England and Wales High Court (Administrative Court) Decisions

Neutral Citation Number: [2014] EWHC 3433 (Admin)

Case No: CO/3354/2014

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

 

Royal Courts of Justice

Strand, London, WC2A 2LL

 

Date: 30/10/2014

 

Before :

 

LORD JUSTICE AIKENS

MR JUSTICE OUSELEY

and

MRS JUSTICE THIRLWALL

- - - - - - - - - - - - - - - - - - - - -

Between :

 

 

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

 

David Josse QC & Rebecca Hill (instructed by Lawrence & Co) for the Applicant

Mark Summers QC & Nick Hearn (instructed by the Crown Prosecution Service) for the Respondent

 

Hearing date: 07/10/2014

- - - - - - - - - - - - - - - - - - - - -

Judgment

Lord Justice Aikens :

1.                  This is the judgment of the court.

I.       The Issue

2.                  The question of principle raised in this case is whether or not the High Court has jurisdiction to extend the time in which a  non-British citizen who is subject to an extradition order of a District Judge under Part 1 of the Extradition Act 2003 (“the EA”) can make an appeal, notwithstanding a failure to comply with the strict time limits imposed by section 26(4) of the EA and notwithstanding the decisions of the House of Lords in Mucelli v Government of Albania;  Moulai v Deputy Public Prosecutor de Creteil, France[1] and the Supreme Court in  Pomiechowski v District Court of Legnica,  Poland;   Halligen v Secretary of State for the Home Department.[2]       If the court has jurisdiction to extend the time limit there would then be a subsidiary question of whether time should be extended on the facts of this case.   This case was adjourned by Keith J on 25 July 2014 so that the court could consider two points as preliminary issues in this appeal,  which is, effectively,  a “test case”. 

3.                  The Penitentiary Judge  of the Metropolitan Court in Budapest,  Hungary,  seeks the surrender of Gabor Agardi,  a Hungarian national,  pursuant to a “conviction” European Arrest Warrant (“EAW”),  issued on 7 December 2012 and certified by the Serious Organised Crime Agency on 17 May 2013.   The EAW requests Mr Agardi’s return to Hungary to serve outstanding prison sentences for offences of fraud and violence.  Hungary has,  of course,  been designated a Category 1 territory pursuant to section 1 of the EA,  so that Part 1 of the EA applies to all questions concerning the EAW and Mr Agardi’s rights in respect of it,  including his right to appeal an extradition order made against him. 

4.                  Mr Agardi challenged the EAW.   He alleged that his surrender would place him at a real risk of inhumane and degrading treatment because of the state of Hungarian prison conditions,  so that a surrender by the UK would be contrary to his rights under Article 3[3] of the European Convention on Human Rights (“ECHR”).  He therefore contended that he must be discharged in accordance with section 21 of the EA.  He also asserted that his surrender would be a disproportionate interference with his Article 8 rights.   His case,  together with that of Andras Horvath, which raised the same Article 3 objection to surrender,  were considered at a full extradition hearing by District Judge Zani on 8 April 2014.     On 8 July 2014 DJ Zani handed down his judgment rejecting the Article 3 and Article 8 objections in both cases.  He ordered the surrender of both Mr Agardi and Mr Horvath.

5.                  Mr Agardi wished to appeal and he immediately told his counsel that this was so.   Section 26(4) of the EA stipulates that a notice of appeal must be given “in accordance with rules of court before the end of the permitted period,  which is 7 days starting with the day on which the order is made”.   The notice of appeal should therefore have been lodged and served by 14 July 2014.   It was not lodged until 17 July and so was out of time. 

