Salvis Auzins (No. 2) v Prosecutor-General's Office of the Republic of Latvia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Nicol |
| Judgment Date | 19 January 2017 |
| Neutral Citation | [2017] EWHC 48 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 January 2017 |
| Docket Number | Case No: CO/5797/2015 |
[2017] EWHC 48 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
Mr Justice Nicol
Case No: CO/5797/2015
Geoffrey Robertson QC and Graeme Hall (instructed by Kaim Todner) for the Appellant
Mark Summers QC and Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
David Mitchell (appointed by the Attorney-General) as a friend of the court
Hearing dates: 9 th December 2016
Approved Judgment
Lord Justice Burnett and
The issue which arises in this application by the Appellant is whether his extradition to Latvia, ordered by District Judge Goldspring on 20 th November 2015 and upheld by this court following his unsuccessful appeal, should be delayed to await the outcome of an appeal to the Crown Court by the Appellant against a recent conviction in the Magistrates' Court.
The Latvian authorities seek the extradition of the Appellant in order to prosecute him for four offences of theft. The Appellant's appeal against the order for extradition was dismissed by a Divisional Court (Burnett LJ and Cranston J.) on 14 th April 2016 — Auzins v Latvia (No.1) [2016] EWHC 802 (Admin). The Appellant applied to the Court to certify a point of law of general public importance and for permission to appeal to the Supreme Court. On 7 th June 2016 the Court refused to certify a point of law. Since certification is a necessary condition for permission to appeal (Extradition Act 2003 (' EA') s.32(4)) it followed that the Appellant's application for permission to appeal failed as well. Since it is only this Court which can certify a point of law of general public importance, it also followed that there could be no further application for permission to appeal to the Supreme Court itself. Put shortly, the order of this Court dismissing the appeal (and therefore the extradition order as well) became final on 7 th June 2016, see EA s.36(5)(b).
The Appellant had to be extradited to Latvia before the end of the 'required period', see EA s.36(2). The 'required period' is 10 days ( EA s.36(3)(a)). Normally the required period would have run from the 7 th June 2016. However, it will be postponed if an order is made under EA s.36B, see EA s.36(3A).
Section 36B 1 provides,
'(1) This section applies if —
(a) an order has been made for the extradition of the person in respect of whom the Part 1 warrant is issued, and
(b) before the extradition order is carried out the appropriate judge is informed that the person is charged with an offence in the United Kingdom.
(2) The appropriate judge must order the extradition order not to be carried out until 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 a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the appropriate judge may order the extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise). …'
The 'appropriate judge' in England and Wales is ordinarily a District Judge (Magistrates' Courts) designated by the Lord Chief Justice, see EA s.67(1). However s.36B(4) authorises rules of court to provide that, where there is an appeal against the extradition order, a reference to the 'appropriate judge' has effect as if it were a reference to the Court hearing the appeal. The Criminal Procedure Rules 2015 so provide, see r.50.23(3)(b). Thus for present purposes the High Court is the 'appropriate court'.
The Appellant's representatives informed the Court, as soon as they were told that a point of law would not be certified, that the Appellant faced charges of going equipped for theft contrary to s.25 of the Theft Act 1968 and of possession of cannabis contrary to s.5 of the Misuse of Drugs Act 1971. The offences were allegedly committed on 17 th April 2016 (which, Mr Summers, QC on behalf of the Respondent observes, was 3 days after his appeal to this Court had been dismissed).
A hearing of these two charges took place in the Hastings Magistrates' Court on 8 th June 2016. The Appellant pleaded guilty to the cannabis charge. He was fined and ordered to pay costs. He pleaded not guilty to the charge of going equipped for theft and that charge was set down for trial on 15 th July 2016 in the Hastings Magistrates' Court.
