Neutral Citation Number: [2009] EWHC 1020 (Admin)
Case No: CO/4634/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/05/2009

Before :

LORD JUSTICE RICHARDS
and
MR JUSTICE BLAIR
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Between :

	George Taylor	Applicant	
	- and -		
	(1) The Governor of HMP Wandsworth		
	(2) The Government of the United States of America		
	(3) The Secretary of State for the Home Department	Respondents	

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Edward Fitzgerald QC and Charlotte Powell (instructed by Tuckers) for the Applicant
David Perry QC and Mark Weekes (instructed by the Crown Prosecution Service) for the Government of the United States of America
Hugo Keith QC and Ben Watson (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department

Hearing date: 27 March 2009
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Judgment

Lord Justice Richards : 

1.	On 17 October 2007 the Divisional Court (Latham LJ and Simon J) dismissed an appeal by George Taylor from the decision of a district judge to send his case to the Secretary of State to consider a request for extradition to the United States of America on charges of conspiracy to commit securities fraud and wire fraud.  Mr Taylor now seeks to reopen, pursuant to CPR 52.17, the final determination of the appeal.  The possibility of reopening such a determination in an extradition case was considered in Ignaoua and Others v Judicial Authority of the Court of Milan [2008] EWHC 2619 (Admin), but that was in the context of Part 1 of the Extradition Act 2003 (“the 2003 Act”).  The present case raises the issue in the context of Part 2.
The Divisional Court’s previous decision
2.	One of the main bases on which extradition was resisted in the earlier proceedings was the applicant’s health.  The two relevant sections of the 2003 Act were s.87, by which the judge must order discharge if he decides that the person’s extradition “would [not] be compatible with the Convention rights within the meaning of the Human Rights Act 1998”; and s.91, by which the judge must order discharge or adjourn the extradition hearing if it appears to him that “the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him”.
3.	When dealing with the case in April 2007, the district judge had before him a medical report from a Dr Spyrou, a consultant cardiologist, who concluded that the applicant was suffering from a chronic heart condition.  Dr Spyrou’s report included the following:
“12.  Patients with severe heart failure as Mr Taylor’s have a very poor prognosis with a 50% 5 year mortality.  The randomised Aldactone evaluation study (RALES) have suggested a 50% mortality within the first 3 years of the diagnosis.
13.  In view of his incapacity Mr Taylor would be in danger of flying as things stand.  This may be feasible only with the provision of oxygen and close monitoring during the flight.
14.  Possibility of travel to the United States by boat obviously would not pose any risk from oxygen decompensation but simply the risk of being out at sea when he could be acutely unwell.
15.  My other concern about deportation is about the stress that will cause in someone who has significant cardiac disease and may in fact cause his demise.”
4.	At the time of the hearing before the Divisional Court in October 2007, the medical position had been brought up to date to some extent by a letter from Dr Spyrou in which he recorded that there had been further tests which indicated some deterioration and progression of the chronic disease.  Dr Spyrou stated:
“As I mentioned in my previous reports, Mr Taylor’s prognosis is poor and I would suggest he has a 50% 5 year mortality.  Again I would suggest that it would be unsafe for him to travel by air and the problem with the long boat trip would be that he could run into problems mid-ocean and it would therefore not be medically advisable from my point of view.”
5.	The district judge also had available to him an undertaking from the United States Government that appropriate steps would be taken, were the applicant to be deported, to enable him to have oxygen available both on the ground before and after the flight, and during the flight, and he would be accompanied by a medically qualified or trained marshal.  The district judge considered that that was a sufficient answer to the question whether it would be unjust or oppressive to return the applicant to the United States and that there was therefore no bar under s.91 to his being returned.  He also rejected submissions that extradition would be in breach of Convention rights.
