CASE SUMMARY: Cosar v Governor of HMP Wandsworth [2020] EWHC 1142 (Admin)

Background facts

This case involves two applications for habeas corpus, or in the alternative, for a direction that they be treated as applications for permission to apply for judicial review.

The first applicant (“C”) is the subject of a European Arrest Warrant (’EAW’) issued by the Romanian judicial authority. His extradition was ordered, and permission to appeal refused by the High Court on 12 March 2020. He was therefore required to be extradited within a period of 10 days from that refusal of permission pursuant to section 35(3) and (4) of the Extradition Act 2003 (“the 2003 Act”). However, due to restrictions imposed in response to the coronavirus pandemic, it has not been possible to arrange C’s extradition to Romania and he remains detained at HMP Wandsworth. The district judge has on two occasions re-fixed the start date for the 10-day extradition period.

Grounds of appeal

C contends that his detention is unlawful on three grounds. First, that the 2003 Act only permits one extension of the extradition time or, in the alternative, to agree a short-term extension. As air travel between Romania and the UK is indefinitely extended, the district judge could not agree an extension. Second, the requirements of section 35(4)(b) of the 2003 Act were not satisfied as there was no agreement between the district judge and the Romanian judicial authority. Third, C had not been given notice of any application for an extension, nor was he permitted to make representations at a hearing or provided with reasons for the decision. (By the time of the hearing, the second applicant’s application had fallen away following the withdrawal of the EAW).

Court’s decision and reasoning

1. The court, dismissing the habeas corpus applications and granting C permission to apply for judicial review, held that detention by a lawful authority is a complete answer to a writ of habeas corpus: (Jane v Westminster Magistrates’ Court [2019] EWHC 394 (Admin) applied). The correct procedure for challenging extensions of the detention period prior to extradition is by way of a claim for judicial review (R v Secretary of State for the Home Department Ex p. Cheblak [1991] 1 WLR 890 and R v Secretary of State for the Home Department Ex p. Muboyayi [1992] QB 244 followed).
2. Dismissing the claim for judicial review, the court found that the agreements to re-fix the extradition period was lawful. Under Framework Decision 2002/584 on the EAW and the surrender procedures between Member States, the extradition period may be extended where  extradition is prevented “by circumstances beyond the control of any of the member states” (Article 23(3) or for “serious humanitarian reasons” (Article 23(4)). The court held that the travel restrictions imposed in response to the coronavirus pandemic satisfied the conditions in Article 23(3) and (4). Further, there was nothing in section 35 of the 2003 Act which prohibits multiple extensions.

Points of note for practitioners

It was held that there is no requirement to notify a requested person of a request to extend the extradition period, nor is there any requirement to permit their participation at a hearing of that request. Such applications take place after the conclusion of extradition proceedings and there is no unfairness in depriving the requested person of notice or participation. It was nevertheless recommended that in the present extraordinary circumstances, it is good practice that an individual be notified that an agreement has been reached on a later start date for the extradition period.