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
		15 June 2011

1. LORD JUSTICE LAWS: Four appellants seek to appeal against orders of extradition made against them at the City of Westminster Magistrates' Court. The requesting state in each case is a member of the European Union: Romania in the case of Mr Ungureanu and Poland in the other cases, Lukaszewski, Pomiechowski and Rozanski. Accordingly, the proceedings are governed by part 1 of the Extradition Act 2003. The appellant Rozanski, who was to act in person, has not been produced from the prison where he is on remand, notwithstanding clear directions from this court that that was to happen. I have ordered that the Governor of Wandsworth Jail provide an explanation. In the circumstances we adjourned Rozanski's case.
2. Pursuant to a direction given by myself last week, the cases were listed today for determination of a preliminary issue which arises or is said to arise in each of them, namely whether notice of appeal was given within time pursuant to section 26(4) of the 2003 Act, which provides:

"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."

3. In Mucelli v Government of Albania [2009] 1 WLR 276, [2009] UKHL 2, their Lordships' House held that under this section the notice of appeal had to be both filed and served within the specified period, and that the period could not be extended. On considering the facts in Ungureanu's case, it seems to me that his notice was give in time, as I shall explain.
4. Lukaszewski was arrested on 27 January 2011, pursuant to a European arrest warrant issued at the District Court of Torun in Poland. He was produced at the City of Westminster Magistrates' Court for an initial hearing the next day, 28 January. His extradition was sought in order to execute aggregate sentences of imprisonment, of which seven years in total remained outstanding, for 13 offences of burglary and attempted burglary.
5. The initial hearing, at which the appellant Lukaszewski was represented by a court duty solicitor, proceeded directly to the extradition hearing, and District Judge Evans ordered Lukaszewski's extradition. He was remanded in custody to HMP Wandsworth. On 2 February 2011, the sixth day after the order for extradition, a notice of appeal was filed at the Administrative Court. An unsealed copy of the first page of an appeal notice in the statutory form N161 was received by the respondent, represented by the Crown Prosecution Service, within time, apparently on 2 February 2011.
6. According to a statement from a prison officer at Wandsworth, a sealed copy, again of the first page of N161 only, was also faxed to the CPS on 2 February 2011, although the respondent has no record of that being done. That date, 2 February 2011, was within the prescribed seven-day period. The respondent did not receive a full copy of the notice of appeal, sealed or unsealed, until after time had expired.
7. The appellant Pomiechowski was arrested on 25 January 2011 on two European arrest warrants issued out of different district courts in Poland. He was brought before the City of Westminster Magistrates' Court the same day. At that stage he was represented by solicitors. The case was adjourned and he was remanded in custody. It was adjourned again on 8 February 2011 and he was again remanded in custody. On 2 March 2011 his representatives applied for a further adjournment which was, however, refused. The district judge then ordered his extradition. He was remanded in custody.
8. On 7 March 2011, thus within time, an unsealed copy of the first page of a notice of appeal, again in form N161, was faxed to the respondent from Wandsworth Jail. A sealed copy of the first page, as in Lukaszewski's case, was also sent within time. A sealed copy of the full notice was received on 11 March 2011, out of time.
9. I should also set out the facts in Ungureanu. Ungureanu was arrested in Bristol Airport on 22 January 2011 on a European arrest warrant, issued out of the Baia Mare Court of Justice, Romania. He was wanted for an offence of driving with excess alcohol. He was produced before District Judge Purdy at the City of Westminster Magistrates' Court on 24 January 2011, and was represented by the duty solicitor.
10. His extradition was ordered. Bail was refused and he was remanded to Wandsworth Jail. On 31 January 2011, thus within time, a full but unsealed copy of his notice of appeal was received by the respondents by fax from the prison. The same day, the full unsealed notice was faxed to the Administrative Court and apparently returned sealed.
11. It is convenient also at this stage to note that Ungureanu's grounds of appeal are of his own composition. However, these present no remotely viable basis on which an appeal may properly go forward.
12. As I have foreshadowed, however, it seems to me that the notice of appeal in his case was served in time and I will shortly explain why. Mr Watson wishes on Ungureanu's behalf to raise two points on section 2 of the Extradition Act 2003. With the agreement of Mr Hardy QC for the issuing judicial authority, we will grant leave to amend Ungureanu's notice of appeal on Mr Watson's undertaking to file with the court and serve on the respondent his proposed amendment. Ungureanu's appeal will be adjourned for a substantive hearing on another date.
13. I turn to the principal question before us: what are the essential features of a notice for the purposes of section 26(4)? Section 26(4) has fallen to be considered in a number of authorities of this court, as well as Mucelli in their Lordships' House. There have been differences of view as to what is required for the purposes of the subsection.
14. In what I apprehend is the most recent decision, Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), in which judgment was given on 1 April 2011, Sullivan LJ with whom Collins J and Treacy J agreed said this at paragraph 12:

"Both Mr Davies and Mr Hardy QC, who has appeared on behalf of the respondent, referred us to the different approaches in the authorities as to what must be served within the 7 days in order to comply with section 26(4). For example, in the Regional Court in Conin, Poland v Parvel Walerianczyk [2010] 2149 (Admin) Stanley Burnton LJ, with whom Nichol J agreed, said that what must be served was a copy of the filed notice of appeal (see paragraph 27). Stanley Burnton LJ distinguished an earlier decision Parvel Sciezka v the Court in Sad Okregowy Kielce, Poland [2009] EWHC 2259 (Admin), in which a different approach had been adopted, as a 'very hard case on the facts' (see paragraph 28). More recently, in Cane v Spain [2011] QB (Admin), dated 17 March 2011, my Lord Collins J has declined to follow the decision in Conin. Mr Davies relied on Cane in his skeleton argument. Mr Hardy submitted that Cane had been wrongly decided."

15. However in Szelagowski itself the court did not find it necessary to resolve the conflict between these different approaches because, Sullivan LJ stated (paragraphs 13 and 17), even making the most generous assumption possible in the appellant's favour, namely that all an appellant had to do to comply with section 26(4) was to serve a document which could reasonably be described as a notice of appeal, that was not done on the facts of that case. Mucelli in their Lordships' House was not concerned with the form of the notice that had to be served. As I have said, Mucelli established that the notice, whatever was required by way of form, had to be both filed and served within the non-extendable time limit. The draconian nature of this rule has been sought to be mitigated in decisions of this court, and the means by which that has been done or attempted have generally consisted in the adoption of a somewhat more liberal approach to the form of the document required to be filed and served than might perhaps otherwise have been the case. It is to be noted that in Mucelli, Lord Neuberger observed (paragraph 75 and 82) that the reference to "rules of court" in section 26(4) governs the manner, not time, of service; and under the rules, notably CPR 3.10, the court has power to correct procedural errors.
16. Cases in which some leeway has been allowed as to the form of the notice include the following. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), this court (Sir Anthony May President and Silber J) deployed rule 3.10 to correct the omission of the appellant's date of arrest from the notice that was served. In Sciezka v The Court in Sad Okregowy, Kielce, Poland [2009] EWHC 2259 (Admin), referred to as I have indicated in Szelagowski, the court (Sullivan LJ and Wilkie J) deployed rule 3.10 to allow service and filing of an unsealed copy of the notice by fax. In Dunne v High Court Dublin [2009] EWHC 2003 (Admin) (Leveson LJ and Rafferty J) the notice was served out of time; but Rafferty J observed at paragraph 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."

17. In Arunthavaraja v Administrative Court Office [2009] EWHC 18921 (Admin) (Richards LJ and Maddison J) the notice was served out of time but Richards LJ observed at paragraph 25 that he was not convinced

"... that service would be defective if an unsealed copy of the notice were served within the seven-day period, provided of course that it were in identical terms to the notice as filed. Even if service of an unsealed copy is technically defective, it may well be that the remedial power in CPR rule 3.10 could be invoked to cure the defect without offending the strict requirements of the 2003 Act."

18. In Kaminski & Ors v Judicial Authority Of Poland & Ors [2010] EWHC 2772 (Admin), Ouseley J refused to strike out four appeals on the grounds that no or insufficient grounds was set out in the notice. He said:

"7. There is no statutory requirement that the grounds be in the notice of appeal, failing which the appeal is invalid. The requirement, in my judgment, is one that is covered by the Rules of Court. Indeed, it is noticeable that the Rules of Court do not specify that the notice of appeal must contain grounds. That is a request, given the language of section 6 of the appeal form, 'Please state ...' [I interpolate the references to form N161] that is provided in the form itself.

"8. There are strong reasons for not enlarging the scope of invalidity beyond the seven-day point, at least in relation to grounds. The statute does not impel such a conclusion. There are plainly problems given the tight time limit for giving notice of appeal in providing grounds of appeal."

