Asliturk v HMP Wandsworth

On a prosecution appeal against the grant of bail in extradition proceedings, the High Court may order continued custody under section 1(9) of the Bail Amendment Act 1993, but must act consistently with the custody safeguards in sections 128 and 128A of the Magistrates' Courts Act 1980. Those safeguards do not require literal compliance where the person concerned is not before the appellate court, provided the order does not place that person in a worse position than an equivalent magistrates' court remand. A first-instance magistrates' court cannot reopen or disregard a binding appellate order. Where there has been no material change in circumstances and there are substantial reasons to believe that the person will abscond, bail should be refused. Earlier unlawful custody does not invalidate a lawful order currently in force, absent bad faith or deliberate manipulation.

The proceedings concerned two linked matters. The Crown Prosecution Service, acting for Turkey, appealed under section 1(1A) of the Bail Amendment Act 1993 against District Judge Purdy's decision at Westminster Magistrates' Court on 2 June 2010 to grant Orhan Asliturk conditional bail in extradition proceedings. Mr Asliturk applied for habeas corpus, arguing that earlier remand orders were unlawful.

He had previously been remanded in custody by District Judge Tubbs, by Keith J on 6 May, and by District Judge Purdy on 1 June. The central issues were whether the custody orders were lawful, whether the magistrates' court could review Keith J's order, and whether bail should nevertheless be granted.

1. Lawfulness of remands. The remand from 23 to 30 April was lawful under section 72(7)(c) of the Extradition Act 2003. The court left unresolved whether the remand from 30 April to 4 May was authorised by section 128(3C) of the Magistrates' Courts Act 1980, but held that any illegality during that period did not affect later lawful custody.
2. The remand from 4 to 6 May was required by section 1(6) of the Bail Amendment Act 1993 after the prosecution gave notice of appeal. Keith J's order on 6 May was made under section 1(9) of that Act. Although the High Court was not directly bound by sections 128(6) and 128A(2) of the 1980 Act, it had to act consonantly with the safeguards they conferred. The order was lawful because, had custody been ordered on 4 May, the magistrates' court could have remanded Mr Asliturk until the next procedural stage on 29 June.
3. The one-day remand on 1 June was lawful under section 128(3C) and section 128(3D) of the 1980 Act, since the extradition hearing had begun on 4 May and the shortest necessary adjournment was used. The remand on 2 June was also lawful because section 1(6) required custody after the renewed bail appeal.
4. District Judge Purdy was not entitled to determine that Keith J's order was unlawful or to disregard it. The proper route was an application to Keith J or an appeal to the Court of Appeal. Article 5(4) of the Convention and section 6 of the Human Rights Act 1998 did not confer power on the court of first instance to reopen the appellate ruling.
5. On the merits, there had been no material change since Keith J's decision. The alleged fraud, the likely substantial sentence, previous flight, travel to Cyprus, access to false documents, doubts concerning the proposed address, substantial debts and limited community ties supplied very substantial reasons to believe that Mr Asliturk would fail to surrender. Conditions could not adequately address that risk.
6. The prosecution's appeal was allowed. The habeas corpus application was refused. Mr Asliturk was remanded in custody until 29 June 2010 for production at Westminster Magistrates' Court.

• High Court (Administrative Court): allowed the prosecution's appeal against District Judge Purdy's bail decision and refused habeas corpus.
• Westminster Magistrates' Court: District Judge Purdy granted conditional bail on 2 June 2010, treating Keith J's earlier remand order as unlawful. That decision was reversed by the High Court.