Zoltowski v Regional Court In Plock the Circuit Court

An appeal against an extradition order must be notified and served within the statutory seven-day period. Failure to serve the prosecuting authority within that period is fatal and leaves no valid appeal before the court.

Fresh evidence may support an extradition appeal only where it was unavailable at the extradition hearing and would have led the judge to decide the relevant question differently. Evidence that existed and could reasonably have been obtained earlier does not satisfy that requirement.

The appellant appealed against an order requiring his extradition to Poland under section 21(3) of the Extradition Act 2003. The order concerned two European Arrest Warrants and was made after an uncontested extradition hearing.

The appellant relied on the health and schooling of his children, the absence of family support in Poland, and the risk that his children would enter local authority care. The respondent argued that the appeal was invalid because the Crown Prosecution Service had not been served within the required time, and that the proposed evidence was not admissible as fresh evidence.

1. Appeal dismissed. The appellant failed to serve the Crown Prosecution Service with notice of appeal within seven days of the extradition order.
2. Section 26(4) of the Extradition Act 2003 requires notice of an appeal to be given in accordance with the rules of court within the permitted period. Paragraph 22.6A of Part 52 of the Civil Procedure Rules 1998 requires the appellant’s notice to be filed and served within seven days beginning with the day of the order.
3. Applying Mucelli v Government of Albania [2009] 1 WLR 276, the failure to serve the Crown Prosecution Service was fatal. The court therefore had no valid appeal to determine and dismissed the appeal.
4. For completeness, the court stated that the appellant would also have faced serious difficulty relying on evidence concerning the effect of extradition on his children. Under section 29(4) of the Extradition Act 2003, the evidence had to be unavailable at the extradition hearing and capable of resulting in a different decision on the relevant question.
5. Following the approach stated in The Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), evidence is unavailable only if it did not exist at the hearing, or was not at the party’s disposal and could not have been obtained with reasonable diligence. This point was not argued or decided because the appeal was jurisdictionally invalid.

• High Court (Administrative Court): the appellant appealed against the order of Deputy Senior District Judge Wickham dated 19 July 2010 requiring extradition to Poland. The appeal was dismissed.