Desai v City of Westminster Magistrates' Court

Under section 36(8) of the Extradition Act 2003, the question is whether the delay in extradition had a reasonable cause in all the circumstances. Administrative error, and in an appropriate case negligence, may constitute reasonable cause, but a rigorous approach is required. The length of the delay and the circumstances causing it may be relevant. The gravity of the alleged offence is not logically relevant to reasonable cause. A Divisional Court may depart from an earlier Divisional Court decision where satisfied that it was clearly wrong. Accordingly, an agreement under section 36(3)(b) may be made after expiry of the initial ten-day period, notwithstanding the contrary decision in Netecza.

The claimants challenged a decision of the City of Westminster Magistrates' Court refusing discharge under section 36(8) of the Extradition Act 2003. Their extradition to Germany had been ordered and their appeal had become final, but they were not extradited within the statutory ten-day period. The delay resulted from an administrative mistake by the Administrative Court Office, which wrongly informed the National Crime Agency that a further appeal had been lodged. The central issues were whether that mistake constituted reasonable cause and whether the court should revisit Netecza, which had held that a later-date agreement under section 36(3)(b) could not be made after expiry of the initial period.

1. Permission and substantive decision. Permission was granted. The challenge to the magistrates' decision failed, because the delay had a reasonable cause within section 36(8) of the Extradition Act 2003.
2. The statutory scheme must be read in the context of article 23 of the EU Framework Decision. The purpose is prompt extradition, but section 36(8) is a valid domestic unless clause and is not confined to the circumstances expressly described in article 23.
3. Administrative error may constitute reasonable cause and may, in an appropriate case, include negligence. The inquiry is fact-sensitive and requires a rigorous approach. Relevant considerations include the circumstances producing the error, the responsibility of the agency involved, and the length of the resulting delay. The fact that the National Crime Agency itself was not at fault was not conclusive, but its reliance on information from the Administrative Court Office and the short duration of the error supported the conclusion that reasonable cause existed.
4. The gravity of the offence is not logically relevant to whether the delay had a reasonable cause. To the extent that the district judge considered it, that was immaterial, but it did not invalidate the conclusion reached.
5. The court revisited Netecza. Applying Regina v Greater Manchester Coroner, ex parte Tal, the court held that the result in Netecza was erroneous because it failed to address the statutory lacuna created when the initial ten-day period expired without a section 36(3)(b) agreement. A later-date agreement could therefore be sought after expiry, subject to particularly careful scrutiny.
6. The court was the appropriate court to determine the new starting date under section 36(3)(b). The parties were directed to make written submissions and the matter was to be resolved promptly.

• City of Westminster Magistrates' Court: District Judge Devas refused discharge under section 36(8) of the Extradition Act 2003.
• High Court (Administrative Court): The claim for judicial review was dismissed. The court upheld the refusal of discharge and revisited Netecza, permitting consideration of a new date under section 36(3)(b).