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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Lukaszewski v The District Court in Torun, Poland [2012] UKSC 20 (23 May 2012) URL: http://www.bailii.org/uk/cases/UKSC/2012/20.html Cite as: [2012] WLR(D) 158, [2012] 1 WLR 1604, [2013] Crim LR 147, [2012] HRLR 22, [2012] 4 All ER 667, [2012] UKSC 20 |
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Easter Term
[2012] UKSC 20
On appeal from: [2011] EWHC 2060 (Admin)
[2011] EWHC 1584 (Admin)
JUDGMENT
Lukaszewski (Appellant) v The District Court in Torun, Poland (Respondent)
Pomiechowski (Appellant) v District Court of Legunica 59-220 Poland (Respondent)
Rozanski (Appellant) v Regional Court 3 Penal Department Poland (Respondent)
R (on the application of Halligen) (Appellant) v Secretary of State for the Home Department (Respondent)
before
Lord Phillips, President
Lady Hale
Lord Mance
Lord Kerr
Lord Wilson
JUDGMENT GIVEN ON
23 May 2012
Heard on 21 and 22 February 2012
Appellant Edward Fitzgerald QC Ben Watson Amelia Nice (Instructed by Kaim Todner Solicitors Ltd) |
Respondent John Hardy QC Ben Lloyd (Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit) |
|
Appellant Edward Fitzgerald QC Ben Watson Amelia Nice (Instructed by Kaim Todner Solicitors Ltd) |
Respondent John Hardy QC Ben Lloyd (Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit) |
|
Appellant Hugo Keith QC Gary Pons (Instructed by Dalton Holmes Gray) |
Respondent John Hardy QC Ben Lloyd (Instructed by Crown Prosecution Service, Appeals Unit) |
|
Appellant William Clegg QC Stephen Vullo David Patience (Instructed by Carter Moore Solicitors) |
Respondent Clair Dobbin (Instructed by Treasury Solicitors) |
|
Intervener (The Government of the United States of America) John Hardy QC Ben Lloyd (Instructed by Crown Prosecution Service, Special Crime Division Extradition Unit) |
LORD MANCE (WITH WHOM LORD PHILLIPS, LORD KERR AND LORD WILSON AGREE)
"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 seven days starting with the day on which the order is made."
Section 28(4) gives the authority a parallel right in the case of an order for discharge, providing for a like seven-day permitted period "starting with the day on which the order for the person's discharge is made".
"So much is, I think, inherent in any sensible understanding of a notice of appeal. A document without statement of any grounds at all could not support an appeal. The absence of grounds from the notice at the beginning of the process will, I think, be apt to lengthen that process by later procedural contests".
The case of Rozanski came on later, on 17th November 2011, before Moore-Bick LJ who followed the decision in Lukaszewski and Pomiechowski.
"It would seem to offend 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."
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
The appellants submit that, in so far as the 2003 Act provides rights of appeal, such rights cannot consistently with article 5(4) be made subject to limitations which "restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired" and that any such "restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved": Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, para 59. Tolstoy was a case concerning appeals in a context to which Article 6(1) applied, but the appellants in invoking article 5(4) rely by analogy upon the case law under article 6(1).
"128. The Court refers again to the requirements of Article 5 para. 1 (art. 5-1) in cases of detention with a view to deportation (see paragraph 112 above). It follows from these requirements that Article 5 para. 4 (art. 5-4) does not demand that the domestic courts should have the power to review whether the underlying decision to expel could be justified under national or Convention law."
"37. The Court therefore considers that by adopting Article 1 of Protocol No.7 containing guarantees specifically concerning proceedings for the expulsion of aliens the States clearly intimated their intention not to include such proceedings within the scope of Article 6(1) of the Convention.
38. In the light of the foregoing, the Court considers that the proceedings for the rescission of the exclusion order, which form the subject-matter of the present case, do not concern the determination of a "civil right" for the purposes of Article 6(1). The fact that the exclusion order incidentally had major repercussions on the applicant's private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6(1) of the Convention.
39. The Court further considers that orders excluding aliens from French territory do not concern the determination of a criminal charge either. In that connection, it notes that their characterisation within the domestic legal order is open to different interpretations. In any event, the domestic legal order's characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. On that subject, the Court notes that, in general, exclusion orders are not characterised as criminal within the Member States of the Council of Europe. Such orders, which in most States may also be made by the administrative authorities, constitute a special preventive measure for the purposes of immigration control and do not concern the determination of a criminal charge against the applicant for the purposes of Article 6(1). The fact that they are imposed in the context of criminal proceedings cannot alter their essentially preventive nature. It follows that proceedings for rescission of such measures cannot be regarded as being in the criminal sphere either.
40. The Court concludes that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant's civil rights or obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention."
"But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will; no, not even a criminal."
This passage was cited and approved by Lord Hoffmann in R (Bancault) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61; [2009] AC 453, para 44. In R v Bhagwan [1972] AC 60, 77G Lord Diplock spoke of "the common law rights of British subjects …. to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm". In Case 41/74 Van Duyn v Home Office [1975] Ch 358, para 22, the European Court of Justice recognised that:
"it is a principle of international law, which the EEC Treaty cannot be assumed to disregard in the relations between member states, that a state is precluded from refusing its own nationals the right of entry or residence."
The principle is the necessary corollary of a state's right (subject to obligations undertaken by e.g. the Geneva Refugee Convention and the European Convention on Human Rights) to refuse aliens permission to enter or stay in its territory. Were it otherwise, the Flying Dutchman would be no fleeting phantom.
LADY HALE