England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/06/2015

Lord Justice Burnett:

1. This is the judgment of the Court.
2. On the 12 March 2015 at Westminster Magistrates Court, District Judge Zani ordered the extradition of the appellant to Hungary pursuant to two conviction warrants in respect of which he has a total of 30 months imprisonment to serve. The appellant seeks leave to appeal pursuant section 26(3) of the Extradition Act 2003 ["the 2003 Act"]. The issue before us is whether the application should be entertained at all. The notice was not given within seven days of that order as required by section 26(4) of the 2003 Act. That time limit was strict, but a recent amendment to the 2003 Act enables this court to overlook the failure to give notice in time in limited circumstances. This is the first case in which the reach of the new provision has been considered.
3. Both the requirement for leave to appeal against an extradition order and the provision relaxing the application of the immoveable time limit were introduced by section 160 of the Anti-social Behaviour, Crime and Policing Act 2014. They apply to cases in which notice to appeal is given on or after 15 April 2015: see article 4 of The Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 9 and Transitional Provisions) Order 2015 SI 2015/917.
4. It is accepted on behalf of the requesting state that if the appeal notice is within time, leave to appeal should be given. That is because the complaint now raised in these proceedings is that prison conditions in Hungary are such that the extradition of anyone to custody in Hungary would give rise to a real risk of ill-treatment contrary to article 3 ECHR. The appellant relies upon Varga and others v Hungary (App. No. 14097/12) in which the Second Section of the Strasbourg Court gave judgment on 10 March 2015. In a series of cases concerning prison conditions in Hungary it found violations of article 3. The central complaint was one of overcrowding. The Hungarian authorities have provided assurances designed to exclude any risk in respect of those whose extraditions they are currently seeking from the United Kingdom, including this appellant. A lead case has been identified (Horvath CO/3252/2014) in which it is anticipated that the adequacy of the assurances will be amongst the issues under consideration in July.
5. The appellant represented himself at the extradition hearing. He had engaged solicitors privately and was represented by them initially, including at a preliminary hearing. He did not put them in funds for the extradition hearing itself and so they withdrew. At that hearing he gave oral evidence and relied upon a long "proof of evidence". In its final paragraph the proof mentioned that the appellant had "heard that prison conditions are bad and that they are overcrowded". The appellant also said that he was scared of being in prison. It is apparent from a note that has been provided of the ex tempore judgment that he elaborated upon that by indicating that he felt vulnerable to attack in prison. There is limited information about what happened at the hearing. We are told that the appellant raised as an issue the question whether he would be at risk from individuals in Hungary about whom he said he had given information to the police.
6. As material the statutory provisions now read:

"26(4) 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 seven days starting with the day on which the order is made.

(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."

The effect of section 26(5) is to require the High Court to refuse to entertain an application in a case in which notice was given outside the specified seven days unless the person concerned shows that he has done everything reasonably possible to ensure that notice was given as soon as it could be given.