6.                  In Mucelli v Government of Albania;  Moulai v Deputy Public Prosecutor de Creteil, France[4] the House of Lords held (unanimously on this point) that the statutory time limit in section 26(4) was fixed and there could not be any extension of time in the absence of any statutory provision for it,  of which there were none.    Then in Pomiechowski v District Court of Legnica,  Poland;   Halligen v Secretary of State for the Home Department,[5]  the Supreme Court held that,  in the case of Mr Halligen,   a British citizen whose extradition was sought by the USA,   (a Category 2 territory to which Part 2 of the EA applies),  the time limit for giving a notice of appeal to the High Court set out in section 108(4)[6] was capable of extension in “exceptional circumstances”.   The reasoning (which we will have to consider in more detail below) is,  in summary,  that a British citizen[7] enjoys a common law or civil law right to enter and leave the United Kingdom  as he wishes and the provisions of the EA by which a British citizen can be extradited and so made to leave the UK against his will,  impinge on this common law or civil right.   Therefore proceedings,  including extradition proceedings,  which determine whether this civil law right of a British citizen is to be curtailed (in that case by ordering extradition to the USA),  fall within Article 6(1) of the ECHR.[8]  Accordingly,  in so far as the provisions relating to extradition proceedings under Part 2 of the EA contain a right of appeal against any extradition decision,  Article 6(1) of the ECHR requires that this right of appeal be free of limitations that would impair the “very essence” of that right of appeal.  Moreover,  any limitations on the right of appeal must also pursue a legitimate aim and involve a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved”.[9]  The provisions in section 108(4) of the EA did not meet those requirements.    However, the sub-section could be read so as to make it subject to the qualification that the court will have a discretion in exceptional circumstances to extend time for the filing and service of a notice of appeal,  “where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process that [the ECtHR had] held to exist”.[10]    The Supreme Court’s reasoning plainly also applies to section 26(4) of the EA,  the appeal provision in Part 1 of the EA. 

7.                  The issue that arises in this case, therefore, is whether,  in the light of these decisions,   this court has any jurisdiction to extend the time in which to lodge and serve a notice of appeal in extradition proceedings in the following circumstances:  (1) it is a case to which Part 1 of the EA applies;  (2)  the proposed appellant is not a British citizen but is an EU national;  and (3)  the ground on which the person resists surrender under Part 1 of the EA is that to do so would be contrary to one of his Convention rights,  viz.  Article 3.   

II.      The legal background in some more detail.

8.                  Part 1 of the EA gives UK domestic law effect to the Council Framework Decision of 13 June 2002 “on the European Arrest Warrant and the surrender procedures between Member States” of the European Union (“the Framework Decision”).    Part 1 of the EA applies to countries which have been designated “Category 1” states;  in effect these are the Member States of the EU who are party to the Framework Decision.  The Framework Decision provisions do not stipulate that there should be a right of appeal from any order by a court for surrender of a requested person nor do they preclude such a right. The provisions do not stipulate any procedural requirements if there is an appeal mechanism under the domestic law which implements the Framework Decision.    In Jeremy F v Premier Ministre[11] the Court of Justice of the European Union (“CJEU”),  held in a preliminary ruling on a question of law raised by the French Conseil Constitutionnel that provisions in domestic law that gave a right of appeal against a decision of a court ordering surrender would not be incompatible with the terms of the Framework Decision.   Section 26  of the EA grants a right of appeal against a contested “extradition order”[12] that has been made by a District Judge in response to a request made in an EAW issued by another judicial authority in a Category 1 state.   Both Mr Josse QC,  on behalf of Mr Agardi,  and Mr Summers QC on behalf of the  Requesting Court,  accepted in argument before us that the provisions in section 26 are purely domestic in origin and that they do not reflect anything in the Framework Decision.

9.                  As already noted,   Part 2 of the EA deals with extradition to so called “Category 2” countries.   For these states a  different and “more traditional scheme” [13] of extradition applies.     In Part 2 cases the judge has to decide whether or not to send a case to the Secretary of State for her decision on whether to extradite someone.   There is a right of appeal from that decision on the part of the individual under section 103 and the individual also has a right of appeal,  under section 108,  from a decision of the Secretary of State to order extradition.     As has also already been noted,  the time limits for instituting the appeal process is short in both Part 1 and Part 2 cases:   7 days for a Part 1 appeal and 14 days in the case of a Part 2 appeal. 

10.              The effect of these short time limits for making appeals have been the subject of controversy in the courts.   In Mucelli the House of Lords had,  first, to consider what was meant by the phrase “Notice of appeal…must be given” in sections 26(4) and 103(9).[14]  The question was whether the appeal notice had just to be filed in the High Court within the relevant time period, or whether it had also to be served on the respondent within that period.    The second question the House of Lords had to consider was whether the court that would consider the appeal was precluded from extending time for the filing and/or the service of the appeal notice.    Lord Neuberger of Abbotsbury gave the principal speech.    He concluded,  on the first question,  that the appeal notice had to be both filed and served within the seven day period stipulated in section 26(4).[15]   As Lord Mance noted in the subsequent Supreme Court case of Halligen,  the House of Lords in Mucelli did not focus on the precise form of notice of appeal that was required by the EA provisions.[16]

11.              On the question of whether the court could extend the time for either filing or serving the appeal notice,  Lord Neuberger concluded that,  upon the correct construction of section 26(4),  considered together with section 35(3)-(6),[17]  there was no statutory basis on which there could be an extension of time by the court.   The CPR provisions whereby a court can extend time for taking any step,  in CPR Pts 3.2(2)(a),  3.10 and 6.9 could not be used to overrule the strict statutory time limits in either section 26(4) or section 103(9).[18]  The other Law Lords all agreed with him on this issue.

