Following the dismissal of an extradition appeal or upon the client deciding to withdraw their appeal by consent there follows a 14 day period in which an application to certify a point of law of general public importance can be made to the High Court. If no such application is made, or it is refused, extradition to a Part 1 country must take place within the 10 days that follow the end of the 14 day period or upon refusal of the High Court to certify a point of law. That much is clear from section 36 Extradition Act 2003 which states at subsections 2 and 3:
(2) The person must be extradited to the category 1 territory before the end of the required period.
(3) The required period is—
(a)10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued, or
(b)if the relevant court and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.
But what happens if the person is not extradited within the required 10 days?
If the defence are live to the issue then they can make an application to the appropriate judge (sitting at Westminster Magistrates’ Court) for discharge pursuant to section 36(8) of the Act. This application must be made on notice and discharge must be ordered unless reasonable cause can be shown for the delay in extradition taking place.
Regardless of whether such an application is made or not, the CPS (acting on behalf of the judicial authority) can make an application to the relevant court for a later date for extradition to take place (s36(3)(b)). They can make this application even when an application for discharge has been made to the appropriate judge and has been heard (but not determined). The application is not made to the appropriate judge who may be scheduled to hear a defence application to discharge, rather It is made to a High Court Master and is made ex parte.
So although section 36(8) was inserted into the legislation to offer protection to the requested person, in reality it makes no difference because the judicial authority can simply make their ex parte application to the High Court and once this has been granted (it almost always is as there are no representations from the defence) it means that the appropriate judge has no power to hear the application to discharge.
Another fallacy of the Extradition Act 2003 that needs amending?
In order to bring some equilibrium the application to extend time for extradition to take place should be made to the same judge that is to hear an application to discharge (if such an application has been made by the defence). The application to extend the time for extradition should also be made on notice so that the defence can have an opportunity to make representations.
Time limits play a big part in the Extradition Act 2003. The CPS found that out to their detriment recently in the case of Domenico Rancadore. Time limits are their to be respected. If a person hasn’t been extradited within the relevant period, a defence application for discharge should not – in my opinion – be thwarted by an ex parte application (out of time) for an extension of time without a judge hearing submissions on whether the CPS can show reasonable cause for the delay in extradition being effective.