Navadunskis, R (on the application of) v The Serious Organised Crime Agency [2009] EWHC 1292 (Admin)

[2009] EWHC 1292 (Admin)Case No CO/10590/2008IN THE HIGH COURT OF JUSTICEQUEEN'S BENCHDIVISION DIVISIONAL COURTVenue Royal Courts of Justice, Strand London WC2A 2LLDate Friday, 22 May 2009B e f o r e:LORD JUSTICE MAURICE KAYMR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF NAVADUNSKISClaimantTHE SERIOUS ORGANISED CRIME AGENCYDefendant
Computer-Aided Transcript of the Palantype Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr David Chirico (instructed by Elizabeth Millar Solicitors) appeared for ClaimantMr Jonathan Swift and Mr Ben Watson (instructed by Serious Fraud Office) appeared for DefendantMr John Jones (instructed by CPS Serious Crime Division) appeared for Interested Party (CPS)
JUDGMENT

LORD JUSTICE MAURICE KAY:

Part

[1]1 of the Extradition Act 2003 gives effect in this jurisdiction to the Council of Europe Framework Decision on the European arrest warrant and the surrender procedures between Member States.[2]In this application for judicial review, the claimant is a citizen of Lithuania. His extradition pursuant to a European arrest warrant has been sought by the Prosecutor General's office in Lithuania to face trial in that country.[3]The procedural position is that there was an extradition hearing before a District Judge which resulted in an order for the claimant's extradition. Thereafter, he issued a notice of appeal in time but he did not serve it in time. By reference to the relevant provisions as now construed by the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276, there never was a properly constituted appeal to this court. In fact, what happened was that a consent order withdrawing the extradition appeal was made.[4]Under Part 1 of the 2003 Act, once forensic procedures provided for by Part 1 have been exhausted, it is anticipated that extradition will take place within a very short period of time. By section 35(3) the person must be extradited before the end of the required period and by section 35(4) the required period is(a) 10 days starting with the first day after the period permitted for giving notice of appeal against the judge's order, or(b) if the judge and the authority which issued the Part 1 warrant agree a later date, ten days starting with the later date.[5]That very short time period is entirely consistent with the whole purpose of Part 1 of the 2003 Act. The purpose, as expressed in the recitals to the Framework Decision was to simplify and speed up extradition within Europe. The underlying assumption of Part 1 is that there is a level European playing field and a mutual interest in efficient and effective extradition. However, it is appreciated that in an individual case there may be reasons not to extradite for, amongst other things, human rights considerations.[6]Accordingly, section 11 lists a number of bars to extradition, one of which (section 21) is a human rights bar. However, the assumption is that once all statutory procedures have been exhausted, extradition will rapidly follow.[7]I turn now to the facts of this case. The claimant is sought by the Lithuanian authorities for offences alleged to have been committed in January 1997. They are allegations equivalent to aggravated burglary, assault occasioning actual bodily harm and possession of an offensive weapon. The claimant arrived in this country on 15th February 1997. Initially he was refused leave to enter, but he forthwith applied for asylum. On 9th June 1997 formal charges were preferred in Lithuania and a domestic arrest warrant was issued. At that time the Lithuanian authorities did know the claimant's whereabouts.[8]His application for asylum was refused by the Secretary of State on 18th July 1997. He appealed to a special adjudicator, but his appeal was dismissed on 24th February 1998. It is notable that his factual account was substantially disbelieved by that special adjudicator.[9]He remained in this country and in January 2001 further submissions were made to the Secretary of State regarding asylum. On 31st January 2001 an application was made to the Home Office on the basis of establishing a business under the EU association agreement. That application was refused on 19th February 2001.[10]Yet further submissions were made by reference to asylum. But on 22nd November 2001 his further asylum submissions were rejected on the basis that they did not amount to a fresh claim and they enjoyed no realistic prospect of success. That appears to have prompted a change of tack, in that on 1st December 2001 further submissions were made on his behalf to the Secretary of State, this time by reference to the Human Rights Act.[11]That human rights application has never been the subject of a formal determination. The reason for that is abundantly clear. On 1st May 2004 Lithuania became a member of the European Union. From that date the claimant was no longer at risk of administrative removal, pursuant to immigration law, because of his citizenship of the European Union. On 29th June 2005 he and his wife, who is I think Ukrainian, were issued with an EU residence permit.[12]In 2006 the Lithuanian authorities discovered that the claimant was in this country. On 29th November 2006 the European arrest warrant was issued. It was certified by the Serious Organised Crime Agency ("SOCA") on 20th April 2007 and on 7th June 2007 the claimant was arrested in this country. That led to a contested extradition hearing before a District Judge on 29th August 2007, the outcome of which was that the District Judge ordered the claimant's extradition. As I have related, there was no effectively constituted appeal from that decision because the claimant's notice of appeal was not served in time.[13]On 1st November 2007 the claimant's immigration solicitors, a different firm from those acting for him in the extradition proceedings, wrote to the Crown Prosecution Service, asserting that he had an immigration claim outstanding and that extradition would be unlawful. Further representations were made on 18th March 2008. I should add that the Crown Prosecution Service, acting on behalf of the Lithuanian authorities, has obtained from a District Judge an extension of time for extradition, pursuant to section 35.[14]On 1st November 2008 the claimant was informed of arrangements for his imminent surrender, but that prompted the claim form in the present proceedings on 4th November 2008.[15]It is quite obvious that the present application, if properly conceived, would manifest a development outwith the original expectation of the Framework Decision and Part 1 of the 2003 Act. The purpose of the 2003 Act, as I have explained, was simplification and expedition. It was designed to avoid the kind of serial applications which used to be quite common in extradition, as one remedy and then another was sought on what sometimes appeared to be a rolling basis.