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When making emergency out of hours applications, legal representatives' professional obligations require them to ensure that full disclosure is made and any undertakings are fully discharged.
22 May 2013
Ouseley and Singh JJ
(1) An extradition order was made on 5 July 2011, authorising the applicant (K)'s removal to Poland to serve an outstanding sentence and answer new charges. The applicant's appeal against the order was dismissed, and the warrant was stayed upon the lodging of an application for asylum. The applicant also sought to reopen the appeal on the grounds that, due to the time lapsed, K had now served the time covered by the sentence that formed part of the basis of the warrant. Ouseley J refused that application on 28 January 13, and asylum was refused on 27 March 13, at which point SOCA's statutory duty to enforce the warrant took effect.
(2) K sought judicial review of the SOCA and CPS Extradition Unit's continuing efforts to enforce the warrant, and sought a stay, on the grounds that the warrant had become invalid as a result of the time served by the applicant. The Court refused to accept the judicial review claim form on the grounds that it named Ouseley J and the Administrative Court as the Defendant. Counsel for the Claimant proceeded to make the application at an out of hours hearing. Singh J granted an interim stay and the application was listed for a rolled up hearing before Singh J and Ouseley J.
(3) Ouseley J (with whom Singh J agreed) held: the SOCA was under a statutory duty to remove K where a valid extradition order was in force (section 36 Extradition Act 2003).
(4) The CPS Extradition Unit was not obliged to make enquiries of the requesting authority as to how time served would be treated; and
(5) The application for judicial review was bound to fail as the appeal against the extradition order had been dismissed and D were bound to act in accordance with the original order. The claim was an abuse of process. Permission should be refused and the stay lifted.
(6) Ouseley J and Singh J made observations about the out of hours hearing, and emphasised the obligation on legal representatives to make specific disclosure of the relevant facts and law, particularly adverse material, as out of hours judges may not be familiar with the precise area of law; will have very limited time to make their own enquiries; due to the often ex parte nature of such applications.
Permission refused and stay discharged
- - Background
- - Out of hours application
- - Merits
-The role of the SOCA
- - Professional obligations at out of hours hearings
- - Conclusion
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