| Extradition — Extradition crime — Secretary of State’s certificate — Counsel arguing certificate should not have been issued — Whether appropriate remedy statutory appeal or judicial review — Extradition Act 2003, ss 70, 108
Akaroglu v Government of Romania; R (Akaroglu) v Secretary of State for the Home Department [2007] EWHC 367 (Admin)
QBD: Scott Baker LJ and David Clarke J: 1 March 2007
Where the Secretary of State for the Home Department issued a certificate under s 70 of the Extradition Act 2003 where he should not have done, the appropriate remedy was by way of judicial review.
The Queen’s Bench Divisional Court so held when (1) dismissing an appeal by Cuneyit Akaroglu under s 103 of the 2003 Act against the decision of District Judge Evans, who on 2 October 2006 sent the case to the Secretary of State for his decision whether he should be extradited to Romania; and (2) refusing permission to apply for judicial review of the Secretary of State’s decision of 3 August 2006 to certify the extradition request in respect of the claimant under s 70 of the 2003 Act.
SCOTT BAKER LJ, having dismissed the appeal and refused permission to apply for judicial review on the facts of the case, said that although no question of remedy arose, there was some debate about the appropriate remedy were the Secretary of State to issue a certificate in circumstances in which he should not have done. Counsel for the Secretary of State submitted that any defect in certification by the Secretary of State would fall to be considered in the appeal against the decision to extradite under s 108. Counsel for the claimant and the government of Romania submitted that the appropriate remedy would be judicial review of the Secretary of State’s decision to certify, there being no right of appeal under the 2003 Act. That argument was to be preferred. S 108 gave a right of appeal against the Secretary of State’s order to extradite, not against his decision to certify, which came much earlier in the process. S 109 was specific about the circumstances in which the High Court might allow an appeal against the extradition order. These included, under s 109(3)(a), that he ought to have decided a question before him differently. The questions before him were those limited questions he was required to consider under s 93 after the case was sent to him by the district judge. “A question before him” was not to be read as including his decision to certify before the case ever went to the district judge. If the Secretary of State’s submissions were correct a defective certificate could not be challenged until the whole extradition process had been completed and the Secretary of State had made his decision to extradite. The proceedings before the district judge would have been a waste of time. Ss 69 to76 of the 2003 Act, covering the preliminary stages of the extradition process, did not engage the statutory appeal mechanism at all. Where an act, such as certification by the Secretary of State, was not amenable to appeal at all, the correct route of challenge to its lawfulness was judicial review.
DAVID CLARKE J agreed. |
Appearances: Joel Smith (Garstangs) for the claimant; John Hardy (Crown Prosecution Service, Ludgate Hill) for the Government of Romania, the respondent to the appeal and interested party in the claim for judicial review; Clair Dobbin (Treasury Solicitor) for the Secretary of State, the defendant in the claim for judicial review.
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