HMP Wandsworth, Governor of v Kinderis [2007] EWHC 998 (Admin)

[2007] EWHC 998 (Admin)

Case No CO/1417/2007

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 3 rd May 2007

Before

LORD JUSTICE LAWS

MR JUSTICE BEATSON

Between

The Governor of HMP WandsworthClaimant

Antanas KinderisDefendants

The Prosecutor General’s Office of the Republic of LithuaniaInterested Parties

The Crown Prosecution Service, CambridgeshireInterested Party

City of Westminster Magistrates CourtInterested Party

The Crown Court at CambridgeInterested Party

The Serious Organised Crime AgencyInterested Party

The Secretary of State for the Home DepartmentInterested Party

(Transcript of the Handed Down Judgment of

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Mr N Giffin QC (instructed by Treasury Solicitors) for both the Claimant& 4 th Interested Party

Mr B Lloyd (instructed by Messrs Lawrence & Co) for 1 st defendant

Mr M Weekes (instructed by The Crown Prosecution Service) for 2 nd defendant

Mr A Chalk (instructed by The Crown Prosecution Service) for 3rd defendant

Hearing Hearing dates: 21 March 2007

Judgment

INTRODUCTORY

[1]In these somewhat unusual proceedings the Governor of HMP Wandsworth (“the Governor”) seeks declarations as to the meaning and effect of three court orders: an order of the Peterborough Magistrates Court made on 15 January 2007, an order of the Cambridge Crown Court made on 8 February 2007, and an order made by District Judge Purdy at the City of Westminster Magistrates Court on 30 January 2007. The claim was originally issued in the Action Department of the Queen’s Bench Division on 16 February 2007, but was transferred to the Administrative Court by Master Ungley on the same day, and proceeds as a judicial review with permission granted by Collins J under CPR Part 54.4 on 14 March 2007.

THE FACTS

[2]All of the orders in question concern a Lithuanian national, Antanas Kinderis. The facts which have given rise to the Governor’s application are as follows. On 19 June 2006 two European Arrest Warrants (“EAWs”) were certified by the Serious Organised Crime Agency (“SOCA”) pursuant to s.2 of the Extradition Act 2003 (“the 2003 Act”), detailing charges of rape and sexual assault by Kinderis on a 13 year old girl and a 16 year old girl in Lithuania.

[3]On 14 January 2007 Kinderis was arrested in this country on suspicion of offences of false imprisonment and attempted rape of an adult woman in Cambridgeshire. The next day, 15 January 2007, he was charged with these offences and taken before the Peterborough Magistrates Court, where he was ordered to be sent for trial at the Cambridge Crown Court, and meantime remanded in custody. He was initially detained at HMP Lincoln until 24 January 2007, and thereafter at HMP Wandsworth. On 19 January 2007 the case was listed before HHJ Hawkesworth at the Cambridge Crown Court. Kinderis declined to appear but was represented. The judge directed that a plea and case management hearing should take place on 4 April 2007. It appears that Kinderis thereafter remained in custody on the authority of the order of the Peterborough Magistrates Court of 15 January 2007.

[4]On 23 January 2007 Kinderis was arrested on the EAWs and produced before a District Judge in the City of Westminster Magistrates Court for an initial hearing pursuant to s.7 of the 2003 Act. During this hearing he gave his consent to be extradited to Lithuania. This was as I understand it a statutory consent under s.45 of the 2003 Act (I will set out the material statutory provisions in due course). The District Judge adjourned the hearing, having been informed that Kinderis was subject to domestic criminal charges. He issued an order to the Governor of HMP Wandsworth to detain Kinderis at Wandsworth Prison and return him to the Westminster Magistrates Court on 30 January 2007.

[5]On 30 January 2007 the District Judge was informed that the Lithuanian authorities would not consent to Kinderis’ extradition being delayed. Their reasons were that the offences allegedly committed in Lithuania were serious; the complainants were young girls; the trial process had already been started in relation to the offence referred to in one of the warrants; and Kinderis had previous convictions for similar offences. The District Judge ordered that Kinderis be extradited to Lithuania pursuant to s.46 of the 2003 Act. He issued a custody warrant by which it was ordered that Kinderis be conveyed to HMP Wandsworth and detained there until “delivered in due process of law”.

[6]Arrangements were put in hand to extradite Kinderis to Lithuania on 7 February 2007. However on that day the Governor’s solicitors informed the other interested parties of the Governor’s intention to issue proceedings to clarify the effect of the orders under which he was holding Kinderis. On 8 February 2007 the domestic case was again listed at the Cambridge Crown Court. Kinderis again declined to attend. HHJ Howarth ordered that he be remanded in prison to be delivered to the Crown Court for his trial in due course.

