Mucelli v Secretary of State for the Home Department [2008] EWHC 249 (Admin)

Case No CO/123/2008[2008] EWHC 249 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 18th January 2008
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
MR JUSTICE OUSELEY
Between
VULNET MUCELLIClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Edward Fitzgerald QC and Ben Cooper (instructed by Shearman Bowen & Co) appeared for CLAIMANTMs Melanie Cumberland (instructed by the Government of Albania) appeared for DefendantMr Ben Watson (instructed by the Treasury Solicitor) appeared for Interested Party
J U D G M E N T
[1]MR JUSTICE COLLINS: This is an application for habeas corpus challenging the detention of the claimant, Mr Mucelli. He is an Albanian citizen and his extradition was sought to Albania to serve a sentence of 25 years' imprisonment which had been imposed upon him following his conviction for murder. That conviction had taken place in his absence, the murder itself having allegedly been committed by him on 13th June 1997. The criminal proceedings were commenced in Albania very shortly after the murder was committed. In the meantime, the claimant left Albania and so it was that the charge was heard in his absence. His wife was also charged with murder. She was also tried in her absence but she was acquitted and he only was convicted.[2]Section 85 of the Extradition Act 2003 requires the district judge to consider whether if, in a case such as this, where he was convicted in his absence, he deliberately absented himself from his trial. If the judge decides that he did not deliberately absent himself, he must go on to decide whether he would be entitled to a retrial or, on appeal, to a review amounting to a retrial were he to be returned.[3]The district judge considered the facts and decided that he did not believe the claimant. His conclusion was this:
"I am satisfied that he left Albania to avoid prosecution. He must have been aware that a trial would follow. It is clear that he did not wish to attend. The defendant must have been aware that a trial would follow and the inevitable consequence if convicted. This, I am satisfied, was what he was trying to avoid."
He went on to say that he was satisfied that the claimant's motive for fleeing Albania was to avoid his trial in due course. He went on to decide that he was satisfied with the guarantee given in letters from the Albanian authorities, which sufficed to persuade him that the appellant would be entitled to a retrial if he were extradited; accordingly, he found against the appellant (as he then was) on the two matters that he had to consider under section 85 of the Extradition Act.[4]The claimant appealed to the Divisional Court and that appeal was heard on 15th November 2007. Richards LJ, who delivered the main judgment of the court, considered whether the substantive matters decided against him by the district judge under section 85 could be upheld. He decided that they could not. The court was moved to make that decision because of a previous decision of the Divisional Court in Government of Albania v Bleta [2005] 1 WLR 3576. Pill LJ in that case, giving the leading judgment, concluded that the expression in section 85(3) "deliberately absented himself from his trial" meant that it was necessary that there should be knowledge by the individual concerned that there was to be a trial and he was absenting himself from, effectively, the trial process. The decision was that the expression "his trial", contemplated a specific event and not the entire legal process. Accordingly, the court there applied a narrow construction to the wording in section 85(3).[5]Richards LJ in the instant case decided that he could not distinguish Bleta and that the court was bound to follow it. It was not decided, as was suggested, per incuriam, nor was it so obviously wrong, as to enable the court to find the principles set out in the Tal case applies.[6]I am bound to say I am far from persuaded that the decision in Bleta was correct, and it seems to me that the court in that case applied far too narrow a construction of the subsection. However, I recognise, as Mr Fitzgerald has submitted I should, that it is not for me in the context of these proceedings to go behind the decision of the Divisional Court and so I have to accept that the court indicated that the decision of the district judge that the claimant had deliberately absented him from his trial was one which could not stand. The court went on to consider whether the guarantee given by the Albanian authorities was sufficient and decided that it was not, and so the district judge was wrong on that basis as well.[7]However, the appeal was dismissed on the ground that the court had no jurisdiction to entertain it. The reason why it had no jurisdiction was because the solicitors appearing for the appellant had failed to serve the appeal, as they should have done, in time; and the court was asked to apply a discretion on the basis that it was not fair that the appellant should suffer as a result of a mistake from the solicitors and one which occurred through no fault of his, and where it was clear that the court's view was that the requirements to justify extradition did not exist. If the district judge had decided, as the Divisional Court indicated he should have done, that he had not deliberately absented himself from his trial and further had decided that he would not be entitled to a retrial, his obligation under section 85(7) was to have ordered the appellant's discharge. In those circumstances, Mr Fitzgerald submits that he is in the situation where he ought to have been discharged and in those circumstances it is unlawful for him to be detained in custody.[8]I should say that the Divisional Court certified two points of law of general public importance, the effect of which would be to enable the House of Lords, if the House accepted the petition which is being lodged, to consider whether the court was right to apply a very strict test to the need to serve proceedings in accordance with the rules and whether it was right in all the circumstances to regard the failure by the solicitor to serve in time as a bar to jurisdiction to hear the appeal. However, it is to be noted that in paragraph 87 of his judgment Richards LJ recognised that there was a discretion. What he said was this:
"A further consideration to which I think it right to have regard in a discretionary decision of this kind is that of substantive merit. For reasons that I have covered earlier in this judgment, an appeal, if entertained, should in my view succeed on the basis of the decision in Government of Albania v Bleta, which this court would have to follow. That consideration tells in favour of the exercise of the power under rule 6.9."
I interpose that that is the rule which enables the court to dispense with service in a particular case.

