Case No: C1/2007/1131 
Neutral Citation Number: [2007] EWCA Civ 596
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT 
(LORD JUSTICE LATHAM & MRS JUSTICE RAFFERTY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 6th June 2007
Before:

LORD JUSTICE SEDLEY
and
LORD JUSTICE MOSES

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Between:

	NIZIOL	
Appellant	
	- and -		
	
DISTRICT LAW COURT IN TARNOBRZEG, POLAND	

Respondent	

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(DAR Transcript of 
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Mr P Noble and Miss R Baruah (instructed by Messrs Kielanowski Lim) appeared on behalf of the Appellant.

Mr J Hardy and Ms Alison Riley (instructed by Crown Prosecution Service) appeared on behalf of the Respondent

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Judgment

Lord Justice Sedley:
1.	Application is made to this court by Miss Baruah, who appears with Mr Turner, for permission to appeal against a decision of a Divisional Court consisting of Latham LJ and Rafferty J which refused to interfere with the decision of the Deputy Senior District Judge, Mrs Wickham, that the applicant’s extradition to Poland should not be refused or delayed on account of his state of health.
2.	A European arrest warrant had been issued in due form against him on charges of fraud and associated offences connected with the running of a Polish pharmaceutical company of which he had acquired control.  We are not concerned with either the merits or the technical aspects of this warrant or of the Extradition Act procedure used for its enforcement.  We are concerned if anything with the provision of the Extradition Act 2003 section 25: 
“(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. 
“(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him. 
“(3) The judge must-
(a) order the person’s discharge, or 
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”
3.	An application was made to the Deputy Senior District Judge to discharge the applicant because of his poor psychological state. He had been arrested in July 2005.  Following a hearing the Deputy Senior District Judge on 1 December 2006 held that his condition was not such that it would be unjust or oppressive to extradite him, and on 5 March 2007 she ordered his extradition. Meanwhile however Mr Niziol had launched parallel proceedings in the Administrative Court both by way of statutory appeal and by way of judicial review.  In relation to the latter, Sir Michael Harrison refused leave on the papers. The appeal and renewed application came together before the Divisional Court on 18 April 2007, although it was submitted in response that section 34 of the Extradition Act precluded the challenge by way of judicial review.
4.	For reasons which I am about to come to, it is not appropriate to do more than to note that the Divisional Court dismissed both the application and the appeal.  I stress that we are not concerned with the grounds upon which it did so.  The court went on to refuse an application for a certificate that a point of general public importance was involved and thereby precluded any application to the House of Lords for leave to appeal.

5.	Coming instead to this court, which is, I would remind her, the Civil Division of the Court of Appeal, Miss Baruah seeks ostensibly two things.  One is consideration of her submission that the applicant’s health has deteriorated further since the Deputy Senior District Judge’s decision.  The other is the human rights implications of what she submits is the absence of any provision in the Act for such a situation.  Specifically, she wants to contend that the Extradition Act 2003 is incompatible in this respect with the Convention rights of the applicant.  Richards LJ on 31 May granted a stay of removal in order to enable this application to be made.  

6.	At one point in her argument Miss Baruah sought an adjournment in order to be able to pursue her arguments elsewhere.  That, however, presupposes that the court is properly seized of the matter in the first place, and in my judgment it is not.  We have no jurisdiction, in my judgment, to entertain this application at all.  The reason is that extradition is by definition a criminal cause or matter.  It was so held in Cuoghi v Governor of Brixton Prison [1997] 1 WLR 1346, a decision of a Court of Appeal consisting of Lord Bingham, Chief Justice, and Kennedy and Saville LJJ.  Such a holding comes as no surprise since it has always been accepted that any second appeal in an extradition matter both before and after the enactment of the 2003 Act lies from the Divisional Court to the House of Lords.

7.	The fact that this route is blocked by the refusal of a certificate by the Divisional Court does nothing to give us a jurisdiction which we otherwise lack.  Nor can it make any difference that the issue which Miss Baruah wants to argue is one of Convention compatibility.  If there is a remedy it has to be sought elsewhere.  Miss Baruah’s submission to us was that the only place where it might be sought would be the European Court of Human Rights.  Mr Hardy, however, whom we have not found it necessary to call upon save in this one respect, has pointed out to the court the extant provisions which are capable of addressing a situation of the kind that Miss Baruah wishes to bring before a court.  The Framework Decision of 13 June 2002, which is the source of the European arrest warrant procedure, provides by Article 23 paragraph 4: 

“The surrender may exceptionally be temporarily be postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person’s life or health.  The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date.  In that event the surrender shall take place within ten days of the new date thus agreed.”

8.	The executing judicial authority in this case, Mr Hardy tells us, is the City of Westminster Magistrates Court, and it will ordinarily undertake consideration of an exercise of this kind in co-operation with the Serious Organised Crime Agency, a statutory authority.  The Act reflects these provisions in section 35(4) and section 36(3)(b), the latter of which reads: 

“The required period is-

…

(b) … if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.”

9.	This provision affords a measure of control over removal by way of extradition if ill health so demands.  It is not for this court to give any decision or even prognostication as to what the outcome of such an application might be.  But it is not irrelevant in dismissing this application, as we must for want of jurisdiction, that there is in fact provision by way of fallback which, since it involves an inferior tribunal and a statutory agency, will, I would think, need to be conducted in accordance with the provisions of the Human Rights Act 1998.  This at least enables the court in declining jurisdiction to have some confidence that the matters which it is sought to raise do not necessarily lack of a proper forum.  All that it is relevant for us to say today is that this court is not that forum.

Lord Justice Moses:  

10.	I agree.

Order:  No jurisdiction.

Mr Hardy: My Lord, I am very sorry.  May I invite your Lordship, when your Lordship considers the transcript of your Lordship’s judgment to note this: that, if I may say so, infuriatingly the executing judicial authority is the inferior court, the City of Westminster court.  Where there is no appeal against the extradition order, that is the court which liaises with SOCA and which arguably could be the subject of the submissions in the event of sea-change circumstances to delay the surrender.  When the appeal procedure is invoked, then by section 36 we have the phrase “the relevant court”, that is the phrase. But that is therefore the High Court.  

Lord Justice Sedley:  Yes, thank you Mr Hardy.  Blissfully what you have said is now on the transcript and whether it is done by way of amendment of my text or simply by leaving what you have said there, it will be on the record.