Nikolajs Morozovs v Latvian Judicial Authority

An accusation European Arrest Warrant was issued out of the Prosecutor General's Office in Latvia on 10 April 2012. It was certified by the Serious and Organised Crime Agency on 2 August 2012. The appellant was arrested on 11 August. His extradition was ordered after a contested hearing spanning two days, 30 October and 2 November 2012, by District Judge Arbuthnot in a judgment handed down on 8 November. His extradition was sought for him to stand trial for an offence of extortion said to have been committed in 2003.

Before the District Judge, familiar grounds in Baltic State cases were raised, with which I will deal in due course, but a novel ground was also advanced, namely that because of delay in the commencement of the extradition hearing, the appellant's discharge should have been ordered. Mr Sternberg, who has put in a comprehensive and helpful skeleton argument and has made shorter but helpful submissions before me today, raises a preliminary issue, namely whether or not there is a right of appeal against that decision or whether it has to be challenged by way of judicial review.

It was argued before the District Judge, before the extradition hearing on other issues on 30 October, that by reason of the delay in commencing the extradition hearing the appellant was entitled to be discharged automatically under section 8(7) of the Extradition Act 2003. Mr Sternberg submitted that because that was a matter which arose before the extradition hearing proper had started, so it is not open to be challenged by way of appeal to this court. A statutory right of appeal is conferred by section 26:

"(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 27 sets out the circumstances in which the court may allow an appeal:

"(2)The court may allow the appeal only if the conditions in (3) … are satisfied.

(3)The conditions are that—

(a)the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b)if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."

Mr Sternberg's submission is simple: because the decision not to discharge under section 8(7) was made before the extradition hearing on other matters, so it is not open to challenge by way of appeal in this court. He accepts that an alternative remedy, a challenge by judicial review, would be available to the claimant as it would be to a prosecutor.

I do not accept his argument, at least in the context of an appeal by a requested person. What the District Judge did was to order the extradition of this appellant, and she did so at the conclusion of an extradition hearing. It is at least implicit in her reasons for doing so that she was satisfied that the extradition hearing should properly occur and should not be prevented from starting under section 8(7). Accordingly, and although it is not an issue that would in any way be determinative of the outcome of this challenge, I am satisfied that an appeal has properly been brought against the refusal to order discharge and instead to order extradition.

Section 4(3) requires that a person arrested on a European Arrest Warrant is brought before the appropriate judge as soon as practicable. Section 7 requires certain steps to be taken by the appropriate judge. They include:

"(2)The judge must decide whether the person brought before him is the person in respect of whom—

(a)the warrant referred to in subsection (1)(a) was issued …"

If the judge decides that question on the balance of probabilities affirmatively, then subsection (5) requires him to "proceed under section 8". Section 8(1) imposes four obligations on the appropriate judge:

"(1)If the judge is required to proceed under this section he must—

(a)fix a date on which the extradition hearing is to begin;

(b)inform the person of the contents of the Part 1 warrant;

(c)give the person the required information about consent;

(d)remand the person in custody or on bail."

I am told by Mr Sternberg that in a case in which an individual is being prosecuted for an offence in the United Kingdom, or is serving a sentence of imprisonment in the United Kingdom, to which sections 8A and B apply, it is the practice of the Westminster Magistrates' Court only to remand a person in custody or to admit him to bail, and not to take any of the other three steps required by section 8(1).

I will deal with the first required step, fixing the date on which the extradition hearing is to begin, in a moment but I can see nothing in the statutory scheme that exempts the Magistrates' Court from informing the requested person of the contents of the Part 1 warrant or of giving to them the required information about consent. That information is set out in subsection (3) and informs him that he may consent to extradition; requires the court to explain the effect of consent, which includes the loss of any right to appeal against the consequent decision to extradite; and requires the court to ensure that consent is given before a judge, and is irrevocable.

Section 8A was enacted to deal with the problem which arose in one case when a requested person wished to return immediately to his own country so as to avoid being prosecuted in the United Kingdom. The statutory scheme before the enactment of section 8A required the court to give effect to his wish. Consequently, the amendment was introduced. Section 8A provides:

"(1)This section applies if—

(a)a person has been brought before the appropriate judge under section 4(3) … but the extradition hearing has not begun; and

(b)the judge is informed that the person is charged with an offence in the United Kingdom.

(2)The judge must order further proceedings in respect of the extradition to be adjourned until one of these occurs—

(a)the charge is disposed of;

(b)the charge is withdrawn;

(c)proceedings in...