The Supreme Court held that under section 26(5) of the Extradition Act 2003, a person seeking to appeal an extradition order out of time need only show that they personally did everything reasonably possible to ensure timely notice, without being held responsible for their solicitor’s failures.
Background
On 11 March 2013, the Court of Appeal of Athens issued a European Arrest Warrant requesting the extradition of John Joseph O’Connor, an Irish citizen, for criminal prosecution relating to seven serious drug trafficking offences. Mr O’Connor resisted extradition principally on the ground that prison conditions in Korydallos Men’s Prison in Greece would expose him to a real risk of inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights.
On 11 December 2015, HHJ Devlin ordered Mr O’Connor’s extradition. Mr O’Connor immediately instructed his solicitor to appeal, and the solicitor announced in open court that an appeal would be lodged. Under section 26(4) of the Extradition Act 2003 (‘the 2003 Act’), notice of application for leave to appeal had to be given within a permitted period of seven days, expiring at midnight on 17 December 2015. On 16 December 2015, the solicitor lodged the notice at court within time but, due to an oversight, omitted to serve it on the Crown Solicitor’s Office (acting for the Requesting State) until 4 January 2016 — approximately three weeks late.
Under the House of Lords’ decision in Mucelli and Moulai [2009] 1 WLR 276, as approved in Pomiechowski [2012] 1 WLR 1604, notice was not ‘given’ until both filed at court and served on the respondent. Under the original version of the 2003 Act, this failure would have been fatal and the appeal irredeemably out of time. However, section 160 of the Anti-social Behaviour, Crime and Policing Act 2014 had inserted a new section 26(5) into the 2003 Act, providing flexibility where notice was given late.
The Issue
The certified question before the Supreme Court was whether, under section 26(5) of the 2003 Act, a distinction could properly be drawn between the actions of the person subject to the extradition order — who had done everything reasonably possible — and the default of their solicitor who had not. The Divisional Court in England and Wales in Szegfu v Court of Pecs, Hungary [2016] 1 WLR 322 had indicated (obiter) that the fault of the legal representative should be attributed to the person (the ‘surrogacy principle’), so that if the solicitor failed to do everything reasonably possible, the court could not entertain the late application. The Divisional Court in Northern Ireland disagreed, holding that the person should not be held responsible for the solicitor’s failings. The Supreme Court was required to resolve this conflict.
The Mischief Parliament Addressed
Lord Stephens, delivering the unanimous judgment, traced the legislative history in detail. Under the original 2003 Act, short and inflexible appeal time-limits had caused substantial injustice in numerous cases, even where persons were legally represented. Several cases were cited, including Mucelli, Halligen, R (Mann), Szelagowski, and Bergman, all illustrating how solicitors’ errors deprived persons of their statutory right of appeal with potentially grave consequences.
In Halligen, Stadlen J had observed:
It would seem to offend the basic principles of fairness that a person served with a notice of extradition should be deprived of a statutory right of appeal through no fault of his own.
In R (Mann), Moses LJ stated:
… Parliament, in enacting the strict statutory scheme relating to Part 1 extraditions in the 2003 Act, … [cannot] possibly have envisaged one man being deprived of proper legal assistance by two sets of lawyers in two separate jurisdictions on two distinct occasions. Yet I accept this court is powerless to act. It has no jurisdiction.
The Scott Baker report (2011), which reviewed the UK’s extradition arrangements, identified the mischief as not confined to unrepresented persons but extending to represented persons whose solicitors had erred. Parliament enacted section 26(5) in response, introducing flexibility while maintaining the short time-limits.
The Court’s Reasoning
Lord Stephens held that the word ‘person’ in section 26(5) refers only to the individual subject to the extradition order. While it is natural that such a person may give notice through an agent, the requirement of doing ‘everything reasonably possible’ is imposed by the language of the provision only on the person themselves, and there is no evident reason to extend it to the person’s agent or legal representative.
Lord Stephens rejected the Szegfu interpretation on several grounds:
The Mischief Was Not Confined to Unrepresented Persons
Lord Stephens stated:
I respectfully disagree with the Divisional Court in Szegfu at para 18, that the vice with which Parliament was dealing was the particular problem of unrepresented persons being remanded in custody and having no realistic opportunity of getting legal advice in time to mount an appeal within seven days.
The cases preceding the legislative reform demonstrated that injustice arose equally where persons were legally represented but their solicitors had made errors.
The Surrogacy Principle Is Not Universal
Lord Stephens affirmed that there is no universal principle requiring the fault of a legal representative to be imputed to the client, citing FP (Iran) [2007] EWCA Civ 13 and Pomiechowski.
Irredeemable Procedural Unfairness
Lord Stephens endorsed the reasoning of the Divisional Court in Northern Ireland, quoting Morgan LCJ:
It is not much of a remedy to a person extradited to a prison where he faces the risk of inhuman and degrading treatment to know that he may be able to launch an action against his solicitor in due course.
Lord Stephens emphasised the particular concern where the consequence of denying an appeal mechanism could expose the person to a real risk to life under Article 2 ECHR or to torture or inhuman or degrading treatment under Article 3 ECHR.
The Correct Interpretation
Lord Stephens concluded:
It was not the purpose of the legislation to perpetuate the potential injustice which can result from fault of the person’s legal representative.
Accordingly, the true interpretation of section 26(5) is that the court has jurisdiction to entertain an application for leave to appeal if the person ordered to be extradited had personally done everything reasonably possible to ensure that the notice was given as soon as it could be given, even though their legal representative had failed to do so. The same interpretation applies equally to sections 103(10) and 108(7A) of the 2003 Act.
Practical Significance
This decision resolves a conflict between the Divisional Courts in England and Wales and Northern Ireland on the interpretation of a provision applicable across the United Kingdom. It establishes that solicitors’ errors in failing to give timely notice of appeal against extradition orders will not automatically defeat the appeal where the person has personally done everything reasonably possible. The Supreme Court endorsed the practice direction proposed by Morgan LCJ, recommending that extradition judges inform the requested person of the seven-day time-limit, provide a form in the person’s own language explaining the appeal process, and that a represented person should seek confirmation that the appeal has been lodged and served — and if no confirmation is received within seven days, should lodge and serve notice themselves. The decision is of critical importance in safeguarding the fundamental rights of persons subject to extradition orders, particularly where Convention rights under Articles 2 and 3 ECHR may be engaged.
Verdict: The Supreme Court unanimously dismissed the Requesting State’s appeal, holding that under section 26(5) of the Extradition Act 2003 a distinction can properly be drawn between the actions of the person subject to the extradition order and those of their legal representative. The court can entertain a late application for leave to appeal if the person personally did everything reasonably possible to ensure that the notice was given as soon as it could be given, even though the legal representative failed to do so. The order of the Divisional Court in Northern Ireland dated 15 August 2017 was upheld.
Source: Public Prosecutor’s Office of the Athens Court of Appeal v O’Connor [2022] UKSC 4
