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
		21 March 2014

1. MR JUSTICE COLLINS: This is an appeal brought before the court under section 26 of the Extradition Act 2003 against the decision of District Judge Snow given on 24 January of this year whereby he directed that the appellant be extradited to Poland to face a charge essentially of obtaining money to which she was not entitled when she was in charge of a school in Poland. The amount in question is something in the order of £17,000, or the equivalent to the sum, of course, in zlotys. The offence in question was committed between January and December of 2008.
2. The first issue I have to determine is whether I have jurisdiction to hear this appeal because, as is common ground, there was no service in time of the notice of appeal which was filed with the court upon the CPS. As the Supreme Court has made clear in the lead case of Mucelli v the Government of Albania [2009] 1 WLR 276, the law requires that there be filing of the appeal notice within 7 days and service within that same period upon the CPS. That derives from a combination of section 26(4) of the Act, which states:

"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period."

3. One then has to go to the relevant rule, which is in CPR 52. 52.1.4 provides:

"This part is subject to any rule, enactment or practice direction which sets out special provisions with regards to any particular category of appeal."

One then has to go to Practice Direction 52 D and paragraph 21 of that practice direction deals with appeals under the Extradition Act. 21.1.3 provides:

"Where an appeal is brought under section 26 or 28 of the Act (a) the appellant's notice must be filed and served before the expiry of seven days, starting with the day on which the order is made."

4. Now, what happened here, as I have said, is that the notice was filed with the court in time and again in time the court sent its usual notice to the CPS, indeed to the appellant's representatives as well, containing an order that had been made by Master Gidden specifying various directions that he had made. That letter did not annex the notice of appeal. However, it did draw to the attention of the CPS that there was an appeal in the case of Jawulska v the Regional Court in Szczecin and in those circumstances it could not have been very difficult for the CPS to appreciate that there had been an appeal in this case.
5. However, there is no question but that this did not comply with the wording of 21.1.3 of the practice direction, which is the relevant rule and, as Mucelli made clear, the seven day requirement applied both to the filing with the court and to the service upon the CPS and there was no power to extend time.
6. However, the matter was to an extent reconsidered by the Supreme Court in four cases, titled under Pomiechowski v the District Court of Legnica Poland [2012] 1 WLR 1604. There were three Polish cases and one case involving a British citizen who was in that case making the claim against the Secretary of State for the Home Department, that not being a Part 1 case, but it matters not; it was a case involving a request for extradition by the United States of America. But of course the material time limits there related to the Part 2 case and there were similar provisions dealing with time for filing and service within the rule which dealt with that.
7. The Polish cases, as I say, concerned the decision of the Divisional Court that to serve a notice which had no grounds in it was not a proper notice of appeal. That, with respect to the relevant Divisional Court, was a decision I always believed to be clearly wrong and the Supreme Court reached the same view. That is not particularly material for this case, save and except that the court made it clear that the irregularity involved in the absence of any grounds was capable of cure and merited it. In paragraph 19 on page 1617 Lord Mance, giving the main judgment, said:

"The Crown Prosecution Service could have had no difficulty in identifying the decision being appealed and it would be disproportionate if the practice followed by the court and the prison legal services department should lead to these appellants losing any right of appeal."

8. I should add that in that case in fact all that was served was the front page of the notice of appeal so that effectively all that the CPS would have known was that an appeal had been brought. The whole notice was not served, merely the front page of the notice. The Supreme Court readily decided that that was sufficient.
9. But the British citizen case, Halligen v the Secretary of State was, Lord Mance said, more problematic. His notice of appeal was file with the court in time but notice was required to both the Secretary of State and the CPS. As far as the Secretary of State was concerned, he had written a letter in which he asked the Home Office extradition section to "accept as notice the service of my intent to appeal". Clearly, as Lord Mance indicated, that was hardly a notice of an actual appeal. But he went on to make the point that the statute was capable of embracing the Scottish practice whereby a draft note of an appeal was served before being lodged with the court. In fact, the Scottish system is the other way round from ours; there is an obligation to serve a draft on the other side before the notice is lodged with the court. Lord Mance went on at paragraph 20G:

"It follows that notice of an intent to appeal must be within the statutory language."

And he said that he would regard it as notice to the Secretary of State of an appeal, albeit that the notice was highly irregular. However, the problem faced by Mr Halligen was that he had not given any notice to the CPS. The court felt able to decide that because he was a British citizen the rule in Mucelli's case did not apply in the sense that because he was a citizen the court should have and did have a discretion.