7. The background to the legislative change may be found in decisions respectively of the House of Lords and Supreme Court in Mucelli v Government of Albania; Moulaui v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276 Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604.
8. In Mucelli the House of Lords decided that the requirement found in section 26(4) of the Extradition Act required the appellant both to lodge a notice of appeal in the High Court within the seven day period and also serve a complete copy of that notice on the respondent within the same period. The time limit was incapable of extension. A consequence of the decision was that if, for example, an incomplete copy of the notice of appeal had been served upon the respondent within seven days, the appeal was nonetheless time-barred. The decision was revisited in Pomiechowski. The Supreme Court was invited to depart from Mucelli in so far as it had held that a failure to give notice to the respondent within seven days, as well as lodging a notice of appeal with the court, resulted in the appeal being time-barred. The Supreme Court declined to accede to that invitation, see para 17 of the judgment of Lord Mance. However, it held that the requirement to give notice to the respondent did not dictate that the full notice (as lodged with the court) should necessarily have been provided. General notification of the appeal within time was sufficient. The result was that it remained necessary to give notice to the respondent in time but the form of notice was not critical.
9. Pomiechowski was one of a number of cases brought together for hearing in the Supreme Court. Three concerned Polish appellants whose notices to the respondent judicial authorities had fallen foul of the technical rules hitherto understood to be in place. A fourth appellant was a British national who was being extradited to the United States of America. For reasons which it is unnecessary to elaborate in this judgment, the Supreme Court held that in the case of a British national facing extradition the strict seven day time limit was incompatible with his rights under Article 6 of the European Convention on Human Rights, paras 32 and 33. In those circumstances the interpretative tool of section 3 of the Human Rights Act 1998 was used, in the case of United Kingdom citizens, to read the time limit in section 26(4) as subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where those provisions would otherwise operate to prevent an effective right of appeal, para 39. Non-British nationals were unable to rely upon the same reasoning.
10. Lord Mance noted that the Review of the United Kingdom Extradition Arrangements of the 30 September 2011 had identified that the time limits for appealing in the Extradition Act (both Part 1 and Part 2) were an "unsatisfactory feature about the appeal process", para 34. The review mooted the possibility of enlarging the time limit in Part 1 cases from seven to fourteen days, thus maintaining the underlying principles of certainty, or providing a discretion to the court to extend the time limit in the interests of justice, para 34. The review preferred the former because of the importance of certainty and finality in this field. In para 40, Lord Mance urged that the matter should be subject to further consideration. In his earlier analysis, Lord Mance had identified particular problems encountered by those against whom extradition orders had been made, who were then immediately committed into custody and did not have access to lawyers.
11. The new section 26(5) was the legislative response to the observations of the Supreme Court and the Review. Parliament did not choose either of the alternatives already referred to. It opted for a solution which does not engage a general discretion but equally does not import a different (albeit longer) fixed time limit. Instead, it provided that if the test identified in section 26(5) was made out the effect would be to extend the time limit. The words of the test itself are clear and need no judicial gloss. However, there are a number of factors which need to be identified in its application.
12. First, the burden of establishing that everything reasonably possible was done rests upon the appellant. He must satisfy the court on the balance of probabilities. Part 17 of the Criminal Procedure Rules governs extradition proceedings. Rule 17.17(b)(i) provides that an application for permission to appeal to the High Court may be determined without a hearing. It follows that ordinarily any question raised under section 26(5) will be dealt with on the papers. The contents of an appeal notice are specified in rule 17.20. We would draw attention particularly to rule 17.20(4)(a) which requires any appeal notice served after the seven day time limit "to explain what the defendant did to ensure that it was served as soon as it could be". In a straightforward case, it may be sufficient for a short description to be contained within the appeal notice. However, we would expect an appellant (and possibly his solicitors) to provide a witness statement, supported by a statement of truth, and exhibiting relevant documents, which can be referred to within the notice and attached to it. Given the nature of the test, it is clearly necessary for an appellant to give a comprehensive explanation covering the entire period of delay.
13. Secondly, the question arises whether the merits of an appeal have any bearing on the test in section 26(5). Mr. Hawkes for the appellant submitted that they should. He gave as examples cases such as this which are concerned with non-qualified rights under the ECHR where, absent the time problem, leave would be granted. He also suggested as a category of case where the merits should bear on the test one in which there is clear evidence that something went unnoticed in the Magistrates' Court which would be dispositive of an appeal, such as a flaw in the European Arrest Warrant.
14. We consider such an approach to be inconsistent with the statutory language. In many jurisdictions there is power to extend time when it is in the interests of justice, or just and equitable, to do so. However, Parliament chose not to adopt these or similar formulations, or otherwise invest the High Court with a general discretion to extend time. The apparent merits of a claim or appeal may well fall into consideration where such wording is used. Here, however, the statutory test requires the court to determine whether the appellant has satisfied it, in which the focus is entirely upon the reasons why the appeal is late and not on its underlying merits.
