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
		10th October 2014

Lord Justice Aikens :

1. This is the judgment of the court.

I. The Issues to be decided.

2. There are before the court two appeals which raise one common issue concerning the order imposed by the District Judge ("DJ") in each case that the appellant, who had lost his appeal in the Magistrates' Court against surrender pursuant to a "Conviction" European Arrest Warrant ("EAW"), should pay costs, pursuant to section 60(1) of the Extradition Act 2003 ("EA"). The issue of principle is whether the Administrative Court, (whether sitting as a single judge or as a Divisional Court) acting as the appellate court from the Magistrates' Court under Part 1 of the EA, has jurisdiction to hear and determine an appeal from a costs order imposed by the DJ pursuant to section 60(1). We will call this the "costs jurisdiction" issue. In Krystof Skraba v District Court of Nowy Sacz, Poland,^[1] a decision which was handed down on 3 July 2014, that is just before these appeals were heard, King J held that the Administrative Court did have jurisdiction to entertain an appeal against a costs order imposed by the DJ pursuant to section 60.
3. We heard the appeals on the substantive issues one after the other and then heard argument on the costs jurisdiction issue. We announced at the end of the hearing that the substantive appeal in the case of Aleksander Bizunowicz would be allowed and in the case of Petru Florea it would be dismissed, for reasons which would be given at the same time as we gave our judgment on the costs jurisdiction issue, on which we reserved our judgment. Ms Louisa Collins, counsel for Mr Bizunowicz sought an order for costs from central funds and also sought an order quashing the costs order made against Mr Bizunowicz by the DJ. We reserved judgment on the latter issue and asked counsel to provide us with written submissions on the Divisional Court's jurisdiction to quash a costs order against the appellant under section 60(1) of the EA when the appellant had successfully appealed the extradition order made by the DJ in the court below.
4. We will deal first with the two substantive appeals. We will then deal with the costs jurisdiction issue and, if the court does have jurisdiction, with the question of whether the costs orders made by the DJs should be varied. Lastly, we will deal the submission of Ms Collins that the requesting court should pay costs as a result of the successful appeal in Mr Bizunowicz's case.

II. Substantive Appeal of Aleksander Bisunowicz

5. This is an appeal by Aleksander Bizunowicz from the order of DJ Coleman made on 28 March 2014 that he be surrendered to Poland pursuant to a "conviction" EAW issued by the District Court in Koszalin, Poland on 7 April 2009. The EAW was certified by the Serious Organised Crime Agency, commonly referred to as "SOCA", on 26 October 2010. Poland is, of course, designated as a Category 1 territory pursuant to section 1 of the EA and so Part 1 of the EA regulates this appeal.
6. The DJ also made an order that the appellant pay the sum of £300 in respect of the costs of the Crown Prosecution Service, who conducted the case on behalf of Poland before the DJ. As noted already, the appellant also seeks to appeal that order.
7. The facts relating to the matter are not in dispute. The two offences committed by the appellant were for criminal damage. On 6-7 May 2001 he threw paint at a building resulting damage valued at 5000 Zlotys, that is approximately £1000. On 15-16 May 2001 he again threw paint at the same building, on that occasion causing damage valued at 2500 Zlotys, ie about £500. It was the same victim, so his loss is said to be 7500 Zlotys or £1500.
8. The trial appears to have taken place some time before 2004. The appellant was sentenced on 21 April 2004. His attendance at that hearing was excused. The sentence of one year imprisonment was suspended for 4-5 years and he was ordered to pay 8000 Zlotys for the damage. That compensation has not been paid. The appellant has not spent any time in custody on this matter.
9. The appellant left Poland in Spring 2006 and settled in Loughborough. His son, who was born in 1996, came with him. However the son did not settle well in school, so the appellant took him back to Poland in 2007, where he stayed with his mother's family; his mother having previously died. Whilst the appellant was in Poland he was arrested for the non-payment of an unconnected fine and he served 10 days in default of payment. There was no mention in those court proceedings of the matter to which the EAW relates.
10. The appellant returned to England, where he has been working and pays tax and National Insurance. He has not since returned to Poland.
11. The DJ found that the appellant left Poland as a fugitive and knew he was wanted in Poland and that is why he had not been back to visit his son there since 2007. The DJ also concluded that the surrender of the appellant to Poland would not be a disproportionate interference with his right under Article 8 of the European Convention on Human Rights (ECHR), ie. his right to respect for his private life in the UK. The DJ concluded that there had been delay in the process but that the main cause of that was the conduct of the appellant in failing to pay the compensation within the five years of the suspended sentence, then leaving Poland and forcing the Polish, then British authorities, to track him down. The DJ held it would be unjust to permit the appellant to benefit from those delays. In the context of the offences, which the DJ said were not to be regarded as minor, the obvious interest in honouring the international obligation imposed by the EAW system outweighed the circumstances of his family life.
12. In support of the appeal on the merits, Ms Collins emphasised the delay in this case. She noted that the Polish court authorities apparently took 3 years to sentence him. They did nothing to enforce the sentence when he returned to Poland in 2007 when the appellant was arrested in connection with a different matter and served 10 days in prison in default. There was a further 2 year delay after he returned to the UK before the EAW was issued on 7 April 2009.
13. Ms Collins pointed out that the appellant has served 2 months of his sentence, as is indicated on the EAW itself. Furthermore, she submitted that it is significant that the appellant has been subject to an electronically monitored curfew of 8 hours a day throughout the current proceedings since 26 July 2013, that is for nearly 1 year by the time of the hearing before us. We were told that the Polish court will take this period into account. In addition, at the time of the EAW, the appellant had made funds available to his lawyer in Poland to pay the compensation ordered.
14. Ms Collins therefore submitted that, in all the circumstances, it would be disproportionate to permit the surrender of the appellant, despite the heavy weight that must be given to the public interest in upholding the EAW organisation.
15. Mr Stansfeld, on behalf of the requesting court, submitted that the DJ was correct to uphold the EAW for the reasons given.
16. We have found this a difficult case. We are very conscious of the weight that is to be given to the public interest in accordance with the decision of the House of Lords in Norris v Government of the USA [2010] 2 AC 487 and the Supreme Court in H(H) v Deputy Prosecutor of the Italian Republic [2013] 1 AC 338. Both those cases emphasise that the interference with the Article 8 rights of the requested person must be "exceptionally serious" before the importance of extradition may be outweighed by private and family issues. However, in the H(H) case, Baroness Hale emphasised (at [8]), that although the public interest in extradition will always be of very great weight, the weight to be attached to it in any particular case will vary according to the nature and seriousness of the crime or crimes involved.
17. In this case, the appellant cannot rely on section 14 of the EA because he was a fugitive from Poland and so, on the basis of the well-known authority of Kakis v Government of Cyprus [1978] 1 WLR 779 he cannot assert that it would be unjust to return him despite the delay. However, lapse of time is certainly a relevant factor when balancing the Article 8 considerations. Two other considerations are noted as being relevant in a further recent decision of the Administrative Court in a case from Poland which involved a comparatively minor offence. The first is the change of life style of the person requested since the offence in the requesting state. The second factor is that under Article 77.1 of the Polish Criminal Code, a person can apply for conditional release when he has completed half of his sentence in custody. Release is not automatic, but will depend on a number of factors. These have to show that:

"…when [the prisoner's] attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence and whilst serving the penalty justify the assumption that the perpetrator will, after release, respect the legal order and, in particular, that he will not re-offend'."

See: Chmura v District Court of Lubin [2013] EWHC 3896 (Admin) at [10] and [15].

18. In the present case, according to the EAW itself, the appellant has served nearly 2 months of his 1 year sentence. Since the present proceedings started he has been on bail subject to an electronically monitored curfew between 9pm and 5am. That is one hour short of the 9 hour curfew required under English law such as to permit the curfew time to count as time spent in custody on remand (50%), but Ms Collins submits that this is nevertheless both a significant restriction on his freedom and something that the Polish court could take into account when considering the question of conditional release under Article 77.1 of its criminal code.
19. We have come to the conclusion that, taking all factors into account, the DJ erred in concluding that extradition would not be a disproportionate interference with the appellant's Article 8 rights. The factors that have made us reach this conclusion are: (1) The appellant has been living in the UK now for 8 years, he is self-employed, he has paid his taxes and National Insurance and has been subject only to a minor caution for Actual Bodily Harm in September 2009. In those circumstances he has clearly established a private life in the UK. Moreover, we were informed by Ms Collins that the appellant's son, who is now aged 17, is currently living with his father in England. The son has schizophrenia but nonetheless is hoping to complete some form of education here. So, although his son is soon to be an adult, there is, in our view, a family life in the UK as well. (2) The offences were committed in 2001 when the appellant was a young man. (3) On any rational basis these offences cannot be regarded as serious. We would regard them as comparatively trivial. Whilst we accept that we cannot be guided too much by English norms of sentencing, we have to note that these offences would not attract a custodial sentence in England. (4) There was a very long period of 3 years between the offence and sentence. It is not suggested that the appellant tried to evade justice at that stage. It is accepted he was a fugitive thereafter. (5) There is no explanation why the Polish authorities did not deal with him on his return to Poland in 2007 when he was dealt with for another offence. (6) The EAW was not issued until 2009, that is some two years after the appellant had been in Poland and 5 years after sentence and the appellant's disappearance abroad. (7) The appellant now has the funds to pay the compensation ordered. (8) The appellant has served a part of his sentence and he had been on an electronic tag curfew for nearly a year until the hearing before us.
20. In all these circumstances we allow this appeal.

