Caldarelli, R (on the application of) v Westminster Magistrates Court [2009] EWHC 107 (Admin)

[2009] EWHC 107 (Admin)

Case No CO/8464/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

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

Date 27/01/2009

Before

LORD JUSTICE TOULSON

MR JUSTICE FORBES

Between

THE QUEEN ON THE APPLICATION OF RAFFAELE CALDARELLIClaimant

(Transcript of the Handed Down Judgment of

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John Hardy QC and Mark Summers instructed for Appellant/Claimant

David Perry QC and Melanie Cumberland instructed for Respondent/Interested Party

Hearing Hearing dates: 28 November 2008

Judgment

[1]These appeals under s 26 of the Extradition Act 2003 (“the Act”), and application for judicial review relate to three European Arrest Warrants (“EAW’s”). They represent the latest stage in the attempts by the Court of Naples to obtain the extradition of Mr Caldarelli (to whom I will refer as the appellant) and his attempts to resist his extradition.

[2]The earlier history was set out by Laws LJ in the Divisional Court in Caldarelliv the Court of Naples

[2007] EWHC 1624 (Admin)

, and summarised by Lord Bingham in the House of Lords

[2008] UKHL 51

, which upheld the decision of the Divisional Court. Those judgments also contain a resume of the procedure for extradition under the Act, which was passed to give effect to the UK’s obligations under the Council of the European Union’s Framework Decision of 13 June 2002.

[3]The Divisional Court dismissed an appeal under s26 of the Act against an extradition order made by Senior District Judge Workman at the City of Westminster Magistrates Court on 23 February 2007, based on an EAW referred to in these proceedings as EAW 4 which had been issued by Judge Saraceno at Naples on 3 December 2005. The decision of the Divisional Court was upheld by the House of Lords. EAW 4 related to the appellant’s conviction in June 2005 for involvement in the smuggling of drugs into a prison where he was an inmate. The appellant had absented himself from the trial but was represented at it by lawyers. His conviction resulted in a sentence of 11 years’ imprisonment. Despite his conviction, technically EAW 4 was an accusation warrant and not a conviction warrant. (The distinction was crucial in the previous proceedings, because EAW 4 was expressed to be an accusation warrant, and it was argued unsuccessfully by the appellant that it ought to have been a conviction warrant).

[4]On 20 May 2008 (2 weeks before the House of Lords was due to hear the appellant’s appeal in relation to EAW 4) the Court of Naples ordered the appellant’s release due to expiry of prosecution time limits. Steps were promptly taken to have the appellant’s case listed at the City of Westminster Magistrates Court on 22 May in order for the legality of his continued remand in custody to be considered.

[5]Some weeks earlier, on 14 March 2008, Judge De Simone in the court of Naples had issued an accusation EAW (referred to in these proceedings as EAW 6 or the drugs warrant) which alleged that the appellant had been involved in unlawful drug activities during 1997 to 1998. Under the Act an EAW requires to be certified by SOCA (as the designated authority under s 2(7)) before a person can be arrested under it. The drugs warrant was certified by SOCA on 21 May 2008.

[6]On 22 May 2008 a conviction EAW (referred to in these proceedings as EAW 5 or the Mafia warrant) was issued by the office of the Prosecutor General of Naples and was certified by SOCA on the same day. This was in respect of proceedings which had resulted in a first instance judgment against the appellant on 2 December 2004 and a final judgment of the Court of Appeal in Naples on 28 March 2008. The appellant had been sentenced to a term of imprisonment of 8 years.

[7]On 22 May 2008 the appellant was arrested pursuant to EAWs 5 and 6 in the cells of the City of Westminster Magistrates’ Court.

[8]The speeches in the House of Lords upholding the validity of EAW 4 were delivered on 30 July 2008.

[9]On 2 September 2008 the Senior District Judge ordered the appellant’s extradition to Italy pursuant to EAWs 5 and 6. He gave his reasons in writing. The appellant now appeals against those extradition orders under s 26 of the Act.

[10]Pending the outcome of the extradition process in relation to EAWs 5 and 6, no steps were taken after the judgment of the House of Lords to effect the appellant’s extradition under EAW 4.

