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
		25 October 2007

1. LORD JUSTICE RICHARDS: This is an application for a Writ of Habeas Corpus. The claimant's return to Poland is sought under a European arrest warrant issued by the District Court in Lomza.
2. The claimant is currently detained in HMP Wormwood Scrubs. He claims that his continuing detention is as a result of an unlawful decision by a Magistrates' Court to refuse to order his discharge following his arrest on 25 September 2007. The initial hearing took place on the following day at the City of Westminster Magistrates' Court. It was necessary for the judge on that occasion, pursuant to Section 8(1)(a) of the Extradition Act 2003, to fix a date on which the extradition hearing was to begin. By Section 8(4), the date fixed had to be not later than the end of the period of 21 days starting with the date of arrest. The judge fixed a date well within that period, 1 October. The claimant was remanded in custody.
3. On 1 October the claimant was not produced at court. The explanation subsequently given by the Prison Service in a letter to the court dated 2 October was as follows:

"This letter is an explanation for the non-production of Mr Albert Gronostajski on 01-10-2007. The warrant for the above was received by Wandsworth Prison on 29-07 (?) dated to produce on 01-10-07. Due to an administrative error he was not diaried on prison computer system for this date in advance of the hearing. This error was not discovered until after prison transport had left the premises. Reception staff contacted SERCO, informed us the prisoner will not be accepted at court any later that 1300. The court was informed of the situation then. We were told by the court that SERCO staff ..... Therefore court production procedure would still apply. However he was not produced."

4. What happened in court on 1 October was that the case which had been duly listed for hearing that day was called on in the morning. District Judge Purdey was sitting. Counsel for the claimant and the requesting authority were in court. The court was informed that the claimant had not been produced. It seems that an opening note, on behalf of the requesting authority, was provided to the court and given to the claimant's counsel. But nothing further was said or done save that because of the claimant's non-production the matter was adjourned by the judge to the following day, 2 October. An indication was given by counsel that there would be an application on that day for the claimant's discharge pursuant to Section 8(6) and (8). Section 8 reads in material part:

"(6) Sub-sections (7) and (8) apply if the extradition hearing does not begin on or before the date fixed under this section;

(7) If a person applies to the judge to be discharged, the judge must order his discharge unless reasonable cause is shown for the delay;

(8) If no application is made ..... the judge must order the person's discharge on the day fixed under this section when the person appears or is brought before a judge unless reasonable cause is shown for the delay."

5. On 2 October the claimant was produced at court before the same judge and an application for discharge was made on his behalf. The judge dismissed the application, ruling as follows:

"This is an application for discharge based upon non-production in what was plainly listed as an extradition hearing yesterday having been fixed previously. There is no doubt that the defendant was in custody and should have been produced; he was not produced due to an error. The prison administration acknowledges that he was not produced. Thereafter a series of explanations were advanced by the court and SERCO for the delay. All those matters are in the air. The first thing is that he was not here and should have been at what was listed as an extradition hearing. He was not before the court. Miss Powell seeks a discharge under Section 8(6). If the extradition hearing does not begin he must be discharged unless reasonable cause is shown. Mr Lloyd seeks to argue - I do not see how - the hearing began yesterday. It was listed and he was not produced so the hearing did not begin. Miss Powell is right. It was listed as an extradition hearing and I agree that it did not take place because he was not produced.

That said, I turn to consider whether there was reasonable cause. It seems to me that I must have some regard to the circumstances of the case as I know them. He was to be produced one day late; one day, in the context of being only six days from the initial hearing (?). I decide, but not without some hesitation, that despite errors there was reasonable cause in the circumstances despite the able arguments advanced by Miss Powell."

