Cirena Makowska v Regional Court, Torun, Poland
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 20 November 2020 |
| Neutral Citation | [2020] EWHC 3144 (Admin) |
| Date | 20 November 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1997/2019 |
[2020] EWHC 3144 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/1997/2019
Malcolm Hawkes (instructed by Tuckers Solicitors) for the Appellant
Jonathan Swain (instructed by Crown Prosecution Service) for the Respondent
JUDGMENT ON APPLICATION FOR CERTIFICATION
Application arising out of [2020] EWHC 2371 (Admin)
In this case I have given judgment [2020] EWHC 2371 (Admin) allowing the Appellant's appeal. The Respondent applied on 15 September 2020 for (i) certification that “there is a point of law of general public importance involved in the decision” (section 32(4)(a) of the Extradition Act 2003) and (ii) permission to appeal on the basis that “the point is one which ought to be considered by the Supreme Court” (section 32(4)(b)). The Appellant responded on 30 September 2020. By an Order dated 9 October 2020 I gave directions to which both parties responded on 19 October 2020. By the same Order I declared that the “permitted period” Under section 32(5) of the 2003 Act runs from 9 September 2020 (extending time to that end should that be necessary). This is my judgment dealing with the Respondent's application. I am using “Appellant” and “Respondent” to describe the parties' positions as they were before me: their roles and labels would be reversed on any appeal to the Supreme Court.
Mode of determination
In response to my directions each party has made clear that they are not asking this Court to direct a hearing on the application for certification and permission to appeal to the Supreme Court. I have noted that there was no hearing of the application in the Dempsey or Celczynski cases, to which I will refer below. I am satisfied that no oral hearing is necessary and that I can fairly and properly determine the applications on the papers.
Virtual re-hand down of [2020] EWHC 2371 (Admin)
I have referred above to an Order I made on 9 October 2020 in which I declared that 9 September 2020 was the relevant date for the purposes of any appeal in relation to the judgment [2020] EWHC 2371 (Admin). That Order resolves what Mr Swain rightly called the “considerable confusion about the formal handing down” of that earlier judgment. The parties were commendably patient and have confirmed that, for their part, no further enquiry or explanation is called for. One problem was that “virtual hand down” of that judgment was never published in the cause list. That is an important step and when it is missed, in my judgment, should be remedied. I directed by further Order on 6 November 2020 of my own motion that, having regard to the open justice, the judgment [2020] EWHC 2371 (Admin) be the subject of a further virtual hand down deemed to take place at the same time as the hand down of this judgment, each to be separately listed in the published cause list.
The suggested point of law of general public importance
The point of law of general public importance which the Respondent invites the Court to certify is as follows: “Is a requested person a ‘fugitive’ for the purposes of extradition proceedings in circumstances where, whilst outside of the issuing jurisdiction, they have breached a requirement placed on them (such as a requirement to pay a compensation or a financial penalty as the term of a suspended sentence), but who have otherwise not concealed their whereabouts from the judicial authority?”
Analysis
The Respondent's formulation raises a question which can properly be characterised as a question of “law”. The question can readily be reformulated to spell out the characterisation: “Is a requested person, necessarily and as a matter of law, a ‘fugitive’ for the purposes …” The critical question, so far as concerns certification is whether this is certifiable as a point of law “of general public importance”. It can be said (as the Respondent puts it) that “fugitivity arises routinely in extradition cases”, and it can be said that extradition cases matter and there is a public importance in getting them right. Is that enough? I must be careful, in addressing “of general public importance”, not to collapse the distinction between certification and permission to appeal, and not to apply a test of “ought to be considered by the Supreme Court” (that applies to the permission to appeal limb). On the other hand, “of public importance” must add something real.
One of the directions which I made in my Order of 9 October 2020 was that the parties should: “… supply any authorities which they would wish the Court to take into account regarding the approach to ‘general public importance’.” The parties each declined the opportunity, as they were entitled to do. Left to my own devices, I have found some assistance and it is appropriate to be transparent about it. If some key authority has been overlooked, that is regrettable, especially as it was readily avoidable. The cases make clear that the Court can and should properly decline to certify a point raised, albeit that it is properly to be characterised as a point of law, if the answer to the line of analysis which the party wishes to advance in the Supreme Court is clear. An example is Dempsey v Government of the United States of America [2020] EWHC 603 (admin) at paragraph 4. A further example is Celczynski v Polish Judicial Authority [2019] EWHC 3450 (admin) at paragraph 5. The cases also support the further proposition that certification is inappropriate insofar as the impugned analysis is in truth “a fact specific decision relating to the circumstances of [the present] case”: United States of America v Giese [2016] EWHC 365 (admin) at paragraphs 10 and 11. I was not surprised to find the cases reflecting these points. It would be very odd if the Court were, in effect, obliged to certify a point of law of general public importance whenever, in a context like extradition with its public importance, a “point of law” arises, independently of whether the analysis involves fact specific decisions, or where the thesis sought to be advanced comes up against an answer which is conspicuously clear, bearing in mind...
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