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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Golabek v Regional Court of Warsaw In Poland [2010] EWHC 3394 (Admin) (25 November 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3394.html Cite as: [2010] EWHC 3394 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		25 November 2010

1. MR JUSTICE SILBER: Sebastian Golabek, the appellant, seeks to challenge a decision of District Judge Purdy made at the City of Westminster Magistrates' Court on 28th April 2010, ordering the appellant's extradition to Poland pursuant to a European Arrest Warrant issued by the Polish Judicial Authority on 1st July 2009. Poland has been a designated Category 1 territory pursuant to the Extradition Act 2003 ("the 2003 Act"). Consequently Part 1 of the 2003 Act was modified by the Extradition 2003 (Multiple Offences) Order 2003 and the Police and Criminal Justice Act 2006, Schedule 13.
2. The European Arrest Warrant was received in the United Kingdom by the Serious Organised Crime Agency, which is a designated authority for the purpose of Part 1 of the 2003 Act. It refers to two offences.
3. The appellant was arrested on 31st March 2009 by a police officer acting pursuant to the European Arrest Warrant. It was originally indicated that the extradition proceedings would be contested on human rights grounds but when the hearing came before District Judge Purdy, it was an uncontested extradition hearing.
4. The appellant challenges by way of statutory appeal, pursuant to section 26 of the 2003 Act, the order for his extradition, but it has only become clear during the course of the hearing why he challenges the order. He says that, as a result of subsequent proceedings in Poland, the European Arrest Warrant has been withdrawn. The Crown Prosecution Service, which represents the Polish authorities, has not received a notice of appeal despite it being served in the Administrative Court Office. There is a witness statement from Mr Daniel Sternberg who has the conduct of the case concerning the appellant on behalf of the Crown Prosecution Service, in which he says that the Crown Prosecution Service has not been served. That is not disputed by the appellant who has appeared in person with the help of a translator.
5. The case for the respondent is that, as the Crown Prosecution Service has not received the appellant's notice, no valid appeal is before the court and so it should be dismissed. In support of this submission Mr Watkins points out that section 26(4) of the 2003 Act provides that

"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made."

Pursuant to paragraph 22.6A, section 2 of Part 52 of the Civil Procedure Rules provides that:

"(3) Where an appeal is brought under section 26 ... of the Act -

(a) the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made."

6. Mr Watkins stresses in his written submissions the use of the word "must" in both those provisions.
7. He points out that in the case of Mucelli v Government of Albania [2009] 1 WLR 276, it was made clear by a majority, with Lord Rodger of Earlsferry dissenting, first that an appellant must lodge and serve a notice of appeal on the court and the respondent within the seven day period prescribed (see, for example, paragraph 66 per Lord Neuberger of Abbotsbury); second, it is not possible to extend the time period in which this is to be done (see, for example, paragraph 74 per Lord Neuberger of Abbotsbury) and, third, that any failure to serve a notice of appeal within the time will mean that there is no valid appeal before the court. Indeed, in the Mucelli case the House of Lords held by a majority that a failure to serve the Crown Prosecution Service within the prescribed period meant that an appeal was irredeemably out of time and could not proceed.
8. I was quite satisfied that the appellant had every opportunity to answer the point that the notice of appeal should have been served on the Crown Prosecution Service but he has not suggested any reason why the Mucelli principle does not apply. The inevitable conclusion is that no proper appeal has been instituted against the decision of the District Judge and the appeal must therefore be dismissed. Mr Watkins has said that he will take instructions as to whether the European Arrest Warrant was withdrawn. He undertakes not only to do so but to communicate the result of that to the court as soon as possible. The appellant has given the number of the hearing so that matters can be looked at.
9. There is going to be a condition that the order will not take effect for 14 days.