Kasprzak v Warsaw Regional Court, Poland

This judgment relates to three cases that were listed for hearing together, all of them raising similar issues under s.36 of the Extradition Act 2003 (“the 2003 Act”). That section concerns the period within which extradition to a category 1 territory must take place following an unsuccessful appeal to the High Court against an order for extradition, and the consequences of a failure to extradite the person within the required period. In each of the three cases there was a failure to extradite within the original period laid down by the statute; the High Court agreed to extensions of time; the applicants disputed the validity or effectiveness of those extensions and made applications to the High Court to be discharged; and interim relief was granted to prevent their extradition pending determination of their applications.

Only two of the cases remain live, namely those of Kasprzak and Bingham. In the case of Wilson-Campbell I granted an order by consent at the hearing, discharging the interim relief and extending the time for extradition. I granted the order only at the end of the hearing, in order to have the benefit of any submissions that counsel wished to make by way of assistance to the court on the wider issues raised by the three cases. For that reason, and because they provide an additional illustration of what seems to be an increasingly common situation, I have included a summary of the facts of Wilson-Campbell in this judgment.

I should mention that the factual summary in each of the cases draws on material relating to the CPS’s applications for extension of the required period which is not normally made available to the requested person and which was disclosed by the CPS “exceptionally, and in the peculiar circumstances of this case” in order to enable the issues to be argued fully before the court.

The cases fall under Part 1 of the 2003 Act, which gives effect in domestic law to Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”). It is unnecessary for me to set out the structure of Part 1 or to make detailed reference to the authorities on the need to interpret its provisions purposively so as to give effect to the objectives of the Framework Decision (see e.g. Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 andDabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31).

Section 36 concerns extradition following appeal and provides, so far as material:

“36.

Extradition following appeal

(1)

This section applies if –

(a)

there is an appeal to the High Court under section 26 against an order for a person’s extradition to a category 1 territory, and

(b)

the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.

(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.

(4)

The relevant court is –

(a)

the High Court, if there is no appeal to the Supreme Court against the decision of the High Court on the appeal;

(b)

the Supreme Court, if there is such an appeal.

(5)

The decision of the High Court on the appeal becomes final–

(a)

when the period permitted for applying to the High Court for leave to appeal to the Supreme Court ends, if there is no such application;

(b)

when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the Supreme Court for leave to appeal …

…

(8)

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 “appropriate judge”, as referred to in s.36(8), is defined by s.67(1)(a) as being –

“in England and Wales, a District Judge (Magistrates’ Courts) designated for the purposes of this Part by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor.”

Section 35 contains provisions corresponding to those in s.36 in respect of an order for extradition where there is no appeal to the High Court.

Sections 35 and 36 give effect to article 23 of the Framework Decision, which provides:

“Article 23. Time limits for surrender of the person

1.

The person requested shall be surrendered as soon as possible on a 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 thus agreed.

4.

The surrender may exceptionally be temporarily 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 ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus 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.”

Kasprzak’s appeal under s.26 of the 2003 Act against an order for his extradition to Poland was dismissed by the High Court (McCombe J) on 2 November 2010. The applicant applied for a point of law to be certified and for permission to appeal to the Supreme Court. The applications were refused on 17 December 2010. The required period for extradition, pursuant to s.36(3)(a), therefore ran from that date and expired at midnight on 26 December.

On 23 December the CPS applied by letter (enclosing court fee of £75) for an extension of time under s.36(3)(b): in reciting the facts of this and the other cases, I refer to an “application” because that was the language used at the time, but I do so without prejudice to the submission, explained below, that an issuing judicial authority does not have to make a formal application when seeking the agreement of the High Court that time should run from a later date. The accompanying statement explained that two other persons had been due to be extradited to Poland by military flight from Biggin Hill on 22 December but the flight had been cancelled owing to adverse weather conditions, and that the next flight on which they and Kazprzak (in relation to whom the required period was thought, erroneously, to expire on 24 December) could be removed was on 10 January 2011.

