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England and Wales High Court (Administrative Court) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Pabian, R (on the application of) v City of Westminster Magistrates' Court [2025] EWHC 1255 (Admin) (01 May 2025)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/1255.html
Cite as: [2025] EWHC 1255 (Admin)

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Neutral Citation Number: [2025] EWHC 1255 (Admin)
Case No: AC-2024-LON-003653

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

The Royal Courts of Justice
Strand
London WC2A 2LL
1 May 2025

B e f o r e :

MR JUSTICE KERR
____________________

THE KING
(ON THE APPLICATION OF GRZEGORZ JANUSZ PABIAN) Claimant
-and-
CITY OF WESTMINSTER MAGISTRATES' COURT Defendant
-and-
(1) CROWN PROSECUTION SERVICE
(2) NATIONAL CRIME AGENCY Interested Parties

____________________

Digital Transcription by Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)

____________________

MR JAKE TAYLOR (instructed by Sperrin Law) appeared on behalf of the Claimant.
MS LAURA HERBERT (instructed by Crown Prosecution Service ) appeared on behalf of the First Interested Party.
MR CIJU PUTHUPPALLY (instructed by National Crime Agency) appeared on behalf of National Crime Agency)appeared on behalf of Second Interested Party.

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    MR JUSTICE KERR:

    Introduction and Summary

  1. This is an application for judicial review of the decision of District Judge Leong dated 29 October 2024 refusing to discharge the claimant, pursuant to section 36 of the Extradition Act 2003, following a failure by the UK authorities to extradite the claimant within the requisite time or arrange for an extension of time to be sought as required under the Act.
  2. Under section 36 of the Act, so far as material here, a requested person must be extradited before the end of a period of ten days from the date on which the relevant court decision becomes final. The relevant court here is the High Court, which on 25 September 2024 dismissed the claimant's appeal against an order that he be extradited to Poland.
  3. It is common ground that the UK had until 18 October 2024 to remove the claimant to Poland and that it missed that deadline. The first interested party, the CPS, reminded the second interested party, the NCA, of that deadline four days before it expired, but the NCA did not remove the claimant to Poland by 18 October 2024. Nor did the Polish judicial authority (or anyone on its behalf) seek an extension of time from the High Court under section 36(3)(b) of the Act. The claimant applied to the defendant court on 26 October 2024 for the discharge of the claimant under section 36(8) of the Act.
  4. Under section 36(8), the judge must discharge the requested person unless "reasonable cause is shown for the delay". The judge, District Judge Grace Leong, heard the application on 29 October 2024. She gave an extempore judgment dismissing the application for discharge, finding that reasonable cause for the delay had been shown. On 6 November 2024, the claimant applied for permission for judicial review of that decision.
  5. With permission of Morris J granted in his order made on 12 December 2024 (and sealed the next day), the claimant now challenges the district judge's decision in this judicial review. The issue is whether the decision of the district judge was so unreasonable that no district judge could have reached it. The claimant is on conditional bail and his removal has been stayed pending the outcome of this judicial review.
  6. The Facts