[7]These proceedings were as I have said issued on 16 February 2007. On the face of it the Governor is obliged to comply with two orders which are mutually inconsistent. The order of the Westminster Magistrates Court on 30 January 2007 requires him to hold Kinderis until he is to be delivered for his extradition. The order of the Cambridge Crown Court of 8 February requires him to hold Kinderis until he is delivered for trial in this jurisdiction. The Governor desires to know what he is to do.

THE LEGISLATION

[8]Part I of the 2003 Act makes provision for extradition arrangements between Member States of the European Union, between whom the regime of EAWs, which is the child of the Council Framework Decision on the European Arrest Warrant of 13 June 2002 (“the Framework Decision”), is applied. I will have more to say about the Framework Decision. First I should set out the following provisions of Part I of the 2003 Act: “4(1) This section applies if a person is arrested under a Part 1 warrant. (2) A copy of the warrant must be given to the person as soon as practicable after his arrest. (3) The person must be brought as soon as practicable before the appropriate judge. ... 7(1) This section applies if -(a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3)… (2) The judge must decide whether the person brought before him is the person in respect of whom - (a) the warrant referred to in subsection (1)(a) was issued... (5) If the judge decides that question in the affirmative he must proceed under section 8... 8(1) If the judge is required to proceed under this section he must- (a) fix a date on which the extradition hearing is to begin; ... (c) give the person the required information about consent; (d) remand the person in custody or on bail. ... (3) The required information about consent is - (a) that the person may consent to his extradition to the category 1 territory in which the Part 1 warrant was issued;

(b) an explanation of the effect of consent and the procedure that will apply if he gives consent;

(c) that consent must be given before the judge and is irrevocable...” (a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3)…

[9]It is important for the purposes of this case to notice that the hearing contemplated by ss.7 and 8, at which the actions required of the judge by those sections are to be taken, is the “initial hearing”. This is a term of art under the 2003 Act, as is the “extradition hearing”. “The extradition hearing” is the cross-heading to ss.9 – 21. The cross-heading to ss.22 – 25 is “Matters arising before end of extradition hearing”. Here are the provisions relating to the extradition hearing relevant to what we have to decide:

“10(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing. (2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence. ... (4) If the judge decides that question in the affirmative he must proceed under section 11. 11(1) If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of [there follows a list of bars to extradition, including such matters as the rule against double jeopardy and the passage of time]... (4) If the judge decides those questions in the negative and the person is alleged to be unlawfully at large after conviction of the extradition offence, the judge must proceed under section 20. (5) If the judge decides those questions in the negative and the person is accused of the commission of the extradition offence but is not alleged to be unlawfully at large after conviction of it, the judge must proceed under section 21.”

[10]There follow (ss.12 – 19) provisions dealing with the various individual bars to extradition. S.20 requires the judge to decide(a) whether the person was convicted in his presence, or if not

(b) whether he deliberately absented himself from his trial; and

(c) if he did not, whether upon being returned he would be entitled to a re-trial. If his answer to (a) or (b) or (c) is Yes, he must proceed under s.21. S.21(1) requires him to decide “whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998”. If the answer is No, the judge must order the person’s discharge. If Yes, he must order the person’s extradition.

[11]S.22, cross-headed “Person charged with offence in United Kingdom”, is of particular importance in this case. It provides so far as material:

“(1) This section applies if at any time in the extradition hearing the judge is informed that the person in respect of whom the Part 1 warrant is issued is charged with an offence in the United Kingdom. (2) The judge must adjourn the extradition hearing 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...”

[12]Ss.35 and 36 prescribe the time when extradition is to take place once an extradition order is made. S.35 provides in part:

“(1) This section applies if- (a) the appropriate judge orders a person's extradition to a category 1 territory under this Part..., (2) But this section does not apply if the order is made under section 46 or 48. (3) The person must be extradited to the category 1 territory before the end of the required period. (4) The required period is - (a) 10 days starting with the day on which the judge makes the order, or (b) if the judge and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date. (5) If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.”

S.36 contains parallel provisions, but dealing with the case where there has been an appeal under the Act against the extradition order. Where the outcome of any such appeal is that the proposed extraditee remains liable to be extradited, the section stipulates a “required period” which is the same as that given by s.35(4) but starting on the day when the relevant appeal decision becomes final. S.36(8) makes identical provision to that contained in s.35(5).

