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
		8th June 2009

1. LORD JUSTICE PILL: This is an application for a writ of habeas corpus arising out of a decision of District Judge CSR Tubbs at the City of Westminster Magistrates' Court (CWMC) on 27th May 2009. The District Judge refused an application by Gary Samuel Owens, the applicant, who was subject to an order for extradition to Spain, to be discharged under section 36(8) of the Extradition Act 2003 ("the 2003 Act"). The applicant challenges that finding and seeks his discharge.
2. On 2nd April 1991 the applicant was arrested in Tenerife and transferred to the court of first instance at Marbella for offences of murder and robbery alleged to have been committed in Marbella in February 1991. He was later released on bail and, in 1995, left the jurisdiction of that court and came to the United Kingdom. A detention order was issued. Eventually, on 6th August 2007, by means of a European Arrest Warrant (EAW), the extradition of the applicant was requested by the court of first instance, number 4 of Marbella, an interested party, in respect of the alleged offences.
3. Spain has been designated a category 1 territory pursuant to section 1 of the 2003 Act. The warrant was received by the Serious Organised Crime Agency (SOCA), also an interested party, and an authority designated by the Secretary of State for the purposes of Part I of the Act. The EAW was certified by SOCA under section 2 of the 2003 Act on 27th February 2008. On 26th February 2009, at CWMC, District Judge Tubbs ordered the applicant's extradition pursuant to section 21(3) of the Act.
4. On 15th May 2009 Bean J and Lloyd Jones J, sitting in this court, dismissed an appeal against that order. The court ordered:

"... the application of the claimant for certification of points of law of general public importance and for permission to present a petition of appeal to the House of Lords be refused".

5. Section 36 of the 2003 Act provides, insofar as is material:

"(1) This section applies if—

(a) there is an appeal to the High Court under section 26 against an order for a person's extradition to a category 1 territory, and

(b) the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.

(2) The person must be extradited to the category 1 territory before the end of the required period.

(3) The required period is—

(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or

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

(4) The relevant court is—

(a) the High Court, if there is no appeal to the House of Lords against the decision of the High Court on the appeal;

(b) the House of Lords, if there is such an appeal.

(5) 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.

(6) These must be ignored for the purposes of subsection (5)—

(a) any power of a court to extend the period permitted for applying for leave to appeal;

(b) any power of a court to grant leave to take a step out of time.

(7) The decision of the House of Lords on the appeal becomes final when it is made.

(8) If subsection (2) 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."

Subsection (9) refers to Scotland and need not be cited. Not all sections are relevant to this appeal, but I have set them out in order that the full scheme should be specified.

6. On 25th May 2009, no steps having been taken to remove the applicant, application was made to CWMC for his discharge. The application was heard on 27th May. It was submitted on the applicant's behalf that the "required period" within the meaning of section 36(3) of the Act had expired, that the District Judge, who was the appropriate judge within the meaning of the section, was required to discharge the applicant under section 36(8) unless reasonable cause was shown for the delay, and that there was no reasonable cause.
7. The application was opposed, first on the ground that the required period had not elapsed and, secondly, on the ground that there was reasonable cause for the delay. The District Judge found in favour of the judicial authority on reasonable cause and by consent assumed, without deciding the point, that the required period had elapsed. The District Judge added that had she been minded otherwise to grant the application for discharge, she would have adjourned for further research and argument about the meaning of "required period".
8. There is now an agreed statement of facts as to the sequence of events in May 2009. It differs from the evidence placed before CWMC. The District Judge found that administrative error is capable of amounting to reasonable cause within the meaning of section 36(8) and that, there being no suggestion of bad faith, general inefficiency or slack administration, the "human error" which had occurred, though regrettable and unfortunate, was the cause of the delay and was a reasonable one.
9. The judge stated:

"If it is accepted that the 'required period' is 10 days from that date [that is 15th May 2009] then SOCA's discovery on the morning of 26th May is very shortly afterwards and steps were taken to put it right and delay has thereby been kept to a minimum."