10. Lord Mance went on to say that it was necessary to consider whether the apparently inflexible time limits for appeals under the 2003 Act were subject to any qualification or exception. There was reference to the ECHR, but that did not assist.
11. Following full discussion of the matter the point was made that what was behind the requirements in the rule was that the CPS should know within that period that an appeal had been lodged. That was important, clearly, because it would affect whether arrangements could be made for extradition within a particular time because there is a time limit imposed within which extradition should normally be effected.
12. There is no question but that what happened here does not fall within the wording of the practice direction as applied by the rule because it does say in terms that the appellant's notice must be filed and served. However, it was apparent from what happened in Halligen as far as the Secretary of State was concerned that the notice was not served. All that was served upon Secretary of State was a letter saying that it should be accepted as a notice of intention to appeal. That clearly does not fall within the wording of the rule. Nonetheless the court felt able to recognise that it was possible in the circumstances to exercise a discretion to extend time because the purpose was to notify of the existence of the appeal. Indeed the approach is as Lord Mance set out in paragraph 18 on page 1616 of the report where he said this:

"The question of what sort of notice was required by the statute as opposed to the rules was not the focus of decision [this is in Mucelli]. The statute requires notice of an appeal to be given in accordance with rules of court so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity. But this does not answer the question of what constitutes giving notice of an appeal to the respondents which if not in accordance with the rules nonetheless satisfies the statutory requirement and is capable of being cured. In my view a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matters is that an appeal should have been filed and all respondents should be on notice of this sufficient to warn them that they should not proceed with extradition pending an appeal. This should not, however, be taken as a license to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed form will need to seek and will depend upon obtaining the court's permission to cure the position under the rules."

But that recognises or indicates that the court does have a discretion where something that falls short of a proper notice of appeal is drawn to the attention of the CPS.

