R (Zaporozhchenko) v City of Westminster Magistrates' Court

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Hon. Mr. Justice Burnett
Judgment Date18 Jan 2011
Neutral Citation[2011] EWHC 34 (Admin)
Docket Number>Case No: CO/11500/2010,CO/11500/2010, CO/11498/2010

[2011] EWHC 34 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Before: The Rt Hon Lord Justice Laws

The Hon. Mr. Justice Burnett

>Case No: CO/11500/2010

CO/11498/2010

Between
The Queen On Application Of (1) Vitaliy Zaporozhchenko
(2) Iulia Redya
Claimants
and
Westminster Magistrates' Court Secretary Of State For The Home
Department
The Government Of Ukraine
Defendant

David Josse QC and Benjamin Keith (instructed by Dalton, Holmes, Gray Solicitors) for the First Claimant

David Josse QC and Joel Smith (instructed by Tuckers Solicitors) for the Second Claimant

Clair Dobbin (instructed by the Treasury Solicitor) for the Secretary of State

Hearing dates: 15 December 2010

The Hon. Mr. Justice Burnett

The Hon. Mr. Justice Burnett :

1

This is the judgment of the Court prepared by Burnett J. This is an application for judicial review of the decision on 3 November 2010 of District Judge Tubbs at the City of Westminster Magistrates'' Court whereby she refused to order the discharge of the claimants pursuant to section 99 of the Extradition Act 2003 ["the 2003 Act"]. The basis of the application was that the Secretary of State for the Home Department was obliged under the statutory scheme to order the claimants' extradition to Ukraine by 2 November at the latest, failing which on their application to the Magistrates' Court, the claimants were entitled to be discharged.

2

The District Judge, having heard rather less full argument than has been presented in this Court, decided that the last day upon which the Secretary of State could order the claimants' extradition was 3 November. Such an order was made that day by the Secretary of State. In those circumstances she concluded that the application for discharge should fail.

3

The claim for judicial review came before this Court for hearing at the same time as the claimants' appeals against the earlier order of District Judge Wickham sending their cases for extradition to the Secretary of State. That order was made in the City of Westminster Magistrates' Court on 3 September 2010. Having heard argument, we concluded that the last date on which the Secretary of State was empowered to order the claimants' extradition to Ukraine was 2 November and not 3 November as the District Judge had held. In those circumstances, we allowed the claim for judicial review. We quashed the decision of District Judge Tubbs and directed the discharge of the claimants. We did not proceed to hear the statutory appeals, which raised arguments concerning the administration of justice and prison conditions in Ukraine, because they had become academic. By consent those appeal was withdrawn.

4

These are our reasons for allowing the claim for judicial review.

5

The claimants' surrender was sought by the Government of Ukraine to stand trial for offences of dishonesty. It was alleged that they had misappropriated the equivalent of about £1,000,000 from a credit union which they had established. The extradition hearing in the City of Westminster Magistrates' Court took place on 3 September 2010 before District Judge Wickham. Ukraine is a Category 2 territory for the purposes of the 2003 Act. The final decision whether to extradite a requested person is entrusted by the statutory scheme to the Secretary of State after the Court has determined whether there is any legal impediment. Human rights issues were raised before the District Judge in opposition to the cases of the two claimants being sent to Secretary of State to decide whether they should be extradited. Having heard evidence, the District Judge rejected the arguments advanced on behalf of the claimants and that same day sent their cases to the Secretary of State pursuant to section 92 of the 2003 Act.

6

Section 99 of the 2003 Act provides:

"(1) This section applies if–

(a) the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited;

(b) within the required period the Secretary of State does not make an order for the person's extradition or discharge.

(2) If the person applies to the appropriate judge to be discharged, the judge must order his discharge.

(3) The required period is the period of 2 months starting with the appropriate day.

(4) If before the required period ends the Secretary of State applies to the appropriate judge for it to be extended the judge may make an order accordingly; and this subsection may apply more than once."

