Balazs v Crown prosecution Service

In Kasprzak v Warsaw Regional Court (2011) EWHC 100 (Admin), Richards LJ decided the issues before him on a narrow basis (judgment, para.39 to para.40). The rest of his judgment was expressed to be obiter (judgment, first sentence of para.41).

In para.51, he explained that the High Court does not have jurisdiction to entertain an application to set aside its agreement to extend the required period. In para.53, he explained his view that the requesting judicial authority could ask for the agreement of the relevant court to extend the required period after the primary period had expired. He considered that the statutory context did not help to resolve this question but that Art.23 of the Framework Decision “must contemplate the possibility of an agreement being [made] after the end of original period [...]”.

He considered whether an agreement to extend the required period could be made after the primary period had expired in para.56. He said that s.36(8) cannot be read as requiring the application for discharge to be made before the expiry of the required period. ‘Thus, an application for discharge made after the expiry of the primary period and before a later extension of that period might well be a valid application, and the effect of a 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 been 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) to the Magistrates' Court at this stage, based on the expiry of the original period before the period was extended’.

At para.57, he observed that s.36(2) did not prohibit the surrender of the requested person after the expiry of the required period (subject to a successful application for discharge). Section 56 did not render a late removal unlawful.

In R (Hajda) v Polish Judicial Authority [2013] EWHC 1080 (Admin) Ouseley J considered an application for an injunction to stay the removal of the applicant to Poland. The respondent did not appear and was not represented. The applicant was not removed before the end of the primary required period (17 February). He made an application to the appropriate court on 25 February, pursuant to s.36(8). It came on for hearing 27 February. During that hearing, Ouseley J granted an extension of time pursuant to a request which had been lodged on 26 February. When she was told about that order, the DJ in that case decided that had she had no power to hear the application under s.36(8). Ouseley J said (judgment, para.7) that the crucial question was the effect of his grant of the extension of time before the discharge application had been ruled on.

Ouseley J referred to the decision in Kasprzak and to the passage in para.56 which I have quoted. Despite the view of Richards LJ that the issue was difficult, he decided that it was not arguable that:

“the effect of a subsequent extension time on a discharge application which was valid when made, in the sense that the required period had expired, but which has not yet been ruled upon by the district judge, could prevent a further required period running, and thereby removing the s.38(6) power. The Act contains nothing to suggest that and although extension of the required period can be granted after the expiry of

an earlier period, that time stops upon the making of an application for discharge after a 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” (judgment, para.9).

He could see no warrant for implying any words. He rejected a submission that this interpretation made the 36(8) protection nugatory:

“It would still have an important part to play where the person [...] has not been extradited, no steps have been taken to do so and he cannot be left in limbo; the statute puts an end to proceedings in his interest through a discharge application”.

He referred also to the possibility that the court might refuse the application for an extension of time. He had no doubt (judgment, para.11) that the effect of the grant of an extension of time was to prevent the district judge from deciding the application. She was bound to reach the decision she had reached. He rejected an alternative submission that the making of the application to him without telling him that there had been an application under 36(8) had been an abuse of process (judgment, para.12 to para.14). He would have made the same decision had he been told of the application under 36(8). He considered that the court would have power, in order to protect the integrity of its own process, to set aside an order for an extension of time which had been made on a false basis (judgment, para.15 to para.16). Richards LJ had not had this sort of point in mind when he made his observations about the availability of judicial review in Kasprzak (at para.51).

In R (Netecza) v Governor of Holloway Prison [2014] EWHC (Admin) 2098; [2015] 1 WLR 1337, the required period expired on 9 March. The requested person was not removed by that date. On 31 March, she applied to the appropriate court under s.36(8). The Crown Prosecution Service, (“the CPS”), was told of the application. On 1 April, the court told the parties that the application would be heard on 3 April. The CPS applied ex parte on 2 April for an extension of time and it was granted. The appropriate court then told the parties that the hearing would be taken out of the list. The applicant applied for a writ of habeas corpus, “which, if issued, would permit the hearing as to reasonable cause to be restored”.

Moses LJ described the issue the court had to decide as “whether an application for discharge may be obviated by an agreement between the High Court and the authority of the requesting State, reached after the end of ten-day period [...] in s.36(3)(a) [...]”. He recorded that there was no dispute that the only remedy was a writ of habeas corpus and that neither respondent had disputed that that remedy was available.

This formulation of the issue runs together three logically distinct questions which were posed by the facts of that case. The first is whether the required period can be extended under 36(3)(b) after the primary period provided for in s.36(3)(a) has expired. The second is whether irrespective of the expiry of the primary period an application for discharge properly made under s.36(8) may be circumvented by an application under s.36(3)(b) which is made after the application for discharge is made (but before it has been decided). The third is whether the making of an application for discharge under s.36(8) invalidates a subsequent agreement for an extension of time pursuant to 36(3)(b). Mr Summers frankly accepted that that conflation was his fault. He argued the case for the applicant and his primary submission, which concerns only the first of the three issues I have just described, is recorded at para.9 of the judgment.

