Bajorek-Sawczuk, R (On the Application Of) v The Judicial Authority In Rybnik Court Poland

For an appeal under section 26 of the Extradition Act 2003, notice must be given within seven days and served in accordance with the rules on both the court and the CPS. Failure to serve the CPS within that period is fatal to the appeal. The court has no general power to extend time, although the exceptional discretion recognised for British citizens does not extend to foreign nationals. A challenge based on Article 8 of the European Convention on Human Rights requires circumstances of the exceptional kind identified in HH; ordinary family difficulties will not suffice.

The claimant sought to challenge an order made by Senior District Judge Riddle on 27 January 2014 requiring his extradition to Poland to serve sentences for deception and cannabis offences. The notice of appeal was served on the court within time, but was not served on the CPS. The claimant argued that the court could nevertheless hear the appeal and relied on new evidence concerning his partner’s health and family circumstances.

The central issues were whether the failure to serve the CPS deprived the court of jurisdiction and, if so, whether the proposed Article 8 challenge would have had a realistic prospect of success.

1. The appeal could not be pursued. Section 26(4) of the Extradition Act 2003 requires notice of an appeal to be given within seven days of the order. The applicable rule requires service on both the court and the CPS. Following Mucelli v the Government of Albania and the Supreme Court’s approach in Lukaszewski, both elements were mandatory. Failure to serve the CPS within the permitted period deprived the court of jurisdiction, and there was no general discretion to extend time.
2. The court could take a broad view of what amounted to a notice of appeal. Thus, a notice was not invalid merely because it lacked grounds, as established by the Supreme Court in Lukaszewski. That principle did not create a general discretion concerning service on the CPS.
3. The approach in Andrzejak v the Polish Judicial Authority, which treated notice to the court as a statutory obligation and service on other parties as an obligation arising only from the rules, was rejected. It was inconsistent with section 26(4), Mucelli and the limits of the discretion recognised for British citizens in Lukaszewski and Lumenica v the Government of Albania.
4. As an alternative assessment, the proposed Article 8 claim had no real prospect of success. The claimant was a fugitive from justice, and the evidence concerning his partner’s health, childcare and employment difficulties did not establish circumstances approaching the high threshold in HH. Extradition would not therefore have been disproportionate.
5. The purported appeal was at an end and the claimant could be extradited to Poland.

The judgment describes a purported appeal from an order made by Senior District Judge Riddle on 27 January 2014. The Administrative Court held that the appeal could not be heard because the CPS had not been served within the statutory period.