“(1) If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order…”
“(1) A Part 1 warrant issued in respect of a person is disposed of— (a) when an order is made for the person’s discharge in respect of the warrant and there is no further possibility of an appeal; (b) when the person is taken to be discharged in respect of the warrant; (c) when an order is made for the person’s extradition in pursuance of the warrant and there is no further possibility of an appeal. (2) A request for a person’s extradition is disposed of— (a) when an order is made for the person’s discharge in respect of the request and there is no further possibility of an appeal; (b) when the person is taken to be discharged in respect of the request; (c) when an order is made for the person’s extradition in pursuance of the request and there is no further possibility of an appeal.” (a) when an order is made for the person’s discharge in respect of the warrant and there is no further possibility of an appeal; (b) when the person is taken to be discharged in respect of the warrant; (c) when an order is made for the person’s extradition in pursuance of the warrant and there is no further possibility of an appeal. (b) when the person is taken to be discharged in respect of the request; (c) when an order is made for the person’s extradition in pursuance of the request and there is no further possibility of an appeal.”
“The attempt by the requesting authority to extradite the applicant for his trial on very serious charges has been prolonged and strongly contested. Expedition, for which the Framework Decision and the 2003 Act provide, is primarily in the interests of the administration of justice in the jurisdiction to which removal is sought. Delay is to be avoided. The interests of persons resisting extradition must also be respected, but provisions plainly directed to ensuring prompt extradition in the interests of the requesting authority (article 23 and section 36) should not readily be defeated by an administrative error, or an error of law in considering the length of time allowed, which has resulted in a very short delay in protracted proceedings involving very serious offences.”
“Time limits for surrender of the person 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released.”
“68. … it should be pointed out that it follows from settled case-law of the Court that the principle of mutual recognition, which is the ‘cornerstone’ of judicial cooperation, means, pursuant to Article 1(2) of the Framework Decision, that Member States are in principle obliged to give effect to a European arrest warrant (see, by analogy, judgment of16 July 2015 , Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 36). 69. Therefore, in the light, first, of the central function of the obligation to execute the European arrest warrant in the system put in place by the Framework Decision and, secondly, of the absence of any explicit indication in the Framework Decision as to a limitation of the temporal validity of that obligation, the rule set out in Article 15(1) of the Framework Decision cannot be interpreted as meaning that, once the time limits prescribed in Article 23 of the Framework Decision have expired, the executing judicial authority is no longer able to agree on a new surrender date with the issuing judicial authority or that the executing Member State is no longer required to carry on with the procedure for execution of the European arrest warrant (see, by analogy, judgment of16 July 2015 , Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 37). 70. Moreover, whilst the EU legislature expressly specified, in Article 23(5) of the Framework Decision, that expiry of the time limits referred to in Article 23(2) to (4) means that the requested person is to be released if he is still being held in custody, it did not confer any other effect on the expiry of those time limits and did not, in particular, provide that their expiry deprives the authorities concerned of the possibility of agreeing on a surrender date pursuant to Article 23(1) of the Framework Decision or that it releases the executing Member State from the obligation to give effect to a European arrest warrant (see, by analogy, judgment of16 July 2015 , Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 38). 71. Furthermore, an interpretation of Articles 15(1) and 23 of the Framework Decision to the effect that the executing judicial authority should no longer surrender the requested person or agree, for that purpose, on a new surrender date with the issuing judicial authority after the time limits referred to in Article 23 of the Framework Decision have expired would run counter to the objective pursued by the Framework Decision of accelerating and simplifying judicial cooperation, since such an interpretation could, in particular, force the issuing Member State to issue a second European arrest warrant in order to enable a new surrender procedure to take place within the time limits laid down by the Framework Decision (see, by analogy, judgment of16 July 2015 , Lanigan, C-237/15 PPU, EU:C:2015:474, paragraph 40). 72. It follows from the foregoing that the mere expiry of the time limits prescribed in Article 23 of the Framework Decision cannot relieve the executing Member State of its obligation to carry on with the procedure for executing a European arrest warrant and to surrender the requested person, and the authorities concerned must agree, for that purpose, on a new surrender date.”
