Lukaszewski and Others v The District Court in Torun, Poland and Others (No 2)
| Jurisdiction | England & Wales |
| Judge | LADY HALE,LORD KERR,LORD WILSON,LORD PHILLIPS,LORD MANCE |
| Judgment Date | 23 May 2012 |
| Neutral Citation | [2012] UKSC 20 |
| Date | 23 May 2012 |
| Court | Supreme Court |
[2012] UKSC 20
Lord Phillips, President
Lady Hale
Lord Mance
Lord Kerr
Lord Wilson
Appellant
Edward Fitzgerald QC
Ben Watson
Amelia Nice
(Instructed by Kaim Todner Solicitors Ltd)
Respondent
John Hardy QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Appellant
Edward Fitzgerald QC
Ben Watson
Amelia Nice
(Instructed by Kaim Todner Solicitors Ltd)
Respondent
John Hardy QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Appellant
Hugo Keith QC
Gary Pons
(Instructed by Dalton Holmes Gray)
Respondent
John Hardy QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Appeals Unit)
Appellant
William Clegg QC
Stephen Vullo
David Patience
(Instructed by Carter Moore Solicitors)
Respondent
Clair Dobbin
(Instructed by Treasury Solicitors)
Intervener (The Government of the United States of America)
John Hardy QC
Ben Lloyd
(Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit)
Heard on 21 and 22 February 2012
LORD MANCE (WITH WHOM LORD PHILLIPS, LORD KERR AND LORD WILSON AGREE)
These appeals raise a number of points, some technical, others fundamental, relating to the requirements of and consequences of non-compliance with the short and inflexible time limits introduced by the Extradition Act 2003. Parts 1 and 2 of that Act deal with extradition to respectively category 1 territories—in practice other member states of the European Union party to the Council Framework Decision of 13 June 2002 (2002/584/JHA) introducing the European Arrest Warrant, to which Part 1 gives effect—and category 2 territories in relation to which a different and more traditional scheme applies.
Each of the schemes contained in Part 1 and 2 leads to the person whose extradition is requested being brought before a judge. The judge then decides, by considering a series of questions laid down in the Act, whether or not, in the case of Part 1, to order extradition or, in the case of Part 2, to send the case to the Secretary of State for his decision whether to extradite. Depending upon the judge's decision, there are rights of appeal to the High Court on law and fact. These are given under Part 1 to the individual (section 26) or to the authority issuing the warrant (section 28) and under Part 2 to the individual (section 103) or the authority acting on behalf of the category 2 territory seeking extradition (section 105). Rights of appeal also exist under Part 2, if the Secretary of State orders extradition (sections 108(1) and 110(1)).
These rights of appeal must all be exercised within short time limits, described as the "permitted periods". Thus, section 26(4) provides in the case of an order for extradition to a Part 1 territory that:
"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 seven days starting with the day on which the order is made."
Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven-day permitted period "starting with the day on which the order for the person's discharge is made".
Sections 103, 105, 108 and 110 provide for appeals from a judge's order sending a case to the Secretary of State for his decision whether a person is to be extradited and from any order subsequently made by the Secretary of State for extradition. In each case the permitted period within which "notice of an appeal must be given in accordance with rules of court" is "14 days starting with the day on which the Secretary of State informs" the person affected or the person acting on behalf of the category 2 territory (as the case may be) of the order.
In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276, the House of Lords held by a majority (Lord Rodger dissenting) that the requirement in sections 26(4) and 103(9) that notice of an appeal be given within the relevant permitted period meant that it had both to be filed in the High Court and served on all respondents to the appeal within such period. A similar requirement must necessarily exist under sections 28, 105, 108 and 110. The Supreme Court was asked on the present appeal to revisit and reverse that decision. The House in Mucelli distinguished between the requirement to give notice of an appeal within the permitted period and the requirement that such notice should be given "in accordance with the rules". Failure to comply with the mandatory requirement (interpreted in Mucelli as involving both filing and service) is on this basis fatal to any appeal, since the statutory language only permits appeals within the permitted periods with no possibility of extension. Failure to comply with the rules can, on the other hand, be cured by the court in the exercise of its discretion under (in England) CPR 3.9 and 3.10. The result is similar to that achieved in Pollard v The Queen [1995] 1 WLR 1591, where the Privy Council held that a notice of appeal which was required by statute to be given "in such manner as may be directed by rules of court", but which did not comply with such rules because it was not signed by the appellant personally, was nonetheless a notice within the meaning of the relevant statutory provision, at least once the irregularity was waived by the court, and that such waiver validated the notice from the date of its lodging and did not merely bring into existence for the first time a valid notice. The House in Mucelli further held that the rules of court were incapable of cutting down the statutory permitted period; thus, CPR 3.6 providing (at the relevant time) that any document served after 16.00 should be deemed to be served on the next day was incapable of rendering out of time a notice of appeal served by Mr Moulai after 16.00 on the seventh and last day of the permitted period.
Subsequent case-law in the High Court shows the distinction between requirements of the statute and of the rules to have proved contentious. One line of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a wrong date of arrest (the effect of such endorsement being that, on the face of the notice, the 40 day period allowed for the court to begin to hear the substance of the appeal would have expired a month early). In a series of further cases, the court accepted that service of an unsealed notice of appeal was, at most, a procedural error: Pawel Sciezka v Court in Sad Okregowy, Poland [2009] EWHC 2259 (Admin), Dunne v High Court Dublin [2009] EWHC 2003 (Admin), Arunthavaraga v Administrative Court Office [2009] EWHC 18921 (Admin) and R (Kane) v Trial Court No 5 Marbella, Spain [2011] EWHC 824 (Admin); [2012] 1 WLR 375. In Kaminski v Judicial Authority of Poland [2010] EWHC 2772 (Admin) the court refused to strike out appeals where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the court also thought that the rules made no provision for grounds).
Other courts have taken a more stringent line. In Regional Court in Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin); [2012] 1 WLR 363, service of an unsealed copy notice of appeal was held insufficient to satisfy the statutory requirement under section 28—a decision which meant that it was the Polish authority that was out of time to appeal. In R (Bergman) v District Court in Kladno, Czech Republich [2011] EWHC 267 (Admin), a notice of appeal was prepared by an unrepresented defendant who had been remanded in custody, and was then faxed in draft to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or indeed received back by the defendant, until much later. Following Walerianczyk, it was held that there could be no appeal, although Irwin J, at para 10, recorded his "concern that unrepresented litigants who are in custody will often find it very hard to comply with the necessary requirements, despite every effort on the part of the court staff".
In Szelagowski v Regional Court of Piotrkow Trybunalski Poland [2011] EWHC 1033 (Admin), a clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellant's notice and grounds and to request a signature by way of receipt, and the Crown Prosecution Service gave such a receipt. But the clerk handed over the wrong accompanying package. Nothing in the package handed over or in the covering letter could be described as a notice of appeal. There was held to be no valid appeal. Sullivan LJ observed (para 18) that: "this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear".
In the cases of Lukaszewski, Pomiechowski and Rozanski [2011] EWHC 2060 (Admin); [2012] 1 WLR 391, now before the Supreme Court, each of the appellants is a Polish citizen who is the...
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