Klimeto, R (On the Application Of) v City of Westminster Magistrates Court [2012] EWHC 2051 (Admin)

[2012] EWHC 2051 (Admin)

Case No CO/4228/2012

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT OF QUEEN'S BENCH

ADMINISTRATIVE COURT

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

Date 19/07/2012

Before

The Rt Hon Lord Justice Hughes

The Hon Mr Justice Burnett

The Hon Mr Justice Nicol

Between

The QueenClaimant

on the application of Edjis KlimetoClaimant

City of Westminster Magistrates CourtDefendant

The Crown Prosecution ServiceInterested Party

(Transcript of the Handed Down Judgment of

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Helen Malcolm QC and Myles Grandison (instructed by Dalton Holmes Gray) for Claimant

Nicholas Hearn (instructed by The Crown Prosecution Service) for Government of Latvia

Hearing Hearing dates: 30 May 2012

Judgment

The Hon Mr Justice Burnett:

Introduction

[1]This is the judgment of the Court to which all members have contributed. This is a claim for judicial review of the decision of District Judge Evans of 16 April 2012 whereby he ‘quashed’ his earlier order of 4 April 2012 by which he had ordered the claimant’s extradition to Latvia. He also directed that the consent to extradition that the claimant had given at that earlier hearing be set aside. He did so purporting to use the power conferred on magistrates’ courts by section 142 of the Magistrates’ Courts Act 1980 [“the 1980 Act”] to correct mistakes. He adjourned all further proceedings in the extradition. At the conclusion of the hearing of the claim we announced our decision. We quashed the order made by the District Judge on 16 April 2012 with the effect that the extradition order he had earlier made pursuant to section 46 of the Extradition Act 2003 [“the 2003 Act”] was reinstated. These are our reasons.

The Facts

[2]On 13 November 2010 the Valmeira District Court in Latvia issued a European Arrest Warrant (“EAW”) for the arrest of the claimant on suspicion of offences alleged to have been committed on 4 March 2010 which involved the theft of a number of bottles of spirits from a shop and associated criminal damage. The EAW was duly certified by the Serious Organised Crime Agency on 2 December 2011, under the procedure for doing so contained in the 2003 Act.

[3]The claimant was arrested for an unconnected domestic offence in Goole in East Yorkshire on 3 April 2012 and on the same day charged with conspiracy to defraud relating to fraudulent cheques. He is currently on bail in respect of that charge, which is before the Crown Court sitting at Hull. He is one of a number of defendants in that case. Whilst he was in police custody in relation to that allegation it became known that he was also wanted on the Latvian EAW, and accordingly he was formally arrested under it by the officers dealing with him.

[4]The claimant was produced the next day before the City of Westminster Magistrates’ Court, as required by section 4(3) of the 2003 Act. There was no dispute that the EAW had been served as soon as practicable nor that the claimant had been brought before the judge as soon as practicable (both as required by the 2003 Act). The judge proceeded with the ‘initial hearing’ under Section 7 of the 2003 Act at which he made a finding that the claimant was the man wanted under the EAW. That too had not been in dispute. The judge then proceeded as directed by section 8 of the 2003 Act. He explained to the claimant his right to consent to extradition and the consequences of his doing so. The claimant gave his consent. In those circumstances it was unnecessary, following the scheme of the 2003 Act, to move to or fix a date for the ‘extradition hearing’ itself. Instead the judge ordered the claimant’s extradition to Latvia within 10 days.

[5]The advocate then representing the Crown Prosecution Service, on behalf of the Government of Latvia, had within her papers information that the claimant had been charged the previous day in Humberside. She did not draw that to the attention of the judge because she overlooked it. Had she done so, then pursuant to section 8A of the 2003 Act, the judge would have been required to adjourn further proceedings in respect of the extradition until the domestic criminal proceedings were disposed of, withdrawn, discontinued or left to lie upon the file. Section 8A gives no discretion, nor does it matter who informs the judge of the outstanding domestic charge. There may be cases in which the CPS acting for the requesting state will decide not to inform the judge of a domestic charge, perhaps where the charge for which the person concerned is wanted overseas is very serious by comparison. Equally, there may be instances where the person concerned will inform the judge of a domestic charge, if only to delay extradition.

[6]In this case, however, it was an oversight on the part of the CPS advocate which led to the failure to inform the judge of the domestic charge. By contrast, the claimant had no wish to inform the judge because he was and is keen to get back to Latvia.