6.	Before the Divisional Court, the focus of the argument concerning the applicant’s medical condition was on articles 3 and 8 of the Convention.  As to the latter, Latham LJ (with whom Simon J agreed) concluded as follows:
“If one looks at the Article 8 argument here, it is essentially based upon the risk to the appellant’s health as to transfer from this country to America.  That risk can, as the district judge indicated, be properly moderated by the steps which are proposed by the United States Government, and I see no reason to dissent from the views of the district judge that accordingly there is no bar to his extradition based upon Article 8.  In doing so, I take into account the fact that Dr Spyrou considers that there is a risk of his suffering sufficiently from stress to mean that his condition might be exacerbated.  The difficulty is that that is not expressed in a way which gives any confidence that it is other than simply a cautious doctor’s comment in circumstances which one can readily understand in relation to his patient.  I accordingly do not consider that there is any potential problem which justifies the conclusion that the removal of the appellant would be disproportionate in Article 8 terms.”
7.	The argument under article 3 was based on the prognosis as to expectation of life, which was submitted to mean that there was a real risk of the applicant spending the rest of his natural life in prison.  Latham LJ pointed to the procedures that would apply if the applicant were extradited to face trial, stating amongst other things that in the event of the applicant being convicted he would be able to put forward arguments in mitigation which could be expected to included a reliance upon his medical condition.  In those circumstances it could not properly be said that there was a real risk of a sentence contrary to article 3.  The position fell far short of the necessary high threshold envisaged in McCaughey v Government of the United States of America [2006] EWHC 248 (Admin), which accurately reflected the way issues such as this had to be viewed.
The more recent medical evidence
8.	By the date of the Divisional Court’s judgment, the Secretary of State had already made an order for extradition.  In November 2007 it was sought to effect the applicant’s surrender pursuant to the order, but the applicant, who was at that time on bail, failed to attend at the airport.  Subsequently, in May 2008, a warrant was issued for his arrest.  He was arrested on 12 June 2008 and remanded in custody at HMP Wandsworth.  Since that date there have been a number of further medical reports on him.   
9.	In a report dated 16 October 2008, Dr Gerard Butler stated:
“I first saw this man in reception 12th June and I realised that his heart failure was risky.  I put him on medical hold and made an urgent referral to cardiology at St Georges.
…
I saw him again in September and was surprised that he was still here on [sic] more ways than one.  His congestive failure was much worse and I modified his new medication as suggested by St Georges ….
He was to have a defibrillating pacemaker fitted.  His prognosis is very grim.  He is likely to die in prison shortly.  He is not fit to travel anywhere other than home.
Congestive cardiac failure is a condition with a prognosis of metastatic cancer such that hospices now take CCF patients.”
Dr Butler added on 21 October that the applicant “is not fit to travel by any means including Boat”.
10.	A report dated 19 February 2009 (but updated on or about 20 March to include additional material) by Dr L Anderson, a heart failure consultant at St George’s, states that a biventricular pacemaker was implanted on 12 November 2008.  In January 2009, however, the applicant was re-admitted with worsening symptoms.  The report refers to various tests and interventions, including a biventricular pacemaker optimisation on 16 February and an AV nodal ablation on 19 February, after it had been explained to the applicant that “without AV node ablation he was likely to die during this admission but that also following AV node ablation my prognosis is guarded and needs to be reviewed as time progresses”.  Dr Anderson gave a life expectancy in the region of less than 6 months, but as much as 2 years if the applicant’s condition stabilised.  She did not think it advisable for him to travel to the United States by air or by sea.
11.	Dr Anderson attended court on the day of the hearing but was unable to remain for the hearing itself.  She did, however, provide a short updated report, stating:
“(1) Mr Taylor was admitted yesterday to A&E.
(2) I have been asked to deal with the question of his life expectancy in a little more detail following … the insertion of his biventricular pacemaker and his node ablation.
(3) The position is that there is a real risk that he will die within the next six months because of his extremely weak heart and the fact that his mitral valve is leaking.  There is a very high probability that he will die in the next 18 months to 2 years.  There is no further treatment that can be attempted.
(4) As to his fitness to travel, this will vary from day to day.  There are times when he could probably survive a flight, but he could die any day.  Travel by sea is not a viable alternative.
(5) As to a trial I do not foresee him surviving a trial in the United States of America.  His state is very fragile and I do not think he would have the will to fight and cope with his condition.  If put on trial I do not believe he would do his case full justice.”
