Jane v Westminster Magistrates' Court & Ors

Where a requested person is not surrendered within the statutory period, administrative error may constitute reasonable cause for the delay under section 36(8) of the Extradition Act 2003. The strict force majeure approach in Article 23(3) of the European Arrest Warrant Framework Decision concerns extensions of the surrender period and does not govern the domestic meaning of reasonable cause.

The expiry of Article 23 time limits has only the consequence expressly stated in Article 23(5): release of a person still held in custody. It does not terminate the executing state’s obligation to continue the surrender process. A challenge to a magistrates’ court decision refusing discharge should ordinarily be brought by judicial review, not habeas corpus, because the true target is the court’s decision rather than the legality of detention by the custodian.

The applicant was subject to an accusation European Arrest Warrant issued by Lithuania. His extradition was ordered by Westminster Magistrates’ Court and the High Court later dismissed his statutory appeal after receiving sufficient assurances concerning prison conditions.

The period for seeking certification to appeal expired on 29 October 2018. The applicant was not removed within the ensuing ten-day period because of administrative failures and a miscalculation of the final date. The district judge refused an application for discharge under section 36(8) of the Extradition Act 2003.

The applicant sought habeas corpus, alternatively judicial review, arguing that there was no reasonable cause for the delay and that the CJEU’s decision in Vilkas required a strict force majeure test.

1. Procedure. The court treated the habeas corpus application as an application for permission to bring judicial review, granted permission, and dismissed the claim. Habeas corpus was inappropriate because the applicant’s real target was the district judge’s refusal to order discharge. The court order provided lawful authority for any detention, while judicial review supplied the appropriate means of challenging the decision for error of law or irrationality. Judicial review also permitted remittal and other flexible relief.
2. Article 23 and domestic law. Article 23 was analysed in three stages. Article 23(2) imposes the ordinary ten-day surrender obligation. Articles 23(3) and (4) identify circumstances in which the judicial authorities may agree a new surrender date. Article 23(5) provides that, on expiry of the relevant periods, a requested person still in custody must be released. Release from custody is the only consequence expressly prescribed by the Framework Decision.
3. The CJEU’s decision in Criminal Proceedings concerning Vilkas concerned the force majeure condition for extending the surrender period under Article 23(3). It did not alter the domestic interpretation of section 36(8). The mere expiry of the Article 23 periods does not relieve the executing state of its obligation to continue executing the warrant and surrender the requested person. The Advocate-General’s observations concerning unconditional release were not adopted by the CJEU and could not control the result.
4. The Irish decisions in Minister for Justice and Equality v Vilkas and Minister for Justice and Equality v Skiba turned on the wording of the Irish statute and did not require a different interpretation of the United Kingdom Act. The established domestic approach remained applicable: administrative error may amount to reasonable cause for delay.
5. On the evidence, the district judge was entitled to find reasonable cause for the short delay, including the late notification and resulting inability to arrange surrender. His assessment was open to him and was not irrational. The judicial review claim was therefore dismissed.

This was a first-instance judicial review decision of the Divisional Court. The court granted permission for judicial review after treating the habeas corpus application as such, but dismissed the claim.