[7]On 11 April 2012 the time for extraditing the claimant was extended until 30 April for logistical reasons unconnected with that oversight. On 13 April the CPS advocate wrote to the Magistrates’ Court. She said:

“I informed the Court that Mr. Klimeto was on police bail and that to my knowledge there were no outstanding domestic proceedings. My understanding was mistaken as Mr. Klimeto was charged with a conspiracy offence on 3rd of April 2012. Mr. Klimeto is due to be removed from the jurisdiction very shortly. I would be grateful if this matter could be listed as a matter of urgency and Mr. Klimeto produced, preferably tomorrow or Monday 16th, for the case to be re-opened under section 142 of the Magistrates’ Court Act 1980 so that the matter could be adjourned under s.8A of the Extradition Act 2003.”

The application was resisted by the claimant whose submission, then as now, is that section 142 of the 1980 Act does not apply to extradition proceedings. The judge disagreed. He noted two decisions of this court, one which had decided that section 142 did not apply to extradition proceedings: R (Gary Mann) v. Westminster Magistrates’ Court

[2010] EWHC 48 (Admin)

and one which had indicated, albeit obiter, that it might apply in limited circumstances: R (Janis Berners) v. Westminster Magistrates’ Court

[2010] EWHC 1010 (Admin)

. The judge concluded that because the prosecution had made a mistake in not informing him of the domestic proceedings he should quash his extradition order and, in effect, turn back the clock to the moment before the claimant gave his consent to extradition.

The 2003 Act

[8]Latvia is a Category 1 Territory to which Part 1 of the 2003 Act applies. Having been arrested under an EAW, the person concerned must be brought before the court as soon as practicable: section 4(3). Section 4(2) requires a copy of the warrant to have been given to the person as soon as practicable after his arrest. When he first comes before the court the person may apply to the judge to be discharged on the ground that either of these provisions was not complied with: section 4(4) and (5). Section 7 of the 2003 Act then governs the initial hearing. It includes a fact finding exercise relating to the identity of the person who has been brought before the court. It provides:

“7 Identity of person arrested (1) This section applies if— (a) a person arrested under a Part 1 warrant is brought before the appropriate judge under section 4(3), or (b) a person arrested under section 5 is brought before the appropriate judge under section 6 and section 6(2A) is complied with in relation to him. (2) The judge must decide whether the person brought before him is the person in respect of whom— (a) the warrant referred to in subsection (1)(a) was issued, or (b) the warrant referred to in section 6(4) was issued. (3) The judge must decide the question in subsection (2) on a balance of probabilities. (4) If the judge decides the question in subsection (2) in the negative he must order the person’s discharge. (5) If the judge decides that question in the affirmative he must proceed under section 8. (6) In England and Wales, the 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. (7) In Scotland— (a) the judge has the same powers (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person; but (b) in his making any decision under subsection (2) evidence from a single source shall be sufficient. (8) In Northern Ireland the judge has the same powers (as nearly as may be) as a magistrates' court would have if the proceedings were the hearing and determination of a complaint against the person. (9) If the judge exercises his power to adjourn the proceedings he must remand the person in custody or on bail. (10) If the person is remanded in custody, the appropriate judge may later grant bail.”

It is the incorporation of magistrates’ courts powers via section 7(6) upon which the prosecution principally relied to apply section 142 of the 1980 Act to the mistake made at the initial hearing, although Mr Hearn, who appeared for the Government of Latvia in this court but not below, developed an additional submission that section 142 applies directly to extradition proceedings.

[9]Section 8(1) tells the judge what he must do. Ordinarily, he must fix a date on which the extradition hearing proper is to begin: section 8(1)(a). This must be within 21 days, albeit with power subsequently to postpone the date under section 8(5). However, sections 8(1)(c) and 8(3) also require the judge to inform the accused of the statutory rules about consent to extradition. Put simply, the accused is entitled, subject to suitable safeguards set out in section 45, to consent to his extradition. Those safeguards are that the person concerned must have legal representation, be given an opportunity to secure legal aid and that the consent must be given before the judge and recorded in writing. The consequences of consent are, first that it is irrevocable and secondly that on return to the requesting state the person concerned is not protected by the rules of specialty: sections 8(3)(c) and 45(3) and (4). Section 8 calls upon the judge to tell him formally about this. If the person concerned consents to extradition but the judge has not fixed a date for the extradition hearing to begin, he is not required to do so. If the extradition hearing has begun before consent is given the judge is no longer required to continue with it: section 46(4) and (5). He must make an extradition order within 10 days of consent being given: section 46(6). Pursuant to section 47 extradition should ordinarily take place within 10 days of that order. In the meantime the person concerned may be remanded in custody or on bail.

