21 Mar 2017, 33 mins ago

High Court considers first “out of time” appeal under the new rules

Since 15 April 2015 there has been a requirement to apply for ‘leave to appeal’ in extradition cases. Previously there had been an automatic right to appeal. The time limits to appeal under the Extradition Act 2003 have always been strictly interpreted. It has been argued that had the potential to cause injustice in certain cases. As a result a further amendment was made to the Extradition Act 2003 to allow the High Court to overlook the failure to comply with the strict deadline in certain circumstances.

On 24 June 2015 the High Court gave judgment in the case of Szegfu v Hungary. This was the first case in which this new provision regarding time limits has been considered by the court.

Under Part 1 of the Act – in European Arrest Warrant Cases – there are 7 days in which to appeal. The appellant had no lawyers representing him at the full extradition hearing in the Magistrates’ Court. His extradition to Hungary was ordered on 12 March 2015. He did not appeal within 7 days. However, on 16 March 2015, he did lodge an application for asylum. No extradition can take place whilst there is an asylum application outstanding. On 15 April 2015 the new provisions regarding appeals came into force – including the subsection, which permitted an appeal out of time in limited circumstances.

The provisions regarding appeals under Part 1 of the Act 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 Appellant did not appeal within the 7 days after his extradition was ordered. Neither did he appeal on 15 April 2015 when the new provisions came into force. However, the court heard that on 1 April 2015 the appellant spoke briefly with an extradition solicitor and met with her again on 17 April 2015. An appeal notice was completed and ready for service on 20 April 2015. There was a statement completed by the solicitor explaining that she was acting pro bono and explaining the delay in service of the notice. The appellant was going to serve the notice himself. In fact the appellant did not lodge the notice of appeal until 27 April 2015. There was no explanation for this delay.

The High Court noted that (once he had missed the original deadline to appeal in March) given the change in the rules it was not possible to serve notice before 15 April 2015. The High Court indicated that it would not criticise the five days it took to prepare the notice and bundle of papers by 20 April 2015. However, there was no explanation as to why the notice was not lodged at the High Court until 27 April and was not served on the CPS until 8 May 2015.

In the circumstances of this case the High Court was unwilling to entertain the application under s.26(5) of the Act and his application for leave to appeal failed.

The test in s.26(5) is straightforward – a person must do everything reasonably possible to ensure that notice is given as soon as possible. Nevertheless the High Court did provide some guidance in terms of its interpretation of this new provision:

1.The burden of establishing that everything reasonably possible was done rests upon the appellant. He must satisfy the court on the balance of probabilities. An application for permission to appeal to the High Court may be determined without a hearing. Therefore, ordinarily any question raised under section 26(5) will be dealt with on the papers. Given the nature of the test, it is clearly necessary for an appellant to give a comprehensive explanation covering the entire period of delay.
2.The statutory test requires the court to determine whether the appellant has satisfied it without consideration of the underlying merits of the appeal. The focus is entirely upon the reasons why the appeal is late.

3.The question is whether the appellant has demonstrated that he “did everything reasonably possible to ensure that the notice was given as soon as it could be given”. This enquiry must relate to whether the appellant did everything reasonably possible to ensure that the notice was lodged with the court and also given to the respondent.

The case of Szegfu illustrates that the limited relaxation to the rules provided for in s.26(5) should not be taken as an invitation to appeal out of time. Anyone who wishes to appeal against an extradition order – particularly in a European Arrest Warrant case – must take advice as soon as possible. Should you wish to speak to a member of our team please do not hesitate to contact us.