Guy Jane v Westminster Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Dingemans |
| Judgment Date | 26 February 2019 |
| Neutral Citation | [2019] EWHC 394 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4609/2018 |
| Date | 26 February 2019 |
[2019] EWHC 394 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Singh
and
Mr Justice Dingemans
Case No: CO/4609/2018
Mark Summers QC and Ben Cooper (instructed by Dalton Holmes Gray Solicitors) for the Applicant
The Respondent did not appear and was not represented
Hannah Hinton (instructed by the Crown Prosecution Service) for the First Interested Party
Clair Dobbin (instructed by the National Crime Agency) for the Second Interested Party
Hearing date: 5 February 2019
Approved Judgment
Introduction
This is an application for habeas corpus pursuant to CPR r.87; in the alternative, if this Court considers that the procedure for habeas corpus is inappropriate, it is an application for permission to bring a claim for judicial review.
The extradition of the Applicant was requested by a judicial authority in Lithuania, by means of an “accusation” European Arrest Warrant (“EAW”) dated 30 July 2015, to face six allegations of fraud arising from illegal business dealings dating from July 2010 to June 2011. His extradition was ordered by Deputy Senior District Judge (“DSDJ”) Ikram sitting at Westminster Magistrates' Court on 3 November 2017. After various appeals, there arose a statutory obligation upon UK authorities to remove the Applicant to Lithuania by the end of 8 November 2018. However, owing to various administrative errors and shortness of time, the Applicant was not removed within that time. The Applicant subsequently brought proceedings to be discharged pursuant to section 36(8) of the Extradition Act 2003 (“the 2003 Act”), on the ground that the time limits imposed by statute to remove him had expired. On 18 November 2018, DSDJ Ikram refused that application, giving rise to the present proceedings.
The application for habeas corpus and interim relief was refused on the papers by Nicol J on 20 November 2018.
Factual and Procedural Background
On 30 July 2015, the Deputy Prosecutor General of Lithuania, a judicial authority, requested the extradition of the Applicant by means of an accusation EAW dated 30 July 2015, in order for him to face allegations of fraud dating from 2010 to 2011. His extradition was ordered by DSDJ Ikram on 3 November 2017.
That decision was the subject of an appeal under section 26 of the 2003 Act. The appeal was heard by the Divisional Court, comprising Hickinbottom LJ and Dingemans J, on 25 April 2018. In a judgment dated 15 May 2018, the Court decided that there was a real risk that Mr Jane would be subjected to treatment contravening Article 3 of the European Convention of Human Rights in the Lukiskes remand prison, and sought assurances from the Lithuanian authorities to dispel the risk of such treatment: Jane v Prosecutor General's Office, Lithuania [2018] EWHC 1122 (Admin). After considering such assurances, the Court found them to be sufficient and, on 16 October 2018, dismissed the appeal: [2018] EWHC 2691 (Admin).
The 14-day time limit for the Applicant to make an application to certify under section 32 of the 2003 Act expired at the end of 29 October 2018. Once this period expired (with the Applicant having made no such application), following Re Owens [2009] EWHC 1343 (Admin); [2010] 1 WLR 17, the 10-day “required period” for the Applicant's removal under section 36(3)(a) began. Thereupon, it is common ground that, under section 36(2) of the 2003 Act, there arose a statutory obligation upon the UK authorities to remove the Applicant to Lithuania by the end of 8 November 2018.
However, the relevant period expired without the Applicant's removal or an extension of time. According to the evidence (which is summarised in the witness statement of Renata Pinter, Mr Jane's solicitor), what had happened was as follows:
(1) Following the expiry of the section 32 14-day period on 29 October, the National Crime Agency (“NCA”) failed to contact the Administrative Court Office (“ACO”) to determine whether the appeal decision had become final. For its part the ACO only contacted the NCA on 5 November.
(2) Once notified, the NCA contacted Devon and Cornwall police, who did not respond.
(3) On 5 or 6 of November, the NCA first contacted Lithuania to arrange surrender. That arrangement was not possible because of the late notification; Lithuania was unable to conduct the handover in the required time.
