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
		7th February 2011

1. MR JUSTICE MITTING: Section 26(4) of the Extradition Act 2003 provides that "Notice of an appeal [against the District Judge's order for extradition] must be given in accordance with the rules of court before the end of ... 7 days starting with the day on which the order is made."
2. As a matter of statutory interpretation, in a decision binding on me, the House of Lords by a majority in Mucelli v Government of Albania [2009] UKHL 2 decided that notice of appeal must not only be given by issuing the notice of appeal but also by service on the requesting state: see paragraphs 72 and 80 of the speech of Lord Neuberger, with whom Lord Phillips and Lord Carswell expressly agreed, Lord Brown agreeing for reasons which he conceived to be virtually the same as those expressed by Lord Neuberger.
3. Mr Jesurum, for the appellant, in this case submits that that strict rule should now be treated as subject to a very important qualification.
4. The issue arises because in this case the extradition order was made on 15th October 2010 and an appeal notice was issued and filed on 20th October, within time, but was not served on the CPS for the requesting state until 26th October, unquestionably out of time, if required to be served within seven days of the decision.
5. The qualification which Mr Jesurum urges arises as a result of a concession made by counsel for the Secretary of State in R (NS) v Secretary of State for the Home Department [2010] EWCA Civ 990 that article 47 of the Charter of Fundamental Rights had direct application in the United Kingdom. Article 47 provides:

"Right to an effective remedy and to a fair trial

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."

Article 19(2) of the Charter contains one of the rights and freedoms guaranteed by the law of the Union:

"No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

By Article 6 of the Treaty on European Union, the Charter is to have the same legal value as the two treaties -- on European Union and for the Functioning of the European Union.

6. Mr Jesurum's argument is that to give effect to article 19(2) of the Charter, read together with Article 47, it is necessary that there should be the possibility of disapplying the strict time limit for appeals. He puts forward no authority for that proposition but draws my attention to the potential seriousness of the consequences for this appellant if the limits are enforced strictly against him. They are, he submits, that he will be returned to Latvia, where, if imprisoned, he will receive a diet that does not meet minimum nutritional requirements. In consequence, his rights under Article 3 of the European Convention on Human Rights and Article 19(2) of the charter will be violated. To extradite him in those circumstances will put him at risk of such treatment or, in the language of the Convention, there are substantial grounds for believing that there is a real risk that he will be subjected to such treatment. The seriousness of the potential consequences, accordingly, gives rise to the need for the existence of a discretion.
7. I do not accept that argument as a matter of principle. It seems to me that a legal regime can lawfully, and in proper recognition of the rights of the individual and the obligations of the state, impose upon an individual a strict time limit for challenging a decision which may infringe those rights. I also do not accept the argument in practice and for two reasons. First, if, as the appellant contends, his rights under Article 3 of the Convention/19(2) of the Charter would be infringed by his extradition to Latvia, he has a right to apply to the Strasbourg Court which can give an indication to the United Kingdom under rule 39, with which, on past practice, the United Kingdom will comply. It is not necessary to upset the domestic legal order to achieve an outcome that ultimately protects his rights under Article 3 and/or 19(2).
8. Secondly, on the facts, it seems to me that this appellant's allegations fall very far short of the sorts of allegations that would have to be made to have the effect of putting the United Kingdom in breach of its obligations to him if it were to proceed with the extradition. As the report of Jelena Kvjatkovska makes clear, Latvian law provides for compliance with international standards in relation to prison conditions.
9. There are acknowledged shortcomings which have been considered by the Strasbourg Court in three decisions, the most recent of which is Bazjaks v Latvia, a case which concerned conditions of detention in January 2001 to January 2002. The decision itself is, however, more recent: 19th October 2010. I do not read into the decision of the court, which dealt with the particular problems facing the individual applicant in a confined and claustrophobic cell, anything which could reasonably lead to the conclusion that this appellant would be subjected to treatment of a kind which would put the United Kingdom in breach its obligations under Article 3 and/or 19(2) if he were to be extradited. All of these cases are necessarily fact specific. In Article 3 cases, the standard is a high one. It, on the material which I have been invited to consider, does not come anywhere near being crossed by this appellant.
10. Accordingly, and for all of those reasons, I dismiss this appeal.
11. MR JESURUM: My Lord, there may be an application. May I have a moment to confer with my learned friend.
12. MR JUSTICE MITTING: Of course. (pause)
13. MR JESURUM: My Lord, I am grateful.
14. My Lord, I have an application to certify two questions of general public importance. My Lord, it does occur to me that, as your Lordship's judgment appears to proceed on the basis that the Charter is of direct application, the first may perhaps be unnecessary, but it is whether the Charter of Fundamental Rights is directly effective so as to render articles 47 and 19(2) part of domestic law applicable to extradition proceedings. Your Lordship does appear to have proceeded on the basis --
15. MR JUSTICE MITTING: Well, I have proceeded on the assumption that it has, without having looked at what may be quite intricate questions underlying the assumption.
16. MR JESURUM: My Lord, in that case that is a question that would be necessary to resolve before moving on to consideration of second question. The second question would be: does the right to an effective remedy contained in the Charter require the provisions of section 26 to be read so as to afford a discretion to extend the time for appeal?
17. My Lord, I am of course conscious that those would be -- well, barring the Charter point, of course -- close to the matters that were considered in Mucelli, but if it is right that NS has brought about a sea change, then it is perhaps appropriate that the matter be revisited in the light of it.
18. MR JUSTICE MITTING: I do not believe that the facts of this case raise that question squarely, because of the additional reasons that I have given for my decision. I am satisfied that this is not an appropriate case in which to ventilate that issue. It might conceivably arise as a determinative question that it is proper to refer to the Supreme Court or at any rate to certify for them to decide whether or not to hear argument upon it, but, in light of the fact that Mucelli is a recent decision of the House of Lords and of the facts of this case, I do not think this is even arguably the right case in which to take it there.
19. MR JESURUM: My Lord, in view of your Lordship's findings on the facts, I would perhaps have to concede that it would, in view of those findings, be rather academic and I would therefore withdraw the application.
20. MR JUSTICE MITTING: One of the reasons that I did not certify in the Jan Rot and Klimas run of cases was precisely that: I had done, I thought, a belt and braces job when the issue arose. I was merely attempting to put something into play, rather than to decide it as the only point in issue which was determinative by itself.
21. However, thank you for your argument, as always, as I say, forcefully and succinctly put.