Appeals

The right to appeal to the High Court

If an individual’s extradition is ordered, unless that individual has consented to their extradition, they have 7 days from the date of the order in which to apply for permission to appeal to the Administrative Court at the High Court. An appeal may be brought on a question of law or fact but lies only with the leave of the High Court.

Notice of the application should be lodged with the court within 7 days of the date on which the order for the appellant’s extradition was made.

References:
EA 2003, s. 26

If an individual is discharged at the extradition hearing, the authority which issued the Part 1 request has 7 days from the date of the order to apply for permission to appeal to the High Court. This appeal can be brought on a question of law or fact but lies only with the leave of the High Court.

Notice of the application should be given within 7 days of the date on which the order for the individual’s discharge was made.

References:
EA 2003, s. 28

Where an individual is discharged at the extradition hearing but the authority that issued the Part 1 request gives notice of its intention to appeal, the judge must decide whether to remand the individual in custody or on bail while the appeal is pending.

References:
EA 2003, s. 30

If an individual gives notice of an application for leave to appeal outside of the permitted period, the High Court must not for that reason alone refuse the application if the individual did everything reasonably possible to ensure that the notice was given as soon as it could possibly be given.

References
EA 2003, s. 26(5) as inserted by the Anti-social Behaviour, Crime and Policing Act 2014, s. 160(1)(c)

If an appellant is mistakenly removed from the UK, this does not extinguish his right of appeal.

References:
Asztaslos v Szekszard City Court, Hungary [2010] EWHC 237 (Admin), [2011] 1 All ER 1027

Procedural requirements

The procedural requirements for the conduct of extradition appeals are to be found in section 3 of Part 50 of the Criminal Procedure Rules (“CrimPR”), namely, rules 50.17–50.31. Part 50 was brought into force on 6 October 2014 by the Anti-Social Behaviour, Crime and Police Act 2014 (Commencement No 6) Order 2014, SI 2014/2454 and is supplemented by Criminal Practice Directions 2015 [2015] EWCA Crim 1567 (as amended), paras 50A–50F.

References:
CrimPR, SI 2015/1490, rr 50.17–50.31
Anti-Social Behaviour, Crime and Police Act 2014 (Commencement No 6) Order 2014, SI 2014/2454
Criminal Practice Directions 2015 [2015] EWCA Crim 1567, paras 50A–50F

Notice of application to appeal

The notice of appeal:

  •  must be in writing;
  • must specify the date of the appellant’s arrest;
  • must specify the decision under appeal, including the date of the decision;
  • must identify each ground of appeal;
  • must summarise the relevant facts;
  • must identify any document or material upon which the appellant relies, and
  • must include or attach a list of the parties on whom the notice of appeal has been served.

References:
CrimReferences:
CrimPR, SI 2015/1490, rr 50.20(3) and (6)(a)

Where the appeal is against an order by the magistrates’ court, and if the grounds of appeal are that the magistrates’ court ought to have decided differently a question of fact or law at the extradition hearing, the appeal notice:

  • must identify that question;
  • must explain what decision the magistrates’ court should have made, and why; and
  • must explain why the magistrates’ court would have been required not to make the order under appeal, if that question had been decided differently.

References:
CrimPR, SI 2015/1490, rr 50.20(6)(b)

Where the appeal is against an order by the magistrates’ court, and if the grounds of appeal are that there is an issue which was not raised at the extradition hearing, or that evidence is available which was not available at the extradition hearing, the appeal notice:

  • must identify that issue or evidence;
  • must explain why it was not then raised or available; and
  • must explain why that issue or evidence would have resulted in the magistrates’ court deciding a question differently at the extradition hearing; and
  • explain why, if the court had decided that question differently, the court would have been required not to make the order it made.

Notice of appeal must be given by completing Form N161 (Appellant’s Notice) and lodging it with the appropriate fee at the Administrative Court Office at the Royal Courts of Justice. The form required to give notice of appeal may be updated and/or changed under the authority of the Lord Chief Justice.

References:
Appellant’s Notice (All appeals except small claims track appeals) 

If a respondent to the appeal wishes to make representations, a Respondent’s Notice must be completed and served in accordance with the CrimPR, SI 2015/1490, r 50.21. A respondent must serve his or her notice within 10 business days of either:

  •  the service by the appellant of an amended appeal notice under CrimPR r 50.20(5),
  • or the expiry of the deadline for the appellant to serve an amended appeal notice under CrimPR r 50.20(5).

whichever occurs first.