III. Petru Florea: the substantive appeal.

21. This is an appeal by Petru Florea from the order made by DJ McPhee on 28 May 2014 whereby he ordered the surrender of the appellant to the Czech Republic to serve a sentence of imprisonment of 3 years for offences of fraud. The DJ also made an order that the appellant pay to the CPS costs of £465. As already noted, this appellant also wishes to appeal that order.
22. A "conviction" EAW was issued by the respondent judicial authority on 21 November 2012 and was certified by the Serious Organised Crime Agency, now known as NCA on 7 March 2013.
23. The appellant was convicted in his absence of 14 offences described as "fraud". In the EAW the European Framework list has been ticked in two boxes: "fraudulent practices" and "counterfeiting of payment instruments".
24. The facts are that the appellant used counterfeit bank cards to withdraw money from cash machines in Prague between 2-4 July 2007. A first withdrawal succeeded in obtaining 7,500 Crowns (£176 at that time) and then there were attempts to withdraw a total of 48,000 Crowns, or approximately £1127, in amounts of between 2,5000 – 5000 Crowns.
25. The appellant is Romanian. He left Romania in early 2006 and he came to the UK and lived with a group of Romanians in Leytonstone. They turned out to be a criminal gang and they involved him in their criminal activity which seems to have been international in scope. The appellant accepted drugs from the group and he became both addicted and indebted to the group. He was told that he would have to travel to the Czech Republic and commit cash machine frauds with fake bank cards. The appellant left the UK on 30 June 2007 and the offences were committed in early July. He travelled back to the UK via Germany where he was arrested and found with fake cards and a fake driving licence. He was detained in Germany for 129 days and was there represented by a lawyer, Herr Michael Haizmann. During that time the appellant admitted to committing the offences in the Czech Republic, but it seems that those could not be prosecuted in Germany because they had been committed outside German territory. So the German authorities abandoned pursuit of those offences on 7 November 2007.
26. By December 2007 the Czech authorities were aware of the appellant's arrest in Germany and the circumstances but, it seems, it was not clear to the Czech authorities at that stage whether the appellant was admitting to committing offences in either Germany or in the Czech Republic.
27. From December 2007 until 17 August 2009, when a first EAW was issued in respect of the appellant, the Czech authorities were investigating 166 offences, of which the appellant was later convicted of 14. This investigation was done in the absence of the appellant because he had returned to Romania and then back to the UK in 2009. In December 2009 the appellant was convicted at Horseferry Road Magistrates' Court of going equipped for theft and also of failing to surrender to his bail. He was given a term of custody in a Youth Offender Institution. Upon release he remained in the UK.
28. On 8 March 2010 a second EAW was issued to replace the first.
29. On about 12 August 2011 the appellant discovered his name on a Czech website as being wanted by the Czech police. It is accepted that he went to Paddington Green police station and asked at the front counter, late that evening, whether there was an outstanding EAW for his arrest and surrender. Eventually, after some investigation the police officer told the appellant that he was no longer wanted. That may have been at a time when the Czech authorities had withdrawn either the first or second EAW.
30. Thereafter the appellant obtained a National Insurance Number and worked in a self-employed capacity in the construction industry. In November 2012 he met a partner and he and she now live together.
31. It was accepted before the DJ that the appellant was not aware that the Czech authorities intended to prosecute him until his arrest under the present, third, EAW on 15 October 2013.
32. The appellant takes only one point on the appeal. It is submitted that the DJ erred in not accepting that there was a bar to extradition under section 14 of the EA because to extradite him now would be unjust or oppressive by virtue of the passage of time since he had committed the offence or become unlawfully at large. The same point is made but only put as an Article 8 argument under section 21 of the EA. In relation to this question the appellant submits that not only has there been delay and that it is inordinate and inexcusable, but it is submitted that extradition would be unjust or oppressive because of the comparatively less serious nature of the offences committed.
33. The particular argument that Mr Hawkes, for Mr Florea, emphasised is that the Czech authorities were told by the German authorities in December 2007 about the confession of the appellant to the criminal offences committed in Prague the previous July, but that nothing was done about this at the time. Before the DJ the respondent had relied upon an explanation given by a Czech judge, Martin Kantor (who was not the judge who had issued the third and relevant EAW), that it was unclear from the German communications to the Czech authorities whether the appellant had admitted his guilt for the criminal offences committed in the Czech republic, as opposed to offences committed in Germany. To which it is said that if the matter was left uncertain, then this demonstrates a remarkable lack of curiosity and zeal on the part of the Czech authorities at a time when they were well aware of the Czech offences and they could have asked further questions of their German colleagues; nor did they ask about the whereabouts of the appellant even though the appellant himself had given the German authorities the address of the accomplices in London.
34. We cannot accept Mr Hawkes' submissions. The starting point has to be that the offences in this case were serious. The appellant was part of an organised crime team working internationally. We are satisfied that the DJ was correct to conclude, for the reasons that he gave, that there was no culpable delay on the part of the Czech judicial authorities. Given that the appellant has admitted his offences there is nothing unjust or oppressive in such delay that there has been.
35. The Article 8 arguments for the appellant are not so strong as to be "quite exceptionally compelling" so as to overcome the strong public interest in upholding the principle of extradition in this case. As we have already remarked above, the public interest in extradition will always be very great, but the weight to be attached to it in a particular case will vary according to the nature and seriousness of the crime or crimes involved. These are serious crimes committed as a part of an international gang engaged in credit card fraud.
36. Therefore in this case we dismiss the appeal on the merits.