[11]Section 36 of the Act provides a time limit within which a person who has unsuccessfully appealed against an order for extradition to a category one territory (e.g. Italy) must be extradited. Where there is an appeal to the House of Lords, the relevant period is 10 days from the date of the decision. In particular, the section provides:

“(2) The person must be extradited to the category one territory before the end of the required period. … (8) If subsection 2 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.”

[12]In this case the required period expired at midnight on Friday 8 August 2008. On the following day an application for the appellant’s discharge pursuant to s 36(8) was lodged with the City of Westminster Magistrates’ Court.

[13]On 30 September 2008 the Senior District Judge refused the application for reasons which he again gave in writing. He held that there was reasonable cause for the delay in extraditing the appellant to Italy while extradition proceedings were in progress in relation to EAWs 5 and 6. The appellant applies for judicial review of that decision.

EAW 5 (The Mafia Warrant)

[14]Mr Hardy QC wanted to argue that the Mafia warrant was invalid because it failed to meet the requirements of s2(6)(b) and s2(6)(c) of the Act. Section 2(6) lists information which has to be contained in a conviction warrant. The required information includes:

“(b) particulars of the conviction; (c) particulars of any other warrant issued in the category one territory for the person’s arrest in respect of the offence.”

[15]The argument under s2(6)(c) was going to be that the Mafia warrant was defective because it failed to include particulars of three earlier EAWs (EAWs 1,2 and 3) which themselves had been defective and in respect of which the appellant had been discharged by the City of Westminster Magistrates’ Court prior to the issue of the Mafia warrant. There was conflicting English judicial authority on the proper interpretation of s2(6)(c). However, on the day before the hearing of the present appeals, another division of this court (Dyson LJ and Pitchford and Gross JJ) gave judgment in the case of Louca

[2008] EWHC 2907 (Admin)

, in which it held after analysis of the Framework Decision that there was no requirement for an EAW to contain particulars of an earlier EAW on which it was not based. Mr Hardy recognised that we are bound by that decision, but he did not formally abandon the point because he wished to preserve the possibility of an appeal. The same point also applies in relation to the drugs warrant. That being an accusation warrant, the information required to be contained in it is listed in s2(4), and s2(6)(c) is mirrored in s2(4)(b).

[16]In relation to the Mafia warrant there remains an argument under s2(6)(b). It was submitted that the warrant was defective because it did not indicate the date of conviction or sufficiently identify the basis of the conviction. This was not a point argued before the Senior District Judge and in my judgment it has no merit. It is unnecessary to do more than to quote the following passages from the warrant:

“Decision on which the warrant is based:… Enforceable judgment: Court of Appeal of Naples 3rd Division issued on 11 October 2006 final on 28 March 2008. … Offences: This warrant relates to in total two offences… Mr Caldarelli has been found guilty, by final judgement, of setting up and organising, in Naples, starting from January 1999 until the issue of the first-instance judgement (2.12.04), a camorra-type criminal association capable of fighting against, and replacing, the criminal leaders…who held control of the district called “Mercato di Napoli” before the said association, promoted and setup by Mr. Caldarelli, referred to as “Clan Caldarelli delle Casa Nuova” took steps to counter such primacy. To attain the said goal, the said camorra-type association systematically planned and committed murders, extortions and actually managed drug trafficking through its members by using weapons, including lethal weapons, and by intimidating a large number of persons…The Court of Naples had sentenced him to a term of imprisonment of twelve years for both offences ascribed to him. In the appeal proceedings, Mr. Caldarelli, through a special power of attorney given by him to his defence lawyers, renounced all appeal grounds against the judgement of conviction and agreed with the Prosecution to a term of imprisonment of eight years which is now final. Nature and legal classification of the offence(s) and the applicable statutory provision/code: 1) 416bis paragraph 1 – promoter - 2, 3, 4 and 5 of the Criminal Code (aggravated camorra-type criminal association); 2) 110, 81 2nd paragraph of the Criminal Code, 10-12 of Law no. 497/74, 7 of Law no. 203/91 (aggravated and continued possession and carrying of war weapons using a mafia-type method)”

These particulars are amply sufficient. Offences: This warrant relates to in total two offences… 1) 416bis paragraph 1 – promoter - 2, 3, 4 and 5 of the Criminal Code (aggravated camorra-type criminal association); 2) 110, 81 2nd paragraph of the Criminal Code, 10-12 of Law no. 497/74, 7 of Law no. 203/91 (aggravated and continued possession and carrying of war weapons using a mafia-type method)”

EAW 6 (The drugs warrant)

[17]Aside from the point about the absence of reference in the warrant to previous EAWs, Mr Hardy advanced three objections to the appellant’s extradition under this warrant: 1. That it gave insufficient particulars of the alleged offence to satisfy the requirements of s2(4)(c); 2. that the warrant was vitiated by including an additional un-particularised offence of robbery; and 3. that the appellant’s extradition would be unjust and oppressive because of lapse of time and its consequences.