The possibility of a further application to the Secretary of State
12.	It was common ground before us that, in the event of a material change of circumstances after an extradition order has been made and the requested person’s appeal rights have been exhausted, it is open to that person (i) to make representations to the Secretary of State to reconsider extradition on human rights grounds and (ii) to challenge an adverse decision by the Secretary of State by way of proceedings for judicial review.  Mr Keith QC explained this is on the basis that the Secretary of State has an implied statutory power to revoke any extradition order that she has made and, as a public authority subject to section 6 of the Human Rights Act 1998, must exercise her discretion compatibly with Convention rights. 
13.	The availability of that procedure was touched on by Maurice Kay LJ, giving the judgment of the court, in McKinnon v Government of the United States of America [2007] EWHC 762 (Admin).  Dealing with a challenge on human rights grounds to the decision of the Secretary of State to order extradition, he stated :
“61. … Although section 87 provides a bar to extradition on human rights grounds when the matter is being considered by the District Judge and, correspondingly, on any appeal against his decision, the 2003 Act does not specify a breach of Convention rights as a basis for appealing against the decision of the Secretary of State.  However, the Secretary of State is a public authority within the meaning of section 6 of the Human Rights Act 1998 and the 2003 Act does not disapply section 6.  Accordingly, we accept that, in principle, there may be cases in which the Secretary of State may be susceptible to human rights challenge ….
63.  In the present case Mr McKinnon has been able to raise his human rights points in this Court in the context of his appeal against the decision of the District Judge.  They have failed, and in our judgment he has no separate human rights case against the Secretary of State ….  We tend to the view that, in reality, the only situation in which a free-standing human rights case may lie against the Secretary of State pursuant to section 6 of the Human Rights Act is where statutory appeals against the decisions of the District Judge and the Secretary of State have been exhausted but something arises between finality in those proceedings and actual removal to the requesting state – for example, a supervening illness which impacts on the subject’s ability to travel or to face trial in the requesting state.  At that stage a challenge to a refusal of the Secretary of State to reconsider extradition on human rights grounds may arise (subject to the high threshold), albeit probably in judicial review proceedings rather than by way of statutory appeal.”
14.	After Mr McKinnon had exhausted the statutory appeal process, he was diagnosed as suffering from Asperger’s syndrome, a condition not previously suspected.  That was one of the bases on which further submissions were made to the Secretary of State that his extradition should not proceed.  The Divisional Court granted permission for an application for judicial review, on article 3 grounds alone, of the Secretary of State’s decision to proceed with extradition:  McKinnon v Secretary of State for the Home Department [2009] EWHC 170 (Admin).  In explaining the limited jurisdictional basis on which permission was granted, Maurice Kay LJ stated as follows:
“3.  Mr Fitzgerald submits that there is, even at this stage, a residual discretion in relation to the claimant’s health and the effect of extradition upon it, over and above any protection afforded by Convention rights.  We are entirely satisfied that this is not correct, even on an arguable basis.  It is clear from the structure and detailed provisions of Part 2 of the 2003 Act that, whilst physical and mental conditions rendering extradition unjust or oppressive are matters for due consideration in the statutory appeal process (section 91), once the appropriate judge sends the case to the Secretary of State for her decision as to whether a person is to be extradited, the Secretary of State must order extradition unless she is prohibited from doing so by one of the matters specified in section 93(2) or one of the matters referred to in section 93(4) is in play.  It is plain that none of the matters specified or referred to in those provisions arises in this case.  Whatever the position may have been under earlier legislation, the 2003 Act does not preserve or create a residual discretion.  Indeed, by the language of section 93, it is inconsistent with one.  This is because the policy of the Act is to put an end to serial applications seeking to raise issues which have already been, or should have been, raised in the proceedings.  On the other hand, as the 2003 Act does not remove the obligation of the Secretary of State, as a public authority, to respect the Convention rights of the individual, exceptionally she is duty-bound to consider fresh evidence in limited circumstances such as those described in McKinnon 1 at paragraph 63 ….”
