Pomiechowski v District Court of Legnica, Poland

The Supreme Court considered the operation and consequences of the short statutory time limits for lodging and notifying appeals under the Extradition Act 2003 and the proper construction of the requirement that "notice of an appeal must be given in accordance with rules of court before the end of the permitted period" (see notably sections 26(4), 28(4), 103, 105, 108 and 110). The court refused to depart wholesale from the House of Lords decision in Mucelli v Government of Albania [2009] UKHL 2 that some form of notice to respondents within the permitted period is required but adopted a generous approach to what may amount to "notice of an appeal" where the essential purpose is achieved: that the appeal has been filed and respondents are put on notice so as to deter execution of the extradition pending determination.

Applying that approach, the court held that the sealed front pages of Form N161 filed and returned by the Administrative Court and faxed by prison legal services to the Crown Prosecution Service were irregular but capable of cure under the court rules and that, on the facts of the three Polish appellants, the irregularity ought to be cured and their appeals remitted to the High Court. In the case of Halligen, a United Kingdom national, the court held that article 6(1) of the European Convention on Human Rights applied to proceedings that affect a citizen's common-law right to remain in the jurisdiction and that, to be Convention‑compatible, the statutory time limits must be read so as to permit the High Court in exceptional cases to extend time for both filing and service where strict operation would impair the essence of the right of access to an appeal; Mr Halligen's appeal was therefore also allowed and remitted.

This group of appeals concerned notices of appeal given after extradition orders made by Westminster Magistrates' Court and the strict, short permitted periods for giving "notice of an appeal" under the Extradition Act 2003. Four appellants were before the Supreme Court: three Polish nationals (Lukaszewski, Pomiechowski and Rozanski) subject to Part 1 European Arrest Warrants and a British national (Halligen) subject to a Part 2 request from the United States.

• Nature of the applications: appeals against magistrates' orders for extradition (or orders to send the case to the Secretary of State) and related challenges to the effect of failing, within the statutory permitted periods, to give notice to respondents in accordance with the rules of court.
• Procedural posture: appeals to the Supreme Court from decisions of the High Court ([2011] EWHC 2060 (Admin); [2011] EWHC 1584 (Admin)).
• Key factual background: each appellant was remanded in custody at HMP Wandsworth after a magistrates' extradition order; prison legal services staff prepared and faxed documents to the Administrative Court for filing and returned only the sealed front page which was then faxed to the Crown Prosecution Service within the seven-day permitted period in the Part 1 cases. Mr Halligen's notice was filed in time but was not served on the Crown Prosecution Service within the 14-day permitted period because of his solicitors' delay; he had sent a letter from prison asserting his "intent to appeal".

Issues framed by the court included:

• whether the court should depart from the House of Lords decision in Mucelli that filing and service within the permitted period are required;
• what form of "notice of an appeal" the statute requires and whether the absence of grounds or an unsealed or partial filing may be cured by the court;
• whether article 5(4) or article 6(1) of the European Convention on Human Rights, read with section 3 of the Human Rights Act 1998, required the statutory time limits to be read down or qualified to permit relief in exceptional cases;
• whether distinct treatment was required for United Kingdom nationals.

Reasoning and outcome in brief:

• The court would not generally depart from Mucelli's principle that notice to respondents is required within the permitted period, but adopted a generous and pragmatic approach to what could constitute notice in the statutory sense provided the respondents were put on sufficient notice and the appeal had in fact been filed. The irregularities in the three Polish cases (service of only the sealed front page) were curable and justified remedial relief; those appeals were allowed and remitted for substantive hearing.
• Article 5(4) did not require a different approach where the challenge was essentially to the extradition decision rather than an independent challenge to detention. By contrast, in the case of a United Kingdom national (Halligen) article 6(1) was engaged because extradition proceedings determined a citizen's common-law right to remain in the United Kingdom. The court held that to comply with article 6(1) the statutory time limits must, so far as possible under section 3 of the Human Rights Act 1998, be read as permitting the High Court in exceptional circumstances to extend time for both filing and service where strict application would impair the essence of the right of access to a tribunal. Applying that approach the court allowed Halligen's appeal and remitted it to the High Court.

The appeals were allowed. The court held that under the Extradition Act 2003 some form of notice to respondents within the permitted period is required but that a generous approach should be taken as to what constitutes such notice so long as the appeal has been filed and respondents are put on sufficient notice. Irregularities such as service of only a sealed front page of a filed Form N161 may be cured under the court rules and, on the facts of the Polish cases, should be cured; those appeals were remitted to the High Court. In respect of Halligen, a United Kingdom national, article 6(1) ECHR applied and, to be compatible with Convention rights under the Human Rights Act 1998 section 3, the statutory time limits must be read so as to permit the High Court in exceptional cases to extend time for filing and service where strict application would impair the essence of the right of access to an appeal; Halligen's appeal was therefore allowed and remitted.

On appeal from the High Court (Administrative Court): Lukaszewski, Pomiechowski and Rozanski from [2011] EWHC 2060 (Admin); Halligen from [2011] EWHC 1584 (Admin). The High Court had applied Mucelli v Government of Albania [2009] UKHL 2 to find lack of jurisdiction where statutory requirements in the permitted period were not satisfied; the Supreme Court allowed the appeals and remitted them to the High Court for hearing on the merits (see judgment).