Asliturk v HMP Wandsworth [2010] EWHC 1720 (Admin)

Case No C0/6337/2010[2010] EWHC 1720 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Date: Wednesday, 16TH June 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE MADDISON
Between
ASLITURKClaimantv
Between
HMP WANDSWORTHDefendantTHE CROWN PROSECUTION SERVICEClaimantvASLITURKDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR R KOVALEVSKY QC & MR D PATIENCE (instructed by MORGAN ROSE) appeared for Claimant AsliturkMR J LEWIS QC & MISS R SCOTT (instructed by THE CPS) appeared for Claimant the CPS
J U D G M E N T
[1]MR JUSTICE MADDISON: In this judgment I will refer to the Magistrates' Courts Act 1980, the Bail Amendment Act 1993 and the Extradition Act 2003 as the 1980 Act, the 1993 Act and the 2003 Act respectively.[2]This is the hearing of the appeal of the prosecution pursuant to section 1(1A) of the 1993 Act against the decision of District Judge Purdy sitting at the the City of Westminster Magistrates' Court ("WMC") on 2 June 2010 to admit Orhan Asliturk to conditional bail. This is also the hearing of an application by Mr Asliturk for the issue of a Writ of Habeas Corpus.[3]Mr Asliturk was born in 1955 in Turkey. He changed his name by deed poll to John Edvard Coste in 2001. He acquired British naturalisation in 2008. He is the subject of current extradition proceedings. The request for his extradition was submitted by the Government of Turkey on 25 June 2009. It was certified by the Secretary of State for the Home Office on 13 August 2009. A warrant for Mr Asliturk's arrest was issued by the WMC on 26 February 2010. It was executed on 23 April 2010 at Heathrow Airport, Mr Asliturk having flown in from Cyprus.[4]Mr Asliturk appeared before the WMC later on 23 April. He did not consent to his extradition to Turkey. An application for bail was made on his behalf. It was refused by District Judge Tubbs on the ground that there were substantial reasons to believe that if released on bail Mr Asliturk would fail to surrender. District Judge Tubbs fixed 30 April 2010 as the date on which the extradition hearing was to begin in accordance with section 75(1) of the 2003 Act and remanded Mr Asliturk in custody until that date pursuant to section 72(7)(c). He was taken to HMP Wandsworth.[5]On 30 April Mr Asliturk's case was again listed before District Judge Tubbs. Mr Asliturk was not produced from HMP Wandsworth due it an administrative error there. He being absent, the extradition hearing did not begin. However his solicitor, Mr Rose, told the court that the health of Mr Asliturk, who suffers from diabetes, had deteriorated significantly since 23 April and that he had not been provided with proper medication at Wandsworth. The District Judge then heard a bail application but adjourned the announcement of her decision until 4 May to give the prison an opportunity to respond to the allegation of inadequate medical treatment. Mr Asliturk was further remanded in custody, purportedly pursuant to section 128(3C) of the 1980 Act, according to the court file. I will set out this provision later in this judgment.[6]On 4 May 2010 Mr Asliturk was produced. District Judge Tubbs formally opened the extradition hearing. That having been done expressly and in the presence of Mr Asliturk, it seems to me to be beyond argument that the extradition hearing began on 4 May. District Judge Tubbs was shown a letter from Jo Grimshaw, Senior Sister Primary Care HMP Wandsworth refuting Mr Asliturk's claim to have received inadequate medical treatment. In fact, stated Jo Grimshaw, he had been seen by a doctor on the day of his admission to HMP Wandsworth, had been prescribed medication and had received it regularly ever since. He had been given ample opportunity to ask that his blood glucose level be monitored, though it had not in fact been checked since 23 April when it was significantly above the normal range. He had been asked by a nurse to come to the treatment room that morning, 4 May, before leaving for court but he had not done so. Jo Grimshaw attached Mr Asliturk's treatment chart as evidence of his regular treatment.[7]District Judge Tubbs decided to hear a further full bail application which she then granted, stating that conditions of residence, curfew, reporting to a police station, not applying for international travel documents and lodging a cash security of £10,000 would be sufficient to meet concerns that Mr Asliturk would not surrender. The police were already in possession of his passport in the name of Coste. District Judge Tubbs fixed a review hearing in the extradition proceedings for 29 June, by which date the prosecution were to serve an opening note and the issues in the case were to have been defined and on which date the date for the substantive hearing would be fixed and further directions given.[8]The Government of Turkey immediately gave an oral notice of appeal against the decision to grant bail in accordance with the 1993 Act. This is a convenient point to refer to some provisions of that Act: section 1(1) provides:
"Where a Magistrates' Court grants bail to a person who is charged with or convicted of, an offence punishable by imprisonment, the prosecution may appeal to a Judge of the Crown Court against the granting of bail."