[18]Section 2(4)(c) requires an accusation EAW to contain “Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and the place at which he is alleged to have committed the offence and any provision of the law of the category one territory under which the conduct is alleged to constitute an offence.”

[19]The warrant included the following particulars:

“Decision on which the European arrest warrant is based: Arrest warrant or judicial decision having the same effect: Type: preventive detention order issued by the COURT OF NAPLES – INVESTIGATING MAGISTRATE’S OFFICE – section XXVI – Mr SERGIO MAROTTA on 26th February 2007. … The preventive detention order has been issued for 1 offence: CHARGE A) of the offence punished as provided for under section 110;81 of the Criminal Code, section 73 of the decree of the President of the Republic nr. 309/90, section 7 of the law nr. 203/1991 (drugs trafficking, aggravated by the purpose aiming at facilitating mafia-like associations in complicity with others): 20 year imprisonment … Offences: This warrant relates to in total one offence. Description of the circumstance(s) in which the offence(s) was (were) committed, including the time, place and degree of participation in the offences(s) by the requested person: Section 110, 81 of the Criminal Code, section 73 of the decree of the President of the Republic nr. 309/1990 and section 7 of the law nr. 203/1991 because, in complicity with Zampilla Carmine and Figliolino Enrico (meanwhile, the two have died), by means of more executive actions aiming to a similar criminal programme, Caldarelli Raffaele illegally detained cocaine-like drugs. He transferred an unspecified quantity thanks to the intermediation of the above-mentioned people, Zampilla and Figliolino, to Riso Fabio who used to receive it on behalf and in the interest of the clan Giuliano, in order to distributing it later among the sellers. With the aggravating circumstances of having committed the fact in order to facilitate the activities of the camorra clans Caldarelli and Giuliano. In Naples, starting from 1997 – 1998 According to the carried out investigations, in two occasions, during 1997-1998, Caldarelli – chief of the camorra group “Caldarelli” – used to supply the camorra group “Giuliano” with cocaine-like drugs. In the case in point, Caldarelli, whose camorra group used to operate in the area called “Case Nuove”, in Naples, used to avail himself of two people, Zampilla Carmine and Figliolino Enrico, to supply the group “Guiliano” that used to operate in the area of “Porcelia” in Naples. They were both members of the camorra group “Caldarelli” and carried the drugs to the group “Giuliano”, delivering it to Riso Fabio. The latter was a member of the group Guiliano. Furthermore, Riso Fabio used to make the payments to Caldarelli, always thanks to the intermediation of Figliolino.”

Arrest warrant or judicial decision having the same effect: The preventive detention order has been issued for 1 offence: Offences:

In Naples, starting from 1997 – 1998

[20]The standard form of EAW, annexed to the Framework Decision, includes a list of offences under the heading “if applicable, tick one or more of the following offences punishable in the issuing Member State by custodial sentence or detention order of a maximum of at least 3 years as defined by the laws of the issuing Member State”.

[21]On the warrant X was marked against “illicit trafficking in narcotic drugs and psychotropic substances” and also against “organised or armed robbery”. The latter mark was erroneous, and the warrant had nothing else in it about robbery.

[22]As to the criticisms made about the form of the warrant, I agree with the Senior District Judge that the description of the offence meets the requirements of the Act in that it gives sufficient particulars of the time (1997-1998), place (Naples) and circumstances of the alleged offence. I also agree with him that it would have been obvious to anyone reading the full document that the X marked against “organised or armed robbery” was a plain error, and I agree with his conclusion that the warrant itself was valid for (and only for) the alleged offence of drug trafficking.

[23]As to injustice and delay, s11(1)(c) requires a judge considering an application for an extradition order to decide whether the person’s extradition is barred by reason of the passage of time. Section 14 provides:

“A person’s extradition to a category one territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).”