IV. Has this court jurisdiction to consider an appeal against orders for costs made pursuant to section 60(1) of the EA?

(A). The Statutory provisions

37. There are a number of provisions in Part 1 of the EA that are relevant to this issue. They are sections 26 to 29; 34; and 60 and 61. In order that they should not take up too much space in the body of this judgment we have collected them together in an Appendix. There are equivalent provisions to sections 26-29 and 60 and 61 in Part 2 of the EA, at, respectively, sections 103-106, and sections 133 and 134. We have not set out the Part 2 sections.
38. Section 26 permits a person to make an appeal against an order for extradition made by an "appropriate judge". Section 27 sets out the powers that the High Court may exercise on such an appeal. Section 28 permits the requesting authority to appeal a decision of the "appropriate judge" to order the discharge of the person sought to be extradited. Section 29 sets out the powers that the High Court can exercise on an appeal against a discharge. Sections 30 and 31 deal with ancillary matters. None of these sections have provisions about appeals on costs orders imposed by the "appropriate judge:".
39. Costs in Part 1 are dealt with under a separate heading of "Costs". The provisions are in sections 60 – 62. There are no provisions in any of those sections which contemplate an independent appeal to the High Court from a costs order imposed by the "appropriate judge" on a person who challenges an EAW. The inverse situation is unlikely to arise, because if the "appropriate judge" orders the discharge of a person then any award to that person will be of "an appropriate amount to be made to the person out of money provided by Parliament": see section 61(1)(a), (2)(a) and (5). Thus the order is not made against the requesting court.

(B). The decision of King J in Skraba v Regional Court in Nowy Sacz, Poland

40. In Skraba v Regional Court in Nowy Sacz Poland, King J had to consider the same question as we have been invited to rule on, viz. does the High Court, as an appellate Court from a decision of the DJ, have jurisdiction to entertain an appeal on a costs order made by the DJ against an unsuccessful appellant under Part 1 of the EA, pursuant to section 60(1). King J reached the following conclusions: (1) the EA does not provide any "discrete free-standing" appeal against an order for costs made under section 60(1).^[2] (2) The only appeals allowed for under Part 1 are those provided for in sections 26 and 28. They cannot be interpreted as allowing for an appeal against a costs order, given the terms of sections 27 and 29. (3) Section 34 does not, of itself, provide a means of appeal in respect of costs orders imposed under section 60(1). Section 34 cannot confer a statutory right of appeal under the EA which is not provided for elsewhere in the Act.^[3] (4) However, it was common ground that section 34 did not prevent an order for costs being challenged by way of Judicial Review proceedings, by analogy with the use of that mechanism to challenge other matters which were not the subject of a specific, free-standing right of appeal under the terms of the EA.^[4] (5) On the proper construction of section 60(3), in particular by reference to the words "…may make such order as it considers just and reasonable with regard to the costs to be paid by the person", which are similar to words used in section 18(1) of the Prosecution of Offences Act 1985,^[5] the High Court has jurisdiction to make an order as to the costs in the Magistrates' Court. For this conclusion King J relied on the decision of the Divisional Court in Hamilton-Johnson v RSPCA.^[6] (6) The Divisional Court in that case had concluded that where there was an appeal from the Magistrates' Court on a "permitted matter" then either side, as part of submissions consequent upon the decision of the appeal (whether successful or not) would be permitted to raise any submissions as to costs below.^[7] The same reasoning applied to the construction of section 60(3) so as to give the High Court power in relation to costs awarded below when the High Court dismissed an appeal under section 26.^[8] (7) There are sound pragmatic reasons why the High Court, when properly seized of an extradition appeal should also be able to review (including vary and even quash) a costs order made below.^[9] (8) It would be impractical, wasteful of time and costs and administratively cumbersome to have to make a person who wished to appeal a costs order do so by way of separate Judicial Review proceedings.^[10]
41. It is important to note what King J did not decide. First, he did not hold that the High Court has power to entertain a free standing appeal on a costs order made under section 60(1) where the person to be extradited had unsuccessfully challenged the EAW before the Magistrates' Court and thereafter accepted the DJ's decision on everything except the costs order. Secondly, King J expressly noted that when the High Court allowed an appeal under section 26 and ordered the person's discharge, then the position was unclear. It was not provided for in either section 60 or section 61.^[11]

(C). The arguments of the parties

42. At the hearing before us, Mr Hawkes on behalf of Mr Florea adopted the reasoning of King J. As Mr Bizunowicz had succeeded in his appeal on the merits, his position was different. We will deal with the issue that arises as a result of his successful appeal in the next part of this judgment.
43. On behalf of the CPS, acting for the requesting court, Mr Stansfeld submitted that there was no statutory power that enabled the High Court to quash or vary a costs order made by the "appropriate judge". In his submission section 60 was intended to act as a discouragement to those whose challenge to an EAW was without merit. Further, the Hamilton –Johnson case is not authority for the proposition that the Crown Court could vary a costs order made by the Magistrates' Court. It decided only that section 18(1) of the Prosecution of Offences Act enabled a Crown Court to take account of the costs incurred below when fixing its own costs order.
44. Mr Stansfeld acknowledged that the idea that a person who wished to challenge a costs order had to do so by Judicial Review was "unpalatable" but he submitted that this was the necessary consequence of the way that the EA had been drafted. He pointed out that from October 2014 there would be a "permission stage" for appeals to the High Court on Part 1 extradition matters. There would therefore be two tests involved depending on whether there was an appeal on the merits as well as on costs or on costs alone.

