Asliturk v City of Westminster Magistrates' Court and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MADDISON,LORD JUSTICE PITCHFORD,Lord Justice Stanley Burnton,MR JUSTICE NICOL |
| Judgment Date | 12 August 2010 |
| Neutral Citation | [2010] EWHC 1720 (Admin),[2010] EWHC 2148 (Admin) |
| Date | 12 August 2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | C0/6337/2010,CO/7946/2010,Case No: CO/7946/2010 |
[2010] EWHC 1720 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Pitchford
Mr Justice Maddison
C0/6337/2010
MR R KOVALEVSKY QC & MR D PATIENCE (instructed by MORGAN ROSE) appeared on behalf of the Claimant Asliturk
MR J LEWIS QC & MISS R SCOTT (instructed by THE CPS) appeared on behalf of the Claimant the CPS
: In this judgment I will refer to the Magistrates’ Courts Act 1980, the Bail Amendment Act 1993 and the Extradition Act 2003 as the 1980 Act, the 1993 Act and the 2003 Act respectively.
This is the hearing of the appeal of the prosecution pursuant to section 1(1A) of the 1993 Act against the decision of District Judge Purdy sitting at the the City of Westminster Magistrates’ Court (“WMC”) on 2 June 2010 to admit Orhan Asliturk to conditional bail. This is also the hearing of an application by Mr Asliturk for the issue of a Writ of Habeas Corpus.
Mr Asliturk was born in 1955 in Turkey. He changed his name by deed poll to John Edvard Coste in 2001. He acquired British naturalisation in 2008. He is the subject of current extradition proceedings. The request for his extradition was submitted by the Government of Turkey on 25 June 2009. It was certified by the Secretary of State for the Home Office on 13 August 2009. A warrant for Mr Asliturk's arrest was issued by the WMC on 26 February 2010. It was executed on 23 April 2010 at Heathrow Airport, Mr Asliturk having flown in from Cyprus.
Mr Asliturk appeared before the WMC later on 23 April. He did not consent to his extradition to Turkey. An application for bail was made on his behalf. It was refused by District Judge Tubbs on the ground that there were substantial reasons to believe that if released on bail Mr Asliturk would fail to surrender. District Judge Tubbs fixed 30 April 2010 as the date on which the extradition hearing was to begin in accordance with section 75(1) of the 2003 Act and remanded Mr Asliturk in custody until that date pursuant to section 72(7)(c). He was taken to HMP Wandsworth.
On 30 April Mr Asliturk's case was again listed before District Judge Tubbs. Mr Asliturk was not produced from HMP Wandsworth due it an administrative error there. He being absent, the extradition hearing did not begin. However his solicitor, Mr Rose, told the court that the health of Mr Asliturk, who suffers from diabetes, had deteriorated significantly since 23 April and that he had not been provided with proper medication at Wandsworth. The District Judge then heard a bail application but adjourned the announcement of her decision until 4 May to give the prison an opportunity to respond to the allegation of inadequate medical treatment. Mr Asliturk was further remanded in custody, purportedly pursuant to section 128(3C) of the 1980 Act, according to the court file. I will set out this provision later in this judgment.
On 4 May 2010 Mr Asliturk was produced. District Judge Tubbs formally opened the extradition hearing. That having been done expressly and in the presence of Mr Asliturk, it seems to me to be beyond argument that the extradition hearing began on 4 May. District Judge Tubbs was shown a letter from Jo Grimshaw, Senior Sister Primary Care HMP Wandsworth refuting Mr Asliturk's claim to have received inadequate medical treatment. In fact, stated Jo Grimshaw, he had been seen by a doctor on the day of his admission to HMP Wandsworth, had been prescribed medication and had received it regularly ever since. He had been given ample opportunity to ask that his blood glucose level be monitored, though it had not in fact been checked since 23 April when it was significantly above the normal range. He had been asked by a nurse to come to the treatment room that morning, 4 May, before leaving for court but he had not done so. Jo Grimshaw attached Mr Asliturk's treatment chart as evidence of his regular treatment.
District Judge Tubbs decided to hear a further full bail application which she then granted, stating that conditions of residence, curfew, reporting to a police station, not applying for international travel documents and lodging a cash security of £10,000 would be sufficient to meet concerns that Mr Asliturk would not surrender. The police were already in possession of his passport in the name of Coste. District Judge Tubbs fixed a review hearing in the extradition proceedings for 29 June, by which date the prosecution were to serve an opening note and the issues in the case were to have been defined and on which date the date for the substantive hearing would be fixed and further directions given.