  7. The claimant was wanted in Poland to serve prison sentences totalling just over two years, pursuant to two conviction warrants. The warrants were issued in May and June 2018 and related to offences of fraud and theft committed in Warsaw, dating back to 2011. They were certified by the NCA in July 2022. The claimant accepted that he was a fugitive but resisted extradition on the grounds, among others, of substantial delay and risk of suicide.
  8. After a contested hearing before the defendant court in May 2023, District Judge Callaway ordered the claimant's extradition on 5 July 2023. The claimant appealed, with permission from Sir Duncan Ouseley granted on 31 October 2023. After some delay, the appeal was heard by Chamberlain J in June 2024. He dismissed the appeal for reasons given in his judgment handed down on 25 September 2024.
  9. As I shall explain, an order giving effect to that decision was later drawn up but was wrongly dated 22 October 2024. It is common ground that the deadline for removing the claimant was 18 October 2024. The CPS appreciated this and warned the NCA in an email of 14 October 2024 that the claimant should be removed by 18 October 2024 or an extension of time applied for (under section 36 of the Act). The NCA did not respond to that email or take any action in response to it at any time before expiry of the deadline on 18 October 2024, which came and went.
  10. An order wrongly dated 22 October 2024 giving effect to Chamberlain J's decision was drawn up but the seal date was showing as 26 September 2024 so it was plain on the face of the order that one of the dates had to be wrong. It was emailed by this court to the CPS on 22 October 2024. By then, the deadline for removing the claimant had already expired without the Polish judicial authority asking this court to agree an extension of time under section 36(3)(b) of the Act.
  11. The claimant's solicitors applied to DJ Leong on 26 October 2024 for his discharge under section 36(8) of the Act. On 29 October 2024. a further order was sealed with a note at the top saying "this order supersedes the order sealed on 26 September 2024", giving the correct date of the decision as 25 September 2024 and the seal date being, as I have said, 29 October 2024.
  12. On the morning of that same day, 29 October 24, the NCA sent an email to the CPS that was read to the district judge at the hearing that afternoon, providing the following information (as later put in a witness statement):
  13. "Note – we [that is, the NCA] will wait for the sealed order in order to both start the countdown for the CPOL period and from then the countdown for removal if no CPOL appeal submitted.
    [I interject that CPOL stands for certifying a point of law; I interject further that it is not clear whether that annotation was contemporaneous or not.]

    15/10/2024 - internal email from Admin Court asking court associates to chase draft order and serve ASAP.

    22/10/2024 - chaser from CPS to Admin Court asking when the court order is to be served.

    22/10/2024 - order from the court dated 22/10/2024 but stamped 26/09/2024.

    From our point of view [that is, the NCA's point of view] the CPOL period now starts from the 22/10/2024 and then the countdown to surrender period - as the sealed court order was only served on us on that date (22nd Oct)."

  14. That was the NCA's evidence, or the gist of it, that was before the district judge at the hearing on 29 October 2024. The district judge dismissed the application to discharge the claimant. She gave a short extempore judgment of which there is an agreed and approved note before me. She noted the error in the date of Chamberlain J's order and that it was agreed time for removal ran from 25 September 2025, the date of the judgment. She noted that the delay was 11 days, from expiry of the deadline on 18 October 2024 down to the hearing date, 29 October 2024.
  15. The district judge then referred to the CPS's email to the NCA of 14 October 2024 and the lack of any response to that email until after expiry of the deadline. Later, she noted, the NCA officer had commented saying that "from his point of view, the application to apply to certify a point of law began from 22 October 2024 and therefore the removal date, to his understanding was 14 November 2024" (in the words of the note of the judgment, at [4]). In other words, the NCA had mistakenly taken "22 October 2024" as the date from which time ran.
  16. The district judge then referred to relevant case law. She derived from R (Mechlinski) v Westminster Magistrates' Court [2015] EWHC 2043 (Admin), the propositions (set out at [5] in the note of her judgment) that:
  17. "when considering such applications a) a rigorous approach would generally be required b) length of delay should not be disregarded and might be relevant to the question of whether the delay had or had not a reasonable cause; c) gravity of offending was not material and d) onus was placed firmly on the requesting state to justify the delay."

  18. At [6]-[8] in the approved note of her extempore judgment, the following appears:
  19. "6. I have a wide discretion in construing a reasonable cause. I take note that in case of Owens that an administrative error might amount to a reasonable cause in the delay. In Desai, it was said that there could be cases where even negligence could encompass a reasonable cause for delay. I have not been told of the reasons for NCA's lack of response to the CPS email of the 14 October 2024. They might have been negligent in not responding to the CPS.