10. The District Judge purported to grant an extension of time under section 36(3)(b), but it is agreed that she had no power to do so, the CWMC not being the relevant court within the meaning of section 36(3). That part of her order, at least, has been discharged by consent.
11. An application was made to this court for a writ of habeas corpus. The application was heard on the afternoon of 3rd June by this court as now constituted. On the morning of 4th June, the court announced its decision dismissing the application with reasons to be given this morning, Monday, 7th June. The court also stated that if it decided the jurisdiction of the court should have been invoked under its judicial review jurisdiction and not its habeas corpus jurisdiction, permission to apply for judicial review would be granted and the application for judicial review refused. The court was prepared to assume that jurisdiction, if necessary.
12. SOCA has submitted that the challenge to the District Judge's decision should properly have been brought as an application for judicial review. Reference was made to the observations of Richards LJ in Gronostajski v Government of Poland [2007] EWHC 3314 (Admin) at paragraphs 8 and 9:

"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."

13. Mr Summers, for the applicant, referred to other cases in which procedure by way of habeas corpus had not been challenged. There is no need for us to decide that issue, and we do not do so, though the observations of Richards LJ, with which, at any rate in the absence of fuller argument, I agree, should be borne in mind in future cases.
14. Mr Summers has frankly accepted the procedural advantage to an applicant of habeas corpus. Unlike an application for judicial review, the applicant's ability to take the case beyond the High Court to the House of Lords does not depend on the need to obtain permission to apply for habeas corpus, or on the requirement, if judicial review is granted, but the application refused, that the case be certified as involving a point of law of general public importance.
15. It is common ground that the court should assess the reasonableness of the cause shown for the delay by reference to the facts now agreed. The SOCA officer with conduct of the case, codenamed "Kent", was of the opinion that in the circumstances the required period under section 36(2) of the 2003 Act was a total of 24 days, 14 days in which the applicant had the right to apply to the High Court for certification of a point of general public importance arising out of the decision of 15th May, and to apply for leave to appeal, followed by the 10 days mentioned in section 36(3)(a). The required period would not, on that basis, end before 7th June. He set a reminder on the SOCA system for 25th May and went on leave.
16. On 20th May 2009 the Crown Prosecution Service (CPS) sent an e-mail to SOCA's central address, indicating its view that the required period had expired on 24th May 2009. The SOCA team leader, who accessed that e-mail, agreed with the CPS' opinion. Kent's own team leader subsequently agreed with Kent's analysis of the expression "required period".
17. Mr Summers has made submissions on both the "required period" issue and the "reasonable cause" issue. On the first, he relied on what he submits is a plain reading of section 36(3) and (5) and the decision of this court in Wood v City of Westminster Magistrates' Court [2007] EWHC 2058 (Admin). Mr Summers submitted that the decision of the High Court on the appeal to it became final at midnight on 24th/25th May. Further, he submitted that the administrative error, the misconstruction by Kent of the expression "required period", was not a reasonable cause for delay within the meaning of section 36(8). Reliance is placed on the decisions of this court in re Oskar [1988] Independent, 10th March, and re Lindley, CO/1183/97, 29th October 1997.
18. The expression "reasonable cause" has its genesis in earlier extradition statutes. It should now be read, it is submitted, in the context of the Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA). Article 23 provides:

"Time limits for surrender of the person

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.

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 10 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 10 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."

19. Section 36, it was submitted by Mr Summers, gives effect to Article 23 of the Framework Decision and requires a narrow construction of the words "reasonable cause". Framework decisions are binding on Member States as to the result to be achieved, but leave to national authorities the choice of form and methods. National law must be construed by the national court, as far as possible, in the light of the wording and purpose of the framework decision in order to obtain the result that it pursues and thus complies with Article 34.2(b) EU: Dabas v High Court of Justice in Madrid [2007] 2 AC 31.
20. I can say now that I do not accept Mr Watson's submission that Article 23.5 of the Framework, which refers only to "release" and not to "discharge", was concerned only with the grant of bail. Given the presence of 23.3 and 23.4, which specify circumstances in which "surrender may be postponed", I regard that construction as impossible.
21. I consider, first, the meaning of "required period". Mr Summers submitted that, application for certification having been made and refused on 15th May, the decision of the High Court became final within the meaning of section 36(5) on that day. Upon a refusal to certify, there could be no appeal to the House of Lords. The required period of 10 days under section 36(3) thereupon commenced and had elapsed before the application for discharge was made under section 36(8). I have to say that on first reading that submission appeared to me to have much force.
22. In support of it, Mr Summers relied on the decision of this court in Wood, concerning the identical provision in Part II, section 118 of the Act. The chronology in that case, as stated by Leveson LJ at paragraph 1, was that an appeal to the High Court against an extradition order was heard and dismissed on 2nd June 2007. Leveson LJ stated:

"1... 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."

