Neutral Citation Number: [2010] EWHC 2148 (Admin)
Case No: CO/7946/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/08/2010

Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE NICOL
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Between :

	ORHAN ASLITURK 
aka JOHN EDVARD COSTE	
Claimant	
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	THE CITY OF WESTMINSTER MAGISTRATES’ COURT 	
Defendant	
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	THE GOVERNMENT OF TURKEY	Interested Party 	

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Jamas Hodivala and David Patience (instructed by Morgan Rose Solicitors) for the Claimant
James Lewis QC and Rachel Scott (instructed by CPS, Special Casework Division) for the Interested Party
The Defendant Magistrates’ Court did not appear and was not represented.

Hearing dates: 30 July 2010
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Judgment 

Lord Justice Stanley Burnton : 

Introduction
1.	In these proceedings the claimant seeks judicial review of the refusal of District Judge Nicholas Evans, sitting in the City of Westminster Magistrates’ Court, to order his discharge pursuant to section 75(4) of the Extradition Act 2003 (“the Act”).
2.	This case raises a potentially important issue as to the effect of section 75 of the Act. It is as follows:
75 Date of extradition hearing: arrest under section 71
(1) When a person arrested under a warrant issued under section 71 first appears or is brought before the appropriate judge, the judge must fix a date on which the extradition hearing is to begin.
(2) The date fixed under subsection (1) must not be later than the end of the permitted period, which is 2 months starting with the date on which the person first appears or is brought before the judge.
(3) If before the date fixed under subsection (1) (or this subsection) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so, he may fix a later date; and this subsection may apply more than once.
(4) If the extradition hearing does not begin on or before the date fixed under this section and the person applies to the judge to be discharged, the judge must order his discharge.
3.	In this case, the extradition hearing did not begin on or before the date fixed under that section; it began 4 days later. However, the claimant, who is the  person sought to be extradited, did not apply to the judge to be discharged until after the hearing had begun (indeed, as will be seen, some considerable time afterwards). The question is whether in such circumstances the judge was required to order his discharge. The claimant contends that the judge was so required. The Interested Party, the Government of Turkey, contends that an application under subsection (4) must be made before the extradition hearing begins, and that it is not open to a person to make an application under that provision subsequently.
The facts
4.	The claimant is a national of Turkey. On 25 June 2009, the Government of Turkey submitted a request for his extradition to the Government of the United Kingdom. Turkey is a category 2 territory for the purpose of the Act. The Home Secretary certified the request as valid on 13 August 2009, and it was sent, with the certificate, to the appropriate judge at the City of Westminster Magistrates' Court pursuant to section 70 of the Act. On receipt of these documents, a warrant for the arrest of the claimant was issued on the 26th February 2010 pursuant to section 71. 
5.	The warrant was executed on 23 April 2010 and the claimant brought before the Magistrates' Court later that day. He did not consent to his extradition. An application for bail was refused by District Judge Tubbs.
6.	District Judge Tubbs fixed 30 April 2010 as the date on which the extradition hearing was to begin, as required by section 75(1) and remanded the claimant into custody until that date pursuant to section 72 (7) (c).
7.	On 30 April 2010, the matter was duly listed before District Judge Tubbs. Due to an administrative error at HMP Wandsworth, where the claimant was held in custody, he was not produced at the Court on that day. The District Judge nonetheless agreed to hear a bail application made by his solicitor on his behalf. The judge deferred announcement of her decision until 4 May and remanded the claimant into custody in his absence.
8.	On 4 May 2010, the claimant was produced before District Judge Tubbs, who proceeded formerly to open the extradition hearing. Neither Mr Hodivala nor Mr Patience, who represented him before us, represented him on that occasion, and they had not done so on 30 April. The Judge adjourned the case until 29 June 2010 for a review hearing, before remanding the claimant on conditional bail. However, the CPS gave notice of their intention to appeal the grant of bail, and the claimant was remanded into custody pending the appeal to the High Court. The appeal was heard on 6 May 2010 before Keith J, who allowed the appeal and remanded the claimant into custody until a date to be fixed by the Magistrates' Court, not later than 28 days from 4 May 2010.
