(back to preceding text)

28.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury. I agree with the reasons expressed and conclusions reached by both and shall add only a few words.

29.  It is clearly desirable that the time limits for appealing against the order of a court permitting extradition should operate similarly in the different constituent parts of the United Kingdom. Given the difference in the Scottish practice from that of the other jurisdictions in the timing of service of notices of appeal, the decision of the House will have that result.

30.  I should add only, for the sake of completeness in the Moulai appeal, that there is no provision in the Northern Ireland rules of court for service by fax (except in cross-jurisdictional proceedings), and accordingly no provision operating in matters relating to extradition equivalent to that in the CPR which deems a document transmitted after 4 pm to have been served on the next business day. In that jurisdiction, accordingly, the issue which is of importance in Moulai’s case will not arise.

31.  I would dismiss both appeals.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

32.  Section 26(4) of the Extradition Act 2003 provides that: “Notice of an appeal [against a district judge’s order for extradition] must be given in accordance with rules of court before the end of . . . seven days starting with the day on which the order is made". A number of other sections in the Act provide in similar terms for the giving of notices of appeal within a specified period, sometimes seven days, sometimes fourteen. The core questions at the heart of these two appeals are, first, what is meant by the requirement that notice be “given”—does that mean merely filed with the court or both filed with the court and served on the respondent?; secondly, whichever is meant, is such judicial discretion as is ordinarily available under the rules of court—variously to extend time for compliance with any rule (CPR r.3.1(2)(a)), to vary the time limit for filing an appeal notice (r.52.6 (1)), to dispense with service (r.6.9), or perhaps more generally to remedy errors (r.3.10)—available in this context to overcome any failure to give notice within the specified time?

33.  In both cases before your Lordships it so happens that notice of the proposed appeal was filed with the court within the specified time—seven days in Moulai’s case, fourteen days in Mucelli’s (under section 103(a)). But in neither case was it served within the specified time—unless receipt of the notice of Moulai’s appeal on the respondent’s fax machine by just after 4 pm on the seventh day can be regarded as service before the end of that day for the purposes of section 26(4), a question to which I shall return.

34.  On both these central issues—the meaning in section 26(4) of “given” and the question whether any discretion arises—your Lordships were treated to a series of elaborate arguments involving the minute examination of a large number of the 2003 Act’s many sections. I confess to having found most of them ultimately unhelpful—and, indeed, there is a risk of the court actually being misled by them, as was Hooper LJ in Moulai’s case by the reference in section 213(3)(a) to the “period permitted for giving notice of an appeal to the High Court,” an expression which he understood to mean that notice had to be given (only) to the High Court, but is no less capable of meaning that notice (of an appeal to the High Court) has to be given, leaving open the question of whether only to the Court or also to the respondent. For my part I think the issues can be comparatively shortly resolved and are best considered compendiously rather than as two discrete questions.

35.  Article 17(1) of the Framework Decision requires that European arrest warrants “be dealt with and executed as a matter of urgency". Part 1 of the 2003 Act was enacted to give effect to this obligation. It is hardly surprising, therefore, that section 26(4) should specify so short a time limit or that section 35 should, in turn, require the fugitive’s extradition within 17 days (it used to be only 10) of the judge’s extradition order, unless (section 35(1)(b)) “notice of an appeal under section 26 is given before the end of the [7-day] period".

36.  On any view section 26(4) requires the notice of appeal to be filed within 7 days. It is scarcely even arguable that the 7-day period is extendable under the rules in respect of filing, and certainly this was not the view of either Divisional Court below: plainly something must be done to keep the extradition challenge alive and to stop time running for the fugitive’s physical removal. But if the 7-day period is unextendable for filing, why should it not have been intended to apply also to service and to be unextendable in respect of that too? Plainly the respondent has to be served and needs to know, not least for section 35 purposes, whether the 17-day period for effecting extradition has stopped running. If “giving” meant only filing and not also serving, then there would be no statutory provision at all for service and that matter would be left entirely to the rules. (In Scotland, of course, filing follows service so that a time limit for filing by definition encompasses also service.)

37.  If, moreover, the time for filing is unextendable, surely it makes no sense to allow time for service to be extendable, let alone to allow service to be dispensed with. True, in these particular cases, certainly in Mucelli, it would make a difference. But generally that would not be so. There is no more difficulty in serving in time than in filing in time and usually both will be, and invariably both should be, achieved more or less contemporaneously before the specified period elapses. And just as there is really very little purpose in allowing flexibility for the time of service when there can be none for the time of filing, so too there would be disproportionate disadvantages in such an arrangement, notably the complete loss of clarity and certainty so essential to the efficient and expeditious working of the new extradition scheme.