23. At paragraph 8 Leveson LJ, with whom Stanley Burnton J agreed, stated:

"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 straightforward, 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."

24. The question of construction arises in a context in which, as Leveson LJ pointed out, section 118 (and the same applies to section 36) does not expressly provide for the possibility of a need for certification.
25. For SOCA, Mr Watson, supported by Miss Scott for the requiring authority, submitted that the required period in sections 36(2) and (3) does not begin until the period of 14 days, within which certification and leave to appeal may be requested, has elapsed. Section 36(5)(a) applies and certification may be requested within that period. It makes no difference, he submitted, that certification was requested and refused on the day of decision, because the right to apply to certify, whether on a different point or, by re-application, on the same point subsists. The 14-day period contemplated in section 36(5)(a) cannot be abridged. That is confirmed, submitted Mr Watson, by the provision of section 32 of the 2003 Act, which confers and regulates the power to appeal from the High Court to the House of Lords.
26. Having referred to the requirement for leave (subsection(3)) and the requirement of certification (subsection (4)), subsection (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 14 days starting with the day on which the court makes its decision on the appeal to it."

A permitted period of 14 days is thus conferred with no suggestion of its curtailment by an application made, as in this case, for example, on the day the court made its decision.

27. A request to certify and for leave is frequently made, not on that day, but following consideration of the judgments given and the framing of a question, or questions, dealt with in the judgments. That is done on a date later, within the 14-day period, as happened in Wood.
28. In Wood the application to certify was not refused until over 2 months beyond the end of the 14-day period from decision. Mr Watson submitted that the case establishes, and is relevant to when the required period begins, only when a refusal to certify is declared at a date beyond the 14-day period. As Leveson LJ put it, "no point of law has ever [my emphasis] been certified". Nothing in Wood, it was submitted, suggests an abridgment of the 14 days granted by section 32(5) of the 2003 Act. The commencement of the 10-day period in section 36(3)(a) was deferred for much longer in Wood than it has been in the present case.
29. Mr Watson referred to the recent case of Norris v Government of United States of America [2009] EWHC 995 (Admin), where application was made for the certification of one question during the substantive hearing — speciality. That application was refused within the body of the judgment of the High Court. Subsequently, a second application was made at a later date within the 14-day period in relation to a different question — Article 8. The second application for certification was granted, though leave in relation to it was refused.
30. As Mr Summers submitted, the case is distinguishable, on its facts, from the present, in that two distinct appeals had been considered by the High Court in the same judgment: the specialty question and the Article 8 question. Mr Watson submitted that the case demonstrates that the 14-day period is sacrosanct.
31. I agree with the submission of Mr Watson on the meaning of the words "required period". As noted by Leveson LJ, the provisions of section 36 do not include reference to certification. That requirement, as well as the requirement for leave, is expressly set out in section 32. The permitted period is stated expressly in subsection (5) to be 14 days. A further application could have been made in this case within the 14-day period. In the context of extradition proceedings contemplated by the Framework Decision and the statute, as to which I will make further reference when considering reasonable cause, I do not consider that an application and a refusal of a certificate on the day of decision starts the 10-day period running within the 14-day period previously mentioned.
32. Such an effect, in the event, would have been an advantage, not to the judicial authority properly seeking extradition, but to the party seeking to avoid it. To make the running of a required period depend on when, within the period of 14 days, clearly stated in section 32, applications were refused would be to introduce uncertainty and an unwelcome technicality into the procedure. Moreover, the comparatively short period still involved (24 days) was inserted for the benefit, principally, of the judicial authority seeking extradition and, as in this case, seeking it promptly; it is not primarily for the benefit of the person resisting extradition. That is clear from the provision, in section 36(3)(b), that the authority may agree a later date with the relevant court, and may do so without reference to the applicant or his interests. Indeed, the court has followed that course in this case, extending the required period until 20th July.
33. I go on to consider reasonable cause. Whether there was reasonable cause for delay was considered in the case of Oskar under the Fugitive Offenders Act 1967, section 10(2), which provided as far as is material:

"... the court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody and, if a warrant for his return has been issued under the said section 9, quash that warrant."

