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
		Wednesday, 13 June 2012

1. LORD JUSTICE TOULSON: I will ask Griffith Williams J to give the first judgment.
2. MR JUSTICE GRIFFITH WILLIAMS: This is an application for a writ of habeas corpus ad subjiciendum which arises from the following facts. In June and August 2007 the applicant, who had been convicted of offences equivalent in the law of England and Wales to offences of making threats to kill and of fraud, was sentenced in the District Court in Slupsk, Poland to a total of two years, three months' imprisonment suspended for three years. Following a breach of that suspended sentence he was resentenced by the same court on 22 March and 26 August 2010 to substituted sentences totalling some 21 months' imprisonment. When summoned to appear he failed to do so and so on 15 November 2011 a European arrest warrant was issued for his arrest. That warrant was certified by the Serious Organised Crime Agency on 31 March 2012.
3. On 6 June the applicant was arrested at Boots the Chemist, King Street, W6 for offences of handling stolen goods and going equipped to steal. Whilst detained at Hammersmith Police Station enquiries revealed the existence of the warrant and so he was arrested at 20.42 hours in relation to it. No further action was taken in respect of the offences for which he had been arrested.
4. On 7 June the applicant was taken in custody from Hammersmith Police Station to Hammersmith Magistrates' Court, arriving there at 08.30 hours. He was detained there until 12.12 hours, by which time it was realised that he should have been taken to Westminster Magistrates' Court where he had to be brought before "the appropriate judge" (see the Extradition Act 2003, section 4(3) and section 67).
5. He was then taken to Westminster Magistrates' Court, arriving there at about 13.00 hours. It was at about 16.00 hours, and so over 16 hours after his arrest under the warrant, that he was brought before District Judge Zani sitting in the Magistrates' Court. As section 4(3) of the Act provides that a person arrested under a Part 1 warrant "must be brought as soon as practicable before the appropriate judge", the solicitor then appearing for the applicant applied for his mandatory discharge in accordance with the provisions of section 4(5) of the Act. The learned judge in his ruling said this:

"The law appears on the face of it to be very straightforward. Section 4(3) says that the RP must be brought as soon as practicable before this court. I take that to mean as soon as practicable after arrest. The RP was arrested on this EAW at 20.42 yesterday. The soonest that he could have been brought before this court was this morning. He eventually was brought before this court at 1pm this afternoon. He was taken to Hammersmith Magistrates' Court at 8.30 this morning. He was picked up at the Magistrates Court at 12.12 and was brought here at 1pm. I have to consider what the Act intended to do. I consider that this Act was implemented such that individuals were not left languishing without being produced before a court. Mr Grange makes the point that the RP was languishing at Hammersmith's Magistrates' Court between 8.30am and 12.12pm. The reality is that in practical terms this RP appeared before me not long after a time when he may have appeared if he had been brought here earlier. I have certainly heard initial hearings at times later than this in the court day. I do not consider that the period between 8.30 and 12.12 is such that it falls foul on section 4(3). I am satisfied that the RP has been brought as soon as practicable before this court and the case proceeds. The application to discharge is refused."

6. There is no issue that the writ of habeas corpus is available in extradition proceedings, nor, as it appeared from the application, did it appear that there was any issue that this court, when determining whether a person arrested under a Part 1 warrant has been brought before an appropriate judge as soon as practicable, should consider whether the decision of the District Judge was Wednesbury unreasonable or irrational ...see R (on the application of) Nikonovs v Governor of Brixton Prison & Anr [2005] EWHC 2405 (Admin) at paragraphs 18 and 22).

6. However, Mr Grandison in his submissions to the court this morning drew the court's attention to some additional authorities. They are R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and Gibson & Anr v Crown Court at Winchester [2004] EWHC 361 (Admin). He referred the court also to a passage at pages 78 to 79 in the Third Edition of the Law of Habeas Corpus by Farbey and Sharpe.

8. He places reliance upon those matters in support of his submission that the court should approach these issues in a wider way than the conventional Wednesbury approach. I derive no assistance from those decisions or from the cited passages in the textbook. In my judgment this court is bound by the decision in Nikonovs v Governor of Brixton Prison & Anr [2005] EWHC 2405 (Admin), and, in particular, that part of the judgment of Baker LJ when he said this at paragraph 21:

"Whether or not the claimant was brought before the judge at Bow Street as soon as practicable is a question of fact. Two points should be noted. First the criterion is practicable rather than the more elastic reasonably practicable. Second, the draughtsmen has chosen practicability rather than the more precise criterion of a specified period as, for example, 48 hours in section 6(3). There will no doubt be cases at the margins where views could reasonably differ whether the applicant was indeed brought before the appropriate judge as soon as practicable."

