Mechlinski, R (on the application of) v Westminster Magistrates Court & Anor

Under section 35(5) of the Extradition Act 2003, an extradition judge must order discharge unless the requesting state shows reasonable cause for failing to remove the person within the statutory period.

Administrative error may constitute reasonable cause, including some negligent error, but a rigorous approach is required. The requesting state must provide reliable evidence explaining and justifying the delay. The length of the delay may be relevant, while the gravity of the offence is immaterial. A reviewing court should quash and remit where the lower court failed to apply that approach but more than one lawful outcome remains available.

The claimant was ordered to be extradited to Poland on a European Arrest Warrant. He did not appeal, so the statutory removal period expired on 24 May 2015. Poland and the National Crime Agency did not remove him within that period, apparently because they were awaiting action concerning another warrant.

The claimant applied under section 35(5) of the Extradition Act 2003 for discharge. District Judge Devas accepted that there had been a genuine clerical error, treated that as reasonable cause for the delay, extended the removal period and refused discharge. The issue was whether the judge had applied the correct approach to reasonable cause and whether the High Court could substitute its own decision.

1. The court granted permission for judicial review and allowed the claim. The District Judge’s refusal to discharge the claimant was quashed. The application for discharge was remitted to the City of Westminster Magistrates Court for rehearing before a different district judge, with bail renewed on the same terms.

2. Section 35(5) of the Extradition Act 2003 places the onus on those representing the requesting state to explain and justify the delay. The statutory language makes discharge mandatory unless reasonable cause is shown.

3. Applying Desai v City of Westminster Magistrates Court [2014] EWHC 4631 (Admin), the court held that administrative error may amount to reasonable cause. This can include negligence, but not every form of negligence. A rigorous approach is generally required. The length of the delay may be relevant, whereas the gravity of the offence is not.

4. The District Judge’s brief reasoning suggested that he treated a genuine clerical error as automatically sufficient. The evidence did not establish the status or execution of the second European Arrest Warrant. The alleged error might instead have involved a mistaken understanding of the effect of R (Caldarelli) v City of Westminster Magistrates Court [2009] EWHC 107 (Admin).

5. If a short adjournment is needed to obtain accurate evidence, it may properly be granted, particularly where the application was made without notice. The High Court could not substitute its own decision because more than one outcome remained open: see section 31(5A) of the Senior Courts Act 1981.

• High Court (Administrative Court): District Judge Devas refused discharge under section 35(5) of the Extradition Act 2003. The High Court allowed judicial review, quashed that decision and remitted the application for reconsideration.