England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		12 December 2014

LORD JUSTICE LAWS: This is a rolled up application for judicial review permission with the substantive judicial review to follow if permission is granted. There is an arguable case here and we will grant permission.

The claimants seek to challenge the decision of District Judge Devas made on 20 November 2014 at the City of Westminster Magistrates' Court by which he declined to order their discharge pursuant to S.36(8) of the Extradition Act 2003. The circumstances are as follows.

The extradition of both claimants is sought by Germany. They were both arrested in this country pursuant to the European Arrest Warrants and remanded on bail. In due course on 11 July 2014 their extradition was ordered by District Judge Goldspring. The legal process of extradition to Germany is governed by Part 1 of the 2003 Act. The claimants appealed to this court under S.26 of the Act against their extradition to Germany. That appeal was dismissed on 23 October 2014. The 14 day period stipulated for lodging an application to certify a point of law general public importance or for leave to appeal to the Supreme Court expired 5 November 2014. On that day Mr Hanif Mohammed, solicitor for the claimant Desai, wrote to the Administrative Court Office (ACO), making it crystal clear that no such application had been made on his client's behalf. That being so, the claimant should have been extradited to Germany no later than 15 November 2014.

S.36(2) and (3) of the Extradition Act provide as follows:

(2) The person must be extradited to the category 1 territory before the end of the required period.

(3) The required period is -

(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or

(b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.

The dismissal of the claimants' appeal to this court became final on 5 November 2014, no application for appeal having been made accordingly, the 10 day stipulated by S.36(3)(a) ran from that day. There has been no agreement in this case under S.36(3)(b), but the claimants were not extradited by 15 November 2014. Their solicitor gave notice of intention to apply for their discharge pursuant to S.36(8) which provides:

"If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay."

The application for discharge was heard on 20 November 2014. It then appeared that the ACO had mistakenly informed the National Crime Agency ("the NCA"), who are responsible for carrying out the extradition, that in fact the claimants had applied for leave to appeal the decision of this court of 23 October 2014. Apparently a co-defendant or co-appellant had made such an application; but as I have indicated, these claimants had not. The district judge rejected the application for discharge. He said.

"The NCA was told in terms by the office which administrates the appeal courts" -- he means administers the Administrative Court -- "that both Mr Desai and Mr Maruf had lodged a further appeal for the possibility of leave to appeal to the Supreme Court."

That in fact turns out not to be the case. Whether that error was caused because a third person involved in the same matter had lodged an application, and that caused the confusion, I do not know. But nonetheless, acting on that information, perhaps understandably the NCA did nothing else in terms of removal and clearly no level of criticism in my view can be aimed at the NCA for dealing with the matter in the way that they did. Then in the last paragraph of his judgment, after sighting the decision of this court in Owens [2009] EWHC Admin 1343, District Judge Devas continued

"In my view the main agency that deals with this type of thing in terms of removal is the NCA. This is clearly an administrative error and it cannot be the case that any administrative error falls foul of S. 36 as it seems to me that every case of this type involves an administrative error."

There are a number of cases on "reasonable cause" in the 2003 Act. Netecza [2014] EWHC Admin 2098 to which the district judge referred, was as he said concerned with a different point, namely whether an agreement under S.36(3)(b) for the 10 day period to start on a later date may lawfully be entered into after expiry of the primary 10 day period under S.36(3)(2) has expired. However, for reasons to which I shall come it is necessary to address the decision in the Netecza case.

In Owens [2009] EWHC Admin 1343, Pill LJ said this at paragraph 50.

"Delay is to be avoided. The interests of persons resisting extradition must also be respected, but provisions plainly directed to ensuring prompt extradition in the interests of the requesting authority (Article 23 and section 36) should not readily be defeated by an administrative error, or an error of law in considering the length of time allowed, which have resulted in a very short delay in protracted proceedings involving very serious offences."

