Lumenica v Government of Albania

LORD JUSTICE MOSES: There are before the court four cases in which the appellants are seeking to appeal under either Part 1 or Part 2 of the Extradition Act 2003. All the cases raise issues as to whether the appeals were within the strict time limits of 7 days, imposed by section 26(4) of the 2003 Act in relation to Part 1 Territories, or of 14 days imposed in respect of appeals in relation to Part 2 Territories. They also raise issues as to the proper procedures for launching appeals. All therefore required this court to apply the principles recently identified by the Supreme Court in the judgment of Lord Mance, who gave the judgment of the majority in R(on the application of) Halligen v Secretary of State for the Home Department [2012] UK SC20. It was one of a number of cases considered.

In Halligen, the Supreme Court decided that British citizens are entitled to a fair determination of their common law right to remain within the jurisdiction. Proceedings under the Extradition Act 2003 involve a determination of their civil rights (see paragraph 32). Such proceedings therefore fall within Article 6.1 of the European Convention of Human Rights. They must be free of limitations impairing the very essence of the right of appeal and involve a reasonable relationship of proportionality between the means employed in extradition cases, the imposition of strict time limits and the aims sought to be achieved, that is a speedy surrender in accordance with the Framework Directive, or ensure that extradition is not unduly allayed under Part 2 extraditions (see paragraph 33 in Tolstoy Miloslavsky v United Kingdom [1995] 20 EHRR 442).

The imposition of strict time limits which, as in Mucelli v Government of Albania [2009] 1 WLR 276, might prevent the High Court from hearing an appeal, may impair the very essence of the right of appeal and be disproportionate (see paragraph 37). Accordingly:

Where a notice of appeal has been filed and all respondents are on notice that they should not proceed with extradition pending an appeal, a generous view should be taken of the statutory requirement that the notice of appeal must be given in accordance with the rules of law: (section 26(4) in relation to Part 1 extraditions and under Part 2, see for example section 103(9), and section 108(4)). But irregularities can only be cured by seeking and obtaining the court's permission (see paragraph 18). It is on the basis of that decision that these four appeals are brought and were listed together, no doubt to obtain this court's views as to how, in practice, the Supreme Court's decision should be deployed.

I deal first of all with the appeal of Lumenica, also known as Bedri Kulla. The appellant Bedri's surrender is requested by the Government of Albania by an extradition request pursuant to section 70 of the 2003 Act since Albania is a designated Part 2 Territory. It is asserted in that request that this appellant was convicted of the murder of two people and the illegal possession of firearms in May 1997. He was convicted in his absence after trial. The issue before the Deputy Senior District Judge Wickham was whether the appellant was Bedri.

She ruled that the person requested was the person named in the request. On 12 April 2012 the Secretary of State made an order for his extradition and sent it to Metro Law Solicitors who were then acting. A fax was sent at 3.30 pm in the afternoon. On 26 April the appellant lodged with the Administrative Court a notice of appeal in form N161 and on 27 April the letter enclosed in that was received by the CPS Special Crime Division who would be acting in relation to putting into effect the extradition. The appellant's notice of appeal was therefore filed one day out of time and the notice served on the respondents was out of time by two days.

The Government of Albania, supported by the Secretary of State who is not concerned in this appeal in the sense that there has been no proper appeal against her decision, contend that there is nothing exceptional about those facts. There has been no explanation of how the error of one or two days, pursuant to section 103(9) and section 108(4), came to be made. In my view, the explanation is not relevant because it is plain that the error cannot be laid at the door of the appellant, who is in custody. There is no basis for examining what more the solicitor could have done to ensure that the notice was served and lodged in time.

