England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		14 October 2015

1. LORD JUSTICE BURNETT: On 21 August 2015, Nicola Davies J refused Mr Debicki's application for permission to appeal against the order extraditing him to Poland made at Westminster Magistrates' Court on 5 August 2015. I shall refer to him as "the appellant".
2. The judge refused permission, because the appellant gave notice of appeal after the end of the period of 7 days permitted by section 26(4) of the Extradition Act 2003, and he had not demonstrated that he had had done everything reasonably possible to ensure that the notice was given as soon as it could be given. The judge made the order having considered the papers lodged by the appellant.
3. It has been accepted on his behalf by Ms O'Raghallaigh that the judge was right to refuse permission in those circumstances in the light of the judgment of this court in Szegfu v Court of Pecs Hungary [2015] EWHC 1764 (Admin). That was because no explanation for the delay have been given.
4. On 9 September 2015, the appellant lodged an application pursuant to Rule 17.27 of the Criminal Procedure Rules to reopen the decision to refuse the application for permission to appeal. The Criminal Procedure Rules have been reordered with effect from 1 October 2014. Rules relating to extradition proceedings are now found in part 50, to which I shall refer.
5. The appellant sought interim relief because his removal to Poland was imminent. On 9 September Supperstone J ordered that the appellant should not be removed to Poland until the determination of his application to reopen.
6. The circumstances in which the power contained in Rule 52.27 will be exercised were considered in Government of the United States of America v Bowen [2015] EWHC 1873 (Admin) in a supplementary judgment dealing with that issue which was handed down on 11 September 2015.
7. The rule itself provides:

"Reopening the determination of an appeal.

50.27. — (1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.

(2) Such a party must —

(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and

(b) serve the application on the High Court officer and every other party.

(3) The application must —

(a) specify the decision which the applicant wants the court to reopen; and

(b) give reasons why —

(i) it is necessary for the court to reopen that decision in order to avoid real injustice,

(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and

(iii) there is no alternative effective remedy.

(4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations."

8. In Bowen this court set out its conclusions on the applicability of the rule between paragraphs 6 and 9. In granting interim relief Supperstone J observed that consideration should be given to whether the rule applies at all to a case in which permission to appeal is refused for want of jurisdiction because the application is out of time.
9. Mr Yeo who appears on behalf of the respondent has not sought to argue that the terms of Rule 50.27 do not apply to a refusal of permission of these grounds. His helpful written submissions and supplementary note deal with the point.
10. In my judgment he was right not to press that point. That is because, using the language of rule 50.27 itself, the order of Nicola Davies J determined the appellant's application for permission to appeal. The refusal of permission thus potentially came within the scope of the rule.
11. Nonetheless, despite there being jurisdiction to entertain this application, in my judgment it is misconceived for a number of reasons:
12. First, by virtue of rule 50.27(b)(iii) an application can prosper only "if there is no alternative effective remedy."
13. Nicola Davies J refused permission to appeal without an oral hearing. Criminal Procedure Rule 50.22 enables an appellant to renew an application for permission to appeal which has been refused on the papers. There is a time limit of 5 days for lodging the renewal notice but that may be extended in appropriate circumstances by virtue of Rule 50.17.
14. Ms O'Raghallaigh submits that the language of Rule 50.22 applies only to circumstances in which the judge has refused permission on the merits as opposed to refusing permission because of difficulties relating to time. She draws a distinction between the language in Rule 50.22, "refuses permission" and the language in 50.27 "determines an application for permission to appeal."
15. In my judgment the difference in language does not bear the weight that Ms O'Raghallaigh submits it should. It is plain that Rule 50.22 enables an appellant to renew his application should it be refused on the papers. That is a common feature in both the criminal and civil jurisdiction. This appellant's application for permission to appeal was refused. To my mind Rule 50.22 thus provides an effective remedy and should have been used in this case were the appellant dissatisfied with the determination of his application by Nicola Davies J.
16. In my judgment the use of Rule 50.27 is inapt for the purpose of questioning a refusal of permission to appeal on paper. The appropriate remedy is an application for oral renewal with an application to extend time if necessary.
17. We indicated to Ms O'Raghallaigh in the course of argument that we would treat the application this morning as an application to renew dispensing with all formalities to enable us to do so.
18. Secondly, in my judgment there is no basis in this case upon which it can be said that the application for permission to appeal needs to be reopened to avoid "real injustice."
19. Ms O'Raghallaigh submits that for the purpose of her application on behalf of the appellant she does not need to deal with the underlying merits of the appeal. The injustice which has occurred in this case is a "procedural injustice". The reasons for delay were not explained in the material lodged with the original application when they should have been. The injustice flows from that because reasons existed which could have been considered by the judge. As she put it in her skeleton argument:

"Unless the decision [...] is reopened and the application for permission to appeal out of time reconsidered, the procedural injustice will result in the appellant being removed from the United Kingdom without the merits of his case being considered and solely because the solicitors did not know how to properly lodge an appeal."

20. That hints at the underlying reason for the lateness in serving the appellant's notice to which I shall return.
21. I do not accept the distinction drawn between a procedural injustice and a substantive injustice. The purpose of Rule 50.27 is to provide a remedy in exceptional circumstances to avoid real injustice when an appeal has been wrongly determined against a party, or an application for permission to appeal has been refused when it should not have been. In summarising the matter in this way I intend no gloss on the principles enunciated in Bowen (supra).
22. For the purposes of the rule, there can be no injustice in refusing an application for permission to appeal for whatever reason when the underlying appeal would have no prospect of success. In my judgment that is the position here.
23. In the course of her submissions, Ms O'Raghallaigh candidly accepted that, were the substance of the grounds of appeal to be considered, this would not be an appropriate case for permission to be granted. The underlying decision of the District Judge was not arguably wrong. In those circumstances, it is unnecessary to travel into the detail of the case. It is sufficient to say that the appellant was sought by Poland on an accusation European Arrest Warrant for serious offences of people trafficking, for which the maximum sentence in Poland is 15 years. He resisted extradition on the grounds of Article 8 of the European Convention on Human Rights, in particular resting upon the health condition of his adult son.
24. The District Judge directed himself meticulously by reference to the relevant authorities. His conclusion that extradition would not be disproportionate in Article 8 terms was plainly right.
25. Thirdly, the information placed before us does not demonstrate that, for the purposes of section 26(5) of the 2003 Act, the appellant:

"Did everything reasonably possible to ensure that the notice was given as soon as it could be given."

26. In considering that question no distinction is drawn between an appellant personally and his advisers. The point was considered in detail in Szegfu(supra) and the court's determination of that matter is found between paragraphs 15 and 17.
27. The decision of the court was based on the construction of the statute. The information before us suggests that for a variety of reasons the solicitors who acted for the appellant before the District Judge failed to give notice in time as required by the rules. They eventually got themselves organised and did so about a week late.
28. Even had that information been before Nicola Davies J, she would have been obliged to refuse permission for want of compliance with section 26(5).
29. In the course of her submissions, Ms O'Raghallaigh pointed to the hardship that this construction can visit upon an appellant who has been personally faultless in his conduct following the Extradition Order in the Magistrates' Court.
30. Ms O'Raghallaigh's submission was that Rule 50.27 can operate to mitigate the hardship which may result from the application of the primary statutory provision. That might be thought to be a bold submission. A rule of court cannot cut down the ambit of a statutory provision found in primary legislation. Rule 50.27 does not operate to bypass the statutory time limit for giving notice of appeal and the terms of section 26(5), as interpreted in Szegfu(supra).
31. For these reasons, I would dismiss the application to reopen the permission stage. I indicated that we would treat these proceedings as a renewed application for permission to appeal pursuant to Rule 50.22. Having concluded both that the circumstances are not such as would enable the court to overlook the delay and also that the underlying appeal has no merit, I would refuse the renewed application.
32. MR JUSTICE HICKINBOTTOM: I agree.
33. LORD JUSTICE BURNETT: Ms O'Raghallaigh, Mr Yeo, thank you very much indeed for your help.