[10]Absent consent, the judge will, under section 8(1)(a), fix the date for the extradition hearing, which is treated by the 2003 Act as a distinct stage in proceedings from the initial hearing under section 7. It is common for the extradition hearing to be fixed and to commence immediately the initial hearing is completed, with an adjournment if necessary for both parties to assemble evidence. At the extradition hearing the judge is then required to go through a step by step process for determining whether the statutory requirements for extradition are met and whether or not there exists any of the various statutory bars to its taking place. At the end of the hearing, which may of course be adjourned from time to time, the judge either makes an extradition order or he discharges the accused. Section 9 of the 2003 Act governs the extradition hearing:

“9 Judge’s powers at extradition hearing (1) 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 in respect of whom the Part 1 warrant was issued. (2) In Scotland, at the extradition hearing the appropriate judge has the same powers (as nearly as may be) as if the proceedings were summary proceedings in respect of an offence alleged to have been committed by the person in respect of whom the Part 1 warrant was issued. (3) In Northern Ireland, 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 hearing and determination of a complaint against the person in respect of whom the Part 1 warrant was issued. (4) If the judge adjourns the extradition hearing he must remand the person in custody or on bail. (5) If the person is remanded in custody, the appropriate judge may later grant bail.”

Sections 10 to 21 of the 2003 Act then specify the step by step process.

[11]However, this whole procedure, whether based on consent or otherwise, is altered if the accused is currently subject to a criminal charge in the United Kingdom and the judge is informed of this. The 2003 Act in effect allows the United Kingdom authorities to require extradition to be postponed to enable them to prosecute first if they wish to do so. In paragraph 5 we have touched upon the consequences dictated by section 8A if the judge is informed of a domestic charge before the extradition hearing has commenced. The process must be adjourned until the domestic proceedings are completed. Section 22 makes similar provision should the judge be informed during the extradition hearing. There is no provision which has the same effect after an extradition order has been made, should the information be made available whilst an appeal is pending in the High Court or Supreme Court. Further provision is made for what should happen if a term of imprisonment or detention is imposed in the United Kingdom following conviction on the charge which led to the adjournment of the extradition proceedings.

[12]Rights of appeal are governed by sections 26 to 34 of the 2003 Act. The person concerned may appeal against an extradition

[13]The Secretary of State plays no part in a decision to extradite a person to a Category 1 Territory but, by contrast, makes the decision whether or not to extradite in Category 2 requests once the case has been sent to her by the judge from the Magistrates’ Court. The structure of Part 2 of the 2003 Act, which is concerned with extradition to Category 2 Territories, is slightly different from Part 1. A person arrested following an extradition request from a Category 2 Territory under section 71 must ordinarily be brought before a judge as soon as practicable, having been served with the warrant as soon as practicable after his arrest. If that did not happen, the judge will discharge him at the first hearing: section 72(5) and (6). At that first hearing, the judge must inform the person concerned about his right to consent (together with the consequences of doing so). If consent is given, the case is sent to the Secretary of State without the need for an extradition hearing. Absent consent at this first hearing, the judge is required by section 75 to fix a date on which the extradition hearing will begin. Section 76A provides that if the judge is informed before the extradition hearing begins of an arrest in the United Kingdom, he must adjourn all further proceedings in respect of the extradition. Section 88 makes similar provision if the judge is informed during the extradition hearing. There is no fact finding requirement relating to identity at the first hearing, as there is under section 7 in respect of Category 1 Territories at the initial hearing. The question of the person’s identity is a matter which, by virtue of section 78, the judge is required to determine at the initial stages of the extradition hearing. 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 is requested.”

For practical purposes it is the same as section 9(1). There is no equivalent provision to section 7(6) incorporating magistrates’ courts powers at any stage prior to the extradition hearing itself.

