Artur Krolik, Sylwester Kazmierczak, Piotr Zwolinski, Tomasz Lachowski, Tomasz Soltan, Daniel Walachowski v Several Judicial Authorities of Poland

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Collins,Mrs Justice Sharp,Mr Justice Wilkie,Lord Justice Laws
Judgment Date04 July 2013
Neutral Citation[2012] EWHC 3771 (Admin),[2013] EWHC 1906 (Admin)
Docket NumberCO/5714/2012,Case No: CO/5714/2012,CO/4930/2012,CO/2864/2012, CO/2915/2012, CO/2868/2012, CO/2918/2012, CO/2861/2012, CO/2747/2012,CO/8546/2012
Date04 July 2013

[2012] EWHC 3771 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Collins

Mrs Justice Sharp

CO/4930/2012

CO/5714/2012

Between:
John Michael Edwards
Appellant
and
Government of the The United States of America
Respondent

James Lewis QC and Ben Watson (instructed by Corker Binning) appeared on behalf of the Appellant

Mark Summers (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent

Mr Justice Collins
1

The Government of the United States is seeking the extradition of Mr John Edwards to face charges of very serious fraud. It is said that he has been at the top of a conspiracy, the result of which, between 1997 and 2001, was the defrauding of a very large number of individuals who were induced to buy shares which were worthless in various companies and which resulted in losses of hundreds of millions of dollars.

2

The extradition proceedings, which are of course under Part 2 of the Extradition Act 2003, commence with the decision of the Secretary of State to issue a certificate that she has received a valid request for the extradition. That starts the process whereby the matter is then put to a District Judge, who will decide whether there are any bars to extradition, and if he decides there are none. The Secretary of State has to decide whether the extradition should take place because the matter is put to the Secretary of State on the basis that there is no bar to the extradition. If she decides that extradition should take place, an appeal to this court can proceed.

3

There are before the court two matters. The first is a habeas corpus application because it is said that there was an error in the issuing of the certificate under section 70 on the basis that it was not signed by the Secretary of State or any official of a high enough grade, and therefore the whole process commenced by the certificate was unlawful. If that application succeeds, of course, the whole procedure disappears. If it fails, there is an appeal, which is the other matter before the court, under section 103 of the Extradition Act 2003 against the decision of the District Judge because the Secretary of State has decided that the extradition should take place.

4

For reasons which will become clear shortly, we have decided that the extradition appeal should be adjourned on terms because there are concerns about the medical condition of the appellant, as he is in those proceedings, he being now 70 years old. He was and is suffering from what appears to be incipient Alzheimer's, which affects to an extent his mental state, but that in itself would not have been sufficient to prevent his extradition.

5

What has happened since he has been in custody and what has particularly been a concern since about September of this year is that he has been suffering blackouts or fits in prison on a number of occasions. At least one medical practitioner has formed the view that it looks as if he has some degree of epilepsy, but of course what is important is to consider what is causing the condition, whether it be epilepsy or some other physical problem which has resulted in the blackouts. It is that aspect which has led us to adjourn the appeal on terms which we have discussed with counsel and which have been put in the order.

6

Essentially, what we have been told is that there have been problems in carrying out the necessary tests to determine what is causing the appellant's condition. This has been due, it would seem, to a difficulty in arranging through the prison, because he is remanded in custody to Wandsworth Prison, and the local hospital, which is St George's, the opportunity to carry out the necessary tests. They themselves would not, on the face of it, be likely to need more than a stay overnight (that is to say two days) in the hospital. We have made an order to endeavour to ensure that they are carried out quickly, then the necessary reports can be obtained, and depending of course on the conclusion reached, whether there is a need for further investigation on behalf of the Government of the United States, and then whether it will be necessary for there to be any further hearing on the question as to whether within the terms of section 91 of the Extradition Act 2003, his medical condition is such as would make it oppressive for him to be extradited to the United States.

7

So that is the way in which the appeal will be dealt with. We adjourn, as I say, on those terms.