15. Thirdly, the question may arise whether the statutory test is concerned with the personal conduct of the appellant alone or whether it encompasses delay generated by his legal advisers. Mr. Hawkes submitted that the use of the word "person" in section 26(5) demonstrated that Parliament's intention was to limit the enquiry to the personal conduct of an appellant. Thus, if an appellant had instructed solicitors to prosecute an appeal, and delay thereafter could be shown to be their fault rather than his, it would be ignored. We are unpersuaded that the use of the word "person" in the subsection has the significance suggested. Throughout the 2003 Act that word is used to describe the individual who is the subject of the extradition request. Its use in section 26(5) reflects the legislative style.
16. We think it improbable that Parliament could have intended the distinction suggested.
17. In section 26(5) the word "person" is used twice. The first ("where a person gives notice of application") does not confine the operation of the subsection to cases where the appellant has personally lodged a notice of appeal and personally given notice to the respondent. Elsewhere is Part 1 of the 2003 Act there are references to "the person" making an application (viz. sections 4 and 8) which similarly do not require personal applications to be made. So at first blush there is no magic in the use of the word a second time in section 26(5) in connection with "everything reasonably possible" being done.
18. The background to the suggestion in the Supreme Court that the strict time limits be reconsidered was an argument, accepted by Lord Mance, that they were capable of denying "the very essence" of the right to appeal, paras 33 and 34. We have mentioned the particular problem of unrepresented persons being remanded in custody and having no realistic opportunity of getting legal advice in time to mount an appeal within seven days. Once solicitors have been instructed it cannot be said that the essence of the right of appeal has been denied if their default results in its not being pursued in time. The vice which Parliament was dealing with does not call for the distinction being made. Furthermore, the context remains a system which is designed to operate swiftly once an extradition order has been made. Distinguishing between the actions of an appellant personally and his solicitors, when it comes to reasons for delay, would inevitably lead to conflicts of interest which would result in changes in representation and necessarily be difficult to investigate because of legal professional privilege. That would result in complication and delay, the latter at least inimical to the scheme of the 2003 Act.
19. The question, therefore, is whether the appellant has demonstrated that he "did everything reasonably possible to ensure that the notice was given as soon as it could be given". In view of the Supreme Court's refusal to depart from Mucelli, the enquiry must relate to whether the appellant did everything reasonably possible to ensure that the notice was lodged with the court and also given to the respondent.
20. The notice of appeal in this case, although dated 20 April 2015, was not lodged with the court until the 27 April and was not served on the respondent judicial authority (via the CPS) until the 8 May.
21. The appellant's solicitor, Rebecca Weale of GT Stewart Solicitors, has filed a statement dated the 20 April 2015 appropriately supported by a statement of truth setting out the bare bones of what occurred. She provided further information in a letter dated 8 May. The appellant has filed three statements, one following the conclusion of the hearing to support information provided by Mr. Hawkes on instructions. We have been provided with the contemporaneous notes of both the district judge and the court clerk and start with those.
22. The clerk's contemporaneous note made on 12 March 2015 records "appeal infor given" and "appeal notice given". The judge's notes record that the appellant was remanded on conditional bail and that removal arrangements were explained to him. They also note that appeal rights were explained. Miss Bostock, who appears for the respondent, also attended on its behalf on 12 March. Her contemporaneous note records that appeal rights were explained. She has no contemporaneous note whether a notice of appeal was given to the appellant but explained that such a course, although not invariable, is common at Westminster Magistrates' Court. It is well known that the practice of the district judges dealing with extradition is to explain to unrepresented requested persons that they have a right of appeal to the High Court within seven days.
23. A standard form is given to the requested person at the end of an extradition hearing which records whether he has been discharged, his extradition ordered or (in Part 2 cases) his case sent to the Secretary of State. It would be a simple and in our view desirable matter for the form to summarise in writing the appeal rights which will have been explained orally by the district judge and for a pro forma notice of appeal to be made available to unrepresented requested persons.
24. The appellant's first witness statement is silent on whether he was told of his appeal rights by the district judge, but he indicates that his previous solicitors had not given any advice on appeal before they withdrew from the case. Although the appellant speaks some English he was assisted by an interpreter at the extradition hearing. His second statement says that he does not recall whether he was advised of his appeal rights by the court. In view of the contemporaneous evidence produced by the respondent, Mr. Hawkes on instructions told us two things. First, that the appellant has kept all the pieces of paper his extradition proceedings have generated and there is no blank appellant's notice amongst them. Secondly, that on reflection the appellant believes that no information regarding appeal rights was given by the district judge. A third statement from the appellant was provided after the hearing confirming those instructions.
25. Despite the appellant's recent statement contradicting his earlier lack of recollection about whether appeal rights were explained, contemporaneous hand-written records are a much more reliable indicator of what occurred. It is frankly inconceivable that the judge himself, the court clerk and counsel could each independently have noted that appeal rights were explained if that had not occurred. We also think it unlikely that the clerk would have written the note about providing a notice of appeal if that also had not occurred.