12.              The question of whether Article 6(1) of the ECHR has any application to extradition proceedings brought in a Contracting State has been the subject of a series of decisions by  the European Court of Human Rights (“ECtHR”).   The ECtHR has consistently held that Article 6(1) has no application to decisions by a state to expel or extradite an alien of that state.  The ECtHR has further reasoned that decisions on extradition or expulsion of aliens do not constitute a “determination” of either a “civil right” or a “criminal charge” for the purposes of Article 6(1).[19]  It is important to note that the relevant ECtHR cases were all concerned with the extradition or expulsion of aliens of the state concerned,  that is non-nationals of the extraditing/expelling state.  

13.              In Halligen there were before the Supreme Court three appeals by Polish citizens and one by a British citizen.  There were two principal issues. The first was about the form of the notice of appeal which had to be given when appealing from an extradition order under either Part 1 or Part 2 of the EA and also to whom the notice had to be given within the statutory time limits.    The second principal issue was whether the court could extend the time in which to bring an appeal under the EA.  In the Supreme Court the decision of the House of Lords in Mucelli (which had also concerned both those issues) was challenged.     Lord Mance gave the leading judgment in Halligen,   with which the other Justices agreed.  The Supreme Court affirmed the decision in Mucelli  in so far as it required that the notice of appeal must be filed and that “some form of notice of an appeal must be given to the respondents within the permitted period”.[20]  Halligen also reconsidered the issue of the form of the notice of appeal required, but that point is not relevant to the present case.  

14.              The cases of the three appellants who were all Polish citizens who were the subject of EAWs issued by Polish judicial authorities,  whose cases were therefore governed by Part 1 of the EA,  all concerned the form and service of the notice of appeal within the statutory time limits.    The only relevance of their cases is that,  because they were not British citizens,  they could not advance the argument that the Supreme Court held to be available to Mr Halligen,  a British citizen.

15.              Mr Halligen’s extradition was sought by the USA and so was subject to the extradition procedures governed by Part 2 of the EA.    Lord Mance pointed out that,  by both international law and centuries old English common law,  a British subject,  or citizen,  has the right to enter,  move around in and leave the UK when and where he pleases,  subject,  of course,  to any limitation imposed by Parliament.[21]   Mr Halligen,  as a British citizen,  enjoyed that “civil right”.  It was affected by the restrictions imposed by Parliament in the form of the extradition proceedings brought against him under Part 2 of the EA,  although  those extradition proceedings did not involve the determination of any criminal charge against him.   Lord Mance therefore concluded that because the extradition proceedings would determine whether Mr Halligen could continue to enjoy his civil right to enter,  stay in and leave the UK as and when he pleased,  those proceedings must fall within Article 6(1) of the ECHR.   Hence the requirement,  already noted,  that,  for Mr Halligen, a British citizen,  the appeal procedure set out in sections 103 and 108 of Part 2 of the EA must conform with relevant Article 6(1) standards, to which we have already referred.   It followed,  Lord Mance held, that in order that sections 103 and 108 of the EA should comply with Article 6(1) requirements as laid down by the ECtHR,  those sections must be read as giving the court a discretion to extend time for filing and service of a notice of appeal in “exceptional circumstances”.[22]

16.              Lord Mance was careful to note,  at [40] of his judgment in Halligen,  that this “civil right” in relation to extradition proceedings and the consequences for Article 6 purposes applied only to British citizens.   The position of others who were not British citizens and who therefore did not enjoy the protection of Article 6(1) were not before the court.   Lord Mance added,  at [40]: 

“However,  the position [of such persons],  as well as that of persons enjoying the protection of Article 6(1),  would,  on the information before the court,  appear to deserve attention.  This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process,  including any appeal they may wish to bring”. 

17.              Parliament has apparently taken note of these comments.   By section 160 of the Anti-Social Behaviour,  Crime and Policing Act 2014, (ASBCPA) several amendments are to be made to the EA.   Thus,  under Part 1 of the EA,   appeals by persons who have been made the subject of an extradition order in the Magistrates’ Court will only be able to bring an appeal in the High Court with the leave of the High Court.[23]  By section 160(1)(c)  of the ASBCPA a new section 26(5) is to be introduced into Part 1 of the EA.   When this new sub-section is brought into force (on a date which has not yet been appointed or even informally indicated),  it will provide:

“(5) But where a person gives notice of application for leave to appeal after the end of the permitted period,  the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given”.  