34. The relevant decision of the House of Lords in Oskar was on 16th December 1987. Arrangements for removal to Australia were postponed to 27th February 1998, which was 11 days out of time. Giving a judgment, with which Nolan J agreed, Watkins LJ cited the decision of Lord Parker, Chief Justice, in Re Shuter [1960] 1 QB 142 at page 148. Lord Parker stated, when construing words in section 7 of the 1881 Act, that:

"Accordingly, it seems to me that when one is construing the words in section 7, 'unless sufficient cause is shown to the contrary', one is entitled to take into account questions such as reasonableness in all the circumstances. Once one gets as far as that, as a matter of construction, it seems to me quite plain that on the facts disclosed in Mr Rushford's affidavit no one could say that he was not acting perfectly reasonably in making the arrangements he did. One cannot shut one's eyes to the fact that this is only a matter of a day or two's delay and that the alleged offences are serious offences."

35. In Oskar, Watkins LJ found that the Home Office had misconstrued the effect of section 10 of the 1967 Act, and that there had been "administrative inertia in dealing with the offence lying on the file".
36. Watkins LJ concluded:

"The only relevant conduct is that of the Home Office in relation to the need to cause the applicant to be taken from custody and to be extradited expeditiously according to law. But two matters have, as I have said, been advanced for the admitted failure to do that: there was wholly avoidable delay in dealing with the offence on file and a misconstruction of section 10(1) of the Fugitive Offenders Act 1967. I do not see how the description 'reasonable' can apply to those errors in fact and in law. They are I feel bound to say inexcusable and come nowhere near constituting sufficient cause to allow us to refrain from directing forthwith the discharge from custody of the applicant and I would so order."

37. Re Lindley was a decision under section 6(1) of the Backing of Warrants (Republic of Ireland) Act 1965. The section provides a superior court with a power to discharge "unless reasonable cause is shown for the delay". The word "may" is used, as it had been in section 7 of the 1881 Act. Kennedy LJ, with whom Smith J agreed, declined to exercise the power to discharge. A permitted period of 1 month had expired by 6 days.
38. Kennedy LJ stated at page 3 of the transcript:

"In my judgment there can be no question but that the requirements of international comity in the general sense could not be regarded as within the scope of the phrase 'reasonable cause for the delay' where it appears in section 6(1). I, for my part, would find it strange if that sort of a consideration, properly to be counted as of importance in relation to the Extradition Act, were not allowed to play any part at all in relation to the 1965 Act. I, therefore, would construe the 1965 Act (section 6(1)) in this way, that the word 'may' gives to this court a normal discretionary power, but that power is qualified by the indication that in certain circumstances, that is to say where a reasonable cause is shown for the delay, the jurisdiction must be exercised in one way. In other words, the court in those circumstances may not order him to be discharged. In other cases, it may or may not according as it considers appropriate."

At page 4 Kennedy LJ stated:

"It is apparent, and it really hardly needs saying, that damage to international relations is done if in a situation like this, because of a technicality, an offender or an alleged offender is not sent back to the Republic of Ireland to stand trial in circumstances where that, in reality, would appear to be the proper outcome."

However, in the final substantive paragraph of his judgment, Kennedy LJ stated:

"If I had to decide this matter on the basis of whether or not there was reasonable cause for the delay, despite the impressive arguments advanced to us by Mr Hardy that these words should be construed liberally, I could not construe them so liberally as to find that there was any reasonable cause for the delay. I am supported in that conclusion by the decision of this court in Oskar, where Watkins LJ, admittedly dealing with a rather different and more complicated set of facts, adopted a very similar approach in relation to what was, in reality, administrative incompetence."

39. Mr Summers relies on that last paragraph and the finding that administrative incompetence did not constitute a reasonable cause for the delay. He submitted that SOCA's administration error, which, for this purpose, I assume, in the present case, resulted from the allegedly erroneous construction of the statute comes into the same category as that which arose in Oskar and Lindley. Those cases provide clear authority, he submitted, that an error such as that made in the present case does not provide reasonable cause for the delay. It was the discretion conferred by the word "may" on which Kennedy LJ relied in that case, not a discretion as to reasonable cause.
40. Mr Summers also relied on the decision of this court in Governor of Wandsworth Prison v Kinderis [2008] QB 347. The expression "reasonable cause" was considered in the context of a submission that the existence of concurrent domestic proceedings constituted a reasonable cause for delayed surrender. The relevant provision was section 47 of the 2003 Act (materially identical to section 36).
41. Laws LJ made the following observations:

"29. As for that proviso, it seems to me that it simply means what it says. It will clearly be apt to bar the remedy of discharge in what I have called a force majeure case. One may readily multiply examples. Thus if the extradition is to be effected by air, a strike by airline or air traffic control staff over a period during which the extradition is set to take place might well fall within this category. And I would think there may readily be reasonable cause for the delay where it is occasioned on humanitarian grounds, such as the serious illness of the extraditee. To that extent the instances of postponement referred in article 23(3)(4) of the Framework Decision may be said to dovetail with the "reasonable cause" proviso in section 47(4) upon the latter's interpretation according to ordinary domestic canons of construction.

...

31... The... two considerations [force majeure and humanitarian] go only to whether there are particular circumstances — adventitious, contingent — which might prevent the extradition taking place within the required period stipulated under section 47(2) and (3)...

33. My conclusion on the proviso to section 47(4) is I think all of a piece with the use in sections 35(5) and 36(8) of exactly the same expression... They are concerned with the possibility of unlooked-for slippage in the execution of the tight timetable for extradition which the statute requires."

42. The context in Kinderis was different. It was (and Mr Watson relied on this) that of the competing domestic and extradition jurisdictions. What was established in that case was the primacy of the obligation to facilitate extradition pursuant to the EAW scheme. It was a decision which favoured the interests of the authority requesting extradition and should be examined in that context.
43. In R (Szklanny) v City of Westminster Magistrates' Court [2008] 1 WLR 789 Richards LJ held that the power to agree an extended period under section 35(4)(b) of the 2003 Act (materially identical to section 36(3)(b)) is not constrained by the situations annunciated in Article 23. However (and Mr Summers relied on this) in so holding Richards LJ contrasted the position under section 35(5) with that in section 35(4)(b).
44. Richards LJ's reasoning is in paragraph 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) of the 2003 Act 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."

45. The earlier part of the paragraph was relied on by Mr Summers as demonstrating the limited meaning of "reasonable cause". Mr Watson relied on the general comments made in the remainder of the paragraph about construction of the 2003 Act.
46. In submitting that reasonable cause should be given the broader meaning, Mr Watson relied on another decision of this court in which Richards LJ gave the leading judgment. In Gronostajski issues arose as to when a court had begun an extradition hearing, and whether there was a reasonable cause for the delay in beginning that hearing, under section 8(7) of the 2003 Act. The delay was of one day and was caused by the non-production of the applicant at court on the day fixed for the hearing to begin and the judge's decision not to begin the hearing in the applicant's absence. Richards LJ stated at paragraph 23 that "in either case... the cause was a reasonable one."

He stated:

"25... The correct focus is on the situation in which the court found itself on 1st 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 judgement, for the reasons I have given, there was in this case a reasonable cause for the delay and the judge could properly so decide."

Agreeing with Richards LJ, Gibbs J stated:

"29... 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..."

47. Mr Summers submitted that those statements in Gronostajski should not be given broad significance. The circumstances were different, in that the delay was caused by the failure of the prison authorities to produce the applicant at court. That delay was beyond the control of the court or of the requesting authority.
48. There have been different approaches, in this court, in different contexts, to the meaning of "reasonable cause for the delay" in section 36(8) and other provisions in the 2003 Act to the same effect. In considering these, and how the expression should be applied to particular facts, it is, in my judgement, important to have regard to the wording and purpose of the Framework Decision.
49. Recital 5 to the Framework Decision refers to:

"... the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures."

Recital 10 provides that:

"The mechanism of the European arrest warrant is based on a high level of confidence between Member States."

The states referred to are in the European Union, and include Spain. It should be borne in mind that decisions such as Oskar were taken before the Framework Decision.

