Skraba v Regional Court In Nowy Sacz Poland

On the 14^th of May 2014 I heard the Appellant’s appeal under section 26 of the Extradition Act 2003 (the Act) against the decision of District Judge McPhee sitting in the Westminster Magistrates Court on the 19^th February 2014 ordering the Appellant’s extradition to Poland pursuant to an European Arrest Warrant to face prosecution for offences of robbery and assault. Part 1 of the Act applies to these proceedings.

I dismissed that appeal for reasons given in a judgment delivered that day at the close of submissions.

Also before me as part of the statutory appeal against the extradition order was a purported appeal against an order for costs made by the District Judge against the Appellant under section 60 of the Act. The order was in the sum of £500 to be paid within 14 days. It was made subsequent to the extradition hearing, and following a separate hearing during which the District Judge delivered his judgment and ordered extradition.

This purported statutory appeal against the order for costs, raised a preliminary jurisdictional issue as to the existence of any power the court has, when hearing an appeal under section 26, to review any such costs order.

In anticipation of a possible ruling that this court has no power to entertain any challenge to a s 60 costs order by way of the statutory appeal process, the Appellant in his Appeal Notice invited the court, if necessary, to treat this challenge as if it were a challenge brought by way of a claim for judicial review and to treat the grounds of appeal against the order as grounds in support of an application for permission. Miss O’Raghallaigh on behalf of the Appellant invited me in the event of my making such a ruling, to dispense with all procedural formalities and on conclusion of the statutory appeal against extradition, to move straightaway to a rolled up hearing going both to the application for permission and if granted, the substantive claim for relief.

In the event I announced at the conclusion of the hearing that for reasons which would be given later, to include my ruling on the jurisdictional issue, I would make an order varying the costs order made under section 60 by making an order that the Appellant do pay costs of £100 payable within 14 days.

I accordingly now proceed to give my reasons.

A costs order made in extradition proceedings against the requested person has hitherto been a very rare animal and in consequence there has to date been little authority in which challenges to such orders have been considered by any higher court. My attention was drawn only to the judgment of Nicol J in Sachanek v Poland [2014] EWHC 510 (Admin) to which I refer below, and to some short general observations by Collins J about the making of such orders made in Mencwel v Regional Court in Poznan Poland [2013] EWHC 1513 (Admin ) at paragraph 5. I observe that in the latter case Collins J’s immediate reaction appears to have been against the making of such orders as a normal consequence of an unsuccessful contesting of extradition on the part of the requested person. Mencwel however was a case in which a costs order was threatened but not in fact made and Collins J’s comments must be seen in this light. His observations were in these terms:

However I was told that since January of this year (2014) costs orders against requested persons whose extradition has been ordered, have now become something of the norm. Hence both the jurisdictional and merits issues raised in this appeal have taken on a significance of some importance for future challenges against such orders. This change in frequency is a result of a change in policy on the part of the Crown Prosecution Service who appear in the court to conduct extradition proceedings on behalf of the Requesting State, or rather the Judicial Authority of the Requesting State which issued the warrant (‘the issuing Judicial Authority’).

I was provided with a copy of a document headed ‘CPS Policy On Claiming Costs in Extradition Cases’. Its opening paragraph reads:

The only other extradition authority on costs to which I was referred, namely Siemilet v Westminster Magistrates Court (Administrative Court 27 November 2012) concerned judicial review proceedings in which a European Arrest Warrant had been withdrawn, (in other words proceedings in which discharge was ordered and hence no question of a statutory appeal under section 26 arose), and the requested person unsuccessfully sought to challenge the refusal to make a costs order in his favour out of central funds under section 61(2) of the Act. The District Judge in that case had referred to his ‘usual practice’ of not awarding costs where extradition proceedings had been compromised. Mitting J ruled that the claim was out of time but appears also to have dismissed it on its merits on the grounds that there was no presumption in section 61 in favour of a discharged person in the circumstances of a discharge and the District Judge’s decision was neither unlawful nor irrational. I say this ‘appears’ to have been the decision since I was presented only with a Westlaw Case Digest of what was said to be an unreported case.

