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
		19/01/2017

Lord Justice Burnett and Mr Justice Nicol:

1. The issue which arises in this application by the Appellant is whether his extradition to Latvia, ordered by District Judge Goldspring on 20^th November 2015 and upheld by this court following his unsuccessful appeal, should be delayed to await the outcome of an appeal to the Crown Court by the Appellant against a recent conviction in the Magistrates' Court.
2. The Latvian authorities seek the extradition of the Appellant in order to prosecute him for four offences of theft. The Appellant's appeal against the order for extradition was dismissed by a Divisional Court (Burnett LJ and Cranston J.) on 14^th April 2016 – Auzins v Latvia (No.1) [2016] EWHC 802 (Admin). The Appellant applied to the Court to certify a point of law of general public importance and for permission to appeal to the Supreme Court. On 7^th June 2016 the Court refused to certify a point of law. Since certification is a necessary condition for permission to appeal (Extradition Act 2003 ('EA') s.32(4)) it followed that the Appellant's application for permission to appeal failed as well. Since it is only this Court which can certify a point of law of general public importance, it also followed that there could be no further application for permission to appeal to the Supreme Court itself. Put shortly, the order of this Court dismissing the appeal (and therefore the extradition order as well) became final on 7^th June 2016, see EA s.36(5)(b).
3. The Appellant had to be extradited to Latvia before the end of the 'required period', see EA s.36(2). The 'required period' is 10 days (EA s.36(3)(a)). Normally the required period would have run from the 7^th June 2016. However, it will be postponed if an order is made under EA s.36B, see EA s.36(3A).
4. Section 36B^[1] provides,

'(1) This section applies if –

(a) an order has been made for the extradition of the person in respect of whom the Part 1 warrant is issued, and

(b) before the extradition order is carried out the appropriate judge is informed that the person is charged with an offence in the United Kingdom.

(2) The appropriate judge must order the extradition order not to be carried out until one of these occurs –

(a) the charge is disposed of;

(b) the charge is withdrawn;

(c) proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.

(3) If a sentence of imprisonment or another form of detention is imposed in respect of the offence charged, the appropriate judge may order the extradition order not to be carried out until the person is released from detention pursuant to the sentence (whether on licence or otherwise). …'

5. The 'appropriate judge' in England and Wales is ordinarily a District Judge (Magistrates' Courts) designated by the Lord Chief Justice, see EA s.67(1). However s.36B(4) authorises rules of court to provide that, where there is an appeal against the extradition order, a reference to the 'appropriate judge' has effect as if it were a reference to the Court hearing the appeal. The Criminal Procedure Rules 2015 so provide, see r.50.23(3)(b). Thus for present purposes the High Court is the 'appropriate court'.
6. The Appellant's representatives informed the Court, as soon as they were told that a point of law would not be certified, that the Appellant faced charges of going equipped for theft contrary to s.25 of the Theft Act 1968 and of possession of cannabis contrary to s.5 of the Misuse of Drugs Act 1971. The offences were allegedly committed on 17^th April 2016 (which, Mr Summers, QC on behalf of the Respondent observes, was 3 days after his appeal to this Court had been dismissed).
7. A hearing of these two charges took place in the Hastings Magistrates' Court on 8^th June 2016. The Appellant pleaded guilty to the cannabis charge. He was fined and ordered to pay costs. He pleaded not guilty to the charge of going equipped for theft and that charge was set down for trial on 15^th July 2016 in the Hastings Magistrates' Court.
8. The matter was referred to Ouseley J. who ordered that extradition was not to be carried out until the remaining charge was disposed of, withdrawn, proceedings in respect of it were discontinued, or it was ordered to lie on the file. The CPS was directed to notify the Court when any of those steps occurred and if the Appellant was sentenced to imprisonment. The Judge commented that this postponement of extradition was required by the EA. If he was sentenced to prison, then the Court may make a further order that he not be extradited until he was released from prison.
9. It seems that the trial was delayed. It took place on 13^th September 2016. The Appellant was convicted of going equipped for theft. He was made subject to a community order for 3 months and subjected to a curfew requirement. He was ordered to pay costs.
10. Shortly after this the Appellant appealed against his conviction to the Crown Court sitting at Lewes. The Notice of Appeal was lodged in time. Permission to appeal is not required. His representatives notified this Court of the fact and argued that his criminal proceedings had not been 'disposed of' and accordingly his extradition should be further postponed pursuant to EA s.36B and the order of Ouseley J.
11. On 21^st September 2016 the matter was considered by Cranston J. He directed that the question as to whether the Appellant's extradition was to be postponed by his appeal to the Crown Court should be set down for a hearing. The Appellant was not to be removed pending further order. On 7^th October 2016 the matter came before Mitting J. However, he decided that it should be re-listed before a Divisional Court. That is how the issue comes before us.
12. In short the issue is whether a charge is 'disposed of' for the purposes of the EA when it has led to a conviction in a magistrates' court, but there is an outstanding appeal against conviction.
13. In this case the Appellant has exercised his right to appeal to the Crown Court pursuant to the Magistrates' Courts Act 1980 s.108. If he considered that the magistrates had erred in law, he could, alternatively, have asked them to state a case and then appealed by way of case stated to the High Court, see the Magistrates' Courts Act 1980 s.111. Mr Robertson QC, on the Appellant's behalf, accepts that the same principles apply in deciding whether extradition must be postponed pending such an appeal against conviction by case stated.
14. The issue arises in the immediate context of this case because the phrase 'disposed of' is used in s.36B. That is the applicable section where the appropriate judge is only notified of the domestic criminal proceedings after the extradition order has been made and in the context of extradition to a category 1 territory. However, if the Court is informed of the domestic proceedings after extradition has been ordered to a category 2 territory the governing provision (EA s.118C) also says that extradition must be delayed until the domestic proceedings are 'disposed of'. The same expression is repeated in other provisions of the Act which apply if the court is given this information before the formal extradition hearing begins (see EA s.8A for a category 1 territory and s. 76A for a category 2 territory) or if the information is given to the Court in the course of the extradition hearing (see EA s.22 for a category 1 territory and s.97 for a category 2 territory). Plainly, the term 'disposed of' must be construed consistently in all six contexts.
15. The EA itself contains a definition of the term 'disposal of charge' in s.214. This is central to the issue we must address. It says,

