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
		29/07/2016

Mr Justice Irwin :

1. In these two cases both Applicants seek leave to appeal the decisions to order their extradition. The cases were listed for directions on 26 July 2016. In each case it is possible that the outcome of any appeal could be affected by a decision of the Supreme Court. In Wisniewski v Poland [2016] EWHC 386 (Admin), the Divisional Court addressed the linked question of the meaning of the phrase "unlawfully at large" in Section 14(b) of the Extradition Act 2003, the bar to extradition "by reason of - … the passage of time" under Section 11 of the Extradition Act 2003, the definition of "fugitive" in law and the effect of a decision that an appellant is a "fugitive", both in relation to Sections 14 and 11 of the Act and to Article 8 of the European Convention of Human Rights.
2. The Divisional Court in Wisniewski refused permission to appeal to the Supreme Court. However, the Court certified two points of law of general public importance:

"Question 1: Where following conviction in a category one or a category two territory an offender is made subject to a suspended sentence of custody, and that sentence is subsequently activated (for whatever reason) in his absence, at what point in time does the offender become "unlawfully at large" for the purposes of Sections 11(1)(c) and 14(b) or Sections 79(1)(c) and 82(b) of the Extradition Act 2003?

Question 2: Where an offender who has been convicted and made subject to a suspended sentence of custody in a category one or category two territory voluntarily leaves and remains out of that territory, so that he fails or is unable to comply with a condition on which his sentence was suspended, is he precluded on reliance on the passage of time bar in sections 14 and 82 of the Extradition Act 2003 if the sentence is activated?"

3. A further application for permission to appeal was made to the Supreme Court on 23 May 2016, but has yet to be determined. The appeals listed before me, together with three other live appeals which appear to raise the same issues, have so far been administratively stayed pending the resolution of the application for permission in Wisniewski. I am asked to consider whether it is appropriate that the Administrative Court should administratively stay these cases to await a Supreme Court decision or judgment.
4. It has in the past been the practice, for example in those cases likely to be affected by the recent Supreme Court decision in Goluchowski v District Court in Elblag, Poland [2016] UKSC 36, that the time and expense of hearings in relation to stay pending the outcome of the Supreme Court decision have been avoided by administrative decisions to stay the relevant cases, under judicial supervision.
5. Extradition appeals are subject to Part 50 of the Criminal Procedure Rules of October 2015, as amended in April 2016. Crim PR 50.18 specifies:

"(1) The High Court and the parties have the same duties and powers as under Part 3 (Case management)…"

6. Part 3 of the Criminal Procedure Rules gives very wide powers of case management to the High Court, including the following:

"The court's case management powers

3.5.—(1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules.

(2) In particular, the court may?

(a)…

(b) give a direction on its own initiative ….

…

(e) give a direction?

(i) at a hearing, in public or in private, or

(ii) without a hearing;

(f) fix, postpone, bring forward, extend, cancel or adjourn a hearing;

(g) shorten or extend (even after it has expired) a time limit fixed by a direction; "

7. The exercise of the High Court's powers in extradition cases is set down in Crim PR 50.17, the relevant parts of which read:

"50.17.—(1) The general rule is that the High Court must exercise its powers at a hearing in public, but—

….

(c) despite the general rule the court may, without a hearing—

(i) give case management directions...."

8. The powers of case management which I have identified are those of the Court and must be exercised judicially. It is an important principle that listing is a judicial matter. However, it is perfectly proper, where appropriate and convenient, that a judicial direction to stay an identified category of case pending forthcoming appeal should be applied administratively to a clearly identifiable category of case in respect of which the forthcoming appeal will be decisive or determinative. Accordingly, there is in my view no difficulty about the approach which was adopted in relation to the Goluchowski cohort of cases. The question is whether a similar approach can properly be adopted here.
9. So far as I am aware, there is no established authority in relation to this problem arising in extradition appeals. However, the matter has been considered in the analogous field of immigration and asylum cases in the Administrative Court. In AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921, Jackson LJ giving the leading judgment addressed the matter as follows:

"23. Against that background let me first review the rules governing the grant of a stay.

Part 5. The rules governing the grant of a stay

24. In relation to general proceedings at first instance, the court has power to grant a stay under CPR rule 3.1 (2) (f). In relation to judicial review proceedings, the court has power to grant a stay under CPR rule 54.10 (2) (a). In relation to appeals, the court has power under CPR rule 52.7 to stay enforcement of the order which is under appeal.

25. In relation to stays of proceedings, as opposed to stays of enforcement, the judge is making a case management decision. Such decisions will rarely be challenged and even more rarely be reversed on appeal.

26. The judge set out the principles governing the grant of a stay at paragraphs 27-28 of the judgment below as follows:

"27. A stay on proceedings may be associated with the grant of interim relief, but it is essentially different. In determining whether proceedings should be stayed, the concerns of the court itself have to be taken into the balance. Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice. But, on the other hand, it is unlikely to want to waste time and other valuable resources on an exercise that may well be pointless if conducted too soon. If, therefore, the court is shown that there will be, or there is likely to be, some event in the foreseeable future that may have an impact on the way a claim is decided, it may decide to stay proceedings in the claim until after that event. It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown.

28. In cases where a request for a stay on proceedings is coupled, expressly or by necessary implication, with a request for interim relief, the court will need to take into account the factors relevant to both types of decision, and may need to take into account a third: that by securing interim relief and a stay, the applicant may be asking the court to use its powers to give him, for as long as he can secure it, a benefit that he may not obtain at the trial."

27. I agree with what is set out in those paragraphs, but wish to add some further comments in relation to immigration cases.

28. Immigration law has a tendency to develop rapidly, indeed sometimes at bewildering speed. The constant flow of developments arises from the industry of legislators, rule-makers, judges and practitioners. Not only does the law in this area change fast. So also do the political, military, social and economic circumstances in the numerous countries from which asylum seekers or other migrants may come.

29. Both the tribunals and the courts have to keep pace with these constant changes. When a new appellate decision is awaited it is not unusual for parties in pending similar cases to seek a stay of their proceedings.

30. Sometimes it is obviously necessary to grant such a stay, because the anticipated appellate decision will have a critical impact upon the proceedings in hand. There is also, however, a need for realism. In the world of immigration it is a fact of life that the law which the judge applies is liable to change in the future, quite possibly in the near future. This cannot usually be a reason for staying proceedings. I started dealing with immigration cases some fourteen years ago. I cannot remember any occasion during that period when important decisions on one or more aspects of immigration law were not eagerly awaited from the appellate courts.

31. As Pill LJ observed in R (Bahta) v SSHD [2011] EWCA Civ 895 at [70], what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or by Parliament. Likewise country guidance decisions should generally be applied unless and until they are reversed or superseded.

32. In my view the power to stay immigration cases pending a future appellate decision in other litigation is a power which must be exercised cautiously and only when, in the interests of justice, it is necessary to do so. It may be necessary to grant a stay if the impending appellate decision is likely to have a critical impact on the current litigation. If courts or tribunals exercise their power to stay cases too freely, the immigration system (which is already overloaded with work) will become even more clogged up."

10. That approach was endorsed and restated very recently by Cranston J in R (BG) v Secretary of State for the Home Deparment [2016] EWHC 786 (Admin), see in particular paragraphs 82-84. In my view, it is useful guidance readily applied to extradition appeals, a field where developments in the law are also frequent.

Context

11. The particular context in which these cases arise is that it is a common feature of Polish sentencing law (and of some other European jurisdictions) that suspended sentences are passed, often cumulative or aggregated sentences, with the suspensions made subject to conditions. The conditions frequently include residence, reporting to probation authorities, keeping the court and/or probation services aware of current and effective contact details, contributions to the victims of crime, and such like. It can frequently arise that considerable periods elapse between the imposition of the conditional suspended sentence before any action is taken in respect of breach. Once action is taken, it is commonplace for there to be a further hearing at which the Court activates the sentence so to impose an immediate custodial sentence.
12. In the three cases tried together in Wisniewski, the periods between imposition of the conditional suspended sentence and the imposition of an immediate custodial sentence ranged from 15 months (Sapor) to three years five months (Wisniewski). In the case of Mr Czach the period was some three and a half years and in Weszka the period was some two and a half years.
13. Much longer periods than these arise with reasonable frequency.
14. In addition to the considerable periods arising between the original sentence and its activation, it is normal in extradition appeals for further, sometimes lengthy, periods to elapse following the activation of the relevant sentences. In the case of Mr Weszka, his sentence was activated on 10 January 2013 but a further two and a half years elapsed before the issue of the European Arrest Warrant on 25 June 2015. In the case of Mr Czach, he was committed for trial in Poland in relation to three burglary offences which took place in mid-March 2008. He left Poland at some point in 2008. He failed to attend two trials in October and November 2008 and on 17 November 2008 was made subject to a sentence of imprisonment of two years' duration suspended for four years with a condition of the suspension that he pay compensation to the victims. Execution of the sentence was ordered on 17 May 2012 and a domestic arrest warrant issued on 17 September 2012. The European Arrest Warrant was not issued until 11 December 2014.
15. Further periods normally elapse as the EAW is certified and then the individual appellant arrested.

Submissions from Counsel

16. Counsel all emphasised to the Court in the course of submissions that the question whether an appellant is a fugitive is of great importance to the Article 8 balance which must be carried out by the Court following Polish Judicial Authorities v Celinski and Others [2015] EWHC 1274 (Admin), perhaps even more than to the availability of the formal bar under the legislation.
17. Counsel from all sides were agreed that this category of case is not so readily capable of black and white distinction as were the cases in the group which awaited Goluchowski. All submitted that these cases were not suitable for an administrative stay but required individual judicial assessment.
18. Ms Iveson for the Crown Prosecution Service emphasised that a blanket stay on this category of case would cause significant delays in the hearing of appeals given the large number of cases relating to breached suspended sentences.
19. Ms Iveson also submitted that the threshold for proportionality pursuant to Article 8 is lower than the requirement to demonstrate oppression: see Lysiak v Poland [2015] EWHC 3908. Moreover, even where the appellant is a fugitive, there is room to consider the passage of time if it is extreme. For this point she relies on the judgment of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at paragraphs 782/783, where it was said that, at least in "most exceptional circumstances", the Court might consider delay even though the appellant was a fugitive.
20. Ms Hill and Ms Nice submitted that where other issues aside from Article 8 are raised, a case:

"…should not initially be stayed. On refusal of permission or dismissal of appeal on those other grounds, an application to stay may be made. This is to prevent cases being stayed for lengthy periods where the applicant may succeed on, for example, Section 2, Section 10 or Section 25."

Likewise, they argued that where Article 8 grounds are plainly arguable even if the appellant is a fugitive, or plainly unarguable even if he is not a fugitive, the case should not be stayed. Once again the submission was that on refusal of permission or dismissal of appeal an application may, in such a case, be made to stay at that point. By contrast, Ms Nice and Ms Hill submitted that in all other cases where the question whether the appellant is a fugitive "may be determinative" the appeal should be stayed. Moreover, counsel for the Appellants submitted that in cases where the Crown Prosecution Service accepts that the requested person is not a fugitive the case must nevertheless also be stayed. The suggested purpose here is so that there can be certainty as to the relevant period of time which the Court must consider under the statutory bar, since the outcome of the appeal in Wisniewski might be to alter the meaning of the phrase "unlawfully at large".

21. Counsel for the Appellants added that where a requested person was unrepresented at first instance, particular care was needed on the question of a stay since these issues are "law heavy", difficult for an unrepresented party to address and therefore give rise to a greater risk of error.

Conclusions

22. I am grateful to counsel for their submissions and the care with which they have approached this problem. I now set out what I consider to be the best approach.
23. It should be borne in mind that the decision of the Divisional Court in Wisniewski represents an authoritative statement of the law, binding on Courts hearing extradition appeals where these questions arise, unless and until the Supreme Court gives permission for an appeal and then issues conclusions. This judgment addresses the position only up to the point when the Supreme Court refuses permission to appeal or, if permission is granted, until a judgment of the Supreme Court is available.
24. Every case must be dealt with as expeditiously as possible and a case should only be stayed pending an appeal in another case if it is clear that the pending appeal is likely to be decisive or determinative in the instant case. A rigorous approach must be taken to the grant of a stay in this context.
25. I agree with the submissions of counsel that this is not a suitable category of case for "administrative" stay, even under active judicial supervision. There is no bright line criterion as in the cases stayed pending the decision in Goluchowski. Judicial assessment is necessary on a case by case basis. Accordingly, the existing cases must be made subject of judicial assessment as soon as practicable.
26. It will be convenient for the Administrative Court office to indicate that a question of stay may arise for consideration in a given case, and refer the matter to a judge.
27. The question of a stay should then be considered by a judge alongside the application for permission. The question is whether the outcome of any appeal in Wisniewski is likely to be decisive. An appeal might potentially give a different view of the meaning of "unlawfully at large", and/or a different interpretation from that of the Divisional Court as to when a requested person is to be regarded as becoming a fugitive. If such a different outcome is likely to be decisive or determinative in a given case, then it may be appropriate to conclude the interests of justice require a stay. If not, not.
28. In any case where a stay is ordered, it seems to me likely that a judge will adjourn the question of permission. If the outcome of any appeal to the Supreme Court is properly to be regarded as potentially decisive, it would seem unlikely that a judge would be content to grant or withhold permission without knowing the outcome.
29. I am not attracted by the submission that appeals should be progressed on other grounds, leaving open an application to stay if the appeal fails on those grounds. I understand the objective of avoiding delay, particularly where an applicant may be detained but such an approach would add much time and cost. In my view, the better approach is either to proceed or to stay where appropriate.
30. In any case where a judge concludes that a stay is the appropriate course, but where the parties have not made submissions on the point, provision should be made for either party to make representations if they wish to do so. This need not be more than an Order that a case will be stayed unless within a specified period either party makes representations in writing opposing a stay, in which case the stay will be reconsidered.
31. I accept that it is a relevant consideration whether the requested person was unrepresented at first instance, and no doubt judges will bear that in mind.
32. The Administrative Court Office will no doubt wish to keep under review any matters stayed pending such prospective appeal, and on a regular basis report to the judge in charge of the Administrative Court.
33. I will consider the question of stay in these two individual cases separately on paper.