Case No: CO/14961/2009
Neutral Citation Number: [2010] EWHC 69 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION)
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 26/01/2010
Before :

LORD JUSTICE MAURICE KAY
and
MR JUSTICE LLOYD-JONES
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Between :

	HINES	Applicant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant	
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(Transcript of the Handed Down Judgment of
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Mr Paul Garlick QC (instructed by Peter Kandler & Co) for the Applicant
Miss Melanie Cumberland (instructed by Treasury Solicitor) for the Defendant
Mr Ben Watson (instructed by the Crown Prosecution Service) for the Brazilian Government

Hearing date : 15 December 2009
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Judgment
Lord Justice Maurice Kay :
1.	On 24 July 1995, the applicant was convicted and sentenced to eight years’ imprisonment by the Third Federal Court of Rio de Janeiro for drug trafficking offences.  A month later, on 21 August 1995, he escaped from a Brazilian prison.  He eventually made his way to the United Kingdom.  On 11 February 2004, he was convicted and sentenced at Wood Green Crown Court for drug trafficking offences committed in this country.  The sentence imposed was one of eleven years’ imprisonment.  His earliest release date was 15 August 2009.  Meanwhile, on 31 August 2005, the applicant, whilst in custody, was arrested pursuant to an extradition request issued by the Brazilian authorities, who sought his return to serve the remaining part – seven years, eight months and seven days – of the Brazilian sentence.  On 10 August 2006, the applicant was committed by District Judge Tubbs in the City of Westminster Magistrates’ Court, pursuant to section 9 of the Extradition Act 1989, to await the decision of the Secretary of State as to his return.
2.	By section 12(3) of the 1989 Act, an order for return
“… shall not be made in the case of a person who is serving a sentence of imprisonment … in the United Kingdom –
(a) … until the sentence has been served.”
Two other provisions may impact on the date of an order for return.  By section 11(2):
“A person committed shall not be returned –
(a) in any case, until the expiration of the period of 15 days beginning with the day on which the order for his committal is made;
(b) if an application for habeas corpus is made in his case, as long as proceedings on that application are pending.”
3.	In the present case, the fifteen day period did not bite because, at that time, section 12(3) presented an order for return from being made in any event.  As it happens, a habeas corpus application on behalf of the applicant was made in or about July 2007, alleging that to order his return would breach Article 3 of the ECHR because of prison conditions in Brazil, but that application was withdrawn on 24 January 2008.
4.	The second provision, which is of relevance to the present case, is section 16, the relevant parts of which provide:
“(1)	If a person committed under section 9 … is still in the United Kingdom after the expiration of the relevant period, he may apply to the High Court … for his discharge.
(2)	Unless he has instituted proceedings for judicial review of the Secretary of State’s decision to order his return, the relevant period is –
(a)	the period of two months beginning with the first day on which, having regard to section 11(2), he could have been returned …
(5)	If upon an application under this section the Court is satisfied that reasonable notice of the proposed application has been given to the Secretary of State, the Court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged … ”
5.	By a claim form said to have been issued on 3 December 2009 but in fact sealed on 9 December, the applicant seeks his discharge pursuant to section 16.  His case is that, since 15 August 2009, when the custodial element of his domestic sentence came to an end, there has been inordinate delay on the part of the Secretary of State and the Brazilian authorities.  In order to consider this, it is necessary to recount what has transpired during the material time.
6.	Following the withdrawal of the habeas corpus application in January 2008, the Secretary of State wrote to the applicant’s solicitor on 18 February 2008 saying that representations would be invited nearer to the expected date of release from the sentence of imprisonment.  By 21 April 2009, the Secretary of State was in receipt of representations but advised that they would not be considered before 15 August.  Revised representations were sent to the Secretary of State on 24 July 2009.  The applicant completed the custodial part of his sentence on 15 August and, at about that time, the Treasury Solicitor and counsel were instructed to advise upon the representations.  On 28 September 2009 the applicant’s solicitor was informed that the representations were still under consideration.  Thereafter, the Secretary of State considered that he needed further information from the Brazilian authorities about prison conditions before deciding whether to order the applicant’s return.  On 14 October a letter was sent via the Brazilian Embassy, raising some fifteen questions about the specific prison and conditions in which the applicant would be held.  It asked for a reply by 27 November.  No reply was received by that date.  On 8 December, the Secretary of State sent a chasing letter, again via the Brazilian Embassy.  The following day the Secretary of State discovered from the Crown Prosecution Service that the applicant had issued the present proceedings.