[24]The Senior District

Judge ruled on this issue as follows:

“The events giving rise to this allegation are said to have occurred during 1997 and 1998 and any trial in relation to these allegations will take place well over 10 years from the date when they were alleged to have been committed. Had the Prosecuting Authorities in Italy had sufficient evidence to pursue those charges in 1997 and 1998 the passage of time submission would have carried significant force. However, the Issuing Judicial Authority has provided further information and it is apparent that the Defendant was first implicated in March 2004 with evidence being gathered until January 2005. The investigation itself was extremely large and involved some 202 defendants. Taking into account the size of the investigation and the fact that all the evidence was not available before January 2005, I am satisfied that there has been no culpable delay on the part of the Issuing Judicial Authority. I have to consider whether the delay that has occurred could now make it unjust to return the defendant to stand trial in Italy. I have not been provided with the nature of the defendant’s defence to these allegations although I have read the letter from the defendant’s Italian lawyers. I accept that inevitably, with the passage of time, memories fade and in this case, that 2 potential witnesses or co-defendants have died. However I cannot conclude that it would make it unjust for the defendant to be returned to stand his trial”

[25]Mr Hardy repeated the submission made to the Senior District Judge. He also criticised, in particular, the lapse of over a year between the issuing of a “preventive custody order” on 26 February 2007 and the issue of the EAW on 14 March 2008 (during which time the appellant was, of course, in custody in England).

[26]I am not persuaded that the passage of time over that period makes it unjust or oppressive that the appellant should now be extradited to Italy on this warrant, and on the broader issue of injustice or oppression I agree with the conclusion of the Senior District Judge. There was some discussion in argument whether the role of this court in relation to this issue is one of review or of making a decision de novo, but it is unnecessary to say more about that because I would reach the same conclusion on either approach.

[27]For those reasons I would dismiss the appeals against the extradition orders made under EAWs 5 and 6.

EAW 4: Judicial Review of the Senior District Judge’s decision under s36(8)

[28]The Senior District Judge’s reasoning was in summary as follows: 1. EAWs 5 and 6 were validly and properly issued in good faith. 2. However, the appellant was entitled to contest the extradition proceedings under them, and he was entitled to be present and to give evidence at the extradition hearing. 3. His enforced removal within 10 days after the decision of the House of Lords would have deprived him of the opportunity of doing so. 4. In those circumstances, there was reasonable cause for the delay in surrendering the appellant to the court in Naples in respect of EAW 4.

[29]Mr Hardy submitted that the Senior District Judge took a wrong approach. He submitted that the time limit laid down in s36 was to be complied with strictly, and that “reasonable cause for the delay” in subsection (8) should therefore be construed restrictively, as it was in Governor of Wandsworth Prison v Kinderis

[2008] QB 347

[2007] EWHC 998 (Admin)

, in order to comply with Article 23 of the Framework Decision. He also submitted that there were various other ways in which the Issuing Judicial Authority (“IJA”) could have proceeded.

[30]Article 23 is headed “Time limits for the surrender of the person” and states:

“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 control of any of the Member States, the executing and Issuing Judicial Authorities should immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place in 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 the expiry of the time limits referred to in paragraphs 2-4, if the person is still being held in custody he shall be released.”

[31]In Governor of Wandsworth Prison v Kinderis a Lithuanian national was remanded in custody for trial at the Crown Court on charges of false imprisonment and attempted rape. While in custody he was arrested under two EAWs issued by the Lithuanian authorities seeking his extradition on charges of rape and sexual assault in Lithuania. The defendant consented to his extradition under s45 of the Act and an order for his extradition to Lithuania was made under s46. The prison governor found himself faced with conflicting obligations and so brought proceedings for a declaration whether he should hold the defendant pursuant to the order that he be remanded in custody pending trial at the Crown Court or pursuant to the order that he be remanded in custody pending his extradition. Where an extradition order is made by consent, s47 contains provisions about the time limit for extradition analogous to those of s36. In particular, s47 provides:

“(2) the person must be extradited to the category one territory before the end of the required period. … (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.”

