On this submit, Mark Summers KC and James Stansfeld of Matrix Chambers touch upon the Supreme Court docket’s determination in Public Prosecutors Workplace of the Athens Court docket of Enchantment v O’Connor (Northern Eire) [2022] UKSC 4.
The issues related to appellate cut-off dates underneath the Extradition Act are long-standing and infamous. As a part of the then Authorities’s drive to rid the system of delays that had beforehand characterised extradition, the 2003 Act launched inflexible, and peremptory, time durations by which appeals have been required to be lodged.
The issues with such a system have been apparent and instantly felt. Unrepresented defendants in custody, usually with out entry to even a fax machine, have been the prime, however under no circumstances solely, group of individuals dealt severe and predictable injustice by this rigid regime.
What instantly adopted was, mockingly, an equally predictable stream of extra Excessive Court docket litigation testing the boundaries of the statutory regime; what constituted a legitimate ‘discover’ of enchantment (would a mere letter do?); what ‘grounds’ did the discover require (would a letter which contained none do?); what did ‘giving’ discover imply (did it embody service, and if that’s the case on which of the numerous extradition actors?); did the CPR service deeming provisions apply (might discover be given exterior of court docket hours?); might an irregular discover be cured (what if solely the entrance web page of a discover had been faxed by the jail?). And so on, and many others. The Court docket’s solutions to most of those questions have been invariably coloured closely by a want to alleviate the injustices brought on by an unnecessarily harsh statutory scheme. Liberty is, in any case, at stake. However troublesome info and a want to bend regular ideas to accommodate them, make for, at greatest, inconsistent and superficial choices.
Issues got here to a head within the Supreme Court docket in 2012 in Pomiechowski v Poland [2012] 1 WLR 1604, when this Court docket decried the unfairness of the system and strove to discover a extra sustainable manner round it. For among the appellants in that case, an expansive and ‘beneficiant’ interpretation of an enchantment ‘discover’ was alone ample to take away injustice. For one, nonetheless, not even that gadget might work (no less than not with out reversing prior Supreme Court docket authority holding that ‘giving’ discover means serving in addition to lodging: Mucelli v Albania [2009] 1 WLR 276). The answer international trade in Pomiechowski? To enterprise article 6 ECHR and the suitable of entry to justice into pastures it was by no means supposed to succeed in. ECTHR case legislation had persistently refused to use article 6 to the substantive conduct of extradition proceedings. This Court docket nonetheless, imaginatively reasoned that, as a result of UK residents possessed a frequent legislation proper to enter and stay inside the UK and the extradition proceedings underneath the 2003 Act might have an effect on that proper, such extradition proceedings fell inside article 6 as a result of such a defendant was entitled to a good willpower of his frequent legislation proper to stay inside the jurisdiction. Reasoning usually then that absolutely the and rigid cut-off dates for enchantment within the 2003 Act didn’t meet the required article 6 commonplace of entry to justice, the HRA served due to this fact, within the case of a UK citizen no less than, to require the statutory provisions to be learn as being topic to judicial discretion to increase time.
The bounds to what this Court docket might obtain this manner have been plain. The brand new implied discretion couldn’t apply to non-UK residents, nor international states. For the previous no less than, the system remained ‘discriminatory’ and ‘unsatisfactory’.
Parliament lastly answered this Court docket’s name to behave. The Anti-social Habits, Crime and Policing Act 2014 did so by inserting into the varied protection appellate provisions of the 2003 Act (ss.26(5), 103(10), 108(7A)) a discretion to increase time ‘if the individual did every part fairly doable to make sure that the discover was given as quickly because it might be given’.
This was and is not any basic discretion to increase time the place it’s within the pursuits of justice to take action, neither is it one which allows consideration of the underlying deserves of a putative enchantment. The only focus of the ability is as a substitute on the conduct of ‘the individual’. However the energy labored fairly nicely to take away the injustices brought on by the system and issues quietened down. At the very least they did till Szegfu v Hungary [2016] 1 WLR 322; by which the Excessive Court docket afforded a broad interpretation to the that means of ‘the individual’ and utilized to the Act the ‘surrogacy’ precept, by which the faults of attorneys are attributed to the occasion personally. On this context, that meant {that a} defendant (in custody and many others.) who had carried out all s/he might do to provoke an enchantment (by instructing attorneys and many others.) was shut out (and surrendered overseas) as a result of their instructed lawyer had didn’t act with applicable diligence. Szegfu undoubtedly marked a pointy change of judicial course. Beforehand striving to bend an unfair system in direction of equity, the Excessive Court docket apparently now regarded the system as truthful, and indulgence to defendants now not wanted. In keeping with the Excessive Court docket, the only mischief to which the brand new discretion was unrepresented defendants in custody; judicial latitude in its interpretation was now not required for defendants (resembling Mr Szegfu) who have been represented.
The Excessive Court docket in Northern Eire promptly disagreed (O’Connor v Greece [2017] NIQB 77) and the matter got here earlier than the Supreme Court docket.
On 2 February 2022, the Supreme Court docket gave judgment in Public Prosecutors Workplace of the Athens Court docket of Enchantment v O’Connor (Northern Eire) [2022] UKSC 4; [2022] 1 WLR 903. The Court docket unanimously held that Szegfu was mistaken.
The choice is neither controversial nor shocking. The mischief to which the brand new discretion was at was assuredly notice confined to unrepresented defendants in custody. Moderately, among the key injustices which had led to the introduction of the discretion had concerned failures by attorneys (see, eg R (Mann) v Westminster Magistrates’ Court docket [2010] EWHC 48 (Admin)). Attributing their faults to their shoppers was neither supposed by the scheme launched by the 2014 amendments, nor remotely warranted in precept. Particularly the place liberty of the person is at stake. Recall, for instance, that Mr O’Connor himself was (as soon as his enchantment was admitted) discharged on Article 3 ECHR grounds because of the therapy that awaited him within the infamous Greek jail system.
Context is every part. It was by no means possible that, given the pivotal position it had performed in its creation, the Supreme Court docket was realistically going to just accept neutering of its hard-won judicial discretion on this manner. The ‘surrogacy’ precept is just not, in any case, of common software. It was doubly unlikely to take action in an enchantment carrying a confirmed Article 3 violation. In actual fact, the Supreme Court docket had solely given Greece permission to enchantment in any respect given that it undertook to not arrest Mr O’Connor within the UK even when it received the enchantment.
One is left questioning why the Szegfu neutering try ever occurred within the first place? Little doubt the shortage of underlying benefit in Mr Szegfu’s enchantment didn’t incline the Excessive Court docket to entertain his out-of-time enchantment. Info doubted drive choices. However it bears observing that the entire dialogue in Szegfu was arid (obiter) in any occasion; the faults in late service have been Mr Szegfu’s personal, not his attorneys. It required no ‘surrogacy’ precept to exclude his try and enchantment.
