Balazs v Crown prosecution Service

Under section 36 of the Extradition Act 2003, the requested person’s right to apply for discharge crystallises when the required period has expired without lawful extension. A later agreement extending time cannot remove that accrued right or prevent the magistrates’ court from deciding the application. The statutory power to agree a later surrender date remains available for the future, including after expiry of the initial period and after a discharge application has been lodged. Section 36 therefore creates parallel regimes: one protects against continued detention after the surrender period, while the other permits continuing arrangements for execution of the European arrest warrant.

The applicant was subject to an order for extradition to Hungary. Following dismissal of his appeal, the initial ten-day period under section 36 of the Extradition Act 2003 expired on 9 August 2018 without his removal. The authorities subsequently obtained extensions of time, and the applicant applied to Westminster Magistrates’ Court for discharge under section 36(8).

The magistrates’ court concluded that it lacked jurisdiction because the High Court had already extended the removal period. The applicant sought a writ of habeas corpus. The central issues were whether the required period could be extended after its initial expiry and whether a later extension could circumvent, or deprive the magistrates’ court of jurisdiction to determine, an earlier discharge application.

1. The writ was granted. Westminster Magistrates’ Court was directed to list, hear and determine the applicant’s section 36(8) application as soon as possible.
2. The court followed Desai v Westminster Magistrates’ Court [2014] EWHC 4631 (Admin) on the first issue. An agreement under section 36(3)(b) may be made after expiry of the initial ten-day period. Desai had departed from R (Netecza) v Governor of Holloway Prison [2014] EWHC (Admin) 2098; [2015] 1 WLR 1337 to that extent, and was not clearly wrong.
3. On the second issue, section 36(8) confers a statutory right to apply for discharge as soon as section 36(2) has not been complied with. Compliance is assessed when the application is lodged. Once the right has crystallised, a later application or agreement under section 36(3)(b) cannot take it away or relieve the magistrates’ court of its duty to decide the application.
4. The court accepted the policy reasoning in Netecza that the discharge safeguard cannot be circumvented by retrospective agreement. It rejected the contrary effect of R (Hajda) v Polish Judicial Authority [2013] EWHC 1080 (Admin) on that issue. The later agreements in the present case nevertheless remained valid for the future.
5. This interpretation was consistent with Criminal Proceedings v Vilkas (C-640/15); [2017] 4 WLR 69. Article 23 of the Framework Decision establishes parallel regimes for detention and for agreement of further surrender dates. The court did not decide the possible consequences of a successful discharge application for the European arrest warrant itself.

The judgment itself records that the applicant’s extradition appeal had been dismissed by the Divisional Court on 16 July 2018. The present application was a first-instance habeas corpus application in the Administrative Court.