Bingham, (R on the application of) v City of Westminster Magistrates' Court

For the purposes of section 36 of the Extradition Act 2003, the relevant required period is the ten-day period currently running under the statutory scheme. Where a later date has been agreed, that later period governs the question whether the duty to extradite has been breached. A requested person cannot be discharged under section 36(8) while a valid extended required period remains in force, because there is then no failure to comply with section 36(2). The magistrates’ court should hear the application and determine the statutory question, but it has no power to order discharge where the current required period has not expired.

The claimant had been ordered to be extradited to Spain. Following dismissal of his appeal, the initial required period under section 36 of the Extradition Act 2003 was extended because of travel and administrative difficulties. A further extension was granted on 4 January 2011, after the original period had expired.

The claimant applied for discharge under section 36(8). The District Judge declined to entertain the application, relying on observations in Kasprzak and Others [2011] EWHC 100 (Admin). The issue was whether the application could succeed by reference to the expiry of the original period when, at the time of the District Judge’s decision, a later required period was validly in force.

1. Claim dismissed. The District Judge had no power to order the claimant’s discharge on 3 February 2011. A valid required period, commencing on 2 February 2011 following agreement to a later date, was then still running.
2. Section 36(3) of the Extradition Act 2003 contemplates more than one required period. Each period lasts ten days, but its commencement depends on whether section 36(3)(a) or section 36(3)(b) applies. In this case section 36(3)(b) applied because a later date had been agreed.
3. The question under section 36(8) is whether section 36(2) has been complied with by the time of the application. On 3 February there had been no failure to comply with the relevant required period, since nine days remained. The existence of an earlier expired period did not confer power to order retrospective discharge while a later lawful period remained in force.
4. The thrust of section 36(8) is to provide a safeguard where, absent an extension or reasonable cause for delay, the extraditing authority has no power to continue detaining the requested person. It does not require discharge during the currency of a valid required period.
5. The court was minded to hold that the District Judge should have heard the application, including submissions on compliance with section 36(2). Nevertheless, the outcome was inevitable because discharge would have been contrary to section 36. The decision was therefore neither unlawful nor irrational, and quashing it would serve no practical purpose.
6. The reasoning in R (Asliturk) v City of Westminster Magistrates’ Court [2010] EWHC 2148 (Admin) was relevant but did not establish a direct parallel, since it concerned a different statutory time-limit provision.

• District Judge (Magistrates’ Court: declined to entertain the claimant’s section 36(8) application, relying on paragraph 56 of Kasprzak and Others [2011] EWHC 100 (Admin).
• High Court (Administrative Court): dismissed the judicial review claim. The court held that the District Judge had no power to order discharge while the later required period remained in force, although the application should ordinarily have been heard.