[13]S.45 is cross-headed “Consent to extradition”, and provides so far as material as follows:

“(1) A person arrested under a Part 1 warrant may consent to his extradition to the category 1 territory in which the warrant was issued. ... (3) If a person consents to his extradition under this section he must be taken to have waived any right he would have (apart from the consent) not to be dealt with in the category 1 territory for an offence committed before his extradition. (4) Consent under this section - (a) must be given before the appropriate judge; (b) must be recorded in writing; (c) is irrevocable. (5) A person may not give his consent under this section unless - (a) he is legally represented before the appropriate judge at the time he gives consent...”

Ss.46 and 47:

“46(1) This section applies if a person consents to his extradition under section 45. (2) The judge must remand the person in custody or on bail. ... (4) If the judge has not fixed a date under section 8 on which the extradition hearing is to begin he is not required to do so. (5) If the extradition hearing has begun the judge is no longer required to proceed or continue proceeding under sections 10 to 25. (6) The judge must within the period of 10 days starting with the day on which consent is given order the person’s extradition to the category 1 territory. ... 47(1) This section applies if the appropriate judge makes an order under section 46(6) for a person’s extradition to a category 1 territory. (2) The person must be extradited to the category 1 territory before the end of the required period. (3) The required period is - (a) 10 days starting with the day on which the order is made, or (b) if the judge and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date. (4) If subsection (2) is not complied with and the person applies to the judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay. ...”

[14]I must next set out the material provisions of the Framework Decision. The preamble (Mr Giffin QC for the Secretary of State referred to recitals 1, 5 and 10) makes it clear that the Decision’s impetus is towards the creation of a speedy and uncomplicated system of surrender between judicial authorities “based on a high level of confidence between Member States” (recital 10). I may go to Article 11, cross-headed “Rights of a requested person”:

“1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority.”

Article 13(1):

“If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the "speciality rule", referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State.”

Article 17 is cross-headed “Time limits and procedures for the decision to execute the European arrest warrant”. It provides in part:

“1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. 4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. ... 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level.”

Articles 23 and 24 are of particular importance given the issues we must decide. Article 23 is cross-headed “Time limits for surrender of the person”:

“1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.”

Article 24 is cross-headed “Postponed or conditional surrender”:

“1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant. 2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State.”

THE SECRETARY OF STATE’S ARGUMENT

[15]Mr Giffin appears for the Governor as well as the Secretary of State. He makes no distinct submissions on behalf of the Governor, whose only interest is to obtain the guidance of the court as to how he is to deal with his prisoner Kinderis. However Mr Giffin makes substantive submissions on behalf of the Secretary of State, which are adopted by Mr Chalk for the Cambridgeshire Crown Prosecution Service. Mr Giffin submits, first, that the Framework Decision contemplates three kinds of circumstances in which surrender of the extraditee may or should be postponed beyond the 10 day period provided for by Article 23(3) of the Decision or any other date agreed pursuant to Article 23(1). These three sets of circumstances are as follows:(i) what may be called force majeure – Article 23(3);

(ii) “serious humanitarian reasons” – Article 23(4); and

(iii) prosecution in the requested State for a crime allegedly committed there – Article 24(1).

[16]In light of that background, Mr Giffin, supported by Mr Chalk, next proposes a particular interpretation of s.47(4) of the 2003 Act. (The essence of the submission was in fact first put forward in a skeleton argument for the CPS drafted by Mr Chalk’s predecessor.) He says there are two possible readings of the subsection. The first is that where “reasonable cause is shown for the delay”, the only consequence is to bar the remedy of discharge which the subsection otherwise gives to the fugitive. The second is that where such cause is shown the duty to extradite “before the end of the required period” imposed by s.47(2) is extinguished. Mr Giffin submits that the background provisions contained in the Decision, in particular the three circumstances justifying postponement which I have set out, militate in favour of the second of these two interpretations. Thus if the third circumstance – prosecution in the requested State – obtains, the fugitive’s extradition will be postponed to the criminal proceedings in this jurisdiction without offence to the provisions of s.47(2) and (3) relating to the “required period”, since the domestic prosecution process will constitute “reasonable cause... for the delay” within s.47(4).

[17]It follows that if Mr Giffin is right then it will be the Governor’s duty to hold Mr Kinderis pending his delivery to the Crown Court for trial on the domestic charges. Any question of his delivery to Lithuania pursuant to the extradition order made on 30 January 2007 would have to be postponed until those charges have been dealt with.

