Case No: CO/12818/2009
Neutral Citation Number: [2010] EWHC 1010 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/05/2010

Before :

LORD JUSTICE PILL
And 
MRS JUSTICE RAFFERTY
- - - - - - - - - - - - - - - - - - - - -
Between :

	R (on the application of Janis Berners)	Appellant	
	- and -		
	Westminster Magistrates’ Court	Respondent	
			
	Janis Berners	Appellant	
	- and -		
	Council of The Criminal Matters Court Regional Court of Riga Latvia	Respondent	
- - - - - - - - - - - - - - - - - - - - -
 (Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Aaron Watkins (instructed by AP Law) for the Appellant
Rebecca Hill (instructed by CPS) for the Latvian Authority 

Hearing date: 14 April 2010 
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Pill : 
1.	This is an appeal against a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates’ Court on 26 October 2009.  The judge ordered the extradition to Latvia of Mr Janis Berners (“the appellant”) pursuant to section 21(3) of the Extradition Act 2003 (“the 2003 Act”).  The judge rejected the appellant’s case that extradition would be incompatible with his rights under the European Convention on Human Rights, article 3.  The appellant gave evidence and written evidence from Dr Sandra Rimsa was before the court.  The appellant appeals to this court by virtue of section 26 of the 2003 Act.  He also applies for judicial review, seeking to quash the decision of the Magistrates’ Court for procedural unfairness.    
2.	The appellant is sought by the Latvian Judicial Authority (“LJA”), pursuant to a European Arrest Warrant (“EAW”) dated 12 November 2007, for the purpose of serving a sentence of 5 years imprisonment imposed on 30 October 2007 in respect of 4 offences.  Latvia has been designated a Category 1 territory pursuant to section 1 of the 2003 Act and Part 1 of the Act, as amended, applies.  The appellant was arrested on 1 April 2009 and produced at City of Westminster Magistrates’ Court.  
3.	Following earlier adjournments, oral evidence was heard on 22 September 2009.  Due to a lack of court time on that day, the judge invited closing submissions in writing.  These were supplied by both prosecuting and defence counsel.  When the judge delivered judgment, on 29 October 2009, it emerged that he himself had not been supplied with the written submissions on behalf of the appellant.  The judge asked counsel for the appellant whether there was anything in those written submissions he had not dealt with in the judgment.  Counsel told him that “the main argument which concerned an investigatory breach of article 3 had not been addressed at all”.  
4.	The judge also raised the possibility of re-opening proceedings.  Counsel for the LJA, Ms Nice, had left court.  Before this court is an agreed note of the judge’s subsequent statement.  He stated:    
“The possibility of re-opening proceedings was discussed.  The learned judge indicated he may have the power to do so, but considered it better for counsel for the defendant to discuss the matter with Ms Nice and, if thought appropriate, return to court to address the judge as to what should be done.  In fact no further mention of this matter was raised before the judge.  The learned judge helpfully made it clear for the defendant’s benefit that the seven day appeal period should be considered to start from the day of judgment.”
5.	In his judgment on 29 October, the judge summarised the evidence given by the appellant and in Dr. Rimsa’s report.  He also considered CPT (Committee for the  Prevention of Torture) reports on Latvia dated February 1999, October 2002 and May 2004.  The judge summarised the evidence of the appellant about prison conditions in Latvia, which the appellant had experienced previously.  Conditions were intolerable, the appellant said, and there is a real risk of his suffering at the hands of prison officers.  Further, he had enemies in the Latvian underworld against whom the prison authorities were incapable of protecting him.  
6.	The judge found the appellant “an unconvincing witness, . . . he has exaggerated his concerns”.  There was no medical evidence to support the appellant’s contentions.  The judge noted: 
“He makes no allegations that he suffered any physical violence either at the hands of prison guards or inmates, when last incarcerated.  He seems more concerned about the quality and quantity of food provided.”
The judge did not find the report of Dr Rimsa, a recently qualified lawyer, helpful.  
7.	Having considered the CPT reports, the judge noted various shortcomings in the Latvian prison system highlighted.  He stated: 
“There is no scope for complacency, but it must be noted the reports are not condemning the whole prison system as being non-compliant with article 3 ECHR.  There is nothing in the reports, or on my assessment of the defendant’s evidence, anything to show that he is at a real risk of being subjected to article 3 ill-treatment either from the guards or fellow prisoners.”