I accept that it is important for this court to consider the extent to which the failure to file and serve notices of appeal in time can be attributed to the fault on the part of the requesting person. Lord Mance referred to the power to permit and hear out of time appeals to be conferred to the benefit of one who, "personally has done all he can to bring and notify the respective parties timeously" (see paragraph 39). For example, it may be that a requested person has failed to give instructions in good time or failed to give adequate instructions. Those would be powerful factors against extending time. In the instant cases, as I have said, no explanation was given as to why the documents were lodged out of time, but that in my view is not fatal to the application to extend time in circumstances where different solicitors have now been instructed and it is not known why the original solicitors did fail in those respects.

I recall the situation in Halligen. In Halligen, different solicitors had been instructed by the time the application to extend the time was made and there appears to be no explanation from the original solicitors.

There is, I repeat, nothing to suggest that the appellant who is in custody is at fault, nothing to suggest that he instructed his solicitors too late. It was argued that it is the responsibility of litigants in their own case to bear in mind that which they are told at the outset, both by letter and by the District Judge that there are, in Part 2 cases, only 14 days to appeal and they remain responsible for their own case. It was therefore said that before time expired they should either chivvy or chase lawyers to ensure that the documents were lodged properly and in time. I reject that submission. The courts should consider the facts with some eye to the practicalities. It is absurd to suggest that this applicant ought to have contacted his solicitors before or immediately after the time expired and tell his solicitors to make sure that they file and serve in time. It seems to me that this is a paradigm case for extending time and I would order that that should be done so that the appeal can be heard on the merits.

I turn then to the case of Ragul v Government of Azerbaijan. The extradition of these appellants was sought by the Government of Azerbaijan so that they could stand trial for offences of illegal access of computer information contrary to the Criminal Code of Azerbaijan. The request was made under Part 2 of the 2003 Act, since Azerbaijan is a category 2 territory. On 22 December 2011, District Judge Rose at Westminster Magistrates' Court found no bar to extradition and sent the appellant's case to the Secretary of State for her decision pursuant to section 87(3) as to whether the appellant should be extradited. On 1 February the Secretary of State ordered the extradition of the appellants to Azerbaijan pursuant to section 93(4) of the 2003 Act. The Secretary of State's orders for extradition, together with a covering letter, were faxed to the appellant solicitor on 2 February at about 1.20 pm and posted on the same day, although they were received only later. The appellants were required to file their notice of appeal and serve it on the respondent by midnight on 15 February 2012, since the 14-day permitted period began on 2 February 2012. Unfortunately, the solicitors wrongly believed that the 14-day period began on 3 February and the deadline for filing and serving was therefore the following day, midnight on 16 February 2012. It was on that date that the appellant's solicitor went to the Administrative Court Office, paid the relevant fee and filed the notice of appeal that afternoon and served it on the CPS Extradition Unit at about 4.00 pm on the same day. Both the filing and the serving of the appeal notice were therefore one day out of time. The Secretary of State was notified two days out of time on grounds of appeal and the form N161 were faxed on 17 February 2012.

The failure not only to serve the respondent, the Government of Azerbaijan, in time but also the Secretary of State some 35 hours later raises an additional issue. The statute of the 2003 Act does not require the appellant to serve the Secretary of State but there is a requirement under the rules that the Secretary of State be served. The requirement to serve the Secretary of State is to be found in Practice Direction 52, paragraph 22, 6a(5) and (6), A(12). The requirement to comply with practice directions in appeals is to be found in CPR Part 52.2.

This court, in R(on the application of Aldhouse and the Government of Thailand) v Secretary of State for the Home Department [2012] EWHC 191 (Admin), shortly before Halligen was decided, ruled that although there had been no failure to comply with the statute by reason of the failure to serve the Secretary of State, nevertheless, there had been a failure to comply with the rules to which I have referred. But the court ruled that despite that failure to comply with the rules that was not sufficient to deprive the court of its power to permit the failure to be remedied pursuant to CPR 3.10.