[18]It is clear, as Lord Bingham said in Office of the King’s Prosecutor, Brussels v Cando Armas

[2006] 2 AC 1

, that the 2003 Act “was enacted in discharge of the United Kingdom’s duty to transpose into national law the obligations imposed on it by the European Council Framework Decision” (paragraph 1). Lord Hope said (paragraph 24):

“[T]he wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, when there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty”

CONSTRUCTION OF THE 2003 ACT ACCORDING TO DOMESTIC RULES

[19]I will return to the Framework Decision shortly. First, however, it is convenient to consider what is the proper interpretation of s.47(4) applying ordinary domestic canons of construction without regard to any impact the Framework Decision may have. Mr Giffin submits that even on that basis the words of the subsection are perfectly capable of bearing the meaning for which he contends. I should say that he and Mr Chalk have another discrete submission on the construction of other provisions in the statute which I will also address.

[20]On the face of it, in every case where a proposed extraditee consents to his extradition under s.45, the extradition order must be made within ten days of the consent being given: s.46(6). The consent may, however, be given at different stages. In particular it may be given (as here) before any extradition hearing has begun; or it may be given in the course of the extradition hearing. In the first case, if no date has been fixed for the extradition hearing the judge is not obliged to fix one (s.46(4)). In the second case, the judge is not required to proceed under the provisions (ss.10 – 25) dealing with the extradition hearing (s.46(5)). (There is I suppose a third possible case which s.46 does not on its face address: that is, where the consent is given after a date has been fixed for the extradition hearing but before the date is reached. In that event it would seem that the extradition hearing should begin, but then by force of s.46(5) the judge is not required to proceed with it.)

[21]In each of these cases the extradition hearing is not required to take place, and by his consent the fugitive has waived his right to the various protections which would otherwise be given effect at that hearing. Moreover – and critically for present purposes – the mechanism of s.22, requiring the extradition hearing to be adjourned until domestic criminal proceedings have in one way or another been disposed of, does not have to be operated. There is a simple, streamlined procedure: the extradition order must be made within ten days of the consent being given; the extradition must take place within ten days of the order (s.47(2) and (3)(a)), or other period agreed with the requesting State (s.47(3)(b)); and if it does not, the fugitive must be discharged if he so applies, “unless reasonable cause is shown for the delay” (s.47(4) – subject, of course, to Mr Giffin’s argument on that subsection).

[22]If that is all there is to say about the matter, it seems clear that in every case of statutory consent to extradition, the extradition must proceed even if there are extant domestic criminal charges; the effect of s.22 is, as it were, reversed. But Mr Giffin and Mr Chalk submit that it cannot have been the legislature’s intention that priority between domestic criminal proceedings and an extradition request should be determined by the existence or absence of consent to extradition on the part of the fugitive. To this end they have two submissions on the language of the statute. One is their principal argument as to the construction of s.47(4), which I shall confront shortly. The other is a subsidiary argument – subsidiary because it does not arise, and cannot assist, on the facts of this case. I have mentioned it in passing but not yet described it, and it is convenient to deal with it now.

[23]The submission is that although s.46(4) and (5) respectively provide that the judge is not required to fix a date for the extradition hearing or to proceed under ss.10 – 25, they do not provide that he may not do so. It remains open to him to take those steps. Thus in the present case, on being informed on 23 January 2007 that Kinderis consented to his extradition, the district judge could nevertheless have fixed a date for the extradition hearing, and at that hearing proceed to apply s.22. As I have shown that is not what happened. Hence this argument, even if it is right, cannot assist the Secretary of State or the CPS on the facts.

[24]In my judgment, however, the argument is wrong in any event. It ignores the force of s.46(6), which as we have seen imposes an unqualified obligation to order extradition within ten days of the fugitive’s consent being given. Even if s.46(4) and (5) could be said to confer a discretion on the judge to hold an extradition hearing notwithstanding the fugitive’s consent to extradition (and it would be a very oblique means of doing so), the discretion’s being exercised could not in my judgment relieve the judge of the s.46(6) obligation. But the existence of that obligation could not sensibly stand with the process of the extradition hearing, whose very purpose, generally speaking, is to decide whether an extradition order should be made at all.

[25]Nor can I discern any principles upon which such a discretion might properly be exercised. Is the judge to make what might be called a strategic decision as to whether the fugitive should first face trial here or in the requesting State? There is nothing whatever in the 2003 Act to suggest any such purpose, and I cannot think it can sensibly be got out of the words of s.46(4) and (5). More than this: in my judgment the language of s.46(4) and (5), along with that of ss.8 and 10 – 25 to which those subsections cross-refer, cannot support a construction providing for a discretion to be exercised as to the operation of the mechanics of an extradition hearing. It needs to be borne in mind that the provisions of ss.8 and 10 – 25 are (with the sole exception, I think, of s.23(2)) mandatory. The verb “must” appears throughout: “… the judge… must… fix a hearing” (s.8(1)(a)); “The judge must decide whether the offence specified… is an extradition offence” (s.10(2)) etc. Given that these sections take that form, in my judgment s.46(4) and (5) do no more than to relieve the judge of the obligations which the sections impose. They do not convert a duty into a power. That would require quite different language.

