Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal from prison. The legal services department of the Prison service relayed the notices to the CPS, but in each of the first three cases the notice was not served as required within 7 days. In H’s case the notice was prepared but not served within the 14 day period. They appealed against orders finding the notices lodged out of time.
Held: The appeals succeeded, and the notices of appeal should be deemed valid and heard accordingly. Whilst extradition does not itself involve the determination of a criminal charge, it does involve the determination of a civil right, namely the freedom to remain in the UK, and such proceedings fell with Article 6(1) of the Convention. Accordingly, applying the 1998 Act, the statutory provisions concerning appeals must be read to be subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a way which conflicted with the right of access to an appeal process under Article 6(1).
Lord Phillips, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
[2012] UKSC 20, UKSC 2011/0177, [2012] 1 WLR 1604, [2012] HRLR 22, [2012] 4 All ER 667, [2012] WLR(D) 158
Bailii, Bailii Summary, SC, SC Summary, WLRD
Extradition Act 2003, European Convention on Human Rights 6(1), Human Rights Act 1998 3(1)
England and Wales
Citing:
Appeal from – Pomiechowski v District Court of Legunica, Poland Admn 15-Jun-2011
The three defendants wished to appeal against orders for their extradition to Poland. They had been arrested, and while in custody had used the prison’s support services, who failed to serve their notices in time.
Held: The notices were . .
Appeal from – Halligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
Cited – Mucelli v Government of Albania (Criminal Appeal From Her Majesty’s High Court of Justice) HL 21-Jan-2009
The House was asked whether someone who wished to appeal against an extradition order had an obligation also to serve his appellant’s notice on the respondent within the seven days limit, and whether the period was capable of extension by the court. . .
Cited – Sciezka v The Court In Sad Okregowy, Kielce, Poland Admn 4-Jun-2009
Service of an unsealed notice of appeal was at worst a procedural error which should not vitiate an appeal against extradition. . .
Cited – Arunthavaraja v Administrative Court Office Admn 9-Jul-2009
The defendant sought to appeal against an order for his extradition. He now sought leave to bring judicial review against of the refusal of the court office to accept his notice had been defective, being out of time.
Held: Judicial review was . .
Cited – Dunne v High Court Dublin Admn 9-Jul-2009
. .
Cited – Kaminski v Judicial Authority of Poland Admn 2010
The court refused to strike out appeals against extradition orders, where no or only plainly inadequate grounds were stated in the notice of appeal. It did so on the basis that the inclusion of grounds was a matter for rules (in which connection the . .
Cited – Regional Court In Konin, Poland v Walerianczyk Admn 12-Aug-2010
In an appeal against an order for extradition, the service of a draft Notice of Appeal followed by the filing of the Notice of Appeal itself is not capable of complying with the requirement that Notice of Appeal be given within the permitted period. . .
Cited – Kane, Regina (on The Application of) v Trial Court No 5 Marbella, Spain Admn 17-Mar-2011
The extradition court objected to the defendant’s appeal against extradition on the basis that it was not filed within time.
Held: Section 26(4) of the 2003 Act does not require that service of the Notice of Appeal on the Respondent must post . .
Cited – Bergman, Regina (on The Application of) v District Court In Kladno Czech Republic Admn 28-Jan-2011
The unrepresented defendant, in custody, prepared his notice of appeal against an extradition order, and it was then faxed for him in draft form to the judicial authority and filed, all within the 7 day period, but no stamped copy was served, or . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Atkinson v Government of the United States HL 1969
The House heard an appeal from the magistrates’ refusal to commit the accused in the course of extradition proceedings.
Held: There is no abuse of process jurisdiction in extradition proceedings. There is no power to state a case in relation . .
Cited – Regina v Governor of Pentonville Prison, Ex parte Sinclair; Sinclair v Director of Public Prosecutions HL 1991
The applicant had left the USA after conviction, but before his prison term commenced, and a warrant issued. Nine years later he was arrested in the UK, and extradition sought. He said that the extradition was time-barred under the Order. The . .
Cited – In Re Schmidt HL 1-Jul-1994
The appellant sought to persuade the House that in extradition proceedings the courts enjoyed a similar jurisdiction to that exercised in Bennett.
Held: The appeal failed. The High Court has no inherent power to intervene in extradition . .