7. On behalf of the applicant reliance is placed also on the facts of the decision in Nikonovs, and the facts of the decision in R (on the application of Atlinksi) v HM Prison Wandsworth [2009] EWHC 2713 (Admin). In those cases the production of an arrested person some 74 and 36 hours respectively after arrest was held to be not as soon as practicable. Those cases while informative were fact-specific and on their particular facts are very much removed from the facts of the present case.
8. Mr Grandison's submission really amounts to this, that the requirement that an arrested person be brought before the appropriate judge "as soon as practicable" means as soon as possible, and so no allowance can, or should be, made for human error. Unless the delay was trivial, he submits, the applicant should be discharged.
9. He submitted that the learned District Judge erred in concluding that it was sufficient for the arrested person to be brought before the court, and so the relevant time was 13.00 hours when he arrived at Westminster Magistrates' Court and not 16.00 hours when he was produced before the District Judge. If that is what the District Judge said, I would agree he was in error, because such a conclusion would be contrary to the clear provisions of section 4(3) of the Act, but that is not what the District Judge said, as is clear from the ruling from which I cited earlier in this judgment.
10. There can be no argument that in computing the time taken to produce an arrested person the time begins to run when he or she is arrested under a Part 1 warrant and runs until his or her production before the appropriate judge. That the District Judge had that very much in mind is clear from his ruling when he said:

"The reality is that in practical terms this RP appeared before me not long after a time when he may have appeared if he had been brought earlier."

There is no doubt in my mind that the District Judge had regard very much to the overall period of time.

11. Mr Grandison accepts that once the applicant was delivered to Westminster Magistrates' Court he had to take his place in the list, and so no criticism can be made of the time between 13.00 hours and 16.00 hours during which he waited for his case to be called on before the District Judge. Mr Grandison relies completely upon the time spent delivering the applicant to Hammersmith Magistrates' Court and the time he waited there until the mistake was discovered and he was transferred to Westminster.
12. On behalf of the Regional Court in Slupsk (the interested party) it is submitted that the task of this court is to review the facts and make a judgment about whether or not the decision of the District Judge was unreasonable or irrational. Bearing very firmly in mind that there will be decisions which are at the margins, but which cannot be categorised as unreasonable or irrational, and that a considerable margin of appreciation must be afforded as to what different decision-makers might conclude on the facts (see Atlinksi paragraphs 11 and 8 the judgment of Wyn Williams J), that is an approach which I am persuaded is entirely appropriate.
13. While the delay of some four hours in taking the applicant to Hammersmith Magistrates' Court was clearly unfortunate, there is no evidence that this was anything more than human error. Once that human error was realised the applicant was taken straightaway to Westminster Magistrates' Court. In my judgment the District Judge was perfectly entitled to take into account the fact that, even if the applicant had been taken to Westminster Magistrates' Court first thing on 7 June, the court's list may not have made it possible for him to have been physically produced before the District Judge before 16.00 hours.
14. In Re Sherman and Apps [1981] 72 Cr App R 266 this court was concerned with a similarly worded requirement in section 38(4) of the Magistrates' Courts Act 1952, since repealed. That requirement was that a person taken into custody for an offence without a warrant, and detained in custody, had to be brought before a Magistrates' Court as soon as practicable. Donaldson LJ, as he then was, said at page 271:

"Practicability is obviously a slightly elastic concept which must take account of the availability of ... magistrates' courts."

15. On the facts of this case the applicant was produced before the District Judge less than 17 hours after his arrest. Of that 17 hours some eight hours was nighttime. He was taken at the earliest opportunity to a Magistrates' Court. There was the mistake to which I referred earlier. Once that mistake was appreciated it was immediately remedied. Had the applicant been produced before the `District Judge immediately upon his arrival at the Westminster Magistrates' Court, it is, in my judgment, highly unlikely that the application would have been made. The passage of a further three hours is explained by the state of the list and does not, in my judgment, change matters. I am satisfied that there can be no criticism of the decision of the learned District Judge. It was neither unreasonable or irrational. However one approaches it I am satisfied that it was the proper decision. I would refuse the application.
16. LORD JUSTICE TOULSON: I agree. In considering whether there has been a breach of section 4(3) it is right for the court to have regard both to the cause and to the duration of the delay. I do not accept that any degree of avoidable delay must of necessity result in the conclusion that the section has been breached. The section allows a measure of flexibility (see Re Sherman and Apps). The District Judge's decision that the delay in this case was not such as to amount to a breach of the section was reasonable. It follows that the applicant's continued detention was unlawful. I agree with the fuller reasoning of Griffith Williams J. It follows that this application must be refused.
17. MR GRANDISON: Thank you much.
18. LORD JUSTICE TOULSON: Thank you very much, Mr Grandison and Miss Kapila.