Whilst a failure to comply with the statute would constitute a failure which could not be remedied, nevertheless, this failure to serve the Secretary of State within time could be (see paragraph 36). Aldhouse was not considered in Halligen. No doubt it was too late to be incorporated in any consideration of the issues in Halligen and the other appeals. But, in my view, it remains good law. There is nothing, either in Mucelli v Government of Albania [2009] 1 WLR 276, or in Halligen itself, that suggests that the distinction drawn between that which the statute requires in relation to the filing and serving of documents in time and the requirements under the rules but not under the statute (the distinction drawn in Aldhouse) is other than good law. This court should follow the decision in Aldhouse unless it is plainly wrong. In my view, it is not plainly wrong; on the contrary, it is correct.

As to the failure to file and serve in time, Mr Cauldwell, in clear submissions on behalf of the Government of Azerbaijan, points out that there has been no grounds advanced to show that this is an exceptional case and he reminds this court of the importance of paying due attention to the strict time limits imposed by Parliament.

There is in this appeal an explanation from the solicitor acting on behalf of the appellants, Lloyds PR solicitors, as to what occurred. He admits the error and points out that he only realised he had miscalculated the time when he received a letter from the Treasury Solicitor dated 2 March 2012. The Government of Azerbaijan contends that that is inconsistent with what the solicitors had written in their application. There is, in my view, no such inconsistency. It is plain this was such an error. Mr Cauldwell, nothing daunted, then suggests that time should not be extended because neither of these appellants made, as he put it, any personal effort to ensure that the appeals were lodged and served within the time limit. He based that submission on the reference in paragraph 39 that Lord Mance had made to those who had done all they could in order to ensure that the appeal is launched timeously.

The force of that submission by the Government of Azerbaijan can be tested against what this court knows about these two appellants. Kishor Ragul is an Indian of Tamil origin who left school at the age of 15 when he came to the United Kingdom and received no further schooling. He works as a shop assistant. He is described as suffering from paranoid psychosis which has a major impact on his day-to-day functioning. Thanikasalam Nadarajah was born in Sri Lanka and was schooled either until he was 13 or 14 in Jaffna, came to the United Kingdom in 1990 and has been working as a shop assistant. His native tongue is Tamil and his grasp of English very limited. He only understands the odd word and cannot construct complete sentences or read or write in English. He communicates with English speakers through an interpreter. These are the appellants who are supposed, according to the Government of Azerbaijan, to ring up and check up on their solicitors to ensure that the time limits are complied with. These two instructed their solicitors in time and were entitled to leave it to them. Lord Mance is surely not to be read as imposing such unrealistic requirements on litigants themselves. Of course they bear responsibility for the litigation, particularly if they are on bail, but they have fulfilled their responsibilities by instructing solicitors, so far as they were able in good time. If there had been substantial delay in these appeals, which there was not, they might well have been expected themselves to find out what was happening. They had, after all, been told by letter and by the District Judge as to the limited time they had for appeal.

But as Halligen itself demonstrates, those in custody, unlike these two appellants, labour under greater difficulties in obtaining access to advice and those are factors which are properly to be taken into account by a court (see paragraph 37 in Halligen).

It was further submitted on behalf of the Government of Azerbaijan that there was nothing exceptional in this case. Whatever that means, it can hardly be suggested that the exercise of the power of the High Court to extend time should be dictated by some statistical analysis of how frequently solicitors fail to count the number of days correctly. The use of the expression "in exceptional circumstances" serves as a reminder to the High Court not to erode time limits fixed by Parliament unless the justice of the case so demands. When Lord Mance referred to exceptional circumstances, he cannot have been imposing a test of exceptionality since to describe a set of circumstances as exceptional is not to impose any legal test, still less to set out some standard against which courts should operate (see Huang v Secretary of State Home Department [2007] 2 AC 167 at page 188, paragraph 20).

