Pigas, R (on the application of) v District Court of Jelena Gora Poland [2010] EWHC 1763 (Admin)

Case No CO/4029/2010[2010] EWHC 1763 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 29th June 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE KING
Between
THE QUEEN ON THE APPLICATION OF JAROSLAW PIGASClaimantv
Between
DISTRICT COURT OF JELENA GORA POLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr Brian Gibbins (instructed by the Crown Prosecution Service Special Crime Division) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE KING: I have before me an appeal by Mr Pigas in respect of the decision of Deputy Senior Judge Wickham made on 20th March 2010 to order his extradition to Poland pursuant to an European Arrest Warrant to serve sentences of imprisonment in respect of eight offences of burglary, attempted theft, forgery and fraud. By his notice of appeal, Mr Pigas seeks to set aside the decision on the grounds that the District Judge erred in failing to consider his human rights, in particular Article 8, and in particular in relation to the circumstances of having a young son who has speech difficulties which have been investigated by various treating authorities in the United Kingdom. He also raises issues as to the details of the offences which he is said to have been convicted of as set out in the warrant and says these are incorrect.[2]There is, however, a jurisdictional problem which I have to determine before I can proceed to hear this appeal. The statutory procedure for bringing an appeal is set out in the Extradition Act. The right to bring an appeal in this case arises under section 26 of the Act and in section 26(4):
"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made."
[3]Part 52 of the Civil Procedure Rules apply to this statutory appeal and in particular section 2 and paragraph 20. Paragraph 20, as far as material, reads as follows:
"20.1 This Section of this Practice Direction provides special provisions about the appeals to which the following table refers... 20.2 Part 52 applies to all appeals to which this section applies subject to any special provisions set out in this section. 20.3 Where any of the provisions in this section provide for documents to be filed at the appeal court, these documents are in addition to any documents required under Part 52 or sections I or II of this practice direction."
Under paragraph 22.6A of section 2 of part 52, subparagraph (3), the following material rule of practice appears:
"Where an appeal is brought under section 26 ... of the Act – (a) the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made..."
[4]Unfortunately for the appellant, although his notice of appeal was filed within the time limit therein set down, his notice of appeal was not served within that time limit.[5]The chronology is this. The appellant was arrested on 19th March of 2010 at his home address in the Weston-super-Mare. He was then brought on 20th March 2010 before the City of Westminster Magistrates' Court and, although he was represented at that hearing, the order for extradition was made at an uncontested hearing. The appellant was taken into custody, it appears, although given conditional bail, the condition being the surrender of his identity documentation.[6]He did, however, succeed in filing a notice of appeal against the order on 26th March 2010 which was within the seven day time limit. On 29th March 2010, the Administrative Court wrote to the Crown Prosecution Service, which acts on behalf of the respondent in these proceedings, to inform them that the appeal had been entered into the Administrative Court warned list. As the Crown Prosecution Service had not received a copy of the appeal notice, it, on 30th March 2010, sent an email requesting a copy of the appeal notice from the court office. In response, the Administrative Court Office forwarded a copy of the appellant's notice of appeal to the Crown Prosecution Service on 31st March 2010. On 9th April 2010, the appellant himself served a copy of the sealed notice of appeal on the Crown Prosecution Service.[7]The upshot of this chronology is that the notice of appeal was filed within time, albeit on the last day of the seven day period for filing. The notice of appeal, however, was not served upon the respondent within the seven day time limit for service. Although the court office subsequently, 11 days after the order was made, provided the Crown Prosecution Service with a copy of the sealed notice by way of courtesy, it was not served by the appellant until 9th April 2010, some 14 days after the deadline. Whether one looks to the provision of the copy by the court office or the service by the appellant, service clearly was not made within the seven day time limit.[8]I have every sympathy with Mr Pigas on this issue. He is unrepresented and he informs me that he had difficulty in obtaining representation and legal aid and it was only when he received a letter on 29th March from his proposed solicitors that he was aware of problems. However, there is binding authority on me that these time limits are mandatory and cannot be extended by the court. This includes the time limit for service as well as that for filing. This was established by the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2. At paragraph 72, Lord Neuberger said this:
"For these reasons, I conclude that an appellant's notice must be served, as well as filed, within the 7-day period referred to in section 26(4)."
And to the subsequent question posed "can the court extend the time for filing or for service", the answer was given in the negative. At paragraph 80, Lord Neuberger said:
"For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal."
[9]That this is the position has also been confirmed in the decision of the Divisional Court of the Queen's Bench Division in the decision of the Dunne v High Court of Dublin, An Irish Judicial Authority [2009] EWHC 2003 (Admin). At paragraph 13, Rafferty J said as follows:
"I turn to the law as to procedure. The House of Lords in Mucelli v The Government of Albania [2009] UKHL 2, [2009] 1 WLR 276, decided that the time limit for the giving of the notice in Part 1 appeals is fixed by statute at seven days; giving of notice includes filing the notice with the court and serving it on the respondent and the CPS ... neither filing nor service can be waived or dispensed with and no application out of time for either is permitted."
At paragraph 15 the following appears:
"The position in law is clear. The judgment of their Lordships' House allows of no genuflection to circumstances. It may be that where an unrepresented appellant is in custody compliance is a challenge. One could readily foresee the development of good practice leading to counsel or solicitors giving to an unsuccessful defendant at the conclusion of his case a written Advice which sets out these unforgiving procedural requirements. It would not be difficult. An Advice template on computer would be simple to compose and reproduce and, if I may say so, one size would fit all."
[10]In these circumstances, this court has no alternative but to rule that it has no jurisdiction to hear this appeal, service of the notice of appeal not having been served within the requisite time limit. This may appear to the appellant to be a harsh rule. Mr Gibbins has urged upon me, if it be material, that it may not be as harsh as it appears. The appellant here had been able to file his notice within the seven day period. There is no reason why it was not possible to serve it on the respondent within the period. I also accept that the completion of a notice of appeal requires the provision of only basic information. Its filing and service is a procedural step to initiate appeal and prevent removal which would otherwise follow in short order under the European Arrest Warrant scheme. The preparation of submissions of detailed argument of course would properly take place at a later stage. The essential point however is that, in prescribing the seven day period for the filing and service of the appeal, the 2003 Act and the practice direction draws no distinction between appellants who are in custody or on bail.[11]In all those circumstances, I have to dismiss this appeal. The court has no jurisdiction. THE CLAIMANT: I understand. MR JUSTICE KING: Mr Pigas, I am sorry. MR GIBBINS: My Lord, there is just one matter that occurred to me. I made it apparent in the chronology that the appellant was represented by Mr Katz of Kaim Todner and I noted that when he addressed your Lordship he mentioned Mr Dowd. That is a separate firm, Lawrence & Co, so I just wanted to make it clear that there were two separate companies involved. MR JUSTICE KING: Well, I make clear that, as I understand it, the letter which I referred to as being his former solicitors. They may not have been the solicitors who represented him at the hearing. MR GIBBINS: I am most grateful. THE CLAIMANT: They sent me a copy of the letter. (handed) MR JUSTICE KING: Yes. Mr Pigas, I will retain a copy of this. THE CLAIMANT: Yes, of course. MR JUSTICE KING: Thank you both very much.