The applicant sought permission to appeal, pursuant to section 105 of the Extradition Act 2003, against the determination of a district judge to send his case to the Secretary of State for the Home Department for a decision on whether the applicant should be extradited to India in respect of allegations of involvement in fixing the outcome of cricket matches. In previous proceedings the district judge had ordered that the applicant be discharged pursuant to section 87 of the 2003 Act on the ground that his extradition would not be compatible with his rights under article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The requesting state appealed against that decision to the High Court under section 105 of the 2003 Act. The Divisional Court, having concluded that there would be no real risk that the applicant would be subject to treatment contrary to article 3 in the prisons where he would be detained if extradited, allowed the appeal pursuant to the provisions of section 106(1)(a) and (6) of the 2003 Act, remitted the matter to the district judge and directed that the judge proceed as if she had not ordered the applicant’s discharge. The questions arising were: (1) whether the High Court had jurisdiction under section 103 of the 2003 Act to hear an appeal against the decision of the district judge or whether the appropriate means of proceeding was for the applicant to apply to reopen the decision of the Divisional Court pursuant to Crim PR r 50.27, and (2) whether leave to appeal should be granted either to reopen the determination of the Divisional Court or, if the court had jurisdiction, to appeal.
On the application for permission to appeal—
Held, permission to appeal and permission to reopen the determination of the Divisional Court refused. (1) In the circumstances section 103 of the 2003 Act did not provide for a right of appeal to the High Court. If the applicant sought to challenge the decision that extradition was compatible with his rights under article 3 of the Convention the proper course of action was to apply to reopen the determination of the High Court under Crim PR r 50.27. That followed from the wording of sections 103 and 106 and the structure of the 2003 Act. Here the district judge had not taken a decision which resulted in the case being sent to the Secretary of State. The decision had already been taken by the High Court and the district judge simply proceeded differently in light of that decision, sending the case to the Secretary of State pursuant to a direction given under section 106(6) of the 2003 Act. In those circumstances, section 103 did not provide for a right of appeal to the High Court (paras 36, 40, 43, 54).
(2) Even if the court had jurisdiction to entertain an appeal under section 103 of the 2003 Act the court would have to decide whether it was appropriate to grant leave to appeal. Leave to appeal was likely to be granted where there were reasonably arguable grounds for considering that the district judge should have decided one of the relevant questions differently, or there was admissible new evidence, or a new issue had arisen. That would be consistent with Crim PR 50.17(4). Here, however, the High Court had already considered and determined for itself the relevant question whether extradition would be compatible with article 3. It would not be appropriate to grant leave to appeal unless there was a proper basis for considering that that decision should be reconsidered and leave would only be granted where it was necessary to do so to avoid real injustice in exceptional circumstances. Here there was nothing to suggest that there was any real risk of injustice, nor were the circumstances exceptional (paras 44, 45, 51, 54).
Steven Powles QC and Malcolm Hawkes (instructed by Russell Cooke Solicitors) for the applicant.
Mark Summers QC and Aaron Watkins (instructed by Crown Prosecution Service) for the requesting state.