The court went on to conclude that once solicitors had been instructed it could not be said that the essence of the right of appeal had been denied if their default resulted in the application not being pursued in time. The court concluded that the vice which Parliament was dealing with did not call for such a distinction to be made. That conclusion proceeds from the assumption that the purpose of the provision was to exclude injustice arising from the absence of representation for those in respect of whom orders were made.
We do not accept that interpretation. There is nothing in the statutory wording to require it and it could give rise to irremediable procedural unfairness. It is not much of a remedy to a person extradited to 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. Secondly, the court in Szegfu did not address paragraph [36] of Pomiechowski which reviews the surrogacy principle and supports the view that it is not a universal rule. Thirdly, in our view Lord Mance's analysis of the injustice that can arise from absolute and inflexible time limits for appeals did not seek to confine the possibility of injustice to unrepresented litigants.
We note that the court in Szegfu was also concerned that conflicts between appellants and solicitors were likely to lead to delay which was inimical to the scheme of the 2003 Act. We agree that expedition in these cases is required. Our experience, however, is that such conflicts whether arising in criminal, administrative or civil work can be effectively controlled by judicial management. We do not consider that such concerns should affect our conclusions.
Conclusion
We are conscious that we are interpreting a statutory provision applicable in the United Kingdom in a way which is in conflict with the view of the Divisional Court in England and Wales. For the reasons given we have decided that we should follow our own course. The issue between the parties in this case was the applicable law. There was no dispute about the fact that the appellant had instructed his solicitors to appeal, that they had indicated orally on the day of the judgement that he intended to pursue the appeal, that the solicitors indicated during the bail application on 18 December 2015 that they had lodged the application for leave to appeal and that the appellant himself would have had no reason to think that the application had not been pursued in accordance with the Rules. Accordingly we are satisfied that the appellant did everything reasonably possible to ensure that the notice was given as soon as it could be given.
Addendum
In light of the issues raised in this application we consider it appropriate that a Practice Direction should issue dealing with the hearing of extradition applications before the appropriate judge. This will provide that where extradition is ordered the judge should inform the requested person that the time limit for appeal is 7 days. A form should be provided to the requested person in his own language immediately after the decision explaining the time limit, how to lodge an appeal, how to serve a copy and the necessary content for an application for leave to appeal. If the requested person is represented by solicitors and has instructed them to appeal he should seek confirmation that the appeal has been lodged and served and if he does not receive that confirmation within the 7 day period he should immediately lodge and serve notice of his application himself. We believe that such a Practice Direction will minimise the risk of any injustice.