Cosar v HMP Wandsworth & Ors

Challenges to the lawfulness of an extradition-period extension are ordinarily matters for judicial review, not habeas corpus, where detention remains authorised by the original remand order.

Section 35 of the Extradition Act 2003 permits a district judge and the issuing judicial authority to agree more than one later starting date. During exceptional circumstances such as the coronavirus pandemic, extensions may be agreed where extradition is temporarily prevented by serious humanitarian reasons or circumstances beyond the states’ control. Each extension should be for as short a period as reasonably possible and should reflect the changing circumstances.

The statutory process does not generally require notice of the request or a hearing at which the requested person may participate. Notification of an agreed extension and continuing access to legal advice are, however, good practice.

Two applicants challenged their detention pending extradition under European Arrest Warrants to Romania and Poland. Each had been ordered to be extradited and remanded in custody under section 21(4) of the Extradition Act 2003. District judges subsequently agreed later starting dates for the statutory ten-day extradition period because coronavirus restrictions prevented travel.

The first applicant remained detained and sought habeas corpus or judicial review. The second applicant had been released after the Polish warrant was withdrawn. The issues included the availability of habeas corpus, whether section 35 permitted repeated or effectively indefinite extensions, whether the required agreement existed, and whether procedural fairness, the Criminal Procedure Rules or article 5 of the Convention required notice and participation.

1. Disposition. Both habeas corpus applications were dismissed. The first applicant’s application was treated as an application for permission to apply for judicial review. Permission was granted, but the substantive claim was dismissed. No judicial-review claim was permitted for the second applicant because it was academic after his release.
2. Detention remained authorised by the district judge’s order under section 21(4) of the Extradition Act 2003. An agreement under section 35(4) concerned the machinery and timing of extradition. It did not replace or supersede the remand order. Any public-law challenge to the agreement therefore had to be brought by judicial review.
3. The statutory purpose was rapid extradition, but section 35(4) contained no express or implied limit of one extension. The reasoning in Vilkas supported the conclusion that repeated changes of surrender date could be agreed. The extensions caused by the pandemic fell within serious humanitarian reasons and circumstances beyond the control of the states under article 23 of the Framework Decision.
4. Extensions should be for as short a period as possible. A specified later date could be agreed and reconsidered if circumstances continued to prevent extradition. The agreements in these cases were genuine and were not an unlawful attempt to postpone extradition indefinitely.
5. Information exchanged through the SIRENE Bureaux established communication between the issuing judicial authorities and the executing district judge. The statutory requirement for agreement was therefore satisfied.
6. The process was sui generis and independent of extant extradition proceedings. Neither section 35 nor common-law fairness required advance notice of the request, participation by the requested person, or a public hearing. Criminal Procedure Rules Part 50.3 did not apply to impose those requirements. Article 5 was not breached because detention was lawful and remedies including bail and judicial review remained available.
7. Notification of an agreed later date was not a condition of validity, but it was good practice. In the exceptional circumstances, continued access to legal advice and representation should also be facilitated.

Not an appeal. The judgment determined two applications for habeas corpus and related judicial-review relief at first instance.