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
		Monday, 30 November 2009

1. LORD JUSTICE DYSON: Marek Kozluk, the appellant, is a Polish national whose a European arrest warrant ("EAW"). His extradition was ordered on 18 September 2009 by District Judge N Evans, sitting at the City of Westminster Magistrates' Court.
2. The appellant seeks to appeal the decision of the district judge on 3 September to refuse to order his discharge pursuant to Section 8 (7) of the Extradition Act 2003 ("the 2003 Act"). I should say that the appellant has not appeared today. We have not therefore had the benefit of an argument on his behalf. We have his notice of appeal and we have been assisted by Miss Collins who appears on behalf of the respondent.
3. The EAW was issued on 16 September 2008 and certified by the Serious Organised Crime Agency on 6 March 2009. According to the EAW, the appellant is wanted in Poland in order to serve a sentence of 10 months' imprisonment for one offence of "misdemeanour against safety in transport". Since the EAW has been issued by a Polish judicial authority, Part I of the 2003 Act applies to the extradition proceedings. The appellant was arrested on the authority of the EAW on 7 July 2009. On the same date he appeared before Senior District Judge Workman for an initial hearing. He was granted conditional bail and the matter was set down for an extrdition hearing on 22 July.
4. Before recounting the history of what happened any further, I need to refer to the relevant provisions of the 2003 Act. Section 8, so far as material provides:

"(1) If the judge is required to proceed under this section he must -

(a) fix a date on which the extradition hearing is to begin;

.....

(4) The date fixed under sub-section (1) must not be later than the end of the permitted period, which is 21 days starting with the date of the arrest referred to in Section 7 (1) (a) or (b).

(5) If before the date fixed under sub-section (1) (or this sub-section) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so, he may fix a later date; and this sub-section may apply more than once.

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

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

(8) If no application is made under sub-section (7) the judge must order the person's discharge on the first occasion after the date fixed under this section when the person appears or is brought before the judge, unless reasonable cause is shown for the delay."

5. Also relevant is the Council Framework Decision on the European arrest warrant and the surrender procedures between Member States ("the Framework decision").
6. Article 11 provides:

"Rights of a Requested Person

.....

2 A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State."

7. Article 15 provides:

"Surrender Decision

1 The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered."

8. I can return now to the facts which are conveniently set out in the judgment of District Judge Zani of 3 September. He said at paragraph (v):

"At the said initial hearing on 7 July 2009 the defendant was represented - I anticipate by the duty solicitor - and after matters relating to the defendant's identity and the service of the warrant were dealt with unexceptionally, the case was adjourned to 22 July 2009 for a 'short hearing', the defendant having been released on bail. On 22 July 2009 the case came before the learned Deputy Senior Judge. It appears that as sometimes is the case, the defendant's application for a legal representation order had not been processed and the proceedings were adjourned to the learned Deputy Senior District Judge on 12 August 2009 when, so it appears, the provisions of s8 (4) of the 2003 Act were considered. She stated that albeit it appeared to her that she had not opened these proceedings on 22 July 2009 she formally did so on 12 August 2009."

9. Having formally opened the proceedings on 12 August 2009, Deputy Senior District Judge Wickham adjourned the proceedings until 27 August, again because the application for legal aid had not been processed.
10. On 27 August the matter came before District Judge Zani. On this occasion the appellant was legally represented. An application was made on his behalf for his discharge under Section 8 (7) of the 2003 Act on the footing that (1) the extradition hearing had not begun on or before the date fixed for the hearing, that is 22 July 2009, and (2) reasonable cause for the delay had not been shown. Having heard argument, District Judge Zani adjourned proceedings until 3 September to enable him to consider his judgment and also to receive a statement from Deputy Senior District Judge Wickham. In his judgment of 3 September District Judge Zani said:

"(x) The learned Deputy Senior District Judge has been contacted in recent days and albeit it may well have been in her mind to formally open the proceedings on 22 July 2009 this may not have been stated in open court."

11. On the substantive point that was before him, District Judge Zani said:

" ..... it may well be that the proceedings were in fact so opened on 22 July 2009."

He went on to say:

"(xii) If in fact the proceedings were not so opened on 22 July 2009, I am satisfied that they were properly opened on 12 August 2009 and the Deputy Senior District Judge had reasonable cause to delay the opening of proceedings so that the question of Legal Aid could be resolved: such a decision could not be said to have been to the detriment to the defendant as it must have been to his advantage to be legally represented, as indeed he now is.

(xiii) I am thus satisfied that these proceedings have been formally opened in accordance with the provisions of s8 of the 2003 Act and that accordingly an application for the defendant's discharge in respect thereof must fail."

12. Both limbs of District Judge Zani's reasoning are challenged on this appeal. The district judge observed that there appeared to be little, if any, guidance as to what constitutes "opening" of an extradition hearing or, to use the precise language of the statute, what is required for a hearing to "begin".
13. It seems that the district judge's attention was not drawn to the decision of this court in Gronostajski v Government of Poland [2007] EWHC 3314 (Admin). The principal judgment in that case was given by Lord Justice Richards. What happened there was that the date fixed for the hearing for the beginning of the extradition hearing was 1 October. On 1 October the claimant was not produced at court. The case which had been duly listed on that day was called on in the morning. The district judge was sitting. Counsel for the claimant and the requesting authority were in court. The court was informed that the claimant had not been produced. It seems that an opening note on behalf of the requesting authority was provided to the court and given to the claimant's counsel. Nothing further was said or done save that, because the claimant was not produced, the matter was adjourned by the judge until the following day, 2 October.
14. On 2 October the claimant was produced at court before the same judge and an application for discharge was made on his behalf for the same kind of reasons as formed the basis of the application to discharge in the present case. At paragraph 15 Lord Justice Richards recorded the submission that an extradition hearing does not begin unless -

"15 ..... first, a date has been fixed pursuant to Section 8 (1) and (4); secondly, the case is called on, on the day so fixed; thirdly, the requested person appears or is brought before the judge pursuant to Section 10 (1) or the judge decides to proceed in his absence when the requested person has been given a fair opportunity to be present; and, fourthly, the judge decides to begin the hearing. As a matter of ordinary language, the hearing cannot be said to have begun merely because the case was called on."

