Asliturk (aka Coste) v The City of Westminster Magistrates' Court

A statutory restriction on legal proceedings is construed narrowly but sensibly. A refusal to discharge a person under section 75(4) of the Extradition Act 2003 is not a decision within section 116 and may therefore be challenged by judicial review or habeas corpus. An application under section 75(4) must, however, be made before the extradition hearing begins, even where the hearing began after the date fixed by the judge. The statutory scheme is arranged chronologically, and allowing a belated application after the hearing had begun would produce an unreasonable result.

The claimant sought judicial review of the refusal by a District Judge at the City of Westminster Magistrates’ Court to order his discharge under section 75(4) of the Extradition Act 2003. The extradition hearing was fixed for 30 April 2010 but formally opened on 4 May, after the claimant had not been produced on the earlier date. He applied for discharge on 28 June.

The Government of Turkey opposed the application, arguing that section 75(4) required any application to be made before the extradition hearing began. The court had to determine both whether section 116 excluded judicial review or habeas corpus and whether section 75(4) remained available after the hearing had begun.

1. Judicial review jurisdiction. Section 116 of the Extradition Act 2003 restricts the manner of recourse to the court and must be construed narrowly but sensibly. A refusal under section 75(4) is not a decision for the purposes of section 116. The judge has no discretion under section 75(4): if the application is made at the appropriate time, discharge must be ordered.
2. The statutory language distinguishes the mandatory discharge mechanism in section 75(4) from provisions requiring the judge to decide questions under sections 78 to 87. Section 116 must also be read with sections 103 and 105. A refusal under section 75(4) is neither the decision resulting in the case being sent to the Secretary of State nor the decision resulting in the person’s discharge. Judicial review and habeas corpus were therefore available.
3. Timing of the application. Although section 75(4), read in isolation, might suggest that an application could be made after the fixed date, Part 2 establishes a chronological sequence. Sections 75 and 76 concern the period before the hearing, section 77 concerns the powers of the judge at the hearing, and sections 78 and 79 concern its initial stages. Where Parliament intended a provision to operate at any time during the hearing, it said so expressly.
4. The counterpart provisions in section 8 support the conclusion that discharge for delay is to be considered before or at the first hearing after the fixed date, not for the first time after the extradition hearing has begun. A contrary interpretation would permit a prolonged hearing, including related proceedings and substantial costs, to be defeated by a later unanswerable application.
5. The application under section 75(4) therefore had to be made before the extradition hearing began. Permission to apply for judicial review was granted, but the substantive claim was dismissed.

The judgment describes an earlier Divisional Court decision concerning the claimant’s detention: [2010] EWHC 1720 (Admin). That decision did not consider section 75 and did not determine the present application.

This court granted permission to apply for judicial review but dismissed the substantive claim.