AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

It would be open to an IJA to say, in the context of qualifying remand in custody and Article 26/624, that the domestic court as the IJA has a sole and exclusive competence and responsibility to make the relevant decision. The “referring court” in JZ was the French IJA. It was that French court – post extradition of the requested persons – which was needing to “ascertain” whether there was a deprivation of liberty constituting “detention” for the purposes of Article 26/624. An IJA could argue that there must always be an extradition surrender, so that it as the legally appropriate judicial institution can then discharge the function which belongs to it, and make the deduction for Qualifying Remand. The Ministry of Justice March 2023 further information filed in Doga, and the April 2025 further information in the present case, make clear that this is the position of the French authorities. The Article 26/624 deduction is described by the French Ministry of Justice as “a prerogative” of the French authorities, as the “State issuing” the ExAW (see Doga at §16).

Pausing there, the deduction in respect of a deprivation of liberty under the Article 26/624 mechanism (and Article 716-4[2] of the French Code) itself has (see §5 above): a who component (the French court); a when component (post-surrender); and a known what component (deprivation of liberty, applying the JZ test). There is no whether component, because the deduction involves a duty, not a discretion.