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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pasquetti, R (on the application of) v Westminster Magistrates Court [2010] EWHC 3139 (Admin) (16 June 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3139.html
Cite as: [2010] EWHC 3139 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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| THE QUEEN ON THE APPLICATION OF PASQUETTI | Claimant | |
| v | ||
| WESTMINSTER MAGISTRATES COURT | Defendant |
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The Defendant was not represented
Ms L Rafter (instructed by the Crown Prosecution Service) appeared on behalf of the Interested Party
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- MRS JUSTICE DOBBS: This is an application for permission to apply for judicial review. Ouseley J ordered that this application be adjourned to open court on notice to the respondent and the interested party and to be listed and linked up to the statutory appeal against the order of District Judge Zani which ordered the extradition of this claimant in his absence and when unrepresented. The application for judicial review seeks permission to challenge the decision of District Judge Zani which was made on 4 May 2010 to order extradition, namely to send him to Italy on two European arrest warrants to serve sentences of four years and eight months and four years and six months for offences of child abduction of his son, grievous bodily harm, possession of firearms and a knife, handling stolen goods and making false statements as to his identity and altering his passport and family illtreatment.
- The challenges are brought on two bases, first of all the statutory appeal regime and secondly this application for permission to seek judicial review. The reason for this latter route being taken is that the applicant cannot argue the reason for his absence at the hearing within the statutory appeal regime.
- The grounds of this claim are that in the light of Jones [2003] 1 Appeal Cases, page one, the decision to extradite was unreasonable, because a) the decision was made without the full facts being placed in front of the court; and b) the decision was taken in the absence of the claimant. The district judge should have adjourned, following the guidelines, it is submitted, for further inquiries to be made.
- As I have already noted, this in reality is a challenge to the decision of the district judge to continue the hearing in the absence of the appellant and I treat the application as such so that if permission to amend is needed, it is granted.
- The defendant has filed an acknowledgment of service but gives no indication that the application is challenged. The court's understanding is, save for sending a letter of information which was attached to the acknowledgment of service, the respondent did not intend to participate in the proceedings. The interested party is represented today by counsel, Miss Rafter.
- The grounds of the statutory appeal are that the district judge should not have ordered extradition in the appellant's absence because he was un-represented and that the district judge should have taken steps to appoint a lawyer, ensure his representation. Consequently, this was in breach of the appellant's article six rights.
- The background it appears, according to the statement of Mark Fidler, who is the solicitor acting for this applicant, is that the applicant had been unwell for a period of days leading up to the date of hearing. He had been vomiting and had fainted two days before the hearing. He asked for access to a doctor or nurse and the requests had fallen on deaf ears. He was not represented at the time as legal aid was not in force at the date of the hearing. On the day of the hearing, the applicant indicated to prison staff he was not well enough to attend the hearing and asked for a doctor. He was asked to and signed a document explaining why he was not able or willing to go to court. This document has now been traced. It is a fax with the heading of the Ministry of Justice National Offender Management Service and HM Prison Service and it has what appears to be typed with a standard heading:
- The following is to be noted: the prison authorities failed to date the fax, the fax did not reach the court, although it turns out that it was filed with papers dated 4 May, and clearly relates to the applicant's court hearing. Also, from the letter provided by the respondent, it is clear that had the letter been in front of the district judge, he would have requested further information from Wandsworth prison and put the case over for that purpose. Also, it appears that the district judge was told that the applicant had refused to get on the van. The district judge therefore proceeded in his absence.
- The applicant in the statement indicates that he did not willfully refuse to go to court but did not attend due to ill health. Further to this, he was not informed by the prison authorities that the order for his extradition had been made on 4 May or that he had seven days within which to appeal, even though the warrant had been sent to the prison. He was not aware of this fact until he saw his representative on 10 May, a day before the seven day period had elapsed. Inquiries have been made with the prison and the information is that the applicant was seen in the medical centre on his arrival to prison on 10 and 11 March and he was prescribed an appraisal for gastric reflux. There were no medical or mental health problems of note at the time. A review of those medical records showed that he had not been seen by a registered nurse or GP since his arrival at the prison, but was seen between 16 March and 23 April by a health care assistant on returning from court when, on those occasions, he stated that he was fit and well. His medication was stopped on 30 March as it appears he was not taking it regularly.
- There were no further entries showing that the applicant was unwell on 4 May, this is hardly surprising, as the applicant says that he was not afforded access to a doctor or nurse, despite his request.
- The applicant submits that he should not have been ordered to be extradited in his absence following the decision in the case of Jones which sets out guidelines for dealing with cases in the absence of defendant. Additionally it was submitted that the decision to order extradition was inherently unreasonable when the full facts had not been placed in front of the district judge by the prison or court staff and that the district judge should have adjourned for further enquiries to be made.
- As I indicated, there are no submissions by the defendant or indication of opposition to this application.
- The interested party submits that permission should be refused on the basis that the decision to proceed in the light of the information before the district judge is reasonable. The information was that the applicant had refused to get on the prison van, no medical evidence was provided and no other information was available to suggest that absence was due to anything other than willful refusal and in the circumstances the district judge was right to proceed in his absence.
