The requested person appealed against the order of a district judge that he be extradited to Latvia to stand trial for drug offences, on the ground that his extradition was barred by section 25 of the Extradition Act 2003 because his physical condition was such that it would be unjust or oppressive to extradite him. The High Court judge found that the district judge had been wrong to reject his argument on that ground but, rather than allowing the appeal, he allowed the requesting state 14 days to supply to the court and the requested person suitable undertakings that the requested person would receive the necessary medical treatment if extradited, the order stating that the appeal would be allowed if no such undertaking was provided by 4 pm on 17 October 2019. Although the Crown Prosecution Service (“CPS”) received certain documents from the Latvian judicial authority in time, they were not filed with the court by the specified date. On 18 October 2019 the requested person’s solicitor sought confirmation that the appeal should stand allowed pursuant to the order. The CPS lawyer confirmed in a witness statement to the court that the reason for the default had been human error in failing to record the date for serving the undertaking. The witness statement was accompanied by the responses from Latvia and an application to extend time for their filing and service to 31 October 2019. On the restoration of the appeal before the Divisional Court the issues arose: (i) whether the court was functus officio or had jurisdiction to extend time for compliance with the court order under Crim PR r 50.17(6)(a); and (ii), if it had jurisdiction, whether the court should approach the exercise of its discretion under Crim PR r 50.17(6)(a) in the same way as its discretion under CPR r 3.1(2)(a) to grant relief from sanctions in civil cases, namely to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engaged CPR r 3.9(1), to consider why the default had occurred and to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application including CPR r 3.9(1)(a) and (b). The requested person contended that a different approach was required in extradition cases, given the generally strict approach to time limits and the strong public interest in the need for finality in such cases.
On the restored appeal—
Held, appeal dismissed. (1) It was not the case, as the requested person submitted, that once the deadline had passed without any assurance having been provided, he was automatically discharged and the court was functus officio and lacked the power to extend time for service of the undertakings. The order did not say so and if, as had subsequently proved to be the case, an assurance was provided but there was a dispute whether it was sufficient, it would be essential that the court retained jurisdiction to determine that question. The words of Crim PR r 50.17(6) were quite clear and permitted the court to extend a time limit even where it had expired. The court therefore had jurisdiction to extend time (paras 37, 39, 46, 47).
(2) The mere fact that the Divisional Court had the same power to extend time in an extradition appeal as a civil court had to grant relief from sanctions did not necessarily mean that the power should be exercised in the same way. It was necessary in an extradition appeal to bear in mind the various interests in play, which included the importance of finality in extradition cases, the interests of the requesting state in the prevention and deterrence of crime, the strong public interest (and international obligations) of this country in favour of extradition, in appropriate cases, and the need to avoid injustice to, or oppression of, the requested person. However, so long as those matters were borne in mind, the guidance in the case law under the Civil Procedure Rules provided a principled and structured approach which could and should be applied to the exercise of the court’s discretion to extend time under Crim PR r 50.17(6)(a) (para 52).
(3) Applying those principles to the present case, first, the CPS’s failure to comply with the court’s order that undertakings be provided to the court and the requested by 4pm on 17 October 2019 had been both serious and significant. It put the requesting state in breach of an order which had been intended to be definitive as to the outcome of the case. Although there was no evidence about it, the CPS’s failure may well have raised the hope in the requested person’s mind that his appeal had been successful. Second, the reason for the default by the CPS lawyer was not an acceptable explanation. Third, even bearing in mind the importance of finality and compliance with time limits in extradition cases, the justice of the case required the court’s discretion to be exercised in the requesting state’s favour. That was, first, because although the mistake ought not to have occurred, it was at the lower end of the scale in terms of culpability by an otherwise conscientious lawyer and was to be contrasted with the sort of defaults which occurred through a party’s intentional and conscious choice not to comply with a court order. Second, although in general a party was bound by the mistakes of its legal representatives, looking at the justice of the situation overall it would have been unfair to the requesting state to take that approach when they had replied with commendable speed to the CPS’s request. Third, the CPS’s application for an extension of time had been made within a reasonably short period of time after the expiry of the deadline. Fourth, it followed that the requested person had been aware within a short time after expiry of the deadline that his extradition was still sought, thus had the default raised a hope in his mind that the appeal had been successful, that had been short-lived. Fifth, no evidence had been adduced that the requested person had been prejudiced as a result of the delay over and above the inevitable continuing uncertainty as to his position. Sixth, even had the requesting state’s responses been filed and served on time, the case would not, in fact, have been disposed of in terms of the order made because the requested person had not accepted that they were sufficient. Thus, a further hearing would have been needed in any event. Finally, there was a strong public policy in favour of extradition in appropriate cases (paras 53–56, 73).
David Josse QC and John Crawford (instructed by Tuckers Solicitors) for the appellant.
Alexander dos Santos (instructed by the Crown Prosecution Service) for the judicial authorities.