Rehan Malik v Governor of HM Prison Hindley (No.3)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 01 November 2022 |
| Neutral Citation | [2022] EWHC 2737 (Admin) |
| Docket Number | Case No: CO/2134/2022 |
| Court | King's Bench Division (Administrative Court) |
[2022] EWHC 2737 (Admin)
Mr Justice Fordham
Case No: CO/2134/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN MANCHESTER
The Applicant in person
Will Hays (instructed by Government Legal Department) for the Respondent
Hearing 27.10.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a claim for habeas corpus. There is an issue of substance: whether the Applicant's detention is lawful or unlawful. There is an issue of procedure: whether the issue of substance should be raised by a claim for judicial review impugning the warrant (dated 26.1.22) pursuant to which he is detained (the Operative Warrant). The background and circumstances can be seen from two earlier judgments [2022] EWHC 2599 (Admin) (the First Judgment) and [2022] EWHC 2684 (Admin) (the Second Judgment). The Applicant appeared in person without an advocate. Mr Hays has, with conspicuous care, properly drawn my attention to points which could be made in the Applicant's favour. The Applicant's position is to ask this Court to deal substantively, and promptly, with the issue of substance and, if the detention is unlawful, grant habeas corpus. There is an application for bail, but this is pursued only if the Court transfers this case to continue as a claim for judicial review. I decided to grasp the nettle and produce a reasoned judgment as soon as reasonably possible.
The hearing was a remote hearing by CVP, as it was on 14 October 2022 (see the First Judgment). It was known that the Applicant was going to be appearing by video link from prison. GLD made a reasoned request for a remote hearing. The Applicant's concern was to ensure that his brother and sister in law, and Mr Mirza (who features in the First and Second Judgment) could observe if they wished to do so. The arrangements allowed this to happen. The hearing worked well. Two documents were circulated during the hearing, at my request, and the prison ensured that this worked smoothly. Open justice was secured through the publication of the hearing, its start time and mode of hearing in the cause list, with an email address usable by any member of the press or public who wished to attend. I was able to take as the framework for the hearing three principal documents: the Applicant's Amended Grounds for Habeas Corpus (2.9.22); the Respondent's Response (23.9.22); and the Applicant's Submissions Document (25.10.22). There was a hearing bundle and an authorities bundle, available to everyone. The Applicant adopted the Submissions Document as his submissions for this hearing. He also read out a statement. At the hearing, I raised the points – mentioned below – regarding the Official Journal (8.10.18) and the Schmidt case.
The background is this. The Applicant was extradited (18.4.19) to Germany. That was on an accusation European Arrest Warrant (EAW) issued in September 2016 by the Public Prosecutors Office (PPO) in Augsberg. Extradition was ordered by DJ Snow in Westminster Magistrates Court (WMC) on 12 April 2017. The Applicant and his co-accused challenged that order by an extradition appeal to the High Court, which McGowan J heard on 10 May 2018 and rejected by a judgment dated 19 December 2018: see Malik & Others v Germany [2018] EWHC 3479 (Admin). Six Counsel, including one Queen's Counsel, represented the Appellants. The Respondent was the Requesting State Authority (PPO), for whom the Crown Prosecution Service acted as always in extradition cases. On 5 April 2019 McGowan J declined to certify a point of law of general public importance for the purposes of a putative appeal to the Supreme Court. On 31 March 2019 the Applicant made an application to vary bail and quash the EAW, which DJ Arbuthnot refused on 5 April 2019. On 8 April 2019 the Applicant sought permission for judicial review of that refusal, which Sir Ross Cranston refused on 11 April 2019 (certifying the claim as totally without merit (TWM)), in which proceedings the Court of Appeal later declined jurisdiction. Also on 11 April 2019 the Applicant brought a claim for habeas corpus, which Andrews J dismissed (with a TWM certificate) on 16 April 2019. Grounds of appeal and supporting documents were prepared on 17 April 2019 in an attempt to progress those proceedings in the Supreme Court. That attempt failed. The CPS declined to agree to stay the extradition and said an injunction would be needed. No injunction was obtained. The extradition proceeded on 18 April 2019. In Germany, the Applicant was then tried, convicted and sentenced. In his Amended Grounds for Habeas Corpus the Applicant “accepts for the purposes of these proceedings that the [German] court had jurisdiction to try him under German law”. In the Submissions Document the Applicant raises as a possibility that the German Court may have acted in breach of EU law.
