R Edjis Klimeto (Claimant) City of Westminster Magistrates Court (Defendant) The Crown Prosecution Service (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Burnett |
| Judgment Date | 19 July 2012 |
| Neutral Citation | [2012] EWHC 2051 (Admin) |
| Docket Number | Case No: CO/4228/2012,CO/4228/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 July 2012 |
[2012] EWHC 2051 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT OF QUEEN'S BENCH
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Hughes
The Hon Mr Justice Burnett
The Hon Mr Justice Nicol
Case No: CO/4228/2012
Helen Malcolm QC and Myles Grandison (instructed by Dalton Holmes Gray) for the Claimant
Nicholas Hearn (instructed by The Crown Prosecution Service) for the Government of Latvia
Hearing dates: 30 May 2012
Introduction
This is the judgment of the Court to which all members have contributed. This is a claim for judicial review of the decision of District Judge Evans of 16 April 2012 whereby he 'quashed' his earlier order of 4 April 2012 by which he had ordered the claimant's extradition to Latvia. He also directed that the consent to extradition that the claimant had given at that earlier hearing be set aside. He did so purporting to use the power conferred on magistrates' courts by section 142 of the Magistrates' Courts Act 1980 ["the 1980 Act"] to correct mistakes. He adjourned all further proceedings in the extradition. At the conclusion of the hearing of the claim we announced our decision. We quashed the order made by the District Judge on 16 April 2012 with the effect that the extradition order he had earlier made pursuant to section 46 of the Extradition Act 2003 ["the 2003 Act"] was reinstated. These are our reasons.
The Facts
On 13 November 2010 the Valmeira District Court in Latvia issued a European Arrest Warrant ("EAW") for the arrest of the claimant on suspicion of offences alleged to have been committed on 4 March 2010 which involved the theft of a number of bottles of spirits from a shop and associated criminal damage. The EAW was duly certified by the Serious Organised Crime Agency on 2 December 2011, under the procedure for doing so contained in the 2003 Act.
The claimant was arrested for an unconnected domestic offence in Goole in East Yorkshire on 3 April 2012 and on the same day charged with conspiracy to defraud relating to fraudulent cheques. He is currently on bail in respect of that charge, which is before the Crown Court sitting at Hull. He is one of a number of defendants in that case. Whilst he was in police custody in relation to that allegation it became known that he was also wanted on the Latvian EAW, and accordingly he was formally arrested under it by the officers dealing with him.
The claimant was produced the next day before the City of Westminster Magistrates' Court, as required by section 4(3) of the 2003 Act. There was no dispute that the EAW had been served as soon as practicable nor that the claimant had been brought before the judge as soon as practicable (both as required by the 2003 Act). The judge proceeded with the 'initial hearing' under Section 7 of the 2003 Act at which he made a finding that the claimant was the man wanted under the EAW. That too had not been in dispute. The judge then proceeded as directed by section 8 of the 2003 Act. He explained to the claimant his right to consent to extradition and the consequences of his doing so. The claimant gave his consent. In those circumstances it was unnecessary, following the scheme of the 2003 Act, to move to or fix a date for the 'extradition hearing' itself. Instead the judge ordered the claimant's extradition to Latvia within 10 days.
The advocate then representing the Crown Prosecution Service, on behalf of the Government of Latvia, had within her papers information that the claimant had been charged the previous day in Humberside. She did not draw that to the attention of the judge because she overlooked it. Had she done so, then pursuant to section 8A of the 2003 Act, the judge would have been required to adjourn further proceedings in respect of the extradition until the domestic criminal proceedings were disposed of, withdrawn, discontinued or left to lie upon the file. Section 8A gives no discretion, nor does it matter who informs the judge of the outstanding domestic charge. There may be cases in which the CPS acting for the requesting state will decide not to inform the judge of a domestic charge, perhaps where the charge for which the person concerned is wanted overseas is very serious by comparison. Equally, there may be instances where the person concerned will inform the judge of a domestic charge, if only to delay extradition.
In this case, however, it was an oversight on the part of the CPS advocate which led to the failure to inform the judge of the domestic charge. By contrast, the claimant had no wish to inform the judge because he was and is keen to get back to Latvia.
On 11 April 2012 the time for extraditing the claimant was extended until 30 April for logistical reasons unconnected with that oversight. On 13 April the CPS advocate wrote to the Magistrates' Court. She said:
"I informed the Court that Mr. Klimeto was on police bail and that to my knowledge there were no outstanding domestic proceedings. My understanding was mistaken as Mr. Klimeto was charged with a conspiracy offence on 3 rd of April 2012. Mr. Klimeto is due to be removed from the jurisdiction very shortly. I would be grateful if this matter could be listed as a matter of urgency and Mr. Klimeto produced, preferably tomorrow or Monday 16 th, for the case to be re-opened under section 142 of the Magistrates' Court Act 1980 so that the matter could be adjourned under s.8A of the Extradition Act 2003."
The application was resisted by the claimant whose submission, then as now, is that section 142 of the 1980 Act does not apply to extradition proceedings. The judge disagreed. He noted two decisions of this court, one which had decided that section 142 did not apply to extradition proceedings: R (Gary Mann) v. Westminster Magistrates' Court [2010] EWHC 48 (Admin) and one which had indicated, albeit obiter, that it might apply in limited circumstances: R (Janis Berners) v. Westminster Magistrates' Court [2010] EWHC 1010 (Admin). The judge concluded that because the prosecution had made a mistake in not informing him of the domestic proceedings he should quash his extradition order and, in effect, turn back the clock to the moment before the claimant gave his consent to extradition.
Latvia is a Category 1 Territory to which Part 1 of the 2003 Act applies. Having been arrested under an EAW, the person concerned must be brought before the court as soon as practicable: section 4(3). Section 4(2) requires a copy of the warrant to have been given to the person as soon as practicable after his arrest. When he first comes before the court the person may apply to the judge to be discharged on the ground that either of these provisions was not complied with: section 4(4) and (5). Section 7 of the 2003 Act then governs the initial hearing. It includes a fact finding exercise relating to the identity of the person who has been brought before the court. It provides:
"7 Identity of person arrested
(1)This section applies if—
(a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3), or
(b) a person arrested under section 5 is brought before the appropriate judge under section 6 and section 6(2A) is complied with in relation to him.
(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, or
(b) the warrant referred to in section 6(4) was issued.
(3) The judge must decide the question in subsection (2) on a balance of probabilities.
(4) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
(5) If the judge decides that question in the affirmative he must proceed under section 8.
(6) In England and Wales, the judge has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the summary trial of an information against the person.
(7) In Scotland—
(a) the judge has the same powers (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person; but
(b) in his making any decision under subsection (2) evidence from a single source shall be sufficient.
(8) In Northern Ireland the judge has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the hearing and determination of a complaint against the person.
(9) If the judge exercises his power to adjourn the proceedings he must remand the person in custody or on bail.
(10) If the person is remanded in custody, the appropriate judge may later grant bail."
It is the incorporation of magistrates' courts powers via section 7(6) upon which the prosecution principally relied to apply section 142 of the 1980 Act to the mistake made at the initial hearing, although Mr Hearn, who appeared for the Government of Latvia in this court but not below, developed an additional submission that section 142 applies directly to extradition proceedings.
Section 8(1) tells the judge what he must do. Ordinarily, he must fix a date on which the extradition hearing proper is to begin: section 8(1)(a). This must be within 21 days, albeit with power subsequently to postpone the date under section 8(5). However, sections 8(1)(c) and 8(3) also require the judge to inform the accused of the statutory rules about consent to extradition. Put simply, the accused is...
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