References:
CrimPR, SI 2015/1490, r 50.21

Time for appeal to be heard

The High Court should begin to hear the substantive appeal within 40 days of the defendant’s arrest. The High Court can extend this period if it believes it to be in the interests of justice to do so.

References:
EA 2003, s. 31
CrimPR, SI 2015/1490, r 50.23(1)

The High Court may extend the period for hearing the appeal if it believes it is in the interests of justice to do so and it may do this even after the period has expired.

References:
CrimPD 17.B.8

Statutory time limits cannot be curtailed by the rules of the Court. CrimPR, r 50 are applicable to extradition law, except where they are overridden by statute.

References:
Mucelli v Government of Albania; Deputy Public Prosecutor in Creteil, France v Moulai [2009] UKHL 2, [2009] 3 All ER 1035
Criminal Practice Directions 2015 [2015] EWCA Crim 1567 para 50B.8
Regional Court in Poznan (Poland) and others v Czubala and others [2016] EWHC 1653 (Admin)

If an appeal against an extradition order is not heard before the expiry of the relevant period, the High Court must be taken to have:

  • allowed the appeal;
  • discharged the defendant; and
  • quashed the extradition order.

References:
EA 2003, s. 113

Detention pending appeal

If an appeal is pending under section 28, the judge must remand the individual in custody or on bail pending the appeal.

References:
EA 2003, s. 30(2)

Powers of the High Court on appeal

On an appeal against the extradition judge’s decision to order an individual’s extradition, the High Court may either:

  • Allow the appeal, quashing the extradition order and discharging the individual; or
  • Dismiss the appeal.

The High Court can allow the appeal if either:

  • The appropriate judge ought to have decided a question before him at the extradition hearing differently; and
  • If he had decided the question in the way he ought to have done, he would have been required to order the individual’s discharge.

Or:

  •  An issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; and
  • The issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; and
  • If he had decided the question in that way, he would have been required to order the individual’s discharge.

References:
EA 2003, s. 27

On an appeal against the extradition judge’s decision to discharge the individual, the High Court may either:

  • Allow the appeal, quashing the discharge order and remitting the case back to the extradition judge and directing him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing’; or
  • Dismiss the appeal.

References:
EA 2003, s. 29

Leave to appeal to the Supreme Court

The High Court can grant leave to appeal to the Supreme Court if it has certified that there is a point of law of general public importance involved in the extradition decision, and it appears to the court that this point ought to be considered by the Supreme Court. In practice, the High Court will rarely grant leave but may certify one or more questions and then the Supreme Court will decide whether to grant leave.

References:
EA 2003, s. 32

A party wishing to appeal to the Supreme Court must apply orally and immediately after the High Court’s decision, or in writing within 14 days of the date of the decision. The application must be served on all parties. The application must identify the point of law of general public importance, state why the point of law ought to be considered by the Supreme Court and give reasons why the High Court should grant leave to appeal.

References:
CrimPR, SI 2015/1490, r 50.25(2)(b)
Criminal Practice Directions 2015 [2015] EWCA Crim 1567, Pt 50D

There is no power for the High Court or the Supreme Court to grant an extension to the 14-day period.

The High Court may grant bail to an appellant applying for leave to appeal.

Hearing of appeal by Supreme Court

If the appeal is not brought within 28 days of the grant of leave, it must be taken to have been dismissed.

The Supreme Court has the same powers as the High Court on appeal (See ‘Powers of the High Court on appeal’ above).

Detention pending appeals to Supreme Court

If an appeal against discharge is pending under section 32, the court must remand the individual in custody or on bail whilst the appeal is pending.

References:
EA 2003, s. 33A(2)

Appeal to the ECtHR

Once all domestic appeal routes have been exhausted the appellant can make an application to the European Court of Human Rights (“ECtHR”) for interim measures against their removal. These will only be granted in exceptional circumstances. The application for interim measures should include the decision of the final domestic court and set out the basis on which the applicant has grounds to believe that the rights under the ECHR will be breached.

References:
Rules of Court, r 39