'(1) A charge against a person is disposed of –

(a) if the person is acquitted in respect of it, when he is acquitted;

(b) if the person is convicted in respect of it, when there is no further possibility of an appeal against the conviction.

(2) There is no further possibility of an appeal against a conviction –

(a) when the period permitted for giving notice of application for leave to appeal to the Court of Appeal against the conviction ends, if the leave of the Court of Appeal is required and no such notice is given before the end of that period;

(b) when the Court of Appeal refuses leave to appeal against the conviction, if the leave of the Court of Appeal is required and notice of application for leave is given before the end of that period;

(c) when the period permitted for giving notice of appeal to the Court of Appeal against the conviction ends, if notice is not given before the end of that period;

(d) when the decision of the Court of Appeal on an appeal becomes final, if there is no appeal to the Supreme Court against that decision;

(e) when the decision of the Supreme Court on an appeal is made, if there is such an appeal.

(3) The decision of the Court of Appeal on an appeal becomes final –

(a) when the period permitted for applying to the Court of Appeal for leave to appeal to the Supreme Court ends, if there is no such application;

(b) when the period permitted for applying to the Supreme Court for leave to appeal to it ends, if the Court of Appeal refuses leave to appeal and there is no application to the Supreme Court for leave to appeal;

(c) when the Supreme Court refuses leave to appeal to it;

(d) at the end of the permitted period, which is 28 days starting with the day on which leave to appeal to the Supreme Court is granted, if no such appeal is brought before the end of that period.

(4) These must be ignored for the purposes of subsections (2) and (3) –

(a) any power of a court to extend the period permitted for giving notice of appeal or of application for leave to appeal or for applying for leave to appeal;

(b) any power of a court to grant leave to take a step out of time.

(5) Subsections (2) to (4) do not apply to Scotland.'