I turn to consider the jurisdictional issue.

The costs order in this case was made under section 60 of the Act. This provides as follows:

An analogous power to award costs in favour of the requested person where discharge is ordered is provided in section 61 of the Act. This provides:

There are like provisions for costs in relation to proceedings governed by Part 2 of the Act. The equivalent of section 60 is to be found in section 133. The equivalent of section 61 is section 134.

On any view the 2003 Act does not provide for any discrete freestanding appeal against an order for costs made at first instance under section 60 under Part 1 (or indeed under section 61, or sections 133 or 134 under Part 2).

The only appeals allowed for under Part 1 of the Act are those provided for in sections 26 and 28 (the equivalent sections under Part 2 are ss. 103 and 105). They cannot be interpreted to embrace any appeal against a costs order. Section 26 provides for an appeal against the making of an extradition order. Section 28 provides for an appeal against an order that the requested person be discharged. In either instance the powers of the court on such an appeal are circumscribed by the provisions of, respectively, section 27 and section 29.

As far as section 26 is concerned and material to the present proceedings, the court’s powers under section 27 are limited to allowing the appeal or dismissing the appeal (see subsection (1)) and if the court allows the appeal the court must (a) order the person’s discharge and (b) quash the order for his extradition (see subsection (5)). The court moreover may allow an appeal only if one of two sets of conditions set out respectively in subsections (3) and (5), are satisfied. These conditions by their very terms mean that the only decisions of the extraditing judge which can be the subject of an appeal under section 26 are those on questions under the Act which had the judge decided them differently, would have required him to order discharge. A decision on costs under section 60 is not a decision on any such question.

A like analysis of sections 28 and 29, leads to the same conclusion as regards a decision on costs under section 61 (and likewise as regards costs decisions under sections 133 and 134 under Part 2 given any analysis of the equivalent appeal provisions under Part 2, respectively, sections 103 and 104, and sections 105 and 106).

At first blush therefore this court would appear to have no jurisdiction to entertain an appeal against a costs order made at first instance under section 60 and hence no power on this appeal to interfere with such an order. This was certainly the conclusion reached by Nicol J in Sachanek at paragraphs 18 to 20.

The position cannot be rescued by recourse to section 34 of the Act as Miss O’Raghallaigh originally sought to argue in her written submissions. Section 34 is an ouster of jurisdiction provision. It provides:

However, it was common ground before me that section 34 did not operate to prevent any order on costs being challenged by way of Judicial Review. There has been a steady stream of authority to the effect that the provisions of section 34 under Part 1 (or the equivalent provision under Part 2 in section 116) bite only on decisions in respect of which appeals are provided for in Part 1 under sections 26 and 28 or in Part 2 under sections 103 and 105, and do not prevent an application for a writ of habeus corpus ad subjiciendum challenging the legality of detention because of non compliance with other provisions of the Act or a claim for judicial review of other decisions under the Act. See: R. (Nikonovs) v Governor of Brixton Prison [2005] EWHC 2405 (Admin) a successful claim for habeus which concerned the failure to bring the person arrested as soon as practicable before the judge contrary to section 4(3) and an unsuccessful application to the judge for discharge under s 4(5); Hilali v Central Criminal Proceedings no 5 of the National Court, Madrid [2006] EWHC 1239 (Admin) at paragraph 20 holding that a challenge to a decision under section 7(2) of the Act on identity – in the absence of jurisdiction under the Act – would be by judicial Review. See too the decision of the Divisional Court under Part 2 of the Act in R (Aslitirk) v City of Westminster Magistrates’ Court [2010] EWHC 2148 – ruling that section 116 did not oust the jurisdiction of the court to grant judicial review of a refusal to discharge under section 75(4).

The critical issue which arose before me was whether the Appellant’s costs order challenge under the Act is nonetheless rescued by reason of the court’s ancillary powers on costs under subsection (3) of section 60 when dismissing an appeal against an extradition order under section 26. Nicol J in Sachanek at paragraph 20 left open the question upon which he had heard no argument, as to whether s 60(3) might give this court jurisdiction to review a costs order made by the District Judge as well as to make orders as to the costs of an unsuccessful appeal.