Mr Maclean says that this passage is obiter; but it seems to me in any event that it is correct. Pill LJ is not there saying that the gravity of the offence is itself relevant to the ascertainment of reasonable cause. In Kinderis [2008] QB 347 considering S. 47 of the Act, which is materially identical to S.36, I said this:

"As for that proviso it seems to me that it is simply means what it says. It will clearly be apt to bar the remedy of discharge in what I have called a force majeure case one may readily multiply examples, that is if the extradition is to be effected by air, a strike by airline or air traffic control staff over a period during which the extradition is set to take place might well fall within this category, and I would think there may readily be reasonable cause for the delay where it is occasioned of humanitarian grounds such as the serious illness of the extraditee. That extend the instances of postponement referred to in article 23(34) of the framework directive may be said to dovetail with the "reasonable cause" proviso in S.47(4) upon the latter's interpretation according to ordinary domestic cannons of construction.

"Two considerations force majeure and humanitarian go only to whether there are particular circumstances advantageous contingent which might prevent the extradition in place within the required period stipulated under S.47(2) and (3).

"My conclusion on the proviso to S.47(4) is I think all of a piece with the use in S.35(5) and 36(8) of exactly the same expression they are concerned with the possibility of unlooked for slippage in the execution of the tight timetable for extradition which the statute requires."

It is accepted on all hands that Part 1 of the 2003 Act must be read against the background and in the context of the EU Framework Decision: see for example per Sir John Thomas President in Assange v The Swedish Prosecution Authority [2011] EWHC Admin 2849 paragraph 10. Article 23 of the Framework decision provides:

1. The person requested shall be surrendered as soon as possible on the date agreed between the authorities concerned.

2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European Arrest Warrant.

3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the member states, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date that is agreed.

4. The surrender may exceptionally be temporally postponed for serious humanitarian reasons, for example, if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European Arrest Warrant shall take place as soon as these grounds have seized to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree of a new surrender date. In that event the surrender shall take place within 10 days of the new date that is agreed.

5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody, he shall be released.

In Szklammy [2008] 1 WLR 789 Lord Justice Richards said this at paragraph 18:

"Regard should be had not just to the wording of article 23 but also to the framework decisions underlying purpose of facilitating extradition and enhancing extradition procedures based on a spirit of mutual cooperation. I see no reason why those considerations should not in an appropriate case tell in favour of the grant an extension at the request of the judicial authority even if it is not being shown that circumstances beyond the control of the member state prevented extradition within the normal time limit, in the sense that the delay occurred without any fault on behalf of any of the state agencies concerned."

As Pill LJ held in Owens at paragraphs 51 to 52, the Framework Decision does not preclude the enactment in a Member State's domestic statute of an "unless clause" such as is found in S.36(8). Such a clause, moreover, does not have to be confined to the situations expressly stated in article 23. Administrative error may be covered and in my judgment may, I emphasize the word may, encompass cases where there has been negligence: not, of course, any negligence. The decision on S.36(8) must obviously depend on the facts of the case; and I would wish to emphasize that a rigorous approach will generally be required. However, I do not see why, for example, the length of the delay should be disregarded: as Mr Maclean submits, that is something which may be obviously relevant to whether the delay has or has not a reasonable cause. The question always is, is the cause of the delay reasonable in all the circumstances. I would accept that the gravity of the offence in the particular case is not relevant, because it is not logically material to the issue of reasonable cause.

In this case the agency specifically responsible for carrying out the extradition, the NCA, were not themselves at fault: though that is not of itself conclusive in their favour. They relied, however, on information from a trusted and generally reliable source, namely the ACO. The mistake, though negligent, was relatively venal. The delay before it came to light was very short. The NCA enquired on the 5 and 7 November 2014 whether an application to certify a point of law had been made in the cases of the appellants and they were told on 7th by the ACO that it had. That was corrected on 17 November 2014. There followed the claimants' application to discharge.

It seems to me in all these circumstances that the conclusion arrived at by the district judge was correct. There was here a reasonable cause for the delay. To the extent that he took into account the gravity of the offending or alleged offending, that was not I think material; but as a matter of law, his conclusion as such cannot, I think, be faulted.