16. The term 'Court of Appeal' for these purposes means the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, see Schedule 1 to the Interpretation Act 1978.
17. For the Latvian Judicial Authority, Mr Summers argued that the prosecution of the Appellant for going equipped had been disposed of with his conviction in the Magistrates' Court. Section 214(1)(b) provided that a charge was disposed of if the person was convicted of it. The additional words 'when there is no further possibility of an appeal against conviction' were (other than in Scotland) exhaustively defined by s.214(2)-(4). It was clear that those subsections contemplated an appeal to the Court of Appeal and, possibly, onwards to the Supreme Court, but they did not include an appeal from a Magistrates' Court either to the Crown Court under the Magistrates Courts Act 1980 ss.108-110 or by way of Case Stated to the High Court pursuant to Magistrates Courts Act 1980 ss.111-112.
18. Mr Robertson argues that the criminal proceedings on the Theft Act charge will not be 'disposed of' until the appeal process has been exhausted. In accordance with EA s.214(1) the charge is not 'disposed of' until there is no further possibility of an appeal against conviction. He argues that subsections 214(2) and (3) are dealing with the specific situation of appeals after conviction on indictment. Section 214(2) does not purport to be an exhaustive definition of the phrase 'there is no further possibility of an appeal against a conviction'. He argues that it would be wrong to treat it as such.
19. He comments that the previous extradition legislation adopted a consistent stance that priority should be given to domestic criminal proceedings before extradition was effected. Thus the Extradition Act 1870 s.3(3) provided,

'A fugitive criminal who has been accused of some offence within English jurisdiction not being the offence for which his surrender is asked, or is undergoing sentence under any conviction in the United Kingdom, shall not be surrendered until after he has been discharged, whether by acquittal or on expiration of his sentence or otherwise.'

The Fugitive Offenders Act 1967 s.9(2) said,

'An order shall not be made under this section in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence in the United Kingdom –

(a) in the case of a person serving such a sentence, until the sentence has been served;

(b) in the case of a person charged with an offence, until the charge is disposed of or withdrawn and, if it results in a sentence of imprisonment (not being a suspended sentence), until the sentence has been served.'

The Extradition Act 1989 s. 12(3) and (4) provided,

'(3) An order for return shall not be made in the case of a person who is serving a sentence of imprisonment or detention, or is charged with an offence, in the United Kingdom –

(a) in the case of a person serving such a sentence, until the sentence has been served;

(b) in the case of a person charged with an offence, until the charge is disposed of or withdrawn or unless an order is made for it to lie on the file and, if it results in his serving a term of imprisonment or detention, until the sentence has been served.

(4) In the application of this section to Scotland, the reference in subsection (3) above to an order being made for the charge to lie on the file shall be construed as a reference to the diet being deserted pro loco et tempore.'