On 24 December, Holroyde J directed an extension of the required period. His order read: “The ‘required period’ for extradition of the Appellant is further extended to a period of 10 days starting with 10 January 2011”.

By letter of 5 January 2011, an application was made to the magistrates’ court that Kasprzak be discharged, on the basis that the required period expired on 27 December 2010 and Holroyde J had been wrong to extend it to run from the 10 January 2011 rather than from 27 December 2010. The magistrates’ court indicated that it could not consider the application while there was a valid order of the High Court extending the required period. Applications were then made on the same basis to the High Court on 7 January, requesting on the same basis that the extradition order be set aside and that the applicant be discharged under s.36(8).

Supperstone J directed an urgent oral hearing of the application and ordered that the applicant was not to be extradited or otherwise removed from the United Kingdom pending that hearing.

Bingham’s appeal under s.26 of the 2003 Act against an order for his extradition to Spain was dismissed by the High Court (Ouseley J) on 2 December 2010. He did not seek permission to appeal to the Supreme Court within the permitted period of 14 days laid down by s.32(5). The decision of the High Court therefore became final, pursuant to s.36(5)(a), at midnight on 15 December. The required period for extradition, pursuant to s.36(3)(a), expired at midnight on 25 December.

On 23 December the CPS applied by letter (enclosing a court fee of £75) for an extension of time. An accompanying statement explained that because of the weather conditions and the backlog of people trying to travel over the festive period, the Spanish officers (i.e. those who would accompany Bingham on his removal to Spain) had been unable to book flights; and the Spanish and UK police were proposing a handover on 28 December. The request was for the High Court to agree a new 10-day handover period beginning on 24 December.

On 24 December, Holroyde J directed that the required period was now to commence on 24 December. The period as extended therefore expired at midnight on 3 January 2011.

On 4 January 2011 – after the expiry of the required period as extended by Holroyde J’s order - the CPS made an application by letter (enclosing a further court fee of £75) for a further extension of time, explaining that owing to the bank holidays and shortage of staff it had not been possible to obtain Holroyde J’s signed order and arrange the handover in time; and a handover on 6 or 7 January was now proposed.

On the same date, 4 January, Bingham’s solicitor ascertained from the City of Westminster Magistrates’ Court and the Administrative Court Office that no application for a further extension had been made as at the time of the enquiry. A District Judge at the magistrates’ court also directed that any application to discharge be made to the High Court. An application was then made to the High Court for an order for Bingham’s discharge under s.36(8). When it was discovered that an application for an extension of the required period had in fact been made, the application for discharge was maintained, on the basis that the required period had expired prior to the application for a further extension and the application for a further extension was out of time.

By an order made on 4 January in relation to the applications received that day, Supperstone J granted a further extension of the required period so that it now commenced on 4 January; directed an urgent oral hearing of the application that the applicant be discharged; and ordered that the applicant was not to be extradited or otherwise removed from the United Kingdom pending that hearing.

Wilson-Campbell’s appeal under s.26 of the 2003 Act against an order for his extradition to Spain was dismissed by the High Court (Ouseley J) on 1 December 2010. He did not seek permission to appeal to the Supreme Court within the permitted period of 14 days laid down by s.32(5). The decision of the High Court therefore became final, pursuant to s.36(5)(a), at midnight on 14 December. The required period for extradition, pursuant to s.36(3), expired at midnight on 24 December.

On 23 December the CPS applied by letter (enclosing court fee of £75) for an extension of time. The accompanying statement explained that owing to weather conditions and the backlog of people trying to travel over the festive period the Spanish officers had been unable to book flights before 24 December. The request was for the High Court to agree a new 10-day period so that the applicant could be removed.

On 24 December, Holroyde J directed that the required period was now to commence on 24 December.

On 30 December an application was made on behalf of Wilson-Campbell for an injunction to prevent his removal, on the basis that Holroyde J had no power to make an order extending time on 24 December, either because the required period had already expired by that date and there was no power to make a retrospective application to extend or because any extension of the default period should be determined at the date of the dismissal of the appeal and not at a later date.

On 31 December the CPS applied by letter (enclosing court fee of £75) for a further extension of the required period. The explanation was the same as in the case of Bingham, that owing to the bank holidays and shortage of staff it had not been possible to obtain Holroyde J’s signed order and arrange the handover in time; and a handover on 6 or 7 January was now proposed.

On the same date, 31 December, Kenneth Parker J directed that the required period was further extended so as to commence on 3 January 2011. He also directed an oral hearing of Wilson-Campbell’s application for an injunction to prevent removal, and ordered a stay of removal pending that hearing.

By the time of the hearing before me, the applicants had received the disclosure referred to at para 3 above. In the light of that material and other considerations, their cases were put somewhat differently at the hearing than had been foreshadowed by the terms of their written applications to the court.

For Kasprzak, Mr Martin Henley indicated that the application challenging the extension of time for extradition and seeking Kasprzak’s discharge was made as a stand-alone application under Part 23 of the Civil Procedure Rules, with CPR rule 40.9 as a possible alternative basis. It was not brought under the 2003 Act or by way of a claim for judicial review. He submitted that the CPS’s application for an extension of time must itself have been made under CPR Part 23 and resulted in an order of the court granting the extension sought, and there must be an opportunity for a person affected by the order to apply to the court to have it set aside on grounds of legal error. He also argued that the High Court must have jurisdiction to entertain an application for discharge in an appropriate case, without requiring an application to be made to the magistrates’ court.

As to the substance of the challenge to Holroyde J’s order of 24 December, Mr Henley advanced two grounds. First, he submitted that the order was ambiguous, in that the language of the order (“10 days starting with 10 January 2011”) did not make clear whether the required period as extended by the court was to commence on 10 January or on 20 January, after the expiry of the 10 days referred to. Secondly, he submitted that the judge was plainly wrong to make the order: it was obvious from the statement accompanying the CPS’s application for an extension that no provision had been made for Kasprzak to be returned to Poland within the original required period even though there had been sufficient time to make appropriate arrangements, and there was no reasonable cause for extending the period.

For Bingham, Mr Ben Lloyd adopted a more limited stance. He accepted that an application for discharge must be made under s.36(8) to the magistrates’ court: the District Judge had been mistaken in directing that an application must be made to the High Court. Nor did he challenge the validity of Supperstone J’s order of 4 January granting an extension of time: he accepted that an application for an extension can be made and an extension can be granted even after the original required period has expired.

Mr Lloyd said that the one remaining question in Bingham’s case was whether an extension of time granted after the expiry of the original required period precluded an application under s.36(8) for discharge consequent upon the expiry of the original period. He submitted that a later extension of the period did not affect the right of the requested person to argue before the magistrates’ court that there had been a failure to extradite him before the end of the original period, that reasonable cause had not been shown for the delay, and that discharge should therefore be ordered. As a fall-back position, in the event of my determining that issue against him in the present proceedings, he submitted that Supperstone J’s order of 4 January should be set aside since the judge cannot have appreciated that the effect of the order would be to shut a window otherwise open to Bingham and as a matter of procedural fairness he should not have made such an order without giving Bingham the opportunity to make representations.

For Winston-Campbell, Miss Rebecca Hill accepted that there was no basis on which her client could succeed in his application and requested the court to endorse the order agreed between the parties to give effect to the withdrawal of the application. That was a responsible and in my view entirely realistic stance, as will appear from my various observations below.

For the issuing judicial authorities in the cases of Kasprzak and Bingham, Mr John Hardy QC submitted that the High Court has no jurisdiction to entertain an application for discharge at this stage of the extradition process. Applications for discharge on the basis that the required period for extradition has been exceeded can only be made to the magistrates’ court pursuant to s.36(8). The applications before this court should therefore be dismissed without more.

In his skeleton argument and his oral submissions Mr Hardy went on, however, to deal helpfully with a number of the wider issues raised by these applications, indicating that it might be desirable for the court to give guidance in this area. I consider those matters below.

For the issuing judicial authority in the case of Wilson-Campbell, Miss Rachel Barnes provided the court with a helpful skeleton argument covering the wider issues as well as the specifics of Wilson-Campbell’s case. Those submissions were adopted by Mr Hardy but I indicated that I would take them into account in any event when considering the wider issues, notwithstanding the agreed disposal of Wilson-Campbell’s own application. Miss Barnes also made short, supplementary oral submissions at my invitation.

I am grateful to all counsel for their assistance.

I am satisfied that the live applications before me, those of Kasprzak and Bingham, must both be dismissed. I can state my reasons for that conclusion relatively briefly.

First, the High Court has no power to order a requested person’s discharge for non-compliance with the obligation under s.36(2) of the 2003 Act to extradite that person before the end of the required period. The statutory scheme is clear and complete. An application for discharge must be made under s.36(8) to the “appropriate judge”, an expression defined by s.67(1)(a) as a District Judge (Magistrates’ Courts) designated for the purposes of Part 1 by the Lord Chief Justice after consulting the Lord Chancellor (see para 6 above). Neither a High Court Judge nor a Lord Justice of Appeal is an “appropriate judge” as so defined. It is plain that an application under s.36(8) can be made only to the magistrates’ court and in particular to a designated District Judge (Magistrates’ Courts). The statute confers no power on the High Court to order discharge at this stage of the extradition process, and for the High Court to assume such a power would be contrary to the statutory scheme. Accordingly, in so far as the present applications to the High Court seek an order for discharge, they must fail. All this was sensibly acknowledged by Mr Lloyd.

Secondly, even if an order of the High Court extending the required period is amenable in principle to challenge by the requested person (which, as explained below, I do not think it is), the cases before me either raise no such challenge (Bingham) or raise a challenge that lacks substance and cannot succeed (Kasprzak).

As to Bingham, Mr Lloyd made clear that he does not dispute the power of the High Court to extend the required period after the original period has expired and he does not challenge the validity of the order granting such an extension in Bingham’s case. Whether it is open to the magistrates’ court to order discharge by reference to the expiry of the original period before the extension was granted is a matter that can be decided only in the context of an application under section 36(8) to the magistrates’ court and any application for judicial review of the decision of that court. The application currently before this court does not depend on the answer to that question. It also follows that Mr Lloyd’s fall-back submission, that if the order of 4 January is held to preclude an application under s.36(8) it should be set aside, does not arise for decision. The observations I make below on these topics are strictly obiter.

As to Kasprzak, I am wholly unpersuaded by Mr Henley’s criticisms of Holroyde J’s order of 24 December 2010:

That is sufficient to dispose of the applications before the court. I think it right, however, to go on to look at some of the wider issues canvassed in submissions before me, even though what I say on those issues will necessarily be obiter. Requests for an extension of the required period for extradition are made and granted with some frequency, and the present cases illustrate some of the uncertainties to which the process can give rise. Guidance will not bind but may be of some help. Again, I will focus on the position under s.36, where there has been an appeal against the extradition order, though the points I make will also be relevant to cases under s.35 where there has been no appeal. In practice, the relevant court under s.36 will normally be the High Court, but if there is a further appeal to the Supreme Court the relevant court will be the Supreme Court. I have concentrated on the position of the High Court, but some of the difficulties in the case advanced on behalf of the applicants become all the greater if one considers what would happen if the equivalent situation arose in the Supreme Court.

The first point to consider relates to the nature of the procedure for requesting the relevant court to agree to an extension of the required period. I refer here to a “request”, arguably a more neutral term than “application”, despite the fact that the requests made in each of the cases before me was expressed as an application. Mr Hardy objected even to the term “request”, submitting that all that is needed is some form of contact between the issuing judicial authority and the relevant court with a view to agreement on a later date, and that in reality it is the executing judicial authority that needs an extension of the period where removal cannot be effected within the original period. As I see it, however, the reality in each of the cases before me is that the issuing judicial authority requested the court to agree to an extension because of difficulties on their side in relation to the removal of the person to be extradited, and I do not think that use of the term “request” is misleading or inappropriate.

A request may be made during the currency of the appeal proceedings but does not have to be made at that point and is much more likely in practice to arise at a later date, when the proceedings are at an end and some difficulty has arisen in effecting removal. That was the position in all the cases before me, in each of which the request was made at a time when the decision of the High Court had become final, the Part 1 warrant was “disposed of” (see s.213(1)(c) of the 2003 Act) and the stage that had been reached was essentially that of making administrative arrangements for removal pursuant to the extradition order. Such a request cannot therefore be accommodated within the procedures governing extradition appeals. It has a sui generis character, independent of any extant legal proceedings.

I see some attraction in Mr Hardy’s submission that no formal procedure is required at all – that nothing is needed beyond informal contact and agreement between the issuing judicial authority and the relevant court, pursuant to the obligations of judicial co-operation on which the Framework Decision is based. Neither article 23 of the Framework Decision nor s.36 of the 2003 Act seems to contemplate any particular formality in relation to the process. On balance, however, I think that it must be open to a Member State to regularise and formalise the process by providing, for example, for such requests to be made and agreement to be given in a prescribed manner.

That said, I do not think that such requests can be treated as being made under the existing CPR Part 23. Part 23 is directed towards applications in the context of civil claims, albeit an application can be made in certain circumstances before a claim has been started. The general rule, in rules 23.3 and 23.4, is that an applicant must file an application notice (defined by rule 23.1 as “a document in which the applicant states his intention to seek a court order”) and must serve the application notice on the respondent (defined by rule 23.1 as “(a) the person against whom the order is sought, and (b) such other person as the court may direct”), with various detailed provisions about notice periods and the like. None of this seems apposite in relation to a request to the relevant court to agree to a later date under s.36(3)(b) of the 2003 Act, which is not made in the context of a claim or inter partes litigation, whether actual or prospective, and does not seek a court order against anyone. It is true that if the court agrees a later date this is generally recorded in a formal order, but that seems to me to be a matter of convenience and good sense rather than a legal necessity. In principle, the court’s agreement could be given in the form of a letter.

Counsel were unable to suggest any alternative provision in the existing rules that might cover requests of this kind. If, therefore, my reservations about CPR Part 23 are justified, it may be that consideration should be given to the inclusion of some express provision in the rules to cover the situation.

Whether a request is to be treated for the purposes of the Civil Proceedings Fees Order 2008 as an application in respect of which a fee is payable is a question best left open. I understand that Her Majesty’s Courts Service (“HMCS”) has taken the view that a fee is payable, and I have noted that fees were in fact paid in each of the cases before the court. Mr Hardy submitted that HMCS was wrong to demand fees and that the demand is contrary to article 30.1 of the Framework Decision, which provides that “[e]xpenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State”. But HMCS is not a party to, or represented, in the present proceedings and I have heard no submissions on its behalf. If the CPS wishes to take issue with the demand for fees, it can consider bringing an application for judicial review for that purpose.

The next question to be considered is whether the extraditee is entitled to be notified of a request for an extension and to be heard in opposition to it. That question was answered as follows by Collins J in a reasoned order granting an extension of the required period in CO/5910/2008, R (Adamiak) v Krosno Regional Court, Poland:

“4.

The question has arisen whether the person to be extradited must at least be notified and, if he wishes, can be heard in opposition to a request for an extension of time under ss.35(4)(b) or 36(3)(b). The Crown Prosecution Service have submitted that he cannot, but the Senior District Judge has indicated that in his view he should in the interests of fairness. He refers to a sentence in Richards LJ’s judgment in Szklanny [see R (Szklanny) v City of Westminster Magistrates’ Court [2007] EWHC 2646 (Admin), [2008] 1 WLR 789]:-

‘The requested person is constantly subject to the protection of the court.’

