Judicial review as a safety valve in extradition proceedings

The limits of the statutory appeal regime

The High Court has a tightly prescribed and limited jurisdiction to hear appeals in extradition proceedings. In the context of a requested person’s appeal against an order made for his or her extradition or to send his or her case to the Secretary of State, the High Court may allow an appeal only where the appropriate judge at the extradition hearing ‘would have been required to order the person’s discharge’ (see s. 27(3)(b)/104(3)(b) and s. 27(4)(c)/104(4)(b) of the Extradition Act 2003 (‘the Act’)).

The imperative nature of sections 27 and 104 of the Act is significant. It blocks the statutory route of appeal for a whole host of decisions made by appropriate judges between the initial hearing and the date of final surrender. Consider a decision of an appropriate judge that merely may have led to discharge: for instance, a decision not to adjourn an extradition hearing. There is no basis to appeal this decision within the framework of the Act. The extent of the appeal regime is cemented by the categorical wording of sections 34(1) and 116(1) of the Act which state, inter alia, that a ‘decision of the judge…may be questioned in legal proceedings only by means of an appeal under this Part’.

In Part II cases, the High Court retains a power – which appears in contrast to the binary options of ‘allow’ and ‘dismiss’ in Part I cases (see s.27(1)) – under section 104(1)(b) to ‘direct the [district] judge to decide again a question (or questions) which he decided at the extradition hearing.’ This power arises in circumstances where the High Court is not equipped to determine the question on the materials available to it, but a legal error has been established (Dempsey v United States [2020] EWHC 603 (Admin); see also Zarmaev v Russia [2017] EWHC 2705 (Admin), Musikyavicius v Russia [2011] EWHC 1549 (Admin)). The decision of a district judge, following a remittal under section 104(1)(b), is determinative of the appeal (see s. 104(6)/(7)) and is deemed to be a decision of the High Court; it is therefore not amenable to judicial review. A further route of appeal exists via the High Court only if the question is suitable for consideration by the Supreme Court (Okandeji v Bow Street Magistrates Court and Others [2005] EWHC 2925 (Admin)).

The scope of the jurisdiction

However, the provisions of the Act do not oust the High Court’s jurisdiction to consider applications for judicial review under section 31 of the Senior Courts Act 1981. The High Court retains supervisory authority over the acts/omissions of appropriate judges in extradition proceedings. The jurisdiction operates as safety valve to remedy serious injustice where the Act cannot.

Whilst a detailed analysis of the principles and procedure of judicial review is well beyond the scope of this article, practitioners should note that the remedy is one of last resort. Where an alternative remedy exists under either section 26 or 103 of the Act, it must be exhausted. This point was exemplified in the recent Divisional Court case of R (Klocek) v Westminster Magistrates’ Court [2020] EWHC 1632 (Admin) in which Jay J emphasised the ‘exceptional’ nature of the remedy and characterised the proposed judicial review application as ‘an impermissible attempt to circumvent section 26 read in conjunction with section 17.’ His Lordship stated that ‘[i]f there is a valid appeal point to be raised on the issue of speciality, the statute provides for the appropriate remedy, namely an appeal.’

Instead, the authorities suggest that judicial review serves as an exceptional remedy where an appropriate judge exercises case management powers irrationally or otherwise acts outside the contours of the Act. In Olah v Czech Republic [2008] EWHC 2701 (Admin), the Divisional Court quashed the decision of an appropriate judge to refuse an application for an adjournment where ‘the appellant had had no reasonable opportunity to marshal psychiatric evidence’ prior to the extradition hearing. There was no basis for the lower court’s decision that the application to adjourn was ‘obviously bogus.’ Whilst the Court was at pains to explain that it ‘must be extremely reluctant and careful’ before intervening with such a decision, it ultimately held that ‘the judge was plainly wrong [and that] there was…no basis for such a refusal.’

In Lazarov v Bulgaria [2018] EWHC 3050 (Admin), the judgment contained ‘so many errors’ that it did ‘not engage the true facts of the case at all… the district judge simply did not address the facts and circumstances of this case at all, so that…his decision is tantamount to a nullity’. Giving judgment, Holman J observed that it was a ‘most unusual case’ with ‘very exceptional facts’. His Lordship held that judicial review was ‘a very rare remedy to be exercised very sparingly and with great caution and circumspection.’ In this instance, it served to avoid ‘a serious injustice’ because the appellant was unable to satisfy the restrictive criteria of section 27 of the Act.

In Celczynski v Poland [2019] EWHC 3450 (Admin), Dove J considered an irregularity with the taking of consent under section 8 of the Act. His Lordship found that the appellant did not give ‘legally effective or valid consent to his extradition’ at the initial hearing. This was because at the time that consent was given the requested person ‘was not legally represented, or assisted by counsel or solicitor, as required section 45(5) and (8).’ Dove J ‘[quashed] the District Judge’s order for extradition of the Appellant’ given his ‘conclusion that it was based on an error of law as to whether or not the Appellant had given valid consent.’

The recent authority of Cosar et al v HMP Wandsworth [2020] EWHC 1142 (Admin) addresses the availability of judicial review, as opposed to an application for habeas corpus, as a means to challenge the decision of an appropriate judge to re-fix the required period for removal under section 35(4) of the Act. Lewis J commented that if an appropriate judge’s decision to re-fix the time for removal is quashed, an individual is able ‘to make an application that he be discharged under section 35(5) of the 2003 Act if the original period within which he should have been extradited had passed.’

Cosar also confirms that the lawfulness or procedural propriety of an agreement to extend the period of detention is one that is ‘to be brought by way of a claim for judicial review not an application for habeas corpus.’ An application for habeas corpus may be treated as an application for permission to apply for judicial review pursuant to rule 87.5(6) of the Civil Procedure Rules (‘CPR’). However, the application in this case ultimately failed, as the Divisional Court ruled that the lower court acted lawfully when it agreed a later date for removal ‘because of the difficulties in extraditing the first applicant to Romania given the restrictions imposed to deal with the coronavirus pandemic.’ A related but ultimately distinct point is dealt with in Balazs v HMP Wandsworth [2018] EWHC 2540 (Admin).

Practical considerations

Practitioners will no doubt wish to preserve their clients’ positions in appropriate cases – by, for instance, applying to adjourn proceedings before the lower court once there is an arguable basis to do so, and keeping a detailed noted of any reasons for refusal. This may strengthen a potential challenge advanced on the basis of an irrational interlocutory decision. Further, whilst in several of the above cases the High Court has, in the interests of justice, dispensed with the formalities relating to the issuance of judicial review proceedings, it is plainly advisable that any claim complies with the requirements of Part 54 of the CPR and related practice directions (see also The Administrative Court Judicial Review Guide).

The instances on which the High Court has exercised its judicial review jurisdiction in extradition proceedings are highly fact specific and naturally turn on the circumstances of each case. Nevertheless, the High Court has demonstrated that judicial review is available as an exceptional remedy in extradition proceedings to prevent serious injustice where a party does not benefit from a statutory ground of appeal under the Act.

Author: Ben Joyes specialises in extradition, international criminal law and international human rights law at 9 Bedford Row

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