Lord Justice Richards continued:

"Again, however, I do not think that it should be decisive, given the strength of the principle telling against exercising the power so as to circumvent statutory time-limit. Moreover, I have to say that in terms of broader merit this case does not strike me as one of the most sympathetic to come before the court, having regard to the nature of the charge against the appellant, the fact that he was convicted after a trial at which he had legal representation and at which his wife was acquitted, and the judge's findings as to the appellant's motivation for leaving Albania and as to his subsequent conduct."
I do not need to go into the details of his subsequent conduct, but he had not acted in a way which showed that he was a particularly upstanding citizen.[9]Accordingly, it is clear that the court did consider whether its discretion should be exercised in favour of the appellant, notwithstanding its finding that the service was out of time and thus not in accordance with the statutory provisions, which meant that the court should generally have no jurisdiction.[10]Mr Fitzgerald submitted that the approach of the court in considering the exercise of its discretion was more constrained than the position before me when considering the lawfulness of the detention on the basis that he ought to have been discharged if the district judge had reached a correct decision. The court, which in its turn had no jurisdiction and so dismissed the appeal, has made it clear that in its view the district judge's decision on the substance of the appeal was wrong.[11]On behalf of the Secretary of State, Mr Watson, and Miss Cumberland on behalf of the Government of Albania, have submitted that the decision on the merits was obiter because the court had no jurisdiction and declined to exercise any discretion that it had. I suppose on one view it might have been desirable for the court not to have decided the matters which it had no jurisdiction to decide. Nonetheless, it is clear that the decision was not one which has, or is capable of having any, direct effect, because as I say, the appeal was dismissed. And it is pertinent to note that in section 116 of the 2003 Act Parliament has provided that a decision under that part of the judge -- that is the district judge -- or the Secretary of State may be questioned in legal proceedings only by means of an appeal under that part.[12]That there is a residual power to decide on the basis of habeas corpus is clear from a number of authorities. The one which is most pertinent is the recent case of Hilali v The Governor of Whitemoor Prison [2007] 3 WLR 621, a decision of the Divisional Court consisting of Smith LJ and Owen J. That was a case in which the extradition hearing had gone through appeals and an appeal had been dismissed by a Divisional Court and a petition for leave to appeal to the House of Lords had been refused. Mr Hilali was charged with conspiracy to commit terrorist offences in Spain. I think it was a conspiracy to murder which was alleged. It transpired subsequently that the convictions of his alleged fellow conspirator were quashed on the ground that the evidence of telephone interception had been inadmissible. For some reason the telephone conversations were referred to in the arrest warrant as being the evidence upon which the prosecutor relied in that case. So the point taken was that since Y's convictions had been quashed on the basis that the telephone interception was inadmissible, so there would be no evidence against Mr Hilali and so he could not be guilty of conspiracy to commit the murder in question. And that was treated as material evidence which had come to light after the appeal process had been concluded and therefore habeas corpus would lie.[13]It was submitted in that case on behalf of the Secretary of State that there was no such residual power to use habeas corpus because Parliament had set out in the Extradition Act an elaborate and detailed set of provisions to deal with appeals and the procedures generally and there was no scope, in the circumstances, particularly having regard to section 116, for using habeas corpus. Indeed, one of the purposes of the 2003 Act was to simplify and expedite the extradition process and that was particularly the case in relation to extradition to countries within the European Union, Spain being one such, under Part 1. This particular extradition is not under Part 1 because Albania is not a member of the European Union, but under Part 2. Nonetheless, the purpose behind the 2003 Act to seek to expedite and to simplify is still material.[14]In considering the circumstances in which habeas corpus might still lie, Smith LJ said this, at paragraph 39 of the judgment:
"In what kind of circumstances should the remedy be available? We are grateful for Mr Hardy's helpful submissions on this subject. He suggested that the threshold for habeas corpus will only be passed where there is some development which subverts either the basis on which the [European Arrest Warrant] was issued by the IJA or the basis on which the decision was made either at first instance or on the statutory appeal. Further, an application for habeas corpus would never be appropriate if it would have been possible for the relevant point to have been raised in the course of the statutory proceedings. He stressed that applications for habeas corpus must not be allowed to become a re-run of the statutory proceedings. The court must be vigilant to ensure that such applications do not become a tactical device to disrupt the scheme underlying the legislation or a means of extending the period before return. 40. We do not understand Mr Jones to disagree with those submissions and we accept them. The occasions when habeas corpus will be available will be very rare. It appears to us that the remedy itself provides the answer to the question when it should be available. Habeas corpus will only be appropriate where the continued detention of the applicant pursuant to the extradition process has become unlawful. That presupposes a fundamental change to the circumstances in which the (ex hypothesi) lawful order of the court had been made."
