EXTRADITION — Habeas corpus — Secretary of State certifying that special extradition arrangements in place between United Kingdom and Rwanda — Additional certificate extending period within which request for extradition to be placed before judge from 45 to 95 days — Applicants arrested and remanded in custody — No request for extradition within 45-day period — Applicants applying for habeas corpus — Whether Secretary of State’s exercise of power by certification to modify primary legislation ultra vires — Whether extended 95-day period lawful — Extradition Act 2003, ss 74(11)(a), 194(4)(b)

Brown (formerly Bajinya) v Governor of Belmarsh Prison [2007] EWHC 498 (Admin)

DC: Latham LJ and Lloyd Jones J: 13 March 2007

Power conferred by s194(4)(b) of the Extradition Act 2003 by which the 2003 Act might be modified in its application to cases of special extradition arrangements, permitted the Secretary of State to extend the required period within which a judge must receive the request for extradition and other relevant documents under s 74(10) from the 45-day period specified in s 74(11)(a) to 95 days.

The Divisional Court of the Queen’s Bench Division so held, refusing the applications for habeas corpus of the four applicants, Vincent Brown (formerly Vincent Bajinya), Emmanuel Nteziryayo, Celestin Ugirashebuja and Charles Munaneza. The second respondent, the Republic of Rwanda, was seeking the extradition of the applicants from the United Kingdom in connection with their alleged involvement in genocide and murder in that state. In accordance with his powers under s 194 of the Extradition Act 2003, the third respondent, the Secretary of State of the Home Department, had certified that special arrangements in respect of extradition had been made in respect of each applicant with the Republic of Rwanda. Using his powers under s 194(4)(b) of the 2003 Act the Secretary of State had also certified that the 2003 Act would apply to the extraditions with the modification that in s 74(11)(a) the required period for delivery of the requests for extradition and the relevant certificates to a judge was 95 days instead of 45 days as specified in that section. The first respondent, the Governor of Belmarsh Prison did not appear and was not represented.

LLOYD JONES J said that the applicants had been arrested on 28 December 2006 and remanded in custody. No request to extradite had been made within the 45-day period. The applicants maintained that the modification of s 74(11)(a) by the Secretary of State was ultra vires and that since their lawful period of 45 days expired on 11 February 2007 a judge was required to order their discharge and there was no lawful basis for their continuing detention. District Judge Evans had refused to determine the applications and gave directions for the further conduct of the case. The applicants applied to the court for habeas corpus. His Lordship said that the procedure pursuant to s 194(4)(b) by which the 2003 Act might be modified in its application to special extradition arrangements was one of certification by the Secretary of State and was not subject to the affirmative resolution procedure. The power conferred by that section had to be considered against that background. On a literal reading of s 194(4)(b) the words were wide enough in their natural meaning to permit a modification of the regime applicable to special extradition arrangements by extending the required period under s 74(11)(a). This was the clear effect of the words used and the provisions were not ambiguous or obscure. Nor did their plain meaning lead to absurdity. By s 194(4)(b) Parliament delegated to the executive a power to amend primary legislation without the safeguards of the affirmative resolution procedure which was applicable elsewhere in the 2003 Act.

Appearances: Alun Jones QC and David Hooper (Frank Brazell & Partners) for the first applicant; Alun Jones QC and Joanna Evans (Robert Lizar, Manchester) for the second applicant; Ben Watson (Hallinan, Blackburn, Gittings & Nott Solicitors) for the third Applicant; Ben Watson (O’Keefe’s Solicitors) for the fourth applicant; Jonathan Swift and Deok-Joo Rhee (Treasury Solicitor) for the Republic of Rwanda; Rodney Dixon and Gemma Lindfield (Crown Prosecution Service) for the Secretary of State.

Reported by: Jessica Giles, solicitor