Polakowski & Ors v Westminster Magistrates Court & Ors

Where detention or conditional bail is authorised by a court order, a challenge based on public law error should ordinarily be brought by judicial review, not habeas corpus. Habeas corpus remains appropriate where there is a proper basis for saying that no authority exists for the detention. In extradition cases involving arrests under Part 1 warrants before the end of the transition period, the unamended Extradition Act 2003 continues to govern the proceedings. The Withdrawal Agreement gives continuing effect to the Framework Decision for those live cases and requires references to a Member State in the applicable EU instruments to include the United Kingdom. The loss of access to relevant EU systems does not itself invalidate the regime.

Five applicants sought habeas corpus after being arrested under European Arrest Warrants before 11 p.m. on 31 December 2020. Two were detained, two were on conditional bail, and one had been ordered to be extradited with an appeal pending; another had applied to reopen a concluded appeal. They argued that, after the transition period, the Framework Decision no longer supplied an international-law basis for surrender and that the domestic extradition regime consequently could not support their detention or bail.

The court considered both the appropriate procedural route and whether the domestic and international legal framework continued to apply to arrests made before the end of the transition period.

1. Procedural route. Following Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin), the court held that the applications were not properly brought as habeas corpus applications. A court order authorising detention provides a sufficient return to habeas corpus, even if the order is alleged to contain a public law error. The proper challenge is judicial review. The same reasoning applies to conditional bail: the applicant should first seek discharge from the district judge and, if refused, challenge that refusal by judicial review. The court did not decide whether a person on conditional bail can in principle seek habeas corpus.
2. Domestic law. The starting point is the domestic legislation governing extradition, namely the Extradition Act 2003, as modified by domestic legislation. The Act contains no provision requiring persons arrested under Part 1 warrants before 11 p.m. on 31 December 2020 to be discharged if they had not been surrendered by then. Regulations 53, 55, 56 and 57 of the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019, together with paragraph 10 of Part 2 of Schedule 6 to the European Union (Future Relationship) Act 2020, preserve the unamended 2003 Act for such cases.
3. Withdrawal Agreement. Article 62(1)(b) makes the Framework Decision applicable to cases in which the requested person was arrested before the end of the transition period. Article 7 is not time-limited by reference to that period and requires references to Member States and their competent authorities in the applicable EU law to include the United Kingdom, subject to exceptions which did not apply. Article 128(1) confirms that Article 7 operates alongside Article 127 during the transition period; it does not confine Article 7 to that period. Article 185 confirms that Article 62 was intended to operate from the end of the transition period.
4. Consequences. The Withdrawal Agreement therefore supplies a continuing international-law basis for applying the Framework Decision to arrests made before 11 p.m. on 31 December 2020. The Framework Decision’s protections concerning specialty, custody time, onward extradition, surrender and transit continue to apply. The loss of access to the Schengen Information System II, and the United Kingdom’s departure from Eurojust and Europol, did not render surrender or transit arrangements impossible.
5. Disposition. The court directed that the applications continue as applications for permission to apply for judicial review, but held that the challenge was not arguable and refused permission in each case. Permission to cite the judgment was granted because the issue was likely to arise in other cases.