9.	The matter was listed at the Magistrates' Court on 1 June 2010. Due to administrative error on the part of the Court, the claimant was not produced and his solicitor did not attend. The claimant was remanded in custody in his absence until the following day.
10.	On 2 June 2010, an application was made on behalf of the claimant to the Magistrates’ Court for his release from custody on the grounds that his detention was unlawful. District Judge Purdy agreed to his release on conditional bail. The CPS again indicated their intention to appeal the grant of bail to the High Court, and he was again remanded into custody. On 4 June 2010, the appeal was listed before Maddison J, but was adjourned when the claimant's representatives stated that they intended to apply for a writ of habeas corpus.
11.	Following a hearing before a Divisional Court consisting of Pitchford LJ and Maddison J, on 16 June 2010 the claimant's application for a writ of habeas corpus was refused and the appeal against the grant of bail was allowed: [2010] EWHC 1720 (Admin). Section 75 was not referred to or relied upon. The claimant was again remanded into custody until the review hearing on 29 June 2010. 
12.	On 28 June 2010 at a hearing before District Judge Evans, an application was made on behalf of the Claimant for his discharge pursuant to section 75(4). The Government of Turkey opposed his discharge on the ground that the application was not open to a person once his extradition hearing had begun. The District Judge accepted the contentions of the Government of Turkey and refused to discharge the claimant.
13.	These judicial review proceedings, seeking orders quashing the decision of District Judge Evans and ordering him to discharge the claimant, were begun on 22 July 2010. On the following day Charles J ordered an expedited hearing of the application for permission, with the substantive hearing to follow immediately if permission was granted.
14.	We heard the application for permission and the parties’ submissions on the substantive application for judicial review on 30 July 2010. At the conclusion of the hearing, we announced our decisions that permission to apply for judicial review was granted, but we dismissed the application for judicial review.
15.	Permission to apply for judicial review was granted because in my judgment the Court has jurisdiction to grant judicial review or a writ of habeas corpus on a challenge to a refusal to discharge under section 75(4) and the claim is arguable and raises an important question as to its scope and effect.
16.	My reasons for dismissing the claim for judicial review are set out below.
The issues
17.	There are two issues before the Court:
i)	Does section 116 of the Act oust the jurisdiction of the court to hear and if thought fit to grant judicial review of the decision of DJ Evans to refuse to discharge the claimant?
ii)	Is section 75(4) applicable after the extradition hearing has begun?
The contentions of the parties
18.	On behalf of the claimant, Mr Hodivala submitted that the wording of section 75(4) is perfectly plain and its terms general. There was no reason why Parliament should have confined its application in the manner contended for by the Government of Turkey. He contrasted the terms of section 75 with those of section 8, its counterpart in Part 1 of the Act, which clearly envisages that in similar circumstances the question of a person’s discharge must be decided by the judge on the first occasion that he appears after the date fixed for the extradition hearing to begin. 
19.	On the issue of the jurisdiction of the court to grant judicial review, Mr Hodivala submitted that section 116 is confined to the various “questions” that the Act requires the judge to decide, as set out in sections 78 to 87 of the Act. An application under section 75(4) does not give rise to any “question” to be decided by the judge. It follows that judicial review, and habeas corpus, are available.
20.	On behalf of the Government of Turkey, Mr Lewis QC submitted that the relevant parts of the Act set out a chronology for the decisions to be made by the judge. Section 75 is concerned with the period between the date when a person arrested under a warrant issued under section 71 first appears or is brought before the appropriate judge and the beginning of the extradition hearing. It has no application once the extradition hearing has begun. 
21.	On the issue of jurisdiction, Mr Lewis disputed the claimant’s interpretation of the scope of section 116, but conceded that if a decision under section 75(4) cannot be challenged by an appeal under section 103 it can be challenged by judicial review or habeas corpus. However, he contended that a decision under section 75(4) may be challenged by appeal to the High Court under section 103.