In para.10 of the judgment, Moses LJ decided the first issue in the applicant's favour. In para.11 to para.23, he gave reasons for that view. They included the lack of protection given to the requested person by the s.36(3)(b) procedure, contrasted with the protection conferred by s.36(8), (judgment, para.14 to para.20). The reasoning in para.20 is significant, in my judgment. He said:

“Those considerations, in my view, powerfully indicate that protection afforded to a requested person by the obligation to extradite within a limited period of ten days and by requiring the requesting State to provide justification for a failure to do so cannot be circumvented by an agreement reached by the requested and the requesting State after the period identified in s.36(3)(a) of the 2003 Act. Retrospective agreement of a later starting state circumvents the process whereby a requested State is compelled to justify a failure to comply with 36(2)”.

He expressed his conclusion on the first two issues in para.24:

“[...] The statutory scheme does not permit the right of the 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” (see also para.26, which I quote below).

He then acknowledged that that proposition was inconsistent with two authorities. He referred to the obiter statements in Kasprzak and to Hajda. After citing part of para.56 of Kasprzak (“[...] an application for discharge made after the expiry of the primary period and before a later extension of that period might well be a valid application, and the effect of a later extension might then be a matter of some difficulty”), he said (judgment, para.26), “For the reason I have given, an application for discharge made after the expiry of the required period is valid, and must be considered whether or not a relevant court and authority purport to agree a later starting date” .

He acknowledged that that proposition was contrary to the decision in Hajda. He said that Ouseley J's view depended on an assumption that an extension of time can be granted after the primary period has expired. He did not accept that, for the reasons he had given. In para.29, he considered the way in which Ouseley J had dealt with the argument that the procedure adopted in Hajda made the protection conferred by s.36(8) nugatory. On the basis of In re Owens [2009] EWHC 1343 (Admin), [2010] 1 WLR 17, he questioned whether the s.36(3)(b) procedure gave any protection to the interests of the requested person (judgment para.30). He recognised that the interests of the requested person were not protected if a timely application for an extension of time was made; but in those circumstances, the requested person had:

“no rights under s.36(8) which require to be protected because there is no question of non-compliance with 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 CPS's and Ouseley J's interpretation, that protection is circumvented”.

In para.31, he expressed the view that the delay might be outweighed by the seriousness of the offence. By contrast, under s.36(8), “if is there no reasonable cause for the delay, a person who applies to the appropriate judge to be discharged is entitled to discharge”. For those reasons, he disagreed with the conclusion of Ouseley J:

“The statutory scheme does not [...] 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” (judgment, para.32).

King J agreed with the conclusions and reasoning of Moses LJ. In para.34 of the judgment, he said that once the primary period had come to an end without being extended,

“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 [...] if it were otherwise, the protection expressly given to the requested person under ss.8 once the required period has come to an end, would be nugatory”.

The court did not address the third issue in terms. A decision that the agreement to extend time was invalid would have required the court to engage with the powerful reasoning of Richards LJ in para.51 in the judgment in Kasprzak and with the reasoning of Mr Ouseley J on that subject in Hajda.

The most recent relevant decision of the Divisional Court is Desai v Westminster Magistrates' Court [2014] EWHC 4631 (Admin) (Laws LJ, Simon J and Ouseley J). The DJ in that case had declined to order the discharge of the claimants pursuant to s.36(8). The required period in that case initially expired on 15 November 2014. Their solicitor gave notice of their intention to apply for their discharge. The application was heard on 20 November 2014. The DJ held that there was reasonable cause for the delay and refused to order their discharge. The Divisional Court upheld that decision (judgment, para.14).

The Divisional Court went on to consider whether Netecza was wrongly decided. Laws LJ, giving the judgment of the court, said, at para.8 that that Netecza concerned a different point, which was whether an agreement under 36(3)(b) could lawfully be made after the expiry of the primary ten-day period. Laws LJ then said that “for reasons to which I will come, it is necessary to address the decision in the Netecza case.” Mr Summers explained that the Divisional Court's observations about Netecza were not obiter because, although this is not articulated in the reasoning of the court, the court had to decide whether it was open to the authorities in that case to agree a further extension of the required period, the primary period having expired, and the appropriate court having refused the application for discharge.

Laws LJ described the decision in Netecza thus, “A s.36 (3)(b) agreement could not be made after the primary period of 10 days [...] had expired” (judgment, para.15). That meant that the requesting State could not ask for an extension of time once that period had expired. He said that that was “unsatisfactory”. He considered that it was a result that was not intended by Parliament. “Netecza therefore requires to be revisited.” He cited R v Greater Manchester Coroner ex p Tal [1985] QB 67 for the proposition that the Divisional Court could depart from one of its decisions if satisfied that it was clearly wrong. He then cited para.31 and para.32 of the judgment in Netecza, and para.34 of King J's concurring judgment.

