Verde v Westminster Magistrates' Court & Anor

Detention authorised by a valid court order cannot ordinarily be challenged by habeas corpus merely because the detainee disputes a later public-law decision concerning the implementation of extradition. Such a challenge should be brought by judicial review.

Under section 47 of the Extradition Act 2003, a district judge may agree more than one later starting date for the extradition period where extradition is prevented by circumstances beyond the control of the member states, including difficulties caused by the coronavirus pandemic. The detainee has no legal entitlement to notice of, or participation in, the agreement process, although notification is good practice.

The applicant was detained at HMP Wandsworth following an order under section 46 of the Extradition Act 2003 for his extradition to Holland. He had consented to extradition, but the extradition could not take place within the statutory period because of disruption caused by the coronavirus pandemic.

A district judge agreed on three occasions that the ten-day extradition period should begin on a later date. The applicant sought habeas corpus, alternatively a direction that the proceedings continue as an application for judicial review. He argued that repeated or lengthy extensions were unlawful and that he should have received notice and an opportunity to make representations.

The central issues were whether habeas corpus was available and whether the proposed judicial-review grounds were arguable.

1. Procedure. The habeas corpus application was dismissed. The applicant was detained pursuant to the district judge’s order under section 46(2) of the Extradition Act 2003. The later agreements under section 47(3) concerned only the machinery and timing of extradition. They did not replace the detention order or provide the authority for detention.
2. A challenge alleging that the agreement was outside the statutory power or procedurally improper was a public-law challenge to be brought by judicial review, not habeas corpus. The court followed the approach in Jane v Westminster Magistrates’ Court and the authorities there discussed.
3. Power to extend the extradition period. The proposed grounds were not arguable. The materially identical issue had already been decided in Cosar and others v Governor of HMP Wandsworth and others. Section 47(3) permitted a later starting date where the pandemic made extradition impossible. The power could be exercised more than once. The fact that the applicant had consented to extradition did not alter that conclusion.
4. Procedure and Convention rights. Section 47 did not confer a legal entitlement to notice of the request, representation, or a hearing before the agreement was made. Notification of the agreement was good practice, but the agreement’s validity did not depend upon it. The detention was compatible with article 5 of the Convention because it followed an extradition hearing and remained subject to legal safeguards, including bail and judicial review.
5. The application to continue as an application for permission to apply for judicial review was refused because permission would inevitably be refused. The applicant remained lawfully detained under the section 46(2) order.