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
		15 March 2007

Lord Justice Scott Baker:

This is the judgment of the court to which both members have contributed.

Introduction.

1. These two cases, which concern extradition requests by the government of Romania, have been listed to be heard together because each concerns the right of appeal or review following remittal by the High Court of a question under s 104(1)(b) of the Extradition Act 2003 ("the 2003 Act"). In each case there is a statutory appeal under the 2003 Act. In Chen's case there is additionally an application for permission to apply for judicial review of the judge's decision. In Mitoi's case there is additionally a claim for permission to apply for judicial review of the Secretary of State's decision and, as will become apparent later in this judgment, the court has treated the material before it as creating an application for permission to apply for judicial review of the district judge's decision.
2. In both cases the district judges at the extradition hearings made orders under s 87(3) of the Act sending the cases to the Secretary of State for his decision. In both cases the appellants had been convicted in their absence. Accordingly the judge in each case had to decide whether any of the bars to extradition prescribed by s 79 existed and, if not, then to consider s 85 which deals specifically with convicted persons before moving to s 87 (infringement of Convention rights) and finally sending the case to the Secretary of State under s 87(3).

Chen.

3. Da An Chen, to whom we shall refer for convenience as "Chen," arrived in Bucharest with Yu Xing Yu and Zhai Jing Sheng in December 1991 with the intention of setting up an import/export company. The plan did not work out but the three took up residence in an apartment in Bucharest. It is claimed that a dispute broke out between Yu Xing Yu and Chen which culminated in Chen bludgeoning him to death with an axe. When Zhai returned he noticed that the layout of the apartment had been altered. Chen had hidden Yu's body under a bed. Zhai decided to leave and was in the process of gathering a suitcase from a bedroom when Chen attacked him with either the same or a similar axe. Zhai managed to find a knife with which to defend himself and escape. He alerted a neighbour before spending some two weeks in hospital. The police discovered Yu's body two days later on 27 January 1992, but in the meantime Chen had disappeared. Over 13 years later in 2005 he was provisionally arrested under a European Arrest Warrant granted under s 73 of the 2003 Act. At the time of receipt of the request for extradition Romania was designated as a category 2 territory. Accordingly, Part 2 of the 2003 Act was engaged. Following Romania's accession to the European Economic Community it has been redesignated as a category 1 territory from 1 January 2007. That, however, is of no direct relevance to the present appeals.
4. On 6 April 1995 Chen was convicted in Romania in his absence of offences that would in the jurisdiction of the United Kingdom have constituted murder (in the case of Yu) and wounding with intent (in the case of Zhai) and sentenced to 20 years imprisonment. His conviction and sentence became final (there being no appeal against either) on 6 September 1995.
5. A warrant for Chen's arrest was issued on 30 January 1992. He denies committing the offence and denies all knowledge of the proceedings until he was arrested in Liverpool in March 2005. On 18 March 2005 the Republic of Romania requested his extradition to Romania and this request was certified by the Secretary of State on 24 April 2005.
6. On 3 December 2005 Deputy Senior District Judge Wickham sent Chen's case to the Secretary of State pursuant to s 87(3) of the 2003 Act for his decision whether to order Chen's extradition. On 31 January 2006, pursuant to s 93(4) of the Act, the Secretary of State ordered his extradition. Chen did not appeal against the Secretary of State's decision but did appeal to the High Court under s 103 against Judge Wickham's decision. Judgment on the appeal was given by the Divisional Court (Maurice Kay LJ and Mitting J) on 23 June 2006. Two points were in issue before that court. Chen argued (1) that his extradition was barred by the passage of time by ss 79(1)(c) and 82 of the Act and (2) that he did not deliberately absent himself from his trial and that he would not be entitled to a retrial or review amounting to a retrial which would guarantee his rights, in particular under Articles 6(3)(c) and (d) of the European Convention on Human Rights, as required by s 85 of the Act. The court remitted the first point to the District Judge with a direction that she decide that question again. It dismissed the appeal on the second point, certifying that its decision involved a point of law of general public importance. It however refused leave to appeal. Chen then petitioned the House of Lords, but leave was again refused.
7. The remittal hearing took place on 12 September 2006. Judge Wickham, in a reserved judgment on 12 October 2006, rejected Chen's submissions and thus reached the same conclusion on the passage of time question that she had done before. Chen now seeks to appeal against this decision.

Mitoi.

