Case Comment: Lukaszewski v The District Court in Torun, Poland & other cases  UKSC 20
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By Anita Davies
As the furore surrounding the deportation of Abu Qatada demonstrated, you meddle with time limits at your peril. Many a case has been derailed by a failure to file papers or an appeal in time. Such procedural rigour may at times appear unjust, but generally the courts have emphasised the certainty and finality achieved by statutory time limits. However, the judgment in Lukaszewski & Ors, R (Halligen) v Secretary of State for the Home Department  UKSC 20, handed down by the Supreme Court last week, appears to offer a ray of hope to applicants facing short time limits.
Lukaszewski, Pomiechowski and Rozanski are Polish citizens, each subject of a European Arrest Warrant issued by the Polish court. The fourth appellant, Halligen, is a British citizen whose extradition is sought by the USA under Part 2 of the Extradition Act 2000. The Polish appellants’ extradition was ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Halligen’s case was sent to the Secretary of State for her to decide whether he should be extradited. On 22nd December 2010, his extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of State’s reasons was sent by post and fax to his solicitors on that same day.
The permitted time-period for giving notice of appeal against an extradition order was 7 days in the case of the Polish appellants, and 14 days for Halligen. The sealed front page of the Polish appellants’ notices of appeal was faxed to the CPS within the 7 day time limit, but not the grounds of appeal. Halligen’s solicitors filed a notice of appeal well within the time limit, and Halligen himself wrote to the Home Office via fax informing them of the notice and his intent to appeal, but the notice and grounds of appeal did not reach the CPS and Home Office until after the permitted period. The High Court held it had no jurisdiction to hear the appeals as they were served out of time and invalidly constituted.
The Supreme Court decision
The most significant case to be considered by the Court was Mucelli v Government of Albania  1 WLR 276, where the majority held that ‘notice of an appeal within the relevant permitted period’ meant that an appeal had to be both filed and served on all the respondents within such a period. A strict interpretation of the decision, as applied by Laws LJ in the Court of Appeal, meant that the copy of the sealed front page provided by the Polish appellants within the time limit did not constitute a notice of an appeal. According to Laws LJ:
“[to] be or purport to be a notice of appeal, the document must (a) identify the appellant, (b) identify the decision against which he seeks to appeal and (c) pace Ouseley J in Kaminksi v Judicial Authority of Poland  EWHC 2772, set out at least the gist of the basis on which the appeal is sought to be presented … So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal.” [Para 13]
In Mr Halligen’s case, applying Mucelli, the high court rejected the submission that his letter to the Home Office on the 29th December constituted a notice of appeal, and ruled that his appeal had been served out of time.
The Supreme Court declined to overrule Mucelli, but they did modify it significantly:
“I would not therefore depart from Mucelli in so far as it requires not merely filing an appeal, but also some form of notice of an appeal being given to the respondents, both with the permitted period, but the question remains what form of notice of an appeal is required . . . In my view a generous view can and should be taken of this, bearing in mind the shortness of the permitted period and the fact that what really matter sis that an appeal should have been filed and all the respondents should be on notice of this sufficient to warn them that they should not proceed with extradition pending an appeal.” [Para 18] (Emphasis added)
Lord Mance, delivering the majority judgment, took a common sense approach, suggesting that in practical terms the rationale behind the Mucelli decision was to ensure that respondents were notified of an appeal, and therefore the court should not be overly pedantic as to the form of the notice. This should not, however, be taken as a licence for applicants to give informal notices of appeal; an applicant serving anything other than a complete copy of the correct form will be dependent on the court’s discretion in rectifying the error. Lord Mance went on to exercise such discretion with regard to the Polish appellants’ case. He again adopted a practical approach, disagreeing with Laws LJ’s proposition that a notice of an appeal not accompanied by grounds was a de facto nullity incapable of cure by the exercise of discretion by the court:
“The front page of the notices of appeal returned by the court and served by fax in the cases of Lukaszewski, Pomiechowski and Rozanski showed the relevant High Court references and stamps with the dates of filing as well as the names and addresses of the appellants and the respondent Polish court. The subsequent pages which were not returned or served identified matters such as the decision appealed (though in current extradition practice this would be a decision of the Westminster Magistrates Court), its date, the grounds and a statement of belief. The irregularity involved in their absence was capable of cure, and on the present facts certainly merited this. The Crown Prosecution Service can have had no difficulty in identifying the decision being appealed, and it would be disproportionate if the practice followed by the court and the prison Legal Services Department should lead to these appellants losing any right of appeal.” [Para 19]
Mr Halligen’s case was somewhat more complex. Although it was accepted that his letter to the Home Office constituted a notice of appeal (although irregular), no notice had been given to the CPS within the requisite period. It therefore fell to the Court to determine if there was any qualification or exception to the time limit. The appellants sought to rely on article 5(4) of the ECHR, namely that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful.” However, the Court held that that 5 (4) could not be relied upon as the proceedings did not involve any abuse of process. The Court also initially dismissed a claim under ECHR, article 6 (1) on the grounds that, as a general rule, extradition as such does not involve the determination of a criminal charge and does not entitle the person affected to the procedural guarantees provided in the determination of such a charge under article 6 (1) and (2). [Para 31].
In the end, Mr Halligen’s appeal succeeded on somewhat unexpected grounds. Both in international and common law British citizens enjoy a common law right to come and remain in the jurisdiction and Mr Halligen was such a citizen. Any extradition proceedings therefore involved a determination of that civil right and so proceedings against Mr Halligen fell within Article 6 (1). Despite the importance of finality and certainty in adhering to strict time limits, Lord Mance was not convinced that such values “outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied” [Para 37]. Therefore:
“The statutory provisions concerning appeals can and should all be read 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 manner conflicting with the right of access to an appeal process held to exist under article 6(1) … The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously.” [Para 39].
The judgment, while offering some hope to extradition appellants facing strict time limits, should not be viewed as overturning the generally orthodox attitude towards time limits. As Lord Mance makes clear in his judgment, the discretion allowed to the court as a result of the judgment will only be apply in a limited number of cases and is extradition specific.
Lady Hale’s dissenting judgment envisioned a wider discretion. She suggested that the Court should have taken the more straightforward approach of departing from Mucelli altogether and assuming that the intention of Parliament was to ensure filing, rather than service, of the notice of the appeal before the deadline. Lady Hale also pointed out that the resulting judgment results in two distortions of the extradition appeals process. It discriminates between nationals and aliens, and also discriminates between requested persons and requesting authorities as the latter can have no convention rights.
Lady Hale is right to point out such discrepancies, but one does suspect that the majority judgment specifically sought to limit that application of its ruling to a narrow set of circumstances. No doubt other appellants will seek to argue that the ruling applies to time limits in general, but only time will tell whether the judgment heralds an era of greater flexibility regarding time limits that cause manifest injustice.