Oleantu-Ursache v Judecatoris Bacau, Romania

Under Part 50 of the Criminal Procedure Rules, the listed exceptions to the general requirement for a public hearing govern applications concerning extradition appeals. An out-of-time application for permission to appeal, including a renewed application, may be determined on the papers. Once determined, it cannot generally be renewed unless the Rules provide for renewal. Rule 50.22 excludes renewal where permission to appeal was refused because the application was out of time. The High Court nevertheless has an exceptional jurisdiction under rule 50.27 to reopen a determination of an application for permission to appeal where its stringent criteria are met. Such an application may be case-managed and determined on the papers after the respondent has had an opportunity to make representations.

Two unrelated extradition appeals were listed together. In each, an extradition order had been made, permission to appeal had been refused on the papers, the time for renewing the application had expired, and an out-of-time application for an extension of time had been refused on the papers.

One appellant sought to renew the application for an extension of time. The other sought to reopen the application for permission to appeal. The central issues were whether the High Court had jurisdiction to entertain a renewed application for an extension of time and whether either case could proceed under rule 50.27 of the Criminal Procedure Rules.

1. No renewed extension application. Rule 50.17 establishes a general requirement that powers under Part 50 be exercised at a public hearing, subject only to its identified exceptions. Rule 50.17(1)(b)(i) permits an application to consider an out-of-time application for permission to appeal to be determined without a hearing. A renewed application remains an application for permission to appeal. The specific requirement for a hearing for a renewed in-time application in rule 50.17(1)(b)(ii), and its absence from rule 50.17(1)(b)(i), confirms that an out-of-time application may be determined on the papers.
2. The application for an extension of time cannot be treated as a separate application divorced from the out-of-time application for permission to appeal. Rule 50.17(7) requires the extension application to be made at the same time. Rule 50.22(1)(b) excludes renewal where an application for permission to appeal has been refused because it was out of time. There was therefore no jurisdiction to entertain a renewed application for an extension of time.
3. The general observation in R (MD (Afghanistan)) v Secretary of State for the Home Department [2012] 1 WLR 2422 concerned the general civil-procedure position and did not establish a universal right to oral reconsideration. Some applications may fairly be determined on written representations without an oral hearing.
4. The conclusion was supported by Zibala v Prosecutor General’s Office, The Republic of Latvia [2019] EWHC 816 (Admin) and Gawryluk v Poland [2020] EWHC 3679 (Admin). A court determines an application once, not twice, subject to express procedural exceptions.
5. Reopening. Where the High Court has refused an application for permission to appeal, rule 50.27 provides an exceptional jurisdiction to reopen that determination. The Majewski application could proceed under that rule. The Oleantu-Ursache application could be treated as an application to reopen under rule 50.17(6)(d).
6. Both reopening applications were to be determined on the papers, after the respondents had an opportunity to make representations. Determination was deferred pending relevant Divisional Court decisions concerning the underlying issues.

These were applications arising from extradition orders made by district judges. Permission to appeal was refused on the papers by Stacey J and Murray J respectively. Subsequent applications to extend time for renewing permission were refused on the papers by Swift J and Lane J. The Administrative Court held that the extension applications could not be renewed, but that the refusals of permission to appeal could exceptionally be reopened under rule 50.27.