Zibala v Prosecutor General's Office, The Republic of Latvia

Once an appeal has been dismissed, the litigation is at an end unless primary legislation or court rules expressly permit further renewal or review. An application to reopen a High Court decision may be determined on the papers under the Criminal Procedure Rules 2015. When so determined, it has been determined once, and there is no implied right to renew it orally. A second application to reopen may exist in theory, but it requires exceptional justification and must be made as soon as possible after the grounds arise. A stay or injunction concerning extradition is ancillary to a substantive legal right and cannot continue where no such right remains.

The applicant’s extradition to Latvia had been ordered in 2013 and her appeal had been dismissed by a Divisional Court in 2014. After absconding, she was arrested in 2018 and applied to reopen the 2014 decision, relying principally on the changed circumstances of her child and their Article 8 rights. A single judge refused the applications on the papers. At the renewed hearing, the issues were whether the applicant had a right to an oral renewal hearing under the Criminal Procedure Rules 2015, whether a second application to reopen could be made, and whether the existing stay of removal could continue.

1. Oral renewal. The court had no jurisdiction to hear an oral renewal of the application refused by Jeremy Baker J. Rule 50.17(1)(b)(iv) permits an application for permission to reopen under rule 50.27 to be determined without a hearing. Once the application has been determined on the papers, it has been determined. A court determines an application, appeal or trial once, not twice, unless primary legislation or the applicable rules provide otherwise.
2. The contrast with provisions expressly allowing renewal was decisive. Criminal Procedure Rule 50.22(2) expressly permits renewal of certain extradition permission applications, while Civil Procedure Rule 54.12 permits renewal of a judicial review permission application. No equivalent provision applies to an application under rule 50.27. The absence of an express prohibition therefore did not create a right to an oral hearing.
3. Second reopening application. The court refused the alternative application to reopen the 2014 Divisional Court decision. A second application may exist in theory, but the applicant identified no example of its exercise and such applications would be appropriate only in very rare circumstances. In any event, rule 50.27 requires an application to be made as soon as practicable after the grounds become known. The asserted increased impact on the child had been apparent for years. Permitting a fugitive to revive a failed extradition appeal after reappearance would be contrary to public policy.
4. Stay of removal. The stay granted by Ouseley J was discharged. An injunction or stay is ancillary to a substantive legal right. The applicant had no remaining legal right to remain in the United Kingdom and no basis existed for continuing the stay.
5. The court declared that it had no jurisdiction to consider the oral renewal, refused the second reopening application and discharged the injunction or stay.

• Divisional Court: The applicant’s appeal against the extradition order was dismissed on 9 April 2014 in Brazuks and Ors v Latvia [2014] EWHC 1021 (Admin).
• High Court: Jeremy Baker J refused the application to reopen and the application for an injunction on 5 November 2018. The present court declared that it had no jurisdiction to hear an oral renewal, refused the second reopening application and discharged the stay.