[32]The court held that the extradition order took precedence over the domestic prosecution. The Home Secretary’s argument to the contrary was based on s47(4). Counsel for the Home Secretary suggested that there were two possible ways of interpreting s47(4): in circumstances where reasonable cause was shown for the delay, either the duty to extradite “before the end of the required period” was extinguished or the duty remained but the remedy of discharge was barred. The difference (if any) in effect would seem to be that if the latter construction were preferred (i.e that the duty remains but the statutory remedy of discharge is barred where there has been reasonable cause for the delay) the person concerned might in theory be able to seek an alternative remedy by way of judicial review of the Home Secretary’s decision not to extradite him within the required period (despite the existence of reasonable cause within the meaning of the subsection). It seems to me improbable that Parliament can have intended such an effect, but it does not appear to have been a matter explored in Kinderis nor was it explored in argument in the present case. There are signs that the two members of the court in Kinderis may have approached the matter differently. Laws LJ (para 28) said that subsection (4) was concerned only to provide for the consequences of non-compliance with the s47(2) obligation, and that it could not be read “as in some way alleviating or extinguishing the section 47(2) obligation”. Beatson J (para 41) said :

“I respectfully agree with Laws LJ that, where an extradition order is made in such a case [i.e. a case in which there is also an ongoing domestic criminal prosecution], 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.” [Emphasis added]

[33]As the court observed in that case, the language of the Act is highly engineered and not free from difficulty. But, if it were material, I would be inclined to follow the approach of Beatson J. In terms of the section with which we are concerned, I recognise the force of the linguistic argument that the duty s36(2) is expressed in unqualified terms, and that s36(8) applies in its terms only to the position where that obligation has not been fulfilled (in which case there is a potential remedy of discharge, but not if reasonable cause has been shown for the delay). But looking at the purpose of the section as a whole, I would be inclined to see the relevant provisions as providing(a) a standard timetable for the execution of the order

(b) the appropriate remedy if that timetable is not complied with and

(c) a qualification if there has been reasonable cause for the delay. Be that as it may, in the present case there is no application for judicial review of the Home Secretary’s conduct in not extraditing the appellant on EAW 4, on the footing that even if the Senior District Judge was right not to discharge the appellant because there was reasonable cause for the delay, nevertheless the Home Secretary remained under an unqualified obligation to extradite him. The application for judicial review is solely of the Senior District Judge’s decision. Therefore the point of construction just discussed is academic.

[34]Mr Hardy did, however, rely on various passages in the judgment of Laws LJ in Kinderis for the proposition that reasonable cause for the delay should be construed narrowly as applying to cases where there are serious practical or humanitarian problems about effecting extradition and, conversely, should not be extended to cover situations where there would be no practical difficulty in executing the extradition order and the only reason for not doing so is a judgment call about whether some other proceedings should be given priority. In Kinderis the other proceedings were domestic criminal proceedings and it was an influential factor in the court’s decision that s22 of the Act gave primacy to domestic criminal proceedings in certain situations but not that with which the court was concerned.

[35]Mr Perry QC on behalf of the Court of Naples said that there was a material distinction between the circumstances in Kinderis, where there was a conflict between the extradition proceedings and the domestic proceedings, and the circumstances of this case in which all the criminal proceedings had been instituted by the same IJA and EAWs 4, 5 and 6 all seek the appellant’s extradition to Italy. Mr Hardy submitted that this was not a material distinction in terms of the proper application of s36(8), and that the legislation itself allows four mechanisms for the IJA to address the difficulties which have arisen in this case. These are: 1. withdrawal of EAW 4 and its substitution by a fresh warrant containing omnibus particulars of the matters on which the appellant’s surrender is sought; 2. an application to the House of Lords under s36(3)(b) to have set a later date for the extradition period; 3. an application to the District Judge under s44(4)(b) to defer the appellant’s extradition under EAW 4 until after the disposal of EAWs 5 and 6; 4. after extradition of the appellant on EAW 4, a request under s54 for consent to his being dealt with in Italy for the matters specified in EAWs 5 and 6.

[36]I do not think that it is possible to detect from the terms of the Act a legislative intention about how an IJA in the position of the Court of Naples ought to proceed.

[37]The first of Mr Hardy’s suggested mechanisms would involve more paperwork but it would not speed things and in some cases might slow them.

[38]The second suggestion is founded on s36(3). This provides that where an extradition order is upheld on appeal:

“The required period [for the person to be extradited] is – (a) 10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or (b) if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.”