38.  Against this background it seems to me tolerably plain both that section 26 (4) is requiring the notice of any appeal to be both filed and served within the stipulated 7-day period and that this, being a statutory time limit, is unextendable. The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only insofar as is consistent with the filing and serving of the notice before the statutory time limit expires.

39.  But by the same token that the court has no discretion under the rules to extend time for filing and serving the notice beyond the 7-day limit, so too the rules themselves cannot operate to limit the period for achieving service to less than the stipulated 7 days. Effectively that is what rule 6.7 (1) does by deeming a faxed notice, transmitted after 4 pm on a business day, to be served not on that day but on the next business day. On any view the court cannot be denied a discretion to make an order which operates to extend time up to midnight on the seventh day. Here all that is required in Moulai’s case is to treat his failure to complete the transmission of his faxed notice of appeal by 4 pm as remediable under rule 3.10, alternatively to extend time for faxing the notice to shortly after 4 pm on the day in question.

40.  For these reasons, which really do no more than echo a part of the altogether fuller reasoning contained in the opinion of my noble and learned friend Lord Neuberger of Abbotsbury, which I have had the advantage of reading in draft and with all of which I am in complete agreement, I too would dismiss both appeals.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

41.  These two appeals concern the time limits in Part 1 and Part 2 of the Extradition Act 2003 governing appeals to the High Court against an order of a District Judge permitting extradition. Section 26(4) and section 103(9) provide that “Notice of an appeal … must be given in accordance with rules of court before the end of …. [7 or 14] days starting with the day on which the order is made". Three questions of principle arise:

(a)  Must the appeal notice be both filed in the High Court and served on the respondent within the 7 or 14 days?

(b)  Is the Court precluded from extending time for the filing and/or the service of the appeal notice?

(c)  What happens if the office of the recipient of the notice is closed before the last moment for service?

Depending on the answers to these three questions, other, more case-specific, issues fall to be considered in each appeal. In these circumstances, I propose first to identify the relevant statutory provisions, then to address the three questions of principle, and finally to consider the issues in the two appeals.

42.  Part 1 of the 2003 Act was enacted to give effect to the Council Framework Decision “on the European arrest warrant and the surrender procedures between Member States” (2002/584/JHA). By virtue of section 2, Part 1 applies where “a judicial authority” of a so-called “category 1 territory” issues a warrant containing a statement that “the person in respect of whom [it] is issued is accused in the … territory of the commission of an offence specified in the warrant". The warrant must be presented to “the designated authority” in the United Kingdom, who will then certify that it was appropriately issued. The Serious Organised Crime Agency (“SOCA”) is the designated authority in England and Wales for the purposes of Part 1 of the 2003 Act.

43.  Section 3 then authorises the arrest of the person concerned, who is required, by section 6, to be brought before a District Judge within 48 hours of his arrest. Under section 7, the District Judge must first satisfy himself that the person who has been arrested is the person in respect of whom the warrant was issued. If the District Judge is so satisfied, section 8 requires him to fix an extradition hearing, which must be “not later than …. 21 days starting with the date of the arrest", although the hearing can be postponed, pursuant to an application, if such postponement is “in the interests of justice". Section 9 sets out, in very general terms, the District Judge’ powers. The following twelve sections identify the various defences to extradition, each of which is required to be considered in turn. If any of these defences is established, the District Judge “must order the person’s discharge".

44.  The penultimate potential defence is in section 20, which applies where the person has been convicted in his absence. If so, the District Judge must consider whether, unless the person had been deliberately absent, he would, if returned, “be entitled to a retrial or … to a review amounting to a retrial". If not, he “must order the person’s discharge"; if so, “he must proceed under section 21", which is concerned with the last of the various defences. Section 21 raises the question whether the extradition would be “compatible with the Convention rights within the meaning of the Human Rights Act 1998". If it would not be so compatible, the District Judge must order that the person discharged; if it would be, the District Judge must order the person to be extradited.

45.  Section 26 provides:

“(1)  If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order.

(3)  An appeal under this section may be brought on a question of law or fact.

(4)  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 7 days starting with the day on which the order is made.”

46.  Section 28 makes similar provision for an appeal against a refusal to extradite. Section 31 provides that a hearing of any appeal to the High Court must start within a period prescribed by rules of court, although, by virtue of section 31(4), the High Court can extend the period in a particular case “if it believes it to be in the interests of justice to do so". Section 32 provides for an appeal (with leave) to the House of Lords against a decision of the High Court under section 26 or 28.

