Taylor v HMP Wandsworth & Ors

The jurisdiction to reopen a final extradition appeal is residual and exceptional. Under CPR 52.17, its cumulative conditions must all be met: reopening must be necessary to avoid real injustice, the circumstances must be exceptional and make reopening appropriate, and there must be no alternative effective remedy.

For extradition under Part 2 of the Extradition Act 2003, a person who relies on a material post-appeal change affecting Convention rights should ordinarily make representations to the Secretary of State and, if necessary, seek judicial review. That procedure is capable of providing an effective remedy. Reopening the statutory appeal would ordinarily be unnecessary, inappropriate and liable to cause duplication and delay.

The applicant’s statutory extradition appeal had previously been dismissed by the Divisional Court. After the extradition order and exhaustion of appeal rights, his serious heart condition deteriorated substantially. He sought permission under CPR 52.17 to reopen the earlier determination, relying principally on section 91 of the Extradition Act 2003 and on Convention rights.

The issue was whether, in a Part 2 extradition case, the applicant was confined to making fresh human-rights representations to the Secretary of State, subject to judicial review, or could also seek to reopen the court’s final determination.

1. Application refused. Permission to apply under CPR 52.17 to reopen the previous determination was refused. The decision on permission was final under CPR 52.17(7).
2. The jurisdiction to reopen a final determination is residual and must be exercised only rarely. The three conditions in CPR 52.17 are cumulative: reopening must be necessary to avoid real injustice; the circumstances must be exceptional and make reopening appropriate; and there must be no alternative effective remedy.
3. Ignaoua v Judicial Authority of the Courts of Milan [2008] EWHC 2619 (Admin) established the possibility, in principle, of reopening a Part 1 extradition appeal where a material change undermined the factual basis for the court’s Convention conclusion and no other protection was available. Part 2 was materially different because the Secretary of State had an important role and remained subject to the Human Rights Act 1998.
4. After appeal rights have been exhausted, fresh representations to the Secretary of State on Convention grounds, followed by judicial review of any adverse decision, provide an effective remedy. The Secretary of State’s decision may be taken on the papers, and the procedure is sufficiently flexible to address changing circumstances, including declining health. The availability of bail was a subsidiary matter and was addressed by section 92(4) and (5) of the 2003 Act.
5. The court accepted that section 91 might, in theory, permit resistance to extradition in a case compatible with the Convention. That possibility did not make reopening necessary to avoid real injustice. Reopening would duplicate the post-appeal procedure and risk delay contrary to the legislative scheme. A highly exceptional case might conceivably justify reopening, but the present case did not.

The applicant’s earlier statutory extradition appeal was dismissed by a Divisional Court on 17 October 2007. The present Divisional Court refused permission to reopen that final determination under CPR 52.17.