Laws LJ regarded the reasoning which he quoted as “within its own terms compelling” but

Section 36 is a terse provision. Two questions raised by the facts of this case which it does not expressly resolve, at least at first sight, are:

The second issue has two aspects; whether:

In my judgment, the answer to the first question depends on whether the correct approach to interpreting s.36 is a static or a dynamic one. If the correct approach is a static approach, the date when the required period expires is fixed by the statute at the outset, and unless extended by agreement, before it expires, it ends 10 days after the decision on the appeal becomes final, or the proceedings are discontinued. If the correct approach is a dynamic one, the question is answered on the facts at the date when it is asked, and, if as at that date, time has been extended pursuant to s.36(3)(b) then the required period ends when the period, as extended, ends whether or not the application for the extension was made during the currency of the initial required period.

If the correct approach to the interpretation of s.36(2) is a static approach, then s.36(2) is not complied with if the primary period expires without being extended. As soon as that is the position, on the static interpretation, the person may apply for his discharge. If the correct approach is a dynamic approach, then, if by the time the person applies for his discharge time has in fact been extended, the required period (as extended) has not yet ended. It cannot, in those circumstances, be said that “ss.(2) has not been complied with”. If that is the right approach, the s.36(8) option cannot be exercised in that situation.

In my judgment, the first question is answered by the decision of the Divisional Court in Desai. Desai decides two things; that the DJ was entitled to refuse the application for discharge and that, on the facts, it was open to the authorities to apply to the appropriate court for an extension of the required period, even though the primary period had by then expired. In order to make the second of those decisions, it was necessary for the

But neither of the points decided by the Divisional Court in Desai answers the other questions posed by this case, because Desai did not involve a conflict between s.36(8) and s.36(3)(B). In any event, in my judgment, the Divisional Court expressed no opinion on those points other (perhaps) than to suggest that on the issues which were not before the Divisional Court in Desai, the reasoning in Netecza was “within its own terms compelling”.

Netecza and Hajda raise two conceptually distinct issues. One is what I have called “the first question”. The second question is the relationship between an agreement under s.36(3)(b) and an application under s.36(8), which, as I have already explained, has two aspects.

The two cases resolve those issues differently. Desai supports the reasoning of Ouseley J on what I have called “the first question”. As I have said, Desai does not deal with the second question. I consider that the Netecza does deal with it. One strand of the reasoning in Netecza concerns the question whether a s.36(8) application can be circumvented by an application made under s.36(3)(b) after a s.36(8) application has been made but before it has been decided. Netecza decides, essentially for policy reasons connected with protecting the interests of the requested person, that it cannot. Netecza is a decision of the Divisional Court, reached after an adversarial argument, and it departs from the reasoning of Ouseley J in Hajda. Ouseley J's decision was not made after adversarial argument (I appreciate, in saying that, that only the applicant was represented). Even if I am not strictly bound by the reasoning on this point in Netecza, I do not consider that that that reasoning is clearly wrong.

The starting point for answering the second question is the opening words of s.36(8). The option to apply for discharge is conferred if s.36(2) has not been complied with. There is no such option if s.36(2) has been complied with, as at the date when the s.36(8) application is made. So an important further question is what s.36(2) requires. My own view, for what it is worth, and I consider that it is supported by the decision in Netecza, is that the requested person has a statutory right to make an application under 36(8) as soon as it is the case that s.36(2) has not been complied with. That right is an important safeguard against arbitrary detention. The question whether 36(2) has been complied with is to be judged at the point when the s.36(8) application is lodged. If at that point the right to make the s.36(8) application has crystallised, that right cannot be taken away by a later application and agreement pursuant to s.36(3)(b). The making of the s.36(3)(b) application or of an agreement after the s.36(8) application is made, but before it is decided, does not relieve the Magistrates' Court of the obligation to decide the s.36(8) application.

Ms Townshend has conceded that the interpretation which she advanced “leads to a fairly ludicrous situation”, as which application is to have priority depends on who, the applicant under s.36(8), or the CPS under s.36(b), could “get to a judge first”. Since s.36(8) is clearly intended to confer a protection on the person against unreasonable delay in arranging his removal, I do not accept that such an arbitrary position could have been Parliament's intention.

What I consider to be the correct approach does not prevent a later application under

For those reasons, I grant the writ. WMC must list, hear and decide the s.36(8) application as soon as possible. That decision has no impact on the s.36(3) agreements which have already been made in this case.

Mr Summers was inclined to accept that a conforming interpretation of s.36(8) could mean that even if WMC acceded to the application for discharge, and released the applicant on bail, that might not result in the discharge of the EAW, presumably because of para.69 of Vilkas. Ms Townshend was inclined to agree with that approach, I think, while pointing out that the current practice is that where a s.36(8) application succeeds, the EAW is discharged. Both counsel agreed, after discussion with me, that I did not have to decide this question, and that, if I found for the applicant, all the consequences of my decision and all the issues on the discharge application would be for the DJ to decide.

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