Norbert Szegfu v Court of Pecs Hungary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] EWHC 1764 (Admin) |
| Docket Number | Case No: CO/1910/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 June 2015 |
[2015] EWHC 1764 (Admin)
The Rt Hon Lord Justice Burnett
The Hon Mrs Justice Cox
Case No: CO/1910/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Malcolm Hawkes (instructed by GT Stewart) for the Appellant
Amanda Bostock (instructed by the CPS) for the Respondent
Hearing dates: Thursday 11th June 2015
This is the judgment of the Court.
On the 12 March 2015 at Westminster Magistrates Court, District Judge Zani ordered the extradition of the appellant to Hungary pursuant to two conviction warrants in respect of which he has a total of 30 months imprisonment to serve. The appellant seeks leave to appeal pursuant section 26(3) of the Extradition Act 2003 ["the 2003 Act"]. The issue before us is whether the application should be entertained at all. The notice was not given within seven days of that order as required by section 26(4) of the 2003 Act. That time limit was strict, but a recent amendment to the 2003 Act enables this court to overlook the failure to give notice in time in limited circumstances. This is the first case in which the reach of the new provision has been considered.
Both the requirement for leave to appeal against an extradition order and the provision relaxing the application of the immoveable time limit were introduced by section 160 of the Anti-social Behaviour, Crime and Policing Act 2014. They apply to cases in which notice to appeal is given on or after 15 April 2015: see article 4 of The Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 9 and Transitional Provisions) Order 2015 SI 2015/917.
It is accepted on behalf of the requesting state that if the appeal notice is within time, leave to appeal should be given. That is because the complaint now raised in these proceedings is that prison conditions in Hungary are such that the extradition of anyone to custody in Hungary would give rise to a real risk of ill-treatment contrary to article 3 ECHR. The appellant relies upon Varga and others v Hungary (App. No. 14097/12) in which the Second Section of the Strasbourg Court gave judgment on 10 March 2015. In a series of cases concerning prison conditions in Hungary it found violations of article 3. The central complaint was one of overcrowding. The Hungarian authorities have provided assurances designed to exclude any risk in respect of those whose extraditions they are currently seeking from the United Kingdom, including this appellant. A lead case has been identified ( Horvath CO/3252/2014) in which it is anticipated that the adequacy of the assurances will be amongst the issues under consideration in July.
The appellant represented himself at the extradition hearing. He had engaged solicitors privately and was represented by them initially, including at a preliminary hearing. He did not put them in funds for the extradition hearing itself and so they withdrew. At that hearing he gave oral evidence and relied upon a long "proof of evidence". In its final paragraph the proof mentioned that the appellant had "heard that prison conditions are bad and that they are overcrowded". The appellant also said that he was scared of being in prison. It is apparent from a note that has been provided of the ex tempore judgment that he elaborated upon that by indicating that he felt vulnerable to attack in prison. There is limited information about what happened at the hearing. We are told that the appellant raised as an issue the question whether he would be at risk from individuals in Hungary about whom he said he had given information to the police.
As material the statutory provisions now read:
"26(4) Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.
(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given."
The effect of section 26(5) is to require the High Court to refuse to entertain an application in a case in which notice was given outside the specified seven days unless the person concerned shows that he has done everything reasonably possible to ensure that notice was given as soon as it could be given.
The background to the legislative change may be found in decisions respectively of the House of Lords and Supreme Court in Mucelli v Government of Albania; Moulaui v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2; [2009] 1 WLR 276Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604.
In Mucelli the House of Lords decided that the requirement found in section 26(4) of the Extradition Act required the appellant both to lodge a notice of appeal in the High Court within the seven day period and also serve a complete copy of that notice on the respondent within the same period. The time limit was incapable of extension. A consequence of the decision was that if, for example, an incomplete copy of the notice of appeal had been served upon the respondent within seven days, the appeal was nonetheless time-barred. The decision was revisited in Pomiechowski. The Supreme Court was invited to depart from Mucelli in so far as it had held that a failure to give notice to the respondent within seven days, as well as lodging a notice of appeal with the court, resulted in the appeal being time-barred. The Supreme Court declined to accede to that invitation, see para 17 of the judgment of Lord Mance. However, it held that the requirement to give notice to the respondent did not dictate that the full notice (as lodged with the court) should necessarily have been provided. General notification of the appeal within time was sufficient. The result was that it remained necessary to give notice to the respondent in time but the form of notice was not critical.
Pomiechowski was one of a number of cases brought together for hearing in the Supreme Court. Three concerned Polish appellants whose notices to the respondent judicial authorities had fallen foul of the technical rules hitherto understood to be in place. A fourth appellant was a British national who was being extradited to the United States of America. For reasons which it is unnecessary to elaborate in this judgment, the Supreme Court held that in the case of a British national facing extradition the strict seven day time limit was incompatible with his rights under Article 6 of the European Convention on Human Rights, paras 32 and 33. In those circumstances the interpretative tool of section 3 of the Human Rights Act 1998 was used, in the case of United Kingdom citizens, to read the time limit in section 26(4) as subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where those provisions would otherwise operate to prevent an effective right of appeal, para 39. Non-British nationals were unable to rely upon the same reasoning.
Lord Mance noted that the Review of the United Kingdom Extradition Arrangements of the 30 September 2011 had identified that the time limits for appealing in the Extradition Act (both Part 1 and Part 2) were an "unsatisfactory feature about the appeal process", para 34. The review mooted the possibility of enlarging the time limit in Part 1 cases from seven to fourteen days, thus maintaining the underlying principles of certainty, or providing a discretion to the court to extend the time limit in the interests of justice, para 34. The review preferred the former because of the importance of certainty and finality in this field. In para 40, Lord Mance urged that the matter should be subject to further consideration. In his earlier analysis, Lord Mance had identified particular problems encountered by those against whom extradition orders had been made, who were then immediately committed into custody and did not have access to lawyers.
The new section 26(5) was the legislative response to the observations of the Supreme Court and the Review. Parliament did not choose either of the alternatives already referred to. It opted for a solution which does not engage a general discretion but equally does not import a different (albeit longer) fixed time limit. Instead, it provided that if the test identified in section 26(5) was made out the effect would be to extend the time limit. The words of the test itself are clear and need no judicial gloss. However, there are a number of factors which need to be identified in its application.
First, the burden of establishing that everything reasonably possible was done rests upon the appellant. He must satisfy the court on the balance of probabilities. Part 17 of the Criminal Procedure Rules governs extradition proceedings. Rule 17.17(b)(i) provides that an application for permission to appeal to the High Court may be determined without a hearing. It follows that ordinarily any question raised under section 26(5) will be dealt with on the papers. The contents of an appeal notice are specified in rule 17.20. We would draw attention particularly to rule 17.20(4)(a) which requires any appeal notice served after the seven day time limit "to explain what the defendant did to ensure that it was served as soon as it could be". In a straightforward case, it may be sufficient...
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