Such a construction of s 60(3) would mean of course that there would still be no freestanding route and right of appeal available to the requested person under the Act against an adverse costs order made against him at first instance in extradition proceedings. A power of review of such an order in the appellate court under section 60(3) would arise only if the requested person chose to exercise his right under section 26 to appeal against the extradition order and then only if the appellate court dismisses the statutory appeal. What the position would be if the court were to allow the appeal and to order the person’s discharge, is unclear. Clearly the provisions of section 60 could not apply since they arise only if the appeal is dismissed. Nothing in section 61 can assist since although that makes provision for costs where discharge is ordered, the powers of the court under that section are limited to the making of costs orders in favour of the requested person.

As already set out, section 60 (3) provides as follows:

In support of what she described as a purposive construction of section 60(3), Miss O’Raghallaigh relied by analogy on what was said to be a like construction put upon section 18(1)(c) of the Prosecution of Offences Act 1985 by the Divisional Court in Hamilton – Johnson v RSPCA [200] 2 Cr.App.R.(S) 390 when considering the powers of the Crown Court sitting in its appellate capacity when dismissing an appeal against conviction and/or sentence, to modify costs orders made by the magistrates court.

The rights of appeal to the Crown Court are governed by section 108 of the Magistrates Court Act 1980 which expressly excludes any appeal against a costs order. There is a right of appeal against conviction or sentence under subsection (1) but by subsection (3) ‘sentence’ ‘includes any order made on conviction by a magistrate’s court not being … (b) an order for the payment of costs’. In Hamilton - Johnson the defendant had been convicted by the magistrates of animal welfare offences. She was conditionally discharged, and made subject to a disqualification and animal transfer order, and an order for costs to be paid to the prosecutor in the sum of £260. An appeal to the Crown Court against sentence in respect of the disqualification and transfer was dismissed but the Crown Court ordered costs to be paid to the prosecutor in the sum of £28,000 which embraced in part considerable costs incurred by the prosecutor in investigating the offences and caring for the animals. In other words the cost order made by the Crown Court was not limited to the costs of the unsuccessful appeal and amounted to an increase in the amount of costs ordered by the lower court.

Schieman LJ posed the issue raised on the appeal (an appeal from the Crown Court by way of case stated) in the terms I set out below. It is to be observed that he did not in fact put it expressly in terms of whether a power existed to quash or vary the order below downwards but rather put it in terms of whether there was power in the appellate court to make its own order for costs covering costs which were incurred in the proceedings below (the animal care and investigative costs) (‘costs incurred before the conclusion of the magistrates court proceedings’) but which the magistrates had not included in the order they had made. The Crown Court order it was considering had not, as far as I can tell, been an order expressly quashing or otherwise expressly interfering with the order made below although I accept, on one view it amounted to a variation of it. In support of this latter interpretation, I note that the Divisional Court at the end of its judgment, at page 397, having upheld the power of the Crown Court to make the order on costs it did, spoke of the need for the prosecutor to give advance notice to the appellant ‘if a prosecutor/respondent proposes to ask the Crown Court to vary in his favour a costs order made in the court below’ and further observed that ‘if that step is omitted we would bearing in mind that the prosecutor has no free-standing right to appeal in relation to costs, generally expect the Crown Court not to interfere with the costs orders made in the court below’ (any emphasis is the emphasis of this court).

The issue before the Divisional Court was expressed in this way:

In finding the Crown Court had in fact had power to do what it did in relation to the ‘costs below’ or ‘the early costs’ which had not been the subject of the magistrates costs order, the Divisional Court undoubtedly relied principally upon its construction of section 18(1) of the Prosecution of Offences Act 1983 which provides as follows:

I have emphasised the words in the section which I have, since it will be apparent they are almost identical to the words used by Parliament in section 60(3) and moreover the Explanatory Note accompanying section 60 states at paragraph 178 that:

The reasoning of the Divisional Court for giving the section 18(1) the construction it did, appears to have been in part a narrow one which would not appear capable of extending to any construction of section 60(3) and in part a wider one which is so capable.

