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 a purported appeal under section 26 of the Extradition Act 2003 against the decision of Senior District Judge Riddle whereby on 27 January 2014 he ordered the would be appellant's extradition to Poland to face the penalty of imprisonment that had been imposed in relation to some 11 offences. In fact the warrant contained 12 offences but it has been accepted and was accepted below that one of those convictions was not a matter that could properly be regarded as an extradition offence.
2. The offences in question were committed a considerable time ago, a succession of obtaining by deception in May 1999. The total value appears to have been something approaching £200, perhaps a little less, and then offences committed between the autumn of 2001 and January 2002 for supplying relatively small quantities of cannabis, but on one occasion to a minor.
3. The total sentences imposed for the deception matters was 2 years' imprisonment and a further 2 years' imprisonment was imposed in relation to the cannabis offences. What is left to serve as a balance is 2 years 4 months 18 days. In fact, as is the case frequently in Poland, the court aggregated the total sentences and that is what was left, he having served something in the order of 6 months before leaving Poland. That is the background.
4. The decision was reached on, as I have already indicated, 27 January. The notice of appeal was served within time upon the court but unfortunately a copy was not served on the CPS. Mr Smith has indicated that there has of course been a search by his solicitors of their records and they are unable to show that there is any indication that there was service upon the CPS. It does seem, sadly, that for whatever reason it was overlooked. In those circumstances it is submitted by Ms Brown that the court has no jurisdiction following the decisions of the Supreme Court in the material authorities, which are Mucelli v the Government of Albania [2009] 1 WLR 276 and the subsequent decision of Pomiechowski v the District Court of Legnica Poland [2012] UKSC 20.
5. The Supreme Court in Mucelli decided that the requirement under the Act was that service be effected within the period of 7 days, both upon the court and upon the CPS. The reason, essentially, why that was necessary was because of section 26(4) of the 2003 Act which provides:

"Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made."

6. The relevant rule of court provides that service must be undertaken upon both the court and the CPS and it was made clear in Mucelli that both services, if I may put it that way, were required. One can see why, having regard to the terms of the statute, that was decided. Indeed, if one looks at the decision of Lord Mance giving the majority decision of the court in Lukaszewski, one sees he says in terms in paragraph 5 that the House in Mucelli distinguished between the requirement to give notice of the appeal within the permitted period and the requirement that such notice should be given in accordance with the rules. Failure to comply with the mandatory requirement, interpreted in Mucelli as involving both filing and service, is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can in the case of a national of this country, on the other hand, be cured by the court in the exercise of its discretion. However, as was clear, there was no question of the rules explicitly giving a discretion as far as service on the CPS is concerned and it would be entirely inconsistent with the approach of the Supreme Court in both Mucelli and Lukaszewski if it were decided that there was, as it were, a general discretion in relation to service upon the CPS; there is no such discretion. As it seems to me, as I have said, it seems section 26(4) makes that abundantly clear.
7. However, my attention has been drawn to a decision of Irwin J in Andrzejak v the Polish Judicial Authority [2012] EWHC 2929 (Admin). It has been noted that that was a case in which he did not have the benefit of any appearance, either on behalf of the appellant or on behalf of the respondent. He referred to the case of Lukaszewski and the subsequent case in the Divisional Court of Lumenica v the Government of Albania, which in effect determined that the decision of the Supreme Court in Lukaszewski enabled a British citizen to have a discretion which could be exercised in his favour applied because of the special position of a British citizen. It was possible for the Supreme Court to decide that, notwithstanding the clear, on the face of it, provisions of the Act. Nonetheless it was made clear that it was limited to a British citizen and did not extend to aliens of any sort, and of course an EU citizen is technically an alien.
8. What Irwin J said having regard to that -- although he does not cite expressly Mucelli -- was:

"It seems to me that the jurisdictional position is as follows. Part 1 appeals requires notice to be given of the appeal within 7 days. That is a strict requirement which cannot be altered by the courts. Notice to the court is a statutory obligation. Notice to other parties is an obligation derived from the rules. Taking Lukaszewski and Lumenica together, the court has discretion to take a broad view of what constitutes a notice to the court and there is discretion to waive or extend time of notice to other parties. That obligation arises from the rules not the Act."

9. With the greatest of respect to Irwin J, it seems to me that that ignores both the clear decision of the Supreme Court in Mucelli and the provisions of section 26(4) of the Act and the clear indication that the discretion only applies to British citizens, not to any alien.
10. The courts certainly can take a broad view of what constitutes a notice of appeal. One of the decisions under appeal in Lukaszewski is the decision that the notice of appeal could not be properly regarded as such if it did not have any grounds. That, with great respect to the Divisional Court which decided it that way, was in my judgment -- and I have always thought -- clearly wrong. I am glad to say that the Supreme Court decided that that was indeed the case. But, as I say, unfortunately it does not go as far as Irwin J thought that it did.
11. I am afraid that in all the circumstances I am entirely satisfied that the position is indeed as I decided it was in Jasek v Poland [2013] EWHC 4186, namely that there is no power to extend time. Accordingly there is no jurisdiction for me to hear this appeal.
12. Having said that it is convenient always in these cases to consider whether the appeal would have had any real chance of success. It depends upon human rights claims and Article 8. The District Judge decided -- and it was recognised by Mr Smith that he cannot go behind this finding -- that the appellant was a fugitive from justice. He came here with his partner and has a child who has been born here. Unfortunately, as was said before the District Judge -- although he did not produce any evidence to support it -- his partner is not entirely well. The District Judge decided that he was not an impressive witness. He apparently was off work and he had not given very good evidence before the District Judge to indicate the extent to which his partner was dependent upon him.
13. He has sought to introduce some new evidence which does indicate the extent to which the appellant's partner is not well; there is, as I say, some medical evidence. What it amounts to is letters provided in January that she has had difficulties in the aftermath of the birth of the youngest child -- there is an older daughter born in 2002 and a son born in October 2011 -- but no clear indication is given as to the extent to which that prevents her from working or indeed looking after the children nor is there any clear evidence that supports the claimant's case that he is in difficulties with work.
14. In reality, I am afraid, hard though this is for families, this is not a case that comes anywhere near meeting the test set out in HH which could establish that it would be disproportionate to return under Article 8 of the European Convention on Human Rights. So at least as it happens in this case the appellant has not lost out by the error that was made in not serving the CPS when they should have been served. In those circumstances the only order I make is that this appeal is not one that can be pursued and therefore the proceedings which seek to challenge extradition are at an end and he can therefore now be extradited to Poland.
15. MR SMITH: Thank you my Lord. My Lord, I do not know whether it is necessary in the circumstances or even ever to apply for an order for a publicly funded assessment.
16. MR JUSTICE COLLINS: I was told recently -- I used to make such an order -- that that position has changed and it was not necessary for that order to be made.
17. MR SMITH: So be it.
18. MR JUSTICE COLLINS: What I have done recently is to say that if you need it you can have it.
19. MR SMITH: Thank you very much.
20. MR JUSTICE COLLINS: No one has actually told me what the provision is or drawn it to my attention. I was told, as I say, it is not needed.
21. MR SMITH: Thank you very much.
22. MR JUSTICE COLLINS: Someone else may know.