Laszlo Balazs v The Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 21 September 2018 |
| Neutral Citation | [2018] EWHC 2540 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 September 2018 |
| Docket Number | CO/3474/2018 |
[2018] EWHC 2540 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Elisabeth Laing
CO/3474/2018
APPEARANCES
Mr M Summers QC acting pro bono (instructed by instructed by Oracle Solicitors) appeared on behalf of the Applicant.
Ms S Townshend (instructed by The Crown Prosecution Extradition Unit) appeared on behalf of the Respondent.
THE SECOND RESPONDENT did not attend and was not represented.
THE THIRD RESPONDENT did not attend and was not represented.
Introduction
This is an application for a writ of habeas corpus.
The application was considered by Supperstone J on the papers on 5 September 2018. He listed the application for hearing by a single judge on 18 September 2018, stayed the applicant's removal pending the determination of the application for the writ or further order, and directed the filing and service of skeleton arguments.
The applicant has been represented on this application by Mr Summers of Queen's Counsel, acting pro bono, and the first respondent by Ms Townshend. I thank both counsel for their helpful written and oral submissions. I am particularly grateful to Mr Summers for arguing the case pro bono.
At the start of his submissions, Mr Summers said that there were two ways of approaching this case, an “easy way” and a “hard way”. The “easy way”, he submitted, involved a straightforward issue of statutory construction which was decided by authority binding on me.
The “hard way” was not foreshadowed in his skeleton argument. It involved an argument that s.36 of the Extradition Act 2003 (“the 2003 Act”) does not properly achieve the results contemplated by Art.23 of Council Framework Decision of 13 June 2002 (“the Framework Decision”) in at least three respects:
(i) by permitting ‘reasonable cause’ to be an admissible reason for delay.
(ii) by allowing agreements under 36(3) to side-step an application for release.
(iii) by requiring the requested person to apply for his release, rather than by stipulating that that it is automatic.
I said that if I rejected the primary submission made by Mr Summers, I would, both in fairness to Ms Townshend, and recognising the ramifications of his secondary submission, have to adjourn that submission to be heard by a Divisional Court. After some discussion, both counsel agreed that they were content for me to decide Mr Summers' primary submission without adjourning it to a Divisional Court.
The facts
On 16 July 2018, the Divisional Court dismissed the applicant's appeal against his order for extradition to Hungary (CO/5227/2017). The applicant's appeal was heard with the appeal of Fuzesi & Anor v Budapest-Capital Regional Court, Hungary [2018] EWHC 1885 (Admin), (CO/4291/2017).
On 31 July 2018, the Divisional Court dismissed Fuzesi's applications to reopen his appeal and to certify a point of law of general public importance. The applicant's case was erroneously listed to be heard on the same date. Later that day, the Administrative Court Office (“the ACO”) sent an email to the National Crime Agency (“the NCA”) telling them that the “disposal originally listed for today has been vacated.” The “required period”, as defined in 36(3)(a) of the 2003 Act, ended on 9 August 2018.
At 11.53 a.m on 23 August 2018, the applicant's solicitors lodged an application for the discharge of the applicant at Westminster Magistrates' Court (“WMC”) pursuant to 36(8) of the 2003 Act. They also told the Crown Prosecution Service (“the CPS”) that any application to extend the period for the applicant's removal would be opposed. The applicant's application was listed before the appropriate judge at WMC on 24 August 2018.
The NCA had told the ACO on 23 August that ‘we had set up a follow up on the case […] for the end of the CPOL period to begin surrender plans. But it seems there has been some confusion following receipt of a hearing date from the Admin Court for 30/08/2018, then a further notice stating that the hearing had been vacated. Notes on the case show officers expected a new hearing date to be listed, hence no surrender plans were started’. “CPOL” stands for “certification of a point of law.”
On 24 August, the NCA applied to ‘Immediates’ Judge (Moulder J), pursuant to s.36(3)(b) of the 2003 Act, for an extension of the time for removing the applicant. She ordered that the ten-day period in which to extradite the applicant should start on 23 August 2018. She noted that the original ten-day period had ended on 9 August 2018. She was persuaded that it was appropriate to extend the period because the NCA had been mistakenly told by the ACO on 30 July 2018 that there was to be a hearing in relation to the applicant on 31 July 2018; an “administrative error which caused confusion for the NCA regarding any time limits”. She added that the NCA had acted promptly as soon as “the need to make an application came to light.”
On 30 August 2018, District Judge Tempia (“the DJ”) handed down judgment in this case on the application for discharge. The question for her was whether she had jurisdiction to order the discharge of the applicant, Moulder J having already ordered that the ten-day period should start on 23 August 2018. The DJ decided that she had no jurisdiction to order the discharge of the applicant because the time for removing him had already been validly extended by the High Court.
As the DJ observed in her judgment, the NCA had made a further application to extend time on 27 August 2018. On 28 August 2018, the High Court granted the application and ordered the ten-day period should run from 11 September 2018.
On 13 September 2018 the Administrative Court ordered, on the application of the CPS made on 12 September 2018, that the ten-day period should start on 20 September 2018.
The law
The Framework Decision
The Framework Decision is designed, as its recitals make clear, to replace the existing fragmentary and cumbersome arrangements for extradition between Member States with a simple, coherent and speedy scheme for surrender between judicial authorities pursuant to the European Arrest Warrant (“EAW”). Article 3 provides for mandatory grounds for not executing an EAW and Art.4 for discretionary grounds for not executing an EAW. Article 17.1 provides that an EAW must be executed as “a matter of urgency”. The executing judicial authority has to make a decision on the EAW; and where the requested person does not consent to his surrender, he must be heard by the executing judicial authority (Art.19).
Article 23.1 provides that the requested person must be surrendered “as soon as possible on a date to be agreed between the authorities concerned”. He must be surrendered no later than ten days after the final decision on the execution of the EAW (Art.23.2). Article 23.3 and 23.4 provide for the executing and issuing judicial authorities to agree a new surrender date where surrender is prevented by ‘circumstances beyond the control of any Member State’ or where there are ‘serious humanitarian reasons’, respectively. Once the time limits referred to in para.2 to para.4 have expired, the requested person must be released, if he is still in custody (Art.23.5).
Criminal Proceedings v Vilkas Case (C-640/15) [2017] 4 WLR 69 (para.69) decides that the expiry of the time limits in Art.23 of the Framework Decision does not:
(1) Prevent the agreement of a new time limit or,
(2) Mean that the executing judicial authority is no longer required to execute the EAW; indeed, the relevant authorities are required to agree a new date. The reasoning in this decision points to the conclusion that Art.23 establishes two distinct regimes which run in parallel; a regime governing the time during which it is lawful to detain a requested person for the purposes of his surrender, and a regime for the agreement of time limits. Vilkas shows that the fact that the requesting State is required to release the requested person from detention does not prevent the requesting State and the requested State from agreeing a further extension of time; indeed, they are obliged to, because the requested State is still obliged to execute the EAW.
Section 36 of the Extradition Act 2003
Section 36 of the extra Act provides, so far as is relevant:
“36. Extradition following appeal
(1) This section applies if —
(a) there is an appeal to the High Court...
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