19. By contrast to the relatively liberal position taken in some of these cases, in Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin), also referred to in Szelagowski, the court held that a draft notice would not suffice for section 26(4) and the sealed copy indicating that the document had been filed at the Administrative Court was required. Walerianczyk was followed in Bergman, R (on the application of) v District Court in Kladno Czech Republic [2011] EWHC 267 (Admin).
20. Clearly not all these cases speak with the same voice. It seems to me the balance between the rigour of section 26(4) as construed in Mucelli, and its mitigation by a degree of flexibility as to the form and content of the notice of appeal which is served and filed, may properly be struck by the following approach:
21. 1) The notice of appeal must be both filed and served in time (Mucelli).
22. 2) The document so filed and served must purport to be a notice of appeal as such. Thus, for example, a mere intimation of an intention to appeal will not suffice.
23. 3) To be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminski, set out at least the gist of the basis on which the appeal is sought to be presented. So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without a statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests.
24. 4) while it is highly desirable that the notice be in form N161, and that a sealed copy be served, a failure in either of these two respects will not necessarily be fatal. The Civil Procedure Rules do not on their face require the notice to be in form N161, and even if they did, a failure to comply would in principle be curable under CPR 3.10.
25. As regards sealing, with respect to Stanley Burnton LJ in Walerianczyk, while I accept that the seal tells the recipient that the document has been filed, and that is of itself desirable, I cannot, given the very great rigour of the section 26(4) requirement as to time of service, accept that the absence of the court seal is an incurable defect for the purpose of service under section 26(4).
26. 5) Generally, as I have said, procedural defects may be cured under CPR 3.10, but I regard the three requirements I have specified at (3) above as an irreducible minimum such that if any one of them is entirely absent, that will not be curable and the document will not be a notice of appeal.
27. Here, Ungureanu's notice as served was full but unsealed. That suffices for the purposes of section 26(4). But the others were not. The first page of form N161 gives the name of the appellant and of the relevant court in the requesting state, but it does not identify the decision sought to be appealed, nor does it set out anything whatever in the nature of grounds of appeal.
28. Ungureanu's case will, as I have said, be adjourned to be heard substantively on another day. The purported appeals of Lukaszewski and Pomiechowski are dismissed. As I said at the outset, Rozanski's case is adjourned. This judgment must be made available to Rozanski, or anyone he instructs, if Rozanski seeks to pursue the matter. He too served only the first page of N161 within time.
29. I add two postscripts. First, the relevant authorities at Wandsworth Jail appear to have made a practice of sending only the first page of form N161 to the CPS. There is evidence from the jail to the effect that more onerous requirements would cause difficulties, not least to the prospective appellants themselves. However this practice must in my judgment cease. A proper notice has to be sent in line with the approach I have indicated.
30. By way of a second postscript, I would with respect repeat these words of Sullivan LJ in the Szelagowski case (paragraph 18):

"Bearing in mind that some appellants will not have been represented at extradition hearings before district judges, the potential unfairness of such a rigid time limit could be mitigated if a form was served on all appellants whose extradition is ordered under part 1, telling them clearly of the right of appeal, warning them of the 7 day period, and telling them what must be done within that period. In some other statutory schemes which make provision for appeals there is requirement for such a notice and, given the draconian consequences of failing to comply with section 26(4), it is perhaps unfortunate that there is no such requirement within this statutory scheme."

