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
		27 November 2013

1. MR JUSTICE COLLINS: The appellant in this case has sought to raise an appeal against the decision of District Judge Snow given on 22 August 2013 ordering his extradition to Poland in order to serve a ten-month sentence of imprisonment imposed for an offence of criminal damage, the damage in question it would seem amounting to some £500 in value.
2. The would-be appellant gave instructions to his solicitors to appeal. They lodged the necessary notice with the court within the seven-day period which is allowed in order to appeal. However, unfortunately, due to a mishap in his solicitors' office the notice of appeal was not served on the Crown Prosecution Service as it should have been. It was not until twenty-one days later that service was effected when someone appreciated that by oversight it had not been done earlier. There is no question and no dispute but that this was not the would-be appellant's fault but was the fault of his solicitors. What is said is that in a case such as this there ought to be power to extend time in order to do justice.
3. As is well known, in Mucelli v Government of Albania [2009] 1 WLR 276, the House of Lords decided that the requirement in the Extradition Act 2003, Part I, that the notice of appeal must be given within the relevant period of seven days - indeed the same applied to notices in Part II which had to be given within fourteen days - and the relevant permitted period meant that it had not only to be filed in the High Court but it had to be served on the respondent (in this case the Crown Prosecution Service) within that same period. Mucelli did not itself involve a European Union citizen but the case that was considered in conjunction with it - Moulai v Deputy Public Prosecutor in Creteil France - did. On the face of it, Mucelli clearly indicates that in relation to European Union citizens it is necessary to serve the notice of appeal upon the respondent within the same period of seven days and there is no power in the court to extend time. That was regarded as a general provision which applied across the board in extradition cases.
4. In a subsequent case, which again involved a number of cases being heard together, there were three involving Poland and Polish nationals and one involving a British citizen. The British citizen's case was a Part II case rather than a Part I. In that case the Supreme Court decided by a majority that the various matters should be remitted to the High Court. So far as the Polish cases were concerned, they dealt with the question as to whether it was sufficient in a notice of appeal simply to serve a notice without grounds. The Divisional Court had decided, and it seems to me clearly wrongly decided, that it was necessary to include some grounds in the notice in order for it to constitute what could properly be regarded as a notice of appeal.
5. That was not the same issue that was dealt with in Halligen [2012] UKSC 20 which concerned the requirement that the notice be served within the specified time with no discretion to extend time even if it was not the fault of the would-be appellant that there was a failure to serve in time. The same point was not material in the Polish cases because they had been served in time, the only question there being whether they were properly to be regarded as notices of appeal within the meaning of the provisions.
6. The Supreme Court felt able to decide that for British citizens the rule in Mucelli (if I may call it such) did not apply and there was power in the court to exercise discretion to extend time. That was based upon the fact that a British citizen was in a different position from any alien. By "alien" I include of course a citizen of any country other than the United Kingdom. That was because it was decided that British citizens, and there was authority supporting this, had what was called a common law right to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm. In addition, they had a right to remain within the realm, subject of course to any specific right given to any authority to remove them. Indeed, one can think of no circumstances when it could apply other than in connection with extradition to a foreign country.
7. In Halligen, the judgment of the majority - all bar Lady Hale - was given by Lord Mance. He said (at paragraphs 32 to 34):

"32 In these circumstances, Mr Halligen enjoyed a common (or 'civil') law right to enter and remain in the United Kingdom as and when he pleased. The next question is whether proceedings under the Extradition Act 2003, in that they may affect his freedom to remain in the United Kingdom at least for the duration of American criminal proceedings, involve 'the determination' of that civil right. The 2003 Act has the authority of Parliament, and to that extent Mr Halligen's right to remain in the United Kingdom is potentially qualified. But under the Act it is only through domestic extradition proceedings that this right can be affected and suspended for the purpose and period of any American proceedings and of any sentence which might thereafter be passed on him, if found guilty. In so far as it may be suspended, the extradition proceedings determine whether Mr Halligen may continue to enjoy his common law right for whatever proves to be the relevant period. A claim to extradite him does not involve the determination of a criminal charge, and he is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common law right to remain within the jurisdiction.

33 In these circumstances, it follows in my view that the extradition proceedings against Mr Halligen fall within Article 6 (1). In so far as the proceedings involve under the statute a right of appeal against any extradition decision, Article 6 (1) also requires that it be free of limitations impairing 'the very essence' of the right, pursue a legitimate aim and involve a 'reasonable relationship of proportionality between the means employed and the aim sought to be achieved' in accordance with the standard identified in Tolstoy Miloslavsky v United Kingdom, cited in para 22 above.

