Guy Jane v Westminster Magistrates’ Court & Ors [2019] EWHC 394 (Admin)

Guy Jane v Westminster Magistrates’ Court & Ors [2019] EWHC 394 (Admin) concerned an application for habeas corpus, or alternatively judicial review, against Westminster Magistrates’ Court following the refusal to discharge Mr Jane under section 36(8) of the Extradition Act 2003 where the statutory deadline for his removal to Lithuania had expired. The Divisional Court (Lord Justice Singh and Mr Justice Dingemans) held that the proper procedure was judicial review, but dismissed the claim on its merits.

Mr Jane was the subject of an accusation European Arrest Warrant issued by the Deputy Prosecutor General of Lithuania on 30 July 2015 for six fraud allegations dating from 2010 to 2011. Deputy Senior District Judge Ikram ordered his extradition on 3 November 2017. After an appeal to the Divisional Court concerning Article 3 ECHR conditions at Lukiskes remand prison, which resulted in assurances being sought and obtained from Lithuania, the appeal was dismissed on 16 October 2018. The 14-day period for a certification application expired on 29 October 2018, triggering a 10-day removal period ending on 8 November 2018 under section 36(2) and (3)(a) of the 2003 Act.

However, the removal did not take place within the statutory deadline due to administrative shortcomings. The National Crime Agency failed to contact the Administrative Court Office to confirm the appeal had become final until 5 November. Devon and Cornwall police did not respond. The NCA first contacted Lithuania on 5 or 6 November, by which time arrangements could not be completed. The NCA miscalculated the final date as 9 November rather than 8 November, so no extension application was lodged in time. Mr Jane applied for discharge under section 36(8) on 9 November 2018. An extension was granted by Jeremy Baker J on 9 November, but it was common ground that this did not affect the issues before the Court. DSDJ Ikram refused the discharge application on 16 November 2018. Nicol J refused the habeas corpus application and interim relief on the papers on 20 November 2018, and Supperstone J subsequently adjourned the matter to the Divisional Court with a stay on removal.

Below, DSDJ Ikram had found “reasonable cause” for the delay. He considered whether there was tension between the decision of the CJEU in Criminal Proceedings concerning Vilkas [2017] 4 WLR 69 and the domestic approach to section 36(8). He noted factual differences: Mr Vilkas had been in custody whereas Mr Jane was on bail, and Mr Vilkas had forcibly resisted removal whereas here the delay was due to late notification by the High Court and consequent inability by Lithuania to facilitate surrender within three days. The District Judge found the circumstances “abnormal and unforeseeable” as far as the NCA was concerned and found no lack of due care, treating the NCA’s wait for formal notification from the High Court as reasonable. He rejected any suggestion of error or negligence on the NCA’s part.

Mr Mark Summers QC, for Mr Jane, advanced three grounds. Ground 1 contended that there was no reasonable excuse for delay, that the miscalculation of the deadline was insufficient, and that the District Judge wrongly focused only on NCA conduct without considering the earlier failings of the Administrative Court Office. Ground 2 alleged that the evidence was not rigorously scrutinised and that the finding of reasonable cause was irrational. Ground 3, which became the main focus of argument, submitted that the CJEU decision in Vilkas required “reasonable cause” in section 36(8) to be interpreted harmoniously with EU law as encompassing only force majeure—abnormal and unforeseeable circumstances beyond the control of both states—and that administrative error could never satisfy that test. Mr Summers argued that Mr Jane was entitled to be discharged unconditionally and that section 213 of the 2003 Act meant discharge disposed of the warrant entirely. Alternatively, he submitted judicial review should be granted. He later sought to rely on the Supreme Court of Ireland decisions in Minister for Justice and Equality v Vilkas [2018] IESC 69 and Minister for Justice and Equality v Skiba [2018] IESC 68, which applied Vilkas to the interpretation of the Irish European Arrest Warrant Act 2003.