More pertinently to the present case section 1(1A) provides:
"Where a Magistrates' Court grants bail to a person in connection with extradition proceedings the prosecution may appeal to the High Court against the granting of bail."
In this latter context 'the prosecution' means the person acting on behalf of the territory to which extradition is sought (see section 1(12)). Section 1(4) requires the prosecution, if it wishes to exercise either right of appeal, to give oral notice to the court at the conclusion of the proceedings in which bail has been granted, where upon section 1(6) requires the court to remand the person concerned in custody until the appeal is determined or otherwise disposed of. Section 1(9) provides:
"... such appeal shall be by way of re-hearing, and the judge hearing any such appeal may remand the person concerned in custody or may grant bail subject to such conditions (if any) as he thinks fit."
[9]Upon the prosecution having given oral notice of appeal pursuant to section 1(4), District Judge Tubbs remanded Mr Asliturk in custody pursuant to section 1(6).[10]The appeal was listed before Keith J on 6 May. Mr Asliturk was not present, but he was represented by his solicitor Mr Rose, who asked that the hearing be conducted in chambers, as it was. Keith J concluded that there were substantial reasons, in fact very substantial reasons, for believing that if Mr Asliturk were released he would fail to surrender, notwithstanding the bail conditions imposed by District Judge Tubbs. He therefore allowed the appeal and remanded Mr Asliturk in custody pursuant to section 1(9) of the 1993 Act. The precise order he made was that Mr Asliturk:
"... be remanded in custody until a date to be fixed by the City of Westminster Magistrates' Court for a remand hearing to take place not later than 28 days from 4 May 2010."
This form of words had been proposed to Keith J by agreement between the parties. No appeal was lodged against this order. This is unsurprising because it was an order by consent. Moreover, no representations were made on behalf of Mr Asliturk to the WMC as to the date on which he should next be produced to that court. In fact, the WMC fixed that date for 1 June. Unfortunately the court did not inform either Mr Rose or HMP Wandsworth of this.[11]The case was duly listed for hearing on 1 June, this time before District Judge Purdy. In the absence of the Mr Asliturk or anybody anyone to represent him District Judge Purdy adjourned the hearing until the following day and further remanded Mr Asliturk in custody pursuant to section 128(3C) of the 1980 Act.[12]On 2 June Mr Rose contacted the WMC in effect to ask what was happening. He was concerned that the time fixed by Keith J for Mr Asliturk's appearance before that court had expired at midnight on 1 June and for reasons to which I will return, he now also considered that Keith J had not been entitled on 6 May to remand Mr Asliturk in custody for more than 8 clear days. Mr Rose was informed by the WMC of what had happened on 1 June. He therefore made haste to the court and by good fortune arrived just before Mr Asliturk's case was called on.[13]Mr Harbinson of counsel, from whom we have a witness statement, appeared on behalf of the Government of Turkey. He made an application for a further remand in custody until 29 June when the review hearing was due to take place. However, Mr Rose submitted that on 6 May Keith J could not lawfully have remanded Mr Asliturk in custody for more than 8 days.[14]Mr Rose's submission found favour with District Judge Purdy, who then released Mr Asliturk on bail on the same conditions as those imposed on 4 May by District Judge Tubbs. District Judge Purdy did not do this on the basis that there was no proper objection to bail, but on the basis that the order of Keith J on 6 May, and thus Mr Asliturk's continued detention, were indeed unlawful.[15]Again the Government of Turkey appealed pursuant to the 1993 Act. Coincidentally, the appeal was listed before me on 4 June. On that day Mr Rose indicated that he intended to resist the appeal on the basis that District Judge Purdy's approach on 2 June was correct. Moreover, he intended to apply for the issue of a Writ of Habeas Corpus. In these circumstances I directed that the appeal and application should be heard together at the earliest possible date. Hence both came before this court and were argued yesterday, 15 June.[16]Having regard to the way that the legal arguments developed, it will be convenient to consider the legality of each of Mr Asliturk's remands in custody in chronological order. Before doing so it will be helpful to set out the provisions of the 1980, 1993 and 2003 Acts, which govern the court's powers to remand fact custody persons whose extradition has been requested, and which bear on the issues arising in this case. I have already set out section 1(9) of the 1993 Act. I turn to the 2003 Act. The effect of section 72(7)(c), to which I have already referred, is that when a person arrested under a warrant issued under section 71, as Mr Asliturk was, first appears before the appropriate judge, as District Judge Tubbs was, the judge must remand him in custody or on bail. Section 77(1) provides:
"In England and Wales at the extradition hearing the appropriate Judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person whose extradition was requested."
