Adrian Manea v Secretary of State for the Home Department

Judicial review cannot be used to challenge a decision of a High Court judge. A challenge to an extradition order should ordinarily be brought by appeal, which is an adequate alternative remedy. A final appeal will be reopened only where reopening is necessary to avoid real injustice, exceptional circumstances make it appropriate, and no alternative effective remedy exists. Failure to raise an available argument, including a later-reported authority which was available before the appeal was determined, will ordinarily not satisfy that test. The relevance of R v Margiotta depends on the evidence and the issues actually raised in the extradition proceedings; its possible application does not itself establish real injustice.

The claimant sought permission to judicially review his extradition order of 7 February 2023 and Lang J’s order of 27 June 2024 refusing to reopen that order or the refusal of permission to appeal. His extradition had been ordered by District Judge Clarke after arguments concerning dual criminality and article 8 of the European Convention on Human Rights. Permission to appeal was refused by Swift J and Morris J.

The claimant relied principally on R v Margiotta, said to undermine the finding of dual criminality for one offence. He also relied on articles 3, 6 and 8 of the European Convention on Human Rights and alleged serious incompetence by his representatives. The central issues were whether judicial review was available, whether the extradition appeal should be reopened, and whether the proposed Margiotta argument could amount to real injustice.

1. Permission refused. Judicial review was unavailable to challenge Lang J’s decision. The applicable principle, identified by reference to In re Racal Communications Limited, is that a decision of a High Court judge cannot be challenged by judicial review. The claim was also procedurally defective because the named defendant and interested party were not correctly identified.
2. The challenge to District Judge Clarke’s extradition order was brought out of time. The claimant had not shown a good reason for extending time. The proper route was an appeal to the High Court, which provided a suitable alternative remedy and had in fact been pursued.
3. The court considered, as an alternative, whether the matter could be treated as an application to reopen the unsuccessful extradition appeal under rule 50.27 of the Criminal Procedure Rules, reflecting the test in rule 52.30 of the Civil Procedure Rules 1998. Reopening required necessity to avoid real injustice, exceptional circumstances making reopening appropriate, and the absence of an alternative effective remedy.
4. Those criteria were not satisfied. The claimant’s other arguments had been available during the original extradition proceedings, and the article 3 argument had either failed previously or was answered by assurances. The claimant could not rely on changes arising from his failure to surrender after the appeal had been dismissed.
5. The proposed Margiotta argument was not decisive. It concerned only Offence 3; there was no evidence that the cannabis had THC levels below the relevant threshold; justification arguments under article 36 TFEU could have been raised; and the conduct involved treating imported material with synthetic compounds before distribution. Further, the remaining offences were sufficient to justify extradition, and sentence disaggregation procedures existed in Romania, as recognised in Enasoaie v Romania.
6. If the claimant wished to argue that EU law required his convictions or sentence to be treated as unlawful, the appropriate forum was the Romanian courts. The application to reopen was dismissed.

The judgment describes earlier extradition proceedings and appeals:

• Westminster Magistrates’ Court: District Judge Clarke ordered extradition on 7 February 2023.
• High Court: Permission to appeal was refused by Swift J on 1 August 2023 and by Morris J on 5 December 2023.
• High Court (Administrative Court): Permission to claim judicial review was refused. The alternative application to reopen the unsuccessful extradition appeal was dismissed.