The description of circumstances as exceptional no doubt involves a warning to courts to be cautious before extending strict time limits and to be careful to scrutinise the facts to ensure that a requested person bears no responsibility for delay. It also involves a prediction that cases of extension will be rare. But there is no evidence in this case or any of the other cases that solicitors are unaware of the need to comply or fail to comply, in ordinary cases. But even if mistakes such as these were common, there is no justice in merely asserting that because solicitors frequently miss time limits -- as to which this court has no evidence ... in circumstances where they ought not to have done the requested person should be deprived of the opportunity for appeal in cases where justice demands that he should not be so deprived. I would extend the time limit in these appeals and allow there the appeals of these two men to proceed.

I turn then to the appeal of Ratajczak v Judicial Authority of Poland. This appeal poses the difficulty that the European Arrest Warrant has been complied with after fully contested proceedings. The proposed appellant is no longer within the jurisdiction. The appellant says that that is due to an administrative error of the court. The respondent, the Judicial Authority of Poland, contends that the responsibility lies in the solicitor's failure to comply with the rules.

The Judicial Authority of Poland sought the extradition of the appellant in respect of five offences, including assault and criminal damage, and obstruction of a police officer. Poland is a category 1 territory. The appellant had failed after, it should be noted, custodial sentences had been imposed and suspended to produce himself to the relevant prison in Poland. On 9 March 2012, after hearing the fully contested extradition proceedings, Senior District Judge Riddle ordered the appellant's extradition to Poland pursuant to the European Arrest Warrant issued on 28 November 2008. The appellant is now imprisoned in Poland. Pursuant to the order made under section 21(3) of the 2003 Act, he was surrendered to Poland on 3 April 2012.

The circumstances in which that came about start with the decision of District Judge Riddle, the Senior District Judge. The argument advanced on behalf of Mr Ratajczak was that it would be oppressive and unjust to surrender him because of his mental and physical condition, invoking section 25 of the Extradition Act and particularly Articles 3 and 8 of the European Convention on Human Rights. After a full hearing, District Judge Riddle rejected that argument. He considered the evidence of Dr Hall as to Mr Ratajczak's medical condition and took the view that there were adequate facilities within the Polish prison system which would enable appropriate medical care to be received in Poland.

Before the time for appealing expired on 15 March 2012, the appellant's solicitors faxed a notice of appeal on 14 March 2012, the day before. This, so they contend, was a proper filing. On the same day they faxed the respondents, the Judicial Authority of Poland, notifying them of the lodging of an appeal. It was contended on behalf of the appellant that that was a proper method of filing a notice of appeal. This was based on the reference in Mucelli v United Kingdom (q.v. supra made by Lord Neuberger at paragraph 85) when he suggested that proper notice of appeal could be given by a fax.

The court has no record of this fax and it was the absence of records, so the appellant contends, which led to the problems in this case. It is now accepted that the appellant did fax a form of notice to the court, which said:

The events that followed are to be found in a statement from Lisa King of the Serious Organised Crime Agency. She says that she telephoned the Administrative Court on 16 March 2012 to ascertain the court's reference for the appeal. She was informed no appeal had been lodged with any spelling of the name. She sent an e-mail on 22 March asking to be advised if an appeal had been lodged and a reply was received the following day, 23 March, that there was no record of this name on the system. She requested a new handover period pursuant to section 35(4)(b) of the 2003 Act and started to make arrangements for removal.

On 2 April, the appellant contacted his solicitors after office hours, outlining his fears that the prison service was arranging his removal for the following day. The solicitors told him they had submitted his appeal and they would make further enquiries. They made those further enquiries the following day and discovered that in fact he had been surrendered to Poland on 3 April 2012. The solicitors thereafter contacted the Administrative Court and sought to regularise the position by paying a fee on 5 April 2012. It was on that day, the court confirms, that a reference number for the appeal was issued.