(D). Analysis and conclusion

45. We agree with the conclusion of King J that there is nothing in the provisions of sections 26 and 27 which gives a statutory right of appeal against a costs order made by the "appropriate judge" against a person pursuant to section 60(1)(a). Section 26 confines the right of appeal to one against "a person's extradition order". The person "may appeal to the High Court against the order". There is no mention of costs. Section 27, which sets out the High Court's powers on appeal, reflect the fact that the appeal is one against the extradition order.
46. We also agree with him that section 34 is of no help either. That section is intended to ensure that challenges to the decision of the judge made under Part 1 are made only by appeals, although we accept that Judicial Review may be available in some, rare, circumstances.^[12]
47. We also agree with King J that there is nothing in section 60 which gives a direct right of appeal to the High Court when a person wishes to challenge a costs order imposed against him by the "appropriate judge" pursuant to section 60(1)(a). We therefore also agree with King J that the only possible way of mounting an appeal is through setion 60(3). But, as King J emphasised, this sub-section can only be of use where there is an appeal against the substantive order for extradition and the High Court has dismissed the appeal, and when the High Court has dismissed an application for leave to appeal that dismissal to the Supreme Court. Section 60(3) is of no use to a person who does not appeal the extradition order made by the "appropriate judge", but who wishes to challenge the costs order made against him by that judge under section 60(1).
48. This means we have to examine the Hamilton-Johnson case. The Divisional Court had before it a case stated by the Crown Court. The question posed was whether a Crown Court hearing an appeal from a Magistrates' Court had jurisdiction to order an unsuccessful appellant or defendant to pay to the prosecutor's sums by way of costs which the Magistrates had refused to award to the prosecutor. So the question was the reverse of the one raised in the present case, where the question is whether the High Court has power to quash or vary downwards the costs order made by the DJ.
49. Before the Crown Court the defendant had abandoned her appeal against conviction for causing unnecessary suffering to various animals. But she maintained her appeal against sentence and, in particular, an order that ownership of the animals concerned be transferred to the RSPCA. The Crown Court judge had ordered that the defendant pay £28,000 towards the prosecutor's costs, in place of the £250 costs order that the Magistrates had made. The sum comprised the cost of looking after the animals after the RSPCA (viz the prosecutor) had intervened and also the legal costs of the RSPCA as prosecutor. The Case Stated indicated that there was no challenge or objection by the defendant/appellant (then represented by counsel) to the nature or extent of the claim for costs. The objection was that the Crown Court costs order had awarded costs in respect of a period up to the conclusion of the Magistrates' Court hearing. The argument of the defendant/appellant was that the Crown Court had no jurisdiction to make an order in respect of such costs.
50. Schiemann LJ, who gave the judgment of the court, noted that neither a defendant nor the prosecution had a right of appeal to the Crown Court in relation to a costs order made by the Magistrates' Court. Section 108(3)(b) of the Magistrates' Court Act specifically prohibited a defendant from making an appeal against an order for the payment of costs. (A costs order made against a defendant in the Magistrates' Court can be challenged by way of Judicial Review: see eg. the well-known decision of R v Northallerton Magistrates' Court ex parte Dove.^[13]). Schiemann LJ examined the provisions of section 18(1) of the Prosecution of Offences Act 1985. He noted that the Court of Appeal Criminal Division had held, in Associated Octel Ltd^[14] that the wording at the end of section 18(1) – "the court may make such order as to costs to be paid by the accused to the prosecutor as it considers just and reasonable" – was sufficiently wide to include costs of investigation by a prosecutor with a view to prosecution, where the defendant was subsequently convicted in the Crown Court. Schiemann LJ drew the conclusion that if that were so for a conviction in the Crown Court, then the words must be given the same breadth to the circumstance also embraced by section 18(1)(b), ie. where the Crown Court dismissed an appeal against a conviction by the Magistrates' Court or against the sentence imposed upon conviction by that Court.
51. Schiemann LJ then considered whether section 48(2) of what was then the Supreme Court Act 1981 (now renamed the Senior Courts Act) gave the Crown Court jurisdiction to confirm, reverse or vary any part of the decision of the Magistrates' Court that was appealed, including costs orders. There were, so far as he was aware, no enactments which would cut down the Crown Court's powers on such an appeal, at least in relation to costs, so section 48(3) was no bar to section 48(2) being used by the Crown Court to vary a costs order made by the court below.
52. Schiemann LJ noted that nothing in the 1985 Act or any other statutory provision expressly deprived the Crown Court of the jurisdiction to make an order as to the costs below, provided that this was ancillary to there being an appeal "on a permitted matter". He concluded, at page 395 of the report:

"Parliament can perfectly well have taken the view that, whilst it would not permit either side to appeal on costs alone, if an appeal in relation to a permitted matter was made then either side could, as part of the submissions consequent upon the decision of that appeal, be permitted to raise any submissions as to costs below".

53. King J noted paragraph 178 of the Explanatory Note to section 60 of the EA which stated that this section was "based on section 18 of the Prosecution of Offences Act 1985, which allows a court in a criminal case to make an award of costs against the accused". Paragraph 180 states:

"In each of the [four cases set out in section 60] the relevant judge or court has the power to make an order for the person to pay costs that he/it considers just and reasonable (sub-sections (2) and (3)). Such an order for costs must specify the amount to be paid and may name of the person (sic) to whom the costs are to be paid (subsection (4))."