[26]In any event, however, that is not Mr Giffin’s case. His case is that the Act’s policy is to postpone the extradition to the domestic criminal proceedings, as is done by s.22 when it applies. Implicit in that submission is the proposition that faced with a consent case where there are also domestic charges, the judge ought to proceed to or continue an extradition hearing under s.46(4) or (5). But the notion that provisions which on their face relieve the judge altogether of an obligation to do X nonetheless require him to do X in certain circumstances is plainly insupportable, not to say bizarre.

[27]I turn to Mr Giffin’s principal submission, on the construction of s.47(4). It was that where reasonable cause for delay in carrying out the extradition is shown, the duty to extradite “before the end of the required period” imposed by s.47(2) is extinguished. Accordingly, where there are extant criminal proceedings in this jurisdiction, the fugitive’s extradition (notwithstanding his consent to it) will be postponed to the disposal of those proceedings without offence to the provisions of s.47(2) and (3) relating to the “required period”, since the domestic prosecution process will constitute “reasonable cause... for the delay” within s.47(4).

[28]In my judgment this argument cannot be sustained upon any ordinary canon of statutory construction. S.47(2) plainly imposes an obligation to extradite before the end of the required period. No less plainly, the premise of s.47(4) is that that obligation has not been complied with. Subs.(4) is concerned, and concerned only, to provide for the consequences of non-compliance. It cannot be read as in some way alleviating or extinguishing the s.47(2) obligation. Its effect is that, where that obligation is not complied with and the proposed extraditee applies to be discharged, the judge must discharge him “unless reasonable cause is shown for the delay”. Thus the subsection is simply concerned to impose a sanction for non-compliance with the s.47(2) obligation subject to the proviso contained in the “unless” clause.

[29]As for that proviso, it seems to me that it simply means what it says. It will clearly be apt to bar the remedy of discharge in what I have called a force majeure case. One may readily multiply examples. Thus if the extradition is to be effected by air, a strike by airline or air traffic control staff over a period during which the extradition is set to take place might well fall within this category. And I would think there may readily be reasonable cause for the delay where it is occasioned on humanitarian grounds, such as the serious illness of the extraditee. To that extent the instances of postponement referred in Article 23(3) and (4) of the Framework Decision may be said to dovetail with the “reasonable cause” proviso in s.47(4) upon the latter’s interpretation according to ordinary domestic canons of construction.

[30]However Icannot see that the same can be said of the instance given in Article 24(1) – postponement for the purposes of prosecution for an offence in the requested State. As we have seen Part 1 of the 2003 Act specifically deals with this instance elsewhere: s.22. It is also to be noted that the provision made by Article 24(2) of the Framework Decision (surrender subject to conditions where there are proceedings in the requested State) is in part dealt with by the express terms of s.23 of the 2003 Act. I say “in part” because s.23 only caters for the case where the person in question has already been sentenced in the requested State, and not the case where he is yet to be tried there.

[31]But there is a deeper distinction to be drawn between force majeure and humanitarian considerations on the one hand, and on the other the prospect of prosecution for a domestic offence in the requested State, for the purpose of ascertaining the true construction of s.47(4) and in particular the scope of the “reasonable cause” proviso. The first two considerations go only to whether there are particular circumstances – adventitious, contingent – which might prevent the extradition taking place within the required period stipulated under s.47(2) and (3). But the third, contrasting, consideration engages an altogether more strategic issue. The prospect of prosecution in the requested State before extradition to the requesting State does not merely mean that a date fixed for the defendant’s extradition within the required period cannot, as it happens, be kept. There may be no practical difficulty whatever in keeping the date. Rather what is involved is the postponement of the extradition for a reason of legal principle: a legislative choice (if such a choice has been made) that the domestic proceedings be disposed of first. That would involve a strategic ordering of two sets of proceedings; the imposition of a temporal hierarchy between them. I have already held, in addressing Mr Giffin’s subsidiary argument, that there is nothing in the statute to confer on the extradition judge the power or duty to decide what the order, or the hierarchy, should be. Equally in this present context it is clear in my judgment that as a matter of ordinary domestic statutory construction such a hierarchy, postponing the extradition to the domestic case, cannot possibly have been intended merely by the words “unless reasonable cause is shown for the delay”.