15.	The recent medical evidence in respect of Mr Taylor could be similarly deployed in support of representations to the Secretary of State on Convention grounds that his extradition should not proceed.  But to date he has studiously avoided the making of such representations.  He seeks instead to reopen the court’s determination dismissing his statutory appeal.  
The jurisdiction to reopen a final determination of an extradition appeal 
16.	The jurisdiction to reopen a final determination of an extradition appeal was established, in the context of Part 1 of the 2003 Act, by the decision of the Divisional Court in Ignaoua v Judicial Authority of the Courts of Milan (cited above).  The jurisdiction is founded on the principles in Taylor v Lawrence [2003] QB 528, now embodied in CPR 52.17 which provides:
“52.17.(1) The Court of Appeal or the High Court will not re-open a final determination of any appeal unless – 
(a)  it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to re-open the appeal; and
(c)  there is no alternative effective remedy.
…
(4)  Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5)  There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
…
(7)  There is no right of appeal or review from the decision of the judge on the application for permission, which is final.”
17.	Ignaoua was a case in which extradition to Italy under Part 1 of the 2003 Act had been resisted on the ground, inter alia, that there was a real risk of onward deportation to Tunisia in breach of article 3.  Extradition orders were made by a district judge, appeals to the Divisional Court were dismissed and appeal rights were exhausted.  The applicants subsequently brought proceedings for habeas corpus, contending that fresh evidence demonstrated that, contrary to the decisions of the district judge and Divisional Court, there was a real risk of their being deported from Italy to Tunisia.  On the new application the Divisional Court (Keene LJ and Owen J) took the view that habeas corpus was not available.  The court referred to section 34 of the 2003 Act, whereby a decision of a judge under Part 1 may be questioned in legal proceedings only by means of an appeal under that Part, and to the decision of the House of Lords in In re Hilali [2008] UKHL 3, [2008] 1 AC 805, reversing a decision of the Divisional Court which had entertained and allowed an application for habeas corpus on the basis of fresh evidence.  But the court went on to hold that the previous determination of the Divisional Court in Ignaoua could be re-opened pursuant to CPR 52.17; and it granted permission for the making of an application but in the event refused to re-open the previous determination.
18.	In adopting that approach, Keene LJ said this:
“21.  I entirely see the force of the submissions made on behalf of the applicants that, in the period between the decision on the statutory appeal and the execution of the extradition order, some dramatic alteration in circumstances may occur.  It is possible to postulate various scenarios which would give rise to concern that the court’s finding that extradition would not involve a breach of rights under the ECHR was no longer valid – a change of regime in the State to which the person is to be extradited might potentially give rise to such a concern.  That would fall within what the Divisional Court in Hilali meant by ‘the undermining of the factual premise of the judge’s decision’: paragraph 35.  One has also to bear in mind that this court is by virtue of the Human Rights Act 1998 section 6(3) a public authority and that it is therefore unlawful for it to act in a way which is incompatible with a Convention right, unless primary legislation prevents it from acting differently: section 6(1) and (2) of the 1998 Act.  One would in any event strive to find a remedy if it was clear that there was a real risk that extradition would lead to treatment in breach of Articles 2 or 3 of the ECHR.
22.  There is, however, a course of action and a remedy which is available in such circumstances and which would not be prevented by section 34 of the 2003 Act, and that is by way of an application to re-open the determination of the Divisional Court under CPR 52.17 ….”
19.	Keene LJ went on (at paras 23-29) to indicate why, although the Divisional Court in Hilali was not enamoured of the CPR 52.17 procedure, he did not find the objections to be persuasive, and to explain why in his view there was very little difference between the position under CPR 52.17 and that which would apply if habeas corpus were available.  He emphasised that under CPR 52.17 the circumstances have to be exceptional and one cannot allow a re-run of the earlier appeal:  the Divisional Court’s decision on the appeal under section 26 had to be taken as the starting-point.  Further, he stated that one does not need to regard the principles in Ladd v Marshall [1954] 1 WLR 1489 as being directly applicable to recognise that the court should be reluctant to receive fresh evidence which could with reasonable diligence have been put before the Divisional Court on a section 26 appeal; indeed, there is a need normally not merely for fresh evidence in the Ladd v Marshall sense, but for some event to have occurred since the appeal decision.  He was not persuaded that there was any significant difference in the height of the hurdle to be surmounted under the two procedures in relation to the risk of article 3 ill-treatment.
