R (Mann) v Serious Organised Crime Agency and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Mr Justice Hickinbottom,LORD JUSTICE LAWS,MR JUSTICE IRWIN |
| Judgment Date | 07 May 2010 |
| Neutral Citation | [2010] EWHC 1760 (Admin),[2010] EWHC 48 (Admin) |
| Docket Number | CO/5101/2010,CO/13109/2009 and CO/13111/2009,Case No: CO/13109/2009 AND CO/13111/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2010 |
[2010] EWHC 1760 (Admin)
Before: Lord Justice Laws
Mr Justice Irwin
CO/5101/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Mr Edward Fitzgerald QC and Mr Ben Cooper (instructed by Kaim Todner) appeared on behalf of the Claimant
Mr Ben Watson (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mr David Perry QC and Ms Melanie Cumberland (instructed CPS) appeared on behalf of the First Interested Party
Mr Matthew Ryder QC and Mr Mark Summers (instructed by Treasury Solicitor) appeared on behalf of Second Interested Party
: This is a troublesome case. There is quite a good deal of history. Gary Mann seeks permission to bring judicial review proceedings in relation to his impending extradition to Portugal pursuant to a European Arrest Warrant. His prospective extradition has been the subject of a number of previous hearings and orders in the Administrative Court. In the course of giving a judgment which was handed down on 19 January 2010 upon an earlier application for judicial review, Moses LJ gave a fairly full account of the history to that point (see [2010] EWHC Admin 48, paras 1 to 9). I will not repeat what is there set out.
It is sufficient to say that Mr Mann was arrested in Albufeira, south of Portugal, in connection with a disturbance after a football match. On 16 June 2004, he was convicted by the Albufeira Judicial Court of participation in a riot and sentenced to two years' imprisonment.
He has many complaints to make about the trial. He says, for example, that there was insufficient time to instruct his Portuguese lawyers; he was inadequately represented; there were inadequate translation facilities. He has relied on descriptions of the trial as a “farce” by English police officers who attended the proceedings. By 18 June, two days after his conviction, Mr Mann had left Portugal and returned to England. According to a note from the Portuguese Minister of Justice, which was subsequently admitted in evidence in the later extradition proceedings, the offence of riot cannot attract an immediate custodial sentence in Portugal before the period for appeal has expired.
In the course of his trial Mr Mann had indicated that he desired to leave Portugal. That raised a question about a Portuguese decree permitting his expulsion. According to the Minister, this was what was described as “a cautionary administrative measure” and not in any sense an alternative to or a commutation of the prison sentence that had been passed.
Mr Mann had a right of appeal in Portugal and he sought to lodge an appeal, but we understand it was rejected because of some perceived fault in the documentation or possibly the application of time limits.
In July and August 2005, the Metropolitan Police sought what is called a Football Banning Order against Mr Mann. He resisted their application. He did so successfully: the District Judge heard argument that the Portuguese convictions were obtained in circumstances so unfair as to violate his rights under Article 6 of the European Convention on Human Rights, and in due course refused to make the order. He had heard evidence about the trial, including evidence from the English police officers who had been present, and he had available a transcript of the Portuguese proceedings.
On 6 October 2008 a European Arrest Warrant was issued by the Portuguese authorities and certified by the Serious Organised Crime Agency (“SOCA”) on 18 February 2009. The applicant was arrested on 19 March 2009 and admitted to bail. He obtained English lawyers, though they are not the ones who represent him today. Extradition proceedings ensued, and the extradition hearing was conducted by Senior District Judge Workman at the City of Westminster Magistrates Court on 18 August 2009. In the course of those proceedings the District Judge had before him the transcript of the Portuguese trial and the statements from the English police officers, which expressed their opinions about the process in Portugal. He rejected the submission made to him that there had been violations of Article 6 in the course of the Portuguese hearing. So there was no bar to extradition arising by that route.