20. So far as counsel have been able to discover, these provisions have only been considered on one occasion. In Oskar v Government of the Commonwealth of Australia [1988] AC 366 the House of Lords was considering the Fugitive Offenders Act 1967. The House agreed with the Divisional Court that where a count on an indictment had been left to lie on the file, not to be proceeded with without the leave of the Crown Court or the Court of Appeal (Criminal Division), the criminal proceedings had not been 'disposed of'. As can be seen, Parliament addressed this particular issue shortly afterwards. The Extradition Act 1989 s.12(3) specifically extended the meaning of the phrase 'disposed of' to cover cases where a charge was left to lie on the file. It was, Mr Robertson submitted, obvious that under this earlier legislation a charge would not be 'disposed of' until any appeal against conviction had been determined. Had Parliament intended to change the law so that, in the case of offences tried summarily in England and Wales, an appeal against conviction was no longer to lead to the deferral of extradition, it would have signalled its intention more clearly than by adopting a definition section such as s.214.
21. If, as Latvia contended, an appeal against summary conviction did not postpone extradition, it would, Mr Robertson submitted, lead to anomalies. Many offences were triable either summarily or on indictment. Indeed, that is the case with the offence of going equipped to steal (with which Mr Auzins had been charged), see the Magistrates Courts Act 1980 s.17(1) and Schedule 1 paragraph 28. It was difficult to see why rationally there should be a postponement of extradition pending an appeal after a conviction if the defendant had elected to be tried in the Crown Court, but no such postponement if he had elected for trial in the Magistrates' Court and the magistrates did not choose to send the case to the Crown Court.
22. A further anomaly which was explored in the course of the hearing concerns Scotland. The EA applies throughout the United Kingdom (although with some variations in the different jurisdictions). As can be seen, subsections (2)-(4) of s.214 do not apply in Scotland. Section 214(1) does. After the hearing the parties provided us with an Agreed Note on Scottish Criminal Summary Appeal Procedure. As we understand from this, the trial of criminal proceedings in Scotland can take place (a) before the High Court of Justiciary for the most serious offences; (b) in the Sheriff Court under the solemn procedure before a Sheriff and jury, when the maximum penalty is 5 years' imprisonment and an unlimited financial penalty; (c) in the Sheriff Court under the summary procedure where the maximum is 12 months' imprisonment or a financial penalty of £10,000; (d) in a Justice of the Peace Court where the maximum is 60 days' imprisonment and a financial penalty of £2,500. There are various routes of appeal which were substantially revised in 2015. Mr Robertson submitted that if Scottish criminal proceedings result in a conviction, s.214(1)(b) means that the charge will not be disposed of until 'there is no further possibility of appeal'. In other words, the Requested Person would not be extradited until the conclusion of any appeal against the decision of a trial court in Scotland. On the other hand, if Latvia's contentions are correct, the Appellant may be extradited even though he has an outstanding appeal against conviction against the decision of a Magistrates' Court in England. There is, Mr Robertson submitted, no rational reason for this difference. It is, he argues, absurd that his position now should be different because the offence for which Mr Auzins has been convicted took place in Sussex rather than Glasgow.
23. Mr Robertson also argued that, if Parliament had intended section 214(2) to contain an exhaustive definition for England and Wales (and Northern Ireland) of when the possibility of an appeal remained, the subsection would have opened with words such as 'There is no further possibility of an appeal against a conviction if and only if'.' Indeed, the EA uses precisely that phrase elsewhere in the Act, see ss.12, 12A(1), 14, 17, 18, 19A(1).
24. Mr Robertson argued that s.214(2) dealt discretely with appeals against conviction on indictment because, after such a conviction no charge subsisted. The position, he submitted was different following a conviction in a Magistrates' Court which was appealed to the Crown Court. In that case, the charge did subsist as shown by the fact that the Crown Court could not amend the information on which the defendant had been prosecuted, see Garfield v Maddocks [1974] QB 7 Div Court. The difference between conviction following summary trial and trial on indictment was shown also by the different procedures in the event that the appellate court decided that the conviction could not be sustained, had to be quashed, but the appellant should be retried. The Crown Court could remit the matter to the Magistrates' Court, see Senior Courts Act 1981 s.48(2)(b). The Court of Appeal, however, can order a retrial but only on a fresh indictment, see Criminal Appeal Act 1968 ss.7 and 8.
25. Moreover, he argued, since the appeal to the Crown Court was by way of re-hearing (Senior Courts Act 1981 s.79(3)), the Appellant had a common law right to be present and to give evidence at the appeal. That right could only be taken away by clear words in the legislation and s.214 did not have that clarity.
26. Furthermore, Mr Robertson submitted, if the Appellant was extradited now and was not permitted to be present at his appeal, his rights under Article 6 of the European Convention on Human Rights ('ECHR') would be violated. Article 6 did not confer a right of appeal. However, if domestic law gave such a right which included a power to determine issues of fact as well as of law, the defendant had a right to be present and to be heard, see Ekbatani v Sweden (1991) 13 EHRR 504 [32]-[33].
27. We recognise the strength of these arguments but they have not persuaded us that Mr Robertson's interpretation is correct. We have concluded that Parliament's intention in s.214(2) was to provide an exhaustive definition of when there is a 'further possibility of appeal against conviction' in England and Wales. That exhaustive or closed definition does not include any form of appeal from or challenge to a conviction in a Magistrates' Court.