Having been sentenced in Germany, arrangements were then made pursuant to the Repatriation of Prisoners Act 1984 (the 1984 Act) for the Applicant to be brought back to this country to serve his (German) prison sentence. That required his consent. A first warrant (under the 1984 Act s.1) was issued on 28.9.21, his return to the UK took place on 28.10.21 and the Operative Warrant (under s.6 of the 1984 Act) was issued on 26 January 2022. The Applicant's sentence expiry date is 12 April 2025, and his half-time conditional release date is 21 July 2023.
The issue of substance
I gave a summary of the substantive claim for habeas corpus in the First Judgment. The essence is this. The application for habeas corpus made by the Applicant in June 2022 is on the grounds that the Applicant is unlawfully detained. Two prominent legal arguments feature in that application.
One argument (Exit Day) is this. The Exit Date for leaving the EU at 23:00 on 29 March 2019 was never lawfully extended. In law, the UK left the EU on that date. This has a legally vitiating consequence and a ‘domino’ effect. It means the EAW system collapsed on 29 March 2019 and was never subsequently saved. In turn, that means the Applicant's current detention is vitiated in law, because it all flowed from an EAW purportedly enforced after the collapse of the EAW system. As is accepted, this is the same argument which was advanced in a judicial review claim brought on 1 April 2019 by the English Democrats CO/1322/2019. It was rejected by Spencer J (18.6.19) and Hickinbottom LJ (19.8.19). The same argument was raised on behalf of the Applicant before DJ Arbuthnot (5.4.19), Sir Ross Cranston (11.4.19) and Andrews J (16.4.19). The argument has never before had an oral hearing and the absence of one means those earlier decisions are not binding. They are wrong.
The other argument (PPO) is that aspects of the extradition process involving the German PPO as purported issuing authority, an issue on which the Luxembourg Court ruled on 27 May 2019 (see Minister for Justice and Equality v OG & PI C-508/18 & C-82/19 PPU), have a legally vitiating consequence for the extradition, whose domino effect renders unlawful the Applicant's subsequent and current incarceration. The OG case decided that the concept of an “issuing judicial authority” for the purposes of Article 6 of the EU instrument governing extradition in EAW cases (EU Framework Decision 2002/584/JHA) did not include those PPOs which are “exposed to the risk of being subject, directly or indirectly, to directions or instructions in a specific case from the executive, such as a Minister of Justice, in connection with the adoption of a decision to issue [an EAW]”. The OG case arose of a reference made by the Supreme Court of Ireland on 31 July 2018. The CPS and the German PPO in the Applicant's extradition proceedings knew (or must have known) that there was an “arguable defence” based on the issue raised in the OG pipeline case. The UK Government must have known from the date of the reference on 31 July 2018. The arguable defence in fact can be traced back to before 20 March 2017, given the issue then being ventilated in the Irish courts. The PPO and CPS failed to disclose it to the Applicant's representatives or to McGowan J. That was a deliberate, material non-disclosure, and in that sense there was bad faith, which “unravels everything”. The PPO and (in particular) the CPS were duty-bound to disclose it, as “ministers of justice”. In the event, the arguable defence would have succeeded. The PPO had no authority to issue the EAW. The EAW was, in law, a worthless piece of paper. The entire extradition process was illegal ‘ab initio’. As the Applicant put it at the hearing: it was an “illegal process”. The closest analogy is the extradition abuse case of R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42, from which a principled extension is justified, in the application of English law. This is “no great extension”. Each case should turn on its own legal merits. As in Bennett, there is an illegality and impropriety which ‘shocks the conscience of the Court’. The legal consequence is that the Applicant's current detention is vitiated in law, because it all flowed from a defective EAW. The consequence is that the Operative Warrant is bad and defective in law and cannot be an answer to habeas corpus. Any other conclusion would be a contradiction.
Other points are made and can be made in support of the PPO argument. The Applicant emphasises what he says is the contradiction between the idea that the German proceedings and UK detention are lawful, if the actions of the CPS in 2019 were fundamentally unlawful and the EAW was fundamentally invalid. The 1984 Act must...
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