18.              For Part 2 of the EA,  the ASBCPA has introduced similar changes creating  the requirement of obtaining leave to appeal and giving the High Court a discretion to grant leave even if the application has not been made within the prescribed time limits in respect of appeals under section 103 and 108 in Part 2.   Those provisions are also not yet in force.

19.              Finally,  by way of legal background,  we note the case of Lumenica v Government of Albania and three other conjoined appeals.[24]  There the Divisional Court held that the court had no power to grant an extension of the time for appealing an extradition decision made under Part 1 of the EA where the proposed appellant was a Polish national and therefore,  so far as the UK was concerned,  an “alien”,  even though the applicant was an EU national.[25]

III.    The arguments of the parties

20.              Mr David Josse QC,  appearing for the applicant,  ultimately concentrated on three broad submissions on the issue of principle.    First,  he submitted that to give British citizens an Article 6(1) right in relation to extradition proceedings,  but not to give it to nationals of other countries who are subject to the same type of proceedings in the UK, is discriminatory on grounds of nationality.  He referred to Baroness Hale’s judgment in Halligen at [52],  which he said recognised this point.  He submitted that this discrimination would be contrary to the prohibition on discrimination set out in Article 14 of the ECHR.[26]     Further,  any difference in treatment between British citizens and other nationals is not capable of reasonable and objective justification.    Secondly,  he emphasised that this case concerns a possible breach of an Article 3 right (if Mr Agardi were to be surrendered).  Therefore,  he submitted,  the case is “within the ambit” of Article 3.   In dealing with Article 3 issues,  the court cannot discriminate on the grounds of nationality,  because to do so would be in breach of Article 14.    Thus,  in order that the court’s treatment of Article 3 issues is the same for both a British citizen and citizens of other countries and thus avoid discrimination,   the same right of appeal must be accorded to all nationalities.    Accordingly,  section 26(4) has to be read in such a way as to enable the court to deal with appeals on the Article 3 issue without discrimination,   pursuant to the court’s duty under section 3(1) of the Human Rights Act 1998 (“HRA”).[27]   Thirdly and lastly,  Mr Josse submitted that an unreasonable inability to bring an appeal on an Article 3 issue would mean that the court was acting in a way that was incompatible with a person’s Convention rights,  and that was impermissible under section 6 of the HRA.[28]

21.              Mr Josse also (somewhat tentatively) raised a point on the application of Article 18 of the Treaty on the Functioning of the European Union,  annexed to the Lisbon Treaty 2007.  We will refer to this as the TFEU.  Article 18 provides:  “within the scope of application of the Treaties,  and without prejudice to any special provisions contained therein,  any discrimination on grounds of nationality shall be prohibited”.   As we understood the argument,  Mr Josse submitted that this Article would prohibit any discrimination between UK citizens and other EU citizens in relation to a reading of section 26(4), which would permit an extension of the time limits for a UK citizen but not for others.  Mr Josse expressly confirmed that he was not raising a further possible discrimination argument based on  Article 47 of the Charter of Fundamental Rights for the European Union (“the Charter”).  However,  for the sake of completeness we asked Mr Summers to address us on that point as well as the other arguments raised by Mr Josse and we deal with it below.

22.              If the court did have power to extend time,  then,  Mr Josse submitted,  this was a classic case for granting an extension.  The applicant always indicated that he wished to appeal;  he was not at fault at all;  he had a respectable case that to be subject to prison conditions in Hungary would be contrary to his Article 3 rights,  so that he has a good arguable appeal based on section 21 of the EA.[29]   Morover,  an extension of time could not and would not prejudice the respondent in this case.

23.              Mr Mark Summers QC,  appearing for the respondent,   submitted that there were fatal flaws in all three principal arguments that Mr Josse had raised on the point of principle.   On the first,   the argument failed to recognise that the Article 6(1) right had to attach to some substantive “civil right” that was to be determined by a court or tribunal.   A British citizen had such a “civil right” in relation to extradition,  viz.  the right to enter,  stay in and leave the UK at will (subject to any Parliamentary control).  It was that right to which the Article 6(1) right to have a fair determination by an independent court attached.  In relation to extradition proceedings,  a non-British citizen did not have any such “civil right”,  so there was no “civil right” to determine to  which the Article 6(1) right could attach. 

