Guidance on the application of section 26(5) of the Extradition Act 2003 relaxing the application of the strict time limit for bringing an extradition appeal in section 26(4).

The Divisional Court of the Queen’s Bench Division gave the guidance in a reserved judgment when dismissing an application by the applicant, Norbert Szegfu, under section 26(3) of the 2003 Act, for leave to appeal against the decision of District Judge Zani sitting at Westminster Magistrates’ Court on 12 March 2015 that he be extradited to Hungary to serve a sentence for an offence for which he had been convicted and sentenced.

BURNETT LJ, handing down the judgment of the court, said that the claimant had not given notice of appeal within seven days of the extradition order as required by section 26(4) of the 2003 Act. The effect of section 26(5) was to require the High Court to refuse to entertain an application in a case in which notice was given outside the seven days prescribed unless the person concerned showed that he had done everything reasonably possible to ensure that notice was given as soon as it could be given. The words of the test itself were clear and needed no judicial gloss. However, there were a number of factors which needed to be identified in its application. First, the burden of establishing that everything reasonably possible was done rested upon the appellant. He had to satisfy the court on the balance of probabilities. Part 17 of the Criminal Procedure Rules governed extradition proceedings. Crim PR r 17.17(b)(i) provided that an application for permission to appeal to the High Court might be determined without a hearing. It followed that ordinarily any question raised under section 26(5) would be dealt with on the papers. The contents of an appeal notice were specified in rule 17.20. Rule 17.20(4)(a) required any appeal notice served after the seven-day time limit “to explain what the defendant did to ensure that it was served as soon as it could be”. In a straightforward case, it might be sufficient for a short description to be contained within the appeal notice. However, an appellant (and possibly his solicitors) should provide a witness statement, supported by a statement of truth, and exhibiting relevant documents, which could be referred to within the notice and attached to it. Given the nature of the test, it was clearly necessary for an appellant to give a comprehensive explanation covering the entire period of delay. Secondly, the merits of an appeal had no bearing on the test in section 26(5). The statutory test required the court to determine whether the appellant had satisfied it, in which the focus was entirely upon the reasons why the appeal was late and not on its underlying merits. Thirdly, the statutory test was not limited to the personal conduct of an appellant and could encompasses delay generated by his legal advisers. Distinguishing between the actions of an appellant personally and his solicitors, when it came to reasons for delay, would inevitably lead to conflicts of interest which would result in changes in representation and necessarily be difficult to investigate because of legal professional privilege. That would result in complication and delay, the latter at least inimical to the scheme of the 2003 Act. The question, therefore, was whether the appellant had demonstrated that he “did everything reasonably possible to ensure that the notice was given as soon as it could be given”. The inquiry had to relate to whether the appellant did everything reasonably possible to ensure that the notice was lodged with the court and also given to the respondent.

In the present case, the notice of appeal could not have been lodged before 15 April when the law changed. Although dated 20 April 2015, it was not lodged with the court until 27 April and was not served on the respondent judicial authority (via the Crown Prosecution Service) until 8 May. There had been no explanation for the delay. Accordingly, the appeal was out of time and the application for leave would be dismissed.