Daniel Lacki v Egional Court of Gdansk, Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON,MR STERNBERG,MR GILL |
| Judgment Date | 14 June 2012 |
| Neutral Citation | [2012] EWHC 1747 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 June 2012 |
| Docket Number | CO/5580/2011 |
[2012] EWHC 1747 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Burton
CO/5580/2011
MR S GILL QC and MR M HENLEY (instructed by Guney, Clark & Ryan Solicitors) appeared on behalf of the Claimant
MR D STERNBERG (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
JUDGMENTS
(As Approved)
This has been listed today before me as an extradition appeal by Mr Daniel Lacki in which the Respondents are the District and Regional Courts in Gdansk Poland. There are three European arrest warrants (EAWs) outstanding in this case, and I shall identify them as EAW 1, EAW 2 and EAW 3.
In respect of EAW 1, that warrant was ordered to be effected by the District Judge, and an appeal against the enforcement of the warrant was dismissed by Collins J in the Administrative Court. There is a suggestion in the papers before me that there may be an application to reopen the appeal if the defences to EAW 2 and EAW 3 are viable.
In respect of EAW 2, in which again the District Judge enforced the warrant and no substantive defences were put forward before him, the appeal is said by the Respondent to have been served out of time. The Respondent asserts that there is no jurisdiction in the Court to hear that appeal, in the sense that there is, as found by the Supreme Court as the Respondents assert, no power in this Court to give an extension of time, as the Appellant would otherwise wish. If the appeal is not out of time the Appellant relies upon defences not submitted below by reference to sections 21 and 25 of the Extradition Act 2003 ("the 2003 Act").
So far as EAW 3 is concerned, the appeal is in time and those defences are put forward.
The point taken by the Respondent is that EAW 2 is out of time by reference to a combination of two decisions of the House of Lords and the Supreme Court: Mucelli v Government of Albania [2009] UKHL 2 and Lukaszewski v The District Court in Torun, Poland [2012] UKSC 20. The Appellant asserts that, notwithstanding those two decisions, the Court should, or does, have power to extend time in relation to this Appellant. This is a point which plainly would require consideration by a Divisional Court with a direct appeal to the Supreme Court if appropriate. This is the view I have clearly formed and it is not one with which either counsel has sought to disagree. As I shall indicate, Mr Sternberg, for the Respondent, agrees to the course, which I have proposed to adopt, arising out of that conclusion, whereas Mr Gill QC and Mr Henley, for the Appellant, do not.
The course that I have proposed, and which, as I have indicated, has been opposed by Mr Gill, is that I should deal with the merits of the two appeals, EAW 2 and EAW 3, without prejudice to the question as to whether the notice of appeal was served out of time, so that there can be a resolution of those issues today, one way or the other. If there is an arguable defence on the merits, then EAW 3 would fall away, and the jurisdiction question in EAW 2 would need to be resolved by a Divisional Court, which could be convened in due course. If there is no substance in the defences on the merits, then I would dismiss the appeal in EAW 3 and the question as to whether the appeal is, or is not, out of time in EAW 2 would fall away.
The arguability of the defence, as I have indicated, is relevant to all three appeals, or at any rate certainly to the two which are presently issued. I can, therefore, deal on any basis with EAW 3, and I can assume in the Appellant's favour the time point taken by the Respondent in EAW 2. The Respondent is content with this course.
Mr Gill in a skeleton argument put together at very short notice yesterday with Mr Henley's assistance, and for which I am very grateful, and argued before me again orally today, opposes that course. He says:
(i) I cannot deal with the appeal in EAW 2 if I have no jurisdiction to do so;
(ii) The 2003 Act - this is really another way of saying the same thing - does not permit an assumption of jurisdiction;
(iii) If I decide in the Appellant's favour on the merits, then there is the possibility of a subsequent inconsistent view by the Divisional Court when dealing with the question of jurisdiction, if the Divisional Court were to come to a different conclusion, so far as the merits are concerned, which, he asserts, they would be free to do.