“18. Habeas corpus is directed to the lawfulness of a person's detention. Section 34 is silent as to the right to challenge by habeas corpus the lawfulness of continuing detention resulting from an erroneous decision of a judge under sub-s 4(5) not to discharge the claimant. True by sub-s 4(6) a person is to be treated as continuing in legal custody until he is discharged under sub-s (5) but I would not regard lawful custody as continuing after a decision is taken not to discharge him when he should have been discharged. Absent a right of appeal, did Parliament really intend habeas corpus should not be available? Did Parliament really intend that a person who ought to have been discharged because he should have been brought before the appropriate judge sooner, but nevertheless remains in custody, should have no remedy? In my view the passages from Hansard that I have cited make the answer clear beyond a peradventure. It would in my judgment require the strongest words in a provision such as s 34 to remove the ancient remedy of habeas corpus. 19. In Linnett v Coles[1986] 3 All ER 6523 at 656,[1987] QB 555 at 561 Lawton LJ said that a writ of habeas corpus was probably the most cherished sacred cow in the British Constitution; but the law had never allowed it to graze it in all legal pastures. However, the one legal pasture in which it has grazed freely for many years is extradition, as is apparent from the House of Lords debate to which I have referred. For my part I am unpersuaded the 2003 Act has condemned this pasture to set aside. In my judgment the remedy is available in this case and the court has jurisdiction to entertain the claimant's application.”
“8. I have to say at the outset, although this point has not been taken by the requesting authority, that I have real doubts as to whether habeas corpus is the appropriate procedure in this case. The claimant is detained in prison pursuant to an order of the court that is, on its face, perfectly valid and within the jurisdiction of the court. That is not in dispute. The true target of the challenge is not the prison governor but the district judge, the case being that he erred in declining to order discharge. That seems to me to be a challenge properly brought by way of judicial review against the Magistrates' Court, not by way of habeas corpus against the prison governor. One can look, for example, to R v Oldham Justices ex p Cawley[1997] 1 QB 1 and to the White Book at paragraph 54.1.5. Miss Powell has referred us to Nikonovs v Governor of HMP Brixton[2005] EWHC Admin 2405 , paragraph 19, as to the availability of habeas corpus. It does not seem to me that the issue I have raised is addressed in that judgment. 9. I do not propose to insist on the procedural niceties in the present case or to direct that the case proceed as a claim for judicial review. I shall simply deal with the substantive issues raised. That should not however be taken as an endorsement for the future of the procedure that has been adopted here.”
“A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant or underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.”
“The reality is that as judicial review has developed into an ever more flexible and responsive jurisdiction, the need for a parallel, blunter remedy by way of habeas corpus has diminished. That said, this ancient writ plainly remains part of our constitutional heritage and it is certainly not for this Court to deny a jurisdiction which in law it enjoys. The question is: in what circumstances is it available?”
“Clearly it is not available in all cases by the mere fact of the applicant being in custody.”
“I return to the present case. In my judgment habeas corpus has no useful role to play in reviewing decisions of the nature here under challenge. I recognise, of course, that where it applies, it enjoys precedence over all other court business, reverses the presumption of regularity of the decisions impugned, and issues as of right. In practice, however, no less priority is accorded to judicial review cases involving the liberty of the subject; the presumption counts for little in such cases (is indeed effectively reversed by a defective warrant), and the court would be unlikely in its discretion to withhold relief if the actual decision to detain were found legally flawed. Importantly, moreover, in judicial review the court has wider powers of disposal: whereas in habeas corpus the detention is either held unlawful or not, and the applicant accordingly freed or not, on judicial review the matter can be remitted to the justices with whatever directions may be appropriate. Furthermore, on judicial review the challenge is directed where it should be – at the justices – rather than at the prison authorities whose involvement is in truth immaterial. For my part, therefore, I would hold that habeas corpus is neither a necessary, recognised nor appropriate remedy in the present case; rather the applicants’ detention can in my judgment only properly be challenged by judicial review.”
“Perhaps it is, but it seems to me difficult for this Court now to say so.”