The Government of Turkey immediately gave an oral notice of appeal against the decision to grant bail in accordance with the 1993 Act. This is a convenient point to refer to some provisions of that Act: section 1(1) provides:
“Where a Magistrates’ Court grants bail to a person who is charged with or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a Judge of the Crown Court against the granting of bail.”
More pertinently to the present case section 1(1A) provides:
“Where a Magistrates’ Court grants bail to a person in connection with extradition proceedings the prosecution may appeal to the High Court against the granting of bail.”
In this latter context ‘the prosecution’ means the person acting on behalf of the territory to which extradition is sought (see section 1(12)). Section 1(4) requires the prosecution, if it wishes to exercise either right of appeal, to give oral notice to the court at the conclusion of the proceedings in which bail has been granted, where upon section 1(6) requires the court to remand the person concerned in custody until the appeal is determined or otherwise disposed of. Section 1(9) provides:
“… such appeal shall be by way of re-hearing, and the judge hearing any such appeal may remand the person concerned in custody or may grant bail subject to such conditions (if any) as he thinks fit.”
Upon the prosecution having given oral notice of appeal pursuant to section 1(4), District Judge Tubbs remanded Mr Asliturk in custody pursuant to section 1(6).
The appeal was listed before Keith J on 6 May. Mr Asliturk was not present, but he was represented by his solicitor Mr Rose, who asked that the hearing be conducted in chambers, as it was. Keith J concluded that there were substantial reasons, in fact very substantial reasons, for believing that if Mr Asliturk were released he would fail to surrender, notwithstanding the bail conditions imposed by District Judge Tubbs. He therefore allowed the appeal and remanded Mr Asliturk in custody pursuant to section 1(9) of the 1993 Act. The precise order he made was that Mr Asliturk:
“… be remanded in custody until a date to be fixed by the City of Westminster Magistrates’ Court for a remand hearing to take place not later than 28 days from 4 May 2010.”
This form of words had been proposed to Keith J by agreement between the parties. No appeal was lodged against this order. This is unsurprising because it was an order by consent. Moreover, no representations were made on behalf of Mr Asliturk to the WMC as to the date on which he should next be produced to that court. In fact, the WMC fixed that date for 1 June. Unfortunately the court did not inform either Mr Rose or HMP Wandsworth of this.
The case was duly listed for hearing on 1 June, this time before District Judge Purdy. In the absence of the Mr Asliturk or anybody anyone to represent him District Judge Purdy adjourned the hearing until the following day and further remanded Mr Asliturk in custody pursuant to section 128(3C) of the 1980 Act.
On 2 June Mr Rose contacted the WMC in effect to ask what was happening. He was concerned that the time fixed by Keith J for Mr Asliturk's appearance before that court had expired at midnight on 1 June and for reasons to which I will return, he now also considered that Keith J had not been entitled on 6 May to remand Mr Asliturk in custody for more than 8 clear days. Mr Rose was informed by the WMC of what had happened on 1 June. He therefore made haste to the court and by good fortune arrived just before Mr Asliturk's case was called on.
Mr Harbinson of counsel, from whom we have a witness statement, appeared on behalf of the Government of Turkey. He made an application for a further remand in custody until 29 June when the review hearing was due to take place. However, Mr Rose submitted that on 6 May Keith J could not lawfully have remanded Mr Asliturk in custody for more than 8 days.
Mr Rose's submission found favour with District Judge Purdy, who then released Mr Asliturk on bail on the same conditions as those imposed on 4 May by District Judge Tubbs. District Judge Purdy did not do this on the basis that there was no proper objection to bail, but on the basis that the order of Keith J on 6 May, and thus Mr Asliturk's continued detention, were indeed unlawful.
Again the Government of Turkey appealed pursuant to the 1993 Act. Coincidentally, the appeal was listed before me on 4 June. On that day Mr Rose indicated that he intended to resist the appeal on the basis that District Judge Purdy's approach on 2 June was correct. Moreover, he intended to apply for the issue of a Writ of Habeas Corpus. In these circumstances I directed that the appeal and application should be heard together at the earliest possible date. Hence both came before this court and were argued...
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