50. The attempt by the requesting authority to extradite the applicant for his trial on very serious charges has been prolonged and strongly contested. Expedition, for which the Framework Decision and the 2003 Act provide, is primarily in the interests of the administration of justice in the jurisdiction to which removal is sought. Delay is to be avoided. The interests of persons resisting extradition must also be respected, but provisions plainly directed to ensuring prompt extradition in the interests of the requesting authority (Article 23 and section 36) should not readily be defeated by an administrative error, or an error of law in considering the length of time allowed, which have resulted in a very short delay in protracted proceedings involving very serious offences.
51. The Framework Decision does not, in my judgement, exclude the power of a Member State to include an "unless clause" in its relevant statute, that is a clause permitting delay, in a strict timetable, for reasonable cause. Far from introducing an element of technicality, it provides a degree of flexibility, which accords with the purposes of the Framework Decision.
52. Once included, construction of such a clause is not confined to the situations expressly stated in Article 23. Mr Summers rightly accepted, for example, that in this court, in Caldarelli v Court of Naples, Italy [2009] EWHC 107 (Admin), the court found that judicial decisions involving delay, in that case, an intention to consider three EAWs together, or the need for a court to reserve judgment before a decision, can provide a reasonable cause for delay. The expression can be construed, and I would construe it, as sufficiently broad to cover the short delay in this case if, contrary to my finding, the opinion of the appropriate SOCA officer as to the meaning of "required period", reached in good faith, was erroneous in law.
53. In Shuter a test of reasonableness in all the circumstances was stated. The circumstances in this case include the shortness of the delay, the nature of the error made, if there was an error, and the consistent actions of the requesting authority, over a period of time, to implement the procedures provided as a result of the Framework Decision. That action should not, in my judgment, be defeated in the present circumstances. The views of Laws LJ in Kinderis were expressed in a different context, and when a different issue was being considered. A broader approach is consistent with the approach adopted by the members of this court in Gronostajski.
54. For those reasons, I would refuse the application for habeas corpus and dismiss the appeal. If the application were to have been considered as an application for judicial review, having granted permission, I would refuse the application.
55. MR JUSTICE CRANSTON: I agree.
56. LORD JUSTICE PILL: Yes?
57. MR SANDELL: My Lord, just two or three brief administrative things to sort out, if I may. I appear for the claimant. My learned friends Miss Jung and Miss Scott appear for the Serious Organised Crime Agency --
58. LORD JUSTICE PILL: Yes, Mr Sandell.
59. MR SANDELL: Might I request an expedited copy of the transcript of this case?
60. LORD JUSTICE PILL: Yes, and I am prepared to grant that, but it is quite a long judgment. We took this case, as you know, at very short notice and we attempted to deal with it promptly. (Pause). The shorthand writer is saying she can do it tomorrow. I would need to consider it, and my Lord, but we will do that promptly as well.
61. MR SANDELL: I am very grateful, and also simply to request the usual taxation order from public funds.
62. LORD JUSTICE PILL: Yes, you have the usual tax direction for your client.
63. MR SANDELL: My Lord, I am most grateful.
64. LORD JUSTICE PILL: Does anything else arise?
65. MISS SCOTT: My Lord, one matter on behalf of the court of Spain. Your Lordships will remember that there was discussion as to whether the interested parties that appeared before you should be respondents for the purpose of any appeal to the House of Lords. My Lord, I have taken instructions and that is an application which I also seek to pursue: simply to the be cited as a respondent, rather than an interested party.
66. LORD JUSTICE PILL: The Magistrates' Court — they have not appeared today, and that is very understandable — are the respondent.
67. MISS SCOTT: My Lord, they appear represented by my learned friend, Miss Jung, the Serious Organised Crime Agency.
68. LORD JUSTICE PILL: Is anyone here for SOCA?
69. MISS SCOTT: Yes, my learned friend.
70. LORD JUSTICE PILL: I am talking about the Magistrates' Court.
71. MISS SCOTT: Forgive me. The Magistrates' Court do not appear.
72. LORD JUSTICE PILL: No, thank you. You are SOCA, Miss Jung?
73. MISS JUNG: I am, my Lord.
74. LORD JUSTICE PILL: So, on paper, we do not have someone by way of a respondent, who is going to deal with the case if it goes to the House of Lords. So you are applying that the requesting authority should be made a respondent?
75. MISS SCOTT: My Lord, yes, and I understand that it was Mr Watson's application that SOCA should also be treated as a respondent. I understood that was granted on Friday.
76. LORD JUSTICE PILL: Miss Jung, do you make that application?
77. MISS JUNG: My Lord, I do. That is the note that I have.