That, he suggests, shows that to allow the individual to make representations would be appropriate.

5.

I think all that Richards LJ intended by that observation was that the court would have to make any order and that would provide protection. I do not doubt that there would often be problems in enabling representations to be made since the individual would probably by then have no representation order in being and there would be a need to act speedily. I am satisfied that the court has power to hear representations. I think that the court should decide whether there is a need for such representations in the interest of fairness. I suspect that in most cases there would be nothing that the individual could usefully say, other than that he does not want to go back. It must be for the court to assess the validity of the reasons given for the extension of time. If it feels that there are possible reasons to question it or that representations could assist, it can direct that the necessary arrangements be made. Otherwise, it can decide whether to make the order without hearing the person concerned.”

I agree with those observations. The same philosophy can be seen in In re Owens [2009] EWHC 1343 (Admin), [2010] 1 WLR 17, para 32, where Pill LJ described s.36(3)(b) as a provision “that the authority may agree a later date with the relevant court, and may do so without reference to the applicant or his interests”. I do not think that there is any right on the part of the requested person to be heard or to make representations, though the court can invite such representations if it considers that fairness so requires. The passage in Szlanny about the requested person being subject to the constant protection of the court was in fact contained in a summary of the submissions made on behalf of the issuing judicial authority (para 16), but in any event the protection of the court is assured by the procedure outlined by Collins J. Practical considerations also militate against there being any right on the part of the requested person to participate in the procedure: one is generally concerned with relatively short extensions, asked for at short notice. My views on this issue also feed back into my reservations about the applicability of CPR Part 23 to a request of this kind.

Although there is in my view no entitlement to be notified of the request or to be heard in relation to it, it seems to me that fairness and good administration require that the extraditee be informed of any extension agreed by the relevant court, since it bears directly on his right to apply for discharge under s.36(8) if extradition has not been effected before the end of the required period. It is wasteful and undesirable for a person to be informed for the first time of an extension only by way of defence to an application under s.36(8). I understand that the existing practice is for the court to send a copy of the court’s order recording the extension to the extraditee as well as to the CPS. That seems to me to be sufficient. I do not consider it necessary for the CPS to serve on the extraditee copies of the written request and supporting material submitted to the relevant court. The exceptional disclosure made by the CPS in this case (para 3 above) does not have to become the norm.

The observations I have made about the nature of the procedure relating to requests for an extension lead to the further conclusion that the High Court does not have jurisdiction to entertain an application to set aside its agreement to an extension or an order recording such agreement. There is no statutory basis for such an application. An application for judicial review would not lie to challenge an order made by a High Court Judge acting in his capacity as such (see e.g. In re A Company [1981] AC 374, 384E-G). CPR Part 23, on which the applicants place their main reliance, cannot in my view provide a stand-alone basis for such an application, in circumstances where there is no actual or contemplated claim, let alone any claim within the jurisdiction of the court. Nor do I think that CPR rule 40.9, which provides that a person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied, applies to this situation. As I have said, there is no necessity to record the court’s agreement in an order, and it would be very odd if the recording of the agreement in an order opened it up to a challenge that could not otherwise be brought.

I need say nothing about the general nature of High Court’s discretion to agree to an extension of the required period. That topic was considered in Szlanny and to some extent in In re Owens and has not been touched on to any material extent in the present proceedings.

I turn to the question whether it is open to the issuing judicial authority to seek the relevant court’s agreement to an extension of the required period, and whether agreement to an extension can be given, after the original period (or the original period as previously extended) has expired. Mr Hardy submitted that s.36(3)(b) imposes no express limitation as to the time when agreement can be requested or given and that no such limitation should be implied. He contrasted it with s.8 of the 2003 Act, which provides in subs.(1) for a date to be fixed on which the extradition hearing is to be begun, lays down in subs.(4) that the date must not be later than the end of the permitted period of 21 days starting with the date of arrest, and provides in subs.(5) that a later date may be fixed if an application is made before the date fixed under subs.(1) (or under subs.(5) itself). A similar requirement to apply for an extension before the end of the required period is to be found in s.99(4), considered in R (Zaporozhchenko) v Westminster Magistrates’ Court [2011] EWHC 34 (Admin). On the other hand, Mr Henley drew attention to s.31, which cuts the other way: subs.(1) provides that rules of court (to be found in para 22.6A of the Part 52 Practice Direction) must prescribe the relevant period within which the High Court must begin to hear an appeal, but subs.(4) empowers the High Court to extend the relevant period and subs.(5) provides expressly that the power in subs.(4) may be exercised even after the end of the relevant period. There are similar provisions in s.113 in respect of Part 2 cases. Thus, the absence of express provision in s.36(3)(b) as to the time when agreement can be sought or given does not of itself justify an inference either one way or the other.

Nevertheless, it seems to me that article 23 of the Framework Decision and its implementation in s.36(3)(b) of the 2003 Act must contemplate the possibility of agreement being sought and given after the expiry of the original period, since it may only be at the end of the original period that circumstances beyond the control of the Member States or serious humanitarian reasons prevent extradition within that period and give rise to the need for agreement on a new date for removal. I therefore consider that Mr Lloyd was right to accept in Bingham’s case that the required period could validly be extended on 4 January even though the request and agreement came after the expiry of the period as previously extended on 24 December.

As to Mr Lloyd’s contention (paras 30 and 39 above) that where the original period, or the original period as previously extended, has expired it is open to the requested person to apply for discharge under s.36(8) notwithstanding a later extension of the required period, the argument before me centred on the judgment of the Divisional Court in R (Asliturk) v City of Westminster Magistrates’ Court [2010] EWHC 2148 (Admin). That case concerned the provision in s.75(4), which is the broad equivalent in Part 2 of s.8(7) in Part 1, that “[i]f the extradition hearing does not begin on or before the date fixed under this section and the person applies to the judge to be discharged, the judge must order his discharge”. The extradition hearing began 4 days after the day fixed under the section. The requested person applied under s.75(4) to be discharged, but the application was made some time after the extradition hearing had begun. The court held that such an application must be made before the extradition hearing, albeit late, begins.

Although some of the court’s reasoning in Asliturk is relevant to s.36(8), there is no direct parallel between the provisions and I do not consider, for example, that s.36(8) can be read as requiring an application for discharge to be made before the expiry of the required period. Thus, an application for discharge made after the expiry of the required period and before a later extension of that period might well be a valid application, and the effect of the later extension might then be a matter of some difficulty. But I am very doubtful whether a valid application for discharge can be made at a time when the required period has already been extended and the extended period has not expired, even if the extension occurred after the expiry of the original period: in that situation, at the time when the s.36(8) application is made, extradition can still take place before the end of the required period and there is therefore no failure to comply with s.36(2). I am therefore strongly inclined to the view, without deciding, that it is not open to Bingham to make a s.36(8) application to the magistrates’ court at this stage, based on the expiry of the original period before the period was extended.

Finally, although there is a positive duty under s.36(2) to extradite the requested person before the end of the required period, in my view the section does not prohibit the person’s removal after the expiry of the required period, subject of course to a successful application for discharge under s.36(8). The section lays down a timetable for removal after the decision of the relevant court on appeal becomes final, and provides in s.36(8) a potential sanction for failure to comply with that timetable, but does not impose the further sanction of rendering removal automatically unlawful.

For the reasons given at paragraphs 36-40 above, I dismiss the applications of Kasprzak and Bingham.

Mr Hardy requested at the hearing that if I dismissed the applications I should extend the required period to run from the date of hand-down of my judgment. I agree to that later date. Subject to any further submissions, therefore, the order of the court dismissing the applications of Kasprzak and Bingham will also record that the required period in each case is further extended so as to be a period of 10 days starting with 02 February 2011.