Niziol v District Law Court In Tarnobrzeg, Poland

The Civil Division of the Court of Appeal has no jurisdiction to entertain a second appeal in an extradition matter from the Divisional Court. Extradition is a criminal cause or matter, and the appellate route at the material time was to the House of Lords. A refusal by the Divisional Court to certify a point of general public importance cannot confer jurisdiction that the Civil Division lacks. A proposed Convention-compatibility issue does not alter that conclusion. Separately, Article 23 paragraph 4 of the Framework Decision permits temporary postponement of surrender for serious humanitarian reasons, including substantial grounds of danger to life or health. That mechanism is reflected in sections 35(4) and 36(3)(b) of the Extradition Act 2003. The Court did not determine the merits of any postponement request.

The appellant faced extradition to Poland under a European arrest warrant concerning fraud and associated offences. He relied on poor psychological health. The Deputy Senior District Judge held on 1 December 2006 that his condition did not make extradition unjust or oppressive and ordered extradition on 5 March 2007. The Divisional Court dismissed his statutory appeal and judicial-review proceedings on 18 April 2007 and refused a certificate for a point of general public importance. In the Court of Appeal, he sought permission to appeal, relying on further deterioration and alleged incompatibility of the Extradition Act 2003 with Convention rights. The central issue was whether this court could entertain the application and, if not, whether a statutory mechanism could address changed health circumstances.

The application was dismissed for want of jurisdiction. Lord Justice Moses agreed with Lord Justice Sedley. The formal order was No jurisdiction.

1. Nature of the proceedings and appellate route. Extradition is a criminal cause or matter. The Court of Appeal relied on Cuoghi v Governor of Brixton Prison [1997] 1 WLR 1346, where that classification had been held. The accepted route for a second appeal in an extradition matter, before and after the Extradition Act 2003, was from the Divisional Court to the House of Lords. The Civil Division therefore could not entertain the application.
2. Jurisdiction could not be created by procedural obstruction. The Divisional Court’s refusal to certify a point of general public importance, which prevented an application to the House of Lords for leave, did not confer a jurisdiction that the Court of Appeal otherwise lacked. The proposed Convention-compatibility issue made no difference. Any available remedy had to be pursued in another forum.
3. Health-related postponement. The court noted, without deciding the merits or predicting the outcome, that Article 23 paragraph 4 of the Framework Decision permits temporary postponement of surrender for serious humanitarian reasons, including substantial grounds that surrender would manifestly endanger life or health. Surrender is to occur when the grounds cease and within ten days of a new date agreed by the executing and issuing authorities. The Extradition Act 2003 reflects that mechanism in sections 35(4) and 36(3)(b). The court also indicated that the process would need to comply with the Human Rights Act 1998. This fallback route supported the view that the health issue was not without a proper forum. The Court of Appeal itself was not that forum.

• Court of Appeal (Civil Division) — On 6 June 2007, held that it had no jurisdiction to entertain the application for permission to appeal and made the formal order no jurisdiction: [2007] EWCA Civ 596.
• High Court of Justice, Divisional Court — On 18 April 2007, dismissed the statutory appeal and judicial-review proceedings and refused a certificate that a point of general public importance was involved. No citation is stated in the judgment.
• Deputy Senior District Judge — On 1 December 2006, held that the appellant’s health condition did not make extradition unjust or oppressive; on 5 March 2007, ordered extradition.