In Netecza, to which I have referred, this court held that a S.36(3)(b) agreement could not be made after the primary period of 10 days under S.36(3)(2) had expired. Accordingly the requesting State, where the period of 10 days has passed, has no opportunity under the statute to request an extension of time. That is unsatisfactory. It is a result, I apprehend, not intended by the legislature. Netecza therefore requires to be revisited. In the Queen v Greater Manchester Coroner ex parte Tal [1985] QB 67 this court held that it may depart from an earlier Divisional Court decision if satisfied that that decision was clearly wrong.

In Netecza Moses LJ said this:

"31. Moreover the fact of reasons for delay may be outweighed by the gravity of the offence. An application to agree a later starting date once the initial period has expired may be founded on the nature and seriousness of the offence in respect of which extradition is sought. By contrast under S.36(8) however serious the offence, if there is no reasonable cause for the delay, a person who applies to an appropriate judge to be discharged is entitled to discharge.

32. For these reasons I disagree with the conclusion of Ouseley J [that is a reference to a decision of my Lord's in an earlier case] The statutory scheme does not in my view permit the provisions of S.36(8) to be circumvented. If there was reasonable cause for the delay, then neither the requesting state nor the requested state have any cause to fear the consequences of this decision. If there was no reasonable cause, then it seems to me that a failure to extradite within the required period runs counter to the statutory intention to ensure speedy extradition once all opportunity for resistance has passed away. In those circumstances I would permit a writ of Habeas with the result that there will now have to be a hearing of the issues which arise under S.36(8)."

King J, agreeing with Moses LJ, said this:

"34. Under subsection 2 the person must be extradited before the end of the required period as defined in subsection 3 which allows for only two options, namely 10 days from one of two starting dates. Either from the date the relevant appeal decision became final 3(a) or from a later date agreed between the relevant court and the requesting authority 3(b). Once that required period has expired in any given case, without extradition having taken place, then self-evidently the required period has come to an end and I can see no room on the face of the provisions themselves for that required period to be revived after it has ex hypophesi, already come to an end. If it were otherwise the protection expressly given to the requested person under subsection 8, once the required period has come to an end would be nugatory."

I regard this reasoning within its own terms as compelling, but the fact is that the decision leaves the lacuna in the statute to which I have already referred. Where the primary period of 10 days under 36(2)(a) has passed, the requesting State has no opportunity, following Netecza, to request an extension of time by the mechanism given in S.36(3)(b). It seems to me that had that been considered, a different result might well have been and should have been reached.

It is of course important that where a court deals with an application for an extension (effectively for a S.36(3)(b) agreement) after expiry of the primary period of 10 days, it should scrutinize the case with particular care. However, for the reasons I have given relating to an important aspect of the administration of this statutory scheme not considered in Netecza, I have come to the conclusion with great respect that the result of that case was erroneous and I would so hold.

In all these circumstances, in my judgment the district judge's decision falls to be upheld. I apprehend -- though I have not discussed with this my Lords or counsel -- that if my Lords agree, then it will be for the requesting State to go back to the Magistrates' Court for a new date under S.36(3)(b).

MR JUSTICE OUSELEY: No, it would be for us. We are the appropriate court.

LORD JUSTICE LAWS: My Lord corrects me. We are now the appropriate court so we will hear about that.

MR JUSTICE OUSELEY: I agree. I would only add that in the light of a conclusion that Netecza was wrongly decided, the NCA should nonetheless not lessen their current efforts to obtain agreement under S.36(3)(b) for a new 10 day period before the expiry of the previous one.

MR JUSTICE SIMON: I agree with both judgments. May be it is necessary to recognise that where a system of human agency, individual human administrative error is on occasion inevitable and if it is not a systemic error can properly to be taken into account in assessing the reasonableness of the courts.

LORD JUSTICE LAWS: What about a new date? My Lords are right I have no doubt that we are now constituted the appropriate court.

MISS HINTON: That is correct under S.36 and the application has to be made to this court as opposed to the magistrates' court and in fact the district judge in Owens was criticized for stipulating a time frame for the removal.

LORD JUSTICE LAWS: So be it. What date are you asking for now?

MISS HINTON: It is quite difficult for me to pluck a time frame out of --

LORD JUSTICE LAWS: We got to decide this. Are you not in a position to get instructions about it?

MISS HINTON: I am in a position to get instructions and I can do that very shortly, if your Lordship will permit me a moment or two to obtain the instructions.