[32]This last objection to Mr Giffin’s argument calls up another point, perhaps a simpler one. The position for which he contends, as I have shown, is that the “reasonable cause” proviso in s.47(4) actually alleviates or extinguishes the s.47(2) duty. But so ambitious a proposition is unnecessary to the argument (which I have accepted) that the proviso may cover force majeure and humanitarian cases. They are instances where the delay in question may be quite limited, and they do not at all involve setting aside the s.47(2) duty. But if the instance where there are domestic criminal charges does yield that consequence (and it is inherent in Mr Giffin’s argument that it does), then an acceptance of Mr Giffin’s position involves adopting one rule for the first two instances and another, quite different, rule for the third. That would be unprincipled.

[33]My conclusion on the proviso to s.47(4) is I think all of a piece with the use in ss.35(5) and 36(8) of exactly the same expression. Those provisions, in their context, are plainly not concerned to enact an overarching rule of precedence between domestic criminal proceedings and the foreign proceedings which support the extradition. They are concerned with the possibility of unlooked-for slippage in the execution of the tight timetable for extradition which the statute requires.

[34]In short, then, Mr Giffin’s preferred interpretation of s.47(4) cannot be supported according to ordinary domestic canons of construction. If that is the result at the end of the day, the Governor must hold Kinderis until he is to be delivered for his extradition, rather than for his trial at the Cambridge Crown Court. I must next consider whether a different result should be arrived at in light of the Framework Decision.

CAN THE FRAMEWORK DECISION MAKE THE DIFFERENCE?

[35]It is clear that the requirement that national law should so far as possible be interpreted in conformity with Community law applies where the Community measure in question is a Framework Decision, such as that involved here, as surely as in the case of any other legislative act of the European Union. So much was held by the Court of Justice in Pupino (

Case C-105/03

)

[2006] QB 83

. In Dabas v High Court of Justice in Madrid, Spain

[2007] 2 WLR 254

Lord Brown of Eaton-under-Heywood cited paragraphs 43 and 47 of the court’s judgment in Pupino (which with respect I need not replicate), and continued:

“76. Put shortly, Pupino imposes upon national courts the same interpretative obligation to construe national law so far as possible to attain the result sought to be achieved by framework decisions as the ECJ in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135 had earlier imposed upon national courts to achieve the purpose of directives. And that in turn, as Lord Steyn explained in Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 45, is essentially the same strong interpretative obligation which section 3 of the Human Rights Act 1998 imposes (not just on courts, of course, but on all public authorities) to avoid breaches of the European Convention on Human Rights: the requirement ‘so far as it is possible to do so’ to read and give effect to legislation in a way which is compatible with Convention rights.”

[36]This interpretative obligation is very strong; but I entertain considerable doubt whether it is strong enough to allow a re-interpretation of s.47(4) of the 2003 Act (given the subsection’s language and context) along the lines proposed by Mr Giffin, even assuming that the Framework Decision made it plain beyond question that such a result was precisely what the European legislator intended.

[37]But such an assumption would in my judgment be mistaken in any event. Article 24(1) of the Framework Decision merely contemplates the conferment of a discretion upon the judicial authorities of the requested State to “postpone the surrender of the requested person so that he or she may be prosecuted in [the requested State]”. Such a discretion may be given or withheld by the domestic legislature. (I have already held, in addressing Mr Giffin’s subsidiary argument, that it is certainly not given to the extradition judge.) It may be given in some putative circumstances, and withheld in others. Whether it is given or withheld, or given in certain circumstances only, the domestic legislature will in any such event have acted perfectly consistently with the Framework Decision.

[38]It follows that there is in truth no conflict between the terms of the Framework Decision and the ordinary construction of the 2003 Act in relation to cases where there are unresolved domestic criminal proceedings in the requested State but the fugitive consents to extradition. The Framework Decision does not require that an extradition request be postponed to domestic proceedings. Mr Giffin, as I understood him, at length acknowledged as much. Accordingly there is nothing in the Framework Decision to promote, let alone dictate, any reading of the 2003 Act at variance with its interpretation according to ordinary common law principles.

CONCLUSION

[39]For all these reasons I would declare that the Governor must keep his prisoner Kinderis in custody pending his extradition to Lithuania, for which he must be delivered; and any duty to deliver him for his trial at the Cambridge Crown Court is accordingly postponed. In fact the Governor’s claim form seeks relief in the form of answers to four questions. I doubt whether it is necessary to return individual answers to each of them, but if my Lord agrees with the overall result I have indicated, no doubt we should hear counsel as to what form of relief is precisely appropriate.

