Regional Court in Konin, Poland v Walerianczyk
| Jurisdiction | England & Wales |
| Judge | Stanley Burnton LJ,Nicol J |
| Judgment Date | 12 August 2010 |
| Neutral Citation | [2010] EWHC 2149 (Admin) |
| Docket Number | Case No: CO/4746/2010,CO/4746/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 August 2010 |
[2010] EWHC 2149 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Before : Lord Justice Stanley Burnton
Mr Justice Nicol
Case No: CO/4746/2010
John Jones (instructed by the Crown Prosecution Service) for the Appellant
Ben Keith (instructed by Dalton Homes Gray) for the Respondent
Hearing date: 27 July 2010
Lord Justice Stanley Burnton :
Introduction
This appeal raises an important point as to the construction and effect of sections 26 and 28 of the Extradition Act 2003 which has practical implications for the practice of those representing individual appellants and that of the CPS seeking to appeal pursuant to those provisions against decisions of District Judges. The issue of principle is whether service of a draft notice of appeal, followed by the filing of a notice of appeal in the same form with the Administrative Court Office, constitutes the giving of notice of the appeal for the purposes of those sections of the Act. If it may constitute such notice, the question then arises whether service of a sealed copy of the notice of appeal is required, and if so whether the Court may and in the circumstances of the present case should waive that requirement.
The Regional Court in Konin, Poland, the Appellant on this appeal, sought the extradition of the Respondent Pawel Walerianczyk pursuant to a European Arrest Warrant for him to serve a sentence of 1 year and 8 months. He had been sentenced on 15 November 2002 for obtaining a Sony PS2 console by false pretences. The sentence was originally suspended for 5 years. He was also ordered to pay compensation to the victim in the sum of 1409 zlotys (about £304) within 1 year of the sentence becoming binding, which was on 23 November 200On 9 November 2007 the person due to receive that compensation complained that it had not been paid. As a result, on 29 January 2008 the District Court in Konin brought the suspended sentence into effect.
The European Arrest Warrant was issued on 28 May 2009 and certified by SOCA on 14 November 2009. The Respondent was arrested on 15 December 2009 and brought before the City of Westminster Magistrates' Court. The extradition hearing was held on 13 April 2010 before District Judge Riddle. He observed that there had been considerable delay in bringing the suspended sentence into effect, and that the victim had subsequently and quite recently received his compensation. The judge found that in these circumstances extradition was oppressive and an abuse of the process of the court, and he discharged the Respondent.
The Appellant sought to appeal the decision of the District Judge. On behalf of the Respondent, the preliminary issue was raised as to whether notice of appeal had been given within the permitted period prescribed by section 28 of the Extradition Act 2003.
On 27 July 2010 we heard the submissions of counsel on this preliminary issue. We informed the parties that for the reasons we would set out in our written judgments we decided the preliminary issue in favour of the Respondent. It followed that the appeal was dismissed.
These are my reasons for deciding that the Appellant's appeal was out of time.
The relevant chronology
The relevant chronology is brief. As mentioned above, the judge ordered the Respondent's discharge on 13 April 2010. The time to give notice of appeal under section 28 expired on Monday 19 April 2010. On Friday 16 April the Appellant faxed to the Respondent's solicitors an unsealed notice of appeal and supporting documentation. On Monday 19 April 2010 notice of appeal in the same form (subject to the exception to which I refer below) was filed with the Administrative Court. On the following day, one day after the expiration of the permitted period under section 28, the CPS served by fax a sealed copy of the notice of appeal.
The issues
In Mucelli v Government of Albania and Moulai v Deputy Public Prosecutor in Creteil, France [2009] 1 WLR 276 [2009] UKHL 2 the House of Lords held that the giving of notice of an appeal for the purposes of section 26 required that the notice be both filed and served within the permitted period. It also held that the court has no power to extend time for giving notice, in other words for those things to be done. It is common ground and clear that there is no material difference between the wording of section 26 and that of section 28, so that the same applies to section 28.
