Judicial review and secondary legislation: What power does the court have to fix broken legislation?
In the case of Lazarov v Bulgaria the High Court found itself in some legal difficulty as it sought to deal with an appeal against an extradition judgment from Westminster Magistrates’ Court that was replete with mistakes.
The High Court found a catalogue of errors in the judgment including:
The latter mistake was particularly troubling as the Requested Person had sought to resist extradition on the basis that it would violate his right to family life protected by Article 8 ECHR. There was some consideration, given these errors and how awry the paragraph numbering had gone, as to whether the judgment was a poorly done copy and paste job. The District Judge responsible remained anonymous and his blushes were spared.
The High Court found that the errors had “the cumulative effect that the reasons simply cannot be considered as addressing the true and actual facts of this case at all”. It was then faced with the challenge of how to dispose of the case. The High Court felt that they were not in a position to allow the appeal on the basis that the District Judge would have been required, if properly directing himself, to order the Requested Person’s discharge. At the same it was felt that there could be a serious injustice if the High Court were to take no action “in a situation which may be relatively finely balanced for and against extradition” where “an order for extradition has been made on the basis of reasons which contain so many errors that they simply do not engage the true facts of the case at all”.
In the Immigration context the Upper Tribunal has a power to remit an appeal back to the First-tier Tribunal in certain circumstances but there is no such power in extradition proceedings when the High Court is hearing an appeal from a Requested Person. The solution, it was determined, was to be found in an application for judicial review of Westminster Magistrates’ Court but no such application had been made. Hasty arrangements for lodging were made on the day of the appeal hearing. At a rolled up hearing dealing with the judicial review and adjourned extradition appeal matters, the judge accepted both the application for judicial review and the application to file it out of time. The Magistrates’ Court judgment was quashed and a direction was made that the application for extradition must be reheard and reconsidered from scratch by a different District Judge, experienced in extradition.
The High Court expressed sympathy with the workload of extradition judges but also disquiet at the way in which the case had been managed. It was noted that upon receipt of the judicial review claim form, Westminster Magistrates’ Court had e-mailed the parties to say that the District Judge had “provided the incorrect judgment”. This was some six months after judgment had been made and after the High Court had refused permission to appeal on the papers on the basis that “the decision is not arguably wrong and the appeal has no reasonable prospects of success”. It was also noted that the appeal was “resolutely resisted” by the CPS Extradition Unit right up to, and during, the hearing in the High Court. The late e-mail from Westminster Magistrates’ Court was described as disclosing “a sorry state of affairs”.
The appeal raises interesting questions about the relationship between judicial review and extradition appeals. Judicial review is usually only available when there is no alternative remedy. In an extradition case similar to Lazarov, where there is a catalogue of errors at first instance and it is also at least arguable that the appeal should be allowed, it may not be clear whether an alternative remedy is available until judgment in the appeal, or a strong indication of what that will be, has been made. In this situation the Requested Person is faced with the unenviable choice as to whether to commence two parallel actions, to hope that their extradition appeal is allowed, or to hope that a High Court judge will show the same pragmatism that was demonstrated in Lazarov.
There was much talk about the exceptionality of the case and a statement that “[t]his judgment and my decision are no warrant or precedent at all for the incursion of judicial review into the field of extradition, which has a complete statutory framework.” Given the well-publicised problems with the underfunded criminal justice system, and the High Court’s own finding that there was a lacuna in the statutory framework it remains to be seen how exceptional the Lazarov case is.
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