8. Cristian Mitoi ("Mitoi") was on 20 September 2002, together with his brother Misu, convicted of a number of offences of dishonesty by the Criminal Section of the Dambovita District Court in provincial Romania. The offences were committed in 1999. Three offences were of fraud contrary to Article 215 of the Romanian Civil Code and two were of theft. The offences comprised issuing cheques for goods supplied by two different companies when there were no funds to cover them in the bank account on which the cheques were drawn.
9. Neither Mitoi nor his brother was present at the trial. Mitoi says he left Romania on the night of 30/31 May 1999. He told the district judge at the extradition hearing that he left Romania with his brother and that they arrived in the United Kingdom on 26 June 1999. Neither brother was present at the trial but they were represented by counsel, described by the court in the official record as "chosen counsel." There is no indication on the record that the facts on which the prosecution was based were disputed.
10. On 20 September 2002 Mitoi was convicted and sentenced to concurrent sentences amounting to 12 months imprisonment. The sentence was suspended for 3 years. On 18 June 2003, on the prosecutor's appeal, the sentence was increased to 3 years imprisonment and not suspended. On 6 February 2004 an appeal by Mitoi and his brother was rejected by the High Court of Cassation and Justice in Bucharest. They were represented by Gheorghe Birsan, described in the official record as "chosen counsel for defence."
11. On 26 February 2004 the Dambovita court issued a warrant for Mitoi's arrest and detention. On 3 March 2005 the Romanian government made a request for his extradition and on 15 March 2005 the Secretary of State certified that the request was validly made under Part 2 of the 2003 Act.
12. On 13 January 2006 at the extradition hearing District Judge Tubbs rejected Mitoi's contention that his extradition was barred by reason of extraneous considerations under ss 79(1)(b) and 81 of the Act and there was no challenge to that element of her decision. However, she also ruled that he had deliberately absented himself from his trial (see s 85(3)).
13. As he was entitled to, Mitoi appealed to the High Court under s 103 of the Act. The appeal was heard by a Divisional Court (again Maurice Kay LJ and Mitting J) on 7 June 2006. Having read fresh evidence on the point, the court ruled that the question whether Mitoi had deliberately absented himself should be remitted to the district judge and that the district judge should apply the criminal standard of proof in considering the question.
14. The matter came back before District Judge Tubbs on 10 October 2006. She decided, applying the criminal standard of proof, having considered the fresh material, that she was not satisfied that Mitoi had deliberately absented himself. She described the exercise she was required to undertake in the following terms:

"The matter has, therefore, been re-listed before me to consider the further evidence and re-determine the two questions of fact: first, was Cristian Mitoi aware of the trial and appeal proceedings and secondly, if so, did he deliberately fail to attend. That matter is remitted under s 104(1)(b) of the Act. If I decide the relevant questions differently then I must proceed as I would have been required to proceed if I had decided those questions differently at the extradition hearing (s 106(6) of the Act). That is, I would decide in accordance with s 85(5) and (8) whether Mr Mitoi would be entitled to a retrial or (on appeal) to a review amounting to a retrial. If I come to the same decision as I did at the extradition hearing the appeal must be taken to have been dismissed by a decision of the High Court (s 106(7) of the Act). The High Court decision confirms what I had always taken to be the position, that the standard of proof required is the criminal standard."

We do not think the district judge's analysis of how she was required to proceed was correct and we shall return to this in a moment.

The relevant legislation.

15. The High Court's powers on appeal from a decision of the district judge to send a case to the Secretary of State are set out in s 104:

"104(1) On an appeal under s 103 the High Court may –

(a) allow the appeal;

(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;

(c) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that –

(a) the judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that –

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must –

(a) order the person's discharge;

(b) quash the order for his extradition.

(6) If the judge comes to a different decision on any question that is the subject of a direction under subsection (1)(b) he must order the person's discharge.

(7) If the judge comes to the same decision as he did at the extradition hearing on the question that is (or all the questions that are) the subject of a direction under subsection (1)(b) the appeal must be taken to have been dismissed by a decision of the High Court."

16. In each of the present cases the High Court directed the district judge to decide again a question she had decided at the extradition hearing. The judge in Chen's case came to the same conclusion as before, but the judge in Mitoi's case came to a different conclusion. The consequence of these decisions is to be found in subsections (6) and (7) of s 104. Thus the judge was on the face of subsection (6) required in Mitoi's case to discharge him whereas in Chen's case, by subsection (7) his appeal was taken to have been dismissed.
17. As will be apparent, the judge in Mitoi's case did not discharge him but went on to consider subsections 85(5) and (8). The focus of the hearing before us has been on what, if any, remedy each of Chen and Mitoi now has.
18. The only right of appeal for the individual in Part 2 of the 2003 Act is in s 103 from the decision of a district judge and s 108 from the decision of the Secretary of State.