The appellant contends through his solicitors that this was an administrative error and a fault on the part of the court; I disagree. The error was made by this appellant's solicitors. As I have already indicated in another appeal, there is a requirement under Part 52 that all parties to an appeal comply with Practice Direction 52. The practice direction refers to the periods within which an appeal must be lodged (see 52.22.6A of 52PD.120). The Practice Direction in relation to finding documents in court by facsimile is contained in Practice Direction 5APD.65.3. This enjoins those seeking to file documents where a document attracts a fee not to use a fax except in an unavoidable emergency (see 5.3(9)(a)). Further, pursuant to 5.3(10), where (9)(a) applies, the fax should give an explanation for the emergency and include:

It can readily be seen that had that undertaking been given, which it was not, and had the solicitors attended the court the following day, which they did not, then the error of failing to put in the list the fax and keep a record of it would have been cured. The error, therefore, lay in the failure of the solicitors to comply with the requirements I have identified. However, that was not the fault of the appellant who is now in prison, and -- despite a number of requests as to how he was doing in prison, both by SOCA and in enquiries to which a letter dated 25 April 2012 refers, and in further letters from those instructed by the appellant on 6 June 2012 and 9 July 2012 in respect of which there has been no reply -- there has been no information as to his medical or physical condition. The Polish authorities have given notice as to where he is detained, but apart from that, nothing is known.

It is in those circumstances that the appellant relies upon the decision of this court in Balzas Asztaslos v The Szekszard City Court, Hungary [2010] EWHC 237 (Admin) in support of the proposition that this court should hear his appeal. In that case, Aikens LJ described the fact that the appellant had been extradited and notwithstanding that he had lodged an appeal as a regrettable administrative error. The removal was apparently accepted to have been erroneous and the Szekszard City Court in Hungary did not object to the appeal without conceding the point of principle. The court then heard the appeal and dismissed it on the grounds on which it was advanced. The court thus gave no indication as to what remedies would have been available had it allowed the appeal. Nor did it give any ruling on the point of principle.

I must recall that if there is to be an appeal, the failure to comply with the Practice Direction which I have identified requires that defect to be cured. I must also recall that there was an error on the part of the solicitors which would have avoided this chain of events. Poland is a Part 1 Territory. There is no evidence before the court at present that in the Polish system this appellant will not be properly dealt with. Indeed, the evidence seems to suggest, arising out of his failure to surrender, that in the past by reason of his condition, periods of custody have been suspended so that he could be treated. Whilst he might have a remedy against his solicitors, there is no evidence, no material to suggest that either the requesting state or the requesting authority, the Judicial Authority in Poland, still less SOCA, has behaved improperly or wrongly.

In my view it is quite wrong that this court should hear appeals unless it is satisfied that steps could be taken to unwind the effect of section 35 of the 2002 Act. I am far from satisfied that it is possible to unwind the effect of section 35. I propose therefore to adjourn the question whether, if cured, the defect in failing to give any undertaking would have any point. Whether it would have any point will turn on the question as to whether there is anything now left in the appeal and whether, even if there is, the process of extradition which took place could be unwound; as to both points I have considerable doubt. I would require material that the appellant is suffering, as it was predicted he would suffer now that he is in prison, and material to show that he wishes to continue to pursue the appeal before considering whether the defect in the procedure that I have identified should be cured. I shall reserve this matter to myself. Any directions as to the future progress of the appeal should be sought from me in writing and the court should be notified in further skeletons as to the up-to-date position, if it is possible to find out about it, of this appellant and as to whether he wishes to pursue the appeal and as to whether and what arguments are to be deployed as to how the process of extradition of surrender can be unwound. I require that further information and skeleton argument by 1 October 2012. It will then be listed at the court's convenience thereafter.