8.	On the evidence, the judge was entitled to reach that conclusion.  The judge rejected the appellant’s claim based on article 3.  He added that the case was a “prime example” of a worrying trend in extradition cases that challenges which are “devoid of merit” are made and proceedings prolonged so that persons can serve more of their sentences in English prisons where conditions are perceived to be preferable to those awaiting them on surrender.  
9.	For the appellant, Mr Watkins accepted his difficulty in challenging the judge’s conclusion on article 3, given the high threshold involved.  He based his claim on the judge’s failure to consider his closing written submissions.  That was linked with a submission that, as a result, no consideration had been given to what he described as his main argument in those submissions, an alleged breach of the duty to investigate which arises from article 3.  Mr Watkins submitted that it was a free-standing obligation for which there must be a remedy.     
10.	Mr Watkins submitted that the failure to hear a party is a fundamental defect.  Had the judge considered the written submissions, it might have tipped the balance on credibility in the appellant’s favour.  The strong comment about absence of merit made by the judge at the end of his judgment demonstrates a hostile attitude by the judge, it was submitted.
11.	Further, in the absence of the written submissions, the judge did not consider, when assessing whether there had been a breach of article 3, the lack of enquiry by the Latvian Authorities into the earlier ill-treatment of the appellant.  The allegations relate to conduct a number of years ago.  This failure demonstrated a continuing breach of article 3 and was relevant to an assessment of future risk, it was submitted.  
12.	To re-open the proceedings in the Magistrates’ Court, when the non-delivery to the judge of the written submissions was known, would not have been a satisfactory procedure, it was submitted.  In any event, there was no jurisdiction to re-open once the order for extradition had been made.  Mr Watkins relied on R (on the application of Mann) v the City of Westminster Magistrates’ Court [2010] EWHC 48 (Admin).  
13.	In that case, an extradition order was made in the Magistrates’ Court on 18 August 2009.  A notice of appeal to the High Court was out of time and it was held that the High Court had no jurisdiction.  The appellant thereupon sought to open his re-extradition hearing and, on 2 November 2009, Senior District Judge Workman ruled that he had no jurisdiction.  An application was then made for judicial review.  Reliance was placed on Section 142 of Magistrates’ Courts Act 1980 which provides: 
“A Magistrates’ Court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so.”
14.	Lord Justice Moses, with whom Mr Justice Hickinbottom agreed, stated, at paragraph 13: 
“Nor does Mr Mann's attempt to re-open the statutory extradition hearing by means of what has been described as "the slip rule" under s.142 of the Magistrates' Courts Act 1980 afford any basis for challenge. S.9(1) of the Extradition Act 2003 cannot be invoked to incorporate the provisions of s.142 of the Magistrates' Courts Act 1980. S.9(1) provides that:- 
‘In England and Wales, at the extradition hearing, the appropriate judge has the same powers (as nearly as may be) as a Magistrates' Court would have if the proceedings were the summary trial of an information against the person in respect of whom the Part 1 warrant was issued.’
S.9 permits the court to proceed, so far as compatible with the statutory extradition scheme, in accordance with rules applicable to criminal trials. Now that the Senior District Judge has ordered the requested person's extradition the hearing before him is finished and s.9(1) is no longer applicable. Since the claimant did not file or serve an appeal notice within the 7 day required period, the European arrest warrant has been "disposed of" pursuant to s.213(1)(c) of the 2003 Act. Part 1 of the 2003 Act provides a statutory scheme laying down a strict and tight timetable which precludes the possibility of invoking s.142 of the Magistrates' Court Act 1980.”
15.	Mr Watkins acknowledged that, by virtue of Section 27 of the 2003 Act, the court’s powers on appeal under Section 26 are limited to allowing or dismissing the appeal.  There is no power to order a re-hearing in the Magistrates’ Court.  The statutory appeal may only be allowed if conditions, which are unlikely to apply in this case, are satisfied.  That is why he seeks to quash the order by judicial review so that the case can be re-heard in the Magistrates’ Court.  
16.	Section 34 of the 2003 Act provides that “a decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part”.  Mr Watkins submitted that an application for judicial review for a defect in procedure may still be brought and Miss Hill, for the judicial authority, accepts that proposition.  
17.	In Olah v Regional Court in Plzen, Czech Republic [2008] EWHC 2701 (Admin), a claim for judicial review, Moses LJ, with whom Blake J agreed, stated, at paragraph 8: 
“Section 34 of the 2003 Act does not oust the court’s jurisdiction by way of judicial review.”
