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Cite as: [2017] NIQB 83

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Republic of Poland v Jarocha [2017] NIQB 83 (26 September 2017)

[2017] NIQB 83 Ref: MOR10415

Judgment: approved by the Court for handing down Delivered: 26/09/2017

(subject to editorial corrections)*

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND _________ QUEEN’'S BENCH DIVISION ________
Between:
REPUBLIC OF POLAND
Applicant;
-v- PIOTR JAROCHA
Respondent.
________ Before: Morgan LCJ, Weir LJ and Colton J ________
MORGAN LCJ (delivering the judgment of the court)

This application is concerned with whether this court has jurisdiction to entertain an application for leave to appeal which the applicant wishes to pursue against an Order dated 7 October 2016 for his extradition to Poland. Mr O’'Donoghue QC appeared with Mr Devine for the applicant and Mr McGleenan QC with Ms MacDermott for the respondent. We are grateful to all counsel for their helpful oral and written submissions.

Background

European Arrest Warrants were issued in September 2006 and October 2008 by Poland in respect of the applicant’'s convictions for offences of people trafficking and theft respectively. The theft warrant was certified in this jurisdiction on 26 October 2010 and the applicant was arrested on 13 November 2014. On 19 November 2014 the people trafficking warrant was also certified. The applicant was remanded in custody.

The extradition hearing in respect of the warrants was delayed because of the commission by the applicant of minor offences in this jurisdiction but eventually came on for hearing before Judge Miller who delivered a written judgment making the extradition Orders in respect of both warrants. On 13 October 2016 the solicitors then acting for the applicant served a notice on the Crown Solicitor and the court under the Extradition Act 2003 and headed “"Ex Parte Motion”" as follows:

“"TAKE NOTICE that the Court of Appeal of Northern Ireland will be moved at the Royal Courts of Justice, Chichester Street, Belfast on the 13^th October 2016, or so soon thereafter as the Appellant can be heard, for an Order under section 29(5) of the Extradition Act 2003 that:

1. The Order committing the Appellant for extradition is quashed;

AND TAKE NOTICE that the above named Appellant is remanded in custody on 7^th October 2016 pending the Appeal of this matter.

The Hearing took place before the Appropriate Judge and judgment was delivered on 7^th October 2016. The Appropriate Judge ordered the extradition of the Appellant.

AND FURTHER TAKE NOTICE THAT the grounds of appeal are:

The Applicant wishes to exercise his Statutory right to appeal on fact and law pursuant to section 26 of the 2003 Act”"

There then followed grounds based on abuse of process, delay and breach of Article 8 rights. The notice finally stated that the appellant relied on “"his statutory right of appeal on law and fact pursuant to section 26 of the 2003 Act”" and wished to exercise that with the benefit of legal assistance.

The body of the notice was entitled to be between the applicant as appellant and Poland as respondent. A reference number in relation to the first extradition hearing was contained in the upper right-hand corner of the first page but the body of the reasons for appeal referred specifically to the second extradition warrant. The papers subsequently disclosed contained a skeleton argument from junior counsel then instructed dated 13 October 2016 entitled ""Skeleton argument: Application for leave to appeal"" but it appears that this was neither served on the proposed respondent nor filed with the court.

On 14 October 2016 the respondent replied to service of the appeal document pointing out that the appeal had been incorrectly brought and that the application should be for leave to appeal. The case was reviewed before the High Court on 21 October 2016. New counsel was instructed for the applicant and the court ordered that the applicant''s counsel file a skeleton argument by 28 October 2016. No argument was filed but on 28 October 2016 new solicitors, instructed on that date, sought leave to extend time to 7 November 2016 for a skeleton argument to be lodged. During that time the new solicitors were seeking the original papers from the former solicitors but were not successful in obtaining those until 15 November 2016.

On 17 November 2016 the new solicitors lodged ex parte motions in respect of each extradition order. Unfortunately, neither notice sought leave to appeal but each seems largely to have replicated what was in the earlier notice although there is an application to extend the time-limit prescribed by the Rules on the grounds that it is in the interests of justice to do so. As with the earlier notice reference was again made to the Court of Appeal although it is to the High Court to which the right of appeal is given.

The statutory history

As originally drafted the Extradition Act 2003 (""the 2003 Act"") provided in section 26 for a right of appeal to the High Court against the making of an extradition order. Section 26(3) provided that the appeal may be brought on the question of law or fact and subsection (4) provided that notice of appeal under this section must be given in accordance with rules of court before the end of the permitted period, which was seven days starting with the day on which the order was made.

The requirement in section 26(4) of the 2003 Act was considered in Mucelli v Albania [2009] 1 WLR 276. The Supreme Court concluded by majority that notice of appeal had to be both filed in the High Court and served on all respondents to the appeal within the seven-day period. There was no statutory provision for the extension of time and the court had no jurisdiction to extend the period or to dispense with service of a notice of appeal.