Cited – Regina (Kashamu) v Governor of Brixton Prison and Another; Regina (Kashamu) v Bow Street Magistrates’ Court; Regina (Makhlulif and Another) v Bow Street Magistrates’ Court QBD 23-Nov-2001
Where a magistrates’ court heard an application for extradition, it was within its proper ambit to assess the lawfulness of the detention of the suspect in the light of the Human Rights Convention, but not to stray onto issues which were only for . .
Cited – Szelagowski v Regional Court of Piotrkow Trybunalski Poland Admn 1-Apr-2011
A clerk was instructed, after filing a notice of appeal, to serve it on the Crown Prosecution Service with a letter on which he wrote the relevant Crown Office reference. The letter was expressed to cover the delivery of the appellant’s notice and . .
Cited – Tolstoy Miloslavsky v United Kingdom ECHR 19-Jul-1995
The applicant had been required to pay andpound;124,900 as security for the respondent’s costs as a condition of his appeal against an award of damages in a defamation case.
Held: It followed from established case law that article 6(1) did not . .
Cited – Regina v Secretary of State for the Home Department ex parte Launder QBD 18-Mar-1998
Speciality protection requirement satisfied by undertaking for re-surrender given by Hong Kong Chief Executive, despite excess time on bail. For the purposes of a challenge to extradition under domestic law, an applicant for habeas corpus is to be . .
Cited – Fuller v The Attorney General (Belize) PC 9-Aug-2011
Belize . .
Cited – H v Spain ECHR 1982
(Commission) An American citizen whose extradition from Spain was sought by the United States, complained that he had had inadequate legal representation and interpretation before the Audiencia Nacional.
Held: The complaint was inadmissible. . .
Cited – Kirkwood v The United Kingdom ECHR 12-Mar-1984
(Admissibility – Commission) The claimant, a United States national, said that the proceedings for his extradition from the United Kingdom to the United States infringed article 6(3)(d), because he was not permitted to cross-examine the witnesses . .
Cited – Maaouia v France ECHR 5-Oct-2000
A deportation order, made against a Tunisian, was eventually quashed by the French Administrative Court and the Article 6 complaints related to the length of time taken in the proceedings. The Court’s reasoning why Article 6 does not apply to . .
Cited – Mammatkulov and Askarov v Turkey ECHR 2005
The applicants complained of the Turkish extradition procedures.
Held: The Court reiterated that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or . .
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – Van Duyn v Home Office ECJ 4-Dec-1974
LMA Miss Van Duyn, a Dutch national, wished to enter the UK to take up work with the Church of Scientology. Art 48EC (new Art.39EC) confers rights on the individuals of each Member State to go to another MS (host . .
Cited – Tomlinson and Others v Birmingham City Council SC 17-Feb-2010
The appellant asked whether the statutory review of a housing authority’s decision on whether he was intentionally homeless was a determination of a civil right, and if so whether the review was of the appropriate standard. The claimant said that . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Al-Mehdawi v Secretary of State for the Home Department HL 23-Nov-1989
The applicant, a student had overstayed his leave. Through his solicitor’s negligence, he lost his appeal against deportation. He sought judicial review of that decision.
Held: Judgment obtained in a party’s absence due entirely to the fault . .
Cited – Connolly v Director of Public Prosecutions Admn 15-Feb-2007
The defendant appealed against her conviction under the Act for having sent indecent or grossly offensive material through the post in the form of pictures of an aborted foetus sent to pharmacists. She denied that they were offensive, or that she . .
Cited – FP (Iran) v Secretary of State for the Home Department CA 23-Jan-2007
The claimants said that rules which allowed an appeal tribunal to proceed in their absence when they were absent through no fault of their own, were unlawful in depriving them of a fair trial. The claimants had each moved house but their former . .
Cited – Regina v A (Complainant’s Sexual History) (No 2) HL 17-May-2001
The fact of previous consensual sex between complainant and defendant could be relevant in a trial of rape, and a refusal to allow such evidence could amount to a denial of a fair trial to a defendant. Accordingly, where the evidence was so relevant . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Kapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – Adesina and Others, Regina (on The Application of) v The Nursing and Midwifery Council CA 9-Jul-2013
The court was asked as to the effect of a statutory provision stating that an appeal to the High Court from the Nursing and Midwifery Council ‘must be brought before the end’ of a specified period of 28 days. There was no express provision . .
See Also – Pomiechowski v The District Court In Legnica, 59-220 Poland Admn 9-Nov-2012
. .
Cited – VB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .
Lists of cited by and citing cases may be incomplete.
Extradition, Human Rights
Updated: 02 November 2021; Ref: scu.459616