47.  Section 35 is in these terms

“(1)  This section applies if—

(a)  the appropriate judge orders a person’s extradition to a category 1 territory under this Part, and

(b)  no notice of an appeal under section 26 is given before the end of the period permitted under that section.

(3)  The person must be extradited to the category 1 territory before the end of the required period.

(4)  The required period is—

(a)  17 days starting with the day on which the judge makes the order, or

(b)  if the judge and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date.

(5)  If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.

(6)  These must be ignored for the purposes of subsection (1)(b)—

(a)  any power of a court to extend the period permitted for giving notice of appeal;

(b)  any power of a court to grant leave to take a step out of time.”

(The period in section 35(4) was originally 10 days, and was recently extended to 17 days). Sections 36 is concerned with “extradition following appeal".

48.  Sections 41 to 43 are concerned with the procedure where a warrant is withdrawn. Section 42 applies, according to subsection (2), if the warrant is withdrawn after “(a) …. notice of an appeal to the [High] [C]ourt is given by the person or the authority which issued the warrant” and before “(b) … proceedings on the appeal are discontinued or the court makes its decision on the appeal".

49.  Part 2 of the 1993 Act is concerned with extradition to so-called “category 2 territories". The procedure is slightly different from that under Part 1. It starts with a territory making a request for extradition to the Secretary of State under section 70. The Secretary of State must then issue a certificate, and send the papers to a District Judge. Under section 71, the District Judge then issues a warrant for the arrest of the person concerned. The warrant must be served on him “as soon as practicable” - section 72(2) - and he must thereupon be brought before the District judge “as soon as practicable” - section 72(3). The District Judge must then fix an extradition hearing which, by virtue of section 75(2), must be within “2 months starting with the date on which the person first appears … before [him]".

50.  Section 77 sets out in general terms the District Judge’s powers at the extradition hearing. Sections 78 to 87 identify the various possible defences to extradition which the District Judge should consider in turn. Sections 86 and 87 are very similar in their effect to sections 20 and 21 in Part 1. However, under section 87(3), if the District Judge is satisfied that extradition would involve no breach of the Convention rights, instead of ordering extradition as in Part 1, he “must send the case to the Secretary of State for his decision whether the person is to be extradited". The subsequent possibilities are set out in sections 93 to 102, which include, in section 101, the making of an extradition order, by the Secretary of State (or another Minister, Under-Secretary of State, or senior official, or, in Scotland, by a member of the Scottish Executive, a junior Scottish minister or senior official). Section 99 requires any decision to extradite to be made within two months of “the appropriate day” as defined in section 102.

51.  Section 103(1) provides that a person may appeal to the High Court against a decision of a District Judge to send his case to the Secretary of State. Subsections (4) and (9) of section 103 are in the same terms as subsections (3) and (4) of section 26, save that the period within which “notice of an appeal …. must be given” is 14 days, rather than 7 days. Section 105 permits an appeal to be brought in the high Court on behalf of a category 2 territory where the District Judge orders a discharge at the extradition hearing; it has similar provisions to section 103(3) and (4). If an extradition order is made under section 101, the person concerned may appeal to the High Court under section 105, which contains similar appeal provisions for present purposes to section 103. If extradition is refused, section 110 confers a similar right of appeal on the issuer of the request for extradition.

52.  Appeals to the High Court under sections 103, 105, 108 and 110 must, according to section 113, begin to be heard by a date prescribed by rules of court. Also an appeal may be brought, with leave, against any decision of the High Court to the House of Lords under section 114.

53.  Section 117 provides as follows:

“(1)  This section applies if—

(a)  the Secretary of State orders a person’s extradition to a category 2 territory under this Part, and

(b)  no notice of an appeal under section 103 or 108 is given before the end of the permitted period which is 14 days starting with the day on which the Secretary of State informs the person under section 100(1) that he has ordered his extradition.

(2)  The person must be extradited to the category 2 territory before the end of the required period, which is 28 days starting with the day on which the Secretary of State makes the order.

(3)  If subsection (2) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.

(4)  These must be ignored for the purposes of subsection (1)(b)—

(a)  any power of a court to extend the period permitted for giving notice of appeal;

(b)  any power of a court to grant leave to take a step out of time.”

Section 118 deals with “extradition following appeal". Sections 122 to 125 are concerned with withdrawals of requests under Part 2, section 124 dealing with withdrawals “while appeal to High Court pending".

The requirement that notice of an appeal must be given

54.  The first question to be considered is whether the requirements in sections 26(4) and 103(9) that “Notice of an appeal … must be given” within the period specified requires only that an appeal notice be filed at the Court Office or whether it also requires the notice to be served on the respondent. I propose first to address this question by reference to section 26(4).

55.  In that connection, it is important to recognise from the outset that, while the argument before your Lordships focussed on the procedure in the courts of England and Wales, whence both these appeals originate, the 2003 Act applies across the United Kingdom. Accordingly, as my noble and learned friend, Lord Rodger of Earlsferry points out, the question, indeed all three questions on this appeal, must be considered by reference to the court procedures in the jurisdictions of Scotland and of Northern Ireland, as well as that of England and Wales, with a view to producing fair and workable answers, which not only comply with the statutory language, but which also produce consistency across the United Kingdom.

56.  The word “given” in connection with notices of appeal is not to be found in CPR Part 52, which contains the rules of court, concerned with civil appeals in England and Wales, including those to the High Court. Thus, para 22.6A of Practice Direction 52, which applies to extradition appeals, by virtue of CPR 52.2, requires “the appellant’s notice” to be “filed and served before the expiration of 7 days", reflecting the language of CPR 52.4(2) and CPR 52.4(3) Although CPR 52 refers to “an appeal notice", that expression covers a respondent’s notice as well as an appellant’s notice (see e.g. CPR 52.5 and 52.6).

57.  The position with regard to the language of the relevant provisions which govern appeals under the 2003 Act outside England and Wales is as follows. The word “given” is to be found in the relevant provisions of the Act of Adjournal (Criminal Proceedings) 1996 applicable in Scotland. Rule 34.3 of the Act of Adjournal refers to “notice of an appeal” being “given” by “serving a copy of the note of appeal", and an appeal being “made” by “lodging” the note at the appropriate court. The concept of “giving” notice of an appeal is not to be found in the relevant procedural rule in Northern Ireland, Order 61A rule 3 of the Rules of the Supreme Court (Northern Ireland), which refers to “issu[ing” a “notice of motion", “enter[ing]” the appeal “for hearing in the appropriate office", and “serv[ing] a copy of the notice of motion".

58.  The preliminary procedures relating to the bringing of an appeal under section 26 in England and Wales and in Northern Ireland also differ from those in Scotland. In the former cases, the appellant’s notice must be filed at court before it is served on the respondent (see CPR 52.4.3 and Order 61A, rule 3(2)(c)). In Scotland, however, rule 34.3(1)(a) of the Act of Adjournal provides that execution of service of the note of appeal on the Crown Agent must be effected before the appeal is made by lodging it with the court.

59.  At the end of the argument before your Lordships, based as it was solely on the court procedures in England and Wales, my initial conclusion was that section 26(4) requires an appellant’s notice to be both filed and served within the seven day period. On reading in draft the impressive and cogent opinion of Lord Rodger, explaining why he had arrived at a different result, I realised that it was necessary for me comprehensively to reconsider the question. For instance, I initially thought that the use of the expressions “given” and “notice of appeal” in section 26(4), could be contrasted with “filed” or “served” and “appellant’s notice” in CPR 52.4. However, it now seems to me that the wording of the section is explained by the good sense of using expressions which are equally appropriate throughout the United Kingdom. Having reconsidered the question on a less parochial basis than before, I have decided to adhere to my conclusion, for a number of reasons.

60.  First, it appears clear that section 26(4) requires one to refer to the relevant court rules to discover to whom “a notice of appeal” is required to be “given": there is nowhere else to look. At least as I see it, if a notice of appeal is required by the relevant rules to be provided to more than one person, the use of the word “given” suggests that notice of an appeal must be provided to all such persons. For instance, if there were two respondents, it would not have been “given” if it was served on only one of them. As a matter of ordinary English, therefore, I consider that the rules in all three jurisdictions require a notice of appeal (i.e. the appellant’s notice in England and Wales, the note of appeal in Scotland, and the notice of motion in Northern Ireland to be “given” both to the representative of the authority (by serving) and to the relevant court office (by filing or lodging).

61.  Having seen in draft the opinion of my noble and learned friend Lord Phillips of Worth Matravers, I should add that I agree that section 26(4) contemplates that the “rules of court” will make specific provision for the “giv[ing] of “notice of an appeal". This is what has been done in England and Wales through the provisions of para 22.6A of the Practice Direction to CPR 52, in Scotland by rule 34.3 of the Act of Adjournal, and in Northern Ireland by RSC Order 61A.