31. I would, with respect, firmly seek to endorse those words. If such a notice as is there suggested is deployed in the future, it should indicate the essence of the three requirements which I have described in this judgment as being the essential constituents of a notice of appeal.
32. MR JUSTICE PARKER: I agree.
33. MR WATSON: My Lords, I am very grateful. Two ancillary matters: firstly, Mr Ungureanu's case, obviously his grounds of appeal (Inaudible) simply that he wants to stay here (Inaudible). Can I undertake to provide amended grounds, filed and served by 4.00 pm --
34. LORD JUSTICE LAWS: Yes, I assumed you would so undertake as I indicated in the judgment.
35. MR WATSON: Exactly, I just wanted to give a time frame as well. 4.00 pm next Wednesday, if that is appropriate.
36. LORD JUSTICE LAWS: Yes, by 4.00 pm next Wednesday.
37. MR WATSON: My Lord, there is an application for a certification of a question. I have handwriting that would embarrass a general practitioner, so can I just read it out to the court.
38. LORD JUSTICE LAWS: You have managed to formulate a question without hearing the judgment of the divisional court first, I take it?
39. MR WATSON: My Lord, yes. I listened and I could see the way that it seemed to be going.
40. LORD JUSTICE LAWS: I am only teasing you, Mr Watson.
41. MR WATSON: It is this: is the requirement under section 26(4) of the Extradition Act 2003 that "notice of an appeal must be given in accordance with the rules of the court before the end of the permitted period satisfied by filing of an appellant's notice within time and service of a copy of the front page of that sealed appellant's notice within time"?
42. LORD JUSTICE LAWS: Has Mr Hardy had an opportunity to see it, and indeed Miss Nice?
43. MR HARDY: I have seen it, my Lord. We agree with the formulation, although we do not necessarily agree that this case raises a point of law of general public importance; we leave that as between Mr Watson and the court. Whether Lord Rodger of Earlsferry would wish to entertain another dose of darkness, one does not know. We would encourage the court to refuse leave if it certifies.
44. LORD JUSTICE LAWS: Has Miss Nice seen it?
45. MR WATSON: She has and she is content with it.
46. LORD JUSTICE LAWS: Could you hand it up?
47. MR WATSON: Certainly.
48. (Handed).
49. LORD JUSTICE LAWS: We will just rise and consider it. You are obviously applying for a certified question and for leave to appeal.
50. MR WATSON: That is right, my Lord.
(A short adjournment)
51. LORD JUSTICE LAWS: Mr Watson, we are not satisfied with these terms of the question. It is restricted to the case where only the front page of the form has been served. It seems to us that, if there is to be a question at all, and we have not decided that we will certify, then it should be somewhat wider, possibly referring to the three conditions that our judgment has now specified as being required for a proper notice under the subsection.
52. What we are agreed you should be asked to do, in co-operation with Miss Nice and Mr Hardy, is to reconsider the draft and submit a revision within seven days. That direction is not to be taken as indicating that we will necessarily certify the question, but if we have a revised draft we will then decide on paper without a further hearing whether to certify, and if so, whether to grant leave to appeal.
53. MR WATSON: Thank you, my Lord.
54. LORD JUSTICE LAWS: Is that clear?
55. MR WATSON: Very clear.
56. LORD JUSTICE LAWS: Thank you very much indeed. I will ask the usher to hand this back to you.

(Aside to the Associate of the Court).

57. I am being asked whether we should specify a time limit for the letter from the Governor of Wandsworth Jail. I think the answer is yes, seven days.
58. MR HARDY: Can I just mention, your Lordship has given a direction that a transcript be provided to Rozanski.
59. LORD JUSTICE LAWS: Yes.
60. MR HARDY: Would your Lordship extend that so that the transcript is brought into general circulation. I very much doubt if I will be instructed to oppose the individual appeal of Rozanski, but whoever does oppose it should have access to that transcript.
61. There is this additional matter: subject to the issue of certification, your Lordships have now laid down the rubric that we sought; it should be circulated as widely as possible amongst (Inaudible).
62. LORD JUSTICE LAWS: I cannot order that my judgment be distributed to the world in general, I do not think. Much as I would like to do so. (Inaudible).
63. MR HARDY: What I am seeking is your Lordship has ordered, as I understand it, out of the court's budget that a transcript be provided to Rozanski.
64. LORD JUSTICE LAWS: Correct.
65. MR HARDY: I seek only that it should be provided to the other parties in this case. It would be of great general use by those instructing me, but it will also assist in the compilation of the certifying question.
66. LORD JUSTICE LAWS: I think that is fair enough. Given that we are seeking to resolve all these conflicts, I think that is fair now. The transcript to be provided at public expense to all the parties in this case.

(Aside to the Associate of the Court).

67. I am being told that the transcript will be available generally anyway, but if I order that it be expedited, it will be available that much quicker. I order that the transcript be expedited. That is probably the only direction you need.
68. Miss Nice, you were going to say something.
69. MISS NICE: I was going to ask the same.
70. LORD JUSTICE LAWS: All right. It will be expedited and then available.
71. MR WATSON: Application for Legal Aid, my Lord.
72. LORD JUSTICE LAWS: You mean you want an order for a detailed assessment for the purposes of the Legal Services Division?
73. MR WATSON: Yes.
74. LORD JUSTICE LAWS: I should have thought you can have that.
75. Thank you very much indeed. I am grateful to counsel for their assistance, as always.