Update: Appeals procedure in extradition cases

Stefan Hyman, Barrister, 9 Bedford Row

Last year, we considered recent developments in appeal procedures, which included the power in s. 26(5) of the Extradition Act 2003 (“the Act”) for a first-tier appellate court in the UK to grant relief where a requested person gives notice of an intention to seek leave to appeal outside the strict time limits prescribed in s. 26(4) of the Act. We drew attention to a different approach between the High Court in Northern Ireland and the High Court of England and Wales where legal representatives make mistakes and file/service appeal notices late. Last week, the Supreme Court (Lord Reed PSC, Lords Hamblen, Leggatt, Burrows, Stephens JJSC) preferred the Northern Irish approach in Public Prosecutors Office of the Athens Court of Appeal v. O’Connor (Northern Ireland) [2022] UKSC 4. Some defence practitioners may sigh with relief since the hard-edged rule has been overturned. Although this article considers Part 1 (EU) cases, the same approach is adopted for Part 2 (non-EU) territories under s. 103(10) and s. 108(7A) of the Act.

Different approaches on either side of the Irish Sea

In Szegfu v. District Court of Pecs, Hungary [2015] EWHC 1764 (Admin); [2016] 1 WLR 322, Burnett LJ (as he then was) upheld at §§ 15-17 “the surrogacy principle” which provides that the (in)action of a legal representative cannot be divorced from her client. In the context of extradition, the requested person thus assumes responsibility for her lawyer’s failings. In Gawryluk v. District Courts of Lomza and Bialystok, Poland [2020] EWHC 3679 (Admin), a solicitor gave notice of appeal ninety-six minutes late (at 01:36) after having returned from Poland where he had attended a family funeral (§3). The single judge refused relief under s. 26(5) of the Act (albeit it seems that the single judge’s decision might have been justified by the lacklustre compliance with Crim PR 50 even after notice was given late (§§ 30-38)). In Gawryluk, the Divisional Court (Coulson LJ; Holgate J) held that there was no power to re-renew the application (§ 39).

On the other side of the Irish Sea, in O’Connor v. Greece [2017] NIQB 77 (Morgan LCJ; Gillen LJ; Burgess J), a different approach was taken by the Divisional Court in Northern Ireland. On 11 December 2015, an appropriate judge made an order for the requested person’s extradition to Greece. During the judgment hearing, the requested person’s solicitor announced orally that he (the requested person) would seek leave to appeal. On 16 December 2015, the solicitor lodged an application for leave to appeal on the appropriate court but failed to given notice to the Crown Solicitor’s Office (“CSO”), which represents requesting authorities in Northern Ireland, just like the Crown Prosecution Service (“CPS”) in England and Wales. The error only came to light on 4 January 2016 following a conversation with counsel. Nevertheless, on 18 December 2015, the day after the notice period expired, the parties had appeared at a bail application at which it was readily understood that the requested person had sought leave to appeal (§§ 2-3).

The High Court in Northern Ireland considered Szegfu but declined to follow it. It held that the English Divisional Court did not properly follow Pomiechowski and Ors v. District Court of Legnica, Poland and Ors [2012] UKSC 20; [2012] 1 WLR 1604 (Lord Phillips PSC, Lady Hale JSC, Lords Mance, Kerr, Wilson JJSC, as some then were). Giving judgment in that case, Lord Mance held that the surrogacy principle was not absolute. Given the nature of rights protected, in extradition and immigration cases, the fact that a person may have an action in damages against her solicitor is insufficient where “the very essence of a right” is denied (§§ 36-37). In O’Connor, the High Court expressly departed from Burnett LJ’s reading in Szegfu where his Lordship held that the natural meaning of the word “person” in s. 26 of the Act meant that the requested person and her agent were one: “We do not accept that interpretation. There is nothing in the statutory wording to require it and it could give rise to irremediable procedural unfairness” at §14.

The CSO appealed and, almost four-and-a-half years, later the Supreme Court gave judgment. Those worried about the lack of expediency should note that the requested person was released from custody on 18 December 2015 (§12), and the substantive appeal had been allowed under Article 3 ECHR on account of conditions of imprisonment at Korydallos Prison in O’Connor v. Greece [2017] NIQB 88 (Morgan LCJ; Burgess J), something which, incidentally, the appellate courts in England and Wales and Northern Ireland are ad idem (see Marku and Murphy v. Greece [2016] EWHC 1801 (Admin) at §20 (Burnett LJ; Mitting J, as each then was). The CSO gave an undertaking to the Supreme Court that the requested person would not be arrested on foot of the same European arrest warrant in the UK irrespective of the outcome of the case (§18).

The Supreme Court’s approach

In his judgment, Lord Stephens explained the legislative history of s. 26 of the Act and how the very strict time limits in the Act came about. His Lordship was at pains to explain how the original lack of jurisdiction to provide any relief together with the requirement to give notice on the representatives of the requesting state had already caused substantial injustice and led to widespread judicial disquiet (§§ 20-37). Confronting the surrogacy principle head on, Lord Stephens (who found Burnett LJ’s comments in Szegfu to be obiter (§42)) held that the actions of a requested person can and should be divorced from her legal representative (§48) and the English Divisional Court’s narrow reading of the word “person” in s. 26(5) did not cohere with the mischief which the provision sought to prevent. His Lordship held that the new subsection did not only seek to prevent unrepresented requested persons from realising their appeal rights but also sought to combat wider injustice that can arise from absolute inflexible time limits (§49). As such, the Supreme Court held at §49 that: “the true interpretation of that section is that there should be jurisdiction to entertain an application for leave to appeal if the person ordered to be extradited had himself done everything possible to ensure that the notice was given as soon as it could be given even though his legal representative had failed to do so. Lord Stephens also held that the surrogacy principle was not of universal application (§50), something which chimes with Lord Mance’s conclusion in Pomiechowski at §37.

Nevertheless, the Supreme Court expressly upheld the other considerations in Szegfu, namely: (1) the burden of proof rests on the requested person; (2) an explanation must be given for all/any delay; (3) witness statements are required from the requested persons and legal representatives; (4) the interests of justice test does not consider the wider merits of the proposed appeal (§§ 12-14).

Practical Tips for Practitioners

The decision in O’Connor is principled and accords with fundamental rights. We venture to suggest that the case of Gawryluk may have been decided differently now. However, Supreme Court’s intervention should not be seen as carte blanche to legal representatives to serve notices of appeal late, or improperly, just because a requested person herself had not failed to act expeditiously, and/or had instructed lawyers. Where notice is given late, witness statements will be required from the solicitor and, potentially, the requested person too. Indeed, there may be cases in which legal representatives have to withdraw where there is a conflict between a client and her solicitor’s evidence. Finally, it remains to be seen how forgiving single judges will be, bearing in mind the lack of renewal or the right to request an oral hearing.

At the end of his judgment (§47), Lord Stephens commended the approach in Northern Ireland in which requested persons are given a form in their own language which explains the time limit, how to lodge an appeal, how to serve a copy on the requesting state and the necessary content thereof. The form also implores that, where represented by solicitors, requested persons should seek confirmation that the appeal has been lodged and, if not, they should serve notice themselves. This approach goes further than the oral information that an appropriate judge gives a requested person when handing down judgment at Westminster Magistrates’ Court. First, there is specific information. Second, the information is written. Third, it is given in a requested person’s own language. Consideration may be given as to whether a similar approach should be adopted at Westminster. This would require a notice to be agreed between the parties (we venture DELF, the CPS and the Court) and translated into different European languages, with copies available at the back of court-room 3.

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