[16]The question we have to consider is whether there is any scope for this application in the circumstances that have arisen.[17]I do not propose to burden this judgment with extensive citation of authority. Suffice it to say that I consider what follows to be entirely in accord with recent judicial consideration of the 2003 Act in both Part 1 and Part 2 cases, and I consider the approach that I am taking to be consistent with Office of the Kings Prosecutor Brussels v Cando Armas [2005] UKHL 67; Dabass v High Court of Justice of Madrid ; R (Hilali) v Governor of Whitemoor Prison [2008] 1 AC 805; Ignaoua v Judicial Authority of the Courts of Milan [2008] EWHC 2619 (Admin); [2008] WLR (D) 340 and Taylor v HMP Wandsworth & Ors [2009] EWHC 1020 (Admin). Only the last, Taylor, was a Part 2 case.[18]The typical scenario arising in a case such as the present one is an attempt to seek relief by way of judicial review, following failure in the statutory procedures provided for in the 2003 Act. In one sense that may be thought to be bold, because section 34 of the Act, applying in Part 1 cases, and section 116 applying in the same way in Part 2 cases, provides that:
"A decision under this Part of the judge... may be questioned in legal proceedings only by means of an appeal under this Part."
[19]However, it has been acknowledged that in a rare case there may be a supervening event, following the exhaustion of the statutory procedures under the Act, which necessitates a further consideration, particularly on human rights grounds.[20]I say "rare" because the possibility, it seems to me, must be limited to supervening events, or supervening knowledge which could not have been acquired earlier, and as the time frame following the completion of the statutory procedures is so short, one would have thought that inevitably there is little scope for significant supervening events or knowledge to arise. However, one must accept them as a possibility. In the course of argument, hypothetical examples have been referred to, such as, for example, a coup in the requesting state, leading to a change of government and perhaps an outbreak of genocidal behaviour which would render it wholly inappropriate to surrender the fugitive to that country.[21]Alternatively, somebody who was or seemed to be in good health at the time of the extradition hearing and any subsequent appeal may suddenly be afflicted by some grave condition that would render it a breach of his human rights to surrender him at that moment. As I have indicated, that might extend in an appropriate case to something such as a pre-existing condition, of which the person only became aware after the extradition hearing.[22]The authorities to which I have referred acknowledge these possibilities and it seems to me that since the act of surrender by the authorities in this country is discharged by a public authority, then the Human Rights Act impacts upon that public authority at that point, and in a very rare case judicial review may enable a claimant to sustain a further human rights bar to extradition.[23]It seems to me that there must be something substantial supervening because section 21 of the Act has provided for consideration of human rights issues within the extradition hearing and any statutory appeal.[24]In the present case the claimant's extradition hearing did not include a compelling human rights case. What he now seeks to do is to rely on a subsequent report of an expert, Dr Rawlinson, that was obtained months after the extradition hearing. I add in parenthesis that whilst Dr Rawlinson reports in terms ostensibly favourable to the claimant, her report is dependent upon the accuracy of his account and, as I have said, his account received short shrift from the special adjudicator when he first raised it in his asylum claim. But that is by the way in this case, because Mr Chirico wisely concedes that Dr Rawlinson's report could have been obtained much earlier, certainly in time for the extradition hearing. Accordingly, by no stretch of the imagination can it properly be described as a supervening event. Mr Chirico accepts that, but seeks to circumvent it by contending for a wider potential for judicial review following the completion of the statutory procedures. In my judgment, there can be no wider potential because such a wider potential would frustrate and subvert the whole purpose of Part 1 of the 2003 Act.[25]Mr Chirico poses the example of a sudden disclosure of a potential human rights issue which could have been disclosed earlier but, for some, perhaps psychological reason, was not. I do not accept that such a development can give rise to judicial review following the exhaustion of the statutory procedures. Nor do I see it as a situation in which, as Mr Chirico contends, this country might otherwise be in breach of its international obligations. As I see it, this country has complied with its international obligations by providing the statutory procedures in Part 1 of the 2003 Act, and in particular by providing a forum within which human rights considerations can properly be considered. If they could and should have been considered within the extradition hearing and any statutory appeal but were not, then it is too late to raise them by way of judicial review at this stage.[26]For those reasons, I regard this as a straightforward case. Having not raised Dr Rawlinson's report when it could have been raised at the extradition hearing, it is too late to raise it now and to permit it to be raised now in the circumstances of this case would be quite contrary to the purpose and the provisions of the 2003 Act.[27]If there had been a properly constituted appeal in this case and that had run its course, but unsatisfactorily from the claimant's point of view, then, again, in wholly exceptional circumstances the possibility would arise of an application to reopen the appeal pursuant to CPR 52.17. That is the procedure that was considered in Ignaoua. However, as Mr Chirico concedes, he can make no progress by reference to that because there was never a properly constituted appeal which could now be reopened. Of course, if he had not faced that technical difficulty, he would still have faced the difficulty that the circumstances are not wholly exceptional because the arguments could have been raised earlier, and the material could have been obtained earlier. Moreover, as is implicit in what I have said previously, this, even now, is not a particularly compelling human rights case.[28]For all these reasons, it seems to me that, with great respect, the present application for judicial review is misconceived. I would add a postscript, and it relates to the procedure which needs to be followed in that rare case, where a supervening event or supervening knowledge may justify a further human rights consideration.