(4) No section 36(3) application was made to extend time before the required period expired because the NCA miscalculated the last day as 9 November (rather than 8 November).
Consequently, there was a failure to surrender the Applicant within the statutory time limits.
Giving evidence in a witness statement on the practical realities of extradition proceedings, Graham Dineen, an Officer at the NCA, notes that there are often “serious logistical barriers to meet the ten-day deadline”. Moreover, it “is often the case that the UKICB [the UK International Crime Bureau] applies for a time extension as a result of either a UK police force or the issuing State not being able to facilitate removal within ten days”. He adds that the “UK has one of the highest volume [ sic] of Part 1 extraditions in the European Union”.
Were a discharge ordered in a case such as the present one, Mr Dineen states that, in terms of practical realities, “assuming a further EAW is issued the requested person would be re-arrested and the extradition process would start again”.
A notification of an application to discharge pursuant to section 36(8) of the 2003 Act was lodged on behalf of the Applicant on 9 November 2018. Subsequently, an application to extend time was lodged by the CPS pursuant to section 36(3). That extension was granted by Jeremy Baker J on 9 November 2018. It is common ground that that extension does not affect the task of this Court.
On 16 November 2018, after a hearing which had taken place on 13 November, DSDJ Ikram refused the application to discharge brought by the Applicant. On 20 November 2018 Nicol J considered the papers and refused his applications for habeas corpus and for interim relief.
On 26 November 2018, Supperstone J ordered the application to be adjourned and the removal of the Applicant pursuant to the 2003 Act to be stayed until the conclusion of this application or further order. He referred the application to the Divisional Court.
Material legislation
Section 26 of the 2003 Act provides:
“(1) If the appropriate judge orders a person's extradition under this Part, the person may appeal to the High Court against the order…”
Section 36 of the 2003 Act prescribes the period within which an unsuccessful appellant must be removed. It provides, so far as relevant:
“(1) This section applies if—
(a) there is an appeal to the High Court under section 26 against an order for a person's extradition to a category 1 territory, and
(b) the effect of the decision of the relevant court on the appeal is that the person is to be extradited there.
(2) The person must be extradited to the category 1 territory before the end of the required period.
(3) The required period is—
(a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or
(b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date…
(4) The relevant court is—
(a) the High Court, if there is no appeal to the Supreme Court against the decision of the High Court on the appeal;
(b) the Supreme Court, if there is such an appeal.
(5) The decision of the High Court on the appeal becomes final—
(a) when the period permitted for applying to the High Court for leave to appeal to the Supreme Court ends, if there is no such application;
…
(6) There must be ignored for the purposes of subsection (5)—
(a) any power of a court to extend the period permitted for applying for leave to appeal;
(b) any power of a court to grant leave to take a step out of time.
…
(8) If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.”
Section 213 of the Act provides that:
“(1) A Part 1 warrant issued in respect of a person is disposed of—
(a) when an order is made for the person's discharge in respect of the warrant and there is no further possibility of an appeal;
(b) when the person is taken to be discharged in respect of the warrant;
(c) when an order is made for the person's extradition in pursuance of the warrant and there is no further possibility of an appeal.
(2) A request for a person's extradition is disposed of—
(a) when an order is made for the person's discharge in respect of the request and there is no further possibility of an appeal;
(b) when the person is taken to be discharged in respect of the request;
(c) when an order is made for the person's extradition in pursuance of the request and there is no further possibility of an appeal.”
Relevant case law
The case of ( In re Oskar unreported, 29 February 1988) was a decision of the Divisional Court concerned with section 10 of the Fugitive Offenders Act 1967, in which the Home Office wrongly construed the effect of the statutory time limit after a House of Lords judgment. Watkins LJ, with whom Nolan J agreed, said that:
“administrative inertia … was not reasonable but inexcusable … I do not see how the description ‘reasonable’ can apply to these errors in fact and in law. They are I feel bound to say inexcusable and come nowhere near constituting sufficient...
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