There are four issues in the present case:
(i) Is service on the respondent of a draft notice of appeal, followed by the filing of notice, capable of complying with the requirement that notice of an appeal be given within the permitted period?
(ii) If the answer to (i) is “Yes”, does service of an unsealed copy of the notice of appeal satisfy the requirement of section 28 that notice be given “in accordance with rules of court”?
(iii) If the answer is to (ii) is “No”, does the court have power to waive the requirement that the notice of appeal served on the respondent must be sealed?
(iv) If the answer to (iii) is “Yes”, should the Court exercise that power in the present case?
The submissions of the parties
On behalf of the Appellant, Mr Jones submitted that these issues should be answered as follows:
(i) It was sufficient to serve a notice of appeal before filing, provided the notice was filed within the permitted period, and that the decision of this Court in Sciezka v The Court in Sad Okregowy, Kielce, Poland [2009] EWHC 2259 (Admin) is binding authority to this effect.
(ii) It was unnecessary to serve a sealed copy of the notice of appeal: no such requirement is to be found in paragraph 22.6A of the Practice Direction to Part 52 of the CPR.
(iii) If the answer to (ii) was incorrect, the deficiency was as to the content of the notice of appeal, and not to the timing of giving notice of appeal, and failure to comply did not necessarily render the giving of notice ineffective. The Court has power to excuse such a deficiency under CPR Part 3.10.
(iv) That power should be exercised in favour of the Appellant, having regard to the circumstances set out in the witness statement of Daniel Sternberg dated 26 July 2010 and the fact that no prejudice has been suffered by the Respondent as a result of the deficiency.
For the Respondent, Mr Keith submitted that section 28 required service of a notice that an appeal had been filed; that Part 52 of the CPR read with PD 52.6A requires service of a sealed copy of a notice of appeal; that if the failure to serve a sealed copy was a deficiency that could be excused, there were no circumstances in the present case justifying the exercise of the power of the Court under CPR Part 3.10 in favour of the Appellant.
Discussion
In my judgment, issues (i) and (ii) are interrelated, in that if there is a requirement under the CPR that an appellant serve a sealed copy of his notice of appeal, the practical reasons for that may cast some light on the interpretation of section 28. I think it right to approach issue (i) at least initially as a matter of statutory construction before turning to the authorities.
I also think it necessary to be clear about what is meant by a notice of appeal or a copy of a notice of appeal or by an unstamped notice of appeal. A notice of appeal served before the appeal is filed is no more than a draft notice of appeal. It can signify no more than an intention to appeal. It differs from a copy of the filed notice of appeal in two respects. It is unstamped; and it does not bear the reference number allocated to the appeal by the Court Office. Thus a notice of appeal served before the appeal is filed is not a true or complete copy of the actual notice of appeal.
Moreover, the differences between a draft notice of appeal and notice of an appeal that has been filed are significant. Service on a respondent of a notice of appeal bearing the court stamp and appeal reference informs him that there is a pending appeal. That is particularly important if, as in the present context, there are steps that may be taken if an appeal is not in fact pending at the expiration of a specified time to appeal. If only a draft notice of appeal against an extradition order is served on the last day of the permitted period, the CPS will not know whether in fact a notice of appeal has been filed and whether they are free to effect the extradition of the person in question. To my mind, it is no answer that, as suggested by Mr Jones, the CPS may telephone the Court Office to ascertain whether the notice was in fact filed. In the first place, this puts a burden on the Court Office, and places undue weight on the accuracy and reliability of a telephone inquiry. Secondly, as the facts of Moulai demonstrate, a notice of appeal may be served, and may certainly be considered by the proposed respondent, after the Court Office has closed, so that it is impossible to make an inquiry by telephone. Conversely, a person whose extradition has been sought is entitled to know, immediately after the expiration of the permitted period under section 28, whether his extradition proceedings have come to an end. If he has been detained pursuant to section 30 he is entitled to know with certainty whether, at the expiration of the permitted period, his appeal is pending, since if it is not he has an immediate right to his liberty. Similarly the governor of the prison in which the person is detained must be...
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