Krupa v Westminster Magistrates' Court & Anor

Proceedings under the Extradition Act 1989, including an application under section 11, are criminal proceedings for criminal legal-aid purposes. Their classification does not depend on treating the section 11 application as incidental to other criminal proceedings.

Section 16(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 therefore does not govern the application, and regulation 20 of the Criminal Legal Aid (General) Regulations does not exclude it from criminal legal aid. That construction avoids the irrational result that criminal legal aid is available for committal proceedings but unavailable for an important challenge under section 11.

The applicant faced extradition to Poland under the Extradition Act 1989, because the warrant was addressed to the Government of the Isle of Man. Following committal under section 9, he applied for habeas corpus under section 11, relying on the passage of time.

The issue was whether those proceedings attracted criminal legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the associated regulations. The Legal Aid Agency contended that the section 11 application was incidental proceedings excluded by regulation 20. The central question was whether section 11 proceedings were themselves criminal proceedings.

1. Criminal character of the proceedings. Proceedings under the Extradition Act 1989 fall within section 14(a) or (b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Act provides a comprehensive code for criminal extradition proceedings. Section 11 proceedings form part of that code.
2. The criminal character of section 11 proceedings is supported by The Queen v Governor of Brixton Prison, ex parte Levin [1997] QB 65 and, in particular, by Cuoghi v Governor Brixton Prison [1997] WLR 1346. The fact that the proceedings are applications for habeas corpus does not alter their character.
3. Incidental-proceedings provisions. Section 16(3) does not apply because section 11 applications are themselves criminal proceedings. They do not obtain that status by being incidental to another form of criminal proceeding. Regulation 20(2)(a) of the Criminal Legal Aid (General) Regulations therefore has no application to them.
4. This construction avoids an irrational and unprincipled distinction between criminal legal aid for committal proceedings and the absence of such aid for an important section 11 challenge. The applicant was accordingly entitled to apply for criminal legal aid.
5. No determination was made under regulation 7 of the Criminal Legal Aid (Determination by a Court and Choice of Representative) Regulations 2013 because no application had been made. Questions concerning backdating and any later court determination were left to the responsible legal-aid authorities, subject to a further application under regulation 7 if required.

The judgment does not state that it was an appeal. It concerned the applicant’s habeas corpus proceedings following committal by Westminster Magistrates’ Court.