Lukaszewski v The District Court in Torun, Poland

An extradition appeal must be filed and some notice of it given to every respondent within the statutory permitted period. The statute does not require service of a complete sealed appeal form. A notice which sufficiently alerts respondents to the filed appeal may satisfy the statute, although non-compliance with procedural rules requires the court’s permission to cure the irregularity.

Article 5(4) does not govern a challenge to the underlying extradition decision. Extradition of a British citizen nevertheless determines the citizen’s civil right to enter and remain in the United Kingdom for article 6(1) purposes. Under section 3 of the Human Rights Act 1998, the appeal provisions must therefore permit an exceptional extension where their rigid application would impair the essence of access to an appeal and the litigant personally did all that could be done in time.

The Supreme Court heard four conjoined extradition appeals. In Lukaszewski v The District Court in Torun, Poland, Pomiechowski v District Court of Legunica and Rozanski v Regional Court, the appellants filed appeal notices within seven days but, through the procedure followed at the prison and court, served only sealed front pages. The High Court held that those documents were not sufficient notices of appeal: [2011] EWHC 2060 (Admin); [2012] 1 WLR 391.

In R (Halligen) v Secretary of State for the Home Department, a British citizen filed within the 14-day period and personally notified the Secretary of State, but his solicitors served the Crown Prosecution Service late. The High Court held that it lacked jurisdiction: [2011] EWHC 1584 (Admin).

The central issues were what notice the Extradition Act 2003 requires, whether procedural defects could be cured, and whether Convention rights required an exception to the statutory time limits.

1. Disposition. Lord Mance, with whom Lord Phillips, Lord Kerr and Lord Wilson agreed, allowed all four appeals. Lady Hale agreed with his reasons and the result. The appeals against the respective extradition decisions were remitted to the High Court for hearing.

2. The court declined to depart from Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2. An appeal must be filed and some notice of it given to every respondent within the statutory permitted period. The earlier decision had not, however, focused on the form which that notice must take. A generous construction was appropriate because of the short periods and the need merely to warn respondents that a filed appeal was pending and extradition should not proceed.

3. The statutory requirement does not invariably demand service of a complete sealed Form N161. Failure to comply with the rules remains an irregularity requiring relief under CPR 3.9 or 3.10. The absence of grounds from an initial notice is also a curable procedural irregularity, rather than a defect which necessarily makes the notice a nullity. The sealed front pages served in the three Polish cases sufficiently identified the filed appeals. Their defects plainly merited cure.

4. Halligen’s letter gave the Secretary of State statutory notice, despite its highly irregular form. No notice reached the Crown Prosecution Service within the permitted period. The ordinary statutory rule therefore precluded his appeal unless Convention-compliant interpretation supplied an exception.

5. Article 5(4) did not apply. It protects review of the lawfulness of detention, not review of the underlying extradition decision. The abuse-of-process decisions in R (Kashamu) v Governor of Brixton Prison and Fuller v Attorney General of Belize were distinguishable because detention and extradition there stood or fell together on the alleged abuse.

6. Extradition does not determine a criminal charge. A British citizen nevertheless has a common law right to enter and remain in the United Kingdom. Proceedings capable of suspending that right determine a civil right within article 6(1). The absolute appeal periods could impair the essence of access to an appeal and were not proportionate in cases where the person lost that opportunity without personal fault.

7. Section 3 of the Human Rights Act 1998 permitted the appeal provisions to be read subject to a discretion, in exceptional circumstances, to extend time for filing and service. The discretion arises where strict application would conflict with article 6(1) and the litigant personally did everything possible to institute and notify the appeal in time. Halligen satisfied that basis for relief.

Lady Hale additionally considered that the preferable course would have been to depart from Mucelli, whose reasoning rested substantially on a mistaken factual assumption about how extraditing authorities learned that an appeal had been filed. That alternative reasoning did not command the majority.

1. United Kingdom Supreme Court: The four appeals were allowed unanimously and remitted to the High Court for determination: [2012] UKSC 20 .

2. High Court: In the three Polish cases, the court held that service of sealed front pages without the decision and gist of the grounds did not amount to statutory notice: [2011] EWHC 2060 (Admin) ; [2012] 1 WLR 391 . In Halligen’s case, the court held that it lacked jurisdiction because notice had not been served on all respondents within the permitted period: [2011] EWHC 1584 (Admin) .

3. City of Westminster Magistrates’ Court and Secretary of State: The magistrates ordered the extradition of the three Polish appellants under Part 1 of the Extradition Act 2003. Halligen’s Part 2 case was sent to the Secretary of State, who ordered his extradition to the United States.