24.               Mr Summers submitted that the second principal argument of Mr Josse was  wrong for three main reasons.  First,  the applicant had been able to argue the point on his Article 3 rights before the DJ,  who had given a decision on the issue.   Secondly,  there is,   in fact,  no discrimination between British citizens and other nationals in relation to their right to appeal on an issue concerning a Convention right under Article 3.   Both groups have the same right of appeal under section 26(4) in respect of an issue concerning their Article 3 right.   The only difference is that one group (British citizens) have another “civil right” that does not attach to any other group.    To that substantive “civil right” the procedural rights under Article 6(1) attach.   Thirdly,  the argument raised is contrary to the conclusion of the Supreme Court in Halligen.   Lord Mance indicated,  at [38],  that one possible solution to the problem of the short time limit was to hold that section 26(4) should be read in a manner that would be consistent with Convention Rights generally;  the other possible solution was to hold that section 26(4) was “simply incompatible with Article 6(1)”.   The court chose the latter solution,  not the former.   

25.              At our request,  Mr Summers also dealt with the two other possible bases on which it might have been argued that a failure to permit an extension of time under section 26(4) was discriminatory.   The first concerned the Article 18 TFEU point that Mr Josse raised.  The second was based on Article 47 of “the Charter”.

26.              Mr Josse’s principal submissions on the point of principle fall into two groups.  The first comprises his first argument and we will call it “the Article 6(1) argument”.  The second  and third arguments comprise the second group and we will call them “the Article 3 arguments”.    We will deal with those first then the arguments concerning  Article 18 TFEU and Article 47  of the Charter.

IV.    Analysis and conclusions on the point of principle.

27.              General:   We have to consider Mr Josse’s arguments keeping in mind four fundamental points:  (1)  the EA is a UK statute which sets out strict time limits for bringing an appeal against an extradition order made under Part 1.  There is nothing in the EA that permits the High Court to extend the time in which a “notice of appeal…must be given”,  to use the terms of section 26(4).   There is nothing in the Framework Decision that requires a national system to provide for a right of appeal against an extradition order made under the national legislation that embodies the principles of the Framework Decision;  nor does the Framework Decision set any procedural parameters if,  at the national level,  an appeal process is created by national law.   (2)   We are bound by both Mucelli and Halligen.  Therefore, there is nothing that can be read into the statutory wording to create a general power to extend time under section 26(4).  (3)  Nationals other than British citizens have no Article 6(1) rights in connection with extradition proceedings because those proceedings do not “determine” either a “civil right” or a “criminal charge”.    (4)  Article 14 of the ECHR has no independent existence;  it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols.   However,  for Article 14  to become applicable,  it is sufficient that the facts of a case “fall within the ambit” of another substantive provision of the Convention or its Protocols.[30]    Article 14 only safeguards persons who are in analogous or relevantly similar positions against discriminatory differences in treatment where such discriminatory differences have as their basis or reason “a personal characteristic or status” by which persons or a group of persons are distinguishable from each other.[31]

28.              (A). The Article 6(1) argument:  We agree with Mr Summers’ submission that the Article 6(1) argument suffers from a fundamental flaw.    It is clear from Lord Mance’s analysis at [32]-[39] of Halligen that the reason that extradition proceedings against a British citizen fall within  Article 6(1) is solely because those proceedings would involve “the determination” of the “civil right” of a British citizen to enter,  stay in and leave the UK at will,  subject to any Parliamentary control.   Extradition proceedings against a British citizen will determine whether or not he may continue to enjoy this civil,  or common law,  right.  It is in respect of the determination of that right that the Article 6(1) rights attach. 

29.              It must follow that if a person does not have such a civil or common law right which would be the subject of a determination in extradition proceedings,  there is nothing to which the Article 6(1) right will attach.   In relation to the extradition,  exclusion or expulsion of aliens,  the ECtHR has consistently held that there is no question of a determination of a civil right or criminal charge,[32]  If there is no “determination” of a “civil right” or a “criminal charge”,  there is no right to which Article 6(1) can attach. 

30.              Therefore,   there can be no discrimination between British citizens and other nationals for Article 14 purposes,  because other nationals do not have the relevant right to which Article 6(1) can attach.  Non-British citizens are not in the same legal position as British citizens.   That is a legal “fact”.  Thus,  for Article 14 purposes,  in relation to extradition proceedings concerning non- British citizens,  the facts of their cases do not “fall within the ambit” of Article 6(1),  so that Article 14 is not relevant.   In any event,   the basis for the difference in treatment of British and non-British citizens is not a “personal characteristic” based on nationality;  it is the fact that the first has a legal right recognised by the common law (and indeed international law),   which the second does not. 