LORD JUSTICE LAWS: My Lord saying anyone of us can do it. Mr Maclean I don't know whether you want to say anything about this. It is clearly right that we would now have to fix the date.

MR MACLEAN: I don't know whether I would be in a position to obtain instructions very quickly nor do I have a position from Mr Maruf for (Inaudible). My suggestion would be that this is something that could and should be dealt with in writing --

LORD JUSTICE LAWS: I think that is right.

MR MACLEAN: -- with the court. Once we obtain instructions and once my learned friend obtained instructions, and if the matter then has to be listed for a hearing as to the context and something before my Lord that can presumably be done by this court still seize of the matter.

MR JUSTICE OUSELEY: I don't think the date falls in any of those automatic ones where listed in the S. where the period starts with 10 days from the final disposal of an appeal. I don't think there is anything in S.36 --

MR MACLEAN: I --

MR JUSTICE OUSELEY: -- which directly covers these circumstances, so it requires an application for an agreement. Now there is no form about that but it can be done in writing.

LORD JUSTICE LAWS: It can be done in writing?

MR JUSTICE OUSELEY: Yes.

LORD JUSTICE LAWS: Well, then, I think it should be done in writing. There is only one week of term left. I am sitting in criminal appeals next week. I have the pleasure of nominating Mr Justice Ouseley as the judge to deal with it.

MR JUSTICE OUSELEY: It could be Master Gidman can do because they have delegated power to deal with this.

LORD JUSTICE LAWS: Could be who?

MR JUSTICE OUSELEY: Could be Master Gidman. He deals with these. The master. I used to deal with them all but now --

LORD JUSTICE LAWS: They would send in any agreed date or application for the court to decide a date to the administrative court office.

MR JUSTICE OUSELEY: Yes. In the unusual circumstances of this case, would you ask them to mark it for my attention?

MISS HINTON: Yes My Lord.

LORD JUSTICE LAWS: The whole thing has to be resolved by the end of next week.

MR JUSTICE OUSELEY: Yes.

MISS HINTON: What that does arise in this particular case whether the NCA are to make an application now to extend time.

LORD JUSTICE LAWS: That is exactly what we are talking about.

MISS HINTON: What period.

LORD JUSTICE LAWS: Exactly.

MR JUSTICE OUSELEY: If put it in on paper to the administrative court and mark it for my attention, so the application will come in an unusual for me in the way it used to do, for an agreement of a new starting 10-day period with your date from what that 10-day period should be, absent error and they will brought down to me, absent error I will deal it; absent error it will sent out.

LORD JUSTICE LAWS: Can that be done, should I say by next Wednesday.

MR JUSTICE OUSELEY: Oh yes latest.

LORD JUSTICE LAWS: By next Wednesday 4 pm at the latest. In the regrettable I hope none event that you cannot agree or that any reason for a hearing.

MR JUSTICE OUSELEY: It is not actually a matter for agreement. They just send it in, we will deal with it. If you want to say something to us about it, no doubt Miss Hinton as clients should be the ones --

LORD JUSTICE LAWS: Of course they make the application but clearly the appellant should be able to have an input into whatever Miss Hinton's client says, ultimately they do not agree, then the application be made in writing unagreed.

MR JUSTICE OUSELEY: It is a private, if you like, matter between the court and the NCA rather than input. Sometimes somebody in Mr Maclean's position will say, could we possibly have a bit longer and that is what you are going to say.

MR MACLEAN: That --

LORD JUSTICE LAWS: He is not actually entitled to it.

MR MACLEAN: It is the point which My Lord just eluded to in the judgment, that this procedure which used to happen before Netecza came round, is in effect a private dialogue between the relevant body the NCA and the court. People in my client's position are shut over that process. That is rather Lord Justice Moses' point.

LORD JUSTICE LAWS: I can see that.

MR MACLEAN: In circumstances which obtained here, although I have not got instructions yet, there are a number of obvious submissions which as my Lord says somebody in my position might make and I apprehend somebody in my position will be making in terms of whether there should be a period of time allowed to see whether matters would then follow on to applications for --

LORD JUSTICE LAWS: You entirely entitled to write to Miss Hinton's clients between now and Wednesday and it would then be for them to decide what put in to the court.