15. At paragraph 17 Lord Justice Richards said:

"17 For my part, I would accept Miss Powell's submissions on this aspect of the case. The mere calling on of the case with counsel present but in the absence of the requested person cannot amount to the commencement of the extradition hearing, nor does the fact that counsel hands in an opening statement to the court affect matters. It would, in principle, be open to the judge to begin the extradition hearing in the absence of the requested person, but one would not normally expect him to do so, not least because the questions he has to address at the initial stage are those in Section 10 which, by sub-section (1), is engaged by the requested person appearing or being brought before the judge.

18 In this case nothing was said or done to suggest that the judge did decide to begin the extradition hearing and then to adjourn it. One would have expected express language about the hearing being begun or opened if that had been the judge's intention. On the face of it, all he did was to adjourn the matter to the following day to enable the application for discharge to be made, and for the extradition hearing to begin if that application was refused."

16. Miss Collins has sought to distinguish that decision principally on the ground that in that case the requested person was not before the court at the time when it was said the extradition hearing had begun. In the present case the requested person was before the court. She also submits that, since the appellant in the present case was present in court at the hearing before Deputy Senior District Judge Wickham, and since there would have been little that could have been added by uttering the words that "the hearing had been opened", it can be inferred that this hearing was in fact the commencement of the extradition hearing. She submits that the intention of Deputy Senior District Judge Wickham had been to open the proceedings. That is made clear by paragraph (x) of District Judge Zani's judgment to which I have already referred.
17. I cannot accept Miss Collins' reasons for distinguishing the present case from the case of Gronostajski. It does not seem to me that it was essential to Lord Justice Richards' reasoning, with which Mr Justice Gibbs agreed, that the requested person was not present at court. The core of his reasoning was that nothing was said or done in that case to suggest that the judge had decided to begin the extradition hearing before adjourning it. It seems to me that that is the position that occurred in the present case.
18. In my judgment something must be said or done to show that the hearing of the extradition proceedings has begun. Merely to adjourn them, without more, for whatever reason is not enough.
19. An application to adjourn and a decision to adjourn are not of themselves indicative of taking any steps in the extradition hearing although they are of course steps in the extradition proceedings. Something more than an adjournment is required to indicate that the extradition hearing has begun. After all, an adjournment could have been requested and granted before 22 July (the date which had been fixed for the extradition hearing). A statement in court by the judge that the hearing has begun or has been opened or is opened is sufficient even if it is immediately followed by a successful application to adjourn.
20. It may be said that there is a fine distinction between what happened in the present case, where nothing was said or done, and a case where all that the judge does is to announce that he or she is opening the hearing before going on to adjourn it.
21. In my judgment there is however an important distinction between the two cases. A statement in court that the hearing has begun or has been opened is a clear indication that that is indeed what has happened. The beginning of the hearing is marked by something that has been said in court. On the other hand, the fact that the judge may have intended to begin or to open the hearing counts for nothing unless that intention has been communicated to the parties. I cannot accept that it was a relevant inquiry by District Judge Zani to find out whether the deputy senior district judge had intended to begin the extradition hearing.
22. Accordingly, in my judgment, the extradition hearing in the present case began on 13 August when the district judge formally opened the extradition hearing. It was therefore not begun in accordance with Section 8 (6) of the 2003 Act on or before 22 July.
23. I turn therefore to the second issue. In my judgment, District Judge Zani was right to hold that there was reasonable cause for the delay in beginning the extradition hearing in the present case. The reason for delaying the start of the substantive hearing was that a requested person's application for legal aid had not been processed. That was obviously a reasonable cause for delay, not least in view of the provisions of Article 11 (2) of the Framework Decision.
24. It might be said on behalf of the appellant that the difficulties in delaying [the] obtaining of legal aid were not a reasonable cause for delaying the formal beginning of the extradition hearing by uttering words such as "the hearing is opened". The deputy senior district judge was able to do that on 13 August before adjourning the hearing again to enable the legal aid application to be processed. It is true that the deputy senior district judge could - and in my judgment should - have formally opened the hearing on 22 July before adjourning the matter to allow the legal aid application to be processed. But one can well understand why the deputy senior district judge did not take that course. She knew well that there was no possibility that the substantive extradition hearing could take place on 22 July. The failure to open formally the extradition hearing on that date was a matter of pure formality. In substance, the hearing could not proceed. In those circumstances it seems to me that the reason for delaying the beginning of the extradition hearing was one which can properly be said to have been for reasonable cause.
25. I would therefore allow the appeal against the decision of District Judge Zani in relation to the first issue, but I would dismiss it in relation to the second issue. It must follow that in my judgment this appeal should be dismissed.
26. MR JUSTICE TUGENDHAT: I agree.
27. MISS COLLINS: There is no application in relation to rescinding Mr Kozluk's bail in these circumstances. Whilst he has not turned up today, it seems that there has been some reason communicated and there is no lack of communication there so any concerns regarding non-surrender perhaps would not be founded. So I do not make that application today.