Debicki v Regional Court Lupsk Poland
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mr Justice Hickinbottom |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] EWHC 3521 (Admin) |
| Date | 14 October 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3905/2015 |
[2015] EWHC 3521 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Burnett
Mr Justice Hickinbottom
CO/3905/2015
Ms K O'Raghallaigh (instructed by Lansbury Worthington) appeared on behalf of the Claimant
Mr N Yeo (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
On 21 August 2015, Nicola Davies J refused Mr Debicki's application for permission to appeal against the order extraditing him to Poland made at Westminster Magistrates' Court on 5 August 2015. I shall refer to him as "the appellant".
The judge refused permission, because the appellant gave notice of appeal after the end of the period of 7 days permitted by section 26(4) of the Extradition Act 2003, and he had not demonstrated that he had had done everything reasonably possible to ensure that the notice was given as soon as it could be given. The judge made the order having considered the papers lodged by the appellant.
It has been accepted on his behalf by Ms O'Raghallaigh that the judge was right to refuse permission in those circumstances in the light of the judgment of this court in Szegfu v Court of Pecs Hungary [2015] EWHC 1764 (Admin). That was because no explanation for the delay have been given.
On 9 September 2015, the appellant lodged an application pursuant to Rule 17.27 of the Criminal Procedure Rules to reopen the decision to refuse the application for permission to appeal. The Criminal Procedure Rules have been reordered with effect from 1 October 2014. Rules relating to extradition proceedings are now found in part 50, to which I shall refer.
The appellant sought interim relief because his removal to Poland was imminent. On 9 September Supperstone J ordered that the appellant should not be removed to Poland until the determination of his application to reopen.
The circumstances in which the power contained in Rule 52.27 will be exercised were considered in Government of the United States of America v Bowen [2015] EWHC 1873 (Admin) in a supplementary judgment dealing with that issue which was handed down on 11 September 2015.
The rule itself provides:
"Reopening the determination of an appeal.
50.27. — (1) This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(2) Such a party must —
(a) apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b) serve the application on the High Court officer and every other party.
(3) The application must —
(a) specify the decision which the applicant wants the court to reopen; and
(b) give reasons why —
(i) it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii) the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii) there is no alternative effective remedy.
(4) The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations."
In Bowen this court set out its conclusions on the applicability of the rule between paragraphs 6 and 9. In granting interim relief Supperstone J observed that consideration should be given to whether the rule applies at all to a case in which permission to appeal is refused for want of jurisdiction because the application is out of time.
Mr Yeo who appears on behalf of the respondent has not sought to argue that the terms of Rule 50.27 do not apply to a refusal of permission of these grounds. His helpful written submissions and supplementary note deal with the point.
In my judgment he was right not to press that point. That is because, using the language of rule 50.27 itself, the order of Nicola Davies J determined the appellant's application for permission to appeal. The refusal of permission thus potentially came within the scope of the rule.
Nonetheless, despite there being jurisdiction to entertain this application, in my judgment it is misconceived for a number of reasons:
First, by virtue of rule 50.27(b)(iii) an application can prosper only "if there is no alternative effective remedy."
Nicola Davies J refused permission to appeal without an oral hearing. Criminal Procedure Rule 50.22 enables an appellant to renew an application for permission to appeal which has been refused on the papers. There is a time limit of 5 days for lodging the renewal notice but that may be extended in appropriate circumstances by virtue of Rule 50.17.
Ms O'Raghallaigh submits that the language of Rule 50.22 applies only to circumstances in which the judge has refused permission on the merits as opposed to refusing permission because of difficulties relating to time. She draws a distinction between the language in Rule 50.22, "refuses permission" and the language in 50.27 "determines an application for permission to appeal."
In my judgment the difference in language does not bear the weight that Ms O'Raghallaigh submits...
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