Chen v Government of Romania

Under the Extradition Act 2003, a question remitted by the High Court must be defined with precision. If the district judge reaches the same decision on the remitted question, the appeal is deemed dismissed under section 104(7), and the decision is not ordinarily open to statutory appeal or judicial review. If the judge reaches a different decision, section 104(6) requires discharge where that is the statutory consequence. A judge conducting a remitted hearing must not decide matters outside the remit or send the case again to the Secretary of State. Judicial review remains available where the judge exceeds the statutory jurisdiction, because section 116 cannot protect a decision made without jurisdiction.

Two linked extradition matters concerned the consequences of remittal under Part 2 of the Extradition Act 2003.

In Chen’s case, the High Court had remitted the passage-of-time question to the district judge. She reached the same conclusion as before, and Chen sought a further statutory appeal and judicial review.

In Mitoi’s case, the High Court had remitted the question whether he had deliberately absented himself from trial. The district judge answered that question differently, but continued to consider retrial rights and sent the case again to the Secretary of State.

The central issues were the effect of sections 104(6) and (7), the scope of a remitted question, and whether judicial review was available.

1. Chen. Chen had no further statutory appeal against the district judge’s adverse redetermination. The question remitted was whether extradition was barred by the passage of time under section 79(1)(c). The judge answered that question in the same way as before. Section 104(7) therefore deemed the original appeal to have been dismissed by the High Court. Section 116 prevented the decision being questioned by judicial review. The reasoning in R (Okandeji) v Bow Street Magistrates Court and others [2006] 1 WLR 674; [2005] EWHC 2925 (Admin) (DC) was approved and applied. Chen’s appeal and judicial review application failed.

2. Mitoi. The remitted question concerned only whether Mitoi had deliberately absented himself under section 85(3). The district judge answered it differently from her original decision. Section 104(6) therefore required her to discharge him. She had no power to continue through sections 85(5) and (8), reconsider retrial rights, or send the case again to the Secretary of State under section 87(3).

3. A remitted question must be formulated precisely, and the order should identify any consequential statutory questions that may arise if the answer changes. In an appropriate case the question should be framed as whether the person is entitled to discharge under section 85, rather than isolating one stage of the statutory sequence.

4. Judicial review was nevertheless available against the district judge in Mitoi’s case. By deciding matters outside the remit and making a second sending order, she acted outside the powers conferred by the Act. The principle in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 applied, so section 116 did not exclude review. Mitoi’s claim against the district judge succeeded. His application concerning the Secretary of State was refused.

The judgment concerned appeals and judicial review applications arising from earlier decisions of the Divisional Court in the two extradition matters. In Chen’s case, the earlier court dismissed the appeal on the conviction-in-absence issue but remitted the passage-of-time question. In Mitoi’s case, it remitted the question whether he had deliberately absented himself and directed application of the criminal standard of proof.

The present court dismissed Chen’s appeal and judicial review application. It granted judicial review against the district judge in Mitoi’s case, refused permission concerning the Secretary of State, and held that Mitoi should have been discharged.