S 116 provides:

"A decision under this Part of the judge or the Secretary of State may be questioned in legal proceedings only by means of an appeal under this Part."

19. S 116 is not an 'ouster' provision in the true sense of the word. What it does is to ensure that the only right of appeal is under the express provisions within the scheme of the 2003 Act. In our view it is not possible to go behind s 116 and thus undermine the scheme of the Act, which is quite particular about when and how the appeal process operates.
20. The various provisions for appeals "under this Part" (Part 2 of the Act) are set out in ss 103 – 115. It will be observed that where the High Court hears an appeal under s 103 it has three options; it either allows the appeal, dismisses the appeal or sends back a question or questions to be re-decided by the judge. The way that subsections 104(6) and (7) are phrased is such that, depending on whether the judge comes to the same or a different decision, the consequence is that the appeal is either treated as dismissed or the appellant is discharged. The re-determination of a question by the district judge is treated as an extension of the appeal process to the High Court. Effectively the district judge's decision is treated as if it was the decision of the High Court. There is therefore no appeal to the High Court from a re-determination of a question by a district judge. The only route of appeal lies to the House of Lords under s 114 of the Act. S 114(1) provides for appeal to the House of Lords from a decision of the High Court on an appeal under ss 103, 105, 108 or 110. In the present case the relevant section is s 103.
21. Leave to appeal lies only with the leave of the High Court or the House of Lords and by s 114(4) leave must not be granted unless the High Court has certified that there is a point of law of general public importance involved in the decision and it appears to the court granting leave that the point is one which ought to be considered by the House of Lords.
22. S 114(5) provides:

"An application to the High Court for leave to appeal under this section must be made before the end of the permitted period, which is fourteen days starting with the day on which the court makes its decision on the appeal to it."

23. Bearing in mind that s 104(7) treats the decision of the district judge as effectively the decision of the High Court, it seems to us that an appellant's only route of appeal against a district judge's decision redetermining a question remitted to him when he reaches the same conclusion as before is to apply to the High Court for certification within 14 days of the District Judge's decision. It is to be observed that the 14 day time limit in s 114(5) is mandatory.

Chen's appeal.

24. Chen has sought to appeal to the High Court against the re-determination of Judge Wickham. His grounds of appeal are as follows:

"1. The learned district judge was factually wrong to conclude that Chen "fled the scene and area and the country" so that any prejudice brought to him by delay should not avail him. The evidence did not support the conclusions to the required standard.

2. The district judge erred in concluding that due to the lack of oral evidence she was unable to assess the potential unfairness to the appellant of conducting a retrial after such delay.

3. Further and in the alternative she failed to direct herself that the real injustice arose from the inability after such lapse of time to challenge the evidence of the chief prosecution witness, who would be both unavailable and whose whereabouts are unknown. Evidence from the key witness remaining in standard form, and in those circumstances prejudice arose from the inability to challenge the prosecution case as much as from the difficulties of securing evidence to support the appellant's alibi defence. For all these reasons reliance on Ewan Quayle Launder (No 2) [1998] QB 994, 1003 was inappropriate.

4. The district judge wrongly concluded that her decision was final in accordance with s 104(7) given that there had been no previous decision on prejudice.

5. The appellant asserts that the High Court have jurisdiction to hear this appeal and would invite the court to consider this as a preliminary issue."

25. It should be noted that Chen's first appeal was brought on two grounds. He contended that he should have been discharged from the extradition proceedings (i) due to the passage of time (s 82) and (ii) because he was convicted in his absence (s 85). On 23 June 2006 the Divisional Court dismissed his appeal on the s 85 ground but remitted the s 82 issue to the district judge under s 104(1)(b).

The question remitted in Chen's case was in the following terms:

"Under s 104(1)(b) of the Extradition Act 2003 the question as to whether the appellant's extradition ought to be barred by reason of the passage of time, under s 79(1)(c) of the Extradition Act 2003 is remitted to Bow Street Magistrates' Court with a direction that the judge decide that question again."

As Mitting J put it in paragraph 28 of his judgment:

"Accordingly, I would remit the question to the District Judge for her to decide again the question of whether or not extradition is barred by reason of the passage of time and to answer that question by deciding whether or not it would be unjust, and not merely oppressive, to extradite him by reason of the passage of time. That issue should be decided on the evidence adduced and the submissions made by both parties at the remitted hearing."

