Time and time again: Article 6 to the rescue
28 May 2012
Last week Rosalind English did a summary post on the important Supreme Court case of Lukaszewski and others, R (on the application of Halligen) v Secretary of State for the Home Department  UKSC 20 – read judgement.
The technicalities of this decision about extradition time limits are set out in her post. Here, I explore the potential implications for other cases.
The Extradition Act contains firm rules that appeals need filing and serving within 7 or 14 days, depending on the procedure. The Supreme Court decided that there should be a discretion in exceptional circumstances for judges to extend time for service of appeal, where the statutory time limits would otherwise operate to impair the right of appeal and therefore be in breach of the right to a fair trial afforded by Article 6(1) of the Human Rights Convention. And it is this discretion which is important for a whole range of appeals where mandatory time limits are laid down by statutes.
Of the four cases decided, the key one for this point is Halligen. Halligen is a UK citizen whose extradition was sought to the US. He made two Convention arguments in order to get over the fact that he had not given notice of his extradition appeal to the Crown Prosecution Service within 14 days, as the statute required. Given that the only reason for his lateness was a failure by his then solicitors, it is unsurprising that the Supreme Court was inclined to start from the position that some way through the mandatory time limits should be found. Halligen ran two arguments. The first was that Article 5(4) of the Convention gave him a right to challenge the lawfulness of his detention. The Court decided that this argument did not fly. The extradition did not go to his detention; the fact that he was detained was incidental to the extradition. Hence, he could not challenge the extradition on the basis that it involved a detention capable of challenge under Article 5(4).
The more interesting, and wide-ranging, argument came next, namely his claim to a right to a fair trial under Article 6(1). Here the arguments between Halligen and his fellow appellant Poles (seeking not to be sent back to Poland) diverged. The Court decided that the Poles had no Article 6(1) right in play. Relying on ECHR cases, for which see - of Lord Mance’s judgement, it said that extradition did not involve the determination of a criminal charge falling within Article 6(1). But Halligen was a UK citizen. He had a common law right to come and remain within the jurisdiction (cue Blackstone and Lord Denning for ringing statements of this entitlement). The extradition proceedings affected that right and that freedom. Hence the extradition proceedings fell within Article 6(1), and the Court had thereby found the vehicle via which it could modify the statute, given that a literal interpretation of the statute threatened to impair the very essence of the right. So the Court could decide whether or not to override the time limit if the justice of the case so provided.
The Court considered how this should be done. It could have declared the statute incompatible with Article 6(1), in which case this would not have helped Halligen but would have guided the law thereafter – assuming Parliament had followed the lead of the declaration of incompatibility and legislated to remedy it. This limitation on the effect of the ruling on the particular litigant inevitably must have steered the Court into reading the extradition statute consistently with Convention rights under section 3 of the Human Rights Act,and thus render it compatible with the Convention. To do so, the Court had to insert quite a lot of words into the extradition provision, in order to read it “down” compliantly with section 3:
the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously.
This is very important. A whole host of statutes mandates appeals within a set time, and many of them do not refer to rules which enable the courts to take a common sense attitude to their breach. This involves asking whether there was a good reason for the appeal being late. If yes, let the appeal in late. But bureaucrats do not like that sort of discretion, because it requires judgment (which cannot be computerised), and we end up with this continuous dance between unconditional statutes and the courts who have to deal with individual deserving cases which justify a case-by-case rather a blanket approach. So current score sheet: courts 1, bureaucrats 0.
The starting point in any of these statutory appeals where the appeal is late will be to identify an Article 6(1) right which triggers this right to have appeals determined in exceptional circumstances. An example might be the case of Modaresi, (see my previous post) where a mental health patient was subject to stringent time limits. Certainly, any case which involves the determination of proceedings which affect a professional’s right to practice falls well within the rule. But the really tantalising one is the fate of the three Poles appealing in the present case. Their appeal was allowed on other grounds. But what would have happened if the other grounds had not been available? They did not have the UK common law right to remain in the UK, though (unremarked by the Court) they had a potentially equivalent EU right of freedom of movement within the EU, and why should a UK citizen be in a better position before the UK courts than a Polish one when it comes to analysing the benefits of citizenship? Lord Mance remarks in  that the position of the Polish litigants appear to deserve attention, including
specifically whether they are currently provided with meaningful and effective legal assistance in relation to the whole extradition process, including any appeal they may wish to bring.
But this, though helpful, simply sets up the next case in which EU rights meet domestic statutes against the background of Strasbourg case law. And no UK lawyer can give sensible advice unless they have a reasonable command of the three elements of this triangle.
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