78. LORD JUSTICE PILL: Yes. What do you say about that, Mr Sandell?
79. MR SANDELL: My Lord, I was not present on Thursday, because my colleague Mr Summers was before the court. I understand that the court already granted SOCA's application to be made the respondent on Thursday, as regards the issuing judicial authority. The observation that adding a further party will inevitably expand the costs involved of any appeal, but no formal position on that application.
80. LORD JUSTICE PILL: You are not resisting it?
81. MR SANDELL: My Lord, no.
82. LORD JUSTICE PILL: We are naturally concerned with costs and you should not have more parties than you need and Lord Hoffmann quite recently expressed reservations about the intervention of parties, but it does seem to us that in this case, both SOCA, whom we dealt with on Friday, and the requesting authority should be made respondents.
83. MISS SCOTT: I am very grateful, my Lord.
84. LORD JUSTICE PILL: To the extent it arises.
85. MISS SCOTT: My Lord, yes. Thank you.
86. LORD JUSTICE PILL: There is no application for costs inter partes?
87. MISS SCOTT: No, thank you, my Lord.
88. MISS JUNG: Thank you, my Lord.
89. MR SANDELL: My Lord, forgive me if this is my misunderstanding, just one further clarification, if I may. In terms of the procedure for pursuing any further certificate or appeal, it is my understanding that the court has disposed of it, in essence, both as a habeas corpus application and as an application for judicial review.
90. LORD JUSTICE PILL: We are not prepared to advise as to what course you should take.
91. MR SANDELL: I understand.
92. LORD JUSTICE PILL: But I hope what we have said is clear.
93. MR SANDELL: My Lord, I am most grateful.
94. LORD JUSTICE PILL: Of course, the order was made on Friday.
95. MR SANDELL: My Lord, yes.
96. LORD JUSTICE PILL: Can someone remind me of the date in July to which we referred?
97. MISS SCOTT: My Lord, it is 20th July.
98. LORD JUSTICE PILL: Yes, that was my recollection. Is there any further clarification required of the order made on Friday?
99. MR SANDELL: Not from me, my Lord.
100. MISS SCOTT: No, thank you.
101. MISS JUNG: No, thank you, my Lord.
102. LORD JUSTICE PILL: Thank you we will retire before the next case.
(A short adjournment)
103. LORD JUSTICE PILL: We will hear you now. It would be unfair to the people in the other case to defer too long, but we will hear what your application is to be.
104. MR WATSON: My Lord, I do not think it will take long. My Lords, can first of all apologise for the apparent discourtesy in returning to court.
105. LORD JUSTICE PILL: You were told you need not be here and someone else was here in your place.
106. MR WATSON: Yes, absolutely, my Lord. There is just one issue that has arisen from the judgment that I thought it best to bring to your Lordships' attention immediately. It is simply this, there was one matter in your Lordships' decision that appeared to be contrary in its intent and effect to the indication that your Lordships gave last week. All parties are keen to clarify the position immediately.
107. Last week we were all left with the understanding that your Lordships would deal with the application, notwithstanding the general position, as a judicial review application, grant permission, refuse on the merits and then, indeed, certify two questions that were to be drafted by my learned friends. As I understand it, and I was not here, but this is also the position of both parties, in your Lordship's decision that was handed down today, the entirety of the decision is understandably couched in terms of "If this is a habeas application, then it fails. If this is a judicial review application, permission granted but substantive application refused". Also, I should say, it is clear from your Lordship's judgment that your Lordships do not wish to decide the general point. The only issue that arises then is whether your Lordships viewed the Owens application as a judicial review application or a habeas application.
108. LORD JUSTICE PILL: Both. What I was not prepared to do, and this was the application the other way, was to say that you could forget about habeas corpus.
109. MR WATSON: My Lords, I entirely understand that, and I need to make it clear --
110. LORD JUSTICE PILL: How was it dealt with in the case that I cited, where Richards LJ gave the judgment? I do not have the papers with me, of course.
111. MR WATSON: It is the case of Gronostajski. My Lords, on behalf of SOCA and the Crown Prosecution Service, I entirely understand that your Lordships do not wish to, and I am not seeking to invite your Lordships to, express any view as to the general approach to be taken in these cases. Unfortunately I do not have that report to hand. However, we would respectfully suggest that your Lordships do have to determine on which basis this application is to be decided — of course, that can be in terms where there is no general principle to be derived from it — the reason being that the applicant needs to know whether he must have two questions certified or not, because if it is a habeas application that is refused, then of course my learned friend need not have any questions certified and can apply for leave direct to their Lordships' house; if, however, it is a judicial review application, then my learned friend needs two questions. Your Lordships already indicated that you will certify two questions. Because of that, in discussion with regard to the two questions, we were all of the view that your Lordships were going to, having received an application for habeas, in fact treat it as an application for judicial review and dispose of it on a judicial review basis, thereby triggering a requirement for the two questions. So, my Lords, I would simply invite your Lordships to consider that aspect of your Lordships' current ruling.
