Sztanko, R (on the application of) v District Court of Malacky Slovakia [2012] EWHC 3232 (Admin)

Case No CO/7405/2012[2012] EWHC 3232 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 19 October 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF SZTANKOAppellantv
Between
DISTRICT COURT OF MALACKY SLOVAKIARespondent
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)
for The Appellant was not represented, did not attendMr J Sternberg (instructed by Crown Prosecution Service, Extradition Unit) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE COLLINS: The appellant in this appeal is on bail. There is a condition of residence at an address in Chatham. That address was used by this court when notice of this hearing was sent on 10 August 2012. I am entirely satisfied that the appellant is aware of this hearing but for whatever reason has chosen not to attend. The appeal is one which has no merit.[2]The first point is that service on the Crown Prosecution Service was made on 17 July, some days after 12 July which was the time within which the matter had to be served and accordingly was out of time. The decisions of the Supreme Court - a combination of Mucelli and the later decision in Lukaszewski v District Court in Torun [2012] UKSC 20 - have established that the requirement to serve within the relevant period laid down in the statute cannot be extended by an exercise of discretionary power in the case of a foreign national. It can be extended in the case of a British citizen. The appellant is a foreign national. Accordingly, this court, prima facie, has no jurisdiction.[3]It is true that in the latter case the Supreme Court's judgment, which was agreed with by the majority and given by Lord Mance, at paragraph 40 stated:
"40 The position of others who are not British citizens of the United Kingdom and do not enjoy the protection of article 6(1) is not, as it happens, relevant to the outcome of any of the appeals now before the Supreme Court. However, their position, as well as that of persons enjoying the protection of article 6(1), would on the information before the court, appear to deserve attention. This includes specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring."
That latter sentence is important because it is clear that we are almost certainly in breach of our obligations - in European law in terms of the Framework decision - in failing to provide proper legal representation because we require a means test to be applied before representation can be granted. Many of these cases have to be dealt with by a duty solicitor who may or may not be able to receive full instructions as to any possible bar to extradition. However that is not itself directly material here.[4]So far as the other matters would appear to deserve attention, the attention must be attention by Parliament because the present position in respect of non-nationals is entirely clear. Mucelli applies, and there is no power to extend time. In those circumstances it is apparent that I have no jurisdiction to deal with this appeal. Even if had, the appeal would be bound to fail.[5]The appellant raised an Article 8 issue before the district judge. It was rejected. All he relies on is that he has had a life here for the last five years; he works here; he has a partner here. He has financial obligations. There is no question that those were insufficient to justify a decision that to return would be disproportionate.[6]The other matter he seeks to raise which was not referred to below is that he says that inquiries have been made via a lawyer in Slovakia who informs him that the judge who is said to have been responsible for the arrest warrant knows nothing about it. That is material which was undoubtedly available below, and is a matter which would not be able to be relied on now because it would be prohibited by the terms of the Act. There is no good reason as far as one can see for it not having been raised before, or rather inquiries not having been made before. However, even assuming that is not right, the reality is that the contention is so extraordinary as to beggar belief.[7]This appeal is accordingly dismissed.