    7. It is also clear to me that when the High Court sent out the order dated 22nd October where there was a seal date of 26th September 2024, the NCA was taking its direction from the date of the High Court order. The NCA was working with that date and thought that they had time to remove the RP [requested person]. I find as a fact that the NCA was mistaken and in error. If there had been negligence, it was in not responding to the CPS email but choosing to wait for the High Court order.

    8. Having given consideration to that, I find that there is reasonable cause for the delay on part of the NCA in relying on the date of the High Court order and the element of negligence does not prevent me finding a reasonable cause of the delay. The delay period is only 11 days. The application for a discharge fails."

  20. District Judge Leong directed the CPS to apply for an extension of time, which it did the next day, 30 October 2024. The extension of time was granted, I understand, the same day by a lawyer from the Administrative Court Office, exercising delegated powers. The claimant then applied on 6 November 2024 for permission to bring a judicial review of the decision to refuse his discharge and applied for stay of his removal which was due to take place on 8 November 2024. On 7 November 2024, Linden J granted the stay. Morris J then, on 12 December 2024, granted permission and gave directions. The substantive claim was argued before me today.
  21. Submissions

  22. The claimant submitted that the decision was irrational. The time limits in section 36 of the Act are strict and mandatory, Mr Taylor submitted. Time runs from the date of the court's judgment. The date of receipt of the order, sealed or unsealed, is not relevant, Mr Taylor said. No extension of time was applied for until after expiry of the deadline, he noted.
  23. Mr Taylor argued that the failure of the NCA was "stark". There was no room for misunderstanding the deadline because the CPS's email had plainly spelled out what it was. The failure to respond to the warning in that email takes the case beyond one of administrative error into the realm of what Mr Taylor called in his skeleton argument "a substantial failing".
  24. Further, he contended, while the court has a wide discretion and an administrative error can amount to a reasonable cause for a delay, even where there is negligence, each case must be examined on its facts; and this case was different from cases such as Desai v City of Westminster Magistrates' Court [2014] EWHC 4631 (Admin) and In re Owens [2009] EWHC 1343 (Admin) where the relevant error was made before and not after expiry of the deadline for removal.
  25. Mr Taylor also referred to the medical evidence that was before Chamberlain J. He submitted that delay and uncertainty will inevitably impact negatively on the claimant's condition; the delay has "real life consequences" for the claimant, he reminded me.
  26. The defendant court did not appear. For the CPS, Ms Herbert submitted that the time limits for removal are not strict and mandatory; there is a discretion to assess the facts and determine whether they amount to a reasonable cause for the delay or not. The DJ's approach was correct, consistent with the case law she applied, and her approach was rigorous. There is no basis for interfering with the decision, Ms Herbert said.
  27. The NCA did not file a skeleton argument but adopted the CPS's position in detailed grounds of resistance which it filed over a month late, together with a witness statement, including further explanations about what had happened, which go beyond the evidence that was before the district judge.
  28. An order permitting these documents to be relied on by the NCA was made by one of the lawyers of this court exercising delegated powers, but I do not think the statement is helpful to me in so far as it goes beyond the evidence that was before the district judge. Mr Puthuppally, for the NCA, suggested it might be relevant to remedy if the claim were made good, but accepted that the NCA had not pleaded that point. I do not see how the ex post facto material could affect the rationality or otherwise of the district judge's decision.
  29. Mr Puthuppally supported Ms Herbert's submissions and commented that "reasonable cause" should be interpreted broadly, as the authorities support the proposition that the short time limit for extradition after an unsuccessful appeal is intended to protect the interests of the requesting state, not those of the requested person. The NCA is routinely copied into correspondence from this court although it is the CPS and not the NCA that is on the record in an appeal against extradition.
  30. Here, Mr Puthuppally said, the court had not directly communicated the decision to the NCA and had not sent out a sealed order until after the expiry of the deadline on 18 October 2024. While the CPS had attached Chamberlain J's judgment to its email of 14 October 2024, it had not attached a sealed or unsealed order. Both Ms Herbert and Mr Puthuppally (supporting her position) made the pragmatic point that without a sealed order it is more difficult to make the practical arrangements for surrender to the requesting state.
  31. Reasoning and Conclusion