[39]The relevant court in this case would be the House of Lords. However, at the time when the House of Lords reached its decision, there was no way in which anyone could know the date on which the judicial proceedings in relation to EAWs 5 and 6 would be finally concluded and therefore no way of knowing what should be the starting date to be specified under s36(3)(b) if the purpose of the order was to extend time while proceedings on the other extradition warrants were continuing.

[40]Mr Hardy’s third suggestion involves s44. This section is headed “Competing Part 1 Warrants” and provides:

“(1) This section applies if at any time in the relevant period the conditions in subsection (3) are satisfied in relation to a person in respect of whom a Part 1 Warrant has been issued. (2) The relevant period is the period – (a) starting when the person is first brought before the appropriate judge following his arrest under this Part; (b) ending when the person is extradited in pursuance of the warrant or discharged. (3) The conditions are that – (a) the judge is informed that another Part 1 warrant has been issued in respect of the person; (b) the other warrant falls to be dealt with by the judge or by a judge who is the appropriate judge in another part of the United Kingdom; (c) the other warrant has not been disposed of. (4) The judge may – (a) order further proceedings on the warrant under consideration to be deferred until the other warrant has been disposed of, if the warrant under consideration has not been disposed of; (b) order the person’s extradition in pursuance of the warrant under consideration to be deferred until the other warrant has been disposed of, if an order for his extradition in pursuance of the warrant under consideration has been made. (5) If the judge makes an order under subsection (4) and the person is not already remanded in custody or on bail, the judge must remand the person in custody or on bail. (6) If the judge remands the person in custody he may later grant bail. (7) In applying subsection (4) the judge must take account in particular of these matters – (a) the relative seriousness of the offences concerned; (b) the place where each offence was committed (or was alleged to have been committed); (c) the date on which each warrant was issued; (d) whether, in the case of each offence, the person is accused of its commission (but not alleged to have been convicted) or is alleged to be unlawfully at large after conviction.” (a) starting when the person is first brought before the appropriate judge following his arrest under this Part; (b) ending when the person is extradited in pursuance of the warrant or discharged. (3) The conditions are that – (a) the judge is informed that another Part 1 warrant has been issued in respect of the person; (b) the other warrant falls to be dealt with by the judge or by a judge who is the appropriate judge in another part of the United Kingdom; (c) the other warrant has not been disposed of. (4) The judge may – (a) order further proceedings on the warrant under consideration to be deferred until the other warrant has been disposed of, if the warrant under consideration has not been disposed of; (b) order the person’s extradition in pursuance of the warrant under consideration to be deferred until the other warrant has been disposed of, if an order for his extradition in pursuance of the warrant under consideration has been made. (5) If the judge makes an order under subsection (4) and the person is not already remanded in custody or on bail, the judge must remand the person in custody or on bail. (6) If the judge remands the person in custody he may later grant bail. (7) In applying subsection (4) the judge must take account in particular of these matters – (a) the relative seriousness of the offences concerned; (b) the place where each offence was committed (or was alleged to have been committed); (c) the date on which each warrant was issued; (d) whether, in the case of each offence, the person is accused of its commission (but not alleged to have been convicted) or is alleged to be unlawfully at large after conviction.”

[41]It is common ground that in this case the appropriate judge referred to in the section means the Senior District Judge.

[42]The headings and marginal notes to sections are admissible as aids to construction in that they provide signposts to the legislature as to the nature of the mischief or subject matter at which the drafter’s work was aimed. (See R v Montila

[2004] UKHL 50

[2004] 1 WLR 3141

, paras 31-36, per Lord Hope.) I accept Mr Perry’s submission that in this case both the heading and the language of the section, when read as a whole, point to the section being intended to cover the situation where EAWs are issued by different IJAs. They are “competing warrants” because they seek the extradition of the person concerned to different territories. The structure of the section enables the court to deal with them consecutively but requires the court in deciding which warrant should be given priority to take into account a number of factors, the first of which is the relative seriousness of the offences concerned. By contrast, where a single IJA issues two or more warrants seeking the extradition of the same person, they are no more “competing warrants” than if the IJA had issued a single warrant seeking the person’s extradition in relation to more than one offence. There is no need or purpose in such a situation for the court to defer consideration of one warrant until the other has been disposed of, rather than proceeding with them concurrently. And there is no purpose in the court having to assess the relative seriousness of the different charges. So despite Mr Hardy’s attractively presented argument, I do not consider that s44 was intended by Parliament to apply in the present situation.