26. As will become apparent when we consider Mitoi's case, it is of critical importance that the remitted question is carefully drafted and the High Court's order drawn appropriately. Fortunately that happened in Chen's case.
27. Mr Fitzgerald Q.C. who has appeared for Chen, makes two basic submissions:

i) There is a right of appeal following the district judge's adverse conclusion on the remitted question.

ii) The court should allow the appeal or at least direct a further consideration under s 104(1)(b) because the district judge erred in law in ruling that there was no injustice in returning Chen for trial in Romania after such a lengthy lapse of time; and because she failed to recognise that one consequence of the lapse of time was that he would have no effective right to reopen his conviction in absentia and no effective right to challenge the written statement of the chief prosecution witness by way of cross-examination.

If there is no right of appeal, the second question does not arise.

28. The case was sent back to the district judge to reconsider whether Chen's extradition was barred by the passage of time. S 82 provides:

"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and if only) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he has alleged to have become unlawfully at large (as the case may be)."

29. The Divisional Court dismissed the appeal as regards the finding of the judge under s 85. It did so in terms which made it very clear that the decision to remit the other question would not reopen any part of the s 85 issue. Maurice Kay LJ, agreeing with the judgment of Mitting J, remarked that he had wondered whether there should be a remission to the district judge also of the s 85 question but was persuaded that that was a question that the High Court itself could and should answer.
30. The answer to the remitted question would, undoubtedly, be determinative of the appeal. It was helpfully referred to in argument by Mr Perry Q.C., who has appeared for the Secretary of State, as "a discharge question" i.e. as opposed to a question which, if answered in the appellant's favour would simply lead to a further question. At the hearing of the remitted question Judge Wickham answered the question in the same way as before. She held that extradition was not barred by reason of the passage of time either because it would be unjust or because it would be oppressive.
31. Substantial complaint is made about that ruling, as it was indeed about the earlier ruling, in relation to the retrial provisions, on which the appeal had been expressly dismissed by this court. Expert evidence was relied on before the district judge as it had been before this court, in relation to the Romanian provisions for retrial and in particular the lack of any entitlement to cross-examine the principal witness.
32. It seems to us that the core of Mr Fitzgerald's complaint now is that the district judge erred in concluding there was no injustice in returning Chen to Romania after such a lengthy lapse of time. She failed to recognise, so it is said, that one consequence of the lapse of time, taken in conjunction with the practice of the Romanian courts, was that Chen would have no effective right to reopen his conviction in absentia and that that he would not be able to challenge the written statement of the chief prosecution witness by way of cross-examination. The difficulty for Chen now is that this did not form part of the remitted question. The district judge having answered the remitted question as before, the appeal was at once deemed to have been dismissed by this court.
33. Mr Fitzgerald submits that the underlying question on the remittal hearing was whether it was unjust to extradite Chen and the district judge never came to a decision on that at all. He argues that she did not come to the same decision on that because she had never considered it before. The Divisional Court should have been specifically asked to put the question in that way. But, he says, that is the effect of what Mitting J was saying at paragraph 28. He submits that s 104(1)(b) only applies when the Judge comes to the same decision as she did at the extradition hearing on the question that is (or all the questions that are) the subject of a direction under subsection 104(1)(b). When, as here, the actual and specific issue remitted to the district judge, and decided adversely by her on the remitted case – namely whether it would be unjust to extradite the appellant – was never decided before, the judge's decision is governed by the normal procedures in ss 79 – 87 of the 2003 Act save that the district judge does not have to redecide matters already decided at the earlier hearing. The district judge must therefore proceed to send the case to the Secretary of State unless any of the other bars to extradition apply.
34. We are unable to accept Mr Fitzgerald's submission. Chen has no further right of statutory appeal to the High Court. We have no jurisdiction to entertain any appeal. The statute is clear. Where a remitted question has, as before, been decided adversely to an appellant, the effect of s 104(7) is that the original appeal is taken to have been dismissed by the High Court.
35. In the alternative to a statutory appeal, Chen seeks permission to apply for judicial review of the district judge's failure to refer the case to the Secretary of State under s 87(3). This is on the basis that she should not have declared her decision to be the final decision of the High Court in accordance with s 104(7).
36. The mechanism of the Act is that when the district judge has considered all requisite matters and has not found any reason to discharge the individual he or she is required to send the case to the Secretary of State for his decision whether the person should be extradited. The judge is required to tell the person that he has a right of appeal but that that right cannot be exercised until the Secretary of State has made his decision (s 92(2)). The Secretary of State's powers are much more limited than they were under the extradition Act 1989 and the purpose of this provision is to achieve a more streamlined and speedy procedure.
37. The problem that Chen faces in his judicial review claim is similar to that faced by the claimant in R (Okandeji) v Bow Street Magistrates Court and others [2006] 1 WLR 674; [2005] EWHC 2925 (Admin) DC. In that case the claimant was the subject of an extradition request by the government of Australia. Australia is a category 2 territory. The district judge sent the case to the Secretary of State and the Secretary of State ordered the claimant's extradition. The claimant appealed and the Divisional Court (Maurice Kay LJ and Moses J) sent the case back to the district judge to re-determine a question pursuant to s 104(1)(b) of the Act. The claimant received a second adverse decision and was therefore stymied by s 104(7). He sought judicial review of the district judge's decision.
38. Maurice Kay LJ, in a judgment with which Penry-Davy J agreed, said there was no doubt the purpose of the 2003 Act was to provide streamlined procedures and to avoid successive and repeated applications which, under the 1989 Act, often had the effect of unduly prolonging extradition proceedings. Then he said:

"Mr Hardy (on behalf of Australia) and Mr Perry (on behalf of the Secretary of State who has been permitted to intervene) submit that the language of section 104(7) is clear and unambiguous. Where this court has remitted a question to the District Judge under section 104(1)(b) but the District Judge has come to the same conclusion as he did at the original extradition hearing, "the appeal must be taken to have been dismissed by a decision of the High Court." In these circumstances, judicial review of the second decision of the District Judge is simply unavailable. This is made abundantly clear by section 116 which limits challenges to decisions of District Judges to the appeal procedure described by Part 2. Accordingly, a deemed decision of the High Court is not amenable to judicial review by the High Court nor to any route of appeal save that, in an appropriate case, the deemed decision may result in an appeal to the House of Lords under section 114 subject to certification and leave."

39. He then recited the arguments of Mr Summers, who had appeared for the claimant, observing that Mr Summers' starting point was that if a second decision of a district judge is demonstrably wrong in law but does not raise an issue of general importance it would be highly unusual for there to be no process of appeal or review in relation to it and said at para 19:

"I entirely accept that a statutory structure in which, in one limited situation, a decision of a District Judge will usually be final, is novel, particularly in the context of Convention rights. However, the context is one in which there has already been access to the High Court and the sole remaining task of the District Judge is to reconsider a question in the light of the judgment of the High Court. Where the High Court itself has all the necessary material, it is more likely to answer the question itself, for example by reference to section 104(4)(a). That would have been the case here if the Divisional Court had had before it the expert evidence on Australian law. However, in the absence of that evidence, it exercised its power to remit. What has to be borne in mind is that the purpose of the 2003 Act was to reduce the amount of to-ing and fro-ing with multiple and successive appeals."

He considered that the decision of the district judge was deemed to be a decision of the High Court pursuant to s 104(7) and that it was not amenable to further appeal or review unless suitable for consideration by the House of Lords.

40. In our judgment the reasoning in Okandeji is, with respect, plainly correct and the circumstances of Chen's case are indistinguishable. Judge Wickham performed the function that was delegated to her by the Divisional Court under the statute. Her decision is treated by the statute as that of the High Court and the only route of appeal lies to the House of Lords. Her decision is not in our view amenable to judicial review; she acted perfectly lawfully and within the ambit of the provisions of the statute. We can see, therefore, no basis for granting Chen permission to apply for judicial review.

Motoi's appeal

41. The matter that caused the Divisional Court to remit Mitoi's case to the district judge was her decision that Mitoi had deliberately absented himself from his trial before the Dambovita Court on 20 September 2002. That was, as the Divisional Court pointed out, the sole issue that had arisen before the district judge.
42. As Mitting J observed, the relevant statutory provision was s 85 of the 2003 Act. It provides:

"(1) If the judge is required to proceed under this section he must decide whether the person was convicted in his presence.

(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under s 87.

(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.

(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under s 87.

(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.

(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under s 86.

(7) If the judge decides that question in the negative he must order the person's discharge.

