England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2015

Lord Justice Bean :

This is the judgment of the court.

1. On 8^th May 2015 at the City of Westminster Magistrates Court the claimant appeared at an extradition hearing before District Judge Purdy. His extradition was sought by a Polish Judicial Authority on a European Arrest Warrant to execute a 10 month sentence for an offence of fraud. He was represented by the duty solicitor at this hearing. He did not consent to his surrender, but raised no issues. Unsurprisingly, therefore, the District Judge ordered his extradition. Mr Mechlinski did not file a notice of appeal. It followed, by virtue of s 35(3) and 35(4)(a)(i) of the Extradition Act 2003, that he had to be extradited to Poland by 24 May 2015, that is to say 17 days later. The Requesting State and the National Crime Agency on their behalf took no steps during this period to extradite him. The District Judge had granted bail conditional on the provision of security; the security was paid on 5 June and the claimant was accordingly released from custody.
2. On 8 June the claimant's solicitors made an application for his discharge under s 35(5) of the Act, which provides:-

"If subsection (3) 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."

3. The statement of Mr Harun Matin, the solicitor representing the claimant, is that he had been contacted by Mr Mechlinski by telephone on 5^th June. The client told him that he had not yet been extradited. Mr Matin advised the claimant to attend with him at the magistrates court on 8^th June at 09:30am. Mr Matin requested an urgent listing of an application to discharge. The case was listed before District Judge Devas. Poland was represented by Mr Carl Kelvin of the CPS. Mr Matin applied for the EAW to be discharged under s 35(5) and submitted that no reasonable cause for the delay in extradition had been shown. The respondents did not seek an adjournment (for example to the next day). Mr Kelvin read out a communication from the NCA as follows:-

"On 10 April 2015 a Form A was received relation to Mr Mechlinski for EAW IV Kop 71/14. On 8 May 2015 another form was received relating to another European Arrest Warrant, number KOP 55/15. The NCA then received notification that Mr Mechlinski was arrested on 8 May 2015 on EAW IV Kop 71/14. A request was made for a copy of EAW Kop 55/15 that had not been executed. Next, the NCA was notified that Mr Mechlinski's extradition was ordered with no consent on 9 May 2015. On 18 May 2015 the NCA received correspondence from Poland that Mr Mechlinski was believed to be in the UK. At this stage it would be [usual] for an extension to be put in after the CPOL deadline to give time for removal but this did not occur in this case. It would appear that during the period of removal the NCA was waiting for receipt and execution of the second EAW, whilst Mr Mechlinski was released on bail."

(The word "usual" in line 9 of that quotation replaces "unusual" in the original, which counsel are agreed must be a mistake).

4. After Mr Kelvin had read out this explanation the District Judge gave an extempore judgment. There is no transcript or approved note of what he said. The best note we have is that of Mr Matin:-

"He said that it was clear that there had been an error, however, clerical errors are commonplace. He further stated that in the absence of bad faith, because of the confusion as described by the CPS, there was a reasonable cause for the delay. He extended time for Mr Mechlinski's removal to take place within the next day days. Mr Mechlinski was bailed and the hearing was concluded."

5. In an email of 19 June Susan Watt, Legal Team Manager at the Westminster Magistrates Court states that a file note made at the hearing reads: "DJ: a genuine clerical error. Clerical error can be explained by existence of another warrant." She adds that she was not in court on that day so it may be that more was said. She said that once she had discussed the matter with the judge she would get back to the legal representatives on both sides.
6. On 24^th June Ms Watt acknowledged service on behalf of the defendant. In Section D of the form she wrote:-

On the 8^th of June 2015 the file note is that Judge Devas said: it was a genuine clerical error.

Judge Devas says that he wishes to quote what he said in the case of Desai which was in turn quoted by the High Court and agreed with when they dealt with the appeal against his decision in Desai:-

"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 s36 Extradition Act 2003 as it seems to me that every case of this type involves an administrative error. I cannot distinguish my decision in Desai with that in Mechlinski and stand by it."

As we understand this entry the first sentence is a note of what the judge said at the hearing but the rest is not. It appears to be common ground that no cases were cited to the judge and none was referred to by him in his judgment. As will be seen, however, Ms Hinton for the Polish Judicial Authority relies on the decision in Desai v City of Westminster Magistrates Court [2014] EWHC 4631 (Admin); and the judge was well aware of it since he had, as he notes, been the District Judge whose decision was then under challenge in this court.