There is therefore nothing in the Explanatory Note to suggest that, on appeal, the appellate court can quash or vary the costs order made against a person by the court below.

54. So, was King J correct in holding that the reasoning used by Schiemann LJ in Hamilton-Johnson could be transposed to section 60(3) of the EA so as to give the High Court the jurisdiction to quash, or vary a costs order made by the "appropriate judge" under section 60(1) in a case where there was an unsuccessful appeal to the High Court on the merits of the extradition order? We have to say that we are not entirely convinced by the reasoning of Schiemann LJ on the ambit of section 18(1) of the 1985 Act. First, on its natural and ordinary meaning, we think that it is dealing with only the costs concerned in the process identified in each of paragraphs (a), (b) and (c), rather than the costs of that process and any antecedent process. Secondly, the reading that Schiemann LJ gives that section does create a "back door" right of appeal on costs to both sides, at least when there is also a substantive appeal, which is contrary to the exclusion of a defendant's right of appeal on costs in section 108(3) of the Magistrates' Court Act 1980 and contrary to the fact that there is no right of appeal to the Crown Court by the prosecution on costs. Thirdly, the decision of the Court of Appeal in Associated Octel Ltd is not authority for the proposition that the Crown Court has jurisdiction to vary a Magistrates' Court costs order in relation to Magistrates' Court costs. It is only authority for the proposition that a costs order imposed by the Crown Court in relation to proceedings in the Crown Court can include the costs of investigation when the defendant is subsequently successfully prosecuted.
55. Accordingly, we think that we should not attempt to rely on the reasoning of Schiemann LJ in Hamilton-Johnson concerning the ambit of section 18(1) of the 1985 Act as an aid to construing section 60(3) of the EA.
56. That brings us back to the wording of section 60(3) itself. Although King J thought that the words of that section were "almost identical" to those used at the end of section 18(1) of the 1985 Act, we think, with respect, that this is not really so. In the case of the High Court dismissing an appeal under section 26, that Court "may make such order as it considers just and reasonable with regards to the costs to be paid by the person". That wording does not expressly confine the jurisdiction of the High Court to a consideration of the costs that have been incurred on the appeal only. We accept that sub-section (3) could have so confined it by express words. But, construing section 60(3) by giving the wording its so-called "normal and natural" meaning it does appear to us that "the costs to be paid by the person" contemplates the costs of the procedure in the High Court. It would stretch the words "the costs to be paid by the person" to include an order that stated that, in relation to the costs below the "costs to be paid by the person" were to be less than those ordered, so that the previous order had to be quashed and replaced by another; and if the person had paid them, then there would have to be an order that those costs be repaid to the person. We should also note section 60(4) which stipulates that an order for costs under section 60 must specify the amount to be paid and may name the person to whom they are to be paid. That "person" is clearly someone other than the "person" who is to be extradited and who has lost his appeal.
57. There are two further reasons why we have concluded that section 60(3) cannot extend to give the High Court jurisdiction to vary or quash a costs order made by the Magistrates' Court. The first is the very fact that it would be anomalous, in our view, to give an indirect right of appeal on costs to those who challenged the Magistrates' Court decision but not to a person who did not but who felt aggrieved just by the costs order. It would encourage hopeless appeals on the merits just in order to be able to pursue what might be a reasonable appeal on costs. That cannot have been Parliament's intention.
58. Secondly, under the new statutory regime that has now been passed, whereby leave will be needed to appeal to the High Court, (by section 160 of the Anti-Social Behaviour and Policing Act 2014, the relevant part of which is not yet in force), there would be complications if there were an indirect right of appeal on costs via section 60(3). Would the costs point need leave? Would the judge considering leave have to consider the costs appeal separately? What if he concluded that he should refuse leave on the substantive appeal but thought there was something in the costs point? There cannot be an appeal on costs alone and it could not be right to give leave on a hopeless substantive appeal just to allow a costs appeal to continue.
59. We are therefore reluctantly driven to the conclusion that, with great respect to King J, we cannot follow his decision. In our view section 60(3) does not create a means whereby the High Court can consider, vary or quash a costs order made by the DJ under section 60(1). But we do think that this conclusion is consistent with the overall structure of Part 1 of the EA which, as all parties agreed before us, does not give any direct right of appeal on a costs order made under section 60(1). It would seem odd if, by some means, there was an indirect one under the Act itself.
60. However, a person who wishes to challenge a costs order can do so by Judicial Review. We agree with King J that there are sound "pragmatic" reasons why this means of challenge will be cumbersome, time consuming and costly. But that is the consequence of Parliament deciding that there can be no direct right of appeal on a costs order imposed pursuant to section 60(1). At least it has the merit that those who appeal the substantive order and challenge a costs order and those who wish only to do the latter are in the same position.
61. We conclude that the High Court does not have jurisdiction to vary or quash a costs order made by the DJ pursuant to section 60(1)(a) and (2) whether there has been an unsuccessful appeal on the substantive order for extradition or whether there is simply an attempt to challenge the costs order made, but no Judicial Review proceedings have been brought in respect of the costs order.
62. This means that we cannot consider the merits of any form of "appeal" against the costs order imposed by District Judge McPhee in the sum of £465. However, we wish to endorse what King J said in the Skraba case at [49] of his judgment. Like him we did not hear any argument on the question of whether, as a matter of principle when a costs order is being sought under section 60(1)(a), the principle should be that costs "follow the event" or whether an order for costs should be reserved for cases where the requested person has pursued a "pointless" contest against the EAW and extradition. But our inclination is to say that we agree with the view of Collins J in Mencwel v Regional Court in Poznan Poland^[15] that the costs jurisdiction in extradition proceedings should be exercised with the greatest possible care. We also agree with the analysis of King J in his "Post script: the Payee under the Order" at [53] and [54]. Any application for costs under section 60(1)(a) must be made by the CPS on behalf of the relevant Foreign State Issuing Authority, even though it is the CPS that has incurred costs in the proceedings. Despite this, we also agree with King J that if an order is made under section 60(1)(a) and (2) a direction can be made pursuant to section 60(4)(b) that the amount be made payable to the General Prosecution Fund of the Requested State (viz the UK) who has conducted the proceedings in the Magistrates' Court on behalf of the Requesting Authority. But it is the latter that must be making the application as it is the only respondent that is a party to the proceedings.