(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights –

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

43. District Judge Tubbs had decided the question in subsection (3) in the affirmative and was therefore required to proceed under s 87 which she did, sending the case to the Secretary of State. It should be noted that no question arose before the district judge, and there was no question before the Divisional Court, about retrial entitlement under subsections 85(5) – (8). The judge had simply decided the issue under subsection (3) that Mitoi had deliberately absented himself and accordingly she moved straight to s 87. As his extradition would be compatible with his Convention rights, she accordingly sent the case to the Secretary of State telling Mitoi under s 92 that he had a right of appeal to the High Court.
44. This court considered that the reasoning of the district judge on the s 85(3) issue, on the material before her, could not be faulted. However, further material was before this court in the form of witness statements from two Romanian lawyers, leading this court to conclude that there was material which might persuade the district judge that the question whether the appellant voluntarily absented himself from the trial should be answered differently. Mitting J, with whom Maurice Kay LJ once again agreed, said this:

"The witness statement of Adriana Dascalu is, on reading and rereading, curious and obscure, but it may persuade the District Judge, if the matter is to be remitted to her, that one of the conclusions that she reached – that the appellant had chosen counsel, counsel of his choice, to represent him at the trial – was erroneous. It is a matter which can only be resolved after further exploration of the documentary evidence and almost certainly further evidence from and cross- examination of the appellant. It is therefore a matter which is fit for remission to the District Judge under s 104(1)(b) of the 2003 Act, for her to reconsider the question whether or not the appellant voluntarily absented himself from the trial, and I would propose in relation to that issue that that course be adopted."

Mitting J went on to consider the burden and standard of proof to be applied to that question, concluding that the criminal standard of proof should be applied. He concluded:

"I would therefore direct the district judge when she reconsiders the question under s 85(3) (our emphasis) to apply to it the criminal standard of proof)."

45. The Divisional Court's order was recorded in these terms:

"(1) This appeal be allowed and be remitted back for consideration by District Judge Tubbs.

(2) It is recommended by the judges that when reconsidering the matter a "criminal standard of proof is to be applied."

46. It is apparent that the district judge was supplied with a copy of the transcript of the Divisional Court's judgment which, as is apparent from the passage we have cited, was a good deal more explicit than the order in what was required of her.
47. The difficulties that have arisen in this case illustrate that it is crucial when a question is remitted under s 104(1)(b) first that great care is taken in formulating the precise question the district judge is required to answer and second that the court's order should spell out precisely and accurately the court's decision. The terms of the order should, if possible, be agreed between counsel and approved by the court.
48. The difficulty which arises in Mitoi's case is that the remitted question was not what Mr Perry calls a "discharge" question, the "yes" or "no" answer to which would be determinative of the extradition hearing. At the extradition hearing, if the district judge answers the s 85(3) question in the affirmative she does not without more send the case to the Secretary of State, but must move first to s 87. If she decides it in the negative than she must go on to decide the issue of retrial under the remaining subsections of s 85.
49. The problem with the form of question in the present case can be seen from examining what actually happened at the hearing of the remitted question. Whereas at the extradition hearing the judge had decided the question in the affirmative, at the remittal hearing she decided it in the negative. She decided that Mitoi had not deliberately absented himself from his trial. She had decided that question differently when the matter was originally before her and as that was the question that was the subject of direction under subsection 104(1)(b) she was obliged by subsection 104(6) to order his discharge. The district judge did not, however, order his discharge. Instead she proceeded as if she had been conducting the extradition hearing and went on, as provided by subsections 85(5) and (8), to consider whether Mitoi would be entitled to a retrial or (on appeal) to a review amounting to a retrial. She said the government had provided confirmation from the Ministry of Justice in Romania that Mitoi did have a right of retrial, having been convicted in his absence. Having decided the questions in subsections 85(5) and (8) in the affirmative she then proceeded, as she had before, under s 87, and again sent the case to the Secretary of State.
50. Mr Perry submits that the remitted question was inappropriately expressed, or rather that it should have been framed in such a way as to be a discharge question. Mr Perry's argument is that only "discharge" questions should be remitted. Although s 104(1)(b) -does not expressly limit the type of question that may be remitted, he submits that this is apparent from looking at the High Court's powers as a whole under s 104. In particular the court's power to allow an appeal only arises if the conditions in subsections (3) or (4) are satisfied. The end point of each of those subsections is the person's discharge. Since a judge deciding the remitted question is in effect doing so on behalf of the High Court it is apparent that the remitted question must achieve a similar result. We see the force of this submission and when the High Court remits a question to the district judge it is advisable for the court to look carefully at the material provisions in the Act to ensure that any consequential issues that may be thrown up by the answer to the question are, if necessary, incorporated within the question itself. Thus, in the present case, the question of retrial had not previously arisen, because the judge had concluded that Mitoi had deliberately absented himself, but was going to arise, if, as turned out to be the case, she decided on the remittal he had not deliberately absented himself. There would have been no problem in the present case had the remitted question been phrased:

"Whether Mitoi was entitled to be discharged under s 85."