34 I cannot regard the provisions regarding appeals contained in the 2003 Act as meeting the standard set in Tolstoy Miloslavsky. Indeed I note that the Review of the United Kingdom's Extradition Arrangements of 30 September 2011 identified the time limits as an 'unsatisfactory feature about the appeals process' and mentioned a number of trenchant judicial criticisms, some already set out, as well as the particular difficulties posed for those remanded in custody. In the end however, after identifying as possible mechanisms for alleviating potential injustice either extending the time limit for Part I from seven to fourteen days or giving the court a discretion to extend the time limit in the interests of justice, the Review said that 'On the whole we prefer the former, as this is an area in which certainty and finality is important'."

8. In further consideration the court made the point that Article 6 (1) was directly applicable in Mr Halligen's case and that the permitted period for appeals, in its view, clearly could impair the very essence of the right of appeal. It was unfair unless there was some possibility of extending time where it was clear that the individual in question was not to blame in any way for any late service of a notice of appeal and where, due perhaps to either lack of proper advice given (if he was remanded in custody) or failures by his legal representatives, as is the case here, he was deprived of a right of appeal.
9. Thus the Supreme Court was able to construe the provisions of the Extradition Act dealing with the notice as not applying in their full rigidity to British citizens. The reason for that was the recognition that British citizens had rights which were not rights held by non-British citizens, that is to say a right to remain in the country of their nationality.
10. What is submitted by Mr Masi, on behalf of the would-be appellant in this case, is that the nationals of European Union states are given by the law a right to remain in this country. He refers specifically to the provisions of the Immigration (European Economic Area) Regulations 2006 No 1003, which were enacted in order to give effect to the relevant European Union Directive. As is well known, that provides for the right of members of the European Union to enter this country (as they have a right to enter any EU country) in order to exercise their rights to work. Thus, by Regulation 11, a European Economic Area national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by a European Economic Area state. One knows that that is a matter which is of some considerable political concern. That is not a matter which in any way concerns me. Regulation 13 provides that an European Economic Area national is entitled to reside in the United Kingdom for a period not exceeding three months provided that he holds such a valid identity card. But he can continue so to reside if he is in paid work here.
11. So far as this would-be appellant is concerned, he has been here now for some nine years and thus he has acquired a permanent right of residence within Regulation 15 which provides:

"(1) The following person shall acquire the right to reside in the United Kingdom permanently -

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years."

12. There is no question, as I understand it, certainly the contrary has not been argued, that he does have the right to reside within the meaning of Regulation 15.
13. The submission therefore is that since he has a permanent right of residence that right is to be regarded as equivalent to the common law right given to a citizen of this country and, on the reasoning of the Supreme Court in Halligen, he should therefore be regarded as someone whose civil right is being affected by the decision to remove. Thus he should be in the same position as a British citizen. That particular point was not considered by the House of Lords in Mucelli or the Supreme Court in Halligen. It did not arise in Halligen. It did however arise in Mucelli, but the point was not taken.
14. Nonetheless it would involve, were I to decide in Mr Masi's favour, that the case of Moulai involving France that went up with Mucelli was wrongly decided which would be a bold step for a puisne judge to take in the light of a decision in the House of Lords albeit today it has been argued that the point was not raised before it. Nonetheless, if it was a good point it would perhaps be somewhat surprising if it had not been thought to be material. If Mr Masi is right then the decision in Moulai is effectively set aside in relation to all Part I cases as in all Part I cases it would follow, because all Part I cases involve European Union citizens, that Article 6 applied and, as a result, the rigid requirement to serve within seven days was not reasonable.
15. So far as extradition is concerned, there is clear authority from the European Court of Justice, which is reflected in domestic decisions, that in connection with the removal from this country of non-citizens Article 6 has no application. That does not depend upon whether they are citizens of the European Union. Maaouia v France [2001] 33 EHRR 42 made that clear. That case involved the removal on extradition of a Tunisian citizen from France but it made it clear that Article 6 (1) did not apply to removal cases. In Mamatkulov v Turkey [2005] 41 EHRR 494, which concerned the fairness of Turkish extradition proceedings, the court reiterated the point that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or a criminal charge against him within the meaning of Article 6 (1) of the Convention. In Halligen, Lord Mance relied on that to show that the non-application of Article 6 applied only to aliens, that is to say non-British citizens. That was why the court was able in that case to decide that Article 6 did apply in connection with the extradition of British citizens. It was, clearly, purely on that basis that the decision was reached.
16. I see the force of Mr Masi's submission that the right of permanent residence given by the Regulations means that the European Union citizen should be in the same category because, although he does not have a common law right to remain here, he does have a right granted by the law as set out in the Regulation giving effect to a European Union Directive. Whether a European Union citizen can rely on Halligen was considered by the Divisional Court in conjoined cases under the title Lumenica v Albania [2012] EWHC 2589 Admin It is slightly unfortunate in the context that it is the Albanian case named first when in fact there were two European Union cases also considered.
17. Lord Justice Moses, who gave the lead judgment of the court, concluded thus in considering the position of a Polish citizen:

"34 As the authorities to which Lord Mance referred in Halligen, particularly at paragraph 31, time after time, both the European Court of Human Rights and the European Court of Justice have reiterated that the European Treaty and the Convention does not trench upon the rights of nationals in relation to their own state (see in particular Halligen at paragraph 31). In the face of that stream of authority, the Supreme Court identified a different type of case, that is, the case of a state's own citizen whose rights may be litigated in procedures to which Article 6 affords protection.

35 But as to the distinction between a national and what is described as an alien, that is the distinction which has its roots in authority of long and indisputable standing. [Reference to authority]."

Lord Justice Moses concluded:

"36 I would rule in those circumstances that the nationality of British citizens is a proper basis of distinction between a Polish national, a citizen of the European Union and the United Kingdom so that I would rule, even if there was any merit in this application for an extension, that this court has no power to grant an extension in the case of those who are not British citizens ..... "

18. Thus, there is clear authority that the point raised by Mr Masi is not one which can assist him because the only basis upon which Halligen was decided as it was was a recognition of a longstanding law which provided provisions which made it clear that British citizens - because of their common law rights - stood in a different position from any alien in relation to removal of any sort, including extradition, from the country of their nationality. I am not sure that that necessarily would therefore bring in Article 6 rights but it does put a British citizen in a different position. It may well be that that different position, because of the right that he has, can achieve what the Supreme Court said that it did.
19. The reality therefore is that there is not only the authority of the House of Lords in Mucelli but also a clear decision of the Divisional Court in Lumenica that lays down that there is no power - no discretion - given to the court to extend time beyond the seven-day period required both for lodging the appeal and for the service of the notice of appeal upon the respondent. If I were to decide the contrary I would be going against both the binding decision of the House of Lords and the non-binding decision of the Divisional Court but a decision which I could only refuse to follow if I were satisfied that it was clearly wrong, and I am not so satisfied.
20. There is also Al-Mehdawi [1990] 1 AC 876 which creates its own difficulties for an appellant in a position such as this because that was a removal case. It was accepted that the claimant in that case had been let down by his solicitors but nonetheless the House of Lords decided that he could not benefit from that because he was bound by the actions of his solicitor. If the solicitor was negligent, in theory, his only remedy was a claim for damages against the solicitor. That was a somewhat pointless remedy if the result of the negligence of the solicitor was that he was removed from this country. It is worth noting that in Al-Mehdawi there was a residual discretion which enabled the Secretary of State to deal with cases where all the merits were on the side of the individual concerned. Nonetheless, the decision itself is clearly contrary to the interests of such as the would-be appellant in this case.

It follows that in all the circumstances it seems to me I am quite unable to treat the position of the would-be appellant as being similar to that of a British citizen because of the provisions of the Regulations. They do not prevent him still from being an alien, and it was on that basis that the distinction was able to be drawn by the Supreme Court in Halligen. Reference has been made to Article 14, but, for reasons which I think are clear from what I have said, I do not think Article 14 has anything to do with it.