Section 77(4) provides:
"If the judge adjourns the extradition hearing he must remand the person in custody or on bail."
[17]I next turn to the 1980 Act. Section 10(1) provides, so far as it is material:
"A Magistrates' Court may at any time, whether before or after beginning to try an information, adjourn the trial..."
Section 10(4) provides, again insofar as material:
"On adjourning the trial of an information, the court may remand the accused..."
Section 128(1) provides in effect that where a Magistrates' Court has power to remand any person it may do so in custody or on bail. Section 128(3) provides:
"Where a person is brought before court after remand the court may further remand him."
Section 128(3C) provides as far as is material:
"Where - (a) a person has been remanded in custody on an adjournment of a case under section... 10(1)... above; and (b) an application is subsequently made for his further remand on such an adjournment; and (c) he is not brought before the court which hears and determines the application; and (d) that court is not satisfied as mentioned in sub-section (3A) above, the court shall adjourn the case and remand him in custody for the period for which it stands adjourned."
I interpose to say that sub-section (3A) in essence requires the court to be satisfied in a case to which it applies that the accused has consented to an application for his remand on an adjournment of his case being dealt with in his absence. Section 128 (3D) provides:
"An adjournment under sub-section (3C) above shall be for the shortest period that appears to the court to make it possible for the accused to be brought before it."
Section 128(6) provides insofar as it is relevant to this case that subject to section 128A (to which I will come) a Magistrates' Court may not remand a person in custody for a period exceeding 8 clear days. Section 128A(2) provides:
"A Magistrates' Court may remand the accused in custody for a period exceeding 8 clear days if - (a) it has previously remanded him in custody for the same offence; and (b) he is before the court, but only if affording the parties an opportunity to make representations it has set a date on which it expects it will be possible for the next stage in proceedings, other than a hearing relating to a further remand in custody or on bail, to take place, and only - (i) for a period extending not later than that date; or. (ii) for a period of 28 clear days, whichever is the less."
