Ben Joyes discusses 'Judicial review as a safety valve in extradition proceedings'

28 July 2020

The limits of the statutory appeal regime

The High Court has a tightly prescribed and limited jurisdiction to hear appeals in extradition proceedings. In the context of a requested person’s appeal against an order made for his or her extradition or to send his or her case to the Secretary of State, the High Court may allow an appeal only where the appropriate judge at the extradition hearing ‘would have been required to order the person’s discharge’ (see s. 27(3)(b)/104(3)(b) and s. 27(4)(c)/104(4)(b) of the Extradition Act 2003 (‘the Act’)).

The imperative nature of sections 27 and 104 of the Act is significant. It blocks the statutory route of appeal for a whole host of decisions made by appropriate judges between the initial hearing and the date of final surrender. Consider a decision of an appropriate judge that merely may have led to discharge: for instance, a decision not to adjourn an extradition hearing. There is no basis to appeal this decision within the framework of the Act. The extent of the appeal regime is cemented by the categorical wording of sections 34(1) and 116(1) of the Act which state, inter alia, that a ‘decision of the judge…may be questioned in legal proceedings only by means of an appeal under this Part’.

In Part II cases, the High Court retains a power – which appears in contrast to the binary options of ‘allow’ and ‘dismiss’ in Part I cases (see s.27(1)) – under section 104(1)(b) to ‘direct the [district] judge to decide again a question (or questions) which he decided at the extradition hearing.’ This power arises in circumstances where the High Court is not equipped to determine the question on the materials available to it, but a legal error has been established (Dempsey v United States [2020] EWHC 603 (Admin); see also Zarmaev v Russia [2017] EWHC 2705 (Admin), Musikyavicius v Russia [2011] EWHC 1549 (Admin)). The decision of a district judge, following a remittal under section 104(1)(b), is determinative of the appeal (see s. 104(6)/(7)) and is deemed to be a decision of the High Court; it is therefore not amenable to judicial review. A further route of appeal exists via the High Court only if the question is suitable for consideration by the Supreme Court (Okandeji v Bow Street Magistrates Court and Others [2005] EWHC 2925 (Admin)).

The scope of the jurisdiction

However, the provisions of the Act do not oust the High Court’s jurisdiction to consider applications for judicial review under section 31 of the Senior Courts Act 1981. The High Court retains supervisory authority over the acts/omissions of appropriate judges in extradition proceedings. The jurisdiction operates as safety valve to remedy serious injustice where the Act cannot. Cont........

To read the rest of Ben's article go to the Crimeline Extradition Hub