112. LORD JUSTICE PILL: How was it dealt with in the other case?
113. MR WATSON: My Lord, as I understand it, it was a habeas application that was made. Richards LJ, at paragraph 8, raised his concern of his own motion and stated that he did 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".
114. My Lords, in that case Richards LJ had before him a habeas application, was aware of the difficulties and suggested judicial review would be more appropriate, but dealt with it as a habeas application. If your Lordships had indicated last week that that was how your Lordships intended to proceed, there would be no issue about that today. However, we were under the impression that was your Lordships were going to, as in another case --
115. LORD JUSTICE PILL: That was not the case. We were concerned to give an indication, because of the urgency, and to make a decision. We did make a decision, but at that stage we kept open whether we would resolve this question of whether to refuse the habeas corpus on the grounds that it was judicial review. In that context, we set people's minds at rest. We said, "If we decide that it is not habeas and we will treat it as judicial review, then we can tell you that we would grant permission for judicial review, we would refuse the application and we would certify".
116. MR WATSON: I see, my Lords.
117. LORD JUSTICE PILL: That was the object, but this is dealt with as a habeas application.
118. MR WATSON: I am very grateful. So, just so there is no misunderstanding on our part, this having arrived before the court as a habeas application, the court having dealt with that judgment in the alternatives, but declining to decide, either in the general terms, or in the particulars of this case, which is more appropriate, the court then refusing the application is refusing the original habeas application. Therefore, there is no need to certify two questions and the automatic right of leave to appeal to the House of Lords.
119. LORD JUSTICE PILL: Well, whatever right exists on habeas, we have not been invited to consider that. Whatever rights exist on habeas do exist here.
120. MR WATSON: Yes, my Lord, but in those circumstances there will be no application for certification of questions by the applicant.
121. LORD JUSTICE PILL: I doubt it. Do you have anything further to say about that?
122. MR WATSON: No, I am simply seeking to clarify that there is only one application before the court — it is a habeas application. In those circumstances, there will not be any certification of questions, because that is not how it is done.
123. LORD JUSTICE PILL: Yes. The court is not advising the applicant as to what course he should take. There are courses to be taken and the House of Lords will decide whether they are the right courses or not. It would not be right for this court to advise about that. Had we had the luxury, as the court did in the other case, of giving judgment all at once (I do not know whether that was reserved or not). Had we been giving judgment today, we would not have had to give an indication on Friday. It was because you needed to know the result, not on 7th June, which might have been too late, but on 4th June that we did raise this possibility: if we decided, when reserving over the weekend, that habeas corpus was misconceived, nevertheless we would treat it as a judicial review application.
124. MR WATSON: I am very grateful. Your Lordships having not decided that the habeas corpus was misconceived, but leaving that question open, had before it a habeas application, refused the habeas application, there was no judicial review application before this court and, therefore, any other matters here on in --
125. LORD JUSTICE PILL: What we have said about judicial review is on a contingent basis, which has not, in the event, arisen.
126. MR WATSON: That is extremely helpful. I am very grateful, my Lord, for taking the time to --
127. LORD JUSTICE PILL: We have done our best, as counsel have, to get this case on early. We had to give a decision on Friday at your submission.
128. MR WATSON: Yes.
129. LORD JUSTICE PILL: At that stage things could only be done on a contingent basis, to some extent.
130. MR WATSON: My Lord, that has been extremely helpful. I am so sorry, because after the hearing there was confusion between the parties as to what happened. I thought it was safer just to return to court.
131. LORD JUSTICE PILL: Do you want to add anything, Miss Scott?
132. MISS SCOTT: My Lord, no, thank you, except to perhaps apologise for not taking more time to clarify this earlier this morning. Thank you very for the indication. It has been very helpful.
133. LORD JUSTICE PILL: Anything on your side?
134. MR SANDELL: My Lord, I share my learned friends' gratitude.
135. LORD JUSTICE PILL: Thank you. That concludes Owen, as far as this court is concerned.