Public Prosecutors Office of the Athens Court of Appeal v O’Connor (Northern Ireland)

Under section 26(5) of the Extradition Act 2003, a late application for leave to appeal may be entertained where the person ordered to be extradited personally did everything reasonably possible to ensure that notice was given as soon as it could be. A legal representative’s failure is not attributed to that person for this purpose.

The inquiry concerns the person’s own conduct. The burden rests on the applicant, who must ordinarily provide a comprehensive explanation for the whole period of delay. The merits of the proposed appeal are irrelevant to this statutory test.

A European Arrest Warrant sought the respondent’s extradition to Greece for prosecution. After the Recorder ordered extradition, the respondent immediately instructed his solicitor to appeal. The solicitor lodged the application within seven days but, through oversight, served the requesting authority about three weeks late.

The Northern Ireland Divisional Court held in [2017] NIQB 77 that the solicitor’s fault was not attributable to the respondent and entertained the application. It later allowed the substantive appeal in [2017] NIQB 88, quashed the extradition order and discharged him because fresh evidence disclosed a real risk of treatment contrary to article 3 of the ECHR. The requesting authority appealed only the first judgment.

The issue was whether section 26(5) of the Extradition Act 2003 permits a distinction between the conduct of the requested person and that of the person’s legal representative.

1. Appeal dismissed unanimously. Lord Stephens gave the judgment, with which Lord Reed, Lord Hamblen, Lord Leggatt and Lord Burrows agreed. Where notice is late, the High Court may entertain the application if the person ordered to be extradited personally did everything reasonably possible to ensure that notice was given as soon as it could be, despite failure by the person’s legal representative.

2. In section 26(5) of the Extradition Act 2003, “person” refers only to the individual subject to the extradition order. The individual may give notice through an agent. The requirement to do everything reasonably possible is nevertheless imposed on the individual, not also on the agent or legal representative.

3. This construction accords with the legislative mischief. The former short and inflexible appeal periods could cause substantial and irredeemable injustice through legal representatives’ errors, including extradition despite a risk to life or of treatment contrary to articles 2 or 3 of the ECHR. Parliament preserved short limits but introduced flexibility. That protection was not confined to unrepresented persons.

4. There is no universal rule that a legal representative’s fault is imputed to the client. The court therefore departed from the contrary construction of section 26(5) in Szegfu v Court of Pecs, Hungary [2015] EWHC 1764 (Admin), but only concerning the surrogacy principle. It agreed that the applicant bears the burden of giving a comprehensive explanation for the whole delay and that the merits of the proposed appeal are irrelevant. The result in Szegfu remained correct because the delay there was the applicant’s own fault.

5. The court endorsed the Northern Ireland Divisional Court’s suggested practice that the extradition judge should explain the seven-day limit and provide an appropriate-language form describing how to lodge and serve an application. A represented person who has instructed an appeal should seek confirmation of lodgment and service and, absent confirmation within time, act personally.

1. United Kingdom Supreme Court: Dismissed the requesting authority’s appeal from the jurisdictional judgment [2017] NIQB 77.
2. Northern Ireland Divisional Court: In [2017] NIQB 77, held that the solicitor’s default was not attributable to the requested person and entertained the application for leave to appeal. In [2017] NIQB 88, allowed the substantive appeal, quashed the extradition order and discharged the requested person. It later refused leave to appeal to the Supreme Court but certified a point of law of general public importance.
3. Belfast Recorder’s Court: Ordered the respondent’s extradition to Greece.