13. Here, as is known, there was never any service of the actual notice. But there was drawn to the attention of the CPS -- fortuitously as far as the appellant is concerned because it was done through the court and not through anything done by him -- that there had been an appeal lodged.
14. Since the seven day rule is so harsh because it may preclude without any fault on the part of a would be appellant the hearing of what might be a meritorious appeal, it seems to me that the generous approach which Lord Mance has indicated should apply is capable of covering even a case such as this, because the important thing is that the CPS is apprised of the fact that an appeal has been lodged. I appreciate that this takes the matter on the face of it rather beyond the cases that have hitherto been considered but in my view that is permissible in the light of the indication of the generous approach that should be adopted and the very damaging effect, if through no fault of the appellant, that the CPS have not been served. In this case it has not been suggested that she was in any way to blame.
15. I am fully aware that the House of Lords has decided that a fault of a solicitor must be recognised to be something which an appellant or a party to litigation cannot take advantage of in the sense that a solicitor's fault is regarded as his own fault and the case in question, Al-Mehdawi, was one in which a removal from this country was in issue. So the result for that individual was very damaging and the situation is much the same, it may be said, in this situation. However, in Al-Mehdawi's case there was the possibility of exercise of discretion which could mean that the harshness of the rule could be overcome. So here, as it seems to me, it is appropriate and indeed right that where there has been notice within time to the CPS however that notice may have been effected it is open to the court to exercise discretion in favour of an appellant, and that I propose to do in the circumstances of this case.
16. I would only add, as I did decide in an earlier case today, that reliance was also placed upon the decision of Irwin J in the unreported case of Andrzejak v the Polish Judicial Authority [2012] EWHC 2929 (Admin). That was a case in which he did not have the assistance of any representation on either side and he observed that the jurisdictional position was that Part 1 appeals require notice of the appeal to be given within seven days, which was a strict requirement that could not be altered, but notice to the court was a statutory obligation and notice to the other parties was an obligation derived from the rules and therefore there was a discretion to extend or waive time in respect of notice to parties other than the lodging with the court.
17. That, I am afraid, having regard to 26(4) of the Act and 21.1.3 of the relevant practice direction, is clearly wrong and in fairness to Irwin J he did not have those matters drawn to his attention. I am satisfied, I am afraid, that that decision is one that is clearly wrong and should not be relied on, cited or followed in the future.
18. I turn then to consider the merits of the appeal which relies on Article 8. The appellant herself left Poland and came to this country in 2009, before any proceedings were able to be pursued against her. It is not a case in which there has been any finding that she deliberately left the jurisdiction and so became a fugitive from justice. It may be that she was not aware at that stage of the existence or the possible existence of these proceedings and indeed it is her case in any event that she is not guilty.
19. As I have said, the fraud, the obtaining by deception in question, was not insubstantial. She was in a position of trust. There can be no question in those circumstances but that the custody threshold were this an offence committed within this jurisdiction was crossed. Of course, whether she would be sentenced to custody is another matter. The District Judge was criticised for saying that it would be likely to attract a custodial sentence in this jurisdiction. I do not think that that is a fair criticism. He does not say it certainly would, he merely says that it is likely that it would.
20. However, what is essentially relied upon is the effect that this would have upon the appellant's son, who is now 17 and a half years old. The position is this. He unfortunately had suffered, it seems, when in school in Poland from bullying and had a very vulnerable personality. Indeed there was a report from a psychiatrist which made clear that while he did not suffer from any formally diagnosed condition but he was probably on the autistic spectrum. He had had considerable difficulty in settling down in this country, he and his mother having come here in 2009 following the termination of her marriage, her ex-husband having left them in Poland, she having had as a result sole care of her son. He has suffered not only what might be described as some form of mental difficulty but also physical difficulties as well, resulting from stress.
21. There is no question but that there will be perhaps a greater than normal, if I may put it in that way, effect upon a child following the deprivation of his sole caring parent. The matter took some time to be heard before the District Judge and had had to be adjourned on a number of occasions because there was a desire to obtain a report from the relevant social services in which it was hoped that there would be some indication of some plan were the appellant to be extradited or an indication, if that were the case, that it really would be such a disaster for the son that no sensible plan could be put in place. The report in the end was not as positive or helpful as it might have been. It certainly indicated that there would be an adverse effect on the son; that he was not able to trust others and would struggle within local authority care and there was no other family member who was able to or would be suitable to look after him. But it was indicated that with appropriate support he might be able to live independently.
22. As I say, it may be that the report was perhaps not as helpful as it might have been. On the other hand it did not paint quite such a serious picture of the effect upon the son as was the case, obviously, put on behalf of his mother.
23. Further criticism is made of the District Judge because he referred to his previous experience of cases involving Poland and indicated that there might even be a grant of bail allowing the appellant to return to the UK pending trial, because his experience was that that was something that had happened in the past in Polish cases. Furthermore, it was a general practice in Poland in his experience that if a custodial sentence was imposed following a conviction normally there would not be a requirement to serve immediately, there would be a period not of suspension as such but a time before there could be a place within a prison. Mr Williams submits that the District Judge was not entitled, as he put it, to take judicial notice of those likely arrangements in considering interference.
24. Certainly the District Judge was entitled to take the view that Poland would take its obligations under the European Convention on Human Rights seriously. Equally there is no reason to doubt that it would have regard to any compassionate circumstances that were put before it. Of course there is no reason in principle why the appellant's son should not accompany her to Poland. I appreciate that it would be hard on him; it would be harsh. On the other hand, any case where a parent is accused of or has committed a serious offence will result in harshness to the family, particularly of course if there is a conviction and a custodial sentence is imposed.
25. The son is now 17 and a half. It does not of course mean there is no family life; there clearly is and a there can be a continuation of family life beyond the age of 18 in special cases and it may be, having regard to the circumstances here, this could be regarded as such a special case so that when he comes of age in September that will not necessarily mean that Article 8 does not continue to protect on the basis of family life.
26. But the problem is, of course, that the threshold in order to establish or show that it is disproportionate to return is a high one. So much has been made clear by the decision of the Supreme Court in HH following the correct interpretation of the previous determination in Norris. One is not concerned only, as was believed following Norris, with what is exceptional, particularly where there are children involved. But overall it must be recognised that the obligation to comply with our treaty obligations under the EAW procedure is of very great importance and the balance has to be drawn between that and Article 8 rights in any individual case.
27. This is not an easy case but it seems to me that having regard to the test set out by the Supreme Court, this case, I am afraid, does not persuade me that to return would be disproportionate. In those circumstances this appeal must be dismissed.
28. MR WILLIAMS: My Lord, the only thing I mention is that your Lordship said at the beginning of this judgment that the notice was never served in this case. It was in fact served through the documentation exchange in late February.
29. MR JUSTICE COLLINS: Thank you, I will correct that. What I should have said is never served in time.
30. MR WILLIAMS: Yes.
31. MR JUSTICE COLLINS: I don't imagine you will ask me to certify anything because you have no point in it, as I have dismissed the appeal.
32. MR HEARN: No, my Lord.
33. MR WILLIAMS: In any event that should be the end of these matters because I think the new legislation amending the Extradition Act is changing the provision and there will a statutory discretion.
34. MR JUSTICE COLLINS: They are giving slightly better discretion, are they?
35. MR WILLIAMS: I think it is phrased something like as long as the requested person has done everything they reasonably can.
36. MR JUSTICE COLLINS: I am glad to hear that, because it should have happened long ago.