[15]Mr Fitzgerald relies upon the part of the sentence in paragraph 39 where Smith LJ indicated that the threshold for habeas corpus would be passed where there was some development which subverted the basis on which the decision was made either at first instance or on the statutory appeal. He submits that the development here is that on the statutory appeal the Divisional Court indicated and made clear that in its view the substantive findings of the district judge, which were the only basis for the extradition, were bad and therefore in the circumstances no extradition should take place.[16]The difficulty, in my judgment, with Mr Fitzgerald's case is that the Divisional Court quite clearly did consider whether it ought to exercise discretion in the circumstances in favour of the appellant and it decided that it should not. It recognised that the fact that he had been let down by his solicitors was a matter which went in his favour, but it had regard to the more general merits and decided that frankly there none, and it took the view that the statutory scheme was one which made it clear that as a general proposition time limits were essential. In all those circumstances it would be wrong to exercise discretion in the appellant's favour.[17]It seems to me that I am, in effect, being asked to say that that decision was one which should not stand. The submission made by Mr Fitzgerald is that in terms of Article 5, which clearly sets out the governing approach to questions as to whether detention is or is not unlawful, to maintain detention in the circumstances is certainly disproportionate and may well be regarded as arbitrary, as that expression is defined in the Strasbourg jurisprudence.[18]However, it is clear that it is justified in terms of our domestic law and time limits are regarded as an important factor in deciding whether any such law is proportionate. Strasbourg has upheld in earlier decisions the application of time limits in circumstances which have been regarded as leading to a manifestly harsh result. In all the circumstances, it seems to me the decision reached by the Divisional Court on the substantive matter is not one which prevails to make the continued detention unlawful. The reality is that the appeal was dismissed and in those circumstances the decision of the district judge stands. Since the decision of the district judge stands, the extradition is and remains not only lawful but inevitable, unless of course the House of Lords entertains the petition and reaches a contrary decision.[19]Mr Fitzgerald submits that it is wrong for the appellant to face the prospect of the substantial time likely to elapse before that decision is reached and remain in custody in the meantime. But that, I am afraid, is not a good reason for saying that he should be released. If the detention is lawful then the fact that it may take their Lordships some time to reach a decision is, I am afraid, not something which can assist him here.[20]I should add that Miss Cumberland makes the point that if their Lordships do entertain the petition, then argument will be raised and the Government of Albania will seek to persuade their Lordships that the decision of the court in Bleta was wrong and on the facts the district judge was correct to conclude, as he did, that Mr Mucelli deliberately absented himself from his trial. It seems to me that that is a matter which may well be considered because, as I have already indicated, speaking for myself, I am far from persuaded that the decision in Bleta was a correct one. In all those circumstances, I am satisfied that the detention is not unlawful and accordingly I dismiss his application. My attention has been drawn to the provisions of Order 54 of the Rules of the Supreme Court which still apply in the context of habeas corpus applications. Paragraph 4(2) provides that where such an application -- that is an application for a writ of habeas corpus -- in criminal proceedings is heard by a judge, and the judge does not order the release of the person restrained, he shall direct that the application be made by claim form to a Divisional Court of the Queen's Bench Division. Accordingly, that appears to indicate that a single judge has no power to dispose of a habeas corpus claim unless he finds in favour of the claimant, in which case under RSC 54(4)(1) he does have power to direct release.[21]Having regard to the extension of the circumstances in which single judges can hear cases, and bearing in mind this case came before me as a single judge because it needed, for obvious reasons, to be heard speedily and it was simply not possible to arrange for it to be heard by the Divisional Court speedily enough, it seems to me that those provisions of Order 54 need reconsideration as soon as possible. But the order is there and I cannot ignore it. What I can do, however, and what I propose to do, is to deal with it in this way; that is to say, to dispense with the need for a claim form -- which I have power to do under the general powers of the rules -- to put this to a fellow judge and if he agrees with the judgment that I have given then the order refusing habeas corpus will be an order of a Divisional Court, and that will enable the claimant, if so advised, to exercise any rights of appeal that he may have to the House of Lords directly.[22]MR FITZGERALD: Yes, my Lord, I am content for that course to be taken. Obviously in the event that your brother judge does not agree with obviously (inaudible) for further argument.[23]MR JUSTICE COLLINS: Then it will have to go to a Divisional Court. If the judge doesn't agree then it would be right that it should go before a Divisional Court, obviously.[24]MR FITZGERALD: My Lord, yes. In those circumstances, yes, we would consent to that. My Lord, do you have any jurisdiction over legal aid in these matters?