[43]If it were relevant, it is clear that the procedure could be activated after a person’s extradition has already been ordered in pursuance of another warrant (s44(4)(b)) until such time as the person is actually extradited (s44(2)(b)). Mr Hardy initially accepted that it would follow that at the time of the appellant’s application to the Senior District Judge under s36(8) the judge could have stayed the appellant’s extradition under EAW 4 until after final disposal of EAWs 5 and 6, and so refused the application under s38(6); and he further accepted that it would be possible even now for the s44 procedure to be implemented. If so, it would have questionable whether this court ought to have prolonged these already extensive extradition proceedings by granting leave to apply for judicial review (which involves the exercise of a discretion) in circumstances where there was no real prospect that to do so would make a difference in terms of the ultimate practical outcome, but only in the manner by which the Senior District Judge threaded his way through the Byzantine complications of the legislation. On further reflection, Mr Hardy submitted that an order could not be made under s44(4) when the period prescribed under s36 for the person’s extradition on the warrant under consideration had itself expired, but I can see no justification for such a limitation under the words of the statute. However, I have already stated that in my view s44 is not relevant in the present case.

[44]Mr Hardy’s fourth suggestion relates to s54. Under Article 27 of the Framework Decision a person extradited may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered, but this rule is subject to certain exceptions. One of the exceptions is where the executing judicial authority which has surrendered the person gives its consent in accordance with Article 27, para 4. The provisions of the Framework Decision and the Act in relation to the giving of such consent broadly mirror the provisions which would apply if the person’s extradition were being sought in respect of the relevant offence. Sections 54 and 55 of the Act deal with the position where a person has been extradited from the UK to a category one territory and a request is made by the relevant authority in that territory for consent to the person being dealt with for another offence. There has to be a hearing at which the judge has to decide (under s55(5)) whether he would have ordered the person’s extradition if the person were in the UK. The person concerned is entitled to be represented but is self evidently not able to be present or to give live evidence.

[45]If the Senior District Judge had discharged the appellant in respect of EAW 4 because he had not been extradited under that warrant within 10 days after the decision of the House of Lords, it would have been open to the IJA to make a later request under s54 for permission to proceed against him in respect of the subject matter of EAW 4.

[46]So I come to the key question whether in the circumstances the Senior District Judge was wrong to conclude that there was reasonable cause not to have extradited the appellant under EAW 4 at a time when extradition proceedings were under way in respect of EAWs 5 and 6, because it was better that such proceedings should run their course with the appellant able to attend court and give evidence, if he wished to do so, rather than to proceed under s54 after his enforced departure.

[47]Mr Hardy submitted that the Senior District Judge was wrong in the scope which he gave to the words “reasonable cause for the delay” and that the appellant ought not to be deprived of the benefit of the normal time limit on the ground that somebody else (whether the IJA, the Home Secretary or the Court) saw fit to regard it as in the appellant’s interest that the other extradition proceeding should continue before his extradition.

[48]In deciding whether the Senior District Judge erred in law, it is right and proper to have regard to the overall purpose of the Framework Decision, which is to try to ensure the swift and orderly extradition between Member States of persons against whom criminal proceedings have been instituted in the requesting State for a serious offence, subject always to proper respect for the humanitarian rights of the person concerned. Co-operation and mutual trust between Member States is important for its effective operation. The Framework Decision does not specifically address the situation where an IJA issues successive warrants against the same person in respect of different offences, but – assuming that the IJA has been acting in good faith (as the Senior District Judge found in this case) – it seems to me an entirely reasonable view that the overall objective of the Framework Decision would be best met by the judicial authority of the requested State dealing as swiftly as practicable with all warrants in order that the person concerned may be extradited on all matters for which he should properly be extradited. Against that context, I conclude that the Senior District Judge was entitled to come to the conclusion which he did, that reasonable cause had been shown for the failure to extradite the appellant in respect of EAW 4 within 10 days after the decision of the House of Lords because the extradition proceedings in respect of EAWs 5 and 6 were in progress before the English court. I would therefore refuse this application for permission to apply for judicial review of the Senior District Judge’s decision.

[49]I agree.