I turn then to the fourth appeal, the appeal in Demkowski v Regional Court of Law in Czestochowa. Jarowlaw Demkowski is a Polish national. He is not a Polish citizen. He was arrested pursuant to a European Arrest Warrant on 14 May 2012. He appeared before District Judge Snow at Westminster Magistrates' Court on 15 May 2012. There was then an uncontested extradition hearing. It was not sought to argue that the extradition, the matters for which his surrender were sought did not amount to extradition offences, and no bars to extradition were raised. No issue was taken under section 20 or section 21 of the 2003 Act. The judge ordered his extradition and he was remanded on conditional bail. The appellant runs his own construction business. It is plain that he failed to raise the points that he wishes to raise now by way of appeal invoking Article 8 of the European Convention at the time of the original hearing and despite the fact that he was represented. He lodged his notice of appeal on 22 May 2012, one day out of time, and notice to the CPS was faxed on 28 May and posted so that it was received on 6 June, 23 days after the extradition was ordered. That is not a promising beginning to this application. Nor, sadly, does this application have a promising end. As I have recalled, this appellant is not a British citizen. None of the rights to which the protection in Article 6 attaches apply. He has no common law or civil right to enter and remain in this country.

As the authorities to which Lord Mance referred in Halligen, particularly at paragraph 31, time after time, both the European Court of Human Rights and the European Court of Justice have reiterated that the European Treaty and the Convention does not trench upon the rights of nationals in relation to their own state (see in particular Halligen at paragraph 31). In the face of that stream of authority, the Supreme Court identified a different type of case, that is, the case of a state's own citizen whose rights may be litigated in procedures to which Article 6 affords protection.

But as to the distinction between a national and what is described as an alien, that is the distinction which has its roots in authority of long and indisputable standing. In Moustaquim v Belgium [1991] 13 EHRR 802, at paragraph 49, the court pointed out that nationals have a right of abode in their own country and cannot be expelled from it (see paragraph 49). In the R(on the application of) Al Rawi & Ors. v Secretary of State for Foreign and Commonwealth Affairs [2008] (QB) 289, at paragraph 78, the court identified a proper and legitimate basis of distinction in relation to nationals and others which is legitimate for the purposes of the Race Relations Act 1976 (see paragraph 78).

I would rule in those circumstances that the nationality of British citizens is a proper basis of distinction between a Polish national, a citizen of the European Union and the United Kingdom so that I would rule, even if there was any merit in this application for an extension, that this court has no power to grant an extension in the case of those who are not British citizens. In any event, as I have indicated, there is no merit in the appeal. That is a relevant circumstance where the court can see on the face of the papers that the appeal has no chance of success; it had none in this case. I would therefore rule that there can be no appeal; it is out of time.

Thank you all very much.

MRS JUSTICE NICOLA DAVIES: I agree.

MS WARD: My Lord, I appear for Mr Ragul. An application has been submitted for the appellants to be represented by both Queen's Counsel, assisted by junior counsel in the appeal, but a determination on the application was delayed pending the outcome over this primary issue. Is that something that my Lord could indicate?

LORD JUSTICE MOSES: Have I got any power to deal with the representation?

MS WARD: I am grateful.

LORD JUSTICE MOSES: I do not know whether I have or not.

MS WARD: I am told that my Lord does have power.

LORD JUSTICE MOSES: Where do I find it?

MS WARD: It is before the court. I can resolve it after.

LORD JUSTICE MOSES: I am not prepared to say anything about representation, you will have to apply to the appropriate authorities. Is he legally assisted?

MS WARD: He is, yes.

LORD JUSTICE MOSES: They both are, are they?

MS WARD: Both.

LORD JUSTICE MOSES: I do not know what powers there. Is that not a matter for the Legal Services Commission?

MS WARD: An application has been submitted to the court already.

LORD JUSTICE MOSES: Well, I have not got it.

MS WARD: No, in which case it can be resolved.

LORD JUSTICE MOSES: Well, it had better be resolved elsewhere, I am not prepared to resolve it today, I have got other things in the list.

MS WARD: Okay.

LORD JUSTICE MOSES: Anybody else got anything following from that about costs or anything else? No? Right. Perhaps everything else can be dealt with on the appeals.