The matter was referred to Ouseley J. who ordered that extradition was not to be carried out until the remaining charge was disposed of, withdrawn, proceedings in respect of it were discontinued, or it was ordered to lie on the file. The CPS was directed to notify the Court when any of those steps occurred and if the Appellant was sentenced to imprisonment. The Judge commented that this postponement of extradition was required by the EA. If he was sentenced to prison, then the Court may make a further order that he not be extradited until he was released from prison.
It seems that the trial was delayed. It took place on 13 th September 2016. The Appellant was convicted of going equipped for theft. He was made subject to a community order for 3 months and subjected to a curfew requirement. He was ordered to pay costs.
Shortly after this the Appellant appealed against his conviction to the Crown Court sitting at Lewes. The Notice of Appeal was lodged in time. Permission to appeal is not required. His representatives notified this Court of the fact and argued that his criminal proceedings had not been 'disposed of' and accordingly his extradition should be further postponed pursuant to EA s.36B and the order of Ouseley J.
On 21 st September 2016 the matter was considered by Cranston J. He directed that the question as to whether the Appellant's extradition was to be postponed by his appeal to the Crown Court should be set down for a hearing. The Appellant was not to be removed pending further order. On 7 th October 2016 the matter came before Mitting J. However, he decided that it should be re-listed before a Divisional Court. That is how the issue comes before us.
In short the issue is whether a charge is 'disposed of' for the purposes of the EA when it has led to a conviction in a magistrates' court, but there is an outstanding appeal against conviction.
In this case the Appellant has exercised his right to appeal to the Crown Court pursuant to the Magistrates' Courts Act 1980 s.108. If he considered that the magistrates had erred in law, he could, alternatively, have asked them to state a case and then appealed by way of case stated to the High Court, see the Magistrates' Courts Act 1980 s.111. Mr Robertson QC, on the Appellant's behalf, accepts that the same principles apply in deciding whether extradition must be postponed pending such an appeal against conviction by case stated.
The issue arises in the immediate context of this case because the phrase 'disposed of' is used in s.36B. That is the applicable section where the appropriate judge is only notified of the domestic criminal proceedings after the extradition order has been made and in the context of extradition to a category 1 territory. However, if the Court is informed of the domestic proceedings after extradition has been ordered to a category 2 territory the governing provision ( EA s.118C) also says that extradition must be delayed until the domestic proceedings are 'disposed of'. The same expression is repeated in other provisions of the Act which apply if the court is given this information before the formal extradition hearing begins (see EA s.8A for a category 1 territory and s. 76A for a category 2 territory) or if the information is given to the Court in the course of the extradition hearing (see EA s.22 for a category 1 territory and s.97 for a category 2 territory). Plainly, the term 'disposed of' must be construed consistently in all six contexts.
The EA itself contains a definition of the term 'disposal of charge' in s.214. This is central to the issue we must address. It says,
'(1) A charge against a person is disposed of —
(a) if the person is acquitted in respect of it, when he is acquitted;
(b) if the person is convicted in respect of it, when there is no further possibility of an appeal against the conviction.
(2) There is no further possibility of an appeal against a conviction —
(a) when the period permitted for giving notice of application for leave to appeal to the Court of Appeal against the conviction ends, if the leave of the Court of Appeal is required and no such notice is given before the end of that period;
(b) when the Court of Appeal refuses leave to appeal against the conviction, if the leave of the Court of Appeal is required and notice of application for leave is given before the end of that period;
(c) when the period permitted for giving notice of appeal to the Court of Appeal against the conviction ends, if notice is not given before the end of that period;
(d) when the decision of the Court of Appeal on an appeal becomes final, if there is no appeal to the Supreme Court against that decision;
(e) when the decision of the Supreme Court on an appeal is made, if there is such an appeal.
(3) The decision of the Court of Appeal on an appeal becomes final —
(a) when the period permitted for applying to the Court of Appeal for leave to appeal to the Supreme Court ends, if there is no such application;
(b) when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the Court of Appeal...
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