CO/8006/2010 
Neutral Citation Number: [2010] EWHC 3393 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 25 November 2010
 
B e f o r e: 

MR JUSTICE SILBER
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Between: 
PIOTR ZOLTOWSKI 
Appellant

v 

REGIONAL COURT IN PLOCK THE CIRCUIT COURT 
Respondnet 
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Computer‑Aided Transcript of the Stenograph Notes of  
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The appellant appeared in person.
Miss Mary Westcott (Instructed By Crown Prosecution Service) Appeared On Behalf Of The Respondent
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J U D G M E N T
1.	MR JUSTICE SILBER:  Piotr Zoltowski, the appellant, seeks to appeal the decision of Deputy Senior District Judge Wickham's order of 19th July ordering the appellant's extradition to Poland pursuant to section 21(3) of the Extradition Act 2003.  The proceedings were based on two European Arrest Warrants which were issued respectively on 23rd March 2010 and 5th May 2010.  They were duly certified by the Serious Organised Crime Agency on 9th and 11th June 2009 respectively.  
2.	Poland has been designated a Category 1 territory pursuant to section 1 of the Act meaning that Part 1 of the Act applies.  The first warrant relates to two offences on 15th September 2004 concerning drugs and for which there is an outstanding two year, two month and 14 day sentence.  The second warrant relates to two offences described as kidnapping and racketeering resulting in a custodial sentence of two years, all of which remain outstanding.  
3.	The appellant was arrested on 18th July 2010.  Following an uncontested extradition hearing, the judge ordered extradition.  The appellant appeals.  The grounds of appeal are that the appellant would like to stay in England because, first, he has a child who is sick and the doctors here are better than those in Poland.  Second, he does not have a family in Poland.  Third, his son and daughter go to school here and, finally, if extradited to Poland his son and daughter will have no one to care for them in the United Kingdom and they would have to go into local authority care.  Miss Mary Westcott, counsel for the prosecuting authority, contends that there are preliminary issues that have to be resolved before the court considers the merits of an appeal.  First, she contends that the court does not have jurisdiction to hear the appeal because the Crown Prosecution Service were not served in the appropriate time and, second, the appellant should not be allowed to rely on evidence which was available but not used at the extradition hearing.  
4.	The chronology, so far as the appeal is concerned, is that on 19th July 2010 extradition was ordered.  On 29th July 2010, the Crown Prosecution Service received a letter from the Administrative Court Office stating that the case had entered the warned list.  On 24th August 2010 the Crown Prosecution Service wrote to the appellant raising the issue of the fact that they had not been served.  The appellant accepts that the Crown Prosecution Service was not served.  He says that he had not realised that that was necessary.  Miss Westcott points out that section 26(4) of the Extradition Act provides that:  
"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made."
Pursuant to paragraph 22.6A section 2 of Part 52 of the Civil Procedure Rules provides that: 
"(3) Where an appeal is brought under section 26 ... of the Act ‑
"(a) The appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made." 
5.	Miss Westcott in her skeleton stresses the use of the word "must" in both the statute and the rules.  She points out that in the case of Mucelli v Government of Albania [2009] 1 WLR 276, it was made clear by a majority, Lord Rodger of Earlsferry dissenting, first, that the appellant must lodge and serve a notice of appeal on the court and the respondent within the seven day period provided by the Act (see, for example, paragraph 66 per Lord Neuberger of Abbotsbury);  second, it is not possible to extend the time period for this to be done (see, for example, paragraph 74 per Lord Neuberger of Abbotsbury) and, third, that any failure to serve a notice of appeal within the time will mean that there is no valid appeal before the court.  Indeed, in Mucelli, the House of Lords held that a failure to serve the Crown Prosecution Service within the prescribed period meant that an appeal was irredeemably out of time and could not succeed.  
6.	To my mind the failure to serve the Crown Prosecution Service is fatal to the appellant's case.  The appeal must be dismissed.  
7.	For the purpose of completeness I add that the appellant would not be entitled in my view to adduce any evidence to support his grounds relating to the effect of extradition on his children, because section 29(4) provides that the conditions for a successful appeal are that: (a) evidence is available that was not available at the extradition hearing and (b) the evidence would have resulted in the judge deciding the relevant question differently.  In the decision of this court in The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), the President of the Queen's Bench Division, giving the judgment of this court stated that: 
"In our judgment evidence which was 'not available at the extradition hearing' means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained."  
8.	I have not had argument on this point as it was unnecessary because there is no jurisdiction to hear this appeal, but I would anticipate that this point would have caused very serious problems for the appellant, even if this court had jurisdiction. 
9.	For the reasons I have explained this appeal is dismissed.