The narrow one was to emphasise that the Crown Court section 18(1) power to order costs applied inter alia to the situation where a person had been convicted before it on indictment (by virtue of (1)(c)), that on authority such costs might include costs below, (the prosecution costs of committal as well as the investigative costs of the prosecuting authority) and that the same meaning as a matter of construction had to apply to costs ordered in the other situations allowed for in the section including that in (1)(b). See the judgment at page 394 to 395, in particular:

The wider one was in these terms :

Miss O’Raghallaigh urges upon me the submission that the above reasoning applies mutatis mutandis to the situation where a permitted appeal under the Extradition Act has been brought, and section 60(3) should be construed so as to give this court power to review the costs order made below against the requested person and in an appropriate case either to quash or vary that order albeit it has ex hypothesi dismissed the appeal. In written submissions made since the hearing, she put her argument thus:

I have not found easy the resolution of the question whether section 60(3) does give this court, on dismissing an appeal against extradition, power to review and upon such a review to quash or vary the costs order made at first instance by the extraditing court.

As I have indicated it is arguable that the decision in Hamilton – Johnson construing what is said to be the like provisions in section 18(1), did not amount to giving that subsection a construction which would allow the appellate court to quash or vary a costs order made below as distinct from making an order as to costs to include costs incurred below which were not awarded by the court at first instance at all. Moreover there is the consideration that on the statutory provisions drawn to my attention applicable to extradition (namely those of the 2003 Act), the power for which Miss O’Raghallaigh contends would arise only when the court dismisses the requested person’s appeal against an extradition order. The source of any power in the High Court to quash an adverse costs made below against a requested person where it allows the appeal was not identified to me although I accept that given the juridical basis for the making of the order at first instance was the making of the extradition order (section 60(1)(a)) it might be thought that any costs order must fall with the quashing of the extradition order.

Moreover it is undoubtedly the case that the Divisional Court in upholding the jurisdiction and power of the Crown Court in its appellate capacity to order what it did on costs, relied also, in the alternative to section 18(1) of the 1985 Act, upon another statutory provision on the Crown Court’s appellate jurisdiction which has no equivalent in the statutory scheme governing extradition, namely the wide provisions of section 48 of what is now the Senior Courts Act 1981, in particular subsection (2) which provides amongst other things that on the termination of an appeal the Crown Court may:

However notwithstanding the above contra indications as to the construction of section 60(3), I have been persuaded that the construction urged upon me by Miss O’Raghallaigh is the proper one for this court to adopt. Miss Howarth on behalf of the issuing Judicial Authority and the Crown Prosecution Service, has in her written submissions agreed that it is open to the Court to so construe section 60(3) so as to give the High Court ‘power in relation to costs awarded at first instance after having dismissed the an appeal under section 26’. On reflection I consider the wider reasoning adopted by the Divisional Court in construing section 18(1) of the 1985 Act in the way it did, which is equally applicable to the construction of section 60(3), compelling, and further that the only sensible interpretation of the decision in Hamilton – Johnson is that the court was acknowledging that section 18(1) of the 1985 did give the appellate court power, to interfere with the costs order made below. I see no reason why the same effect should not be given to section 60(3) in a case falling within (1)(b), (c) or (d) of the same section. The present case of course falls within subsection (1)(b). I do not consider that the absence of any alternative statutory source of such power (equivalent to that in section 48 of the 1981 Act) can undermine this reasoning.

Moreover I am persuaded that there are compelling pragmatic reasons why the High Court when properly seized of an extradition appeal, should be able to review (by which I mean review and if thought appropriate, vary or even quash) the costs order made below, and a requested person who seeks both to appeal the extradition order and to challenge any adverse costs order should not be forced to use the statutory route under the 2003 Act for the one, and to institute a claim for judicial review for the other.

These pragmatic reasons, which I accept, were listed by Miss O’Raghallaigh as follows:

For all these reasons my ruling is that by virtue of s.60(3) of the Act, this court, having dismissed the appeal against the extradition order, does and did have the power to review and if thought appropriate, to vary the costs order made at first instance under section 60(1).

