Public Prosecutors Office of the Athens Court of Appeal (Appellant) v Connor (AP) (Respondent) (Northern Ireland)

Introduction

On the 11th of March 2013, the Court of Appeal of Athens (the Requesting State) issued a European
Arrest Warrant which requested the extradition of an Irish citizen named John Joseph O’Connor, in
order to conduct a criminal prosecution for him regarding seven criminal offences relating to drug
trafficking

Mr O’Connor resisted the application for his extradition, drawing upon evidence from reports by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) and Professor Rod Morgan to claim that he would be treated inhumanely whilst
imprisoned in Greece, which would violate article 3 of the European Convention on Human Rights.
The prison in question was Korydallos Men’s Prison. Mr O’Connor also raised a forum bar, which
would allow the courts to stop extradition if a substantial measure of the criminal activity took place
in the UK, and it would be in the interest of justice for the extradition not to take place.
In December 2015, HHJ Devlin made ordered the extradition. After the ruling, Mr O’Connor
instructed his solicitor to appeal, and the solicitor announced orally in court that an appeal would be
lodged against the order. However, orally informing the court and the requesting state was not
enough, as section 26(4) of the Extradition Act 2003 requires notice of application for leave to
appeal to be given in accordance with the rules of court within “the permitted period” of seven days
after the extradition order is made.
Mr O’Connor’s solicitor lodged the application for leave to appeal at the court in the seven-day
period but failed to serve the application on the Crown Solicitor’s Office (CSO) on behalf of
Requesting State until three weeks later due to personal error. However, at a bail application on the
18th of December 2015, Mr O’Connor’s lawyer orally informed the court, in the presence of the
representatives of the Requesting State, that the notice had been lodged.
The question was whether the appeal could be entertained due to the fact that Mr O’Connor himself
had done everything reasonably possible to give notice of the appeal in accordance with section
26(5) of the Extradition Act 2003. The Divisional Court in Northern Ireland allowed the appeal to
proceed, drawing a distinction between the actions of Mr O’Connor and the actions of his solicitor.
On the 26 th of October 2017, the Requesting State made an application to the High Court for leave to
appeal to the Supreme Court for the first judgement, which was denied on the 11 th of March 2019.
On the 11th of March 2019, a Supreme Court panel granted permission to appeal after receiving a
letter from the CSO on the 14th of January 2019 stating that, regardless of the result, Mr O’Connor
would not be arrestable because of the European Arrest Warrant in the United Kingdom.

The Justices in this case were Lord Reed, Lord Hamblen, Lord Leggatt, Lord Burrows, and Lord
Stephens

Proceedings

This case presides over section 26(5) of the Extradition Act 2003, and whether a distinction can be
drawn between the actions of someone who has done everything in their power to give notice and
the actions of someone’s solicitor who has not.
Lord Stephens, backed unanimously by the other Lords, argued
 Section 26(1) of the 2003 Act identifies the “person” as being the individual subject to the
extradition order. Therefore, the word person in section 26(5) must also refer to the
individual subject to an extradition order. However, it is reasonable for someone to use an
agent – i.e., a solicitor – to deliver the notice. For example, it would be impossible to deliver
the notice personally if the individual were in prison. However, as the person only refers to
the individual subject to the extradition order, there is no reason for the requirement of
doing everything in their power to apply to the individual’s agent or legal representative
 This interpretation is supported due to the problems that have been caused in the past by
the short and inflexible time limits – i.e., seven days – that were set by section 26(5).
o Lord Stephens gave multiple examples of these time limits causing problems in the
past. One of these examples occurred in the case of Mucelli v Government of
Albania, in which Lord Rodger of Earlsferry stated in his dissenting speech (the
speech given by someone who disagrees with the majority opinion) that “Busy
practitioners with many demands on their time may quite understandably, fall down
from time to time …”.

 The Divisional Court stated in a similar case (Szegfu v Court of Pecs, Hungary) that the
‘surrogacy principle’, which involves the charging of the action of an individual’s legal
representative to the individual, is not universal: it does not apply to all cases.
o Lord Stephens agreed with this view – the view that it is unfair to attribute the fault
of the legal representative to the client – because even if the client could later sue
their legal representative for negligence, that will not make much difference if the
client has already been extradited to a place in which they are at risk of inhuman
and degrading treatment.

Judgement

Ultimately, drawing a distinction between an individual and their legal representative, the Supreme
Court dismissed the appeal unanimously.

Commentary

This case is an example of another decision made with the intention of correcting the ‘mischief’ (a
wrong or hardship that a statute is designed to remove or for which the common law affords a
remedy) caused by the section 26(5) of the Extradition Act 2003. Controversy in a number of cases
that followed the 2003 Act led to the eventual presenting of a report to the Home Secretary on the
30 th of September 2011 by a panel chaired by the Rt Hon Sir Scott Baker. The report reviewed the UK’s
extradition arrangements, and led to the enactment of the Anti-social Behaviour, Crime and Policing
Act 2014 which, whilst keeping the short time limits, added flexibility in relation to the time limits if
the person did ‘everything reasonably possible to ensure that the notice of application for leave to
appeal was given as soon as it could be given’. This decision goes further, ensuring that the issue
that arose in the case of Mucelli v Government of Albania and many other cases did not arise again,
and that the actions of an individual remain separate from the actions of their agent or legal
representative.

Written By Eniyoma Anosike