51. It is true that s 104(1)(b) is phrased in such a way that this court may only remit a case to the district judge to decide again a question which he has previously decided at the extradition hearing, but it seems to us that in order to give any sense to the provision it must be read so as to incorporate any further question arising within s 85 which the judge would be required to decide in the event that she decides the initial question differently.
52. Mr Perry submits that we should read the remitted question in this case as including the retrial issue under s 85(5). A remitted question must he argues cover the whole of s 85 and not just part of it. The difficulty with that submission seems to us to be that the Divisional Court did not ask the judge to consider the question of retrial or review although it might and indeed should have done so had counsel then acting for the parties invited it to. In our view, the answer that the judge gave to the question that was remitted was different from that which she had given at the extradition hearing and the inescapable conclusion is that she should have ordered Mitoi's discharge under s 104(6).
53. We have some sympathy with the judge, faced as she was with a question that was not a discharge question. However, she was in our view wrong to overlook s 104(6) and instead, in effect to resume the extradition hearing. She concluded by sending the case once again to the Secretary of State under s 87 having made a fresh decision on a matter that was not the subject of the remitted question. Plainly she thought a right of appeal existed against that fresh decision. Indeed she told Mitoi so under s 92(2) of the Act. That, however, is not the way that the legislation works. Parliament has given the High Court the power, instead of allowing or dismissing the appeal to send a question back to the judge to be re-considered. But when that question is decided by the judge the effect is as if the question had been decided by the High Court itself.
54. The judge was therefore wrong to continue through s 85(5) and s 87. She had no power to send the case a second time to the Secretary of State. The Home Office was therefore correct to reject the sending as of no legal validity. However, in our view the correct analysis of the situation is not that the appeal had been dismissed by s 104(7) of the Act. The true position was that, the judge having decided the question that was actually remitted in favour of Mitoi, Mitoi should have been discharged under s 104(6).
55. It is of some interest to compare the High Court's powers under s 106 on an appeal against discharge at the extradition hearing with those under s 104, where the appeal is by the individual against his case being sent to the Secretary of State. S 106 gives the High Court power to direct the judge to decide the relevant question again. A question is defined as relevant in s 106(2) if the judge's decision on it resulted in the order for the person's discharge. In s 104(2) the questions that may be remitted are not limited in any similar way. But, as we have observed the conditions for allowing an appeal under subsections 104(3) and (4) involve as their end point questions that would have been answered so as to result in the appellant's discharge. There is therefore a consistency of approach between ss 104 and 106 which supports Mr Perry's argument that it was wrong to remit a non-discharge question to the judge.
56. The right of appeal that brought this case to the Divisional Court in the first instance was against "the relevant decision" (see s 103(1)). The relevant decision is described in s 103(3) as the decision that resulted in the case being sent to the Secretary of State. Mr Perry submits that reading s 104(1)(b) with s 103(3) makes it plain that questions must be such as led to the relevant decision i.e. the decision to send the case to the Secretary of State. The only discharge question in s 85, submits Mr Perry, is that posed in s 85(7).
57. What is Mitoi's remedy? Notwithstanding he was told by the district judge he had a right of appeal to the High Court, it is plain that he had no such right of appeal under the 2003 Act. Once, as in this case, a question has been remitted to the judge, one of two things happens. If the judge comes to a different decision she must order the appellant's discharge (s 104(6)) or if she comes to the same decision the appellant's appeal is deemed to have been dismissed by the High Court (s 104(7)). Mr Perry's position is that it is to be implied that the Divisional Court remitted a wider question to the judge which was answered in the same way as at the extradition hearing. By s 104(7) the extradition order has now become final in the sense that (subject to any appeal to the House of Lords which is out of time) Mitoi's original appeal to this court now stands dismissed. The fact that the district judge erroneously told him he had a further right of appeal is nothing to the point. We cannot accept this submission. The district judge should have ordered the appellant's discharge under s 104(6).
58. Mitoi has no statutory appeal under s 103. There is no second appeal and the hearing of the remitted question was not an extradition hearing within the meaning of s 140; it was a hearing limited as defined by s 104. No judicial review lies against the Secretary of State, who was in our view correct to reject the second sending of the case to him by the district judge.