MR JUSTICE COLLINS: Yes.

[26]MR FITZGERALD: I understand that we made an application but that has been the decision because of the speed for (inaudible).

MR JUSTICE COLLINS: I think I have power to grant you leave.

[28]MR FITZGERALD: Would your Lordship grant us legal aid?

MR JUSTICE COLLINS: Or representation order, is usual in criminal proceedings.

[30]MR FITZGERALD: I know an application was made. Indeed I think it was made -- my instructing solicitor -- I know because my clerk had mentioned it -- had made an application but I didn't realise it hadn't been granted.[31]MR JUSTICE COLLINS: I think the Legal Services Commission deals with these. The court deals with applications in extradition cases and extradition appeals, because I make representation orders regularly in extradition appeals. But I do not think that applies to habeas corpus applications. I think those are a matter for the Legal Services Commission. What I will do is to indicate that in my view it is appropriate that you should be granted legal aid and that it should cover you and your junior.[32]MR FITZGERALD: I'm obliged.

MR JUSTICE COLLINS: But I don't think I can bind or make any direct order --

[34]MR FITZGERALD: We will convey your Lordship's view.[35]MR JUSTICE COLLINS: You are very welcome to convey my views, but obviously subject to means, et cetera.[36]MR FITZGERALD: The procedure then would be that we would await, as it were, confirmation of your Lordship's decision and in the event that it's confirmed by your brother judge, we --[37]MR JUSTICE COLLINS: What I think will be sensible, Mr Fitzgerald, is for me to await -- and I will ask the shorthand writer to be good enough to produce a transcript as soon as possible, because until I get a transcript I won't be able to show a fellow judge what I have said, which I suspect will be sometime next week that I get the transcript. I can then show it and then we can make the formal order which I suspect will be probably the week after next, and then your time et cetera will run from then. You will also have available then a copy of the transcript.[38]MR FITZGERALD: My Lord, thank you very much.

MR JUSTICE COLLINS: I think that is a simple way of dealing with it. ****

[40]MR JUSTICE OUSELEY: Collins J has shown me the draft transcript of his judgment and has asked me, if I agree with its substance and the procedure proposed to comply with RSC 54(4)(1), to deal with this matter with him as part of a Divisional Court.[41]I have read the draft judgment and I agree with it. The submission that the discretionary power which Richards LJ refused to exercise in favour of the claimant is narrower than the power which this court has, if correct, is beside the point here. Richard LJ's decision was based on his view of the legal strength of the claimant's arguments on the two issues on which he found obiter in his favour, together with his appraisal of the overall merits of the case and the delay. There is no new material urged on us in the exercise of our powers. We are in effect invited to disagree with and reverse Richard LJ. We decline to do so.[42]In the light of the explicit acceptance by Mr Fitzgerald of the procedure proposed by Collins J for dealing with the procedural issue created by RSC 54(4), I am also content to deal with it in this way.