The applicant (C) applied for permission to appeal to the High Court against the decision of District Judge Crane sitting at Westminster Magistrates’ Court to send C’s case to the Secretary of State for the Home Department (“SSHD”) for a decision on whether to order extradition to India. C sought leave to appeal, pursuant to section 103 of the Extradition Act 2003 (“the 2003 Act”), which provides for appeals in cases where the case has been sent to the SSHD.
Of significance in this case is that prior to the district judge sending the case to the SSHD, the Divisional Court had allowed a previous appeal against C’s discharge, pursuant to section 106 of the 2003 Act, and had remitted the matter to the district judge, with directions to proceed as though the judge had decided the question resulting in the discharge differently, that is to say, with directions to send the matter to the SSHD for her decision. The question for the court in this matter was whether it had jurisdiction to hear an appeal against the district judge’s decision, where under section 106(6)(c) the Divisional Court had ordered the judge to send the matter to the SSHD.
Court’s decision and reasoning
- The court, refusing permission to appeal, held that there was no jurisdiction to appeal under section 103 of the 2003 Act in this case. The only question at issue in the underlying matter had been whether extradition would be compatible with C’s rights under Article 3 of the European Convention on Human Rights. If that question was answered in the affirmative, then C’s case had to be sent to the SSHD. The Divisional Court had decided that question for the district judge and no other question had been considered by the judge prior to sending the case to the SSHD. Thus the “relevant decision” for the purposes of an appeal under section 103(3) was that of the Divisional Court and not the district judge. The act of sending the case to the SSHD pursuant to a section 106(6)(c) direction does not itself give rise to the possibility for permission to appeal.
- The proper avenue for challenging the decision of the Divisional Court in this case would have been an application to re-open the determination pursuant to rule 50.27 of the Criminal Procedure Rules 2015.
The court stated obiter dicta that even if it had jurisdiction to entertain an appeal in such cases, leave ought only to be granted where necessary to avoid real injustice in exceptional circumstances, reflecting the position in CrimPR 50.27.