On 24 June 2015, the Divisional Court dismissed an appeal against the extradition of the Hungarian national, Norbert Szegfu. In its judgment, the Court considered the reach of section 26(5) of Extradition Act 2003 (EA 2003), and the Court’s new power to relax the seven-day notice period for extradition appeals, for the first time. The judgment is here.
On 12 March 2015, District Judge Zani ordered the extradition of the appellant to Hungary, to serve 30 months’ imprisonment, pursuant to two ‘conviction’ European Arrest Warrants (EAWs).
On 15 April 2015, s. 26(5) EA 2003 entered into force. This allows the court to relax the seven-day appeal time limit imposed by s. 26(4) EA 2003, where the appellant has done ‘everything reasonably possible to ensure that notice of appeal was given as soon as it could be given’, in circumstances where notice is given after the end of the permitted period.
The appellant prepared his appeal, which was ready for service on 20 April 2015, and lodged the notice of appeal on 27 April 2015. This was served on the respondent judicial authority on 8 May 2015, that is, outside the seven-day time limit.
Lord Justice Burnett and Mrs Justice Cox held, clarifying the scope of s. 26(5) EA 2003:
- The burden of establishing that ‘everything reasonably possible’ was done, rests with the appellant. The court must be satisfied on the balance of probabilities.
- Any question arising under the test will ordinarily be considered on the papers, applying Part 17.17(b)(i) of the Criminal Procedure Rules (CPR).
- Applying Part 17.20 CPR, and the contents required in an appeal notice, in a straightforward case, it may be permissible for a short description to be included. However, it is expected that the appellant, or his solicitor, will provide a witness statement, supported by a statement of truth exhibiting relevant documentation. Given the nature of the test, it is necessary that the appellant gives a comprehensive explanation for the entire period of delay.
- The merits of the underlying appeal have no bearing on the test. The focus is entirely on the reasons why the appeal is late.
- The test encompasses the personal conduct of the appellant and delay generated by his legal advisors. Mucelli considered.
In the present case, the appeal was out of time:
- Appeal rights were explained to the appellant.
- The notice could not have been lodged before the 15 April 2015, when s. 26(5) EA 2003 entered force.
- The Court would not ‘criticise’ the appellant for the five days following 15 April 2005, before the notice was drafted and ready to be lodged with supporting documentation.
- Nevertheless, there was no satisfactory reason for the delay following 20 April 2015.
Sections 26(4) and (5) EA 2003:
26(4) Notice of an appeal under this section must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.
(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given.