England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		9 July 2009

1. MRS JUSTICE RAFFERTY: In this statutory appeal the Appellant Dunne challenges the decision of 14 January 2009 of District Judge Wickham at the Westminster Magistrates' Court to accede to the High Court of the Republic of Ireland's application for extradition following his conviction on 19 October 2007 at Kilkenny Circuit Centre for one offence of having sexual intercourse with a mentally impaired person. The European Arrest Warrant was issued on 30 July 2008, certified on 12 August 2008, the appellant arrested on 19 September 2008.
2. He was extradited for this offence in November 2003. He spent sometime on remand in Ireland and then was released on bail. Some part of his time on bail, until 16 October 2007, was spent in England. The Irish Court twice began to try this matter in March 2006 and in May 2007. In October 2007, at a re-trial, Dunne absconded on the third day and came to England. He was convicted in his absence and his return was sought for sentence.
3. He submitted at the lower court that it would be incompatible with his Human Rights to extradite him, and relied upon Article 2 (his Right to Life) and upon Article 3 (Prohibition of Torture and Inhuman Treatment). The District Judge assumed an anticipated sentence of imprisonment and/or custody pending appeal. The test was therefore whether there were an almost certainty of his being killed whilst in custody and/or whether he were foreseeably at real risk of being seriously ill treated so as to engage Article 3.
4. He relied before her upon five points:

(1) his intolerance to onions, red in particular, a severe allergic reaction potentially life threatening yet ignored by prison staff;

(2) racially unpleasant remarks and abuse on remand in Ireland referring to the mixed race mothers of his two children;

(3) a convert to Judaism, his need for a strict kosher diet which is not respected and he has been directed by prison staff to eat pork;

(4) he has been subject to anti-Semitic remarks and endured religiously offensive jokes;

(5) he has become the target of Republican revenge attacks following an involvement in 1983 in the Republic of Ireland with O'Brien who wanted him to provide timing devices for bombing campaigns. Thereafter there have been incidents in 1995, 1997, 2004 and lastly in 2005.

5. He denied the extradition offence, stating he has no recollection of the girl involved. He acknowledged he was arrested, identified and interviewed. He claims involvement in various gun fights reported to the police in the 1980s and in 1997, and severe assault in October 2005 whilst on bail in Ireland for this allegation. He fears retaliation in prison and that his family in the United Kingdom would suffer.
6. All these submissions were before the District Judge who found no or no sufficient detailed and accurate authentication of his assertions.
7. He produced three documents; two letters from his solicitors in Ireland when he was remanded in custody following his extradition in 2003 and thereafter when he challenged its validity; the third, a Directions Order from an English County Court in respect of contact with his son. He relied upon these as supporting his Article 2 and Article 3 submissions. The District Judge was satisfied that he misinterpreted the contents of all three and many of the incidents he described. She found that he was not a reliable witness and very little of what he said was corroborated.
8. Article 2 and Article 3 attract a high threshold test. The District Judge rejected the Article 2 submission, the defendant's evidence being far from compelling let alone establishing an almost certainty of death. Breaches of Article 3 encompass deliberate, inhuman treatment causing severe and cruel suffering and she found that any mistreatment, even on the appellant's own account, fell short of severity.
9. She considered that the fairest way of dealing with his submissions to acknowledge that extradition necessarily separated him from his children in this country and from current partners, unlikely to visit him in prison in Ireland. To that extent she found some interference with his private and family life but that it was proportionate to the legitimate aim of the Request.
10. She rejected all submissions, found that the extradition to Ireland would not be incompatible with the Appellant's Human Rights, and ordered it.
11. After her decision the Appellant's solicitor and counsel withdrew. The Appellant was thus unrepresented between then - 14 January 2009 - and 25 May 2009. He was - before counsel left him after the January hearing - given an Appellant's Notice. The boxes in Form N161 which should have contained the address for the Crown Prosecution Services ("CPS") were blank. His solicitors explained to him that his Appellant's Notice had to be filed, but did not explain that it had also to be served on the CPS. Neither did the Administrative Court explain to him that this latter was essential. I am not sure whether it is suggested that it should have done, but if that be the position then I simply remark that though all court offices in this building are staffed by those who try hard to assist, they are not conducting any party's litigation and the taking of correct procedural steps should not be reliant on their goodwill. Additionally, the Appellant was represented up to the point at which he was by his adviser given the blank form.
12. On 20 January 2009 he filed a Notice of Appeal with the Administrative Court Office seven days after District Judge Wickham, on 14 January 2009, ordered his extradition and thus within the statutory period specified in Section 26 (4) of the Extradition Act 2005. The Administrative Court Office did not issue until three days later - 23 January - sending the stamped Appellant's Notice to him by post. He was in custody. He sent his appellant's Notice by recorded delivery, together with a bundle of material, to the CPS on 23 March 2009, two months later. The bundle did not arrive, hence the Appellant's Notice was not served either on the Respondent or on the CPS, agents for the judicial authority.
13. I turn to the law as to procedure. The House of Lords in Mucelli v The Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, decided that the time limit for the giving of the notice in Part 1 appeals is fixed by statute at seven days; giving of notice includes filing the notice with the court and serving it on the respondent and the CPS; filing must precede service; the seven days in Section 26 (4) of the Extradition Act 2003 runs to midnight on the seventh day or, if weekends or a public holiday are relevant, the next business day; neither filing nor service can be waived or dispensed with and no application out of time for either is permitted.
14. Nothing in the rules precludes service on the CPS or on the Respondent of an Appellant's Notice which has not been issued (or stamped as received) by the Administrative Court Office as Mr Justice Collins pointed out in dialogue with counsel during a hearing on 6 April 2009 conducted by video link when, it appears to me, at least initially the CPS thought that it could waive service. Alerted by the court, counsel preserved the jurisdiction point and Mr Justice Collins granted legal assistance so that it could be argued or at least ventilated.
15. The position in law is clear. The judgment of their Lordships' House allows of no genuflection to circumstances. It may be that where an unrepresented appellant is in custody compliance is a challenge. One could readily foresee the development of good practice leading to counsel or solicitors giving to an unsuccessful defendant at the conclusion of his case a written Advice which sets out these unforgiving procedural requirements. It would not be difficult. An Advice template on computer would be simple to compose and reproduce and, if I may say so, one size would fit all.
16. Five issues - lucidly and economically expressed by Mr Brandon who represents the Appellant today - arise in this statutory appeal:

Whether this Court has jurisdiction to hear an appeal where the Appellant has failed to serve notice on either the Respondent or the CPS;

Whether there are substantial grounds for believing that there is a real risk, or in the alternative, it is a near certainty that the Appellant will be killed in custody by Irish Republicans should he be returned to Ireland, and that as such his extradition would be incompatible with his Article 2 rights;

Whether there are substantial grounds for believing that there is a real risk of the Appellant suffering serious harm from Irish Republicans and that the Irish prison authorities will be unable to provide him with a reasonable level of protection against such harm, contrary to his Article 3 rights;

Whether there are substantial grounds for believing that there is a real risk, or in the alternative, that it is a near certainty, the Appellant will be killed by the ingestion of red onions should he be returned to Ireland and that as such his extradition would be incompatible with his Article 2 rights;

Finally whether there are substantial grounds for believing that there is a real risk of the Appellant suffering inhuman or degrading punishment by the failure of the Irish prison authorities to provide him with a red onion-free kosher diet, contrary to his Article 3 rights.

17. As to the ignored allergy to red onions, I cannot accept the submission of the Appellant that the District Judge erred in not considering that it amounted to punishment unintentionally degrading and life-threatening for this particular individual. It was not on the evidence open to her to find an allegedly cavalier attitude capable of constituting a breach of Article 3. The absence of evidence that prison staff in Ireland will guarantee service of exclusively onion-free kosher food does not amount to a real risk of inhuman and degrading conduct.
18. As to potential attack by Republicans, I remind myself that the District Judge accepted that in relation to a claimed attack on the Appellant in October 2005 "the defendant may well have prompted (this) incident by publishing names on the Internet." She further observed that "this court does not doubt that 'informers' in the sectarian violence of Northern Ireland in the latter part of the last century were at risk of personal violence and that levels of violence in revenge attacks were extreme." This is said by the Appellant to an extent to be corroborated by the unchallenged evidence in the lower court of Mr Crosby-Harris who saw injuries to the Appellant's neck consistent with ligature marks. Even if that were corroborative, and I am not convinced that it is, it goes to injury, not to cause. I am not persuaded that the conclusion of the District Judge that any mistreatment, even on the Appellant's own account, fell short of severity was in error.
19. As will have been plain from the construction of this judgment - although for the reasons I have set out I have concluded that the court lacks jurisdiction - I have considered the merits as though it had jurisdiction. None of the Appellant's complaints come anywhere near persuading me that any Ground in this statutory appeal is tenable. His appeal is one which - grateful as I am to Mr Brandon for his efforts - I would unhesitatingly dismiss.
20. LORD JUSTICE LEVESON: I agree. Mr Brandon has taken every point that was open to the appellant with as much force as could be mustered. In reality, although this court lacks jurisdiction to hear this appeal, in any event, the appellant has no arguable basis to challenge the approach of the district judge.
21. I conclude by emphasising the duty on all advising those who have unsuccessfully fought extradition proceedings of the statutory requirements as to filing and serving the relevant notice within the seven days permitted by the provision of the Extradition Act 2003. I further endorse the suggestion of Mrs Justice Rafferty that appropriate advice in standard form would assist not only to underline the significance of these time limits but also (if a signed copy is retained) to demonstrate that accurate advice had been given.
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