It is clear that the court must have set a date for the anticipated next stage of the proceedings, having given the parties an opportunity to make representations, before it can invoke section 128A(2). In my judgment, however, the court is not required to do this at the hearing at which section 128A(2) is invoked. It would be sufficient if the court had done so at an earlier hearing. Before moving on, it will be noted that of the provisions of the 1980 Act which I have set out, only section 128(3C) and section 128(3A) to which it cross-refers, depend on the person concerned having previously been remanded under sub-section 10(1)[18]Against that legislative background I turn to examine the history of Mr Asliturk's remand in custody. The first, from 23 to 30 April, was clearly lawful. It was ordered in accordance with section 72(7)(c) of the 2003 Act.[19]The remand from 30 April to 4 May was purportedly made pursuant to section 128(3C) of the 1980 Act. Mr Kovalevsky QC on behalf of Mr Asliturk submits that District Judge Tubbs was not entitled to invoke that provision. By virtue of section 77(1) of the 2003 Act she was only entitled to deploy the powers of the Magistrates' Court in this regard "at the extradition hearing." On 30 April the extradition hearing did not commence, even though it had been expected on 23 April that it would do so. The words "at the extradition hearing" should not be liberally interpreted to refer to the extradition proceedings generally. To do so would be inconsistent with the other provisions of the 2003 Act, in particular section 75(1) which draws a clear distinction between a hearing forming part of the extradition proceedings generally, namely the first hearing, and the extradition hearing itself.[20]On the other hand, Mr Lewis QC on behalf of the Government of Turkey urges the court to rule that section 77(1) is to be liberally interpreted in such a way as to entitle a Magistrates' Court to invoke section 128(3C) at any stage of the extradition proceedings, whether or not the extradition hearing itself has commenced. He observes that that was the effect of the corresponding provision in the predecessor to section 77 of the 2003 Act, namely section 9 of the Extradition Act 1989. He adds that if section 77(1) is not to be interpreted in the way for which he contends, a District Judge conducting a court hearing in extradition proceedings which takes place after the first hearing but before the extradition hearing and at which the person whose extradition is sought is not produced, the District Judge would appear to have no statutory power at all to make any order remanding that person. That absurd result, he submits, cannot have been the intention of Parliament.[21]Though I thought it right briefly to summarise the competing and finely balanced arguments, my own view is that it is unnecessary for this court to rule upon them. That is because even if Mr Kovalevsky is right, and the remand in custody from 30 April to 4 May was unlawful as he contends, it would not in my judgment affect the legality of subsequent remands in custody, and in particular the remand in custody on 2 June, pursuant to which Mr Asliturk is presently held in custody, for reasons to which I will come in due course.[22]I would add, although this court has not heard argument on the point, that I can see no reason why District Judge Tubbs should not have formally opened the extradition hearing on 30 April and then, because of Mr Asliturk's absence, adjourned it to 4 May. If that is right, then had she taken that course she could have remanded Mr Asliturk in custody in his absence pursuant to section 128 (3C), since that would then have been an order made "at the extradition hearing".[23]I move on to consider the legality of the remand in custody from 4 to 6 May 2010. In my judgment, this was clearly lawful. Section 1(6) of the 1993 Act required District Judge Tubbs to remand Mr Asliturk in custody once the prosecution had given oral notice of appeal against the decision to grant him bail and nothing in section 1(6) suggests that the immediately preceding remand must have been lawful before section 1(6) can apply.[24]I next consider the order made by Keith J on 6 May. It is submitted on behalf of Mr Asliturk that that order too was unlawful. Keith J would have been entitled to remand Mr Asliturk in custody for no more than the 8 clear days provided for by section 128(6) of the 1980 Act unless section 128A(2) applied, which it did not. It did not do so because Mr Asliturk was not before Keith J's court on 6 May, and because Keith J did not afford the parties an opportunity to make representations about the length of the remand in custody.[25]A simple answer to that submission would be that Keith J did not remand Mr Asliturk in custody pursuant to any of the provisions of the 1980 Act and was not bound by such provisions. He did so pursuant to section 1(9) of the 1993 Act, which places no limit on the length of a remand in custody made pursuant to it. However, a situation similar it that faced by Keith J was considered by this court in Remice v HMP Belmarsh [2007] EWCA 936 (Admin). I say "similar", because in Remice there had been an appeal by the prosecution to the Crown Court pursuant to section 1 of the 1993 Act against the grant of bail by a Magistrates' Court in its criminal jurisdiction. The court had granted bail on 8 March 2007 having on a previous occasion set the committal date for 27 March. A Recorder of the Crown Court had heard the bail appeal on 9 March and allowed it, but he had not specified a period within which the defendant, now remanded in custody, should be brought back before the Magistrates' Court.[26]In paragraphs' 7 and 8 of his judgment, Laws LJ said as follows:
"(7). It seems to me that had the Claimant been remanded again in custody on 8 March, and had that remand been to 27 March or some other date more than 8 days in the future, section 128A(2) would distinctly have had to be deployed on that occasion, but it was not. The grant of bail and the successful prosecutor's appeal supervened. However, in the circumstances it seems to me plain that the claimant can have enjoyed no lesser rights in law, given that factual scenario, than if he had been remanded in custody on 8 March. Accordingly, if he was to be remanded on 9 March for a period of not more than 8 days in the future, it seems to me that the Crown Court ought to have applied the provisions of section 128A(2). They should have considered whether he was to be remanded for more than 8 days or not. If it was considered that he should be, then a distinct opportunity consonant with the provisions of section 128A(2) to make representations about that issue should have been granted. (8) I acknowledge... that sections 128 and 128A do not directly apply to or bind the Crown Court. Clearly, however, the Crown Court must act in this area consonantly with rights which the Magistrates' Court Act confers on defendants. On the facts that have arisen here, that would have required them to apply section 128A(2) as I have said."
