Public Prosecutor’s Office of the Athens Court of Appeal v O’Connor [2022] UKSC 4

Mr O'Connor faced extradition to Greece but his solicitor failed to serve appeal notice within the seven-day limit. The Supreme Court held that under section 26(5) of the Extradition Act 2003, courts can entertain late appeals where the person themselves did everything reasonably possible, even if their legal representative failed. The solicitor's fault should not be attributed to the client.

Facts

Mr O’Connor, an Irish citizen, was subject to a European Arrest Warrant issued by Greece for drug trafficking offences. On 11 December 2015, a judge ordered his extradition. Mr O’Connor immediately instructed his solicitor to appeal. While the solicitor lodged the notice of application for leave to appeal within the seven-day permitted period under section 26(4) of the Extradition Act 2003, he failed to serve it on the Crown Solicitor’s Office until approximately three weeks later due to an oversight.

The Divisional Court Proceedings

The Divisional Court in Northern Ireland held that Mr O’Connor had personally done everything reasonably possible to ensure timely notice was given. It distinguished between the actions of Mr O’Connor and those of his solicitor, declining to attribute the solicitor’s fault to his client under section 26(5). This conflicted with the obiter dicta in Szegfu v Court of Pecs, Hungary [2016] 1 WLR 322, where the Divisional Court in England and Wales suggested that a legal representative’s conduct should be attributed to the client.

Issues

The certified question was whether, under section 26(5) of the Extradition Act 2003, a distinction can properly be drawn between the actions of a person who has done everything reasonably possible to give notice of application for leave to appeal and the default of their solicitor who has not.

Judgment

Lord Stephens, delivering the unanimous judgment of the Supreme Court, dismissed the appeal and upheld the Divisional Court’s interpretation.

Interpretation of Section 26(5)

The Court held that the word ‘person’ in section 26(5) refers only to the individual subject to the extradition order, not their legal representative. Lord Stephens stated:

On both occurrences of the word it must refer, and refer only, to the individual who is subject to an extradition order, as indicated by section 26(1), and to no one else.

The Mischief Rule

The Court examined the mischief Parliament sought to address when enacting section 160 of the Anti-social Behaviour, Crime and Policing Act 2014. This mischief was the potential for substantial injustice caused by short and inflexible time-limits, which was not confined to unrepresented persons. Lord Stephens observed:

It was not the purpose of the legislation to perpetuate the potential injustice which can result from fault of the person’s legal representative.

Rejection of the Universal Surrogacy Principle

The Court affirmed that there is no universal principle requiring a client to be held responsible for their legal representative’s failings. Lord Stephens agreed with the Northern Ireland court that:

It is not much of a remedy to a person extradited to a prison where he faces the risk of inhuman and degrading treatment to know that he may be able to launch an action against his solicitor in due course.

Departure from Szegfu

The Supreme Court expressly departed from the interpretation in Szegfu regarding the surrogacy principle, though it agreed with other aspects of that judgment.

Implications

This judgment provides important protection for individuals facing extradition who have personally done everything possible to comply with procedural requirements. It clarifies that solicitors’ errors should not automatically be attributed to their clients in extradition appeals. The decision has significant implications for human rights protection, particularly where extradition might expose individuals to risks under Articles 2 or 3 of the ECHR. The Court endorsed a practice whereby judges should inform requested persons of the time-limit and provide forms in their own language explaining appeal procedures.

Verdict: The Supreme Court unanimously dismissed the Requesting State’s appeal, holding that the Divisional Court in Northern Ireland had jurisdiction to entertain Mr O’Connor’s application for leave to appeal. Where notice of application for leave to appeal was not given within the permitted period, the court can entertain the application if the person ordered to be extradited had himself done everything reasonably possible to ensure that the notice was given as soon as it could be given, even though his legal representative had failed to do so.

Source: Public Prosecutor’s Office of the Athens Court of Appeal v O’Connor [2022] UKSC 4