- It is also noted that the applicant was at court on 23 April when he was told that the case would proceed at the next hearing. The interested party also relies on the letter provided by Emma Leegood about the entries regarding the claim that Mr Pasquetti was unwell. Further, the interested party submits that the decision of the district judge cannot be faulted and it is said to be significant that, at the previous hearings, few issues were raised on applicant's behalf and in particular no Human Rights challenges were raised. The issue that was raised at an earlier occasion was under section 20 of the Act which the district judge dealt with. If it is suggested that the district judge should have decided the case differently then the statutory avenue of appeal is the one available.
- Miss Rafter for the interested party maintains those submissions in court and suggests that whilst acknowledging the problems that have arisen in this case, suggests that one way around those problems would be by way of statutory appeal once the applicant had had the opportunity to adduce the necessary evidence for an appeal. Having said that, she recognises that there is some merit in the case being heard properly at first instance and also recognises that there have been a series of blunders in this case which put the applicant in the position that he is in. That being the case, she submits that it should be recognised that this is a unique case and does not create any precedent for future cases.
- The short ruling of District Judge Zani indicates that the information he received was the applicant had refused to attend. No good reason had been put forward and no medical reason was suggested. The district judge was therefore satisfied that the applicant had deliberately absented himself. He goes on to record the applicant was informed some weeks ago that the his legal aid application was deficient of documents, that they had not been provided and that his previous solicitors had indicated that they were not in funds. The district judge then went on to deal with the application.
- At the end of the judgment he makes it clear that the applicant should be informed that he had seven days to appeal the court's decision and, as already noted, it appears that this was not done by the authorities.
- The very limited information provided to the court below begs the question why the applicant was refusing to come to court. It would appear that no questions were asked as to the reason why. In my judgment it is difficult to see how the district judge could have been satisfied that the applicant was deliberately, in the sense of willfully and without good reason, absenting himself when it was not clear whether the refusal, as it was couched as, could be for a medical reason, because he was having difficulties with legal aid, (the district judge being aware that he had applied for legal aid), and bearing in mind that the applicant is not a British national and has the disadvantage of being in prison, or for any other reason.
- Part of the problem which has already been alluded to is that the document, which the applicant undoubtedly filled in and which should have been sent or brought to the court, was not in front of the district judge. As I have already indicated, the document itself is unhelpful in the way it is phrased. The essence of what the applicant was saying was that he was unable to attend court due to ill-health. As to the extent or otherwise of his ill-health, there is no information as, apart from the letter we have about the medical records, no information from prison staff has been forthcoming.
- In my judgment it is arguable that the district judge should not have come to such a conclusion in the absence of making further enquiries, but in any event, whilst it is important that cases of this kind proceed with expedition, it is also important that when something has gone wrong with the court processes to the prejudice of the applicant that it is remedied. Here it is absolutely clear that the district judge would have adjourned the case, if only for a day or so, to have further details as to the applicant's ill-health before going ahead with the conduct of the case. It is important that the applicant is not prejudiced by such a mistake.
- The alternative route suggested by Miss Rafter of trying to put good the errors that were made by way of amendment of the statutory appeal is something, whilst possible, seems to me to be a less attractive route of dealing with the matter. In my judgment, considering the matter at first instance, properly argued with legal representation so that an informed decision can be made by the district judge, is the better way of dealing with the matter.
- The applicant is legally aided. As I have indicated, this case was to be treated as a rolled-up hearing. I will grant permission and grant judicial review on a pragmatic basis as being the most effective way of dealing with what is obviously a significant error.
- As to remedy, of course, there is the statutory appeal but I have already indicated my views as to the statutory appeal. I do not find that it has merit on the grounds as set out presently for a number of reasons. Appeals to the High Court under the Extradition Act 2003 are on points of law or fact. The High Court can only allow the appeal if conditions in section 23(4) or section 26(3) or (4) are satisfied. I need not rehearse them now but they relate to a challenge to the decision to order extradition based on the merits of the case, because in each case if successful, the decision would have been to order the person's discharge.
- This is not the effect of the submissions before me and it seems to me that the statutory appeal on the grounds pleaded must fail.
- Thus the remedy lies in the judicial review. I propose to quash the decision, remit it back to the Magistrates Court. I stress for the avoidance of any doubt whatsoever that this decision is made purely on the particular facts of this case where there have been at least two serious errors which were no fault of the applicant. It sets no precedent as to the issue of proceedings and the absence of the parties, or indeed, as to the future conduct of this case.
- The applicant will be well-advised to note that any future hearing will be expected to take place on the date appointed. He should, if he has not been doing so, take his prescribed medication, he should properly brief his lawyers because it will only be in exceptional circumstances that any future hearing will be adjourned.
"I am refusing to go to court because..."
Then under the message part in handwriting there is the space for the prisoner to fill in. In this case he wrote:
"I'm sick, I need my medication, the nurse refused to give me them, I'm waiting to see a doctor."
The grounds: