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Session 2008 - 09
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Judgments - Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice)
Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 2

on appeal from:[2007] EWHC 2632 (Admin)

[2008] EWHC 2632 (Admin)

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Counsel

Appellant (Mucelli):

Richard Gordon QC

Ben Cooper

(Instructed by Sonn Macmillan Walker )

Respondent: (Mucelli)

Andrew Nicol QC

John RWD Jones

(Instructed by Crown Prosecution Service)

Appellant(Moulai):

Andrew Nicol QC

John RWD Jones

(Instructed by Crown Prosecution Service)

Respondent: (Moulai)

Manjit Gill QC

Martin Henley

(Instructed by Central law Practice)

Hearing dates:

11 and 12 NOVEMBER 2008

ON

WEDNESDAY 21 JANUARY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice)

[2009] UKHL 2

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

1.  I have had the benefit of reading in draft the speeches of my noble and learned friends Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury. Not without some hesitation I align myself with the reasoning and conclusion of Lord Neuberger. It seems to me that the draftsman of sections 26, 28, 103 and 105 of the Extradition Act 2003 was concerned not merely to make provision for the speedy implementation of the appropriate process for bringing an appeal, but for giving notice of this with equal expedition to those so vitally concerned. Where extradition has been ordered the authority that has, should there be no appeal, the responsibility for procuring the extradition within the very short ‘required period’ needs to know at the earliest opportunity if there is to be an appeal. Equally, if discharge has been ordered, the person whose extradition is sought will be anxious to know at the earliest opportunity if the warrant or the extradition request is “disposed of", within the provisions of section 213.

2.  The draftsman has left it to those responsible for the rules of court in their respective jurisdictions to make specific provision for the giving of “notice of appeal". In Scotland they have made provision by rule 34.3(1)(a) for service first and lodging of the note of appeal second. In England and Wales CPR 52.2 provides “all parties to an appeal must comply with the relevant practice direction". The Rule Committee has drafted a lengthy Practice Direction to CPR 52 dealing with the Extradition Act 2003. This includes the following provisions:

“Appeals under the Extradition Act 2003

22.6A

. . .

(3) Where an appeal is brought under section 26 or 28 of the Act -

(a) the appellant’s notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made;

. . .

(5) Where an appeal is brought under section 103 of the Act, the appellant’s notice must be filed and served before the expiry of 14 days, starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the Act of the order he has made in respect of the person.

(6) Where an appeal is brought under section 105 of the Act, the appellant’s notice must be filed and served before the expiry of 14 days, starting with the day on which the order for discharge is made.”

In Gercans v The Government of Latvia [2008] EWHC 884 Richards LJ remarked at para 2 that this wording reflected the terminology of the statute. I agree.

3.  Accordingly I concur in the manner in which Lord Neuberger proposes for the disposal of each appeal.

LORD RODGER OF EARLSFERRY

My Lords,

4.  If someone who is facing extradition wishes to appeal against the order of the District Judge, does section 26(4) or 103(9) of the Extradition Act 2003 (“the 2003 Act”) require that he should not only file his appellant’s notice but serve it on the respondent within the specified period of 7 or 14 days? Your Lordships agree with my noble and learned friend, Lord Neuberger of Abbotsbury, that the Act requires that both should be done within that time. Indeed, to my noble and learned friend, Lord Brown of Eaton-under-Heywood, that construction is “tolerably plain". I content myself with saying that I find the reasons advanced for your Lordships’ construction unpersuasive. In my view, all that Parliament requires is that the appeal should be filed within the specified period.

5.  I approach the interpretation of sections 26(4) and 103(9) on the basis that Parliament rarely gets involved in matters of procedure. It may lay down a time for raising proceedings or bringing an appeal, but it stops at the door of the court. Parliament doesn't teach its grandmother to suck eggs: it proceeds on the assumption that the courts are experienced in matters of procedure and their rule-making bodies know best how they should be regulated. Given the umpteen rules and countless practice directions in the Civil Procedure Rules (“CPR”), not to mention their equivalents in Scotland and Northern Ireland, that seems a fair assumption. Rules on service are quintessentially matters of procedure, which are liable to differ in the different jurisdictions and which may be altered from time to time in the light of experience and advances in technology. So if, exceptionally, Parliament had intended to enter the realm of procedure and prescribe an immovable date for service of an extradition appeal, I should have expected it to spell that out.

