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)

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62.  Secondly, I believe that this conclusion is supported by the desirability for consistency throughout the United Kingdom, both in terms of practice and in terms of language. In practical terms, it would mean that, whether one is in Scotland or elsewhere in the United Kingdom, the same tasks have to be completed within the 7 day period, namely giving notice of appeal both to the representative of the relevant authority and to the court. It also means that any differences relating to time of service between the rules in the three jurisdictions will be over-ridden, thereby ensuring UK-wide consistency on initiating an appeal under the 2003 Act. Accordingly, if a prospective appellant looks at para 26A of the Practice Direction, rule 34.3 of the Act of Adjournal, or Order 61 rule 3(2) of the Northern Irish RSC, he or she should get the same answer: the notice of appeal must be both served and filed or lodged within the 7day period.

63.  So far as linguistic consistency is concerned, it would be a little odd if “given” meant “filed” or “entered” (at the appropriate court office) in England and Wales and in Northern Ireland, but “served” (on the representative of the authority) in Scotland. Such a result is not, of course, impossible, but it appears to me to represent a more logically satisfactory outcome if “given” in section 26(4) means both “filed” (or “lodged” or “entered", which are the same thing in Scotland and Northern Ireland respectively) and “served” in all three jurisdictions.

64.  I had initially also thought it significant that section 26(4) refers to notice of “an” appeal being given. That suggested to me that what must be done is to not merely to bring an appeal but to give notice that it has been brought, which requires the appellant’s notice to be filed and served on the respondent. However, the rather cavalier or indiscriminate way in which the 2003 Act appears to have referred to “notice of an appeal” and “a notice of appeal", as described by Lord Rodger, now persuades me that the point has no force: it attributes an unwarranted degree of subtlety to the draftsman of the Act.

65.  Thirdly, however, I consider that there is a significant contrast between “an appeal” being “brought” in section 26(3), and “[n]otice of an appeal” being “given” in section 26(4). The different language used in the two adjoining subsections suggests that two different concepts are envisaged. If the latter expression was intended to refer only to the filing (or, in Scotland and Northern Ireland, only to the lodging or entering) of an appeal notice, it is hard to see why it did not begin “An appeal under this section must be brought …". In other words, the contrast with section 26(3) suggests that section 26(4) is concentrating on the giving of the notice of appeal to all those to whom it has to be given - namely the authority and the court.

66.  Fourthly, there are practical considerations. The structure of Part 1 envisages a relatively strict and tight timetable. This is appropriate, not merely for the benefit of the person against whom a warrant is issued, but also in the light of the Framework Decision, which was intended to streamline the surrender procedures referred to in its title. Thus, art 17 requires a European arrest warrant to “be dealt with and executed as a matter of urgency", and it then identifies specific, and pretty short, time limits (and see also art 23, which requires surrender “as soon as possible”). This is consistent with a tight timetable for appealing, which tends to imply that the time limit in section 26(4) includes both filing and service of the notice of appeal.

67.  This point is reinforced by consideration of section 35. The provisions of section 35(1), (3) and (4) mean that the consequence of not giving a notice of an appeal within the time prescribed by section 26(4) is that the extradition must take place very promptly. Lord Phillips pointed out in argument, if section 26(4) only requires the appellant’s notice to be filed within the 7 days referred to, then there is no clear and immediate sanction for failing to serve the appellant’s notice on the authority. In England and Wales, one would be thrown back on CPR 52.4(3), and if its requirements are not met, there would be likely to be delays due to consequential applications and arguments resulting from non-compliance with that rule.

68.  Fifthly, quite apart from this, if section 26(4) does not extend to service of the notice of appeal in England and Wales and in Northern Ireland, the authority seeking to enforce the warrant may well assume that section 35, with its very tight time limit in subsection (4), has been triggered in circumstances where it has not. This is because, if section 26(4) only extends to filing an appeal notice, SOCA may be unaware that an appeal has been brought within the prescribed time, and will therefore proceed promptly with the extradition - especially in the light of section 35(5) - when, in fact it would be inappropriate to do so. It is no doubt true that, in many cases, SOCA will have been informally alerted to the probability of an appeal, and, indeed, that SOCA can check whether an appeal has been brought. However, those factors do not seem to me to meet the force of the point that section 35 does not sit easily with the notion that section 26(4) applies only to filing an appeal, and not to serving the appellant’s notice.