26. The chronology of this case is unusual in that following the extradition hearing the strict seven day time limit remained in place. The appellant having failed to act within seven days, the next effective date of which he could have given notice was 15 April itself. The time between the extradition order and the introduction of the new provision remains relevant. It was well known to extradition lawyers that the relaxation was coming. It would not be reasonable to expect an unrepresented requested person necessarily to anticipate the commencement of section 26(5) but any solicitor operating in this area of law would have been aware of it.
27. Privilege has not been waived in this case (that implies no criticism) but the result is that we do not know what the expectation of the appellant was at the extradition hearing and thus whether he might have thought at the time that an appeal was worthwhile. However, we do know that on 16 March 2015 he lodged an application for asylum. We were told that was without the assistance of solicitors. No extradition can take place whilst an asylum application is pending, section 39 of the 2003 Act. This is not a case in which the requested person was committed into custody and was then helpless during the seven day period allowed for an appeal. The appellant was on bail and taking steps to protect his position.
28. His evidence, and that of his solicitor, suggests that he did nothing with regard to the extradition proceedings until 1 April 2015. On that day he returned to Westminster Magistrates' Court to apply for a variation in his bail conditions. Ms Weale was at court on another matter. She spoke to a friend of the appellant's who was giving him some assistance. She was aware that the deadline for an appeal had passed but agreed to meet the appellant to "discuss his options". The appellant and Ms Weale met on 17 April. It is apparent that the urgency was appreciated by her because the appeal notice was completed and ready for service on 20 April. Ms Weale made her statement that day. The statement asserted that the notice would be lodged on 20 April. It was a statement "explaining delay in service of the notice" and was in the bundle which had been prepared and attached to the appellant's notice. No doubt Ms Weale had the terms of the Criminal Procedure Rules well in mind. At that stage she was acting pro bono which is why the appellant himself took on the burden of lodging the documents and giving notice to the respondent.
29. We have noted that the notice of appeal was not lodged with the court until 27 April. There is no satisfactory explanation for the delay following 20 April. It is stated in the letter of 8 May to which we have referred that the appellant could not lodge the notice on 20 April because of his reporting obligations as a condition of bail. That is not consistent with the statement made by Ms Weale on 20 April given her expectation that it would be lodged and, in any event, his obligation was to report between 17.00 and 18.00 in Plumstead.
30. On 17 April the appellant was told that he would be extradited on 21 April at 16.00. On 17 April he told the officer dealing with the matter of his outstanding asylum claim and thus that he could not be removed to Hungary. The appellant (to his credit) nonetheless reported to Heathrow Airport. He refused to be extradited again citing his outstanding asylum claim. He was arrested and detained until the following morning, 22 April, when he was again released on bail by a district judge. There is no information why the appellant's notice was not lodged with the court on the morning of 21 April or on the 22, 23 or 24. In our judgment waiting until 27 April demonstrates that the appellant did not do everything reasonably possible to ensure that the notice was lodged with the court as soon as it could have been. The notice could not have been lodged before 15 April when the law changed. We would not criticise the five days, which included a weekend that followed before the notice was drafted and ready to be lodged with the supporting documents. It is unnecessary to dwell upon the events up to 15 April. In our judgment the further week's delay itself, given the factual circumstances, takes this appellant outside the terms of section 26(5).
31. That is not the end of the matter. We have noted that the respondent was not given notice of the appeal in any form until 8 May 2015. There is no explanation for that at all in the material before us.
32. It follows that this appeal is out of time with the consequence that the application for leave fails.
33. We conclude by noting the decision of this court in R (Navadunskis) v The Serious Organised Crime Agency [2009] EWHC 1292 (Admin). The claimant was to be extradited to Lithuania. His appeal failed in limine because he had not served notice upon the respondent in time as required by Mucelli. The Divisional Court concluded that a requested person who had failed to exercise his right of appeal under the 2003 Act might invoke the supervisory jurisdiction of this court to prevent his extradition. The position was summarised in R (Klimeto) v City of Westminster Magistrates' Court [2012] EWHC 2051 (Admin), para 12:

"Rights of appeal are governed by sections 26 to 34 of the 2003 Act. The person concerned may appeal against an extradition order: section 26, but not if it was made following consent. The requesting state may appeal against the discharge of the person in limited circumstances. Section 34 provides:

"A decision of the judge under this Part may be questioned in legal proceedings only by means of an appeal under this Part."

Very strict time limits are applied to appeals, both to the High Court and thence to the Supreme Court: Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 WLR 276 There are very limited circumstances in which habeus corpus or judicial review may be available in addition to, or instead of, the statutory appeals mechanism: R (Hilali) v Governor of Whitemoor Prison [2008] 1 AC 805; R (Navadunskis ) v SOCA [2009] EWHC 1292 (Admin)."

34. We say nothing of whether the appellant's case might fall within the rare circumstances in which judicial review would be appropriate following a failure to appeal. However, he is unable to invoke the statutory appeal found in the 2003 Act because he failed to do everything reasonably possible to ensure that the notice was given as soon as it could have been.