7.	On behalf of the applicant, Mr Paul Garlick QC submits that the Secretary of State has been guilty of inordinate delay since 15 August; that it was culpable to wait until 14 October before writing to the Brazilian authorities with questions about prison conditions; and that the approach generally has lacked the urgency appropriate to a case where, since 15 August, the applicant has been in custody solely by reference to the extradition proceedings.  Mr Garlick makes muted criticism of the Secretary of State for not taking any preparatory steps before 15 August but concedes that, for the purpose of this application, the relevant period is from 15 August.
8.	It is common ground that the words “unless sufficient cause is shown to the contrary” in section 16 entitle or require the court “to take into account questions such as reasonableness in all the circumstances”: per Watkins LJ in Re Oskar, unreported, 29 February 1988, construing the same words in the Fugitive Offenders Act 1967, following the approach of Lord Parker CJ to their earlier manifestation in the Fugitive Offender Act 1881 in Re Shuter [1960] QB 142.
9.	Mr Garlick seeks to place emphasis on Re Oskar.  There the applicant had challenged his committal up to the House of Lords which had dismissed his appeal on 16 December 1987.  At that time there were still extant criminal proceedings against him in this country until 28 January 1988 when the prosecution offered no evidence and a verdict of not guilty was directed.  The Secretary of State issued a warrant for the applicant’s return on 8 February.  The warrant advised the applicant that, if he had not been removed by 8 March, he could make a statutory application for discharge.  Arrangements were made for police officers to travel from the requesting state (Australia) on 20 February and to return with the applicant on 24 February.  In the meantime, however, the applicant made a habeas corpus application and the arrangements for his return were suspended pending the hearing on 29 February.  His application succeeded.  The Secretary of State was criticised for two reasons: (1) he had misconstrued the legislation in relation to the running of time and (2) there had been “administrative inertia” in the completion of the domestic criminal proceedings.  Watkins LJ concluded:
“I do not see how the description ‘reasonable’ can apply to those errors in fact and law.  They are … inexcusable and come nowhere near constituting sufficient cause to allow us to refrain from directing forthwith the discharge from custody of the applicant.”
10.	It seems that the Secretary of State had conceded culpability in both respects.
11.	Miss Cumberland (on behalf of the Secretary of State) and Mr Watson (on behalf of the Brazilian Government) submit that there is a manifest distinction between cases such as Oskar, Shuter and Owens v City of Westminster Magistrates’ Court [2009] EWHC 1343 (Admin) (a European Arrest Warrant case) on the one hand and the present case on the other hand in that in those cases there was no remaining substantive decision-making stage prior to return.  All that remained was to make the necessary administrative arrangements.  By contrast, in the present case, the ultimate decision to return is vested in the Secretary of State who is under a duty to consider representations on behalf of the applicant pursuant to section 13(4) of the 1989 Act.  Their submission is that during the relevant period since 15 August, the Secretary of State has not been tardy.  On the contrary, he has been engaged in a diligent inquiry so as properly to inform his eventual decision.
12.	In my judgment, this analysis is correct.  I infer from the chronology that soon after 15 August the Secretary of State began to consider the representations made on behalf of the applicant.  Before the end of the month he sought the advice of the Treasury Solicitor who instructed counsel.  Although we do not know the date upon which such advice was forthcoming, we do know that by 14 October the Secretary of State was writing to the Brazilian authorities seeking detailed information which was rightly considered necessary to enable him to do justice to the applicant’s representations.  In the circumstances of this case, I do not consider that the Secretary of State was guilty of inordinate delay, nor do I consider that it was overindulgent of the Brazilian authorities to request a reply by 27 November or to wait until 8 December before sending a chasing letter.  The questions posed by the letter of 14 October necessitated careful consideration in Brazil.  In these respects, I take the view that the present case is more like R v Governor of Brixton Prison, ex parte Enaharo [1963] 2 QB 455, where the delay was attributable to “the unimpeached and unimpeachable desire of the Home Secretary to give due, proper and reasonably prompt consideration to [the applicant’s] representations” per Edmund Davies J at page 468.  Although section 16 of the 1989 Act permits an application to the court to be made after a period of two months, that period is not prescribed as an outer limit to the time within which the Secretary of State must make his decision (cf, for example, the position under the 2003 Act).  It simply lays down a minimum period before an application can be made.
13.	Thereafter, upon an application being made, everything depends on whether, in a particular case, the Secretary of State can show “sufficient cause”.  In the present case, I am entirely satisfied that he has done so.  Accordingly, I would refuse the application.