[29]In Part 2 cases, where the Secretary of State still has a part to play after the extradition hearing, then the correct destination for any representations is the Secretary of State, whereupon the matter can thereafter be assessed in and through this court.[30]In Part 1 cases the Secretary of State has no further part to play after the extradition hearing. What happens, and this case typically illustrates it, is that SOCA, as the authorised public agency, arranges for surrender to the requesting date. It follows, and Mr Swift accepts this on the part of SOCA, that it is to SOCA that any representations of exceptional supervening human rights circumstances should be addressed. This is not to say that SOCA then becomes a human rights decision-maker. That is not a burden which it is appropriate to impose upon that body. However, it is the front line public authority at that stage and, upon receipt of any such representations, it is SOCA which is the appropriate body to advise the potential claimant to seek relief in this court by way of an urgent application for permission to apply for judicial review and urgent relief. The matter can then take its course.[31]It follows from what I have said that I would dismiss this application.[32]MR JUSTICE COLLINS: I agree. The purpose of the framework decision upon which the Part 1 of the 2003 Act is based was to remove the complexity and potential for delay inherent in previous extradition procedures. Of course, that involves the removal too of possibility of collateral challenges which extend and delay the process.[33]Part 1 contains elaborate provisions to protect the individual who is sought to be extradited. Section 11 sets out a number of bars, some of which go beyond what the framework decision requires. For example, lapse of time. But even if none of those bars avail a particular individual, section 21 of the Act requires the judge (whether he be the District Judge or a judge of this court) to decide whether the extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998.[34]It is in those circumstances essential that those whose extradition is sought under the Act must be told by those who represent them, and must appreciate that any human rights grounds which may be available must be identified and evidence deployed before the District Judge. It is only if there are supervening events, as my Lord has indicated, that it could be appropriate to consider whether the extradition is to be prevented.[35]The problem lies, in my judgment, in identifying the means whereby such a claim can be pursued. I say that because it is plain from the decision of the House of Lords in R (Hilali) v Governor of Whitemoor Prison [2008] 1 AC 805 that habeas corpus, going to the lawfulness of the detention following a decision of the court that extradition should take place would not be available as a remedy because of the terms of section 34 of the Act, which provides that:
"A decision under this Part of the judge... may be questioned in legal proceedings only by means of an appeal under this Part."
[36]In paragraph 21 of his speech in Hilali, Lord Hope of Craighead said this:
"Section 34 must receive effect where the decision was one against which there was a right of appeal under the statute. In the case of those decisions, the remedy of habeas corpus must be taken to have been excluded by the clear and unequivocal wording of section 34."
However in the first sentence of paragraph 23 he said: 37. "I do not think that it is necessary to identify circumstances in which, notwithstanding section 34 of the 2003 Act, the remedy of habeas corpus may be available." It is I think clear that those two sentences, on the face of them, do not march together.[37]In Ignaoua v Milan [2008] EWHC 2619 (Admin) this court, through Keene LJ, noted that discrepancy, but said this, in paragraph 18:
"I can see that taken by itself, that single sentence at the beginning of paragraph 23 may appear to leave the position somewhat uncertain. But Lord Hope's opinion must be read as a whole. He had by that point in it already emphasised two things: first, that there were judicial decisions in the extradition process which did not attract a statutory right of appeal; and secondly, that where there was a statutory right of appeal, habeas corpus was excluded by the clear and unequivocal wording of section 34. That was a quite explicit statement. In those circumstances, his statement at the beginning of paragraph 23 cannot be taken to be saying that, in some cases where the statutory right of appeal existed, habeas corpus might still lie. It would contradict the final sentence of paragraph 21, quoted above..."
He drew attention to section 176(6) of the Act, which provided that an order for a person's extradition was sufficient authority to keep the individual in custody and to convey him to the territory to which he is to be extradited under the Act.[38]The court for that reason identified the possible means of dealing with a supervening event through CPR 52.17. The problem in this case is that 52.17 cannot be used because there was no valid appeal, there having been a failure to serve the CPS within the relevant time limit.[39]On the face of it, the wording of 176(6) and the mandatory requirement for extradition to take place within a specified period following the court's decision to that effect, puts judicial review into the same category as habeas corpus, because the judicial review is brought against the extradition or the conveyance to the country to which the extradition is to take place.[40]It seems to me that, as indeed is conceded by counsel appearing for the Secretary of State, and as my Lord has indicated, there must be read into the procedure and read into the Act a possibility of dealing with a supervening event which does give rise to the possibility of a human rights violation were extradition to take place. It seems to me, in those circumstances, that the provisions of the Act must be read in such a way as enables that position to be met. I would go back to Lord Hope's qualification in the first sentence of paragraph 23 and in my judgment that does provide, despite what the court believed in Ignaoua, the possibility of judicial review lying in circumstances identified by my Lord.[41]But, particularly in a Part 1 case, circumstances which enable the matter properly to be raised will be rare in the extreme. This must not be taken as an indication that there is a power to open the gates to a challenge to extradition beyond the scheme of Part 1 which, as I have said, in my judgment, gives all proper protection, including human rights protection, to a person whose extradition is sought under the warrant.[42]For those reasons, in addition to those given by my Lord, I too would dismiss this claim.

