Sciezka v The Court In Sad Okregowy, Kielce, Poland

Under section 26(4) of the Extradition Act 2003, an extradition appeal notice must be filed and served within the statutory seven-day period. The court cannot extend that period or dispense with filing or service. The Act fixes the time limit, while the CPR and practice directions govern the manner of filing and service. The court may remedy non-compliance with procedural requirements where necessary to give effect to the overriding objective. In an exceptional case, a faxed notice may therefore constitute valid filing and service, particularly where the court office wrongly refuses an in-time application. That conclusion does not generally authorise non-compliance where the court office is willing and able to accept the application.

A District Judge ordered the applicant’s extradition to Poland on 12 January 2009. His solicitors attended the Administrative Court on 19 January, within the seven-day period, to file a notice of appeal, but the court office initially refused to accept it. They faxed the notice to the court office and the respondent that afternoon, and hard copies were lodged and stamped on 20 January. Following the House of Lords’ decision in Mucelli v Government of Albania, the respondent disputed whether the appeal had been filed and served in time. The issue was whether the faxed documents constituted valid filing and service despite non-compliance with procedural requirements.

Lord Justice Sullivan gave the substantive judgment, with Mr Justice Wilkie agreeing.

1. The seven-day period in section 26(4) of the Extradition Act 2003 expired at midnight on 19 January 2009. Following Mucelli v Government of Albania [2009] UKHL 2, the notice had to be both filed and served within that period, and the court had no power to extend the time or dispense with filing or service.
2. The statutory provision fixed the time for filing and service. The manner of carrying them out was governed by the CPR and its practice directions. The court retained power under CPR 3.10 to remedy procedural errors and should exercise that power where necessary to give effect to the overriding objective under CPR 1.2.
3. This was an appropriate and exceptional case for that power. The solicitors had attempted to file the notice in person within time, but the Administrative Court office had wrongly refused to accept it. The notice was then faxed to the court office and the respondent within the statutory period. The court authorised that method of filing and service, notwithstanding the practice directions concerning sealed copies, fees and hard copies.
4. The decision depended on the particular and most unusual facts. It did not generally authorise filing or service otherwise than in accordance with the CPR and practice directions where the court office was willing and able to accept an in-time application and had not wrongly refused it.
5. The court declared that there was a valid appeal under section 26(4). The interim injunction fell away, but the respondent undertook not to remove the applicant. The applicant was awarded costs, subject to detailed assessment.

The judgment records that:

• City of Westminster Magistrates’ Court: District Judge Tubbs ordered the applicant’s extradition on 12 January 2009.
• Divisional Court: An interim injunction preventing removal was granted on 23 January 2009 pending determination of the application for injunctive relief.
• High Court (Administrative Court): The court declared that the appeal was valid under section 26(4) of the Extradition Act 2003.