Nikonovs v HM Prison Brixton & Anor

Section 34 of the Extradition Act 2003 does not remove the common-law remedy of habeas corpus for unlawful detention under Part I. Stronger words would be required to exclude that ancient remedy. Where a person is arrested under a Part I warrant, section 4(3) requires production before the appropriate judge as soon as practicable. The statutory criterion is practicability, not reasonably practicability, and no fixed period is prescribed. If that requirement is breached, section 4(5) requires discharge. Habeas corpus is available where the refusal to discharge is Wednesbury unreasonable or irrational. A mistaken belief that the court is closed, when production was practicable, may satisfy that threshold.

The claimant was arrested in England under a European Arrest Warrant issued by a Latvian court. He was not brought before the appropriate judge until nearly 66 hours after his arrest at the police station, because the conveying service mistakenly believed that Bow Street Magistrates Court was closed on the Saturday.

The district judge refused an application for discharge under section 4(5) of the Extradition Act 2003. The claimant sought habeas corpus, arguing that section 4(3) had not been complied with. The issues were whether habeas corpus remained available despite section 34 and whether he had been brought before a judge as soon as practicable.

1. Availability of habeas corpus. Section 34 of the Extradition Act 2003 provides that a decision under Part I may be questioned only by appeal under that Part. However, the court held that it did not exclude habeas corpus in relation to the lawfulness of continuing detention following a refusal to discharge under section 4(5). The Parliamentary statements considered under Pepper v Hart confirmed that Parliament intended the common-law remedy to remain available. The court stated that the remedy could be excluded only by the strongest words.
2. Production as soon as practicable. Section 4(3) uses practicability rather than reasonably practicability and does not impose a fixed period. Although marginal cases may permit differing conclusions, this was not such a case. The court was satisfied that production on the Saturday was practicable, and that the delay resulted only from the mistaken belief that the court was closed.
3. Effect of the breach. The district judge should have ordered release under section 4(5), because the claimant had not been brought before an appropriate judge as soon as practicable and was no longer lawfully detained. Habeas corpus lay because the refusal to discharge was Wednesbury unreasonable or irrational: no reasonable judge could have reached that conclusion on the facts.
4. Pinto. Pinto v the Governor of HM Prison Brixton and the First Section of the Criminal Court in Lisbon was distinguished. That case concerned the validity of the arrest warrant and the jurisdiction to act under it, rather than a decision refusing discharge under section 4(5).
5. The claimant’s application for a writ of habeas corpus was granted.

First-instance decision of the Divisional Court of the Queen’s Bench Division. The court granted the claimant’s application for a writ of habeas corpus.