[14]It follows that if the same mistake as was made by the prosecutor in this case were made in a Category 2 Territory case at the first hearing (and before the extradition hearing had started) there could be no reliance on section 142 of the 1980 Act through the medium of a provision incorporating general powers of the magistrates’ court.

Section 142 Magistrates Courts Act 1980

[15]Section 142 of the 1980 Act provides:

“142. – Power of Magistrates’ court to re-open cases to rectify mistakes etc. (1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so, and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (1A) The power conferred on a magistrates' court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if – a) the Crown Court has determined an appeal against- (i) that sentence or order; (ii) the conviction in respect of which that sentence or order was imposed or made; or (iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or (b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order. (2) Where a person is convicted by a magistrates' court and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may so direct. (2A) The power conferred on a magistrates' court by subsection (2) above shall not be exercisable in relation to a conviction if- a) the Crown Court has determined an appeal against - i) the conviction; or ii) any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction ; or b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction. (3) Where a court gives a direction under subsection (2) above- (a) The conviction and any sentence or other order imposed or made in consequence thereof shall be of no effect; and (b) section 10 (4) above shall apply as if the trial of the person in question had been adjourned. (4) [repealed] (5) Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs.”

As originally enacted it was in these terms: 16. "142.- (1) Subject to subsection (4) below, a magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make. (2). Where a person is found guilty by a magistrates' court in a case in which he has pleaded not guilty or the court has proceeded in his absence under section 11(1) above, and it subsequently appears to the court that it would be in the interests of justice that the case should be heard again by different justices, the court may, subject to subsection (4) below, so direct. (3). Where a court gives a direction under subsection (2) above- (a). the finding of guilty and any sentence or other order imposed or made in consequence thereof shall be of no effect; and (b). section 10(4) above shall apply as if the trial of the person in question had been adjourned. (4). The powers conferred by subsections (1) and (2) above shall be exercisable only within the period of 28 days beginning with the day on which the sentence or order was imposed or made or the person was found guilty, as the case may be, and only- (a). by a court constituted in the same manner as the court by which the sentence or order was imposed or made or, as the case may be, by which the person in question was found guilty, or (b). where that court comprised 3 or more justices of the peace, by a court which consists of or comprises a majority of those justices. (5). Where a sentence or order is varied under subsection (1) above, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs."

As originally enacted it was in these terms:

[16]The structure of section 142 in its original and amended form distinguishes between correcting mistakes made in relation to conviction: section 142(2); and mistakes made when sentencing or otherwise dealing with an offender who has been convicted of, or admitted, an offence: section 142(1). In R (Williamson) v. City of Westminster Magistrates’ Court

[2012] EWHC 1444 (Admin)

this court considered the reach of section 142 and noted:

“The repeal of section 142(4) did away with the 28 day time limit and also the restriction that the application under section 142 should be dealt with by the same bench as originally dealt with the matter. The addition of subsections 1A and 2A made clear that the power could not be exercised after there had been an appeal. The language of 'the interests of justice', which was in the original section 142(2), was introduced into section 142(1) concerning sentence. The restrictions in section 142(2), namely that the power could be used only following a not guilty plea or when the court had proceeded in the defendant's absence, were lifted.” (paragraph [28]). 26. It continued: “The purpose of section 142 as originally enacted was to enable the Magistrates' Court itself to correct mistakes in limited circumstances to avoid the need for parties to appeal to the Crown Court, or to the High Court by way of case stated, or to bring judicial review proceedings. In our judgment the introduction of the section 142 power was designed to deal with an obvious mischief: namely the waste of time, energy and resources in correcting clear mistakes made in Magistrates' Courts by using appellate or review proceedings. The removal of the short time limit in 1996 is consistent with that approach. It is the common experience of courts in all jurisdictions that mistakes and slips are often not picked up immediately.”

