Bingham, (R on the application of) v City of Westminster Magistrates' Court

1. MRS JUSTICE DOBBS: The claimant seeks an order quashing the decision of District Judge Tubbs on 3 February 2011 declining to entertain an application by the claimant for his discharge pursuant to section 36 subsection 8 of the Extradition Act 2003. The claimant also seeks a declaration as to the proper application of section 36(8) in the circumstances that give rise to this claim.

2. The chronology of this case is important. It is as follows: on 18 August 2010, this claimant filed an appeal under section 26 of the Extradition Act 2003 challenging the decision of District Judge Evans to send him to Spain on a charge of drug trafficking in 2009. On 2 December 2010, Ouseley J dismissed the appeal. No application was made for leave to appeal to the Supreme Court by 15 December, and thus the decision of the High Court became final at midnight that day pursuant to section 36(5)(a) of the Act. The required period by the end of which the person, the extraditee, must be extradited began to run from that time. The required period expired at midnight on 25 December 2010 pursuant to section 36(3)(a) of the Act.

3. On 23 December, before the expiry of the required period, the CPS applied for an extension of time. The reason given was that due to the adverse weather conditions and the backlog of people trying to fly over the festive period, the Spanish officers, who were to accompany the claimant on his removal to Spain, had been unable to book a flight. The court was asked to agree a new 10-day handover period, beginning 24 December.

4. This extension was granted by Holroyd J on 24 December. The required period expired, therefore, at midnight on 3 January 2011.

5. On 4 January, after the expiry of the required period, the CPS made a further application for an extension, explaining that owing to the Bank Holidays and shortage of staff, it had not been possible to obtain Holroyd J's signed order, and therefore to arrange the handover in time; handover on 6 or 7 January was proposed.

6. On the same day, an application was made to the High Court by the claimant for his discharge. It was made to the High Court because a district judge at the magistrates' court had directed that the High Court was the proper forum for such an application. The claimant's solicitors made enquiries of the City of Westminster Magistrates' Court and the Administrative Court and, at the time of the enquiry, there was no extension or no required period in force.

7. However, on that same day, 4 January, Supperstone J granted a further required period. He directed an urgent oral hearing of the application for the claimant's discharge, and he further ordered that the claimant was not to be removed from the UK pending the outcome of the hearing.

8. On 13 January of this year, three cases were listed before Richards LJ who gave a judgment on 2 February. The judgment is that of Kasprzak and Others[2011] EWHC 100 (Admin). The cases all raise similar issues under section 36 of the Extradition Act 2003. By the time of the hearing, there had been disclosure to the parties of the material relating to the applications for the extensions -- exceptionally in this case, in order to assist the issues to be fully argued before the court.

9. So far as this claimant is concerned, counsel at that hearing did not challenge the validity of Supperstone J's order of 4 January, accepting that a court can agree to an extension of time, even after the original required period has expired. Counsel also accepted that the district judge had been wrong in directing, on 4 January, that the application for the discharge should be made to the High Court.

10. The remaining issue was the question of whether an extension of time granted after the expiry of the original required period precluded an application under section 36(8) for discharge consequent on the expiry of the original required period. The claimant's submission was that a later extension of the period did not affect the right of the reqested person to argue before the magistrates' court that there had been a failure to extradite him before the end of the original period and that reasonable cause had not been shown for the delay and that discharge should be ordered.

11. Giving judgment on 2 February, Richards LJ found that he had no jurisdiction to deal with the claimant's application for a discharge, and that such application fell to be made in the magistrates' court:

"36. 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.

37. 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.

38. 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).

39. 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."

12. Having emphasised that his following comments were strictly obiter, Richards LJ considered some of the wider issues canvassed in submissions before him, namely: i) the nature of the procedure for requesting the relevant court to agree to an extension of the required period; ii) whether the extraditee was entitled to be notified of such a request and be heard in opposition to it; iii) whether the relevant court has power to extend the required period after the original period, or the original period as extended has expired; and iv) whether it is open to the requested person to apply for discharge under section 36(8), notwithstanding a later required period.

13. I focus on his observations in relation to the third and fourth issues. In relation to the issue of the power to grant an extension after the period had expired, the question was answered in the affirmative with the following reason which is set out in paragraph 53 and 54 of that judgment:

"53. 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.

54. 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."

14. So far as the retrospective application for a discharge is concerned, Richards LJ expressed his doubts about 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. Without deciding the issue, he expressed his strong view that it was not open to this claimant to make a section 36(8) application to the magistrates' court at this stage, based on the expiry of the original period before that period was extended. His reason is to be found in paragraph 55 to 57:

"55. 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.

56. 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.

57. 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."

15. Richards LJ also agreed to an extension of the required period.

16. The day after this judgment was handed down, the claimant made an application for his discharge based on the expiry of the required period on midnight of 3 January 2011.

17. District Judge Tubbs refused to hear an application for the discharge of the claimant. The court order rather confusingly reads:

"It is ordered to that the application to discharge is refused. DJ not prepared to entertain application given paragraph 56 of judgment provided."

18. It is clear that the judgment provided was the judgment of Richards LJ.

19. In his written submissions, Mr Lloyd indicated that the judge said in court:

"In light of the judgment and in view of the clearly expressed opinion of the High Court, I am declining to hear the application under section 36(8) of this Act."

20. It is that decision the claimant now challenges, permission to do so having been granted by Davies J on 28 February.

21. The claimant seeks a quashing order of that decision and a direction that the district judge hears such application as soon as possible.

The claimant's submissions

22. The claimant's submissions can be simply put: it is that on the facts of this case, he is not precluded, as a matter of law, from making an application for discharge pursuant to section 36(8) of the Act. Even though section 36(3) makes provision for subsequent extensions of the required period, it does not provide that the later extension precludes a claimant from making the application pursuant to section 36(8) if extradition had not been effected during the earlier required period. To find otherwise, it is submitted, would deprive the defendant of an important safeguard that is expressly provided for in section 36(8).

23. In court today, Mr Lloyd, counsel for the claimant, has gone as far as suggesting that section 36(8), which will be referred to shortly, should include, or should be read as to include, further words to the effect that, only in light of an express bar under section 36, should a claimant not be permitted to make the application as envisaged in this case.

24. It is also pointed out by Mr Lloyd that the claimant in fact did make his application for discharge on 4 January at a time, it would appear, before the High Court had agreed to extend the required period. However, the magistrates' court erroneously declined to deal with it. It is submitted that despite the forceful "obiter" comments of Richards LJ, he had in fact left open the question of whether an application for discharge can still be made after the later and subsequent extension of time.

25. Mr Lloyd makes a further submission in court today, namely that the expression "required period" referred to in section 36 of the Act does not mean one continuous required period, but can be a number of required periods. Therefore, in his submission, the fact that there was, in effect, non-compliance under subsection 2 of section 36 of the original required period, means that he was entitled to make an application for discharge under section 36(8).

26. The first interested party supported by the second interested party concedes that the claimant was entitled to apply to the magistrates' court for an application for discharge on 4 January and that the magistrates' court was wrong to find that it had no jurisdiction to entertain the application. Mr Hardy on behalf of the interested parties submits that the application made on 3 February was a retrospective one, because at the time of the application a valid required period was in force. The district judge had no jurisdiction therefore to discharge before the end of the required period, and thus the decision was not unlawful.

Moreover, the decision of the district judge, in light of the observations of Richards LJ, could not be said to be irrational, despite the "obiter" status of those observations.

Mr Hardy has drawn the court's attention to the case of Asliturk v City of Westminster Magistrates' Court and the Government of Turkey, the decision of the Divisional Court [2010] EWHC 2 148, which was a case which concerned the provisions under section 75 in relation to the time limits concerning extradition hearings. In particular, attention of the court is drawn to the observations of Stanley Burnton LJ, particularly in paragraph 36. We need not read the reasoning in any detail, but to say that the effect of the reasoning, particularly in paragraph 36, relates to whether or not the issue in question is historical.

Mr Hardy submits, in this particular case, it is historical and retrospective and that the application is misconceived because discharge during the currency of a legitimate required period must be unlawful by virtue of section 36(8).

The law

Section 36 sets out the procedure and applicable time limit with regard to 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 House of Lords against the decision of the High Court on the appeal;

(b) the House of Lords, 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 House of Lords ends, if there is no such application;

(b) when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the House of Lords for leave to appeal;

(c) when the House of Lords refuses leave to appeal to it;

(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought before the end of that period.

(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 subsection 36(8), is defined by section 67(1)(a) as being:

"In England and Wales, a district judge (Magistrates' Court) designated for the purposes of this part by the Lord Chief Justice of England and Wales after consulting the Lord Chancellor."

It is common ground, by virtue of the order of Holroyd J on 24 December, that the claimant ought to have been extradited by 3 January and that section 36(2) had not been complied with in the early hours of 4 January. It is also common ground that the claimant was entitled, as of 12.01 am on 4 January, to apply for his discharge, and further that the magistrates' court was wrong to refuse to deal with the application for want of jurisdiction on that morning.

However, on 3 February, which is the date of the decision complained of, it is also common ground that there was a valid required period in force under section 36(3). This meant that the relevant authority had until the expiry of that date, namely ten days from the date of Richards LJ's judgment, to effect extradition. Subsection 3, refers to "the required period", which is always a 10-day period from the date of its commencement. It is common ground between the parties that there can be more than one required period, the real issue being what is the relevant required period for the purposes of section 36, and in particular subsections 2 and 8.

In my judgment, the relevant required period for the purposes of the application of 3 February was the required period emanating from the decision of Richards LJ on the previous day.

In my judgment therefore, the district judge had no power to order discharge because the relevant required period, that is the required period that was running from 2 February, was still in force. Moreover, there had been no failure to comply with the required period because there were still nine days to run on it.

The claimant's point, however, is that the failure under subsection 2 related to the required period as of 4 January and that there was a power to order his discharge retrospectively. Whilst it is correct, as the claimant submits, that section 36(3), which makes provision for a later date to be fixed so far as a required period is concerned, does not expressly preclude the claimant from making an application to discharge, as noted by the interested parties, there is also no suggestion that the power to discharge under section 36(8) can be exercised during the currency of a live required period, whether the original or subsequent required period.

If the claimant's submissions are right, it means that the district judge could have ordered the claimant's discharge on 3 February when there was in existence a lawful required period for his extradition agreed by the relevant court, namely the High Court, which is self-obviously a higher court.

In my judgment, the thrust of section 36(8) is directed at those circumstances where, at the time of the application, the extraditing authority has no power to further detain the extraditee in absence of an extension or agreed required period, or reasonable excuse for delay in extraditing and has to justify its continuing detention of the extraditee under subsection 8.

So far as the facts are concerned, I add that in the light of the problems facing the authorities during the festive season, with the attendant difficulties of travel in Europe due the extreme weather conditions and other problems, it is highly unlikely that such an application would have been granted on 4 January in any event. I note that the position was properly considered by the High Court judge on 4 January who, had he considered it appropriate, could have declined to agree to an extension or a new required period.

I turn therefore to the question of whether the district judge erred in declining to entertain the application or, as the court record shows, refusing the application to discharge. Although I am minded to say that the district judge should have heard the submissions, not least to consider whether or not there had been compliance with section 36(2), it seems to me that it cannot be said that this is a case where the decision should be quashed, whether it be to decline to entertain the application or to refuse it as being either unlawful or irrational, because, on a proper reading of the section, the district judge had no power to order discharge and she was entitled to rely on the clear and emphatic, albeit obiter, views expressed by Richards LJ.

As to the refusal to hear the application of 4 January, I have already made my observations. Granting a remedy serves no real purpose as the point is now academic. It follows from the above, therefore, that in my judgment this claim for judicial review fails.

27. LORD JUSTICE MOSES: I agree that the application should be dismissed. There is one question for the district judge under section 36(8), namely whether subsection 2 has been complied with. The answer to that question depends solely upon whether the required period has expired. The required period is defined in section 36(3). It is always ten days, but its starting date and its finishing date will depend upon whether subsection 3(a) applies or whether subsection 3(b) applies. In the instant case, subsection 3(b) applied because a later date had been agreed.

The required period had therefore not expired as at 3 February 2011, and there was therefore no obligation to extradite this applicant as at 3 February 2011.

Since there was no obligation to extradite the applicant as at 3 February 2011, the district judge, as my Lady has explained, had neither power, still less an obligation, to discharge the applicant. In those circumstances, whilst for my part it is plain that the district judge was under an obligation to listen to the application, the result was inevitable: the applicant could not be discharged consistently with the provisions of section 36.

Thank you both very much.

28. DEFENCE COUNSEL: My Lord, there is one application, or I should say in the proper language of the Act a request, and that is for a new required period. The required period that Richards LJ allowed commenced on 2 February, and by virtue of the fact that it can only endure for ten days, notwithstanding the fact that an injunction was granted to prevent the claimant's removal until the determination of this application, it follows that that required period has fallen away and we submit that a new required period should now be agreed between the relevant court, which this court is, and the issuing judicial authority whom I represent.

29. LORD JUSTICE MOSES: How long are you asking for?

30. DEFENCE COUNSEL: Ten days from today, my Lord, unless my learned friend indicates that he might consider coming back to the court to seek a point of law to be certified. No, I take it he's not coming back. In the circumstances, ten days from today, please.

31. LORD JUSTICE MOSES: Yes.

32. DEFENCE COUNSEL: Thank you.

33. LORD JUSTICE MOSES: So if you two draw up the order and then that will include that extension of the required period.

34. Thank you both very much.