28. Although Oskar v Government of the Commonwealth of Australia [1988] AC 366 does not help decide the matter, we shall assume in the Appellant's favour that the earlier legislation would have required extradition to be postponed until domestic criminal proceedings had been concluded and that summary proceedings would not have been concluded until any appeal against conviction (including an appeal against conviction in a Magistrates' Court) was finally determined. However, the Extradition Act 2003 represented a major revision of the law. Parliament clearly intended to make radical changes to the existing law in many ways. In those circumstances, it does not take the Appellant very far to say that, on Latvia's interpretation, Parliament has also made a major change in this respect. Parliament very clearly intended to make changes in the ways in which domestic criminal proceedings impacted on extradition. In the past, as the legislation cited by Mr Robertson shows, extradition had to be postponed until any domestic custodial sentence had been served, see Extradition Act 1870 s.3(3), Fugitive Offenders Act 1967 s.9(2)(a) and Extradition Act 1989 s.12(3)(a). Those mandatory requirements have been replaced by a statutory discretion, see EA s.22(3), 23(2) and other equivalent provisions.
29. Another feature of the EA was to introduce great precision in the order in which matters were to progress at the initial hearing and the extradition hearing in the appropriate court (effectively Westminster Magistrates' Court in England and Wales); and to stipulate (again with precision) the course that was to be followed if, in the case of a Part 1 territory, extradition was ordered or, in the case of a Part 2 territory, the case was sent to the Secretary of State. If the Requested Person is not extradited before the end of the required period and reasonable cause for the delay cannot be shown, he is entitled to be discharged, see for Part 1 s.36(8) and s.36A(8) and for Part 2 territories ss.118(7) and 118A(8). The emphasis on trying to achieve certainty is manifest.
30. That ambition is clear from s.214 itself, especially s.214(2) and (3). Section 214(4) spells out that out of time notices of appeal and the power of a court to extend time for taking any step are to be disregarded. If s.214(2) is not an exhaustive definition of what constitutes 'further possibility of an appeal against conviction' and an appeal against conviction to the Crown Court is included, it is hard to see why (as Mr Robertson accepted) an appeal by case stated to the High Court should not also fall within that rubric. And if a case is not 'disposed of'' while there is an outstanding appeal by case stated from a Magistrates' Court, there is no logical reason why an appeal by case stated from a Crown Court hearing an appeal from a Magistrates' Court pursuant to the Senior Courts Act 1981 s.28 should not also be embraced. From the High Court there can be a yet further appeal to the Supreme Court. That, too, would on the Appellant's interpretation further defer the 'disposal of the charge'.
31. If Mr Robertson is correct, Parliament has chosen to remain silent as to when each of these stages shall be treated as bringing the charge to an end. We consider that to be unlikely and inconsistent with the pains it took to spell out all of the possibilities in the context of an appeal from a conviction on indictment.
32. Furthermore, as we have noted, s.214(4) says that one must ignore the possibility of a court extending time for any step. However, this is for the purpose of subsections (2) and (3) only. Subsection (1) is not mentioned. It is subsection (1) which Mr Robertson submits is the governing provision in this case. Mr Auzins did appeal in time to the Crown Court. Another requested person might not do so. Is his extradition to be deferred if he lodges an out of time appeal to the Crown Court the day before he is due to be surrendered? If this, or any Appellant, were dissatisfied with the Crown Court's decision and wished it to state a case for the High Court he would have 21 days to do so, see Criminal Procedure Rules r.35.2(1)(a), but if he is late, he can apply for an extension of time, see r.35.2(2)(d)(i). Is his extradition to be further deferred pending determination of that application?
33. The consequences of Mr Robertson's argument do not stop there. A further means by which a Magistrates' Court's conviction can be challenged in some circumstances is by an application for judicial review. Would such an application necessarily defer extradition? Mr Robertson said it would not because that would not be an 'appeal against conviction'. Yet it would be curious if the deferral of extradition should depend on whether the Requested Person has used judicial review rather than case stated to test the legality of the magistrates' conviction. A Magistrates' Court may also refuse to state a case. The refusal may itself be challenged by judicial review. Is this to be regarded as part of an 'appeal against conviction' and so requiring the Requested Person's extradition to be postponed or is it to be categorised as something other than an appeal? These anomalies reinforce our view that Parliament intended a closed definition of what constituted the possibility of an appeal against conviction in this jurisdiction and to prescribe in a tight fashion precisely when it should be regarded as having come to an end.
34. We recognise that this approach also entails anomalies. Mr Robertson is correct that it leaves the position in Scotland different from that in England and Wales. Scottish criminal procedure is different. Importantly, there is no appeal to the Supreme Court against conviction in Scotland and so much of the purpose of subsections (2) and (3) could have no application. We have already identified the different means by which an offence can be tried. There are a variety of routes of appeal. At the hearing before us, Mr Summers submitted that the explanation for the different treatment for Scotland may have been that an appeal against conviction, in whatever court it occurs, can only be brought with leave. The parties' Agreed Note shows that appeals against conviction or rulings in the criminal courts can be brought only with permission. There is one form of appeal (appeal by suspension or advocation on ground of miscarriage of justice) that does not include a positive requirement of leave but if no reasonable grounds are demonstrated the High Court has power to bring the matter to a premature end.
35. We recognise that, even with these more extensive filters in Scotland than in the rest of the United Kingdom of Great Britain and Northern Ireland, it remains the case that Parliament has not adopted an equivalent precise timetable for determining when there is no possibility of an appeal against conviction in Scotland. Section 214(5) represents a clear Parliamentary choice to make different provision for Scotland.
36. That said, this is not the only context in which Parliament made such a choice. Section 213 defines when a Part 1 warrant and extradition request are to be regarded as 'disposed of'. Section 213(1) determines when a Part 1 warrant is disposed of. It includes by s.213(1)(c) 'when an order is made for the person's extradition … and there is no further possibility of an appeal.' Likewise, by s.213(2) a request for a person's extradition is disposed of '…(c) when an order is made for the person's extradition in pursuance of the request and there is no further possibility of an appeal.' Section 213(3) then provides three situations in which 'There is no further possibility of an appeal against an order for a person's discharge or extradition…' The three possibilities are then elaborated in subsections (3A) to (4). Section 213(5), like s.214(4), says that the power of the court to extend time must be ignored. Finally, s.213(6) provides 'Subsections (3) to (5) do not apply to Scotland.'