The nature of the problems thrown up by the statutory provision was helpfully captured in Lord Rodgers’' dissenting judgement at paragraph [7]:

“"7 A relatively short but utterly rigid deadline for bringing an appeal is readily understandable. Even so, it imposes a substantial burden on a prospective appellant and his advisers. The question is whether Parliament considered that, exceptionally, the matter of service had to be taken out of the hands of the courts and subjected to the same immovable time limit—with failure to meet the deadline resulting in the prisoner''s extradition, however meritorious the appeal that had been filed, however venial the slip that had resulted in service being late, and however little the prejudice that it had caused to the respondent. The potential for substantial injustice is striking. Busy practitioners with many demands on their time may, quite understandably, fall down from time to time—as Mr Moulai''s case vividly illustrates. Rules of court on procedural matters are designed to allow for these realities and to enable substantial justice to be done. If the intention was, on this occasion, to ignore these realities and impose a rigid deadline for service, I would again have expected the Bill to say so in clear terms. Members of Parliament could then have seen that this was what they were being asked to enact and could have pondered the consequences.”"

The form which any such notice of appeal should take was then considered in Pomiechowski v Poland [2012] 1 WLR 1604. The case concerned three Polish citizens who were ordered to be extradited. Within seven days each filed a notice of appeal at the High Court. One of the three served an unsealed copy of the notice on the judicial authority within the time period but in each of the other cases the arrested person served an unsealed and then a sealed copy of the first page of the notice on the judicial authority within the period serving a sealed copy of the full notice on it out of time.

In those cases where only a copy of the first page of the notice had been served on the judicial authority the High Court dismissed appeals against extradition Orders for want of jurisdiction on the grounds that the mere intimation of an intention to appeal was insufficient. The Supreme Court allowed the appeals on the basis that having regard to the shortness of the permitted period for giving notice of appeal to the respondents what really mattered was that an appeal should have been filed and all respondents to be on notice of that so that they did not proceed with the extradition pending appeal. Accordingly, a generous view was to be taken as to what constituted a notice of appeal to the respondents when the Rules of Court had not been complied with but the notice nonetheless satisfied the statutory requirement and was capable of being cured. The court suggested that consideration should be given to the introduction of an interests of justice test for the extension of time to appeal.

The issue of the time limit had also been the subject of a review ordered by the Home Secretary of the United Kingdom''s extradition arrangements and the report on 30 September 2011 (“"the report”") considered the appeal provisions. It was recommended that in the interests of certainty and finality the time-limit for the giving of notice of appeal should be extended to 14 days with no power to extend time and that a valid notice of appeal should:

(i) purport to be a notice of appeal (and not notice of an intention to appeal);

(ii) identify the appellant;

(iii) identify the decision under appeal; and

(iv) identify the grounds of appeal.

The report further recommended that a first instance court should provide the defendant with a form explaining the right of appeal, the time-limit and what must be done in this period. No such form was provided in this case but a Practice Direction will issue shortly dealing with these issues. The report also recommended that any appeal should only be allowed to proceed with the leave of the extradition judge or the court which would consider the appeal.

Neither the suggestion by the court in Pomiechowski nor the entirety of the relevant recommendation in the Scott Baker report were implemented but section 26 of the 2003 Act was amended as follows:

“"(1) If the appropriate judge orders a person''s extradition under this Part, the person may appeal to the High Court against the order….

(3) An appeal under this section section—

(a) may be brought on a question of law or fact, but

(b) lies only with the leave of the High Court.

(4) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.

(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.”"

That introduction of a leave to appeal provision reflected the recommendation to that effect in the Scott Baker report and the dispensing power in section 26(5) did not introduce an interests of justice test but did allow some latitude particularly for those without legal representation. We recently considered these provisions in O’'Connor v Greece [2017] NIQB 77.

Order 61A of the Rules of the Court of Judicature provides for a range of procedural steps including service of the skeleton argument and determination by the single judge. Those provisions did not, however, feature in the argument in this case on the basis that those were matters for which under the Rules extensions of time could be sought and given in appropriate cases. The essential question in this case is whether the steps taken by the original solicitor on 13 October 2006 constituted service of a notice of application for leave to appeal which satisfied the statutory requirement in section 26(4) of the 2003 Act.

Despite the limited dispensing power given in section 26(5) of the 2003 Act the position remains that the time-limit for giving notice of an application for leave to appeal is very short and as was said in Pomiechowski what really mattered was that the notice of application for leave to appeal should have been filed and all respondents put on notice that the applicant was applying for leave to appeal so that they did not proceed with the extradition pending the application. The time limit remains very limited and we are satisfied, therefore, that the generous view of the contents of the notice commended in Pomiechowski should be applied.

We do not consider that the fact that an applicant was legally represented should materially affect the issue of whether the paperwork is sufficient to satisfy the statutory requirement. The introduction of the leave test was effected by the Antisocial Behaviour, Crime and Policing Act 2014 but the relevant Rules were not made until December 2015. The format used by the original solicitors was plainly based on the preceding statutory provisions but in our view there could be no other explanation for service of the notice other than that the applicant was seeking leave to appeal.

Conclusion

We conclude, therefore, that service of the notice of application for leave to appeal was effected on 13 October 2016. Where the applicant requires extensions of time in order to comply with the Rules we will deal with those applications along with the substantive issues in the appeal.