Lukaszewski and Others v The District Court in Torun, Poland and Others (No 3)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 15 June 2011 |
| Neutral Citation | [2011] EWHC 2060 (Admin) |
| Date | 15 June 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2104/2011, CO/2178/2011, CO/835/2011, CO/966/2011,CO/2104/2011, CO/2178/2011 |
[2011] EWHC 2060 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Kenneth Parker
CO/2104/2011, CO/2178/2011
CO/835/2011, CO/966/2011
Mr B Watson (instructed by Kaim Todner and Kingsley Napley) appeared on behalf of the Claimants Pomiechowski and Ungureanu
The Claimant Rozanski was not produced and was not represented
Miss A Nice (instructed by Kaim Todner) appeared on behalf of the Claimant Lukaszewski
Mr J Hardy, QC (instructed by CPS) appeared on behalf of the Defendant
Four appellants seek to appeal against orders of extradition made against them at the City of Westminster Magistrates' Court. The requesting state in each case is a member of the European Union: Romania in the case of Mr Ungureanu and Poland in the other cases, Lukaszewski, Pomiechowski and Rozanski. Accordingly, the proceedings are governed by part 1 of the Extradition Act 2003. The appellant Rozanski, who was to act in person, has not been produced from the prison where he is on remand, notwithstanding clear directions from this court that that was to happen. I have ordered that the Governor of Wandsworth Jail provide an explanation. In the circumstances we adjourned Rozanski's case.
Pursuant to a direction given by myself last week, the cases were listed today for determination of a preliminary issue which arises or is said to arise in each of them, namely whether notice of appeal was given within time pursuant to section 26(4) of the 2003 Act, which provides:
"Notice of an 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."
In Mucelli v Government of Albania [2009] 1 WLR 276, [2009] UKHL 2, their Lordships' House held that under this section the notice of appeal had to be both filed and served within the specified period, and that the period could not be extended. On considering the facts in Ungureanu's case, it seems to me that his notice was give in time, as I shall explain.
Lukaszewski was arrested on 27 January 2011, pursuant to a European arrest warrant issued at the District Court of Torun in Poland. He was produced at the City of Westminster Magistrates' Court for an initial hearing the next day, 28 January. His extradition was sought in order to execute aggregate sentences of imprisonment, of which seven years in total remained outstanding, for 13 offences of burglary and attempted burglary.
The initial hearing, at which the appellant Lukaszewski was represented by a court duty solicitor, proceeded directly to the extradition hearing, and District Judge Evans ordered Lukaszewski's extradition. He was remanded in custody to HMP Wandsworth. On 2 February 2011, the sixth day after the order for extradition, a notice of appeal was filed at the Administrative Court. An unsealed copy of the first page of an appeal notice in the statutory form N161 was received by the respondent, represented by the Crown Prosecution Service, within time, apparently on 2 February 2011.
According to a statement from a prison officer at Wandsworth, a sealed copy, again of the first page of N161 only, was also faxed to the CPS on 2 February 2011, although the respondent has no record of that being done. That date, 2 February 2011, was within the prescribed seven-day period. The respondent did not receive a full copy of the notice of appeal, sealed or unsealed, until after time had expired.
The appellant Pomiechowski was arrested on 25 January 2011 on two European arrest warrants issued out of different district courts in Poland. He was brought before the City of Westminster Magistrates' Court the same day. At that stage he was represented by solicitors. The case was adjourned and he was remanded in custody. It was adjourned again on 8 February 2011 and he was again remanded in custody. On 2 March 2011 his representatives applied for a further adjournment which was, however, refused. The district judge then ordered his extradition. He was remanded in custody.
On 7 March 2011, thus within time, an unsealed copy of the first page of a notice of appeal, again in form N161, was faxed to the respondent from Wandsworth Jail. A sealed copy of the first page, as in Lukaszewski's case, was also sent within time. A sealed copy of the full notice was received on 11 March 2011, out of time.