At one stage in his judgment the judge rejected a further submission, namely that the applicant had understood that his expulsion from the country was effectively a substitute for the sentence of imprisonment. The judge pointed out that all the defendants (and there had been several) had agreed to voluntary deportation before they knew what the verdict would be, and he added, as I understand it, that some of those who were acquitted were expelled from Portugal under precisely the same procedure as was the applicant. He referred to a statement of Police Constable McDade, which stated in terms that Mr Mann had been “sentenced to two years' imprisonment not suspended. Handed over to the Frontier Police/Immigration for deportation back to the United Kingdom to serve his prison sentence in the UK”. That last piece of evidence marches with a note from the Portuguese Ministry of Justice. It stated that it was the belief and the intention of the Portuguese Judicial Authority that Mr Mann would serve his sentence in the United Kingdom, though for legal reasons into which I need not go on this application, that later proved not to be a viable possibility.
The Senior District Judge at the extradition hearing relied on the fact that such an application was made later and failed, in order to demonstrate that the expulsion order and the prison sentence were separate entities and not alternatives.
So it is that some of the key issues in the extradition hearing were, for example, (1) the meaning of the expulsion order, and (2) whether the applicant was informed, or at any rate believed, that by being expelled from Portugal he would not be obliged to serve the prison sentence. The Senior District Judge rejected that proposition on the evidence, explicitly rejecting the suggestion that the applicant so understood the matter at the time. At the end of his judgment, subject of course to any appeal, the applicant was directed to be returned to Portugal to serve his two-year sentence.
It is important to have in mind that Parliament, in enacting the Extradition Act 2003, has placed significant and absolute limits of time on the right of appeal from the extradition decision, and limits also on the manner in which such a decision may be challenged. Section 34 provides:
“A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Act.”
It may be extremely surprising for the public to learn that these words exclude even the application of the historic writ of habeas corpus, but so they do: see Hilali v the Government of Her Majesty's Prison Whitemoor [2008] UKHL 3; [2008] 1 AC 805. There can only be an appeal under the Act.
I stated also that there were limitations of time. First of all, by section 26(4), notice of appeal must be given within seven days of the decision. There is no discretion under the Act if that time limit is missed: see Mucelli V Government of Albania [2009] UKHL 2; [2009] 1 WLR 276. That again is a circumstance that may seem surprising to the public, but quite plainly was the intention of the legislature.
Mr Mann's lawyers missed the deadline for appeal against the extradition decision. They gave notice, it seems, one day late. The provisions of the Act have effect so that where there is no appeal before the end of the period, the person concerned must be extradited. Section 35 provides:
“(3) The person must be extradited to the category 1 territory before the end of the required period.
(4) The required period is—
(a) 10 days starting with the day on which the judge makes the order, or
(b) if the judge and the authority which issued the Part 1 warrant [note, not the extraditee] agree a later date, 10 days starting with the later date.”
Notwithstanding that provision, the applicant has made continued and sustained efforts to avoid being extradited, and has done so with the assistance, if I may say so, of dedicated and very accomplished lawyers. In August 2009 Cranston J held that the High Court had no jurisdiction to intervene. On 1 September 2009 the applicant asked Senior District Judge Workman to re-open his own decision, but on 2 November 2009 the Senior District Judge ruled that he had no power to do so.
Mr Mann then requested SOCA not to effect his extradition despite the effect of the Act's provisions. The basis for that request was that SOCA is itself a public body, owing its own duty to ensure the applicant's human rights, specifically to ensure that he should not be extradited if his original trial was unfair to the point where Article 6 was violated. SOCA declined to accede to this request. It is that decision which was the subject of the hearing before Moses LJ, to which I referred at the outset. The applicant was asking the court to compel SOCA to refuse to extradite him. The court declined in the judgment handed down on 19 January, the learned Lord Justice stating that there was no “jurisdiction to entertain any claim for judicial review, be it to challenge a non-existent decision of SOCA or the refusal of the Senior District Judge to exercise a non-existent jurisdiction to re-open the statutory extradition...
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