There was not before me any copy of the costs order made. It is not known if any payee was identified in the order. Neither Miss O’Raghallaigh, nor Miss Howarth appeared below on the day when judgment was given. The District Judge gave no written judgment on costs. I make no criticism of that so long at least some reasons were given orally, if only in brief terms, for the exercise of what, as Nicol J observed, in Sachanek, is a discretionary power. The only note I had of the decision of the District Judge on costs is that contained in the Attendance Note of Miss Timan of counsel who did appear that day on behalf of the Appellant. I was grateful for the provision of at least this Note. It reads as follows as far as is material:

It would not appear from the Note whether any advance notice of the application for costs was made by those acting on behalf of the Issuing Judicial Authority, that is to say the Crown Prosecution Service, or whether any detailed explanation was given to the court as to how the figure of £500 had been arrived at. That explanation is to be found in the CPS Guidance/Policy document to which I have referred. Miss O’Raghallaigh in her original skeleton argument of 6^th May states that ‘at present the extent of publication of the policy is unclear, in terms of when and how it was disclosed to defence advocates practising extradition in Westminster Magistrates Court’. Miss Howarth in her skeleton argument of 12^th May informed the court that this policy document has been published on the CPS website and ‘was also made available to be put in the advocates’ room at Westminster Magistrates’ Court’.

I am in no position to adjudicate upon whether this policy document has been widely circulated as suggested but as a matter of principle and fairness it does seem to me that if it is intended that an application for costs is to be made at the conclusion of the extradition hearing, then as much advance notice as is practicable should be given to the requested person of that intention by those proposing to make it, and as to the likely amount of costs to be sought and how they have been calculated, not least (i) so that the requested person’s mind (like the appellant’s mind in Hamilton – Johnson) can be directed to the possible consequences of any decision by him to contest the extradition and (ii) the requested person will be in the position to lay before the court such financial information as to his means as he considers appropriate.

The principles upon which the CPS now relies in seeking a costs order are set out in the Policy document in the following terms:

As to the calculation of the costs to be sought, the next section of the Guidance properly makes clear that the award of costs is ‘limited to the expenses reasonably incurred in conducting the extradition application’, but explains that in ‘standard cases in Westminster Magistrates Court where actual costs are not recorded’ what will be sought is only a contribution to costs ‘reasonably incurred in conducting the extradition application’ based not on any detailed time and costs records but on a set scale according to the nature of the hearings involved, namely £100 for an Extradition ordered at first Hearing, £100 for any Interim and Review Hearing and £165 for a Contested Extradition Hearing although; ‘(w)here a case is particularly complex or the costs incurred clearly outweigh the standard amount, more will be required’.

It is unnecessary for present purposes to set out any more of the detail given in this particular section of the policy document as to the rates to be used where actual CPS time can be calculated since it is clear in the present case that the £500 applied for must have been an amount by way of contribution to the costs incurred calculated by reference to the scale set out. It reflected that there were in this case a number of hearings prior to the extradition hearing of the 14^th January including for example an aborted extradition hearing on 11^th November 2013 when the parties attended but the hearing was vacated to enable the Appellant to obtain a psychiatric report. Miss O’Raghallaigh by the end of the hearing before me did not in terms challenge the justice or reasonableness of the order made on the basis that the costs sought had not been reasonably incurred or were outwith the published policy guidance. On any view they can have represented no more than a relatively modest contribution to the overall costs incurred.

Nor is this an occasion when this Court should attempt any comprehensive review of the principles applicable to the exercise by a first instance extradition court of its discretionary power to award costs under section 60(1)(a) and (3), other than to emphasise that it is for the court not the applicant authority to decide whether an order for costs should be made against the requested person and that the governing principle is that the order should be that which is considered ‘just and reasonable’. There is of course considerable guidance given both in case law and Practice Direction on the applicable principles where a criminal court is contemplating exercising its statutory powers to order a convicted defendant or an unsuccessful appellant to pay prosecution costs. See for example the current 2013 Practice Direction (Costs in Criminal Proceedings) [2013] EWCA Crim 1632 and the guidance given by the Divisional Court in R v Northallerton Magistrates’ Court [2001] 1 Cr App R (S) 136. Clearly (and relevant to the present costs challenge) those principles which state that an order should never exceed the sum which the prosecutor has actually and reasonably incurred, and should never exceed the sum the defendant is able to pay having regard to his means, and that it is incumbent on any court proposing to make a financial order against a defendant to give him a fair opportunity to adduce any relevant financial information and make appropriate submissions on his ability to pay, must apply equally to costs orders which a court is invited to make against a requested person in extradition proceedings. (For these principles see Northallerton at page 142 (1)(2)(6)).