“if X, then the relevant judicial authorities will contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed”
“… (4) Where the High Court makes an order [for surrender], it shall … — (a) … (b) order that that person be detained in a prison … for a period not exceeding 25 days pending the carrying out of the terms of the order, and (c) direct that the person be again brought before the High Court— (i) if he or she is not surrendered before the expiration of the time for surrender under subsection (3A), as soon as practicable after that expiration, or (ii) if it appears to the Central Authority in the State that, because of circumstances beyond the control of the State or the issuing state concerned, that person will not be surrendered on the expiration referred to in subparagraph (i), before that expiration. (5) Where a person is brought before the High Court pursuant to subsection (4)(c), the High Court shall— (a) if satisfied that, because of circumstances beyond the control of the State or the issuing state concerned, the person was not surrendered within the time for surrender under subsection (3A) or, as the case may be, will not be so surrendered— (i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person, and (ii) order that the person be detained in a prison … (b) in any other case, order that the person be discharged.”
“This appeal raises a single issue relating to the interpretation of various subsections of section 16 of the 2003 Act … where a requested person has not been surrendered within the time limits firstly prescribed, by that section, due to circumstances beyond the control of the state (meaning a force majeure), it is possible, pursuant to section 16(5)(a), to extend the time for surrender and to fix a new date for that purpose.”
“It is clear from the above that the principle of conforming interpretation cannot be used to lead to an interpretation of national law contra legem. This concept of ‘contra legem’ is frequently used in EU law. The Latin phrase means ‘against the law’. Often the case law of the CJEU will simply refer to the prohibition on a contra legem interpretation without elaborating on what precisely this means. However, the meaning of the concept is somewhat intuitive although generally well understood at a surface level: it is that a court cannot adopt an interpretation which goes against the express wording of a provision. Put differently where it is not reasonably possible to construe a national measure in conformity with its EU counterpart, to do so would be against the law. If a conflict of that scale exists, a court must give preference to its domestic provisions.”
“… we now know, as did the Court of Appeal, what precisely is meant by Article 23 [of the Framework Decision]. Multiple extensions are permissible. However, as stated, the unambiguous wording of section 16 leads to the opposite conclusion in the domestic context: no more than one new date may be set under the Act. The question, therefore, remains whether the principle of conforming interpretation can be utilised so as to, in effect, displace the view based on the plain terms of the section, and thus arrive at the contrary conclusion. In my opinion, it cannot. Notwithstanding the importance of this principle, there are, as above described, clear limits to its breadth. Any ambiguity in the section could properly be resolved by reference to the EU instrument sought to be transposed. Where, however, there is no ambiguity in the words of the domestic provision to begin with, it would be too much of a stretch on the principle of conforming interpretation to arrive at an interpretation that the plain terms of the section simply cannot bear.”
“… In short, it determined that the mere expiry of those periods cannot relieve the executing Member State of its obligation to carry on with and to finalise the execution process, by ultimately having the requested person surrendering: new dates must be agreed for this purpose. The only consequence of noncompliance was that the subject person must be released if still being held in custody (Article 23(5)).”
“It is undoubtedly true that Article 23 does not mandate or regulate custody issues: such is a matter for the Member State concerned. However, it is difficult to see how if release is to be truly unqualified, unrestricted and without any form of constraint, that State can comply with its obligations under the [Framework Decision]. …” [Framework Decision]. …”
“111. The views of the CJEU on this issue may have immediate consequences for the provisions referred to at para. 103 above. As noted, the Irish Act uses the term ‘discharge’ rather than ‘release’. The issue thus arises as to whether that word in both s. 16(5A)(b) and s. 16(5)(b) can be given a conforming interpretation which accords with the meaning intended by the CJEU? 112. As a matter of Irish law, certainly in the criminal and related spheres, the ‘discharge’ of a person from custody means a full and unconditional discharge from the process that he has been subject to. Such marks the end of whatever proceedings are then in train. It is also my understanding that, prior to the decision of the CJEU in this case, as a matter of practice where a requested person was ‘discharged’ pursuant to section 16(5)(b) or 16(5A)(b), that meant an unrestrictive and unequivocal discharge, as in fact occurred in this instance. No case was cited and I know of none where the consequence did not follow. 113. On the other hand the word ‘release’ has a much more restricted meaning which is entirely different from what a discharge entails. A release generally though not always, is conditioned either by duration, terms or obligations. The phrase ‘release on bail’ is a good illustration of what the term means. Even when unconditioned however, its meaning is generally regarded as being a considerable distance from that of the word discharge.”