Marek Polakowski, Vijay Sankar, Carlos Mendes, Maris Zelenko and Thomas Ovsianikovas v Westminster Magistrates' Court

Hearing dates: 15 January 2021

Approved Judgment

Introduction

This is the judgment of the Court to which all members have contributed.

There are before us five applications for writs of habeas corpus. The five applicants were all arrested pursuant to European Arrest Warrants (“EAWs”) before 31 December 2020. Two of them are detained; the other three are on conditional bail. The applications are made on a single common ground: that, since 11p.m. on 31 December 2020, the end of the transition period defined by the Agreement on the withdrawal of the United Kingdom from the EU and Euratom (“the Withdrawal Agreement”), there is no longer any legal basis in international law for their surrender; and that in consequence there is no basis in domestic law for continued detention or for the maintenance of bail conditions.

The applicants

The circumstances of the applicants are as follows:

(a) Marek Polakowski is sought pursuant to a conviction EAW issued on 4 October 2019 by the Warsaw Regional Court in Poland and certified by the National Crime Agency (“NCA”) on 13 February 2020. He was arrested on 10 July 2020 and brought before Westminster Magistrates' Court, where he was remanded in custody. A full extradition hearing has yet to take place. The latest hearing at Westminster Magistrates' Court took place on 14 January 2021, at which Mr Polakowski was remanded in custody for a further 28 days. He is currently detained at HMP Wandsworth.

(b) Vijay Sankar is sought pursuant to an accusation EAW issued on 22 April 2020 by the Office of Public Prosecution in Cologne, Germany, and certified by the NCA on 2 June 2020. He was arrested on 30 June 2020 and appeared at Westminster Magistrates' Court on the same day. He was granted conditional bail. He remains on bail. A full extradition hearing is listed on 25 January 2021.

(c) Carlos Mendes is sought pursuant to an accusation EAW issued on 28 February 2019 by the Judicial District of Lisboa Norte in Portugal and certified by the NCA on 6 January 2020. He was arrested on the same day. His extradition was ordered following a hearing at Westminster Magistrates' Court by District Judge Snow. He has appealed. Permission to appeal was initially refused but was then granted following a hearing on 21 October 2020. The appeal is listed for hearing on 16 February 2021. He has been on bail throughout.

(d) Maris Zelenko is sought pursuant an accusation EAW issued on 4 January 2018 by the Prosecutor General's Office in Latvia and certified by the NCA on 9 January 2018. He was arrested on 2 October 2018. His extradition was ordered by Deputy Senior District Judge Ikram on 17 January 2019. His appeal was dismissed by the Divisional Court on 13 July 2020, but he has applied to re-open that appeal. He has been on bail throughout.

(e) Tomas Ovsianikovas is sought pursuant to an accusation EAW issued on 16 October 2014 by the Deputy Prosecutor General in Lithuania and certified by the NCA on 24 October 2014. He was arrested on 20 May 2015 whilst in custody in relation to an offence of rape committed in this jurisdiction, for which he was convicted and sentenced. He remained in custody on the basis of the EAW after serving his custodial sentence. He is currently detained at HMP Wandsworth.

These cases have been selected to illustrate three categories: first, those in which an EAW has been issued and certified and the subject arrested but no extradition order has been made (Polakowski, Sankar and Ovsianikovas); second, those where extradition has been ordered and an appeal is pending (Mendes); and third, those where the extradition appeal is concluded but there is an application to re-open it (Zelenko). As will become clear, the argument advanced — and the answer to it — applies equally to each of these categories of case.

Procedure: the appropriateness of applications for habeas corpus

On behalf of the judicial authorities, Ms Helen Malcolm QC submitted that it was not clear that this challenge has been properly brought by applications for habeas corpus. She directed our attention to authorities which suggest that the appropriate procedure for such a challenge is, rather, judicial review. Mr Josse QC, for the applicants, submits that habeas corpus is the appropriate remedy in the exceptional circumstances of this case, but in the alternative invites us to exercise the power under CPR r. 87.5(d) to direct that the applications continue as applications for permission to apply for judicial review.

In Jane v Westminster Magistrates' Court [2019] EWHC 394 (Admin), [2019] 4 WLR 95, the Divisional Court (Singh LJ and Dingemans J) considered the circumstances in which habeas corpus is appropriate in extradition cases. At [45]–[46] of his judgment, Singh LJ noted that it was unclear whether an application for habeas corpus could be brought on behalf of an applicant who was not detained but subject to conditional bail. He did not consider it necessary to resolve that point because:

“47… there is a more fundamental difficulty in the way of the applicant's use of habeas corpus in a case like this. Even if the applicant were in detention, it is that a complete answer to the writ of habeas corpus would be provided by the fact that there is lawful authority for his detention. That authority is provided by the order of a court. The gaoler (for example a prison governor) would be able to cite the order of the court as providing the lawful authority for the detention.

48. What the applicant in truth needs to attack, and indeed does attack, is the order of the court by which the district judge refused his application for discharge. The applicant submits that the decision of the district judge is flawed on various public law grounds…; and irrationality. Those are grounds of judicial review.

49. The appropriate procedure for setting aside the order of the court which on its face authorises the applicant's detention is an application for judicial review to have that order quashed.”

Singh LJ then went on to consider an argument that habeas corpus was nonetheless appropriate in extradition cases. He cited and endorsed Gronostajski v Government of Poland [2007] EWHC 3314 (Admin) at [8]–[9]. There, Richards LJ said that, where detention was authorised by the order of a district judge which on its face was valid, the proper target of challenge was the order and the proper procedure judicial review. This, Singh LJ held, was also consistent with the decisions of the Court of Appeal in R v Secretary State for the Home Department ex p. Cheblak [1991] 1 WLR 890 and R v Secretary of State for the Home Department ex p. Muboyayi [1992] QB 244 and the judgment of the Divisional Court in R v Oldham Justices ex p. Cawley [1997] QB 1. Those cases were to be followed.

As in Jane, it is not necessary for us to address the question whether an applicant who is not detained but is subject to conditional bail is entitled to apply for habeas corpus; and we therefore say nothing about that question. This is because, even if the answer to that question is “Yes”, we do not consider that applications for habeas corpus are the correct procedural route for this challenge.

We start with the case of Polakowski. He is now detained pursuant to an order made by a district judge on 14 January 2020. The habeas corpus application in his case is directed at the Governor of HMP Wandsworth. It would be a sufficient return to an application for a writ of habeas corpus for the Governor to point to the district judge's order remanding him in custody. That order not only authorises but compels the Governor to detain Mr Polakowski. If the argument advanced by Mr Josse is correct, it follows that the district judge erred in law. On the reasoning in Jane, with which we agree, the proper means of challenging such an order is a claim for judicial review. Since the application is now before us, we shall exercise our power under CPR r. 87.5(d) to direct that the application continue as an application for permission to apply for judicial review.

In the other case where the applicant is currently detained (Ovsianikovas), the detention is also pursuant to orders of the court. To the extent that it is argued that the orders were lawful when made, but the legal basis for detention has fallen away since, the proper course would be to apply back to the district judge to discharge the order. If that were refused, the decision could then be challenged by judicial review. The same is true, a fortiori, of the decisions of the Westminster Magistrates' Court to impose conditional bail in the other cases. The proper forum for an argument that legal developments since the orders were made render the bail conditions unlawful, is an application to the district judge to discharge the applicant from bail. If...