31.              Mr Josse pointed out that there is no reference to Article 14 in the judgments of Lord Mance and Baroness Hale in Halligen,  despite the latter’s recognition of a possible discrimination between nationals and aliens.[33]   Given the distinction of both the court and counsel who appeared in the cases before it,  we suspect that the reason is simply that everyone recognised that an Article 14 discrimination argument was impossible,  for the reasons we have given.

32.              We therefore respectfully agree with the approach of the Divisional Court in Lumenica v Government of Albania[34] in confirming that the rights of a British citizen in relation to the possible extension of time to bring an appeal from an  extradition order cannot be extended to EU nationals.   The same approach has been adopted in other Administrative Court decisions concerning extradition,  EU nationals and attempts to extend the time in which to give a notice of appeal under section 26(4).[35]   We respectfully agree with that approach.

33.              Mr Josse did not argue that Mr Agardi’s position was ameliorated by virtue of the Immigration (European Economic Area) Regulations 2006.[36]  He was correct not to do so.  Those regulations do not create rights that are equivalent to citizenship which could then be characterised as being a “civil right” or something analogous to a British citizen’s common law right to enter,  stay in and leave the UK at will,  subject to any Parliamentary controls. 

34.              (B) The Article 3 arguments:   There are a number of insuperable difficulties with Mr Josse’s Article 3 arguments.   The first is that both  British citizens and non-British citizens are equally able to raise Article 3 issues, both before the DJ and,  if an appeal is brought in time,  on appeal.  There is no discrimination there.   Mr Agardi was able to argue the Article 3 issue before the DJ and he lost it.    Secondly,  the only difference in the position between the two groups is that in the former case they have a substantive right (the civil right to enter,  remain and leave the UK etc)  to which attaches a concomitant procedural right under Article 6(1).    That fact has the result that section 26(4) must be read so as to give the High Court a power to extend the time limit in exceptional circumstances.   But that distinction does not impinge on the ability of a non-British citizen to argue an Article 3 point.   It only concerns his procedural rights,  under Article 6(1),  which concern the time limits for bringing an appeal under section 26(4).    

35.              Thirdly,   it must follow that there is no question of an infringement of section 6(1) of the HRA when the High Court states that the time for making an appeal under section 26(4) cannot be extended in the case of a non-British citizen who wishes to raise an argument based on a Convention right on appeal.    Extending time in which to bring an appeal does not concern the substantive Convention right under Article 3.   The only way that the action of the High Court could be unlawful within section 6(1) would be if the court was preventing a person from exercising a “procedural right” which is subject to a Convention right,   viz. a “right” to bring an appeal outside the time stipulated by the statute.    But,  as we have said many times now,  the non-British citizen has no procedural right that is subject to Article 6(1) in relation to extradition proceedings,  because they do not come within the ambit of Article 6(1). 

36.              If the refusal of the High Court to extend time under section 26(4),  or the equivalents in Part 2 of the EA (viz.  section 108(4) and section 103(9))  were to constitute a curtailment of a person’s substantive Convention rights in a way that meant that the court was acting unlawfully within section 6(1) of the HRA,  then  we are confident that the Supreme Court would have said so in Halligen.   It would have enabled the Supreme Court to say,  in respect of both British citizens and other nationals,  that section 26(4) must be read so as to give the court a power to extend time in exceptional circumstances because otherwise there would be an unlawful denial of his Article 3 rights.    But just stating the proposition shows why it is wrong and why the Supreme Court did not make such a pronouncement.   In short,  if there is any “denial of rights” it is the procedural right to appeal,  not the substantive Convention right in Article 3 and that concerns Article 6(1),  which brings the point back to the basic difficulty for non-British citizens.

37.              Discrimination arguments based on EU law:    We deal here with the arguments based on Article 18 of the TFEU and Article 47 of the Charter.   As already noted,  the second of these was not pursued by Mr Josse.  However,  as this is a “test case” we invited Mr Summers to make his submissions on both arguments,  which have been canvassed in other cases before the Administrative Court.

