Regional Court In Konin, Poland v Walerianczyk

For an appeal under sections 26 or 28 of the Extradition Act 2003, notice must be given of an actual appeal, not merely an intention to appeal. In England and Wales, that requires service of a copy of the notice filed with the court within the statutory period. A draft notice served before filing is insufficient. The applicable rules also require service of a sealed copy, although the court may waive a defect in form under CPR rule 3.10 in an appropriate case. That power is not available to cure an unjustified failure to serve the filed notice within time.

The Regional Court in Konin sought the extradition of the respondent under a European arrest warrant. A District Judge discharged him, holding that extradition would be oppressive and an abuse of process. The appellant faxed an unsealed draft notice of appeal before the statutory period expired, filed the notice on the final day, and served a sealed copy one day late.

The respondent challenged the appeal as out of time under section 28 of the Extradition Act 2003. The Divisional Court considered whether prior service of a draft could constitute notice, whether an unsealed copy was sufficient, and whether any defect could be waived.

1. Appeal dismissed. The notice of appeal was not validly given within the seven-day period.
2. Sections 26 and 28 of the Extradition Act 2003 require notice of an actual appeal. A draft served before filing communicates only an intention to appeal. In England and Wales, the document to be served is a copy of the filed notice, bearing the court stamp and appeal reference.
3. The court respectfully disagreed with the relevant effect of Sciezka v The Court in Sad Okregowy, Kielce, Poland [2009] EWHC 2259 (Admin), insofar as that decision treated service of a draft followed by filing as sufficient.
4. CPR Part 52 and Practice Direction 52 required the appellant’s notice to be filed and served, and the served notice to be sealed. The absence of a seal in an otherwise filed notice may, in an appropriate case, be waived under CPR rule 3.10. That power could not properly be exercised here because the CPS gave no adequate explanation for failing to serve the sealed notice immediately after filing.
5. The appeal was therefore dismissed as invalid.

High Court (Administrative Court): The District Judge discharged the respondent on 13 April 2010. The Divisional Court dismissed the extraditing authority’s appeal because notice under section 28 of the Extradition Act 2003 had not been validly given within time.