7. In a witness statement of Mr Tom Akerstrom of the NCA, made on the day of the hearing before us, which we allowed with some hesitation to be placed before us, he writes:-

"… The application for removal was not made before 9^th June because according to NCA records there was an outstanding EAW for the subject, received on the same day as the arrest of 08/05/2015. The NCA had not received notification of the execution of this second EAW VIIII Kop 55/15. Also, on 03/06/2015 the NCA was notified that the subject was released on conditional bail. As part of the bail conditions the subject was to spend each night at the same address and not to apply for international travel documents. The NCA was awaiting the execution of the second EAW, reference: VIII Kop 55/15 through the Schengen Information System to continue with plans for removal.

A section 35 extension request outlining the reasons for delay was made to Westminster Magistrates Court (WMC) on 08/06/2015. This was granted by WMC on 09/06/2015, giving a new period for removal of the subject 10 days from 17/06/2015. The NCA received notification of an application for judicial review on 22/06/2015 which barred these plans for removal. This is where we currently stand."

8. In her skeleton argument Ms Hinton refers to the Desai case and submits:-

"The court is bound to consider the merits of a case where a reasonable excuse is put forward as the reason for a delay. An administrative error, even a negligent one, is capable of amounting to a "reasonable cause". The court should look at the circumstances. The seriousness of the offence is irrelevant. The length of the delay may be relevant."

In oral argument she submitted that the District Judge has a broad discretion in considering whether reasonable cause for the delay has been shown.

9. We consider, with respect, that this is a one-sided view of the decision of this court in Desai, and in particular paragraph 12 of the judgment of Laws LJ. What that case decided was in our view as follows:-

a) Administrative error may amount to a reasonable cause for the delay;

b) This may encompass cases where there has been negligence but "not of course, any negligence";

c) A rigorous approach will generally be required;

d) The length of the delay should not be disregarded; it may be relevant to the question of whether the delay has or has not a reasonable cause;

e) The gravity of the offending or alleged offending is not material.

10. Ms Hinton also referred us to the decision of this court in R (Caldarelli) v City of Westminster Magistrates Court [2009] EWHC 107 (Admin). This is authority for the proposition that a judge may find that there is reasonable cause for delay in executing an extradition order where other extradition proceedings are in progress in the English courts under EAWs issued by the same Requesting State. We note, however, that in that case, the later EAWs had been properly issued and certified and the fugitive had been formally arrested on those warrants while in custody awaiting the decision of the House of Lords (no less) against the order for his extradition on an earlier EAW. In the present case there was no satisfactory evidence before the District Judge, and there still is none before us, about the second EAW said to have been issued against Mr Mechlinski. We do not even know whether it has been certified, let alone executed.
11. We consider that Ms Hinton's analysis of Desai omits the very important requirement laid down by Laws LJ emphasising that a rigorous approach will generally be required. Time limits are important in extradition cases, and the language of the subsection – discharge must be ordered unless reasonable cause is shown for the delay – places the onus firmly on those representing the Requesting State in this country to explain and justify the delay. If a short adjournment (for example to the next working day or the one after that) is necessary in order for accurate evidence on the subject to be obtained then it would seem to us entirely proper that it should be granted, at any rate if no notice has been given of the application.
12. In this case, with respect, there is no evidence before us that the District Judge adopted a rigorous approach. We are not saying, of course, that a lengthy judgment is required on every application of this kind. But in this case the brief judgment as noted by Mr Matin suggests that the District Judge took the view that a "genuine clerical error" is in itself reasonable cause for the delay; and his Acknowledgment of Service indicates that he thought that this is what the case of Desai decided. In any event, so far as we can tell on the limited evidence available to us, it may be wrong to characterise the reason for the delay in this case as a clerical error. It may have been a mistake of law, namely a misapprehension that because of the decision in Caldarelli the prosecution could simply allow the 24 May deadline to pass without any adverse consequences.
13. Since the judge did not adopt the rigorous approach to which Laws LJ referred in Desai, his decision cannot stand. But it is not obvious to us on this judicial review application that there was only one decision to which the district judge could have come. We cannot, therefore, substitute our own decision: see s 31(5A) of the Senior Courts Act 1981, as amended.
14. For these reasons, at the conclusion of the oral hearing last week, we granted permission for judicial review; allowed the substantive claim for judicial review; quashed the decision of the district judge refusing the claimant's application for discharge under s 35 of the Act, renewed the claimant's bail on the same terms as before, and remitted his application for discharge to the City of Westminster Magistrates Court, directing the court to reconsider the matter and reach a decision in accordance with this judgment and with any evidence placed before the court at the remitted hearing. We directed that the application should be listed for hearing before a different district judge as soon as practicable after the handing down of these reasons.