21. The real question is whether the right of permanent residence given by Article 15 in the context of this case means that the would-be appellant should be in the same position because he has what the law says is a right. That cannot apply in the light of the authorities to which I have been referred and the only basis on which the Supreme Court felt able to find in favour of Mr Halligen in the circumstances of that case.
22. I have considered whether the appeal would have had any prospect of success upon the ground raised. I can deal with that relatively briefly. The warrant is said not to have complied with the requirements of Section 2 (6) of the Extradition Act 2003. What is required by Section 2 (6), dealing with a conviction warrant, is that it contains the following information, namely (a) particulars of the person's identity, (b) particulars of the conviction, and then two others with which we do not need to concern ourselves. What is relied on here is that it is said the warrant does not contain sufficient particulars of the conviction so as to comply with Section 2 (6) (b).
23. What the warrant states, so far as material, is as follows. Under paragraph (b) the decision is said to be the final judgment of the District Court in Szczecin dated 23 December 2004 together with the final decision of the District Court dated 29 March 2007. Then (d): indicate if the person appeared in person at the trial resulting in the decision. The answer given is "No", the person did not appear in person at the trial resulting in the decision. However, it was noted that he was summoned and had been served on 23 November 2004. One offence was referred to and the particulars given were as follows:

"The requested person jointly and in arrangement with other persons broke windows worth 2000 zlotys in Tarot Bar to the detriment of [a named person, presumably the owner of the bar]."

It is said that he was sentenced on 23 December 2004 to a penalty of ten months with a result because of his reprehensible conduct during the probation period the execution of the penalty was ordered. That was in 2007.

24. What is submitted is that in all the circumstances that was insufficient to give sufficient information to the appellant to enable him to know what was the basis of the conviction.
25. Reliance was placed, both before the district judge and before me, on the decision of the Divisional Court in Sandi v Craiova Court Romania [2009] EWHC 3079 Admin, the judgment being given by Mr Justice Hickinbottom. What he said, so far as material, was, first, to make the point that a conviction warrant derives its legal characteristics from the conviction. Thus, following trial, a significant number of matters which would be otherwise unknown at the accusation stage were no longer uncertain. Indicated details must include the court and date of conviction - that is given. In paragraph 32, it was stated:

"32 There is no reason why the same level of particularity of the circumstances of the offence is needed for a conviction warrant as for an accusation warrant. Article 8 [of the Framework Decision] certainly does not require that. It does not refer to 'particulars' at all, but only to 'a description of the circumstances in which the offence was committed'. As Mr Smith frankly and properly conceded in the course of argument before us, the degree of particularisation required by Section 2 (4) (c) so far as the underlying offences are concerned clearly exceeds the level required by Article 8: or, in other words, a lesser level of information about the underlying offence would satisfy the Framework Decision. Nor does Von der Pahlen [v Government of Austria [2006] EWHC 1672 Admin, decision given by Lord Justice Dyson involving accusation] ..... "

26. Mr Justice Hickinbottom went on to make the point about the appropriate level of particularity; particularity would depend on the circumstances of each case and that there should not be a prescriptive answer. But, as he put it in paragraph 34:

"34 ..... adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for - and to enable him to consider whether any bars to extradition might apply. In the light of that, and having regard to Article 8 (1) of the Framework Directive, I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted - and some information about when and where the offences were committed, and the requested person's participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant. Furthermore, common sense dictates that it is likely that more particulars will be appropriate in more complex crimes such as fraud than in crimes such as simple theft. However, there is no formula for appropriate particularisation. Each case will depend upon its own facts and circumstances."

27. Undoubtedly, the particulars in this case are somewhat sparse. Mr Masi points out that it is not said where the bar was. It is not even indicated sufficiently what was the title of the bar because it is not apparently Tarot, but Bistro Tarot. It may be that other bars have the same name. However, having said that, it seems to me that there is sufficient there on the face of it to enable the individual, having been convicted - indeed, he was not present at the final stage of that conviction because it was given in his absence - to know what it was that he is alleged to have done. He was convicted of it. It seems to me that in the circumstances and in order to ascertain the full circumstances it was legitimate to look to further information which was contained. Indeed, it was his own case - and his own statement indicated - that he had attended at an earlier stage of the proceedings but had not attended the final stage. His own statement was before the district judge.
28. In those circumstances there can be no question but that he was aware of the circumstances of the offending in question and was able to take any point that was available to him to challenge extradition. It seems to me that in the circumstances of this case, having regard to all that information before the district judge and the admittedly sparse information given in the warrant itself, this was not a case where he would have been able to succeed on the ground which he sought to raise.
29. For the reasons I have given, I have decided that there is no appeal properly before me. Accordingly, I must dismiss what I suppose can be regarded as a tentative appeal.
30. Do you want the usual order?
31. MR MASI: Yes.
32. MR JUSTICE COLLINS: You may have it.
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