England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		28 January 2011

1. MR JUSTICE IRWIN: The factual background to this case is as follows. Mr Bergman is a Czech citizen. He was born in 1981. In 2003 he was found guilty of fraud offences in the Czech Republic. On 23 July 2004 there was, according to the documentation, a judgment as to his guilt. On 20 October of that year a sentence of 20-months' conditional imprisonment was passed on him. In the year 2005 the applicant left the Czech Republic. On 8 August 2007 the judgment was altered, changing conditional imprisonment to unconditional imprisonment, meaning that the period had to be served.
2. On 22 September 2008 a European Arrest Warrant for a conviction in relation to an accepted extradition offence was issued. It was certified by the Serious Organised Crime Agency on 16 December 2008. Mr Bergman was arrested in the UK on 10 August 2010.
3. On 10 September there was an extradition hearing and subsequently, on 21 September, District Judge Evans ordered that Mr Bergman should be returned to the Czech Republic in compliance with the European Arrest Warrant. Mr Bergman has told the court today, and I accept it from him, that he had lawyers up to but not beyond 21 September. He filled in, or assisted with the filling in, and he signed, a draft notice of appeal seeking an appeal to this court overturning the extradition order. A copy of the draft was faxed to the judicial authority in this country on 24 September, but it was a draft; it was unsealed, had no action number and, it is common ground, would be ineffective as a notice of appeal. As I have already explained to Mr Bergman, the regime for appeal in these respects is extremely limited and tight.
4. Section 26 of the Extradition Act 2003 stipulates in subsection (4):

"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 at the day on which of the order is made".

On the facts of this case, the 7 day period ran out on 27 September.

5. Examination of the court file makes it clear that the appellant's notice, fully completed, was received by the court office at 6 minutes to 5 in the afternoon on 27 September. By 1 minute past 5 on the same day the court staff had completed the formalities, stamped the notice of appeal, and returned it by fax to the applicant. Under the very strict regime which applies, it was for him to serve that on the Crown Prosecution Service before midnight that night.
6. Mr Bergman has told the court today that he only ever saw the draft notice of appeal, or the completed version, many days into October. It would follow from that that the prison authorities did not get the sealed copy to him on the relevant day. I accept all of that from Mr Bergman; I have no basis for rejecting any of it.
7. The strictness of the regime has been considered in a number of cases. The House of Lords considered the very rigid regime adopted in the case of Mucelli v Government of Albania [2009] 1 WLR 276. There is no need for me to read extracts from that decision. The House of Lords emphasised the rigidity of the 7 day period and of the requirement for a sealed notice of appeal to be both filed with the court and served on the other side.
8. In a more recent case, known as the Regional Court in Konim Poland v Pavel Walerianczyk [2010] EWHC 2149 (Admin) the divisional court considered exactly the situation which arises here. Specifically, they concluded that the requirement is that the notice of appeal served must be a sealed copy (see the remarks of Stanley Burnton LJ in paragraphs 32 and 33, and the remarks of Nicol J in paragraph 49). Those remarks confirm the approach of the House of Lords as to the strict nature of this regime.
9. In almost every other circumstance, the court would be able to look behind the formalities and try and see if any alteration was needed. However, in this regime one is not able to do so. There is no appeal; there can be no appeal; I am not able to extend any time limit to permit an appeal.
10. I record my concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff. Therefore, it is not a question of me dismissing an appeal: there is no appeal to dismiss.
11. I am sorry, you must go back.
12. MR BERGMAN: I would like to say that I was advised to, first of all, to pay the money, which I can produce a document that the money has been taken, and also that it was -- that the draft was required and therefore draft was done.
13. MR JUSTICE IRWIN: I accept both of those things. But the way this Act of Parliament is organised, it does not leave me any opportunity to do anything about it.
14. MR BERGMAN: But I suggest that there was 17 days period and that -- for extradition -- and it did not happen and --
15. MR JUSTICE IRWIN: 17 days? No, 7.
16. MR BERGMAN: It was from the previous judgment by the judge that the extradition was supposed to have been done within 17 days in accordance to law, and it was because I am here in custody then the period mentioned, without any -- because the appeal was not accepted I should have been set free.
17. MR JUSTICE IRWIN: No.
18. MR BERGMAN: Because of the previous judge's judgment I should have been extradited within the period of 17 days.
19. MR JUSTICE IRWIN: Yes, but you sought an appeal.
20. MR BERGMAN: But appeal, you do not accept it. So it is not happy.
21. MR JUSTICE IRWIN: But, no. I am afraid that does not work, Mr Bergman. You cannot say I tried to appeal, I have failed, but 17 days has passed so I should not go back. That would mean that everyone who appealed would always succeed.
22. MR BERGMAN: But you must accept that I did not get the necessary document on time.
23. MR JUSTICE IRWIN: I do.
24. MR BERGMAN: And because the fee payment has been taken, I don't know why I don't have the right for an appeal.
25. MR JUSTICE IRWIN: Well, I have done my best to explain it. I am sorry.