V. What is the power of the High Court to quash or vary a costs order made by the District Judge under section 60(1) when the appeal against the extradition order has been successful?

63. It was common ground between Ms Collins and Mr Stansfeld that there was no express statutory provision in the EA or elsewhere which gives the High Court jurisdiction to quash the decision of the DJ to impose a costs order (made under section 60(1)(a)) and (2)) on a person who had successfully appealed (under section 26) the extradition order made by the DJ. We asked counsel to research the issue and they produced a Joint Note in which it was submitted that the court has an inherent jurisdiction to quash such an order for costs made by the DJ. In the alternative, counsel suggested that the High Court retains a supervisory jurisdiction which permits it to issue quashing orders, quashing a decision that has become void. In that case, it is argued, once the DJ's decision to order the person's extradition is successfully appealed and the High Court has ordered his discharge and quashed the order for extradition, pursuant to section 27(1) and (5)(a) and (b), then the High Court must exercise its supervisory jurisdiction to quash the costs order. That is because the basis on which the costs order was made, viz. that there has been an order for the person's extradition by the DJ, no longer exists, so there is no basis on which the costs order can be made.
64. We think that the correct analysis is along the lines of the latter one. Once the basis for the costs order made under section 60(1)(a) and (2) has disappeared because the High Court has quashed the extradition order pursuant to section 27(5)(b), there is no basis on which the costs order could be made by the DJ. The very basis for the costs order under section 60(1)(a) and (2) has gone. We think that a power in the High Court to quash the costs order must be inferred into section 27(5)(b) as being a necessary consequence of quashing the extradition order on which the costs order was based. It would be the grossest injustice if it were otherwise.
65. We therefore quash the costs order imposed by District Judge Coleman pursuant to section 60(1) of the EA in the case of Mr Bizunowicz.

VI. Conclusions on the costs issues

66. For the reasons we have given we conclude that the High Court does not have jurisdiction to determine an appeal from a costs order made by a District Judge under section 60(1) of the EA in circumstances where a person has challenged that order as a part of pursuing an appeal (unsuccessfully) against the extradition order made by the DJ. However, the High Court does have jurisdiction to vary or quash a costs order made pursuant to section 60(1) when the person has successfully appealed the extradition order pursuant to sections 26 and 27 of the EA. In the case of Mr Bizunowicz we quash the costs order made by District Judge Coleman.
67. As for Ms Collins' application for the costs of Mr Bizunowicz's successful appeal, it is not in dispute that the court has power to order them to be made out of central funds, pursuant to section 61(1)(a), (2)(a) and (5), subject to the rules of determination under section 62A of the Act. We make such an order in that case.
APPENDIX

Sections 26 to 29; 34; and 60 and 61 of the Extradition Act 2003

26 Appeal against extradition order

This sectionnoteType=Explanatory Notes has no associated

(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.

(2) But subsection (1) does not apply if the order is made under section 46 or 48.

(3) An appeal under this section may be brought on a question of law or fact.

(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

27 Court's powers on appeal under section 26

This sectionnoteType=Explanatory Notes has no associated

(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition.

28 Appeal against discharge at extradition hearing

This sectionnoteType=Explanatory Notes has no associated

(1) If the judge orders a person's discharge at the extradition hearing the authority which issued the Part 1 warrant may appeal to the High Court against the relevant decision.

(2) But subsection (1) does not apply if the order for the person's discharge was under section 41.

(3) The relevant decision is the decision which resulted in the order for the person's discharge.

(4) An appeal under this section may be brought on a question of law or fact.

(5) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order for the person's discharge is made.

29 Court's powers on appeal under section 28

This sectionnoteType=Explanatory Notes has no associated

(1) On an appeal under section 28 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3) The conditions are that—

(a) the judge ought to have decided the relevant question differently;

(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.

(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the judge deciding the relevant question differently;

(c) if he had decided the question in that way, he would not have been required to order the person's discharge.

(5) If the court allows the appeal it must—

(a) quash the order discharging the person;

(b) remit the case to the judge;

(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.