8

I turn therefore to the habeas corpus application. Section 70, so far as material, provides by sub-section (1):

"(1) The Secretary of State must (subject to subsection (2)) issue a certificate under this section if he receives a valid request for the extradition of a person to a category 2 territory."

9

It is to be noted that, as the Act was originally enacted, sub-section (1) stood alone. There was no sub-section (2), and that amendment was introduced by the Police and Justice Act 2006. But it is the existence of sub-section (2) that has enabled Mr Lewis to raise the argument that he has. Sub-section (2) provides:

"(2) The Secretary of State may refuse to issue a certificate under this section if—

(a) he has power under section 126 to order that proceedings on the request be deferred,

(b) the person whose extradition is requested has been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention, or

(c) the person whose extradition is requested has been granted leave to enter or remain in the United Kingdom on the ground that it would be a breach of Article 2 or 3 of the Human Rights Convention to remove him to the territory to which extradition is requested."

10

That, Mr Lewis submits, raises a discretion in the exercise by the Secretary of State of her power to issue a certificate. It is a discretion which is within very narrow limits, because section 126 deals with a situation where there is a competing extradition warrant, and therefore the question may arise as to which of the warrants should take precedence, and (b) and (c) speak for themselves. Indeed, so far as (c) is concerned, it is a little difficult to see how the Secretary of State could decide that a request is valid if it had already been decided that it would be a breach of Article 2 or 3 to return him to the requesting country. However, I suppose one must bear in mind the possibility that circumstances may have changed since the decision was made, and therefore there is a true discretion.

11

The normal principle upon which Government works in this country is that where a decision has to be made by a Secretary of State, then a decision by an official is sufficient to comply with the law. That approach stems from a decision of the Court of Appeal in Carltona Limited v Works Commissioners and others [1943] 2 All ER 560. The principle, which has come to be called the Carltona principle, is of general application. However, in an extradition context, under the law before the 2003 Act came into being (that is to say under the Fugitive Offenders Act 1881 on the one hand or the 1879 Act on the other, and then the 1989 Act), the courts have decided that the Carltona principle should not apply as usually understood, but the decisions, which were decisions to send individuals who might be British citizens to face trials abroad, were quasi-judicial and as such, because of their importance, did require that the Secretary of State meant a minister, who could be below the Secretary of State personally, but had to be a minister rather than an official. But, as I say, it is clear that the Carltona principle has always been well-known. I must presume, indeed it is obvious and the contrary is not argued, that Parliament in enacting the 2003 Act must be taken to have been entirely aware of that principle. Apart from anything else, it would have undoubtedly been drawn to its attention in any explanatory notes on the bill.

12

The 2003 Act, by section 101, provides as follows:

"(1) An order to which this section applies must be made under the hand of one of these—

(a) the Secretary of State;

(b) a Minister of State;

(c) a Parliamentary Under-Secretary of State;

(d) a senior official.

(3) This section applies to—

(a) an order under section 93 for a person's extradition;

(b) an order under section 93 or 123 for a person's discharge.

(4) A senior official is—

(a) a member of the Senior Civil Service;

(b) a member of the Senior Management Structure of Her Majesty's Diplomatic Service."

13

The official who signed the certificate under section 70 was grade 7, which is an insufficiently senior grade to make him a member of the senior Civil Service within the meaning of section 101. It is plain that the only orders to which section 101 applies are those which are the final stages of the extradition process under Part 2, that is to say, orders either that the person in question is extradited or an order that he is not extradited, and those final decisions have, by section 101, to be made by the senior official. So to that extent the Carltona principle is varied.

14

However, it is of significance, and indeed in my judgment of crucial significance, that section 70 is not included as one of the orders in respect of which the Carltona principle is set aside. Whatever may have been the position before the 2003 Act seems to me not to be relevant in deciding the question now, and what the right result is in accordance with the 2003 Act.

15

As I say, Mr Lewis relies heavily upon the existence of a discretion. That was partly in order to meet the...

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