6. The judge then proceeded with the extradition hearing. There was an adjournment that day. The hearing was concluded on 9 October when the order for the claimant's extradition was made.
7. Miss Powell contends, on behalf of the claimant, that the decision not to discharge on 2 October was unlawful. Mr Lloyd, on behalf of the requesting authority, resists that contention and submits that for his part the judge ought to have found that the extradition hearing began on 1 October and that the issue of discharge under Section 8(6) and (8) did not therefore arise at all.
8. I have to say at the outset, although this point has not been taken by the requesting authority, that I have real doubts as to whether habeas corpus is the appropriate procedure in this case. The claimant is detained in prison pursuant to an order of the court that is, on its face, perfectly valid and within the jurisdiction of the court. That is not in dispute. The true target of the challenge is not the prison governor but the district judge, the case being that he erred in declining to order discharge. That seems to me to be a challenge properly brought by way of judicial review against the Magistrates' Court, not by way of habeas corpus against the prison governor. One can look, for example, to R v Oldham Justices ex p Cawley [1997] 1 QB 1 and to the White Book at paragraph sc54.1.5. Miss Powell has referred us to Nikonovs v Governor of HMP Brixton [2005] EWHC Admin 2405, paragraph 19, as to the availability of habeas corpus. It does not seem to me that the issue I have raised is addressed in that judgment.
9. I do not propose to insist on the procedural niceties in the present case or to direct that the case proceed as a claim for judicial review. I shall simply deal with the substantive issues raised. That should not however be taken as an endorsement for the future of the procedure that has been adopted here.
10. The question of whether the extradition period began on 1 October falls logically to be considered first. Mr Lloyd submits that what happened in court on that day amounted to the commencement of the hearing, albeit in the claimant's absence. He says the judge must then have exercised his power to adjourn the hearing until the following day. As to that power, by Section 9(1) of the 2003 Act, the judge "has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part I warrant was issued"; and those powers of the Magistrates' Court include a power to order an adjournment in the defendant's absence. Further, by Section 9 (4) of the 2003 Act -

"If the judge adjourns the extradition hearing he must remand the person in custody."

11. Mr Lloyd has also referred us to Section 122 of the Magistrates' Courts Act 1980 whereby a party may appear through a legal representative unless his personal presence is expressly required by statute or other provision. He has also referred us to R v Bow Street Magistrates' Court ex p Government of Germany [1998] QB 556 in which it was held that there was power in the Magistrates' Court to commit a defendant in his absence.
12. Mr Lloyd submits that the court should adopt the analysis put forward on behalf of the requesting authority because it cannot have been Parliament's intention to provide for the requested person's discharge on the facts of this case. An extradition hearing can be fixed up to 21 days after the initial hearing and an application can be made to fix an even later date; in this case the hearing not only commenced but was completed well within the statutory timeframe.
13. Miss Powell, on the other hand, submits that the judge was right to conclude that the extradition hearing had not commenced on 1 October. She points to the terms of Section 10 of the 2003 Act, headed "Initial stay of Extradition Hearing", which provides in sub-section (1) that -

"This section applies if a person in respect of whom a Part I warrant is issued appears or is brought before the appropriate judge for the extradition hearing."

Section 10 then sets out the questions which the judge must decide at the initial stage.