Authority

[17]We have mentioned in paragraph 7 that the judge noted two particular decisions of this court. Gary Mann concerned a claimant who had been convicted in Portugal in June 2004 of an offence of participation in a riot. He was sentenced to two years’ imprisonment. He was allowed to leave that country two days after his conviction. The judgment of Moses LJ (with whom Hickinbottom J agreed) suggests that the trial process left much to be desired. Over four years later an EAW was issued and in due course an extradition order was made by the District Judge, after a contested hearing. As a result of an oversight, the lawyers acting for the claimant failed to lodge a notice of appeal in time. It was one day late with the result that the High Court had no jurisdiction to entertain an appeal. It was in those circumstances that the claimant made an application to the judge in the Magistrates’ Court to reopen the matter pursuant to section 142 of the 1980 Act. The judge concluded that there was no power to reopen the extradition hearing using section 142 as a vehicle. It was that decision which was challenged in the judicial review proceedings. Having reviewed the decisions relating to judicial review in the context of extradition appeals (Hilali; Navadunskis), and noting that the facts did not bring the case within the narrow confines identified for invoking the supervisory jurisdiction of this court, or habeus corpus, Moses LJ turned to section 142 of the 1980 Act. He said: “Nor does Mr Mann's attempt to re-open the statutory extradition hearing by means of what has been described as "the slip rule" under s.142 of the Magistrates' Courts Act 1980 afford any basis for challenge. S.9(1) of the Extradition Act 2003 cannot be invoked to incorporate the provisions of s.142 of the Magistrates' Courts Act 1980. S.9(1) provides that:- "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 in respect of whom the Part 1 warrant was issued." S.9 permits the court to proceed, so far as compatible with the statutory extradition scheme, in accordance with rules applicable to criminal trials. Now that the Senior District Judge has ordered the requested person's extradition the hearing before him is finished and s.9(1) is no longer applicable. Since the claimant did not file or serve an appeal notice within the 7 day required period, the European arrest warrant has been "disposed of" pursuant to s.213(1)(c) of the 2003 Act. Part 1 of the 2003 Act provides a statutory scheme laying down a strict and tight timetable which precludes the possibility of invoking s.142 of the Magistrates' Court Act 1980. For those reasons, I conclude that it is not arguable that this court has any jurisdiction to entertain any claim for judicial review, be it to challenge a non-existent decision of SOCA or the refusal of the Senior District Judge to exercise a non-existent jurisdiction to re-open the statutory extradition hearing.” "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 in respect of whom the Part 1 warrant was issued."

[18]Janis Berners came before this court by way of an appeal pursuant to section 26 of the 2003 Act against an extradition order made by the district judge who rejected the requested person’s case that surrender to Latvia would breach

article 3 of the European Convention on Human Rights

. In tandem with that appeal, Mr. Berners sought judicial review of the same decision on grounds of procedural unfairness. The hearing of the evidence had concluded without sufficient time for submissions to be made. The judge asked for submissions in writing. Judgment was delivered a month later. At the end of his judgment it became apparent that the submissions of the appellant had not reached him. There was some consideration of whether the judge should immediately reopen the matter, but he was not pressed by Mr. Berners’ counsel to do so. That is not surprising. The judge had just indicated that he found Mr. Berners completely lacking in credibility. Before this court counsel recognised that the appeal could not deliver what the appellant wished, namely a rehearing and for that reason pressed the application for permission to apply for judicial review. In his judgment, Pill LJ explained that given the evidence before the district judge, and having considered the written submissions which the judge had lacked, there was no possibility that the appellant could have established his case under article 3. He also touched on the question whether the judge could have reopened the hearing, given that the judge himself had indicated that he would, if asked to do so. Pill LJ considered that Gary Mann could be distinguished. Not only had the order been made in that case, but the time for appealing had passed, meaning that the proceedings were at an end. He added:

“The principle in Mann does not, in my view, exclude the possibility that a judge may reconsider an order if a basic error, including a procedural error which emerges from the terms of the judgment, is brought to the judge's attention immediately after delivery of the judgment and pronouncement of the order. The extradition hearing would not have concluded and, under section 142 of the 1980 Act, it may "appear to the court to be in the interests of justice" to rescind the order. By the indication he gave to counsel, the judge probably took the view that he remained seised of the case, at least during the 7 day period within which an appeal could be made under section 26 of the 2003 Act.”

Rafferty J agreed with the judgment of Pill LJ. Submissions

[19]Mr. Hearn’s first submission is that section 142 of the 1980 Act applies directly to extradition proceedings because nowhere in the 2003 Act is there a provision which ousts it. The relevant power in this case was that which related to sentences or orders imposed when dealing with an offender: section 142(1). ‘Offender’ should be construed as including ‘alleged offender’ because section 150(5) of the 1980 Act stipulates that any reference in that act to ‘offence’ should include ‘alleged offence’. His second and alternative submission is that section 142 is applied to the extradition proceedings generally by section 7(6) of the 2003 Act. It does not only apply to the initial hearing. In those circumstances it was in the interests of justice for the judge to correct the mistake made by counsel then appearing by rescinding the extradition order. He submits that the power under section 142(1) applied ‘as nearly as maybe’ also permitted the judge in effect to quash the consent to extradition given by the claimant.