The issue 
20.	The essential issue for us to decide is whether the applicant is limited to making representations to the Secretary of State on human rights grounds or whether it is also open to him to apply to reopen the determination of the Divisional Court dismissing his statutory appeal.  The matter was subject to a direction by Collins J which placed emphasis on the need for a decision on the issues of principle, and that is how the argument before us was developed.  It seems to me that, in formal terms, the question for the court is whether to grant the permission required by CPR 52.17(4) for the making of an application  to reopen the previous determination.  Collins J’s direction included an implied direction for the oral hearing of the application for permission.
The submissions 
21.	The applicant’s case is that the court should adopt the same approach towards the reopening of final determinations in cases under Part 2 of the 2003 Act as was adopted in Ignaoua under Part 1.  Mr Fitzgerald QC accepted that in the context of Part 1 the reopening of the court’s determination was the only way of ensuring protection of Convention rights where there had been a material change of circumstances, but he submitted that there were good reasons for adopting the same approach under Part 2.  
22.	He stressed the role of the court in proceedings under the 2003 Act, including the duty under s.87 to determine whether extradition would be compatible with Convention rights, and the duty under s.91 to order discharge or to adjourn the hearing if it appears that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him.  As Hughes LJ stated in Nisbet v Secretary of State for the Home Department [2007] EWHC 1768 (Admin), at paras 17-18, the scheme of the 2003 Act is to remove much of the decision-making process from the Secretary of State and to vest it instead in the court.  Thus Mr Fitzgerald submitted that the type of decision required here should be taken by the court and not by the executive.  In addition, he pointed out that the court procedure has the advantage of allowing evidence to be heard and tested orally.
23.	He also emphasised that the Secretary of State has no residual discretion beyond that of protecting Convention rights, whereas there is a degree of flexibility under s.91 of the 2003 Act; and, as he submitted, the test under s.91 does not impose as high a threshold as has to be met in order to establish a breach of the Convention.  On that point he relied on the very fact that Parliament chose to provide a separate test under s.91 from that in s.87 relating to Convention rights.  He referred to the long history of statutory protection from extradition on the grounds of injustice and oppression, even though the 2003 Act was the first time such a jurisdiction was conferred specifically on health grounds.  And he cited by way of example the findings under s.91 in respect of Mrs Tollman in Government of the United States of America v Tollman [2008] EWHC 184 (Admin), at paras 122-127 and 163-170; and the decision in Re Davies [1997] EWHC Admin 7333 on the issue of fitness to plead, under s.11 of the Extradition Act 1989.  He sought to contrast the tests under articles 3 and 8 of the Convention, as illustrated by R (Wellington) v Secretary of State for the Home Department [2009] 2 WLR 48 and R (Ullah) v Special Adjudicator [2004] 2 AC 323.  
24.	Mr Fitzgerald raised a separate point concerning the grant of bail, contending that bail could clearly be obtained if the court’s determination were reopened but that the position was otherwise unclear.
25.	Accordingly, it was submitted that an application to the Secretary of State does not provide an effective alternative to the reopening of the court’s determination under the 2003 Act and that both procedures should be available to the requested person.  The potential duplication of remedy should not be a practical concern, since the Secretary of State would be able to rely on the court’s decision. 
26.	As to the change of circumstances that would be relied on to justify reopening the previous determination of the Divisional Court in this case, Mr Fitzgerald pointed to the recent medical evidence concerning the applicant’s heart condition.  At the time of the Divisional Court’s determination the evidence was of “a 50% 5 year mortality”, i.e. a 50 per cent chance of death within 5 years ; but the evidence now is of a real risk of death within 6 months and a very high probability of death within 18 months to 2 years.  To this must be added the risks of travel and the assessment that the applicant would not survive a trial.  Those matters, it is submitted, would justify reopening the determination for further consideration of the appeal under s.91.  The applicant should not be limited to making representations to the Secretary of State under articles 3 and 8 of the Convention.