[27]It submitted on behalf of Mr Asliturk that by parity of the reasoning a Judge of the High Court considering an appeal pursuant to section 1(1A) of the 1993 Act should also act consonantly with sections 128 and 128A of the 1980 Act, even though not directly bound by those sections. That submission I would accept. Laws LJ was plainly concerned that if a defendant in a criminal case is granted bail by the magistrates and the prosecution successfully appeal to the Crown Court, he should be in no worse a position than he would have been had he been remanded in custody in the first place. I can see no logical or principled reason why a different approach should be adopted towards an appeal to the High Court against a granting of bail in an extradition case. The person whose extradition is sought should not be in a worse position in this regard than a defendant in a criminal case.[28]I therefore consider the merits of the submission that Keith J did not act consonantly with sections 128(6) and 128A(2) of the 1980 Act. It is important to recognise that Laws LJ did not rule in Remice that the Crown Court, or by extension the High Court, when considering an appeal against the grant of bail was obliged to follow sections 128(6) and 128A(2) to the letter, those courts not being directly bound by those provisions. In particular, in my judgment Remice was not intended to be and cannot be read as authority for the proposition that unless the defendant is present at the hearing of a successful prosecution appeal against the grant of bail, the defendant can be remanded in custody for no longer than 8 clear days. Nowhere is that expressly said to be so in the judgment of Laws LJ. Indeed Remice did not expressly address the question of the presence at court of the defendant concerned at all. Furthermore, rule 19.17(4) of the Criminal Procedure Rules 2005 which was in force at the time of Remice provided that the respondent to an appeal against the grant of bail, was not entitled to be present at the hearing of the appeal unless he was acting in person or unless in an exceptional case the High Court judge gave him leave to be present. There is an identical provision in the current rules of 2010. Thus, the vast majority of respondents will not be present at such an appeal. The researches of counsel before us have not been able to unearth any corresponding provision governing the hearing of appeals to the Crown Court against the grant of bail in extradition cases, but in practice the person concerned rarely if ever attends the hearings of such appeals.[29]Moreover, Laws LJ was, as I have said, particularly concerned that a defendant granted bail but then remanded in custody as a result of a successful prosecution appeal should not be in a worse position than he would have been had he been remanded in custody in the first place. If the outcome of an order made on an appeal is that the person concerned is not in a worse position, it would be difficult in my judgment to say that the appellate judge had not acted consonantly with sections 128(6) and 128A(2) of the 1980 Act.[30]I therefore turn to consider the order which District Judge Tubbs could lawfully have made on 4 May had she then remanded Mr Asliturk in custody. In my judgment, she could lawfully have invoked section 128A(2). Mr Asliturk had previously been remanded in custody and he was before the court on 4 May. On that day District Judge Tubbs formally opened the extradition hearing, fixed the date for the next stage of the proceedings for the 29 June and gave other case management orders. I accept the statement of Dr Elizabeth Franey, the legal team manager with the responsibility for international jurisdiction work at the WMC, that in the circumstances the parties were clearly given an opportunity to make representations about