England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/01/2010

Lord Justice Moses :

1. On 16 June 2004 Gary Mann was convicted by the Albufeira Judicial Court, Portugal, of one offence of participation in a riot pursuant to Article 302 of the Portuguese Criminal Code. He was sentenced on the same day to 2 years' imprisonment. DC Rutter, an officer of the Humberside Police of 29 years and 6 months' standing, who attended the trial to advise Portuguese police officers in relation to English supporters attending the Euro 2004 Football Tournament, describes the trial as "a farce". He says that there was no adequate and proper interpretation and that Mr Mann did not understand most of the proceedings. On 18 June 2004 Mr Mann was permitted to leave Portugal pursuant to an Order for Voluntary Departure.
2. The Portuguese lawyer failed to file the proper documents for an appeal in the correct manner within the required time. Over 4 years later, on 6 October 2008, a European arrest warrant was issued. Following certification by the Serious Organised Crime Agency, on 18 February 2009, the claimant was arrested on 19 March 2009 and granted conditional bail. On 18 August 2009 Senior District Judge Workman ordered his extradition. English lawyers, retained at that time, but no longer, by Mr Mann, failed to file and serve notice of appeal to this court within the obligatory period of 7 days and on 25 August 2009 Cranston J held that the High Court had no jurisdiction.
3. Following an application to the Senior District Judge to re-open his extradition hearing, on 2 November 2009 the Senior District Judge ruled that he had no jurisdiction to do so.
4. Seeking to overcome the failures of his Portuguese lawyers in 2004 and his English lawyers in 2009, Mr Mann now seeks permission to move by way of judicial review contending that the Serious Organised Crime Agency (SOCA) should refuse to extradite him; he seeks an order restraining SOCA from extraditing him pending the hearing of the substantive application. This court heard almost a full day of argument as Mr Fitzgerald QC, with Mr Cooper, both newly instructed by solicitors not previously involved, tried to persuade this court that it had power to intervene, even at this stage, to prevent Mr Mann's extradition.
5. In order to determine whether this court has any jurisdiction to intervene at this stage it is necessary to recall the previous proceedings relating to the claimant's original conviction. Following his conviction and sentence at 11.30 p.m. on 16 June 2004 (Portuguese law required proceedings to be finished within 48 hours) and his departure from Portugal 2 days later, Mr Mann, then a serving fireman, although we now understand, as a result of the conviction, cast from the force, heard no more until a Football Banning Order was sought by the Commissioner of the Metropolitan Police before District Judge Day at a hearing between 18 July and 3 August 2005. District Judge Day refused the Football Banning Orders on the basis that the Albufeira Tribunal's convictions were "obtained in circumstances that are so unfair as to be incompatible with the respondent's (Mr Mann's) right to a fair trial under Article 6". He accepted the evidence that the quality of interpretation fell "well short of the proper standards" and that the defendants had inadequate time to instruct lawyers so as to conduct their defence appropriately. In reaching that conclusion he studied a transcript of the trial and heard evidence from DC Rutter.
6. Over 3½ years later, as I have noted, the European arrest warrant was issued and a hearing took place before Senior District Judge Workman on 18 August 2009. The case was argued before him on the basis of District Judge Day's ruling. Possibly in the mistaken belief that District Judge Day's conclusion would be sufficient, his then lawyers did not call either Mr Mann or any other witnesses. Senior District Judge Workman examined the notes of the trial and concluded that Mr Mann had had adequate time and facilities for the preparation of his defence and that the judge's conduct throughout the trial met the requirements of Article 6 of the European Convention. He reached that conclusion although he agreed to alter his judgment to reflect the fact that the defendant did not see his lawyer until the morning of the trial. He rejected the argument that injustice had been occasioned by the passage of time.
7. The claimant wished to exercise his statutory right of appeal against the order of Senior District Judge Workman. His appeal notice was 1 day out of time. It was, accordingly, defective and there was no means of curing that defect (see Mucelli v Government of Albania [2009] UKHL 2 [2009] 1 WLR 276). The statutory proceedings, as all parties agree, are therefore at an end. That is the inevitable conclusion to be drawn from the restrictions contained within s.34 of the Extradition Act 2003:-

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

As all parties accept, the relevant part is Part 1 of the 2003 Act which governs extradition to Portugal. The only question therefore is whether any further remedy is available to the claimant.

8. The claimant sought to create a platform for further proceedings. On 1 September, 2009, after successive successful applications, ex-parte, for a stay of extradition to the High Court, the claimant applied to Senior District Judge Workman at the City of Westminster Magistrates' Court on 1 September 2009 to re-open his extradition hearing pursuant to s.142 of the Magistrates' Courts Act 1980. In a written judgment dated 2 November 2009 Senior District Judge Workman concluded that there was neither an implied power to re-open the extradition hearing nor an express power pursuant to s.142. S.142 of the Magistrates' Courts Act 1980 provides:-

"A Magistrates' Court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so."