However an issue upon which I heard no detailed argument and which was not at the forefront of any submissions made by Miss O’Raghallaigh, and hence on which I make no ruling, was whether subject to the principles already identified, an extradition court can properly approach an application for costs under section 60 on the basis that ‘costs follow the event,’ or whether such an order should be reserved for cases in which the requested person has pursued a ‘pointless’ contest against extradition. I have already referred to the observations made by Collins J in Mencwel that the costs jurisdiction in extradition proceedings was one to be exercised with the greatest possible care. It may well be that the fundamental principle applicable to domestic criminal proceedings namely that an order under the 1985 Act should be made where the court is satisfied the offender or appellant has the means and ability to pay does not readily transfer to extradition proceedings where different consideration may apply.

Be that as it may the reason why in these proceedings I decided to vary the order from £500 to one of £100 payable in 14 days was by reference to consideration of this appellant’s means, ability to pay and his personal circumstances. I agree with Miss O’Raghallaigh on the information as to these matters before the District Judge or the information which would have been available had the appellant been given proper opportunity to lay it before the court, an order for £500 payable within 14 days was neither just nor reasonable. The appellant’s means per week were less than half that amount and he was supporting a partner and young child. I agree that the payment period of 14 days was oppressively short. As Miss O’Raghallaigh pointed out had the Appellant not exercised his right of appeal he would have been obliged by law to report to the police station within 17 days and it was entirely feasible that he would, like any other requested person in his position, have been required to surrender prior to being able to pay the costs. Issues then arise as to the enforcement of the order. Potentially the appellant could have been exposed to a warrant of commitment upon his return to the UK. I agree with Miss O’Raghallaigh that no proper consideration appears to have been given by the court below to the difficulties posed by such a short time frame for payment of a sum of such size either with reference to the Appellant’s personal circumstances or the time frame for his removal.

It was for all these reasons that I varied the costs order made below to the extent indicated.

As I have indicated it is not known whether the order under challenge named the person to whom the costs were to be paid. The absence of an identified payee would not in itself be a defect since section 60(4) (b) provides only that the order may name such person. I was concerned however to identify on whose behalf the application for costs was made in the court below. This was because the impression to be gained from the CPS policy document is that the CPS regards itself as making a freestanding application on behalf of itself for its costs of conducting the extradition proceeding rather than on behalf of the Judicial Authority who has issued the extradition request. I have already set out the opening paragraph and statement of principles within that document. The final paragraph headed ‘Naming the Payee’ reads as follows:

The difficulty with this analysis of the position is that as I understand the statutory scheme, the CPS is not a party to the extradition proceedings in its own right. It appears in the court below (as its counsel Miss Howarth did before me representing the Respondent to the Appeal) on behalf of the issuing Judicial Authority, and it conducts the extradition proceedings on behalf of the issuing Judicial Authority. It would seem to me any application for costs under section 60 in the court below must be being made on behalf of the Foreign State Issuing Judicial Authority, albeit it is the CPS who has in reality incurred the costs being sought. This certainly was the understanding of Nicol J in Sachanek who spoke (at paragraph 3) of the order that the Appellant pay £160 towards the costs of the Judicial Authority and at paragraph 22 of the steps that the Judicial Authority might take to enforce the order. This does not mean that an order for the costs of conducting the extradition proceedings on behalf of the issuing Judicial Authority of the Requesting State cannot properly be made payable to the General Prosecution Fund of the Requested State (the UK) who has conducted these proceedings on its behalf, so long as it is clearly understood in my view who is making the application.