Act.
14. Fifth, it is submitted that what happened in this case did not meet the conditions in article 23(3). It is not accepted that the judicial authority had insufficient time to formalise travel arrangements. It is pointed out that the authority was informed of the order for extradition as early as 11th September. In any event, it is said that the administrative errors on the part of the CPS which have led to delayed notification of the judicial authority after the time for appeal expired did not amount to circumstances beyond the control of the member states. It is further submitted that the judge was wrong to distinguish between the CPS and the judicial authority, since, for the purposes of proceedings of this kind, the CPS may lawfully be treated as the agent of the judicial authority; see Central Examining Court of the National Court of Madrid v City of Westminster Magistrates' Court [2007] EWHC 2059 (Admin) at paragraphs 28 to 30.
15. Sixthly and finally, it is therefore submitted that the judge's exercise of discretion in this case was unlawful as failing to have due regard to the status of the Framework Decision or to apply the appropriate test under it or was unreasonable or based on an irrelevant consideration in taking into account the apparent lack of fault on the part of the judicial authority rather than asking whether there were circumstances here beyond the control of either of the member states.
16. For the judicial authority, Ms Cumberland meets the claimant's case with the following submissions. First, it is said that the effect of section 35(4)(b) is to vest in the judge the widest possible discretion to extend the period for removal by agreement with the issuing judicial authority. That is a discretion which is expressly provided for by Parliament. The possibility of such an agreement being reached is consistent with the spirit of good faith and co-operation between judicial authorities in Member States that are party to the Framework Decision and also logical given the very strict ten-day timescale laid down for removal and the possibility that a range of circumstances may prevent extradition taking place within that period. It is further said that the statutory scheme ensures that arrangements for removal are made swiftly and efficiently and, if removal is not possible within ten days, the matter is brought back before the court forthwith. The requested person is constantly subject to the protection of the court.
17. It is submitted that the claimant's reliance on the Framework Decision is misconceived, first, because the underlying purpose of the Framework Decision is to facilitate and enhance extradition arrangements, based on a spirit of mutual co-operation. The claimant asserts that extradition should not take place at all as a result of an extension of eight days of the period within which his extradition was to take place. This would contrive to defeat the purpose of the Framework Decision rather than enhance it. It is further said that article 23 dovetails with section 35(5) rather than with section 35(4)(b) of the 2003 Act: that relates to the passage in Kinderis to which I have already referred. It is pointed out that the judicial authority made a request in good faith to the court for its agreement to extend the period for removal by several days and it is submitted that the judge was acting entirely reasonably and lawfully in agreeing to that request.
18. Those are the main points put forward on behalf of the judicial authority. In my judgment, Ms Cumberland's submissions are well founded. The discretion conferred on the court by section 35(4)(b) is in broad terms. It is to be distinguished in that respect from the provision of section 35(5) that, in the event of non-compliance with subsection (3), discharge must be ordered "unless reasonable cause is shown for the delay". Had it been intended to impose a similar limitation on the power of the court in section 35(4)(b), the statute would have used similar language. The obligation to interpret national law, so far as possible, in the light of the wording and purpose of the Framework Decision should not require the discretion to be cut down in the way suggested by the claimant, so as to be exercisable only if it is shown that extradition within the normal period has been prevented by circumstances beyond the control of the member states concerned. The discretion must certainly be exercised with due regard to the wording and purpose of the Framework Decision and for that reason would no doubt fall normally to be exercised so as to extend the period where extradition was shown to have been prevented by circumstances beyond the control of the member states. But I do not think that can be exhaustive of the circumstances in which the discretion may be exercised. Regard should be had not just to the wording of article 23 but also to the Framework Decision's underlying purpose of facilitating extradition and enhancing extradition procedures, based on a spirit of mutual co-operation. I see no reason why those considerations should not in an appropriate case tell in favour of the grant of an extension at the request of the judicial authority even if it has not been shown that circumstances beyond the control of the member states prevented extradition within the normal time limit, in the sense that the delay occurred without any fault on behalf of any of the state agencies concerned.
19. On its particular facts, the claimant's case strikes me as a weak one. The Polish judicial authority cannot have been expected to act until after the period for an appeal had expired, so nothing turns on the fact that it was notified of the extradition order on 11th September. Once the period for appeal had expired, the observations of the district judge in the acknowledgment of service remind one that the delay in notification was not a long one, especially if one bears in mind that the first two days were over a weekend. Those observations also show that it is not certain where the fault, if any, lay and that the extension of time granted was very limited, putting pressure on all concerned to move fast within the additional period allowed.
20. What the judge did in the circumstances of this case, faced as he was with an urgent request by the Polish judicial authority, was in my judgment a wholly unimpeachable exercise of discretion. I conclude therefore that the decision was not unlawful in any of the respects alleged and whilst, as I have said, the case was one meriting the grant of permission, I would dismiss the substantive claim for judicial review.
21. MR JUSTICE GIBBS: I agree with my Lord, Lord Justice Richards. The claim should be dismissed for the reasons which he gave.
22. LORD JUSTICE RICHARDS: Mr Szklanny, that was long. I hope you have understood the essence of the reasons given for dismissing your claim. We have accepted the arguments put forward in the written submissions of Ms Cumberland. There is no further application, I take it?
23. MS CUMBERLAND: No, my Lord.
24. LORD JUSTICE RICHARDS: Thank you very much.