At paragraph 9, Moses LJ added: 
“I would quash that decision and order that the matter be determined afresh giving a fair opportunity to the appellant to produce such medical evidence as he is able.”
18.	I accept that counsel for the appellant was in a difficult position when it emerged during the delivery of judgment that the judge had not seen his written submissions.  It would have been difficult for him to decide whether to accept the offer of further consideration of the case or to seek to rely on a remedy by way of appeal.  I do not, however, accept the submission that the case could not have been re-opened even though an extradition order had just been made.  
19.	The case is distinguishable from Mann where, not only had the order been made, but a notice of appeal had not been issued within 7 days.  The statutory proceedings were ‘at an end’ (Mann, paragraph 7).  The principle in Mann does not, in my view, exclude the possibility that a judge may reconsider an order if a basic error, including a procedural error which emerges from the terms of the judgment, is brought to the judge’s attention immediately after delivery of the judgment and pronouncement of the order.  The extradition hearing would not have concluded and, under section 142 of the 1980 Act, it may “appear to the court to be in the interests of justice” to rescind the order.  By the indication he gave to counsel, the judge probably took the view that he remained seised of the case, at least during the 7 day period within which an appeal could be made under section 26 of the 2003 Act.    
20.	Miss Hill submitted that the present case can be addressed through the statutory appeal and judicial review should not be permitted.  Taken at its best, and even with a more favourable finding on credibility, the evidence did not justify a finding in the appellant’s favour under article 3.  The evidence could not establish a real risk in the future of treatment contrary to article 3.  Further, the judge’s decision could have been no different if the appellant’s written submissions had been considered.  
21.	The right to be heard is of course fundamental and failure to consider the post-hearing submissions was most unfortunate.  It is likely that the judge would have permitted the proceedings to be re-opened, had that been sought.  However, I accept the judicial authority’s submission that in this case there is no real possibility that consideration of them would have altered the judge’s decision.  The court has now seen the written submissions.  It is of course argued in them that the appellant should be believed, a claim that would have been obvious to the judge, but there is no detailed analysis or comment upon the appellant’s evidence which might have led to a different result on credibility.  Moreover, the evidence from the appellant about conditions during his later imprisonment was at best less than strong.  
22.	The emphasis in the written submissions, as Mr Watkins had told the judge, was upon the failure to investigate previous treatment of the appellant in prison or to investigate prison conditions.  A thorough investigation of what happened years ago is required, it was submitted.  Miss Hill does not accept that there were past failures and also refers to a letter from the Department of Imprisonment Institutions in the Republic of Latvia which describes facilities available in such institutions.       
23.	However, what the judge had to consider was the risk of future treatment contrary to article 3.  There is nothing to suggest in this case that a failure to investigate events of years before had any significant bearing on future risk.  A court cannot refuse extradition as a means of punishing the state, whose authorities have made the application, for past failures unless they can be shown to have a bearing on future risk.  The lengthy written submissions about the failure to investigate the past could not properly have led to a finding that return was incompatible with the appellant’s rights under article 3.  Nor is there an abuse of the process of the count in having failed to make those investigations.       
24.	Thus, on both grounds, there is no real possibility that consideration of the written submissions would, or could properly, have achieved a different result in the terms of an alleged infringement of the appellant’s rights under article 3 of the Convention.  I have referred to the possibility of the hearing in the Magistrates’ Court having been re-opened.  Resolution of the issue whether that would have been possible is of no practical importance in the present case.  The result would have been the same whether the hearing had been re-opened to consider the written submissions or, as in the event they have been, the submissions are considered on the hearing of the statutory appeal and also by way of an application for permission to apply for judicial review.  
25.	I would dismiss the appeal and refuse the renewed application for permission to apply for judicial review.  
Mrs Justice Rafferty : 
26.	I agree.