Ms Clair Dobbin, for the National Crime Agency, and Ms Hannah Hinton, for the Crown Prosecution Service, opposed the application. They submitted that Vilkas did not impose a stricter test for reasonable cause but rather showed that expiry of time limits under Article 23 of the European Arrest Warrant Framework Decision did not terminate the surrender process, only requiring release of persons actually in custody. They emphasised that Vilkas confirmed that Member States remained obliged to carry on with extradition proceedings and that the English courts’ approach to section 36(8) was consistent with the Framework Decision. They argued that acceptance of the Applicant’s position would make it easier to defeat extradition, contrary to the aims of the Framework Decision, and would simply trigger a fresh warrant. They also contended that habeas corpus was inappropriate because Mr Jane was on bail and that any challenge should be by way of judicial review.

Lord Justice Singh, with whom Mr Justice Dingemans agreed, first addressed procedure. He held that habeas corpus was not the appropriate remedy. Although acknowledging old authority to the effect that habeas corpus may be available for persons on bail (Re Amand [1941] 2 KB 239) and more recent statements to similar effect, he considered a more fundamental difficulty arose. The gaoler would have a complete answer to habeas corpus by producing the order of the District Judge authorising detention. What the Applicant truly attacked was that judicial decision, alleging errors of law and irrationality—grounds properly ventilated by judicial review rather than habeas corpus. He followed the reasoning of the Court of Appeal in R v Secretary of State for the Home Department, ex p. Cheblak [1991] 1 WLR 890 and ex p. Muboyayi [1992] QB 244 and of the Divisional Court in R v Oldham Justices, ex p. Cawley [1997] QB 1. Those cases established that habeas corpus issues where someone is detained without authority or where purported authority is beyond lawful powers, whereas judicial review is the remedy where a decision or action is within jurisdiction but flawed by procedural error, misappreciation of law, or irrationality. Lord Justice Singh acknowledged academic criticism of Cheblak and Muboyayi, including by the late Sir William Wade, but considered them binding authority properly followed by the Divisional Court in Cawley and in obiter remarks in Gronostajski v Government of Poland [2007] EWHC 3314 (Admin). He distinguished the decision in Nikonovs v Governor of HMP Brixton [2005] EWHC 2405 (Admin) as concerned only with whether the 2003 Act had ousted habeas corpus altogether (which it held it had not) rather than with the choice between habeas corpus and judicial review in a given case. Accordingly, the Court treated the application as one for permission to apply for judicial review and granted permission.

Turning to the merits, Lord Justice Singh dismissed the claim. He held that the premise of Mr Summers’ submissions—that Vilkas altered the standard under section 36(8)—was flawed. He analysed Article 23 of the Framework Decision as comprising three stages. Stage one, under Article 23(2), imposed an obligation to surrender within ten days. Stage two, under Article 23(3) and (4), provided for extensions by agreement in specified circumstances such as force majeure or serious humanitarian reasons. Stage three, under Article 23(5), prescribed that if time limits expired and the person was still in custody, he must be released. Crucially, release from custody was the only consequence expressly prescribed by Article 23 for breach of the time limit. Since Mr Jane was on bail and not in custody, Article 23(5) had no application to him. The passages in Vilkas concerning the strict interpretation of force majeure related to Article 23(3)—the circumstances in which an extension could be agreed—not to the consequences of breach for persons not in custody. The CJEU at paragraph 70 had made clear that Article 23 conferred no effect on expiry of time limits beyond release from custody; it did not deprive authorities of the possibility of agreeing a surrender date under Article 23(1) or relieve the executing state of the obligation to give effect to the warrant. At paragraph 72 the CJEU held that mere expiry could not relieve the executing state of its obligation to carry on and surrender the requested person. Lord Justice Singh rejected reliance on paragraph 35 of the Opinion of Advocate General Bobek, which distinguished “genuine and unconditional release” from “provisional release” and which Mr Summers argued meant bail conditions were impermissible. That passage had not been cited with approval by the CJEU and was inconsistent with the tenor of the judgment, which emphasised continuation of the surrender obligation.

