Neteczca v Governor of Holloway Prison

Once all the statutory remedies by which a requested person may resist extradition are exhausted, the Extradition Act 2003 sets out a strict timetable by which a person must be extradited. Where extradition has not taken place during the period required by the 2003 Act, a requested person may apply to be discharged and the court is required to order discharge unless reasonable cause is shown for the delay.

The required period for Part I extradition is always ten days, but the starting date varies. It is either when a decision becomes final or when a court and the authority of the requesting state agree a later starting date. The Crown Prosecution Service, the first interested party in the instant application, customarily asserts the right to finesse any application for a discharge by agreeing with the relevant court a later starting date, even after the required period has expired. This appeal is concerned with whether that practice is lawful.

Where there has been an appeal and the effect of a decision on appeal is that the person is to be extradited to a Category 1 country, the requested person must be extradited before the end of the period required by the statutory provisions (s.36(2)). By s.36(3):-

“The required period is –

(a)

Ten 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, ten days starting with the later date.”

Where a person is not extradited before the end of the required period, s.36(8) provides for the requested person’s discharge:-

“If sub-section (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.”

On 18 December 2013 District Judge Evans ordered the applicant’s extradition to Poland. The applicant appealed, pursuant to s.26 of the 2003 Act. She then withdrew her appeal and by consent her appeal was dismissed on 28 February 2014. Section 36(3) of the 2003 Act required her to be extradited to Poland before the end of 9 March 2014. She was not extradited by that date.

Pursuant to s.36(8) on 31 March 2014 the applicant applied to Westminster Magistrates’ Court seeking her discharge. The Crown Prosecution Service was informed of that application. On 1 April, Westminster Magistrates’ Court informed the relevant parties that the application to discharge would be heard on 3 April 2014. At that hearing it would have been open to the Crown Prosecution Service to show reasonable cause for the delay.

However, the hearing of the issue as to whether there was reasonable cause never took place. The Crown Prosecution Service avoided any consideration of that issue by making an ex parte application the day after, on 2 April 2014, seeking what they described as a “direction to extend the required period for extradition”, pursuant to s.36(3)(b) of the 2003 Act. The court was told it is customary for such an application to be heard on consideration of the papers by a Master of the Administrative Court. Master Gidden considered documents lodged by the Crown Prosecution Service and directed that the required period of ten days should start on 8 April 2014. Once that order had been made, Westminster Magistrates’ Court directed that the hearing, at which the Crown Prosecution Service would have had to show reasonable cause, be removed from the list. The applicant now applies for a writ of habeas corpus ad subjiciendum which, if issued, would permit the hearing as to reasonable cause to be restored.

The question, accordingly, arises as to whether an application for a discharge may be obviated by an agreement between the High Court and the authority of the requesting state, reached after the end of the ten day period identified in s.36(3)(a). There was no dispute between the parties but that the applicant’s only remedy was by way of habeas corpus and neither the Crown Prosecution Service, nor the National Crime Agency, sought to dispute the availability of the writ. R (Nikonovs) v Governor of Brixton Prison and Another [2005] EWHC 2405 (Admin) is ample authority for the availability of this remedy (see paragraph 19).

Mr Summer QC’s primary submission was that the relevant court has no jurisdiction to agree a later starting date if the period required by s.36(3)(a) has expired.

Section 36(3)(a) specifies the ten days during which a person must be extradited by reference to a starting day. That is the day on which the decision of the relevant court on the appeal becomes final, or proceedings on the appeal are discontinued. Section 36(8) identifies two conditions which must be satisfied before the judge is required to order discharge. The first is that s.36(2) has not been complied with. It seems to me plain that where the starting date, as in the instant case, is the date on which proceedings on the appeal are discontinued, once ten days have expired, then s.36(2) has not been complied with and the first condition for discharge under s.36(8) has been satisfied. Accordingly, where, as here, the requested person has applied to an appropriate judge to be discharged, he must be discharged unless reasonable cause is shown for the delay. There must be a hearing at which that issue can be determined.

Such a conclusion is consistent with the long history of Extradition Acts over a period of 150 years: a succession of Extradition Acts has protected a requested person against the requesting state’s inertia in effecting removal. Since 1965, a requesting state must show reasonable cause for delay in effecting extradition.

The Extradition Act 2003, giving force to the Framework Decision, maintains that protection. Article 23 of the Framework Decision provides time limits for surrender of a requested person, setting a limit of 10 days after the final decision (Article 23.2), subject to circumstances beyond the control of any member states (Art. 23.3) and serious humanitarian reasons (23.4). If a person is still being held in custody on the expiry of the time limits, he should be released (Art. 23.5). It seems to me inconsistent, both with the statutory scheme and the Framework Decision, to permit consideration of whether there has been reasonable cause for the delay to be avoided by making an agreement as to a later starting date after a required period of ten days has already expired. If that required period has expired, then the statutory scheme and the Framework Decision demand consideration of whether there has been reasonable cause for delay. It is not possible to say that s.36(2) has been complied with in circumstances where a required period has expired.

In Ostroleka Regional Court, Poland v Rzewnicki [2013] NI QB 42, the Divisional Court in Northern Ireland concluded that it should not fix a different required period until the determination under s.36(8). The Northern Ireland court referred to a discretion to fix a different required period under s.36(3)(b). It is the nature of that discretion which forms the basis of the Crown Prosecution Service’s resistance to this conclusion. It contends that the statute confers a discretion upon the relevant court to agree a later date, whether that agreement is reached before or after the expiry of the ten days, starting with the date when the appeal is discontinued (or the appeal becomes final). That discretion, it says, even though it is exercised on an ex parte written application, affords sufficient protection to a requested person.

The nature of the discretion was considered by Richards LJ in R (Szklanny) v City of Westminster Magistrates’ Court [2007] EWHC 2646 (Admin). In that case, the court was considering the provisions of s.35(4) in a case where there had been no appeal following an order for extradition. Those provisions mirror the provisions of s.36(3)(b). Richards LJ drew a sharp contrast between s.35(4)(b) and s.35(5) (their equivalents where an extradition follows an appeal are s.36(3)(b) and s.36(8)). In Szklanny the requested person had argued that the discretion of the district judge to agree a later start date was confined to those cases to which Article 23 refers, namely, where there was no fault on the part of the requesting or requested state. Richards LJ rejected that view (paragraph 18).

Richards LJ took the view that it was permissible for agreement to be reached, even if it was not shown that circumstances beyond the control of the member states prevented extradition within the normal time limit; it was not necessary to show that the delay occurred without any fault on behalf of any of the state agencies concerned (paragraph 18). Szklanny suggests that the interests of the requested person may be irrelevant to the court’s consideration of whether to enter into a s.35(4)(b) or s.36(3)(b) agreement.

The contrast between s.36(3) and s.36(8) was further underlined by this court in In re Owens [2010] 1 WLR 17 [2009] EWHC 1343 (Admin). Pill LJ pointed out that under s.36(3)(b):-

“The authority may agree a later date with the relevant court, and may do so without reference to the applicant or his interests.” (paragraph 32)

There is further assistance as to the distinction between s.36(3) and s.36(8) to be found in the important judgment of Richards LJ in Kasprzak v Warsaw Regional Court, Poland (and two other cases raising similar issues) [2011] EWHC 100 (Admin). In obiter comments (see paragraph 41) Richards LJ pointed out that the request to agree a later date was independent of any extant legal proceedings and sui generis [43]. No formal procedure was required: informal contact was sufficient [44]. The application for agreement is ex-parte and does not require notice [48].

The requested person has no right to be heard at all and no reasons for the court’s agreement need be given [51]. There is no necessity for a formal order, nor for the court’s agreement to be recorded, nor for the requested person to be notified, although that happens in practice. The application is made to a Master who considers the question as to whether there should be agreement on the documents.

The importance of these distinctions, drawn by Richards LJ in Kasprzak, is to underline the absence of statutory protection afforded to a requested person in the adoption of the procedure under s.36(3). No statutory protection is provided to the requested person even though s.36(2) has not been complied with and the required period under s.36(3)(a) has expired. It is s.36(8) which provides for a procedure pursuant to which the failure to extradite within the required period must be justified by showing reasonable cause. Absent such reasonable cause, a person applying to an appropriate judge is to be discharged.

These considerations, in my view, powerfully indicate that the protection afforded to a requested person by obliging to extradite within a limited period of ten days and the requested state to provide justification for failure to do so cannot be circumvented by an agreement reached between the relevant court and the requesting state after the period identified in s.36(3)(a). Retrospective agreement of a later starting date circumvents the process whereby a requested state is compelled to justify a failure to comply with s.36(2).

There is further support for the proposition that the statute does not permit an agreement to be entered into after the expiry of the period identified in s.36(3)(a). It is to be found in those specific provisions within the 2003 Act which do permit an extension after the expiry of an identified period. Under s.31, time is limited for the start of a hearing of an appeal to the High Court (s.31(1)(2)). The High Court is entitled to “extend the relevant period” more than once under s.31(4) and by s.31(5) the power in sub-section (4) may be exercised even after the end of the relevant period. A similar power is conferred in relation to requests to consent to other offences being dealt with under s.54. A consent hearing must begin before the end of a required period (s.54(5)) but that period may be extended, even after the end of the required period (s.54(6)(7)). (See also in relation to Category 2 territories s.113(4).)

No such equivalent provision is to be found under s.36. Section 36 does not refer to the extension of a required period but merely the agreement of a later starting date. There is no warrant for reading into the provisions any implied power to extend the relevant period, after the expiry of the required period identified in s.36(3)(a). There is no provision for such an extension after the required period has expired. Once that period has expired, as I have said, sub-section (2) has not been complied with and the right to apply under s.36(8) is triggered.

The contrary suggestion envisages a role for s.36(8) limited merely to those cases where the Master, sitting as the relevant court, refuses to agree to a later starting date with the requesting authority. Leaving aside questions as to the statutory basis for a relevant court refusing to agree, and what criteria it should apply, the proposition that s.36(8) only applies where such a refusal occurs makes no sense in the context of extradition where there has been no appeal under s.35. Just as under s.36, s.35(3) requires a person to be extradited to a Category 1 territory before the end of ten days, starting with the first day after the period permitted under s.26 for giving notice of appeal (s.35(4)(a)). A later date may be agreed between “the judge and the Authority”. By s.35(5):-

“If sub-section (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.”

The appropriate judge, in England and Wales a district judge, will be the same judge as the judge empowered to agree a later date under s.35(4). Accordingly, in the context of s.35, it is absurd to suggest that the judge required by s.35(5) to consider reasonable cause, may himself circumvent sub-section (5) by agreeing a later date after the expiry of the required period of ten days under s.35(4)(b).

I consider, therefore, that the statutory scheme does not permit the right of a requested person to be discharged, to be circumvented by agreeing a later starting date after the expiry of the period identified in s.36(3)(a), unless reasonable cause is shown.

However, I must acknowledge that this proposition is inconsistent with two authorities. First, it is inconsistent with the obiter dicta of Richards LJ in Kasprzak. In the case of Bingham v Trial Court No. 4 of Marbella, Spain, one of the three heard at the same time as Kasprzak, the required period had expired prior to the application for a further extension and the application for a further extension was, as Richards LJ put it, “out of time” (paragraph 18). Counsel for Bingham accepted that an extension could be granted even after the original required period had expired (paragraph 29). In those circumstances, Richards LJ said that the absence of an express provision in s.36(3)(b), providing for an extension after the end of a relevant period, does not itself justify an inference one way or the other and concluded that the concession was rightly made (paragraph 54). He did however accept that:-

“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.” (paragraph 56)

For the reason I have given, an application for a discharge made after the expiry of the required period is valid, and must be considered, whether or no a relevant court and authority purports to agree a later starting date.

This proposition is contrary to the decision of Ouseley J in The Queen on the Application of Hajda v Polish Judicial Authority [2013] EWHC 1080 (Admin). In that case, an application pursuant to s.36(8) was being heard before a district judge. During that hearing, Ouseley J had granted an extension of time pursuant to a request made the day before the application came on for hearing. Ouseley J concluded that the effect of his grant of an extension of time was to prevent the district judge proceeding with a s.36(8) application. He based that conclusion in part on the proposition which was undisputed in Kasprzak but endorsed by Richards LJ that an application for an extension of the required period can be made and be effective after the previous required period has expired (paragraph 8). Ouseley J said:-

“I do not regard it as arguable that the effect of a subsequent extension of time on a discharge application that was valid when made, in the sense that the required period had expired, but has not been ruled upon by the district judge, could be to prevent a further required period running, and thereby removing the s.36(8) power. The Act contains nothing to suggest that although an extension of the required period can be granted after the expiry of an earlier period, the time stops upon the making of an application for discharge after the required period had elapsed. If such a course of action were to be the statutory intention, I have no doubt that in this comprehensive statutory scheme, that particular procedural consequence would have been made abundantly clear.” (paragraph 9)

It can be seen that Ouseley J’s view depends upon an assumption that an extension of the required period can be granted after the expiry of an earlier period. As I have sought to emphasise, I do not accept that, properly construed, s.36 does permit a later starting date to be agreed where a period of ten days from the initial statutory starting date has expired.

The judge further rejected the submission that s.36(8) would be rendered nugatory (paragraph 10). The judge appears to have thought that where a court receives a request to agree a later date, it will grant that request:-

“Because it thinks that is the appropriate thing to do, having regard to the range of interests referred to in the cases which govern this particular form of request, the court does so also bearing in mind the interests and circumstances of an extradited person. If the court decides not to extend time as I have said, then an application for discharge can be made.” (paragraph 10)

For the reasons I have already given, particularly based on the judgment of Pill LJ in re Owens, there is no necessity for a court to consider the interests and circumstances of an extradited person. Indeed, there is no particular warrant for the court to do so, since the statute makes the agreement of a later date peculiarly a matter for the court and the requesting state. As I have said, the extradited person has no opportunity to intervene to advance circumstances of which the court may be unaware. The extradited person’s interests in those circumstances cannot, under the statutory procedure which distinguishes s.36(3) from s.36(8), be properly and fairly before the court receiving the request for agreement of a later date. I recognise that that is true where a later date is agreed before the expiry of the initial period. But in such circumstances, the requested person has no rights under s.36(8) which require to be protected because there is no question of non-compliance with s.36(2). The problem and the need for protection of the requested person only arises because s.36(2) has not been complied with and, on the Crown Prosecution Service’s and Ouseley J’s interpretation, that protection is circumvented.

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

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

I agree both with the conclusions and the reasoning of my lord, Lord Justice Moses on the proper interpretation of subsections (2) and (3) of section 36 of the Extradition Act 2003 when read with subsection (8).

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

It follows in my judgment that the provisions of subsection (3)(b) do not permit the relevant court and the Judicial Authority to agree a later starting date for the required period once the required period in a given case as identified in subsection (3)(a) (where no agreement for a later starting date has been made) or in subsection 3(b) (where such an agreement has been made before the expiry of the subsection 3(a) period) has already come to an end. I too disagree with the contrary decision of Ouseley J in Hajda for the reasons more fully given by my lord, Lord Justice Moses.

Indeed it is arguable in my judgment (although this is a matter upon which we heard no argument and I would concede is contrary to that which to date has been accepted both in the cited authorities and in practice) that once the required period has been fixed by an agreement under subsection (3)(b), then whether that required period has expired or not, there is no power to make another or repeated agreement(s) adopting an even later starting date. The contrast between the provisions of s.31(4) and (5) expressly permitting the extension of a required period (in relation to the time limit for the start of the hearing of an appeal to the High Court) after the end of the relevant period, and expressly permitting more than one extension of the period, and the absence of like provisions in section 36, is striking. However this is not an issue which arises on the facts of this application and I go no further than to make the observations I have.

For these reasons I too would permit a writ of habeas.