27.	For the Secretary of State, Mr Keith QC deliberately refrained from addressing the merits of the applicant’s case, not least because they would have to be considered by the Secretary of State if representations on human rights grounds were made to her.  He submitted that the making of such representations was the only appropriate course and that an application to reopen the Divisional Court’s determination was, in terms of CPR 52.17, neither necessary nor appropriate.  The Secretary of State has no statutory role under Part 1 of the 2003 Act, with which Ignaoua was dealing.  Her limited role under Part 2 includes the making of an order for extradition under s.93.  That, coupled with her position as a public authority within the meaning of the Human Rights Act 1998, renders her amenable to a human rights challenge on the basis recognised in McKinnon; but her jurisdiction to entertain representations following the conclusion of proceedings is only engaged in exceptional circumstances where (i) something new has arisen between the exhaustion of the requested person’s appeal rights and his actual surrender, and (ii) the supervening issue is such as to render it properly arguable that the extradition order is no longer compatible with the person’s Convention rights. 
28.	Mr Keith submitted that the Secretary of State’s jurisdiction to entertain representations on human rights grounds provides an effective remedy.  The Secretary of State’s decision-making process, together with the availability of judicial review, meets the requirements of the Convention.  It is also flexible, capable of dealing with a changing situation such as is suggested by the medical evidence in the present case.  The procedure for reopening the court’s determination is less flexible and the court’s powers are limited under s.104 to allowing or dismissing the appeal or directing the district judge to decide again a question which he decided at the extradition hearing.  Even though the test under s.91 is prima facie different from those under articles 3 and 8 of the Convention, it is difficult to see how a person could succeed under s.91 without also succeeding under the Convention, and there is no case where a different result has been shown to be produced.  
29.	For the Government of the United States of America, Mr Perry QC advanced submissions supporting those of Mr Keith.  He contended that CPR 52.17 is not available because there already exists an alternative remedy which is practical and effective.  He pointed to various features of the 2003 Act, including strict time-limits, the structure of the appeal process, and the exclusion of challenges otherwise than by statutory appeal, as militating against allowing a determination to be reopened (with the attendant risk of repeated applications to reopen, and the duplication of remedy as between that and the making of representations to the Secretary of State).  Ignaoua was a Part 1 case in which the reopening of the court’s previous determination was the only way of ensuring protection for Convention rights.  An application to the Secretary of State provides an effective remedy under Part 2.  The protection of Convention rights is for all practical purposes coextensive with protection under s.91:  a finding of oppression under s.91 would collapse in practice into a finding that extradition was incompatible with the Convention.  To allow the reopening of a previous determination would subvert Parliament’s intention to simplify procedures and avoid delay.
Discussion
30.	The jurisdiction of the Court of Appeal or the High Court to reopen a final determination of an appeal is a residual jurisdiction to be exercised only rarely.  The restrictive conditions for its exercise are spelled out in CPR 52.17 and merit emphasis.  The court will not reopen a final determination unless (a) it is necessary to do so in order to avoid real injustice, (b) the circumstances are exceptional and make it appropriate to reopen the appeal, and (c) there is no alternative effective remedy.  Those requirements are cumulative.
31.	The court in Ignaoua accepted the possibility in principle of reopening a final determination of an appeal under Part 1 of the 2003 Act to cater for the situation where a material change of circumstances since the date of the determination could be said to have undermined the basis of the court’s finding that extradition would not be in breach of the Convention.   The court was motivated solely by the requirements of the Convention and its own responsibility pursuant to s.6 of the Human Rights Act 1998 to act compatibly with Convention rights.  The regime established by Part 1 of the 2003 Act provided no other means of protecting against the risk of breach of the Convention in that situation.  In those particular circumstances it was possible in principle for the conditions of CPR 52.17 to be met and for a final determination to be reopened so as to secure the protection of Convention rights.
32.	The position under Part 2 of the 2003 Act is materially different because under Part 2, unlike Part 1, the Secretary of State has an important role in relation to the making and execution of the extradition order, and she is of course required to exercise her powers compatibly with Convention rights.  That is the basis upon which it was held in McKinnon that exceptionally, in the event of a material change of circumstances after the making of an extradition order and the exhaustion of appeal rights, it is open to a requested person (i) to make representations to the Secretary of State to reconsider extradition on human rights grounds and (ii) to challenge an adverse decision by way of proceedings for judicial review.  