[40]I should not leave this case without a further word about the policy, and the drafting, of the 2003 Act. It may very well be that it was intended that extant domestic criminal proceedings should have temporal precedence over an extradition request. That is clearly the effect of s.22 where it applies. I can see no sensible reason why there should be a different rule in a case where a fugitive consents to his extradition. As Mr Giffin submitted, he has no right to be extradited. It cannot have been intended that he should call the tune as to what proceedings he should face first. In these circumstances, the terms in which the Act is drafted have failed to make proper provision for the case where both elements – consent and extant domestic proceedings – are present. Mr Giffin’s submissions in this case have in my judgment amounted to a plea that we should make good the deficiency of the legislature. However, in such a matter as this it is not for us to go beyond our interpretative obligations given by the ordinary common law rules of construction and by Marleasing, Pupino, and s.3 of the Human Rights Act 1998, none of which assists Mr Giffin here. Indeed we owe a positive obligation so to confine ourselves. We cannot correct the mistakes of the legislature by adopting impermissible modes of interpretation.

Beatson J:

[41]The Extradition Act 2003 has thrown up a number of problems. This case reveals another such problem. It is the subordination of domestic criminal proceedings to foreign proceedings where the person whose extradition is sought consents to the extradition at an early stage of the process. This is so regardless of the relative seriousness of the charges in this country and those abroad. I respectfully agree with my Lord that, where an extradition order is made in such a case, section 47(4) of the 2003 Act does not extinguish the duty under section 47(2) to extradite before the end of the required period since the domestic prosecution does not constitute “reasonable cause” within section 47(4) for the delay.

[42]Accordingly, the Governor must keep Antanas Kinderis in custody pending his extradition to Lithuania and deliver him for this purpose. This duty takes priority over any duty to deliver him for his trial at the Cambridge Crown Court. This result is unsatisfactory for the reasons my Lord has given.

[43]While agreeing as to the outcome in this case I have unfortunately come to a different conclusion on Mr Giffin’s “fallback” submission. This submission has no impact on the result in the present case but in other cases it would provide a way for district judges to get round the problem procedurally pending a legislative solution. I consider that district judges can do this, albeit by a somewhat cumbersome method. In view of the practical implications, in the remainder of this judgment I give my reasons for so concluding.

[44]Article 24 (1) of the EU Framework Decision empowers the executing judicial authority to give primacy to domestic criminal proceedings. Parliament has utilised the power given in Article 24(1) to give primacy to domestic criminal proceedings in section 22 of the 2003 Act. Where a person whose extradition is requested has been charged with an offence in the United Kingdom, it is clear that his consent to extradition given after the commencement of the extradition hearing will not prevent the adjournment of that hearing and of the extradition pending the outcome of the domestic criminal proceedings. Indeed section 22(2) requires such an adjournment.

[45]The problem arises because the procedure in the 2003 Act involves not only the “extradition hearing” but also an earlier “initial hearing”, at which it is possible for the requested person to consent to extradition. The Act is silent as to the effect of domestic criminal proceedings where the requested person consents to extradition at the initial hearing. In the light of section 46(6) such consent appears to have the effect that, save where the requesting state agrees, extradition must be ordered within ten days. Precedence must therefore be given to the extradition and thus to the foreign proceedings. This is because whereas Article 24(1) of the Framework Agreement enables primacy to be given to domestic criminal proceedings at any time between the execution of a warrant and surrender of the person whose extradition is requested, section 22, on its conventional construction, only applies once “the extradition hearing” has started. Laws LJ has observed (at [40]) that he can see no sensible reason why there should be a different rule in the two categories of case and that it cannot have been intended that the fugitive should call the tune as to what proceedings he should face first. I respectfully agree.

[46]Mr Giffin’s “fallback” submission is that, notwithstanding the consent given at the initial hearing, a district judge can fix the extradition hearing. The judge would then be required, pursuant to section 22(2) to adjourn the extradition hearing pending the disposition of domestic criminal proceedings. The objection to this submission is that this submission ignores the force and the unqualified nature of section 46(6) of the Act. I have, however, come to the conclusion that, notwithstanding some artificiality, Mr Giffin’s argument is not wrong.