14. Miss Powell refers to Section 11(1) and (2) of the Magistrates' Courts Act 1980 as to the power of the court to proceed in the defendant's absence. Where that power is engaged the discretion must be exercised judicially which, as the case law establishes, includes giving the defendant a fair opportunity to be present.
15. It is submitted that an extradition hearing does not begin unless, first, a date has been fixed pursuant to Section 8(1) and (4); secondly, the case is called on, on the day so fixed; thirdly, the requested person appears or is brought before the judge pursuant to Section 10(1) or the judge decides to proceed in his absence when the requested person has been given a fair opportunity to be present; and, fourthly, the judge decides to begin the hearing. As a matter of ordinary language, the hearing cannot be said to have begun merely because the case was called on.
16. It is further submitted that the position adopted by the requesting authority has the undesirable practical implication that even if the requested person is not produced for reasons that are unknown or are demonstrably involuntary on his part, he would have no right to apply to be discharged under Section 8(8) however long he waits in custody before the next hearing.
17. For my part, I would accept Miss Powell's submissions on this aspect of the case. The mere calling on of the case with counsel present but in the absence of the requested person cannot amount to the commencement of the extradition hearing, nor does the fact that counsel hands in an opening statement to the court affect matters. It would, in principle, be open to the judge to begin the extradition hearing in the absence of the requested person, but one would not normally expect him to do so, not least because the questions he has to address at the initial stage are those in Section 10 which, by sub-section (1), is engaged by the requested person appearing or being brought before the judge.
18. In this case nothing was said or done to suggest that the judge did decide to begin the extradition hearing and then to adjourn it. One would have expected express language about the hearing being begun or opened if that had been the judge's intention. On the face of it, all he did was to adjourn the matter to the following day to enable the application for discharge to be made, and for the extradition hearing to begin if that application was refused.
19. Accordingly in my judgment the judge was right to reject the case put forward by the requesting authority on this issue. He was entirely correct in considering that he had not begun the extradition hearing on 1 October.
20. I turn to the second issue. The claimant's case is that the judge's decision was unlawful, first, because it took into account irrelevant considerations. The finding was predicated on the fact that only six days had passed since the first hearing and the production had occurred only one day late. But, it is submitted, the relevant test is not whether the length of the delay was reasonable but whether there was reasonable cause for the delay.
21. It is submitted, secondly, that the decision was irrational. The most that can be adduced from the explanation given by the Prison Service was that (i) the cause of non-production was within the control of the authorities responsible for delivering the claimant to court; (ii) the court had informed SERCO that the court would accept the claimant up to 1530 hours; (iii) there was no evidence to show that SERCO had tried to deliver the claimant to court by that time; and (iv) for reasons unknown, he was not produced. In all the circumstances it is submitted no reasonable decision maker could have concluded that there was sufficient evidence for the requesting authority to discharge its burden of establishing a reasonable cause for the delay.
22. Mr Lloyd stresses that the judge had to exercise a judgment on whether there was a reasonable cause for the delay. He submits that it is necessary, first, to identify the delay itself - which was 24 hours in this case - and, secondly, to ask about the cause of the delay which, in his submission, was administrative error in the prison. He contends that it should not have been necessary for the court to delve into what precisely lay behind that error.
23. In my judgment, the judge was right to dismiss the application for discharge. The delay in this case was the delay of one day from the date when the extradition hearing was fixed to begin. The cause of that delay could be described as the claimant's non-production at court on the day fixed for the extradition hearing to begin. It could also be described as the judge's decision not to begin the extradition hearing that day in the claimant's absence. In either case it seems to me that the cause was a reasonable one.
24. Non-production or late production of prisoners at court is a serious problem affecting the criminal courts throughout the country. It results in late starts and in adjournments. It is profoundly undesirable, but it is a fact of life with which the courts have to cope. If, as in this case, it causes a hearing to be put off until the following day, then, in my view, delay to the hearing can properly be said to have a reasonable cause. If one looks at the matter in terms of the judge's decision on 1 October, it is obvious that in this case the judge acted reasonably when, faced with the non-production of the claimant, he decided to put the hearing off to the following day.
25. Miss Powell's submissions concentrate on the fact that the non-production was itself the result, in part, of an administrative failure by the prison and, in part, the result of an unexplained failure by SERCO to deliver the claimant to court by 1530 hours on 1 October after the prison's error had become known. It is said that there is no reasonable excuse for the non-production. That may be so. But, in my judgment, that focus on the fault of the prison authorities or of SERCO is erroneous. The correct focus is on the situation in which the court found itself on 1 October as a result of non-production and on the court's reaction to that situation. I do not think that it can have been intended that the extradition procedures might be frustrated by questions as to whether or not there has been fault on the part of the prison authorities or of those responsible for delivering prisoners to court.
26. I accept that the judge may have focused unduly on the relatively short period since the initial hearing and the fact that the delay had been only one day. But I think he was entitled to have regard to those considerations as part of the overall circumstances of the case. Even if it could be said that he took into account an irrelevant consideration, such an error would not impel me to quash his decision because, in my judgment, for the reasons I have given, there was in this case a reasonable cause for the delay and the judge could properly so decide.
27. I would therefore dismiss this application.
28. MR JUSTICE GIBBS: I agree with my Lord, Lord Justice Richards, on both substantive issues to which this application gives rise.
29. I would add a few additional words on whether there was reasonable cause for delay. As it seems to me, the judge, in considering whether there was reasonable cause, was not confined to asking himself whether or not the error or omission of the prison service and/or the escort service was excusable or unreasonable. He was entitled to look at the issue in the light of all relevant circumstances. These included the fact that the court made all reasonable efforts to ensure that the error or omission of those agencies was put right in order to facilitate the applicant's attendance that day. They also included the fact that when those efforts had come to nothing the applicant's attendance was ensured at the next available opportunity, that is the following morning.
30. I accept that the mere fact that the delay was short does not, in itself, make it reasonable. But human or administrative error on occasion is inevitable. Here, after it had occurred, steps were taken to put it right and delay was thereby kept to a minimum.
31. I would hold that the judge would be entitled, and indeed would be right, to take into account the circumstances to which I have referred. Thus he was also entitled to decide as he did. These additional observations, in my judgment, go to support the conclusion which my Lord has reached, with which I agree.
32. I, too, would dismiss the application.
33. LORD JUSTICE RICHARDS: Is there any further application? Thank you.
34. MISS POWELL: My solicitor has just asked me to ask whether legal aid can be taxed.
35. LORD JUSTICE RICHARDS: Detailed assessment for the purposes, whatever the expression is, yes, certainly.
---