33.	In my judgment, that procedure is capable of providing an effective means of protecting a requested person’s Convention rights.  It is true that the 2003 Act places on the court, rather than the Secretary of State, the duty under s.87 to determine whether extradition would be compatible with Convention rights.  But one is dealing here with the position after that process has come to an end and appeal rights have been exhausted, and the question is whether, in the event of a subsequent change of circumstances, the long-stop protection of Convention rights can adequately be provided by the Secretary of State, subject to review by the court.  I see no reason why an affirmative answer should not be given to that question.  On the face of it the Secretary of State performs an independent and impartial role within the context of the Part 2 procedures, but in any event the availability of judicial review is sufficient to ensure that the decision-making process taken as a whole meets the requirements of article 6 (and I did not understand Mr Fitzgerald to argue to the contrary).  The fact that the Secretary of State’s decision will be taken on the papers rather than after hearing oral evidence does not affect its essential validity.  The procedure can, moreover, be applied flexibly and is capable of accommodating a changing factual position, as in the case of declining physical or mental health.  As to the concern expressed about the availability of bail, it is a subsidiary consideration but appears to be answered by the power conferred on the court by s.92(4)-(5).
34.	In a case under Part 2 the existence of that procedure removes any basis for reopening the final determination of the appeal for the purpose of protecting a requested person’s Convention rights:  the reopening of the determination cannot be said to be necessary in order to avoid real justice, the circumstances may be exceptional but they do not make it appropriate to reopen the appeal, and there is an alternative effective remedy.  To allow the determination to be reopened is not only unnecessary but also undesirable, since it would create a duplication of procedures for advancing Convention arguments after the statutory appeal process had come to an end and would give rise all too easily to additional delay, contrary to the evident legislative intention behind Part 2.
35.	Nor am I persuaded by Mr Fitzgerald’s argument that the reopening of the court’s determination should be allowed because the protection afforded by the 2003 Act, in particular under s.91, goes beyond that provided by the Convention.  I note that in the Divisional Court’s determination in relation to Mr Taylor himself, s.91 was disposed of quickly and the focus of attention was on the application of articles 3 and 8 of the Convention.  If the deterioration in his condition since the date of that determination does not make his extradition incompatible with the Convention (an issue on which I express no view either way), I do not see how it could realistically be expected to lead to his discharge under s.91 in the event of the determination being reopened.  
36.	To look at the matter more generally, I am prepared to accept the possibility of cases in which extradition would be compatible with the Convention but could be successfully resisted under s.91 (though I doubt whether this would happen in practice to any significant extent, if at all).  I do not accept, however, that such a possibility provides an adequate basis for reopening the court’s determination, not least because, in view of the extent of protection already afforded by the Convention, I do not think that the reopening of the determination could be said to be necessary in order to avoid real injustice.  
37.	For those reasons I am satisfied that there could be no justification for reopening, pursuant to CPR 52.17, the Divisional Court’s determination of Mr Taylor’s statutory appeal.  Nor can I envisage a situation in which a change of circumstances since the date of dismissal of a statutory appeal would justify recourse to the jurisdiction to reopen a final determination.  It would be wrong to say that recourse to the jurisdiction could never be justified, but it would require a case of a highly exceptional character to meet the conditions of the rule.  In the ordinary course the appropriate procedure is to make representations to the Secretary of State, whose decision will be amenable in principle to challenge by way of judicial review.  That is certainly the appropriate procedure in the present case.
Conclusion
38.	Accordingly, I would refuse permission for Mr Taylor to make an application under CPR 52.17 for the reopening of the Divisional Court’s determination dismissing his statutory appeal.  
39.	By CPR 52.17(7), the decision of the court on an application for permission is final.  It is for that reason, and because this judgment may determine the approach in other cases, that I have dealt with the matter in as much detail as I have.
Mr Justice Blair :
40.	I agree.