(iv) I should not exercise my discretion, if I had one, to take the course, because the point as to time is important. This is an opportunity to resolve it, even if it were academic because of the lack of merit in the appeal, if such were the case. I should accordingly take the opportunity to ensure that it can be resolved by sending the matter off to the Divisional Court unsevered.
(v) If I adjourn the whole case, as he submits I should, then it might give the opportunity for the Divisional Court to look at the Article 8 case. This forms a part of Mr Gill's submission in relation to the Appellant, by reference to his son, who lives with his ex-partner in this country, because of a possible impact on that argument if the decision presently expected in HH (Italy) from the Supreme Court had relevance to it.
I am not persuaded. This is against the background that in my judgment, in any case, whether it relates to ordinary proceedings, which are almost all the subject of statute in the end under the Supreme Court Act, or a statutory jurisdiction, or whether it relates to the jurisdiction of the English Court against those outside the jurisdiction—for example, civil proceedings where there is service out—or those who are already in the jurisdiction, there is always the power of the Court to take a sensible course pursuant to the Overriding Objective. Mr Gill of course indicates that the Overriding Objective may fall away if there was a question of construing a statute, such as, for example, in this very line of country he sought to argue in Mucelli v Government of Albania, namely that the question as to whether there was power to extend time under a statute should be construed in accordance with the Overriding Objective. The answer in that case was that the statute fell to be construed in accordance with its own terms.
But I am not construing a statute. I am deciding how to deal with a case in which there has been a technical point taken by the Respondent, which goes to jurisdiction, and the issue is simply whether the merits should be taken first, or the jurisdiction should be taken first.
I posed to Mr Gill the example of a situation in which notice of appeal (not this case) contained apparently, on its face, no arguable case at all, if, for example, it simply said that the Appellant would like to remain in England, and was served out of time. It seems to me plain that it would make a nonsense for the jurisdiction point to have to be taken against a background of an appeal which was bound to fail.
I also put to Mr Gill a scenario in which foreign residents, or companies, are brought, very often 'kicking and screaming', within the jurisdiction of the Court by virtue of the extraterritorial jurisdiction of the Court. That jurisdiction is then challenged, and yet the Court in the meanwhile makes interlocutory orders, sometimes of a drastic nature, for disclosure, cross-examination and surrender of passports, all against the background of the question that jurisdiction is not yet construed or decided.
I need to deal with EAW 3, in any event. There is no jurisdictional point raised in EAW 3, and I am faced on EAW 2 with a point taken by the Respondent, which I am prepared to assume in favour of the Appellant.
Mr Gill says in his skeleton:
"17. The Appellant is entitled to know whether he has an appeal or not."
I propose to deal with that question, as to whether he has an appeal, first of all, by looking at the merits and secondly, by looking, if necessary, at the jurisdiction, although that second aspect will go off to a Divisional Court, if I were to decide that the defence is right or that it is arguable. Since I have not heard argument yet I assume, at this stage, that that is an entire possibility, or that I might at any later stage during this hearing conclude that the matter should, after all, be sent off in totality to the Divisional Court. If I am of the view that the defence is unarguable, or at any rate that it should fail, then I would dismiss EA W 3 and I would not need to trouble the Divisional Court in relation to EAW 2.
If I were to decide the defence is correct or arguable, then there might be the possibility of inconsistency, such as Mr Gill has raised. If I then sent it off to the Divisional Court two possibilities arise. The first is that I should simply indicate that I am sending it off to the Divisional Court and have formed the provisional view that the appeal has merit, or I could actually decide that the appeal did have merit, but that it seems to me that a two judge Divisional Court could still disagree with me if they chose to do so. None of that would, in my judgment, prevent my taking the sensible course which I have proposed.
As for HH Italy, it has not been put before me in the bundle of authorities. I have no view as to whether any considerations in HH Italy, if and when judgment is given by the Supreme Court, might impinge upon my decision on the relevance of the existence of the Appellant's son within the jurisdiction, and I shall...
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