6.  What is the practical issue which lies behind these appeals? Presumably, it is illustrated by Mr Mucelli’s case where the appellant’s notice was filed within the 14 day period permitted by section 103(9), but was not served on the Crown Prosecution Service (on behalf of the Government of Albania) until about two weeks later. Since PD22.6A(5) provides that the notice must be filed and served before the expiry of 14 days, this was a clear breach of the practice direction. Admittedly, if section 103(9) does not prescribe a time-limit, there may be no clear sanction for such a breach, but the same applies to all appeals. If the lack of a sanction means that the rules for service of appeals are not being observed and this is causing practical problems, it is surprising that they have not been amended before now. In fact, however, Mr Nicol QC, who appeared for the Albanian Government and the French prosecutor, did not put forward anything to show that, when the 2003 Act was passed, this was recognised to be a significant problem with appeals in general or was anticipated as being a particular problem with extradition appeals. In other words, there is nothing to show that this was a mischief which Parliament was addressing in sections 26(4) and 103(9).

7.  A relatively short but utterly rigid deadline for bringing an appeal is readily understandable. Even so, it imposes a substantial burden on a prospective appellant and his advisers. The question is whether Parliament considered that, exceptionally, the matter of service had to be taken out of the hands of the courts and subjected to the same immovable time-limit - with failure to meet the deadline resulting in the prisoner’s extradition, however meritorious the appeal that had been filed, however venial the slip that had resulted in service being late, and however little the prejudice that it had caused to the respondent. The potential for substantial injustice is striking. Busy practitioners with many demands on their time may, quite understandably, fall down from time to time - as Mr Moulai’s case vividly illustrates. Rules of court on procedural matters are designed to allow for these realities and to enable substantial justice to be done. If the intention was, on this occasion, to ignore these realities and impose a rigid deadline for service, I would again have expected the Bill to say so in clear terms. Members of Parliament could then have seen that this was what they were being asked to enact and could have pondered the consequences.

8.  The suggestion is that, despite all this, Parliament did indeed lay down a rigid time-limit for service in section 26(4) because of the emphasis in the Framework Directive on the need for speed. As Lord Neuberger acknowledges, this argument is weakened by the fact that the wording in section 26(4), which is supposed to have been prompted by the Framework Directive, also turns up in section 103(9) - and that provision deals with appeals which have nothing to do with the Framework Directive. It is further weakened by the fact that Parliament did not find it necessary to enact other, more obvious, measures to ensure the speedy disposal of appeals, e g, prescribing a timetable. Instead, these have been left, entirely appropriately, to the courts. And - no doubt, with official encouragement - the relevant rule-making bodies have met the challenge by prescribing a timetable which aims to ensure that extradition appeals are heard quickly: PD22.6A(3)(c) and (4), (9)-(11) in England and Wales; rule 34.4, especially paras (5) and (6), of the Act of Adjournal (Criminal Procedure) Rules 1996 (“the Act of Adjournal”) in Scotland; Order 61A, rule 4, of the Rules of the Supreme Court (Northern Ireland) in Northern Ireland. If Parliament could trust the rule-making bodies to ensure the rapid disposal of appeals, it is hard to see why it could not trust them to deal with the lesser matter of timely service.

9.  With these considerations in mind, I turn to look at sections 24(6) and 104(3) themselves. In interpreting them, like Lord Neuberger, I pay no attention whatever to the explanatory notes as an indication of their meaning. In this case the notes do not identify the mischief behind the enactments. Nobody outside government knows who drafted them, or revised them or on what basis. They cannot be regarded as any kind of authoritative guide to the meaning of the provisions. The focus must be on the words of the provisions themselves.

10.  Section 26(4) says that “Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period” of 7 days. To state my conclusion: I consider that a person threatened with extradition would read these words as telling him that, if he wanted to appeal, he must give notice of his appeal within 7 days in the manner indicated in the relevant rules of court.

11.  When interpreting the provision, the House has to bear in mind that section 26, like most of the relevant provisions of the Extradition Act, extends not only to England and Wales but to the whole of the United Kingdom. The provisions are drafted, and must be interpreted, on that basis. This is indeed of some immediate relevance in the case of sections 26(4) and 103(9). In Scotland, the people still walk in darkness and upon them hath the light of the CPR not shined. So there can be no question of interpreting the terms of the statute in the light of the CPR - or of the Scottish or Northern Irish rules, for that matter. Indeed, the idea that someone threatened with extradition and wondering how to appeal would read section 26(4) or 103(9) with the terminology of the English, Scottish or Northern Irish rules already in mind is unrealistic.

12.  Nevertheless, if he wants to know how he is to go about giving due notice of his appeal, a potential appellant has to have regard to the requirements imposed by the rules of court for the jurisdiction in question. As they stand at present, within the period specified in the Act, the appellant’s notice must be “filed” in England, the originating motion must be “issued” in Northern Ireland, and the notice of appeal must be “lodged” in Scotland. Of course, all or any of these ways of starting an appeal can change at any time if the relevant rule-making body chooses to amend the rules.

13.  In arguing that the obligation under the 2003 Act goes further, Mr Nicol made a number of detailed points on sections 26(4) and 103(9), which are similar in all material respects.

14.  He rightly drew attention to the change in language from “an appeal under this section may be brought” in subsection (3) of section 26 to “Notice of an appeal under this section must be given” in subsection (4). The suggestion was that, since subsection (4) could have been drafted as “An appeal under this section must be brought...,” the language actually used must mean something different. Lord Neuberger accepts that argument. For my part, I readily accept that it is a point to bear in mind, but its significance has to be assessed in the context of all the other relevant considerations. If the matter is viewed in that way, it seems to me that the draftsman has just chosen a familiar form of words for referring to the bringing of an appeal.

15.  Mr Nicol argued, however, that the form of words in section 26(4) was special, since it referred to notice of “an” appeal being given. From this use of the indefinite article he deduced that Parliament envisaged the appellant first filing the appeal and then serving notice of the appeal which he had brought by filing it. So service on the Serious Organised Crime Agency (“SOCA”) was caught by the provision.

16.  This argument ignores the fact that in section 35 Parliament uses “notice of an appeal” in subsection (1)(b) and “notice of appeal” in subsections (4)(a) and (6)(a) interchangeably. Indeed - at the risk of engaging in a “minute examination of a large number of the 2003 Act’s many sections” - the simple reality is that the draftsman prefers to use “notice of an appeal” when saying that notice of an appeal “is” or “must be” given (sections 26(4), 28(4), 103(8) and (9), 105(5) and 124(2)(a)) or when referring to situations where no notice of an appeal “is” given (sections 35(1)(b) and 117(1)(b)), but uses “notice of appeal” when referring to the period “for giving” notice of appeal (sections 35(4)(a) and 6(a), 117(4)(a), 213(3)(a) and (5)(a), 214(2)(c) and (4)(a)). The choice of expression appears to be based on purely stylistic grounds. Since the expressions with and without the indefinite article are used interchangeably, there is no basis for attributing particular legal significance to the indefinite article in section 26(4). The provision would have meant the same if the draftsman had said “Notice of appeal under this section must be given....” Therefore, the inclusion of the indefinite article is not a sound basis for inferring that Parliament envisages notice being given to the CPS of an appeal that has already been brought by filing.

17.  In fact, Parliament speaks about giving notice of appeal in all kinds of statutes. Most obviously, perhaps, section 18(1) and (2) of the Criminal Appeal Act 1968 provide inter alia that a person who wishes to appeal to the Court of Appeal “shall give notice of appeal … in such manner as may be directed by rules of court” and that “[n]otice of appeal … shall be given within twenty-eight days from the date of conviction” etc. What matters for present purposes is that, under Part 68 of the Criminal Procedure Rules 2005, (SI 2005/384) there is no requirement on the potential appellant to give notice of the appeal to any other person. So the obligation in section 18(1) and (2) to give notice of appeal has not been interpreted as imposing an obligation to notify anyone, apart from the court, about the appeal within 28 days. Of course, the meaning of words as used in one Act cannot be determined by their meaning as used in a different Act. Nevertheless, in interpreting what looks like a stock expression, it would be unwise to ignore completely the usage elsewhere. This suggests that the words simply refer to notifying the relevant court.

18.  Mr Nicol’s argument was that the words “Notice of an appeal under this section must be given in accordance with rules of court” in section 26(4) were to be interpreted as themselves imposing a requirement for both filing and service to be effected within 7 days. In other words, the draftsman is supposed to have used the phrase “notice of an appeal is to be given” to impose not one obligation, but two distinct obligations. That would, in itself, be most unusual. But, if that had indeed been the intention, the provision would have had to say on whom service was to be made - even if only by saying that it was to be made on the persons to be specified in an order. Of course, Lord Neuberger sees the problem and he seeks to supply that crucial omission by praying in aid the rules of court: “there is nowhere else to look.” Quite so. But that is simply another way of saying that section 26(4) itself does not actually impose any requirement for service on anyone. Suppose that, like the Criminal Appeal Rules, the CPR contained no rule requiring service of an extradition appeal on anyone and left it up to the registrar to notify interested parties. On Lord Neuberger’s reading, section 26(4) would then impose no obligation to serve the appeal notice on SOCA or anyone else within seven days. Which shows that the obligation to serve is not to be found in the subsection itself.