[47]The Act requires the fugitive to be brought before a judge within 48 hours of arrest: section 6(3). This initial hearing is governed by sections 7 and 8 of the Act, the material parts of which are set out in paragraph [8] of Laws LJ’s judgment. Section 8(1) states that the judge “must” do four things, including, (a) “fix a date on which the extradition hearing is to begin”, and (c) “give the [fugitive] the required information about consent”, that is inform that person that he or she can consent to the extradition. Generally speaking, the purpose of the extradition hearing is to decide whether an extradition order should be made. Where the fugitive consents, in the case of a category 1 territory the matter is “fast-tracked” and the provisions of sections 45 and 46 apply. By section 46(4), if the judge has not fixed a date under section 8 on which the extradition hearing is to begin, he is “not required to do so”, and, by section 46(5), if the extradition hearing has begun the judge is no longer required to proceed.

[48]At the initial hearing consent may be given either before or after a date has been fixed for the extradition hearing. These are respectively the first and third possible cases to which Laws LJ refers in paragraph [20] of his judgment. Where consent has been given after a date has been fixed for the extradition hearing Laws LJ considers that the extradition hearing should begin, but that by force of section 46(5) the judge is not required to proceed with it. Where, at the initial hearing, the judge fixes a date for the extradition hearing within the ten-day period specified in section 46(6) and the requested person consents to extradition, there is, however, a conflict between the mandatory terms of section 46(6) and the mandatory terms of section 22(2). The words of section 22(2) state that the judge “must” adjourn the extradition hearing pending the disposition of the domestic proceedings. But section 46 (6) states that the judge “must” within the ten-day period order the person’s extradition. Which of these provisions is to be given primacy? There appears to be potential for a similar conflict where consent is given before a date for the extradition hearing is fixed unless section 46(4), which states that the judge “is no longer required to” fix a date, is interpreted as requiring the judge not to fix a date.

[49]Laws LJ’s conclusion in effect prohibits the judge from fixing a date for the extradition hearing or from proceeding with the extradition hearing if the fugitive consents to the extradition. This gives primacy to section 46(6). Parliament, however, has notexpressly prohibited the judge from setting a date or proceeding with the hearing where consent has been given. It has only stated that the judge is “not required” to do so. For the reasons given below, I do not consider that sections 46(4) and (5) should be construed as resulting in a prohibition, that is that the judge is “required not to” respectively set the date or proceed with the extradition hearing after such consent.

[50]On the conventional construction of section 22, taken in isolation, Parliament has only utilised the power given in Article 24(1) of the Framework Decision to give primacy to domestic criminal proceedings where the extradition hearing has started before the requested person consents to extradition. However, section 46 does not expressly prohibit the fixing or the commencement of an extradition hearing where the fugitive has consented before that hearing. This suggests that it was not Parliament’s intention to preclude such a hearing and thus to prevent the operation of section 22 where the fugitive consents to extradition at an early stage. Since a scheme which makes the primacy of domestic proceedings depend upon the timing of the defendant’s consent appears to have no rational basis, the court should be slow to interpret section 46 in a way that produces such a result.

[51]I have referred to the direct conflict between section 46(6) and section 22(2) which arises in the third of the possible cases referred to by Laws LJ (paragraph [20]), where consent is given after a date for the extradition hearing has been fixed, and to the apparent conflict which arises in the first of the possible cases. There is no indication in the statute that this should be resolved by giving section 46(6) priority. In the third case, where a date for the extradition hearing has been fixed before consent, there is no indication that the conflict should be avoided by interpreting section 46(5) as requiring the judge not to proceed under sections 10 to 25 when the extradition hearing begins. There is also no indication that the apparent conflict should be avoided by interpreting section 46(4) as requiring the judge not to fix a date for the extradition hearing.

[52]For these reasons I consider that, in the context of the 2003 Act, it is not insupportable to interpret provisions which on their face relieve the judge of an obligation to do X as requiring him to do X in certain circumstances, or that it follows that where a judge is not (or no longer) required to do X in all circumstances, that he is required not to do X.

[53]In my judgment section 46(6) should be read as applying only where no extradition hearing has been fixed or where it has been decided not to proceed with the hearing. The fixing and commencement of the extradition hearing enables primacy to be given to section 22 and would avoid a distinction which appears to have no rational policy basis. It would also avoid fugitives being able to decide where they are to be tried first. Unless the judge decides not to proceed, at the commencement of the extradition hearing section 22 requires the hearing to be adjourned pending the disposition of the domestic proceedings. This method of getting round the problem procedurally is, as I have stated, cumbersome, involves a certain artificiality, and does not obviate the need for an amendment to the 2003 Act.

[54]In the present case no date was fixed for the extradition hearing. Accordingly this interpretation of the interaction of section 22 and section 46(6) does not apply because section 22 does not come into play and the duty to extradite to Lithuania takes priority over the domestic criminal proceedings.