[20]Miss Malcolm QC submits that the powers found in section 142 of the 1980 Act are not applied directly to extradition proceedings, nor imported via section 7(6), 9(1) or 77(1) of the 2003 Act. The powers imported by section 9(1) and 77(1) are concerned only with the extradition hearing itself. The powers imported by section 7(6) are concerned only with the initial hearing. Section 142 of the 1980 Act is concerned with power to correct mistakes after a hearing has been completed. In their own terms, none of these statutory provisions is apt to enable a power of that nature to be exercised because they are concerned with what happens at particular hearings. Furthermore, Miss Malcolm QC submits that the 2003 Act contains a self-contained code governing extradition with tight and inflexible time limits for appealing which would be set at nought if a requested person could theoretically at any time apply to the Magistrates’ Court to correct alleged mistakes. She submits that the language of section 142 is simply inapt to apply directly to decisions made in extradition proceedings.

Discussion

[21]It is convenient first to consider the argument advanced by Mr. Hearn that section 142 of the 1980 Act applies directly to any hearing or decision relating to an extradition request, without the need to rely upon any of the provisions in the 2003 Act which explicitly import magistrates’ courts powers.

[22]Section 142 is concerned to provide separate but complementary powers to correct mistakes made, on the one hand, when sentencing or otherwise dealing with an offender and, on the other, when a person is convicted (after trial or on his plea). It is a necessary step in this part of Mr. Hearn’s argument to construe ‘offender’ as including ‘alleged offender’ because the claimant has been neither convicted of, nor admitted, the offences for which he is wanted in Latvia. He is not an ‘offender’ however broadly the term might be construed. Section 150(5) of the 1980 Act is concerned with the definition of ‘offence’ for the purposes of that Act. For those purposes ‘offence’ includes ‘alleged offence’. In our judgment that statutory provision cannot be read as suggesting that ‘offender’ should include ‘alleged offender’. It is not what the definition section says, and to use it to construe ‘offender’ in the way suggested is inconsistent with other terms in the 1980 Act. It is clear from the language of the 1980 Act itself that an alleged offender is consistently referred to as an ‘accused’. There are numerous such references. Furthermore, the language of section 142(1) – “sentence or other order imposed or made by it when dealing with an offender” – appears elsewhere in a context which shows that it is concerned with a convicted person. Thus, section 142(3) provides that when a direction is made under section 142(2) that a case should be heard again (the conviction set aside) the ‘sentence or other order imposed’ on the earlier conviction shall be of no effect. Section 10(3) of the 1980 Act provides a power to adjourn after ‘convicting the accused and before sentencing him or otherwise dealing with him.’ We note also that sections 31 to 40 of the 1980 Act as originally enacted are headed ‘Powers in respect of offenders’ and are concerned with powers which follow conviction or admission of guilt.

[23]We conclude that section 142 of the 1980 Act does not apply directly to extradition proceedings. Therefore, absent an effective incorporation of its powers ‘as nearly as maybe’ through the provisions of the 2003 Act itself, those powers were not available to the judge to set aside the order he had earlier made.

[24]The broader submission rests upon section 7(6) of the 2003 Act.

[25]Section 9(1) of the 2003 Act is concerned only with the ‘extradition hearing’ in Part 1 cases. Section 77(1) is concerned only with the ‘extradition hearing’ in Part 2 cases. Neither could be, nor indeed is, relied upon in this case to import the powers of section 142 ‘as near as maybe’ because no extradition hearing had commenced. Mr. Hearn’s submission is that the terms of section 7(6) of the 2003 Act are wide enough to import those powers not only into the initial hearing, but also more generally into extradition proceedings under Part 1 of the 2003 Act in just the same way as they apply to proceedings in the Magistrates’ Court. In other words, section 7(6) imports Magistrates’ Courts powers generally into proceedings under Part 1 of the 2003 Act, and the language of the subsection is broad enough to encompass an application under section 142 made after the conclusion of the initial hearing, or even the extradition hearing.

[26]We are unable to accept that submission.