37. Thus s.213 and s.214 follow a common format. Both include initial provisions which apply throughout the United Kingdom. These are followed by elaborations which, by the final subsection, are to apply only to England, Wales and Northern Ireland. Both therefore show a clear intention that, in these respects, the system in Scotland is distinct. There are other features of the regime in Scotland which are different. Section 36, for instance, provides for the timing of extradition to a Part 1 territory from England, Wales and Northern Ireland. Section 36A makes corresponding provisions where extradition is from Scotland to a Part 1 territory. Provision is made for different procedural steps in the different jurisdictions. In addition, the 'required period' in England, Wales and Northern Ireland is 10 days after the final court decision – see s.36(3)(a): in Scotland it is 28 days, see s. 36A(3). Parliament can make such choices. We are unpersuaded that the differences between the position in Scotland and the rest of the United Kingdom provide support for the argument advanced by Mr Robertson.
38. Mr Robertson is also entitled to observe that it is anomalous that a person's appeal from a conviction on indictment should postpone extradition, but an appeal from a summary conviction should not, particularly when the offence in question is triable either way. Broadly speaking, though, the more serious offences are tried in the Crown Court. Subject to a defendant's right to elect jury trial, this is because either they are only triable on indictment or because magistrates decline to try them summarily, see Crime and Disorder Act 1998 s.51. By contrast, cases are tried summarily either because they are sufficiently minor that that is the only way in which they can be tried or because they are triable either way and the magistrates conclude that summary trial is appropriate and the defendant does not elect trial in the Crown Court. Whilst recognising the anomaly identified by Mr Robertson, we do not consider that it amounts to an absurdity. Parliament has drawn a distinction between offences triable on indictment (where extradition must await any appeal against conviction) and offences tried summarily (where postponement pending an appeal against conviction does not occur).
39. Mr Robertson is right to observe that, on occasions, Parliament did make quite clear that it was establishing a closed list by using words such as 'if and only if'. However, it has done so in the EA exclusively in the context of explaining the different bars to extradition. Elsewhere, it has defined an expression without such additional words, but where it is nevertheless clear that the definition is intended to be exhaustive. A good example is s.213(2). Although Parliament did not say so expressly, it is clear that 'there is no further possibility of an appeal against an order for a person's discharge or extradition' only if one of the circumstances set out in the three following paragraphs arises.
40. We can take together Mr Robertson's argument that Mr Summers' interpretation would deprive the Appellant of his common law right to attend the hearing of his appeal and of his rights under Article 6 of the ECHR. We did not find these arguments compelling. In the first place, as Mr Summers submitted, we do not yet know what allowance the Crown Court may make for the Appellant's absence from the United Kingdom. One of the matters canvassed at the hearing before us was whether the Appellant would be able to give evidence on his appeal via video link. Mr Robertson submitted that this was unlikely to be a practicable possibility, although there was not the evidence one way or the other on this issue. There may be a more formidable obstacle in the restrictive terms of the Youth Justice and Criminal Evidence Act 1999, s.33A which allows a defendant to give evidence via live link only in restricted circumstances, none of which obviously applies to the Appellant. However, there may be other ways in which the Appellant's absence abroad can be accommodated, possibly by adducing his evidence in writing or possibly by adjourning the hearing of the appeal. In short, Mr Summers argued, these objections are premature and directed to the wrong court. If the Appellant's conviction is upheld after proceedings which, taken as a whole, have been unfair, he will have the right to challenge the conviction on those grounds. We agree.
41. The second reason why we do not accept Mr Robertson's arguments based on Article 6 is that it depends on the particular feature of an appeal to the Crown Court from a Magistrates' Court conviction, namely that it is an appeal by way of a complete re-hearing. Yet, Mr Robertson accepted that his argument has to apply equally to an appeal by case stated from a magistrate's court to the High Court. Such an appeal can be, and often is, pursued by a lawyer on the appellant's behalf and in his absence. So, too, is an appeal against conviction to the Court of Appeal Criminal Division. So Mr Robertson's position has the consequence that Parliament has specifically catered for a type of appeal where the litigant's presence is not essential, but overlooked another type of appeal where it is (or may be) and, in so doing, has also catered for another type of appeal where again the appellant's presence is not essential. This is not a firm foundation for the interpretation which Mr Robertson advances.
42. As Mr Robertson recognised, his interpretation begs the question why Parliament should have given only a partial definition of the phrase 'no further possibility of an appeal against conviction'. We do not accept the answer which he gave, namely that a charge in a Magistrates' Court survived conviction, but an indictment did not survive conviction in the Crown Court.
43. As Mr Robertson rightly said, on an appeal to the Crown Court following conviction in a magistrates' court, the prosecution cannot amend the information on which the defendant was tried, see Garfield v Maddocks [1974] QB 7. However, far from this case establishing the difference between the trial of an information and trial on indictment, it shows the opposite. Lord Widgery CJ referred to Meek v Powell [1952] 1 KB 164. The defendant in that case had been charged by mistake under a previous and repealed statute instead of the current statute. An issue arose as to whether the information could have been amended at the hearing of an appeal to quarter sessions. Lord Widgery commented in Garfield v Maddocks at p. 12F

