Szegfu v Court of Pecs Hungary

Under section 26(5) of the Extradition Act 2003, the High Court may entertain a late extradition appeal only where the appellant proves, on the balance of probabilities, that he did everything reasonably possible to ensure that notice was lodged with the court and given to the respondent as soon as it could be given.

The inquiry concerns the reasons for delay. It does not extend to the apparent merits of the proposed appeal. The conduct of legal advisers is relevant, as the statutory reference to the person does not confine the inquiry to the appellant’s personal acts. A failure to explain or account for material periods of delay will generally prevent the statutory exception from applying.

The appellant had been ordered by Westminster Magistrates’ Court to be extradited to Hungary pursuant to two conviction warrants. He sought leave to appeal, relying principally on alleged prison overcrowding and the risk of treatment contrary to article 3 of the European Convention on Human Rights.

The extradition order was made on 12 March 2015. The statutory appeal notice was not lodged until 27 April 2015 and was not served on the requesting judicial authority until 8 May 2015. The central issue was whether section 26(5) of the Extradition Act 2003 permitted the High Court to entertain the application despite the expiry of the seven-day period.

1. Application of section 26(5). The court held that the appellant bore the burden of proving, on the balance of probabilities, that he had done everything reasonably possible to ensure that notice was given as soon as it could be given. The statutory language was clear and required no judicial gloss.
2. Scope of the inquiry. The question concerned the reasons for lateness, not the merits of the proposed appeal. The court rejected the submission that apparently strong human-rights grounds, or an obvious error in the extradition proceedings, should influence the section 26(5) test.
3. Conduct of representatives. The reference to the person in section 26(5) included delay caused by legal advisers. Once solicitors had been instructed, their default could not be disregarded. The statutory purpose was to address cases in which the right of appeal might otherwise be denied, particularly where an unrepresented person was detained without realistic access to legal advice.
4. Application to the evidence. The appellant was on bail, had taken other steps to protect his position, and had no satisfactory explanation for the delay between the notice being ready on 20 April and its lodging on 27 April. There was also no explanation for service on the respondent being delayed until 8 May. He therefore failed to establish that everything reasonably possible had been done.
5. The application for leave to appeal was out of time and failed. The court expressed no view on whether judicial review might exceptionally be available after failure to use the statutory appeal route.

High Court (Administrative Court): the appellant sought leave to appeal against the extradition order made by Westminster Magistrates’ Court on 12 March 2015. The application was out of time and was dismissed under section 26(5) of the Extradition Act 2003.