38.              The Article 18 TFEU argument.   Article 18 provides:  “within the scope of application of the Treaties,  and without prejudice to any special provisions contained therein,  any discrimination on grounds of nationality shall be prohibited”.    Mr Josse’s argument is analogous to his Article 6(1)/Article 14  ECHR argument.   However,  there are two short answers to it.  First,  section 26(4) is not a national legal provision that is based on any EU legislation,  because it is not based on anything in the Framework Decision.   Secondly,  even if it were,  Article 18 of the TFEU would not have any effect as a matter of English law.  This is because,  as the Supreme Court recognised in Assange v Swedish Prosecution Authority,[37]  the Framework Decision is a “third pillar” measure agreed under Title VI of the Treaty of the European Union (“TEU” otherwise known as the Maastricht Treaty 1992).  In Assange,  Lord Mance conclusively demonstrated why Title VI measures are not included in the definition of “the Treaties” or “the EU Treaties” in section 1(2) of the European Communities Act 1972 (“the ECA”).  Therefore,  as Lord Mance concluded in Assange,  the Framework Decision is outside the scope of section 2  of that Act.    Under paragraph 9 of Protocol No 36 to the Treaty of Lisbon,  which Protocol is incorporated in section 1(2) of the ECA,   the status of the Framework Decision,  which has not been amended since the Treaty of Lisbon,  remains the same until December 2014.   The Framework Decision is therefore, at present,  not a measure to which section 2 of the ECA applies. 

39.              Therefore,  as a matter of English law,  Article 18 of the TFEU cannot have any application to unamended pre-Lisbon Title VI measures because they are outside the scope of section 2 of the ECA.   Accordingly,  as a matter of English law,   the provisions of Article 18 of the TFEU do not apply to the Framework Decision or any English domestic statutory provisions derived from it.   Furthermore,  any decision of the CJEU on the scope and application of Article 18 of the TFEU on the Framework Decision or any national law derived from it is not binding on English courts.[38]  This means that the decision of the CJEU in Criminal Proceedings against Lopes da Silva Jorge[39]  which applied Article 18 of the TFEU to strike down a French national law that transposed the Framework Decision into French law in a discriminatory manner, is not binding on English courts. 

40.              The consequence is that the English law position in relation to the correct construction of section 26(4),   as expressed by the House of Lords in Mucelli and,  at least by implication,[40]  the Supreme Court in Halligen and by this judgment,  is unaffected by Article 18 of the TFEU.  

41.              The argument based on Article 47 of the Charter.   Article 47 grants a right to “an effective remedy and to a fair trial”.  The relevant part of it provides: 

“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…..”

42.              The argument is that,  unlike Article 6(1) of the ECHR,  Article 47 is not confined to circumstances where there is a “determination” of a person’s civil rights” or of any “criminal charge against him”.  Therefore,  in principle,  it could apply to extradition proceedings even though no particular “civil right” is being determined.   Article 52(3) of the Charter stipulates that insofar as Article 47 contains rights that correspond to those guaranteed by Article 6 of the ECHR,  the meaning and scope of Article 47 is to be the same as those laid down for Article 6.   Therefore,  by analogy,  the principles set out in the Tolstoy case[41] should apply equally to Article 47,  with the result that section 26(4) should be read to give the court the jurisdiction to extend time (in exceptional cases) for all persons not just British citizens.

43.              However,  the legal obstacle that Mr Josse recognised prevented him relying on Article 47,   is precisely the same as that which defeats the Article 18 TFEU argument. Section 26(4) is not a transposition of EU law as set out in the Framework Decision.  Even if it were,  it is all outside the scope of the ECA,  so that,  as far as English law is concerned,  the Charter is of no effect.   Furthermore,  Article 51(1) of the Charter stipulates that the provisions of the Charter are “addressed to the institutions and bodies of the Union…and to Member States only when they are implementing Union law”.    As section 26(4) is not implementing Union law,  the Charter’s provisions,  including Article 47,  do not apply to it. 

44.              This analysis has been followed in the Administrative Court in two cases:  Arranz v Spanish Judicial Authority[42] and Van de Kramer v Mariann Capelle,  Federal Magistrate in the Federal Prosecution Office, Belgium.[43]  The concession made on behalf of the Secretary of State in R(NS) v Secretary of State for the Home Department,[44]  (before the Supreme Court’s decision in Assange)  that Article 47 of the Charter has direct effect to the UK must now be regarded as wrong in the light of Assange,  at least so far as the Framework Decision and section 26(4) are concerned.   That concession was adopted in R(Preiss) v Dobele District Court,  Latvia.[45]   Interestingly,  Mitting J concluded,  nonetheless, that it was legitimate to impose strict time limits for appealing a decision which might infringe substantive rights under the Charter.   In that case the relevant substantive Charter right was that under Article 19(2),  equivalent to Article 3 rights under the ECHR,  as applied to prison conditions.   Mitting J noted that the person who could not appeal the extradition order in the UK courts,  but who continued to contend that his Article 3 rights would be infringed by an extradition to Latvian prisons could apply to the Strasbourg court for interim relief under Rule 39 of Rules of Court of the ECHR.[46]  

