Owens v City of Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,MR JUSTICE CRANSTON |
| Judgment Date | 08 June 2009 |
| Neutral Citation | [2009] EWHC 1343 (Admin) |
| Docket Number | CO/5173/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 June 2009 |
[2009] EWHC 1343 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Pill
Mr Justice Cranston
CO/5173/2009
Mark Summers (instructed by Hayes Law) appeared on behalf of the Claimant ( Adam Sandell appeared for judgment)
The Defendant was not represented and did not attend
Rachel Scott (instructed by the Crown Prosecution Service) appeared on behalf of the First Interested Party
Ben Watson (instructed by the Treasury Solicitor) appeared on behalf of the Second Interested Party ( Bo-Eun Jung appeared for judgment)
(Approved by the court)
: This is an application for a writ of habeas corpus arising out of a decision of District Judge CSR Tubbs at the City of Westminster Magistrates' Court (CWMC) on 27th May 2009. The District Judge refused an application by Gary Samuel Owens, the applicant, who was subject to an order for extradition to Spain, to be discharged under section 36(8) of the Extradition Act 2003 (“the 2003 Act”). The applicant challenges that finding and seeks his discharge.
On 2nd April 1991 the applicant was arrested in Tenerife and transferred to the court of first instance at Marbella for offences of murder and robbery alleged to have been committed in Marbella in February 1991. He was later released on bail and, in 1995, left the jurisdiction of that court and came to the United Kingdom. A detention order was issued. Eventually, on 6th August 2007, by means of a European Arrest Warrant (EAW), the extradition of the applicant was requested by the court of first instance, number 4 of Marbella, an interested party, in respect of the alleged offences.
Spain has been designated a category 1 territory pursuant to section 1 of the 2003 Act. The warrant was received by the Serious Organised Crime Agency (SOCA), also an interested party, and an authority designated by the Secretary of State for the purposes of Part I of the Act. The EAW was certified by SOCA under section 2 of the 2003 Act on 27th February 2008. On 26th February 2009, at CWMC, District Judge Tubbs ordered the applicant's extradition pursuant to section 21(3) of the Act.
On 15th May 2009 Bean J and Lloyd Jones J, sitting in this court, dismissed an appeal against that order. The court ordered:
“… the application of the claimant for certification of points of law of general public importance and for permission to present a petition of appeal to the House of Lords be refused”.
Section 36 of the 2003 Act provides, insofar as is material:
“(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 House of Lords against the decision of the High Court on the appeal;
(b) the House of Lords, 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 House of Lords ends, if there is no such application;
(b) when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the House of Lords for leave to appeal;
(c) when the House of Lords refuses leave to appeal to it;
(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the House of Lords is granted, if no such appeal is brought before the end of that period.
(6) These 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.
(7) The decision of the House of Lords on the appeal becomes final when it is made.
(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.”
Subsection (9) refers to Scotland and need not be cited. Not all sections are relevant to this appeal, but I have set them out in order that the full scheme should be specified.
On 25th May 2009, no steps having been taken to remove the applicant, application was made to CWMC for his discharge. The application was heard on 27th May. It was submitted on the applicant's behalf that the “required period” within the meaning of section 36(3) of the Act had expired, that the District Judge, who was the appropriate judge within the meaning of the section, was required to discharge the applicant under section 36(8) unless reasonable cause was shown for the delay, and that there was no reasonable cause.
The application was opposed, first on the ground that the required period had not elapsed and, secondly, on the ground that there was reasonable cause for the delay. The District Judge found in favour of the judicial authority on reasonable cause and by consent assumed, without deciding the point, that the required period had elapsed. The District Judge added that had she been minded otherwise to grant the application for discharge, she would have adjourned for further research and argument about the meaning of “required period”.
There is now an agreed statement of facts as to the sequence of events in May 2009. It differs from the evidence placed before CWMC. The District Judge found that administrative error is capable of amounting to reasonable cause within the meaning of section 36(8) and that, there being no suggestion of bad faith, general inefficiency or slack administration, the “human error” which had occurred, though regrettable and unfortunate, was the cause of the delay and was a reasonable one.
The judge stated:
“If it is accepted that the 'required period' is 10 days from that date [that is 15th May 2009] then SOCA's discovery on the morning of 26th May is very shortly afterwards and steps were taken to put it right and delay has thereby been kept to a minimum.”
The District Judge purported to grant an extension of time under section 36(3)(b), but it is agreed that she had no power to do so, the CWMC not being the relevant court within the meaning of section 36(3). That part of her order, at least, has been discharged by consent.
An application was made to this court for a writ of habeas corpus. The application was heard on the afternoon of 3rd June by this court as now constituted. On the morning of 4th June, the court announced its decision dismissing the application with reasons to be given this morning, Monday, 7th June. The court also stated that if it decided the jurisdiction of the court should have been invoked under its judicial review jurisdiction and not its habeas corpus jurisdiction, permission to apply for judicial review would be granted and the application for judicial review refused. The court was prepared to assume that jurisdiction, if necessary.
SOCA has submitted that the challenge to the District Judge's decision should properly have been brought as an application for judicial review. Reference was made to the observations of Richards LJ in Gronostajski v Government of Poland [2007] EWHC 3314 (Admin) at paragraphs 8 and 9:
“I have real doubts as to whether habeas corpus is the appropriate procedure in this case. The claimant is detained in prison pursuant to an order of the court. That is, on its face, perfectly valid and within the jurisdiction of the court. That is not in dispute. The true target of the challenge is not the prison governor but the District Judge, the case being that he erred in declining to order discharge. That seems to me to be a challenge properly brought by way of judicial review against the Magistrates' Court, not by way of habeas corpus against the prison governor.”
Mr Summers, for the applicant, referred to other cases in which procedure by way of habeas corpus had not been challenged. There is no need for us to decide that issue, and we do not do so, though the observations of Richards LJ, with which, at any rate in the absence of fuller argument, I agree, should be borne in mind in future cases.
Mr Summers has frankly accepted the procedural advantage to an applicant of habeas corpus. Unlike an application for judicial review, the applicant's ability to take the case beyond the High Court to the House of Lords does not depend on the need to obtain permission to apply for habeas corpus, or on the requirement, if judicial review is granted, but the application refused, that the case be certified as involving a point of law of general public importance.
It is common ground that the court should assess the reasonableness of the cause shown for the delay by reference to the facts now agreed. The SOCA officer with conduct of the case, codenamed “Kent”,...
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