Section 102 of the 2003 Act defines 'appropriate day' for the purposes of, inter alia, section 99. It provides:

"(1) This section applies for the purposes of sections 93 and 99 if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.

(2) If the person is charged with an offence in the United Kingdom, the appropriate day is the day on which one of these occurs–

(a) the charge is disposed of;

(b) the charge is withdrawn;

(c) proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.

(3) If under section 97( 3) or 98(2) the Secretary of State defers making a decision until the person has served a sentence, the appropriate day is the day on which the person finishes serving the sentence.

(4) If section 126 applies in relation to the request for the person's extradition (the request concerned) the appropriate day is–

(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the other request to be deferred;

(b) the day on which an order under section 180 is made, if the order under section 126 is for proceedings on the request concerned to be deferred and the order under section 180 is for the proceedings to be resumed.

(5) If section 179 applies in relation to the request for the person's extradition, the appropriate day is–

(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the warrant to be deferred;

(b) the day on which an order under section 180 is made, if the order under section 179 is for proceedings on the request to be deferred and the order under section 180 is for the proceedings to be resumed.

(6) If more than one of subsections (2) to (5) applies, the appropriate day is the latest of the days found under the subsections which apply.

(7) In any other case, the appropriate day is the day on which the judge sends the case to the Secretary of State for his decision whether the person is to be extradited."

7

Given the circumstances of this case, the appropriate day was governed by section 102(7), namely the day on which the claimants' cases were sent by District Judge Wickham to the Secretary of State. That was 3 September. By virtue of Section 99(2) of the 2003 Act a person whose case has been sent to the Secretary of State is entitled to be discharged if within the required period of two months starting with the appropriate day, the Secretary of State has not ordered his extradition or sought an extension of time. The 'appropriate judge' in this case to whom the application for discharge had to be made was a District Judge at Westminster Magistrates' Court. The Secretary of State did not apply for an extension of time.

8

We pause to observe that the 2003 Act provides many time limits for taking steps in connection with extradition proceedings. All of them are expressed in terms which 'start with' the day on which an event occurs. Most impose time limits expressed in days. It is uncontroversial that when a statute imposes a time limit 'starting with' or 'beginning with' the date on which an event occurs, that day is generally included for the purposes of calculating the expiry of a time limit. A clear example of the operation of that principle in the context of the 2003 Act is found in Mucelli v. Government of Albania; Moulai v. Deputy Public Prosecutor in Creteil, France [2009] UKHL 2. The time limits in question were seven days and 14 days respectively for an appeal to the High Court starting with date on which the District Judge, on the one hand, and Secretary of State, on the other, made the decision in question. In Moulai's case the decision was made on 14 March 200The seven day time limit expired on 20 March (see paragraph [90] of the opinion of Lord Neuberger of Abbotsbury).

9

The time limit in section 99(3) is expressed in months rather than days. Two other provisions of the 2003 Act refer to time limits expressed in months (see sections 75 and 76).

10

In coming to the conclusion that the two month time limit expired on 3 November, when the case had been sent to the Secretary of State on 3 September, the District Judge accepted a submission that the 'corresponding date rule', as explained by Lord Diplock in Dodds v. Walker [1981] 1 WLR 1027, applied to the circumstances of this case. Dodds v. Walker was concerned with a time limit imposed by the Landlord and Tenant Act 1954 to make an application to the Court. Lord Diplock's discussion of the corresponding date rule, the reasoning of which was agreed by all their Lordships, is found between page 1029G and 1030D.

"My Lords, Part II of the Landlord and Tenant Act 1954 entitles a tenant of business premises, whose tenancy has been terminated by notice given to him by his landlord in accordance with the provisions of that Act, to apply to the court for a new tenancy. By section 29(3) the application must be made "not less than two nor more than four months after the giving...

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4 cases
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    ...before the end of the required period is to be found in s.99(4), considered in R (Zaporozhchenko) v Westminster Magistrates' Court [2011] EWHC 34 (Admin). On the other hand, Mr Henley drew attention to s.31, which cuts the other way: subs.(1) provides that rules of court (to be found in par......
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