Discussion
22.	One preliminary point may be disposed of summarily. The Divisional Court on 16 June held that the claimant had been and was lawfully detained. However, since at that date there had been no application under section 75(4), it could have had no effect on the lawfulness of his detention even if it was still applicable. Thus there is no inconsistency between that decision of the Divisional Court and the claimant’s present applications so as to give rise to a plea of res judicata, and no such plea was contended for by Mr Lewis QC for the Government of Turkey.
(a) The jurisdiction of the Court to grant judicial review and/or a writ of habeas corpus
23.	 As mentioned above, whether this Court has jurisdiction to grant judicial review, or a writ of habeas corpus (which raises no separate issues) depends on the scope and effect of section 116:
116 Appeals: general
A decision under this Part of the judge or the Secretary of State may be questioned in legal proceedings only by means of an appeal under this Part.
24.	A statutory provision that purports to restrict the right to apply for judicial review or for a writ of habeas corpus is to be narrowly, but sensibly, construed. Section 116 does not purport to exclude recourse to the court: it restricts the manner of recourse to the court. However, in my judgment the refusal of the appropriate judge to order the discharge of a person under section 75(4) is not a decision for the purposes of section 116. 
25.	First, the kind of decision involved will not generally be typically judicial. The judge is not required to, and has no power to, exercise any judgment of the kind involved in, for example, the decision under sections 79 to 83 whether there is a bar to extradition. Under section 75(4) the judge has no choice and exercises no judgment: if the application is made at the appropriate time, whatever the other merits of the case for extradition, he must order the person’s discharge. 
26.	Secondly, it is I think consistent with the difference in the nature of the judicial function, and in any event significant in the present context, that in sections 78 to 83, in contradistinction to section 75, the judge is expressly required to “decide”. The same applies to sections 84 to 87, each of which uses the formula “If the judge is required to proceed under this section he must decide …”.  In my judgment, the difference in language is deliberate: decisions under sections 79 to 87 can only be questioned by appeal under section 116, which is expressly limited to decisions.
27.	Another section in which the word “decision” does not appear is section 91, which applies if at any time in the extradition hearing it appears to the judge that the physical or mental condition of the person is such that it would be unjust or oppressive to extradite him. So far as that person is concerned, his only grievance could be that the judge perversely concluded that it would not be unjust or oppressive to extradite him, or that the judge should have discharged him rather than adjourned the extradition hearing until he recovered. Since the section applies at any time during the extradition hearing, the question is likely to arise at the beginning of the hearing. There is no obvious reason why the person in question should not be able immediately to challenge the decision by judicial review proceedings rather than waiting to see if a decision is made to send the case to the Secretary of State.
28.	I also refer to section 88, and I contrast the wording of subsection (2) with the reference to “decided” and “decides” in subsection (4).
29.	Thirdly, in my judgment section 116 has to be read with sections 103 and 105. It is clear, and common ground, that section 116 only applies to decisions that may be appealed under the latter sections. Both of these sections provide for an appeal against “the relevant decision”, which is defined as “the decision that resulted in the case being sent to the Secretary of State” in the case of section 103 and “the decision that resulted in the order for the person’s discharge” in the case of section 105. I do not think that a refusal to discharge a person under section 75(4) can be the decision that results in the case being sent to the Secretary of State. The decision that results in the case being sent to the Secretary of State will be a decision on an issue raised under sections 78 to 87. Conversely, a discharge ordered under section 75(4) does not result in the order for a person’s discharge, it is the order for his discharge.
30.	Moreover, this is a sensible and practical result. If on an application under section 75(4) the appropriate judge refuses to order the person’s discharge, it should be wholly unnecessary to wait until the conclusion of the extradition hearing and the decision to send the case to the Secretary of State before challenging his refusal, particularly since the person in question may, as in the present case, be remanded in custody for some time between the date of the application and the sending of the case to the Secretary of State. Subject to issue (b) above, the only issue on an application under section 75(4) is whether the extradition hearing has begun or began by the last date fixed under that section. If the application has been properly made, it will be a waste of resources and in a custody case an unlawful detention for the extradition hearing to have to continue to a conclusion before the judge’s refusal can be challenged and where necessary quashed.