[27]Section 7(6) is concerned with the initial hearing only. The ‘proceedings’ with which section 7(6) is concerned are those which are envisaged within section 7 itself, namely: dealing with any issue which arises relating to the service of the warrant, or bringing the requested person before the court promptly, identifying the requested person and completing such tasks as are required by section 8. Section 7(6) has no life once those matters have been completed. Were it otherwise, there would have been no need for Parliament to have made explicit provision in section 9(1) to import magistrates’ courts powers into the extradition hearing. Furthermore, a comparison with the cognate provision concerning Part 2 cases would, if Mr. Hearn’s submission were correct, deliver a stark anomaly. Section 77(1) makes provision for the incorporation of magistrates’ courts powers into the extradition hearing itself in Part 2 cases but not the first hearing which precedes it. Thus, no overarching provision of the sort contended for is to be found in Part 2.

[28]However, there is a more fundamental objection to the importation of section 142 powers into the extradition process. As Moses LJ indicated in Mann, the 2003 Act provides a self-contained code, with a strict timetable for the completion of each step, and for appeals. If section 142 were available and capable of being read broadly ‘as nearly as maybe’ to enable a judge to undo whatever had gone before in the extradition proceedings, then that strict timetable would be swept away. We have seen that the original 28 day time limit for invoking section 142 of the 1980 Act was repealed by the amendments made in 1995. The 28 day time limit would itself have been much longer than allowed, for example, for appeals under the 2003 Act but if section 142 powers were available an application could now be made at any time. When section 142 was amended, Parliament took the trouble to ensure that the powers could not be used after an appeal to the Crown Court or by way of case stated to the High Court. It is clear, in our judgment, that Parliament could not have intended, through the medium of sections 7(6), 9(1) or 77(1), to import the powers of section 142 of the 1980 Act into the extradition process because no similar provision was made either to exclude its use after an appeal had been launched, or after the time for appealing had expired. Furthermore, the existence of section 142 powers would be inconsistent with the interpretation of the step-by-step processes of the 2003 Act expressed in the decisions of Nur and Stanczyk.

[29]Put shortly, the submission that section 142 of the 1980 Act has any part to play in the extradition process is inconsistent with the scheme of the 2003 Act.

[30]We would respectfully suggest that the problem that arose in Berners did not require the use of section 142 of the 1980 Act to enable the judge to consider further the issues in the extradition hearing. The facts of what occurred, which are identified briefly in paragraphs 2 and 3 of the judgment of Pill LJ, show that the judge became aware of the fact that he had not seen all of the submissions before he had completed the hearing and when he asked for observations on the content of his ruling. In inviting further comment it appears that he was open to further argument and did not consider his ruling to be final It is likely that the judge was not functus officio at the time that the problem emerged.

order

section 26, but not if it was made following consent. The requesting state may appeal against the discharge of the person in limited circumstances. Section 34 provides: “A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part.” Very strict time limits are applied to appeals, both to the High Court and thence to the Supreme Court: Mucelli v. Government of Albania

[2009] UKHL 2

;

[2009] 1 WLR 276

. There are very limited circumstances in which habeus corpus or judicial review may be available in addition to, or instead of, the statutory appeals mechanism: R (Hilali) v. Governor of Whitemoor Prison

[2008] 1 AC 805

; R (Navadunskis) v. SOCA

[2009] EWHC 1292 (Admin)

. Not all decisions made under Part 1 are appealable, for example that relating to the identity of the person concerned or a decision that a copy of the EAW was given to that person as soon as practicable after arrest, as required by section 4(2). Decisions in respect of which no right of appeal is provided by the 2003 Act might be challenged in judicial review proceedings. However, this court has held consistently that decisions made in advance of the extradition hearing itself may not be revisited at the extradition hearing. So, in Nur v. Public Prosecutor Van Der Valk

[2005] EWHC 1874 (Admin)

Richards J held: “As regards identity, the statute does not contemplate that there can be a second bite at the cherry at the extradition hearing in respect of the matter dealt with at the initial hearing.” In Stanczyk v. Circuit Court of Katowice

[2010] EWHC 3651 (Admin)

a question arose under section 4 of the 2003 Act at the outset of the initial hearing over the service of the warrant. The appellant sought to reopen that issue at the extradition hearing. Laws LJ concluded that the judge was correct to refuse to do so, and could not do so.