Extending time limits for appeals on extradition orders

The Supreme Court so held, allowing the appeals of Radomil Pomiechowski and Rafal Lukaszewski from a decision of the Divisional Court (Lord Justice Laws and Mr Justice Kenneth Parker) ([2012] 1 WLR 391), of Robert Rozanski from a decision of Lord Justice Moore-Bick ([2011] EWHC 2060 (Admin)) and of Kevin Richard Halligen from a decision of the Divisional Court (Lord Justice Laws and Mr Justice Stadlen) ([2011] EWHC 1584 (Admin)).

The first three appellants were Polish citizens against whom European arrest warrants had been issued by Polish courts. Each had been arrested and brought before the magistrates’ court where extradition was ordered. Each purported to serve a notice of appeal within the required period of seven days specified by the Extradition Act 2003 by serving the front page of the notice of appeal on the judicial authority. The Divisional Court held that their appeals had not been served in time since the documents did not identify the appellant, the decision appealed against and the basis on which the appeal was sought to be presented.

The fourth appellant was a British citizen whose extradition was sought to the United States of America to face criminal charges. The Home Secretary ordered his extradition and sent him a letter informing him of his right under section 108 of the Act to appeal within 14 days to the High Court and pointing out explicitly that “any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service”. However, his solicitors sent the notice of appeal to the Home Office and the Crown Prosecution Service after the expiry of the 14 day period. The Divisional Court ruled that it had no jurisdiction to hear his appeal.

Mr Edward Fitzgerald, QC, Mr Ben Watson and Ms Amelia Nice for the first two appellants; Mr Hugo Keith, QC and Mr Gary Pons for the third appellant; Mr William Clegg, QC, Mr Stephen Vullo and Mr David Patience for the fourth appellant; Mr John Hardy, QC and Mr Ben Lloyd for the respondent judicial authorities, and for the Government of the United States of America as interested party; Ms Clair Dobbin for the secretary of state.

LORD MANCE (with whom Lord Phillips, Lord Kerr and Lord Wilson agreed) said that the irregularity involved in the first three cases was capable of cure and on the facts certainly merited that. The Crown Prosecution Service could have no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison legal services should lead to those appellants losing any right of appeal.

In the fourth case no notice of appeal had been given within the permitted period, and on its face an appeal was impermissible.

The appellants also relied on article 5(4) of the European Convention on Human Rights which stated that everyone “who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.

The difficulty which the appellants faced in relying on article 5(4) was that their grievance related to the extradition decision, rather than the fact, incidental to that decision, that they had been remanded in custody pending extradition. The European Court of Human Rights in Strasbourg drew a careful distinction between challenges to detention and to the underlying decision to remove an alien from the jurisdiction. The appellants were not entitled to a judicial decision under article 5(4).

The Strasbourg court and commission had also stood firm against any suggestion that extradition as such involved the determination of any criminal charge or entitled the person affected to the procedural guarantees provided in the determination of such a charge under article 6 of the Convention. The cases emphasised that proceedings for the extradition of aliens did not involve the determination of any civil rights within the meaning of article 6(1).

That underlined a potential difference in that respect between aliens and citizens. It was a principle of international law that a state was precluded from refusing its own nationals the right of entry or residence. That principle was the necessary corollary of a state’s right to refuse aliens permission to enter or stay in its territory.

The fourth appellant, as a British citizen, enjoyed a common law right to enter and remain in the UK as and when he pleased. Did extradition proceedings under the 2003 Act, in that it might affect his freedom to remain in the UK at least for the duration of American criminal proceedings, involve the determination of that civil right?

The Act had the authority of Parliament and to that extent his right to remain in the UK was potentially qualified. But under the Act it was only through extradition proceedings that the right could be affected and suspended for the period of any American proceedings and sentence. The extradition proceedings determined whether he might continue to enjoy his common law right for whatever proved to be the relevant period.

A claim to extradite him did not involve the determination of a criminal charge, and he was not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he was entitled to a fair determination as to his common law right to remain within the jurisdiction.

There was no reason to believe that Parliament either foresaw or intended the potential injustice which could result from absolute and inflexible time limits for appeals.

In the case of a citizen of the UK the statutory provisions concerning appeals could and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for filing and service, where statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with a proper right of access to an appeal process held to exist under article 6(1).

Lady Hale delivered a concurring judgment.

Solicitors: Kaim Todner Solicitors Ltd; Dalton Holmes Gray; Carter Moore; Crown Prosecution Service, Special Crime Division Extradition Unit and Appeals Unit; Treasury Solicitor.