LORD JUSTICE MAURICE KAY: Thank you all very much.

[44]MR JONES: My Lord, I would be remiss not to point out a couple of matters.

LORD JUSTICE MAURICE KAY: Please do.

[46]MR JONES: In my Lord, Maurice Kay LJ's judgment, if I might assist. My Lord referred to section 21 of the Extradition Act, one of which is a human rights bar?

LORD JUSTICE MAURICE KAY: Section 11 is the bar?

[48]MR JONES: Yes, section 21--

MR JUSTICE COLLINS: I think I dealt with that in mine.

[50]MR JONES: Yes, indeed. I think my Lord referred to 52.07, which would be a slip of the pen for 52.17. Then finally, my Lords, the Secretary of State had no further part to play after the extradition hearing of the cases. In fact she has no part to play.

LORD JUSTICE MAURICE KAY: No. Yes, that is true. Thank you.

[52]MR SWIFT: My Lord, I think in light of the judgments given, the injunction that was made preventing extradition should be lifted.

LORD JUSTICE MAURICE KAY: It should be discharged. That must be right.

[54]MR JUSTICE COLLINS: That follows, does it not, from the dismissal of the claim, because the injunction will only last until the claim is decided?

LORD JUSTICE MAURICE KAY: But we will include in the order that it is discharged.

[56]MR SWIFT: Thank you.

LORD JUSTICE MAURICE KAY: Do you have public funding?

[58]MR CHIRICO: Yes, I am grateful.

LORD JUSTICE MAURICE KAY: Yes certainly.

[60]MR JUSTICE COLLINS: Do we need to make an order to which, Mr Jones, you will no doubt consent, that the ten days runs from today?[61]MR JONES: In fact the District Judge on the last occasion made an order for the ten days running from 22nd May, with some foresight, District Judge Workman, so we are covered.[62]MR JUSTICE COLLINS: I had not appreciated that he had given that date. Very well. It shows great prescience.

LORD JUSTICE MAURICE KAY: Thank you all very much. We have one other matter to deal with.

Cited in 4 later judgments