REHAN MALIK v GOVERNOR OF HM PRISON HINDLEY (No.3)

Habeas corpus will fail where the detention is authorised by a valid warrant issued under applicable primary legislation, even though the prisoner alleges that an earlier extradition was fundamentally unlawful. A purported legal chain of invalidity must be established at every stage. Extradition effected by court orders cannot be treated as legally ineffective without showing that those orders were themselves invalid. A pending reference to the CJEU does not, without more, create a duty to disclose an arguable defence or amount to an abuse of process. Any common-law extension of the exceptional principles in Bennett would require a very high threshold.

The applicant, who had been extradited to Germany, convicted and sentenced there, was returned to the United Kingdom under the Repatriation of Prisoners Act 1984 to serve his German sentence. He challenged his detention by habeas corpus, relying on two arguments. First, he contended that the United Kingdom had left the European Union on 29 March 2019 and that the European arrest warrant system had therefore ceased to operate before his extradition. Secondly, he alleged that the Crown Prosecution Service had wrongfully failed to disclose the pending OG reference concerning German public prosecutors as issuing judicial authorities.

The respondent argued that the appropriate route was judicial review of the operative warrant. The court dealt with the substantive legality of detention and left that procedural issue undecided.

1. Habeas corpus dismissed. The applicant’s detention was lawful. The Repatriation of Prisoners Act 1984 applied and the operative warrant governed his detention.
2. Both arguments involved two stages: establishing a fundamental unlawfulness in the extradition process and establishing a legal consequence which invalidated the subsequent detention. Failure at either stage was fatal.
3. The Exit Day argument failed at the first stage. The court adopted the reasoning relied on in the earlier English Democrats proceedings, namely that the Government retained the prerogative power to agree an extension under article 50(3) TEU and that the relevant legislation did not displace it. The argument was also inconsistent with the extradition authorities, including Polakowski v Poland [2021] EWHC 53 (Admin).
4. The PPO argument also failed. A pending CJEU reference on a point of general applicability did not, without more, constitute an arguable defence requiring disclosure. There was no legal duty on the CPS to notify the applicant or the court, and no abuse or bad faith. The OG principle was nuanced and did not operate as an automatic bar to extradition; a defective German warrant could be replaced by a fresh warrant.
5. The alleged domino effect failed independently. The extradition was effected by judicial orders, and the applicant did not show that those orders were invalid. His later detention arose under distinct primary legislation and a separate operative warrant. The analogy with Bennett and O was unsound; any extension of their principles would require an exceptionally high threshold which was not approached.
6. The court did not decide whether habeas corpus was procedurally inappropriate or whether the claim should have been transferred to judicial review. That issue was academic. There was no order as to costs.

First instance decision. The judgment refers to earlier judgments in the same proceedings, [2022] EWHC 2599 (Admin) and [2022] EWHC 2684 (Admin), but does not determine an appeal from them.