V.      What are the merits if the court did have power to grant an extension of time for appealing under section 26(4)?

45.              For these purposes we assume that section 26(4) has to be read so that the court has a power to extend the time in which a person can make an appeal,  in “exceptional circumstances”,  to use the words of Lord Mance in Halligen.  The factual position is as follows:   immediately after DJ Zani announced his decision on 8 July 2014 that Mr Agardi was to be subject to an extradition order,  he told his counsel that he wished to appeal.   Counsel,  Ms Hill,  sent an email that day to her instructing solicitor,   Ms Alison Fong San Pin of Lawrence and Co.     Ms Pin says that because of IT problems in her firm’s office,  she never received that email,  although it was undoubtedly sent. 

46.              On 11 July 2014 Ms Hill sent an email to Ms Pin,  attaching draft Grounds of Appeal.   That email also did not arrive in Ms Pin’s inbox at the time because of the firm’s IT difficulties,  although ultimately Ms Pin did receive it.   Ms Hill spoke to Ms Pin on 17 July 2014.  She then realised that an appeal should have been lodged on 14 July;  the appeal  was lodged that day.

47.              In her first “affidavit”,  Ms Pin states that the IT problem was that her email mailbox in her computer was full and was rejecting emails,  so that she did not see the rejected emails.   Ms Pin also states that at the relevant time,  although she was dealing with the case,  subject to the supervision of the partner in charge,  she was the only person who had conduct of all the cases in the firm’s Extradition Department during the crucial week of 7 July 2014.    In her “second statement”  Ms Pin recognised that her failure to file the appeal in time was a “serious failing” both on her part and that of her firm.   She stated that “the absence of the paralegal that week,  (whose job it would have been to prepare the appeal had she been in the office),  combined with pressure of other work as well as the IT problems led to this error”. 

48.              Two things are clear from these statements.  First,  Mr Agardi is faultless.  He indicated to counsel clearly his wish to appeal at the earliest opportunity and counsel passed that fact on to her instructing solicitors and Ms Hill also drafted grounds of appeal in good time.   Secondly,  the fault of Ms Pin and her firm was serious.   No one seems to have considered taking the elementary step of asking about the DJ’s result either on 8 July or at any time before Ms Hill spoke to Ms Pin on 17 July.   No one appears to have appreciated the urgency of the matter given the seven day statutory time limit for making an appeal.  

49.              The question,  therefore,  is whether,  despite the serious fault of his solicitors,  the fact that Mr Agardi was blameless concerning the delay would make these “exceptional circumstances” such that the court should exercise its presumed power to extend time. 

50.              Mr Summers referred us to a number of cases where the courts have laid down some principles on the factors to take into account when deciding whether or not to grant an extension of time in which to appeal,  albeit necessarily in other contexts.   These were:  United Arab Emirates v Abdelghafar,[47]  Adesina v Nursing and Midwifery Council,[48]  which refers specifically to the Abdelghafar case and to Lord Mance’s judgment in Halligen.  Mr Summers also referred us to Patel v Government of India.[49]

51.              In the end we have concluded that the circumstances of this case cannot be described as “exceptional”.  Sadly,  there are many instances of lawyers failing to take the necessary prompt action to comply with strict time limits.  There may have been IT problems in the solicitor’s firm,  but the stark fact is (as Mr Josse accepted in argument) that no one at the firm bothered to find out what the result of DJ Zani’s decision was either on 8 July 2014 or immediately thereafter.   That was the root cause of the failure to make the appeal within the seven day period.  Taken overall,  the facts do not constitute “exceptional circumstances”.

52.              Therefore,  even if this court had had the power to extend time under section 26(4),  we would not have done so.

VI.    Disposal

53.              This court is seized of Mr Agardi’s appeal,  but we conclude that the court has no jurisdiction to extend the time in which he can bring an appeal under section 26(4) of the EA against the extradition order made by DJ Zani on 8 July 2014.[50]  We therefore dismiss the appeal for want of jurisdiction.  We will make an order accordingly.