19.  The supposed requirement for an appellant first to file and then to serve may be attractive to a reader who is familiar with the CPR, which generally provide for filing followed by service. The same sequence seems to be envisaged for extradition appeals in Northern Ireland: Order 61, Rule 3(2)(c). But an interpretation is not to be preferred because of its supposed conformity with particular national rules of court. After all, as already explained, the sequence in the Scottish rule on extradition appeals is precisely the reverse. Under rule 34.3 no note of appeal can be lodged without an execution of service on the Crown Agent. So the appellant must have, say, posted a copy of the note of appeal to the Crown Agent before the appeal is “made” by “lodging” the note of appeal (rule 34.3(1)(a)). This is not the product of some invariable rule for Scottish criminal appeals. On the contrary, practice varies. For example, under rule 9A.7(2) of the Act of Adjournal, in appeals from a preliminary hearing, the appellant is merely required to send a copy of the note of appeal to the other parties (including the Crown). So the requirement for prior service in rule 34.3(1)(a) may well have been deliberately chosen for extradition appeals. Of course, the sequence in rule 34.3(1)(a) does not show that Lord Neuberger’s preferred interpretation of section 26(4) is wrong - any more than the sequence in the CPR and the Northern Irish Rules shows that it is correct. In that respect they are all irrelevant.

20.  But, in another sense, the sequence in the CPR is highly relevant - because it is actually the source of the perceived problem that people will file their extradition appeals within 7 days, but then ignore the requirement of PD22.6A that they should serve a copy on SOCA or the CPS within 7 or 14 days. This in turn is taken as justification for interpreting sections 26(4) and 103(9) as imposing a deadline for service as well as filing.

21.  In Scotland, that problem should not arise because rule 34.3(1)(a) has been framed to provide that in an extradition case no note of appeal can be lodged without an execution of service. Similarly, under direction 4.14 of the House of Lords Practice Directions Applicable to Criminal Appeals, in extradition appeals a certificate of service on the government concerned or the Director of Public Prosecutions must be endorsed on the back of the original petition of appeal. So, again, when section 32(6) of the 2003 Act provides that an application to the House of Lords for leave to appeal must be made within 14 days, the words are to be interpreted in a straightforward way, as referring to the lodgment of the appeal. Thanks to the practice direction, however, service as well as lodgment should have taken place within 14 days.

22.  There is nothing in the Ten Commandments or in any statute which requires the English High Court to insist on the sequence of filing and then service in extradition appeals. So, if there is a real practical problem of late service under the present version of PD22.6A(3)(a), the Lord Chief Justice has the power to address it by amending the direction to bring it into line with the practice direction of the House of Lords, not to mention rule 34.3(1)(a) in the Act of Adjournal. Such a rule change would still, of course, leave the court with a measure of flexibility to deal with situations where the appeal has been filed but, for some reason, service has not actually been effected in accordance with the rule.

23.  A rule of that kind would meet the possible difficulties in operating section 35 which are prayed in aid as a reason for reading section 26(4) as referring to service. It is hard, in any event, to see that these could have been the reason for the language used in sections 26(4) and 103(9). After all, exactly the same language is used in sections 28(4) and 105(5), which deal with appeals against the person’s discharge. Section 35 has no part to play in appeals of that kind.

24.  For all these reasons I am not persuaded by either the substantive or the linguistic arguments advanced in favour of Lord Neuberger’s interpretation. I would interpret sections 26(4) and 103(9) as simply requiring the appellant’s notice to be filed within 7 and 14 days respectively.

25.  So far as filing an appellant’s notice is concerned, I respectfully agree with Lord Neuberger’s conclusion that the time limits under sections 26(4) and 103(9) cannot be extended. But that point does not arise in these cases.

26.  For my part, I would dismiss the appeal in Mr Moulai’s case since his appellant’s notice was filed within 7 days, as required by both the 2003 Act and the relevant practice direction, and it was also, in fact, served within 7 days as required by the practice direction. In Mr Mucelli’s case, his appellant’s notice was filed within 14 days, as required by both the 2003 Act and the relevant practice direction. Admittedly, his notice was not served on the Crown Prosecution Service within 14 days, but that was simply a requirement of PD22.6A(5). The Divisional Court would therefore have had power to extend the time for service or to dispense with service. But, on any view, the mere failure to serve within the time specified in the practice direction is not a basis for dismissing an appeal which has been duly filed within the 14 days allowed by Parliament. I would accordingly allow Mr Mucelli’s appeal.

27.  On that basis, it would be appropriate, as Lord Neuberger indicates, to direct that the Albanian Government should be permitted to adduce the further evidence about the fairness of trials in that country. This is in line with the approach adopted by this House in Saber v Secretary of State for the Home Department 2003 SLT 1409; [2007] UKHL 47 (unreported). The appellant had sought asylum on the basis of the situation in Iraq. By the time the appeal reached the Second Division of the Court of Session, the situation had changed as a result of the United States-led invasion in March 2003. The House of Lords affirmed the view of the Second Division that, in considering whether the appellant had a proper claim to asylum, the court was entitled to take into account up-to-date information about the situation in Iraq.

LORD CARSWELL

My Lords,

 
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