31.	I therefore proceed to consider whether the judge lawfully refused to discharge the claimant.
(b) Is it open to the person whose extradition is sought to make an application under section 75(4) after the extradition hearing has begun, where that hearing began after the date fixed for it under that section?
32.	It is worth pointing out that this issue would not have arisen if, on 30 April 2010, the CPS had asked District Judge Tubbs formally to begin the extradition hearing but to adjourn it part heard for the claimant to appear. It is evident that no one then focused on the potentiality of an application under section 75(4).
33.	As mentioned above, section 8 of the Act is the counterpart of section 75 in relation to category 1 territories. So far as material, section 8 is as follows:
8 Remand etc.
(1) If the judge is required to proceed under this section he must—
(a) fix a date on which the extradition hearing is to begin;
(b) inform the person of the contents of the Part 1 warrant;
(c) give the person the required information about consent;
(d) remand the person in custody or on bail.
(2) …
(3) …
(4) The date fixed under subsection (1) must not be later than the end of the permitted period, which is 21 days starting with the date of the arrest referred to in section 7(1)(a) or (b).
(5) If before the date fixed under subsection (1) (or this subsection) a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so, he may fix a later date; and this subsection may apply more than once.
(6) Subsections (7) and (8) apply if the extradition hearing does not begin on or before the date fixed under this section.
(7) If the person applies to the judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.
(8) If no application is made under subsection (7) the judge must order the person's discharge on the first occasion after the date fixed under this section when the person appears or is brought before the judge, unless reasonable cause is shown for the delay.
34.	It can be seen that section 8 differs from section 75 in allowing an application for discharge where the extradition hearing has not begun by the date fixed for it to be refused on the ground that there was reasonable cause for the delay. Under section 75, that ground is not available, and if it appears that the hearing may not begin until after the date fixed, an application must be made to the judge before that date for a later date to be fixed. However, it is clear from subsection (8) that in a Part 1 case the question of discharge must always be considered at the first hearing after the fixed date. It is inconsistent with subsections (7) and (8) that an application for discharge will first be considered after the beginning of the extradition hearing. That is what did happen in the present case. I can see no reason why Parliament should have made different provision in Part 2 of the Act from that in Part 1 so far as that is concerned, and no reason for a distinction has been put forward. To my mind, the provisions of section 8 give some support for Mr Lewis’s submissions.
35.	Secondly, viewed in isolation, I think that the more likely reading of section 75 is that an application under subsection (4) is to be made on or before the date fixed under that section. However, it is not to be construed in isolation. I accept Mr Lewis’s submission that Part 2 of the Act sets out in chronological order the decisions to be made by the judge. Like sections 75 and 76, sections 76A and 76B concern a time when the extradition hearing has not yet begun. Section 77 then deals with the powers of the judge at the extradition hearing, and section 78 with the initial stages of that hearing. The provisions of sections 78 and 79 are clear and express examples of chronological order. Where a chronological sequence is not intended, the Act makes that clear: see, for instance sections 89 and 90 (“if at any time in the extradition hearing …”). 
36.	Thirdly, in my judgment the facts of the present case demonstrate that the claimant’s contentions lead to a result that Parliament could not reasonably have intended. It follows from his contentions that even if there is a prolonged extradition hearing, with excursions to the Administrative Court, and substantial costs incurred on both sides, a belated and unanswerable application may be made under section 75(4). Conversely, I see no injustice in requiring an application under that section to be made when there is delay in beginning the extradition hearing, but not once it has begun.
37.	Mr Hodivala submitted that an interpretation of section 75 that limited an application under subsection (4) to a time before the beginning of the extradition hearing would lead to abuse. On being informed that an application for discharge was to be made, the prosecution would immediately make an application for a formal opening of the hearing. Whether the person would be discharged would depend on who got before the judge first.
38.	I do not think that this is a realistic danger. I do not think that such an application could properly be made by the prosecution, and in any event in such circumstances, I would expect the judge to refuse to hear the prosecution application until after the application by the person whose extradition is in question.
39.	For these reasons, I concluded that an application under section 75(4) must be made before the extradition hearing, albeit late, begins. 
MR JUSTICE NICOL
40.	I agree.