DENTON PRINCIPLES APPLIED IN THE ADMINISTRATIVE COURT: EXTENSION OF TIME GRANTED FOLLOWING DEFAULT IN AN EXTRADITION CASE

In Zelenko v Prosecutor General’s Office of the Republic of Latvia [2020] EWHC 1800 (Admin) the Administrative Court applied Denton principles to an issue concerning extradition.

THE CASE

An order had been made extraditing the applicant to Latvia.  The applicant appealed on the grounds of his health.   The court asked for a report from the Latvian prison authorities as to the nature of the treatment the applicant would receive if he were deported.  That report was due to be served by 17th October 2019.  The Latvian authorities replies on the 9th October 2019. However the Crown Prosecution Lawyer forgot to serve and file these.

THE ARGUMENT

The applicant argued that the evidence was now out of time and his appeal should be allowed.  The respondent sought relief from sanctions.

THE JUDGMENT

The court held that Denton principles applied.  Applying those criteria the evidence should be allowed and the applicant extradited, subject to care being taken in relation to the service of evidence about his medical needs.

1. 1. We turn to consider whether this is a proper case in which the Court’s discretion should be exercised in the Respondent’s favour. Crim PR r 50.17(6)(a) expressly permits a deadline to be extended even after it has expired (unless that would be inconsistent with other legislation, but Mr Josse did not suggest that it would be in the present case). The question arises how the Court should approach the exercise of its discretion under this rule, which is in similar terms to the power in CPR r 3.1(2)(a) to grant relief from sanctions in civil cases, but is in a section of the Criminal Procedure Rules dealing expressly with extradition.

   2. In civil cases the Court’s approach to the exercise of this power is summarised in the commentary in the White Book 2020 on CPR r 3.1(2)(a):

” … in such cases, the court decides what, if any, extension of time to allow in accordance with the principles in Denton v TH White Ltd [2014] 1 WLR 3926; see (R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472).”

1. 1. The guidance given in Denton, supra, can be summarised as follows: a judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages CPR r 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is 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)(b).

   2. Mr Josse submitted that a different approach was required in extradition cases. He emphasised the generally strict approach to time limits in such cases, and the strong public interest in the need for finality in extradition cases. He referred us to R v Yasain [2015] EWCA Crim 1277, an application to re-open a criminal appeal on the ground that a procedural error had caused a real injustice. Giving the judgment of the Court, Lord Thomas CJ held that the Court of Appeal Criminal Division had the same power to re-open an appeal as the Civil Division did, but that the way in which this power should be exercised was not necessarily the same:

“38. The way in which the Civil Division approached its power to re-open an appeal is grounded in clear principle. We can see no basis for any distinction between the Civil Division and the Criminal Division as to the principles applicable to the jurisdiction under the implicit powers of an appellate court. The appellate jurisdiction of each is statutory. There is no reason why both do not have the same implicit jurisdiction and the same general basis for that jurisdiction.

39. However it is necessary, as Lord Woolf explained at paragraph 54 of the judgment in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 to distinguish between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised.

‘It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.’

40. The fact that both have the same implicit jurisdiction does not mean that the jurisdiction has necessarily to be exercised in the same way by the Criminal Division as it would be by the Civil Division. For example, in a criminal case there will often be three interests that have to be considered – that of the State, that of the defendant and that of the victim or alleged victim of the crime, even though the victim is not a party to the proceedings under the common law approach: see R v B [2003] 2 Cr App R 197 at paragraph 27; R v Killick [2012] 1 Cr App R 10, [2011] EWCA Crim 1608 at paragraph 48. There is the strongest public interest in finality. The jurisdiction is probably confined to procedural errors, particularly as there are alternative remedies for fresh evidence cases through the Criminal Cases Review Commission.

1. 1. Lord Thomas went on to suggest that the issue should be considered by the Rules Committee:

“42. However, although we can decide this appeal in this way and make it clear that this court has an implicit jurisdiction on the same basis as the Civil Division, we consider that it would be appropriate if the Criminal Procedure Rules Committee can formulate a rule similar to that set out in CPR 52.17 but which delineates the factors and circumstances applicable to the Criminal Division. It is in a position to consult widely and to consider a greater range of views than we heard on this appeal. Furthermore it is necessary to formulate principles that would apply either to all types of criminal appeal whether by way of appeal to this court, or by way of case stated or in an extradition appeal or with suitable modifications: see for example the decision of the Divisional Court to re-open an extradition appeal (subject to the specific provisions of the Extradition Act 2003): Republic of South Africa v Dewani [2014] WLR 3220, [2014] 3 All ER 266, [2014] EWHC 153 (Admin) at paragraph 17; McIntyre v United States [2015] 2 All ER 415, [2014] EWHC 1886 (Admin), [2015] WLR 507 at paragraphs 8-12.”

1. 1. Yasain was concerned with an application to re-open an appeal (which, in an extradition case, would now be an application under Crim PR 50.27) and not an application for an extension of time. However, we accept that there is force in Mr Josse’s submission that the mere fact that this Court has the same power to extend time in an extradition appeal as a civil court has to grant relief from sanctions does not necessarily mean that the power should be exercised in the same way. It is necessary in an extradition appeal to bear in mind the various interests in play, which include 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. So long as these matters are borne in mind, it seems to us that the Denton, supra, guidance provides a principled and structured approach which can and should be applied to the exercise of the Court’s discretion to extend time under Crim PR r 50.17(6)(a).

   2. In our judgment the CPS’s failure to comply with the Court’s order that undertakings be provided to the ‘Court and the Appellant’ by 4pm on 17 October 2019 was both serious and significant. It put the Respondent in breach of an order that was intended to be definitive as to the outcome of the case. Although there is no evidence about it, the CPS’s failure may well have raised the hope in the Appellant’s mind that his appeal had been successful.

   3. As to the second stage, as we set out earlier, the reason for the default was human error by the CPS lawyer because of her failure to diarise the deadline. That is not an acceptable explanation. It is therefore necessary to proceed to the third stage.

   4. As to the third stage, it seems to us that, even bearing in mind the importance of finality and compliance with time limits in extradition cases, the justice of the case requires the Court’s discretion to be exercised in the Respondent’s favour. That is, first, because although the mistake should not have occurred, it was at the lower end of the scale in terms of culpability by an otherwise conscientious lawyer. It is to be contrasted with the sort of defaults which occur through a party’s intentional and conscious choice not to comply with a court order. Second, the Latvian authorities themselves had complied with the request made of them by the CPS and replied speedily to the 6 October 2019 request for further information. Although in general a party is bound by the mistakes of its legal representatives, looking at the justice of the situation overall, it seems to us that it would be unfair to the Latvian authorities to take that approach here when they had replied with commendable speed to the request made of them on 6 October 2019. Third, the CPS’s application for an extension of time was made within a reasonably short period of time after the expiry of the deadline. Fourth, it follows that the Appellant was aware within a short time after expiry of the deadline that his extradition was still sought. If the default did raise a hope in his mind that the appeal had been successful, that hope was short-lived. Fifth, there is no evidence that the Appellant has been prejudiced as a result of the delay over and above the inevitable continuing uncertainty as to his position. Sixth, the fact is that even if the Latvian responses had been filed and served on time, the case would not in fact have been disposed of in terms of the order that I made. That is because the Appellant does not accept that they are sufficient. Thus, a further hearing would have been needed in any event. Finally, there is a strong public policy in favour of extradition in appropriate cases.

   5. For these reasons, we would grant relief from sanctions and extend time by varying the order made on 3 October 2019 to allow the Respondent until 31 October 2019 to file its responses.