that date. Thus, had she remanded Mr Asliturk in custody, District Judge Tubbs would in my judgment have been entitled to remand him for a period up to a maximum of 28 clear days. The order made by Keith J was not expressed in terms of clear days and was therefore slightly shorter than that which District Judge Tubbs could have made. The order which he made having been proposed to Keith J, with the agreement of both parties, he cannot reasonably have been expected to seek any further representations as to the period for which Mr Asliturk should be remanded. In my judgment the order he made was lawful.[31]I next turn to consider the legality of the remand in custody from 1 to 2 June ordered by District Judge Purdy. This is also in issue. However, by 1 June the extradition hearing had started. It had done so on 4 May. Accordingly, section 77(1) of the 2003 Act was engaged and this in turn engaged sections 10(1) and 128(3C) of the 1980 Act, the conditions set out in which were met in my judgment. The remand was for a single day, and in my view section 128(3D) was therefore also complied with. Thus the remand in custody for one day was in my view legal.[32]Finally I take the view that the remand in custody on 2 June, which is still effective, was clearly legal. District Judge Purdy granted bail. I will consider later whether or not he had any valid reason for doing so, but on the grant of bail the prosecution again immediately gave oral notice of appeal as they were entitled to do under section 1(4) of the 1993 Act and District Judge Purdy then remanded Mr Asliturk in custody as section 1(6) required him to do. He had no discretion in the matter.[33]It follows in my judgment that with the possible exception of the period of 30 April to 4 May Mr Asliturk has been and remains lawfully remanded in custody. I should add that had any or all of the remands in custody prior to that on 2 June, which governs the present situation, been unlawful, they would not in my view have impugned the legality of the otherwise clearly lawful order of 2 June. Mr Lewis QC has drawn our attention to a number of authorities which establish that absent bad faith or deliberate manipulation of the process, any prior illegality is irrelevant if the order in force at the time that an application for a Writ of Habeas Corpus is made is lawful. For the record, the authorities in chronological order are: R v Weil (1881-2) 9 Q.B.D 701; Anthanssiadis v Government of Greece and others [1971] A.C. 282; R v Bow Street Magistrates' ex parte Mackeson (1982) 75 Cr. App. R. 24; and R v Bow Street Magistrates ex parte Van der Holst (1986) 83 Cr. App. R. 114. The contrary not having been argued, it is unnecessary to examine these authorities in any greater detail.[34]For these reasons, I would refuse the application for the issue of a Writ of Habeas Corpus.[35]I turn to consider the appeal on behalf of the Government of Turkey against District Judge Purdy's decision of 2 June to grant Mr Asliturk bail. This can be dealt with comparatively shortly. District Judge Purdy granted bail on the premise that the order of Keith J on 6 May had been unlawful. As I have explained, in my judgment it was lawful and thus bail was granted on 2 June on a false premise. Indeed in my judgment District Judge Purdy was not entitled any event to rule on the legality of the order of Keith J. Mr Kovalevsky QC submits that section 6 of the Human Rights Act 1998 and Article 5 of the European Convention on Human Rights read together entitled District Judge Purdy to review the lawfulness of Mr Asliturk's detention as at 2 June. Reliance is placed in particular on Article 5(4) which provides:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention should be decided speedily by a court and his release ordered if the detention is not lawful."
In the context of the order of Keith J, in my judgment article 5(4) contemplates the availability of a further right of appeal or of an application for a Writ of Habeas Corpus as has now been made. In my judgment, however, section 6 and Article 5 did not entitle District Judge Purdy to review Keith J's order. As a matter of general principle, the ruling of an appellate court in a particular case is binding on the court of first instance whose decision was challenged by means of the appeal should the court of first instance then have any further dealings with the case concerned. By way analogy, the Crown Court would not be entitled to challenge the legality of a decision of the Court of Appeal (Criminal Division) made following an interlocutory appeal against an earlier ruling made by the Crown Court itself. The remedy of a person dissatisfied with a ruling of the appellate court is not to go back to the court at first instance and ask it in effect to disregard the appellate court's decision. Indeed it was pointed out in argument that this court would not have been entitled to entertain an appeal from or an application for judicial review relating to a decision of a High Court Judge of the kind made by Keith J. In any event it is to be observed that the decision of Keith J had expired by 2 June and Mr Asliturk was then in custody pursuant to the lawful order of 1 June made by District Judge Purdy himself. For all these reasons, the District Judge was not in my entitled to rule on Mr Rose's submission either at all or in the way that he did.[36]Had District Judge Purdy granted bail after considering the provisions of the Bail Act 1976 he would in my judgment have clearly been wrong to do so. There had been no material change in circumstances since Keith J's ruling of 6 May. Moreover, in my judgment Keith J was clearly right to conclude that there were very substantial reasons to believe that if released on bail Mr Asliturk would fail to respond. This is for several different reasons.[37]The first relates to the offence for which the Government of Turkey wishes Mr Asliturk to be tried. He is said to have been at the forefront of a fraud which operated between 1995 and 1998. The facts alleged are complex. For present purposes it suffices to say that false claims were made to the Turkish State for the repayment of VAT at the rate of 15 per cent on the supposed export of goods to the purported value of not less than $1.7 billion. No such exports ever took place. The claims were supported by a huge amount of false documentation. Numerous companies and bank accounts were set up specifically to facilitate the fraud. Given the sophistication and the duration of the fraud, the amount of money it realised and Mr Asliturk's allegedly prominent position within it, one would expect him to receive a substantial custodial sentence in the event of conviction. My view, clearly shared by Keith J, is that Mr Asliturk's knowledge of the likely outcome would act as clear disincentive to his surrendering to the extradition proceedings.[38]The second reason arises out of Mr Asliturk's response to the commencement of criminal proceedings in Turkey. Indictments were issued against him in 2001 and 2002. He was not to be found at his known Turkish address. It would appear that he fled the country. He made an application for British naturalisation in 2001, although it did not succeed. Extradition requests were made between 2001 and 2004 to the United Kingdom without success. He was eventually arrested in Spain, pursuant to another request for his extradition, but he was discharged in 2008, apparently because the offences referred to in the request were thought to be barred by the effluxion of time. However, the present request specifies that at least one of the relevant limitation periods expires on 31 December 2013. Having been discharged in Spain, Mr Asliturk then appears to have returned to the United Kingdom.[39]Thirdly, Mr Asliturk is known to be a regular traveler to Cyprus, a country which has no formal extradition arguments with Turkey.[40]Fourthly, he has previously had access to false documents. On 16 July 2003 he received a police caution arising out of his having flown into Heathrow Airport on 1 July from Nice using a false Greek passport in the name of Ibrahim Halibiram. The fact he received a caution rather than being prosecuted may or may not indicate that there were some extenuating circumstances. The important feature for present purposes is that he did have access to false travel documents.[41]Fifthly, there is reason to doubt the genuineness of the address in England which he provided to the Magistrates' Court during these proceedings and to which he was bailed on 4 May and again on 2 June. That address is 60 Ridge Avenue, Winchmore Hill, in North London. This court has a witness statement from DC Andrew Dossett, who says that he went to that address on 8 March seeking to arrest Mr Asliturk pursuant to the extradition warrant. He found the premises occupied by a family from Eastern Europe. No one knew Mr Asliturk, of whom DC Dossett had a photograph. However, there were between 150 and 200 items of unopened mail addressed to Mr Asliturk or members of his family at the address. Some of these items had been forwarded from another address in High Wycombe, to which they had been originally posted. Many were from creditors. No one had ever been to 60 Ridge Avenue to collect the mail. No forwarding address had been left. We are told by Mr Kovalevsky that the tenant of the address has now stated that he or she is prepared to sub-let a room at the house to Mr Asliturk, but in all the circumstances I do not consider that this lends any significant support to an argument that he should be granted bail. Neither does a further piece of information imparted to us by Mr Kovalevsky, namely that Mr Asliturk would now be able to provide a security of £12,000 rather than £10,000 as ordered on previous occasions.[42]Sixthly, Mr Asliturk has debts of about £240,000 in the United Kingdom.[43]Seventhly, his only known community tie in the United Kingdom is that he has a son living here. He is divorced from the boy's mother.[44]I am prepared to disregard for present purposes the submission of the Government of Turkey that there are substantial grounds to believe that Mr Asliturk was seeking to mislead the court on 30 April in saying that he was not receiving appropriate medication in prison in order to improve his chances of being admitted to bail. However, there remain many formidable objections to bail.[45]I there would therefore allow the prosecution's appeal, and direct Mr Asliturk be remanded in custody. Had he been thus remanded on 2 June, District Judge Purdy would have been entitled by virtue of section 77(1) of the 2003 Act in conjunction with sections 10(1) and 128A(2) of the 1980 Act to remand him until 29 June, the date of the next stage of the extradition proceedings. During the course of argument, Mr Kovalevsky QC and Mr Lewis QC were invited to make and did make representations as to the order we should make in this regard. Having taken their representations into account, and consistently with earlier passages of this judgment, I would direct that Mr Asliturk be remanded into custody until 29 June, on which date he must be produced at the Westminster Magistrates' Court for the review hearing which has already been fixed.

