Debicki v Regional Court Lupsk Poland

An application to reopen a refusal of permission to appeal is subject to the requirement that there be no alternative effective remedy and that reopening be necessary to avoid real injustice in exceptional circumstances. The ordinary remedy against a paper refusal is renewal for oral consideration, with an application to extend time where appropriate. The reopening jurisdiction cannot be used to bypass a statutory time limit or statutory conditions governing an appeal. Where the underlying appeal has no realistic prospect of success, refusal to reopen does not cause real injustice. In applying the statutory requirement that an appellant must have done everything reasonably possible to give notice promptly, the conduct of the appellant’s advisers is relevant as well as the appellant’s personal conduct.

The claimant sought to reopen a paper refusal of permission to appeal against an extradition order made by Westminster Magistrates’ Court. Permission had been refused because notice of appeal was lodged outside the seven-day period required by the Extradition Act 2003, and the claimant had not shown that he had done everything reasonably possible to give notice promptly.

The application was made under rule 50.27 of the Criminal Procedure Rules while removal to Poland was imminent. The court treated it, dispensing with formalities, as a renewed application for permission under rule 50.22. The central issues were whether reopening was available, whether there was real injustice, and whether the statutory requirements concerning delay had been met.

1. The application to reopen was dismissed and the renewed application for permission to appeal was refused.
2. Rule 50.27 potentially applied because the order refusing permission had determined an application for permission to appeal. However, rule 50.27 could be used only where there was no alternative effective remedy. Rule 50.22 provided such a remedy: a paper refusal of permission could be renewed for oral consideration, with time capable of extension under rule 50.17. Reopening was therefore inappropriate for questioning the paper refusal.
3. The requirement of real injustice was not satisfied. The court rejected a distinction between procedural and substantive injustice for this purpose. There could be no injustice in refusing permission, whatever the reason, where the underlying appeal had no prospect of success. The extradition challenge, which relied on article 8 of the European Convention on Human Rights and the health of the claimant’s adult son, was not arguably meritorious.
4. The claimant had not shown compliance with section 26(5) of the Extradition Act 2003. The statutory inquiry did not distinguish between the appellant and his advisers. The failure of the solicitors to give notice within time could therefore prevent the statutory condition from being satisfied.
5. Rule 50.27 could not mitigate hardship by bypassing the statutory time limit or the requirements of section 26(5). A rule of court could not cut down primary legislation. The court followed the statutory approach in Szegfu v Court of Pecs Hungary [2015] EWHC 1764 (Admin) and applied the principles concerning reopening considered in Government of the United States of America v Bowen [2015] EWHC 1873 (Admin).

1. High Court (Administrative Court): Nicola Davies J refused permission to appeal on the papers on 21 August 2015. The Divisional Court dismissed the application to reopen and, treating it as a renewed application under rule 50.22, refused permission.
2. Westminster Magistrates’ Court: an extradition order to Poland was made on 5 August 2015.