R (on the application of Mechlinski) v Westminster Magistrates Court [2015] EWCA Civ 2043

On 15 July 2015, the Divisional Court allowed the substantive claim for judicial review, in relation to an order for extradition to Poland, made against Robert Mechlinski, to serve a 10 month sentence for a fraud offence.

The Court held that District Judge Devas failed to adopt a rigorous approach in considering the reason for the delay in removing Mr Mechlinski from the UK, following an order for extradition, applying Desai. Further, it was decided that Judge Devas might have been wrong to characterise the reason for the delay as resulting from a clerical error; rather, it might have been due to a mistake of law. The judgment is here.

Background

On 8 May 2015, Judge Devas ordered Mr Mechlinski’s extradition to Poland, to take place by 24 May 2015, pursuant to a ‘conviction’ European Arrest Warrant (EAW), to serve a 10 month sentence for a fraud offence. He was granted conditional bail on 8 May, pending his removal to Poland. On 5 June 2015, Mr Mechlinski was finally released on conditional bail, having satisfied the condition of paying a security, as ordered by Judge Devas. Mr Mechlinski was also subject to a residence requirement, and a denial of the right to apply for international travel documents.

Mr Mechlinski did not appeal the extradition order made by Judge Devas, on 8 May 2015. However, the National Crime Agency (NCA), on behalf of the Polish authorities, did not take steps to extradite him within 17 days, as required under sections 35(3) and 35(4)(a)(i) of the Extradition Act 2003 (EA 2003). On 8 June 2015, an urgent hearing took place, before Judge Devas. Solicitors for Mr Mechlinski made an application for his discharge, under s. 35(5) EA 2003, on the basis that no reasonable cause for the delay in extradition had been demonstrated.

According to an unapproved note prepared by the solicitor representing Mr Mechlinski, Judge Devas held that there had been a “clerical error” [committed by the NCA], which constituted a reasonable cause for the delay. The timeframe for Mr Mechlinski’s removal was extended and he was again released on bail, pending removal.

On 19 June 2015, the Legal Team Manager at Westminster Magistrates’ Court clarified that the clerical error referred to by Judge Devas was the existence of another EAW issued for Mr Mechlinski. The apparent existence of a second EAW was confirmed by the NCA, in a witness statement tendered before the Divisional Court, in the ultimate judicial review hearing, held on 15 July 2015.

On 24 June 2015, the same manager at Westminster Magistrates’ Court further clarified that Judge Devas had relied on the decision in Desai, as authority for the principle that any administrative error should not “foul” s. 36 EA 2003, and the requirement that a person is extradited before the end of a required period.

Mr Mechlinski made an application for judicial review, which was received by the NCA on 22 June 2015.

Divisional Court, 15 July 2015

Lord Justice Bean and Mr Justice Mitting held:

• There was no satisfactory evidence before Judge Devas about the second EAW, allegedly issued in relation to Mr Mechlinski. There was no evidence that the second EAW has been served, or even certified. R (Caldarelli) distinguished. In Caldarelli, it was held that a judge may find that there is reasonable cause for delay in executing an extradition order where other extradition proceedings are in progress in the English courts under EAWs issued by the same Requesting State. However, in that case, the EAWs were properly issued and certified.
• In considering the issue of delay in extradition proceedings, a rigorous approach must be taken, applying Desai. Time limits are important and the onus is on those representing the Requesting State, in this country, to explain and justify the delay.
• There is no evidence that Judge Devas took a rigorous approach to considering the delay, in relation to Mr Mechlinski. On the limited facts available to the Court, it may be wrong to characterise the reason for the delay as a clerical error; rather, it may have been due to the Judge’s misapprehension of the law, namely the decision in Caldarelli.
• However, in the present review, it was not obvious that there had only been one decision which Judge Devas could have reached, and a new decision could not be substituted under s. 31(5A) of the Senior Courts Act 1981, as amended.

Permission for judicial review was granted, and the substantive claim for judicial review allowed. Decision of Judge Devas quashed. Mr Mechlinski’s bail renewed, on the same terms. The matter is to be remitted to Westminster Magistrates’ Court, before a different District Judge, who will consider Mr Mechlinski’s application for a discharge.