Lord Justice Singh then considered the decisions of the Supreme Court of Ireland in Vilkas and Skiba. In the former, the Supreme Court of Ireland had allowed an appeal from the Court of Appeal on the ground that section 16(5) of the Irish European Arrest Warrant Act 2003 was clear and unambiguous and could not be interpreted consistently with the Framework Decision to permit multiple extensions; such an interpretation would be contra legem. McKechnie J observed, obiter, that Article 23 did not address what form of release was intended and that the Irish term “discharge” meant full and unconditional discharge marking the end of proceedings, in contrast to “release” which generally involved conditions or duration. Lord Justice Singh held that the Irish decision turned on a question of Irish statutory interpretation and did not bind this Court in construing the different wording and structure of the Extradition Act 2003. If anything, McKechnie J’s reasoning supported a distinction between “release” and “discharge” and was consistent with recognition of the difficulties that would be caused to the European Arrest Warrant system if an unconditional discharge were required. In Skiba, McKechnie J had held that “circumstances beyond the control” in section 16(5)(a) of the Irish Act could and must be given the same meaning as in Article 23(3), namely force majeure, and that a conforming interpretation was possible on the wording of the Irish provision. Lord Justice Singh considered that decision also turned on Irish law and did not assist the Applicant. He summarised five propositions: the Irish decisions added nothing to EU law as stated by the CJEU; they turned on Irish statutory interpretation; although of interest given common legal roots, this Court must construe its own differently worded Act; the 2003 Act had been interpreted consistently in domestic case law and nothing in EU law required a different approach; and no issue of EU law arose requiring a preliminary reference, since the only consequence of breach of Article 23 time limits was release from custody and neither Article 23(5) nor Vilkas shed light on the meaning of “discharge” in the domestic legislation.

As to Grounds 1 and 2, Lord Justice Singh held that they amounted to disagreement with the District Judge’s assessment of the evidence. The conclusion that there was reasonable cause was open to the District Judge and was not irrational. The District Judge had been entitled to find that the circumstances were abnormal and unforeseeable as far as the NCA was concerned, that there was no want of due care, and that the NCA had acted reasonably in awaiting formal notification from the High Court.

In short, habeas corpus was held to be the wrong procedure where the true target was a court order and the grounds alleged were errors of law and irrationality; the application was therefore treated as one for judicial review and permission granted, but the claim was dismissed because the CJEU decision in Vilkas had no material impact on a person on bail, the District Judge’s finding of reasonable cause was lawful and rational, and section 36(8) as interpreted by the domestic courts remained compatible with the Framework Decision.

Owens v City of Westminster Magistrates’ Court [2009] EWHC 1343 (Admin)
Equality v Vilkas [2018] IESC 69
Equality v Skiba [2018] IESC 68
Re Amand [1941] 2 KB 239
Nikonovs v Governor of Brixton Prison [2005] EWHC 2405
R v Governor of Brixton Prison , ex p. Armah [1968] AC 192
Linnett v Coles [1986] 3 All ER 6523
Gronostajski v Government of Poland [2007] EWHC 3314
R v Oldham Justices ex p Cawley [1997] 1 QB 1
Nikonovs v HM Prison Brixton and Another [2005] EWHC Admin 2405
R v Oldham Justices, ex p . Cawley [1997] QB 1
Linnett v Coles [1987] QB 555

Pepper v Hart [1993] AC 593, [1992] 3 WLR 1032, [1993] 1 All ER 42, [1993] ICR 291
Criminal Proceedings against Pupino (Case C – 105/03) [2006] QB 83
Lukaszewski (Appellant) v The District Court in Torun, Poland [2012] UKSC 20 (Pomiechowski v District Court of Legunica, Poland; Lukaszewski v District Court in Torun, Poland; Rozanski v Regional Court 3 Penal Department, Poland)
BH & Anor v The Lord Advocate & Anor [2012] UKSC 24
Jane v Prosecutor General’s Office, Lithuania [2018] EWHC 1122 (Admin)

Gerulskis & Anor v The Prosecutor General’s Office of the Republic of Lithuania [2020] EWHC 1645 (Admin)
Polakowski & Ors v Westminster Magistrates Court & Ors [2021] EWHC 53 (Admin), [2021] 1 WLR 2521
Malik v Governor of HM Prison Hindley (No.3) [2022] EWHC 2737 (Admin)
The Father (Appellant) v Worcestershire County Council (Respondent) [2025] UKSC 1
R (Lopes) v Secretary of State for the Home Department [2021] EWCA Civ 805