LORD JUSTICE PITCHFORD:

[46]I am grateful to my Lord for his comprehensive exposition of the facts helpfully placed in the relevant legal context to which they belong. I accept both his analysis and his conclusions and I concur in the orders which my Lord proposes. The first and main issue this court was required to consider was whether on 2 June 2010 Mr Asliturk was or was not in lawful custody. He was in custody because Keith J ordered his remand in custody until 1 June 2010. He was further remanded in his absence on 1 June pursuant to section 128(3C) of the Magistrates' Court Act 1980. In my judgment these were, for the reasons given by my Lord, lawful remands in custody. District Judge Purdy then admitted Mr Asliturk to bail on the purported but mistaken ground that Keith J had acted unlawfully. The prosecutor having notified the court of an appeal against the bail decision, District Judge Purdy, as he was required by section 1(6) of the Bail Amendment Act 1993, remanded Mr Asliturk in custody. That too was a lawful remand. It follows in my judgment that the Writ of Habeas Corpus cannot issue.[47]The second issue which arose in the appeal was whether Mr Asliturk should have been admitted to bail or further remanded in custody. It was not open to District Judge Purdy to constitute himself arbiter of the cause whether Keith J's order was lawful or unlawful. If Mr Asliturk wished to challenge the lawfulness of his remand by Keith J, I agree that the proper procedure was a further application to Keith J to set the order aside or an appeal to the Court of Appeal. Such a procedure could not arguably in my judgment constitute a breach of the United Kingdom's obligations under Article 5, or of District Judge Purdy's obligations under section 6 of the Human Rights Act 1998.[48]District Judge Purdy does not appear to have considered the application on its merits. Had he done so, he must have concluded as, had Keith J, that there was a manifest risk of absconding which conditions of bail could not adequately meet. Hence I too would allow the prosecutor's appeal.[49]It seems to me that these decisions dispose of all the issues it is necessary to resolve in the current proceedings, but I, like Maddison J, recognise the possible lacuna in the powers to remand a person the subject of extradition proceedings which may have been created by the juxtaposition of provisions in the relevant legislation. As I understand it, the lacuna arises in the case of a hearing other than a first hearing within the meaning of section 72 of the Extradition act 2003 and before an extradition hearing within the meaning of section 77 of the 2003 Act.[50]It was argued on behalf of Mr Asliturk that if at some intermediate hearing the person remanded is not produced and if the period of previous remand has expired, section 128(3C) of the Magistrates' Courts Act 1980 does not apply since the court has not yet reached the extradition hearing. Section 77(1) has not therefore applied the Magistrates' Courts Act 1980 and section 77(4) of the Extradition Act has not yet conferred its power to remand in custody.[51]It seems me to be at least arguable that reading section 77 of the 2003 Act and section 10(1) of the 1980 Act together fills this lacuna. I acknowledge, however, that this reading would require a wider interpretation of the words "extradition hearing" in section 77(1) than the Extradition Act elsewhere contemplates. As it is, the practical solution proposed by my Lord should serve to prevent consequences which were surely unintended by Parliament.[52]Before leaving this matter, I would like to pay tribute to the focus both of submissions made in the skeleton argument and orally to us, a focus which was necessarily required by reason of the variety and different sources of legislative material which my Lord's judgment has just demonstrated. Thank you very much.

Cited in 1 later judgment