Neteczca v Governor of Holloway Prison

Under section 36 of the Extradition Act 2003, a requested person must be extradited within the applicable ten-day period. Once that period has expired without extradition, the person may apply for discharge and the court must order discharge unless reasonable cause for the delay is shown.

The court cannot retrospectively agree a later starting date under section 36(3)(b) so as to avoid the section 36(8) hearing. The statutory distinction between agreeing a later date and extending an expired period is deliberate. The requested person’s protection cannot be circumvented by an ex parte agreement between the court and the requesting authority.

The applicant had been ordered to be extradited to Poland. She withdrew her appeal, which was dismissed by consent on 28 February 2014. The ten-day period under section 36(3)(a) of the Extradition Act 2003 therefore expired on 9 March 2014, but extradition had not occurred.

After the applicant applied for discharge under section 36(8), the Crown Prosecution Service obtained an ex parte direction that a new ten-day period should begin on 8 April 2014. The discharge hearing was consequently removed from the list. The issue was whether that later agreement could lawfully be made after the original period had expired and thereby prevent consideration of reasonable cause for the delay.

1. Disposition. The court permitted a writ of habeas corpus. The section 36(8) discharge issue had to be heard.
2. Section 36(3)(a) identifies the ordinary starting date as the date on which the appeal proceedings become final or are discontinued. Once ten days have expired without extradition, section 36(2) has not been complied with. The first condition in section 36(8) is then satisfied, and an applicant is entitled to a hearing on whether reasonable cause exists for the delay.
3. Section 36(3)(b) permits agreement of a later starting date, but it does not confer an implied power to revive an expired required period. The contrast with sections 31(4) and (5), which expressly permit extensions after expiry, supports that construction. Similar provisions concerning extensions appear in section 54(6) and (7), and section 113(4).
4. The statutory scheme distinguishes the informal, ex parte procedure under section 36(3) from the protective procedure under section 36(8). Under the former, the requested person has no right to be heard and the court need not consider that person’s interests. That procedure cannot be used retrospectively after expiry to remove the right to seek discharge.
5. This interpretation is consistent with the protection historically afforded against delay in extradition and with article 23 of the Framework Decision, which requires release where the surrender time limit has expired. The approach in Hajda v Polish Judicial Authority was rejected. The court also disagreed with the contrary obiter reasoning in Kasprzak v Warsaw Regional Court, Poland.
6. The same reasoning applies by analogy to section 35. It would be incoherent for the judge responsible for considering reasonable cause under section 35(5) to avoid that duty by agreeing a later date after the original period had expired.

The judgment does not state that it was an appeal from a lower court decision. It concerned an application for habeas corpus arising from an extradition order and an ex parte agreement fixing a later starting date.