59. We were told by Miss Lloyd Jacob, who has appeared for Mitoi, that the problem that occurred in this case arose from a change of presentation of the case on the part of the Romanian Government. It was not suggested at the extradition hearing that there might be a right to a retrial nor was there any discussion about the conditions under which any retrial might occur. Furthermore that possibility was not mentioned at the appeal hearing before this court. No doubt this court, when remitting the case and formulating the question under s 85(3), was under the impression that the answer to the question it remitted would be determinative and so bring about the consequences in s 104(6) or (7). It was only at the remittal hearing that the Romanian Government put forward the case that satisfied s 85(5). In our view it was not open to the judge at that stage, in view of the terms of the remitted question, to embark on that issue. Miss Lloyd Jacob points out that if it had been made clear at an earlier stage that there were provisions for a retrial, the other issues under s 85, and in particular whether Mitoi deliberately absented himself, would have been irrelevant. Perhaps she was at fault for not objecting to the admission of the evidence about a retrial. It should have not been admitted because it did not fall within the ambit of the question that the district judge had been asked to redecide.
60. We think it desirable to say a word or two about the procedure that might be adopted in other cases so that similar difficulties may be avoided in the future. The "flow chart" structure of the 2003 Act, as it was described by Lord Donaldson of Lymington during the Bill's passage through the House of Lords, is a potential source of problems. Questions the judge was not obliged to answer may become relevant if a question he did answer should have been answered differently. Where, as in the present case, a negative answer to the question under appeal (s 85(3)) would have led to the judge at the extradition hearing being required to consider a further question (s 85(5)), the judge should ascertain from the parties whether there is any issue and, if so, hear the evidence and resolve it. This requires the parties to be ready to deal with all points that may arise at the extradition hearing. This should not be an undue burden because the extradition hearing is, after all, the hearing at which the judge has to decide whether to send the case to the Secretary of State for his decision whether the person is to be extradited.
61. If this course is not followed there is a risk that an entirely new question will be brought into play at the appeal stage or, as in this case at the hearing of the remitted question. As we have mentioned, there are difficulties with the wording of s 104 about considering for the first time on appeal questions that were not considered by the judge at the extradition hearing. Further, it would be most unsatisfactory for an issue such as a right to retrial or review that had not been decided at the extradition hearing to be decided for the first time on a remitted question, as there is no right of appeal to the High Court in the event of an error on the part of the judge.
62. In our judgment the appropriate remedy in Mitoi's case is judicial review of the district judge's decision. In purporting to decide issues beyond those within the question remitted to her and in sending the case a second time to the Secretary of State she was acting outwith the powers conferred upon her by the statute. Once she went beyond the four corners of the statute it seems to us that the judge was not making a decision under Part 2 and accordingly the prohibition in s 116 on questioning her decision other than by an appeal under Part 2 does not bite.
63. The principle in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 applies. S 116 cannot operate to prevent judicial review because the district judge was purporting to exercise a jurisdiction that she did not have.
64. We are fortified in our view that judicial review is appropriate in Mitoi's case because he was told erroneously by the district judge that he had a right of appeal to the High Court.
65. There is before the court in Mitoi's case an application for permission to apply for judicial review of the Secretary of State's decision of 23 October 2006 declining to reconsider his decision to order Mitoi's extradition to Romania. For the reasons we have given, we do not think the district judge should have sent the case to the Secretary of State on the second occasion. The application for judicial review against the Secretary of State is misconceived and accordingly permission is refused.
66. During the course of the hearing before us it became apparent that the appropriate remedy might be judicial review of District Judge Tubbs's decision of 10 October 2006 rather than a statutory appeal. It was agreed that we should treat the hearing as a claim for judicial review, that we should grant the necessary extension of time and waive the necessity for service of the claim and all other formal requirements, provided that the consent of the district judge was forthcoming. This has been obtained.
67. We would add this, that with hindsight the question remitted should have been drawn so as to cover the whole of s 85. The question the judge should have been asked to decide was whether Mitoi was entitled to be discharged under s 85, thus bringing into the question s 85(5). The Divisional Court did not formulate the question in that way because the Romanian Government never made it clear to it that Mitoi could indeed be retried.

Conclusion.

68. Chen's appeal and application for permission to apply for judicial review both fail because District Judge Wickham decided the question remitted to her under s 104(1)(b) in the same manner as she had done originally. In those circumstances Chen's original appeal to the High Court was deemed by s 104(7) to have been dismissed. The 2003 Act provides for no further avenue of appeal, save to the House of Lords, which is now out of time. S 116 provides that it is not now open to question the district judge's decision in this court on the remitted question.
69. Mitoi's claim for judicial review succeeds against the district judge because she acted unlawfully in proceeding beyond the question remitted to her. Having answered the remitted question differently from the earlier occasion she should have discharged Mitoi under s 106.