Chyba v District Court in Strakonice, Czech Republic
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,MR JUSTICE McDUFF |
| Judgment Date | 05 December 2008 |
| Neutral Citation | [2008] EWHC 3292 (Admin) |
| Docket Number | CO/9622/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 December 2008 |
[2008] EWHC 3292 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Scott Baker and Mr Justice McDuff
CO/9622/2008
Mr Ben Lloyd (instructed by Lawrence & Co, London W9 2HU) appeared on behalf of the Appellant
Miss Amelia Nice (instructed by CPS, Special Crime Division London EC4M 7EX) appeared on behalf of the Respondent
Thursday 5 December 2008
This appellant was the subject of a European Arrest Warrant issued by the District Court in Pribram, Czech Republic. He was surrendered by the United Kingdom to that judicial authority on 23 July 2007. The appellant was wanted to serve a two year custodial sentence for an offence of attempted rape committed on 7 November 1997. He is presently in the Czech Republic serving that sentence.
The present appeal arises out of an application by Judge Kolarova of the District Court in Strakonice that the appellant now serve a three year sentence relating to a conviction for a rape committed on 14 August 1999. The conviction on which that three year sentence is based is dated 26 February 2001.
The British Court's consent is required because of the Specialty Rule, the purport of which is that the person extradited should ordinarily only be dealt with by the extraditing state for those offences for which he was returned, or which are disclosed by the facts on which his surrender was based. But the requesting state is entitled to ask permission for it to deal with the extradited person for another offence not covered by its original request, provided the offence is extraditable. That is what happened here.
Article 27 of the Framework Decision is headed “possible prosecution for other offences”. It provides in subsection (4):
“A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after the receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein.”
The relevant United Kingdom legislation is to be found in sections 54 and 55 of the Extradition Act 2003. Section 54 deals with the request for consent. Section 55 deals with the questions for decision at the consent hearing.
On 5 October 2008, in the City of Westminster Magistrates' Court, having gone through all the necessary steps, District Judge Nicholas Evans gave his consent under section 55(6). The only issue before the District Judge was the appellant's contention that, were he returned, there would be a breach of his Article 3 rights. It is true that there is no specific provision in the Extradition Act 2003 that requires the court to consider the appellant's human rights in the circumstances of this case. Section 21, which does require a judge to consider whether a person's extradition would be compatible with Convention rights, only applies where the judge is required to proceed under section 11 or section 20 and not where, as here, the person has already been extradited.
That, however, is not the end of the matter because section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a human right. To give consent to the request that the appellant be permitted to serve three years for rape if the result would be likely to subject him to inhuman or degrading treatment would in my judgment be unlawful.
The appellant's argument is that the prison conditions under which he is serving his present sentence, and under which he would serve the additional sentence, amount to a violation of Article 3. The District Judge rejected that contention.
The first question before this court is whether there is any jurisdiction to hear an appeal under the Extradition Act in respect of the District Judge's decision. Section 26 provides a right of appeal against an extradition order under Part 1. Part 1 of the Act covers sections 1 to 68 and relates to European Arrest Warrants. This is a Part 1 case. Section 26 provides as follows:
“(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order.
(2) But subsection (1) does not apply if the order is made under section 46 or 48.
(3) An appeal under this section may be brought on a question of law or fact.
(4) Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.”
Sections 46 and 48 there referred to cover cases where the person has consented to his extradition. In the present case the appellant has already been extradited. It seems plain to me that the case is not covered by section, 26 which is quite specific. The problem is this. Section 34 of the Act provides that a decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part. The judge's consent given under section 55(6) is plainly a decision under this Part. But search as one may, I can find no right of appeal against that decision. The rights of appeal and the court's powers on hearing an appeal are clearly set out in sections 26–33 and do not cover the circumstances of this case.
Without formally conceding the point, Mr Ben Lloyd accepts that it is very difficult for him to advance any argument to the contrary.
This is not the first occasion on which this court has run into problems because of the lack of a statutory right of appeal under the Extradition Act. An early example is R(Nikonovs) v Governor of Brixton Prison [2006] 1 WLR 1518, and another is Akaroglu v The Government of Romania [2007] EWHC 367 (Admin). It is also pertinent to look at the observations of Keene LJ in Ignaoua and Others v The Judicial Authority of the Courts of Milan and Others [2008] EWHC 2619 (Admin) at paragraphs 18 and 28. In short, where no right of appeal is provided, the court has in some circumstances been prepared to entertain an application for judicial review. In my judgment, if this were a case where the appellant had a real Article 3 claim then the right course would have been not for him to appeal under the Extradition Act, because in my judgment there is no right of...
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Chyba v District Court in Strakonice, Czech Republic [Administrative Court]
...EWHC 3292 (Admin)" class="content__heading content__heading--depth1"> Neutral Citation: [2008] EWHC 3292 (Admin) Court and Reference: Administrative Court, CO/9622/2008 Judges: Scott Baker LJ, McDuff J Chyba and District Court in Strakonice, Czech Republic Appearances: B Lloyd (instructed b......
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