9. Despite further pleas on behalf of the claimant, SOCA has indicated to him that it will take steps to surrender the claimant unless a further interim court order is made and the most recent court order staying the claimant's surrender, made on 21 October 2009 by Cranston J, expired on 19 November, 2009, although further stays have been granted to await the handing down of this court's decision on the permission hearing.
10. In effect, Mr Mann is seeking to challenge the refusal of Senior District Judge Workman to re-open the hearing and an alleged decision of SOCA to enforce the extradition order.
11. In my view, there is no arguable basis upon which this court can now intervene. In relation to extradition under Part 1 of the 2003 Act, s.34 has removed the possibility of either a remedy by way of habeas corpus or of judicial review (see R (Hilali) v Governor of Whitewall Prison and Another [2008] UKHL 3 [2008] 1 AC paragraphs 17 and 36). The only circumstances in which this court's jurisdiction may be invoked to intervene by way of judicial review were identified by this court in The Crown (oao Navadunskis) v The Serious Organised Crime Agency [2009] EWHC 1 292. The court concluded that Part 1 of the 2003 Act removed the possibility of collateral challenges which extend and delay the process of extradition (see Maurice Kay LJ § 15, Collins J at § 32). But the court did accept that in circumstances where substantial supervening events had arisen after the time limit for a statutory appeal, the court had an exceptional jurisdiction to intervene in order to comply with its obligation under the Human Rights Act 1998. But such substantial intervening events were acknowledged to be genuinely supervening events such as an outbreak of genocidal behaviour or an unforeseen medical affliction which arose after the time of the extradition hearing (see § 20).
12. Absent such an event, there is no possibility of any further challenge once the appeal process has been exhausted or there has been a failure to appeal within the statutory time limit. Since Mr Mann's lawyers failed to appeal in time, the only function of SOCA is to execute the extradition order. It has made no further decision; there is nothing which it has done or failed to do which could afford the subject matter of a challenge (see Maurice Kay LJ § 30).
13. Nor does Mr Mann's attempt to re-open the statutory extradition hearing by means of what has been described as "the slip rule" under s.142 of the Magistrates' Courts Act 1980 afford any basis for challenge. S.9(1) of the Extradition Act 2003 cannot be invoked to incorporate the provisions of s.142 of the Magistrates' Courts Act 1980. S.9(1) provides that:-

"In England and Wales, at the extradition hearing, the appropriate judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part 1 warrant was issued."

S.9 permits the court to proceed, so far as compatible with the statutory extradition scheme, in accordance with rules applicable to criminal trials. Now that the Senior District Judge has ordered the requested person's extradition the hearing before him is finished and s.9(1) is no longer applicable. Since the claimant did not file or serve an appeal notice within the 7 day required period, the European arrest warrant has been "disposed of" pursuant to s.213(1)(c) of the 2003 Act. Part 1 of the 2003 Act provides a statutory scheme laying down a strict and tight timetable which precludes the possibility of invoking s.142 of the Magistrates' Court Act 1980.

14. For those reasons, I conclude that it is not arguable that this court has any jurisdiction to entertain any claim for judicial review, be it to challenge a non-existent decision of SOCA or the refusal of the Senior District Judge to exercise a non-existent jurisdiction to re-open the statutory extradition hearing.
15. But I cannot leave this application without remarking upon the inability of this court to rectify what appears to be a serious injustice to Mr Mann. He is, as I have already recalled, a 51 year-old man who had previously been a fireman. He had not been in trouble for 29 years, when he received a small fine for a minor offence. Now, after a hearing condemned by a police officer as a "farce" he faces 2 years in prison, over 5 years since his original conviction. He wished, on two separate occasions, to exercise a right of appeal. Through no fault of his own, his lawyers failed to act with the result that he has never had the opportunity, by way of appeal, to advance his case that he is being deprived of a fair hearing.
16. I should stress that the apparent injustice does not stem from what Mr Mann contends to have been an unfair and unlawful hearing. Whether he is right about that is disputed by the Portuguese issuing judicial authority, the Judicial Court in Albufeira. The injustice stems from the successive failures of his former lawyers. If this case had fallen within the jurisdiction of the Court of Appeal, Criminal Division, that court would have had little difficulty in ensuring that an appellant did not suffer, whatever the procedural delays, from the incompetence of his former lawyers. But Part 1 of the Extradition Act 2003 permits no such remedy against the failures of the previous lawyers.
17. Neither Parliament, in enacting the strict statutory scheme relating to Part 1 extraditions in the 2003 Act, nor the House of Lords in Mucelli and in Hilali, nor this court in Navadunskis can possibly have envisaged one man being deprived of proper legal assistance by two sets of lawyers in two separate jurisdictions on two distinct occasions. Yet I accept this court is powerless to act. It has no jurisdiction. There is, accordingly, little point in stressing that there is no evidence that Mr Mann was ever told he had a right to request an adjournment, or that there were two interpreters for 12 defendants, the first apparently being a hairdresser working close to where the court was situated. I only feel it necessary to mention these facts in the hope that either the European Court of Human Rights, in the exercise of its powers to make a holding order under rule 39 or the diplomatic authorities in the United Kingdom or in Portugal, can strive to achieve some measure of justice for Mr Mann, a justice of which he has been so signally deprived by those on whom he had previously relied.

Mr Justice Hickinbottom:

18. I agree.