I should also set out the facts in Ungureanu. Ungureanu was arrested in Bristol Airport on 22 January 2011 on a European arrest warrant, issued out of the Baia Mare Court of Justice, Romania. He was wanted for an offence of driving with excess alcohol. He was produced before District Judge Purdy at the City of Westminster Magistrates' Court on 24 January 2011, and was represented by the duty solicitor.
His extradition was ordered. Bail was refused and he was remanded to Wandsworth Jail. On 31 January 2011, thus within time, a full but unsealed copy of his notice of appeal was received by the respondents by fax from the prison. The same day, the full unsealed notice was faxed to the Administrative Court and apparently returned sealed.
It is convenient also at this stage to note that Ungureanu's grounds of appeal are of his own composition. However, these present no remotely viable basis on which an appeal may properly go forward.
As I have foreshadowed, however, it seems to me that the notice of appeal in his case was served in time and I will shortly explain why. Mr Watson wishes on Ungureanu's behalf to raise two points on section 2 of the Extradition Act 2003. With the agreement of Mr Hardy QC for the issuing judicial authority, we will grant leave to amend Ungureanu's notice of appeal on Mr Watson's undertaking to file with the court and serve on the respondent his proposed amendment. Ungureanu's appeal will be adjourned for a substantive hearing on another date.
I turn to the principal question before us: what are the essential features of a notice for the purposes of section 26(4)? Section 26(4) has fallen to be considered in a number of authorities of this court, as well as Mucelli in their Lordships' House. There have been differences of view as to what is required for the purposes of the subsection.
In what I apprehend is the most recent decision, Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), in which judgment was given on 1 April 2011, Sullivan LJ with whom Collins J and Treacy J agreed said this at paragraph 12:
"Both Mr Davies and Mr Hardy QC, who has appeared on behalf of the respondent, referred us to the different approaches in the authorities as to what must be served within the 7 days in order to comply with section 26(4). For example, in the Regional Court in Conin, Poland v Parvel Walerianczyk [2010] 2149 (Admin) Stanley Burnton LJ, with whom Nichol J agreed, said that what must be served was a copy of the filed notice of appeal (see paragraph 27). Stanley Burnton LJ distinguished an earlier decision Parvel Sciezka v the Court in Sad Okregowy Kielce, Poland [2009] EWHC 2259 (Admin), in which a different approach had been adopted, as a 'very hard case on the facts' (see paragraph 28). More recently, in Cane v Spain [2011] QB (Admin), dated 17 March 2011, my Lord Collins J has declined to follow the decision in Conin. Mr Davies relied on Cane in his skeleton argument. Mr Hardy submitted that Cane had been wrongly decided."
However in Szelagowski itself the court did not find it necessary to resolve the conflict between these different approaches because, Sullivan LJ stated (paragraphs 13 and 17), even making the most generous assumption possible in the appellant's favour, namely that all an appellant had to do to comply with section 26(4) was to serve a document which could reasonably be described as a notice of appeal, that was not done on the facts of that case. Mucelli in their Lordships' House was not concerned with the form of the notice that had to be served. As I have said, Mucelli established that the notice, whatever was required by way of form, had to be both filed and served within the non-extendable time limit. The draconian nature of this rule has been sought to be mitigated in decisions of this court, and the means by which that has been done or attempted have generally consisted in the adoption of a somewhat more liberal approach to the form of the document required to be filed and served than might perhaps otherwise have been the case. It is to be noted that in Mucelli, Lord Neuberger observed (paragraph 75 and 82) that the reference to "rules of court" in section 26(4) governs the manner, not time, of service; and under the rules, notably CPR 3.10, the court has power to correct procedural errors.
Cases in which some leeway has been allowed as to the form of the notice include the following. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), this court (Sir Anthony May President and Silber J) deployed rule 3.10 to correct the omission of the appellant's date of arrest from the notice that was served. In Sciezka v The Court in Sad Okregowy, Kielce, Poland [2009] EWHC 2259 (Admin), referred to as I have indicated in Szelagowski, the court (Sullivan...
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