'Both Lord Goddard CJ and Byrne J. make it quite clear that the concept of amending the proceedings in an appellate court is something which is foreign to our general system.'

He quoted from the judgment of Byrne J. in Meek v Powell and then continued at 13B,

'Lord Goddard CJ, taking the same view, pertinently points out, if one may say so, that where after a trial on indictment the matter is appealed to what was then the Court of Criminal Appeal, there was no power in the Court of Criminal Appeal to amend the indictment. The appeal was against the indictment as laid and relied upon in the court of trial, and there was no power, and indeed today there is no power in the Court of Appeal Criminal Division to amend the original indictment.'

44. Now that the single test for an appeal to the Court of Appeal Criminal Division is whether the conviction was 'safe', see Criminal Appeal Act 1968 s.2, a rather more robust approach may be taken to such technical slips. See, for instance, R v Stocker [2014] 1 Cr App R 18. But that does not affect the proposition in Garfield v Maddocks that there is no difference between a court hearing an appeal from conviction on indictment and a court hearing an appeal from a summary conviction as regards the power to amend the charge. Mr Robertson was, in effect, seeking to extend the common law notion that a civil cause of action merges in the judgment, but there is, so far as we are aware, no authority for the extension of that doctrine to the criminal sphere. Nor do we accept that any such difference could explain why, in the EA s.214, Parliament considered it necessary to spell out what was meant by the phrase 'no further possibility of an appeal' as regards an appeal to the Court of Appeal and onwards to the Supreme Court, but regarded appeal from a summary conviction as also included in the phrase without the need for further elaboration.
45. The Framework Decision (Council Framework Decision on the European Arrest Warrant and the surrender procedures between Member States 2002/584/JHA) does not, in our view, assist in the task of interpreting s.214. First, the definition in s.214 applies in cases falling within both Parts 1 and 2 of the EA. Part 2 is not concerned with decisions governed by the Framework Decision. In any event, secondly, Article 24 of the Decision allows (but does not require) a Member State to postpone surrender of a Requested Person so that he can be prosecuted or serve a sentence in the requested state for an offence other than that referred to in the European Arrest Warrant.

Conclusion

46. For all of these reasons we conclude that the charge against the Appellant for handling stolen goods was 'disposed of' by his conviction in the Magistrates' Court. That remains the position notwithstanding his appeal to the Crown Court.

Note 1   EA s.36B was added by the Anti-social Behaviour, Crime and Policing Act 2014 s.161. Erroneously the 2014 Act said that the new section should be labelled ‘s.36A’, but this was subsequently corrected to s.36B.    [Back]