MR MACLEAN: I see the time but it would be convenient now I apprehend for me to make an application for permission to appeal because I have to make an application to this court, so I make --

LORD JUSTICE LAWS: So you make that application.

MR MACLEAN: I suspect I should do that now. I do so.

LORD JUSTICE LAWS: Right.

MR JUSTICE OUSELEY: Is that right? Do you not have to make an application for a certificate?

MR MACLEAN: In the judicial review proceedings that would be correct and in Habeas Corpus proceedings there is no need for a certificate.

LORD JUSTICE LAWS: We have dealt with this as a judicial review.

MR MACLEAN: So My Lord Justice Ouseley it is right. Now, of course, in the light of events this morning, this court has now by regard to Greater Manchester ex parte Tal decided that this Divisional Court in Netecza was wrongly decided. Now, that is clearly a matter being arrived Divisional Court decision which this court now essentially said the other one was wrong is a matter which in principle is out to be considered by a higher court. I accept, however, that it does not strictly can arise on the facts of this case. If your Lordship could indulge to just think about that.

LORD JUSTICE LAWS: You will make an application in writing for us.

MR MACLEAN: I am grateful.

LORD JUSTICE LAWS: You better do that by the close of play on Wednesday as well and it is going to run contemporaneously with the procedure for applying for a new date.

MR MACLEAN: I am grateful.

LORD JUSTICE LAWS: Any such application by you for leave on a certificate is to be in the administrative court office by 4 pm on Wednesday.

MR MACLEAN: I am grateful my Lord.

LORD JUSTICE LAWS: It may be sooner than that. I ought to be resolved before the timetable really.

MR JUSTICE OUSELEY: I wonder Mr Maclean if you had two days, Miss Hinton knows what the arguments are. She could be in a position to respond on Wednesday so that we have her response at the same time as the application for an extension of time.

MR MACLEAN: We will deal with it by close of play on Tuesday.

MR JUSTICE OUSELEY: Very good.

LORD JUSTICE LAWS: All necessary bits of paper to be in the Administrative Court office by 4 pm on Wednesday. That includes the application if it is to be pursued presumably subject to going to the Supreme Court for a further date by Miss Hinton.

MR JUSTICE OUSELEY: If there are any personal points that you wish to raise in respect of your clients.

MR MACLEAN: There are some in Mr Desai's case.

LORD JUSTICE LAWS: What I would suggest you do is write to Miss Hinton's clients with those points, for her to include those points with her application for a new date to be agreed.

MR MACLEAN: There are such points in Mr Desai's case.

MR JUSTICE OUSELEY: And she can say whatever, her clients can say to what extent they adopted them for not.

MR MACLEAN: Yes, very good suggestion.

LORD JUSTICE LAWS: That would be very helpful. Is that all clear?

MISS HINTON: Yes my Lord. One matter that I will be raising in written submissions because I am asked to do so is the issue of whether and it is necessary in the situation to apply with a fee.

LORD JUSTICE LAWS: To what?

MISS HINTON: To make the order with the requisite fee does have a tendency of slowing matters down.

LORD JUSTICE LAWS: Do you normally apply with a fee, do you, on an extension for a further period then I am afraid you must apply with a fee.

MISS HINTON: I am told that Netecza, the Lords in that case had indicated that the fee was not necessary.

LORD JUSTICE LAWS: If the rules apply you must pay it.

MISS HINTON: I think will address your Lordships on that in writing.

MR JUSTICE OUSELEY: If you are asked to pay a fee and you say it is not due, nonetheless we will have the application and I am sure if they tell you that a fee is due, I suggest you undertake to pay a fee if it is due. That leaves it open.

LORD JUSTICE LAWS: They are a grown-up department. They can deal with it.

MR JUSTICE OUSELEY: That is a way round a disputed fee.

LORD JUSTICE LAWS: Would you have the goodness to agree a form of the order resolving today's proceedings and let the office have it?

MISS HINTON: Certainly your Honour.

LORD JUSTICE LAWS: Thank you for your assistance.