(6) A question is the relevant question if the judge's decision on it resulted in the order for the person's discharge.

(7) If the court allows the appeal it must remand the person in custody or on bail.

(8) If the court remands the person in custody it may later grant bail.

…………………………………………………………………………………………..

34 Appeals: general

This sectionnoteType=Explanatory Notes has no associated

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

…………………………………………………………………………………………..

60 Costs where extradition ordered

This sectionnoteType=Explanatory Notes has no associated

(1) This section applies if any of the following occurs in relation to a person in respect of whom a Part 1 warrant is issued—

(a) an order for the person's extradition is made under this Part;

(b) the High Court dismisses an appeal under section 26;

(c) the High Court or the Supreme Court dismisses an application for leave to appeal to the Supreme Court under section 32, if the application is made by the person;

(d) the Supreme Court dismisses an appeal under section 32, if the appeal is brought by the person.

(2) In a case falling within subsection (1)(a), the appropriate judge may make such order as he considers just and reasonable with regard to the costs to be paid by the person.

(3) In a case falling within subsection (1)(b), (c) or (d), the court by which the application or appeal is dismissed may make such order as it considers just and reasonable with regard to the costs to be paid by the person.

(4) An order for costs under this section—

(a) must specify their amount;

(b) may name the person to whom they are to be paid.

…………………………………………………………………………………………..

61 Costs where discharge ordered

This sectionnoteType=Explanatory Notes has no associated

(1) This section applies if any of the following occurs in relation to a person in respect of whom a Part 1 warrant is issued—

(a) an order for the person's discharge is made under this Part;

(b) the person is taken to be discharged under this Part;

(c) the High Court dismisses an appeal under section 28;

(d) the High Court or the Supreme Court dismisses an application for leave to appeal to the Supreme Court under section 32, if the application is made by the authority which issued the warrant;

(e) the Supreme Court dismisses an appeal under section 32, if the appeal is brought by the authority which issued the warrant.

(2) In a case falling within subsection (1)(a), an order under subsection (5) in favour of the person may be made by—

(a) the appropriate judge, if the order for the person's discharge is made by him;

(b) the High Court, if the order for the person's discharge is made by it;

(c) the Supreme Court, if the order for the person's discharge is made by it.

(3) In a case falling within subsection (1)(b), the appropriate judge may make an order under subsection (5) in favour of the person.

(4) In a case falling within subsection (1)(c), (d) or (e), the court by which the application or appeal is dismissed may make an order under subsection (5) in favour of the person.

(5) An order under this subsection in favour of a person is an order for a payment of the appropriate amount to be made to the person out of money provided by Parliament.

(6) The appropriate amount is such amount as the judge or court making the order under subsection (5) considers reasonably sufficient to compensate the person in whose favour the order is made for any expenses properly incurred by him in the proceedings under this Part.

(7) But if the judge or court making an order under subsection (5) is of the opinion that there are circumstances which make it inappropriate that the person in whose favour the order is made should recover the full amount mentioned in subsection (6), the judge or court must—

(a) assess what amount would in his or its opinion be just and reasonable;

(b) specify that amount in the order as the appropriate amount.

(8) Unless subsection (7) applies, the appropriate amount—

(a) must be specified in the order, if the court considers it appropriate for it to be so specified and the person in whose favour the order is made agrees the amount;

(b) must be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section, in any other case.

(9) In relation to proceedings in Northern Ireland (including proceedings in the Supreme Court on an appeal, or on an application for leave to appeal, from proceedings in Northern Ireland)—

(a) subsection (5) has effect as if for "out of money provided by Parliament" there were substituted by the Department of Justice in Northern Ireland;

(b) the power to make regulations under subsection (8)(b) is exercisable by the Department of Justice in Northern Ireland (and not by the Lord Chancellor).

Section 18(1) of the Prosecution of Offences Act 1985

18 Award of costs against accused.

(1) Where—

(a) any person is convicted of an offence before a magistrates' court;

(b) the Crown Court dismisses an appeal against such a conviction or against the sentence imposed on that conviction; or

(c) any person is convicted of an offence before the Crown Court;

the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable.

Note 1   [2014] EWHC 2193 (Admin).    [Back]

Note 2   [16] of Skraba.    [Back]

Note 3   [21].    [Back]

Note 4   [22]    [Back]

Note 5   The wording of that section is set out at the end of the Appendix to this judgment.     [Back]

Note 6   [2000] 2 Cr App R (S) 390. Schiemann LJ gave the judgment of the court consisting of him and Douglas Brown J.     [Back]

Note 7   See page 395 of the report.     [Back]

Note 8   [39].    [Back]

Note 9   [40].    [Back]

Note 10   [41].    [Back]

Note 11   [24].    [Back]

Note 12   See the judgment of Maurice Kay LJ in R(Navadunskis) v Serious Organised Crime Agency [2009] EWHC 1292 (Admin) at [19] and [20] and that of Collins J at [35] to [41].     [Back]

Note 13   [2000] 1 Cr App R (S) 136.    [Back]

Note 14   [1997] 1 Cr App R (S) 435    [Back]

Note 15   [2013] EWHC 1513 (Admin) at [5]    [Back]