  32. The confusion that led to the NCA missing the deadline for removal of the claimant arose from its failure to appreciate that time runs from the date of the decision, not the date (often later) on which the court's order is sealed; still less from the date, which may be later still, when the NCA receives the sealed order either from the Administrative Court or via the CPS.
  33. It was unwise of the NCA to ignore the sage counsel of the CPS, which was to the effect that it should make arrangements to remove the claimant before expiry of the deadline of 18 October 2024. The CPS suggested an alternative: that the NCA should "apply for any EoT [extension of time] as necessary".
  34. I interject that, as a matter of law, the extension of time must be sought by "the authority which issued the Part 1 warrant", i.e. in an appeal case, the successful respondent to the appeal, represented by the CPS (see section 36(3)(b)). In practice, I am told that the Administrative Court Office will accept an ex parte email, not copied to the claimant's representative, asking for the extension of time.
  35. I am told that the request for more time may come from the NCA and will be accepted by this court from the NCA even though it is not on the record and the CPS is. I am told that the Administrative Court Office lawyer will be prepared to extend time by agreement under delegated powers, without reference to the claimant or his or her representative. This practice has the support of Pill LJ in In re Owens at [32]. However, the practice was not followed in this case until after the district judge's decision.
  36. I come to that decision. In my judgment, she correctly stated what had happened and correctly considered and assessed the potentially relevant factors; the history involving an erroneous order emanating from this court; the length of the delay; the reasons for the delay which could be described as administrative error with an element of negligence; and the guidance from the higher courts in the authorities.
  37. Unlike in Mechlinski, where the note of the district judge's decision was a few brief lines with little analysis, the decision here, while commendably succinct, was also comprehensive and covered all the relevant points. I do not discern any lack of rigour of the kind deprecated by Bean LJ in Mechlinski. Far from being irrational, it seems to me that the decision was clear, concise, comprehensive and properly reasoned.
  38. The essence of the reasoning is, as the district judge said at [8], "the NCA relying on the date of the High Court order". The "element of negligence" did not prevent a finding of reasonable cause of the delay. The judge took into account, as she was entitled to, the length of the period of delay, which was only 11 days, she said. That was a potentially relevant consideration, as Bean LJ had noted in Mechlinski.
  39. Contrary to the claimant's submission, there is no necessarily material distinction where an error occurs before rather than after expiry of a removal deadline. I do not agree that In re Owens should be distinguished because the deadline was miscalculated before it expired, by an officer who then went on leave.
  40. The delay here was likewise rooted in events that occurred and perceptions that existed before the deadline expired: the imprudent practice of awaiting sealed orders; the misconception that time runs from the date of sealing; the court's failure to produce a sealed order promptly after 25 September 2024 and its failure to do so at any time before 18 October 2024; and the NCA's failure to heed the warning from the CPS in its email of 14 October 2024.
  41. Finally, I do not think there is anything in the point made by Mr Taylor at the end of his skeleton argument that the delay and uncertainty is likely to have a negative impact on the claimant. The delay is the result of the claimant's decision to challenge the district judge's decision by judicial review, which led to the stay he himself sought and which has enabled him to stay in this country for an additional six months or so. I can find nothing in the evidence to suggest that this point was made to the district judge. It is not relevant to the length of the delay as it stood when she made her decision, which was one of 11 days.
  42. For those brief reasons, the application for judicial review is dismissed and the decision to refuse discharge of the claimant is upheld. Subject to further observations, I propose to direct that he may be removed to Poland within ten days. The NCA should note that the period of ten days runs from today, 1 May 2025, and not from any later date on which my order may be sealed, though I will try to get it concluded promptly.
  43. I conclude by expressing my thanks to counsel for their helpful submissions and I invite them to draw up an appropriate order.

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