69.  I turn to consider the arguments which have been raised the other way. First, reliance is placed on the Explanatory Notes to the 2003 Act, which, in para 76, refer to section 26 and state that “notice of an appeal must be given to the High Court within 7 days of the extradition order being made by the judge (subsection (4)).” The function of Explanatory Notes was discussed by Lord Steyn in Westminster City Council v National Asylum Support Services [2002] 1 WLR 2956, paras 5 and 6. It seems to me that they are of no real assistance in the present context. If my opinion as to the meaning of section 26(4) is correct, the Notes are not inaccurate, but merely incomplete. Given that their function was to “assist the reader in understanding the Act” (to quote from the first paragraph of the Notes), not to give guidance as to the details of the procedures it requires, I cannot accept that they assist here. Further, I note that para 22.6A of the Practice Direction to CPR 52, which is concerned with appeals under the 2003 Act, states in sub-para (3)(a), that “the appellant’s notice must be filed and served before the expiry of 7 days". While that direction cannot determine the meaning of section 26(4), it is of no less significance than the Explanatory Notes.

70.  It was also contended that, if section 26(4) applied to service of the appellant’s notice, it would lead to difficulties under sections 41 and 42. I do not see that. If section 26(4) does so apply, there is no “pending” appeal unless and until the notice is served in time. It was also claimed that it would be inconvenient if section 26(4) referred to two events, rather than one. In my view, there is noting in that: it requires filing and then service, so, in practice, it logically can be treated as only referring to service. It was also said to be rather harsh if there is a 7-day time limit under section 26(4) for service, particularly as some people who wish to rely on the right of appeal may have limited English and may be incarcerated. But, on any view, there is such a time limit for filing, and it is not greatly different if it also applies to service. In any event, an identical time limit applies equally, by virtue of section 28(5), to a case where the appeal is against a refusal to extradite.

71.  It was also suggested that the fact that the legislature has not thought it appropriate to include a timetable for what happens after a notice of appeal assists the view that section 26(4) does not, in England and Wales, require service, as well as filing, to be effected within the 7 days. On any view, the requirements of section 26(4) only apply to a certain point, following which it was no doubt assumed that the framers of the rules of court in the three UK jurisdictions would prescribe an appropriately strict procedural time-scale. I do not see how that provides much assistance when it comes to identifying the precise point at which the reach of the section ends.

72.  For these reasons, I conclude that an appellant’s notice must be served, as well as filed, within the 7-day period referred to in section 26(4). As for section 103(9), it appears to me that, for substantially the same reasons, it requires an appellant’s notice to be served within the 14-day period to which it refers. It is true that the Framework Directive forms no part of the background to part 2, and that the statutory time-table of Part 2 is somewhat less tight than that of Part 1, but those two factors do not even get near justifying a different conclusion as to the meaning of section 103(9) from that which I have reached in relation to the meaning of section 26(4).

Can the court extend the time for filing or for service?

73.  The second question of principle is whether there is any basis on which the court could extend time for filing or service under sections 26(4) and 103(9). Again, I shall deal first with the position under section 26.

74.  On the face of it, at any rate, there is a clear and unqualified statutory time limit, namely 7 days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the CPR, which contain provisions whereby the court can extend time for the taking of any step, under CPR 3.1(2)(a), can make an order remedying any error of procedure, under CPR 3.10, or can make an order dispensing with service of documents, under CPR 6.9. However, these powers cannot be invoked to extend a statutory time limit or to avoid service required by statute, unless of course, the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR 3.2(a) which refers to time limits in “any rule, practice direction or court order", and from CPR 6.1(a) states that the rules in CPR 6 apply, “except where any other enactment … makes a different provision".

75.  Accordingly, it would be necessary to find some statutory basis for the court having power to extend time, or indeed to dispense with the service which section 26(4) requires. The only arguable such basis is to be found in the words “in accordance with the rules of court", which, it is contended, incorporate the various provisions of the CPR to which I have just referred. I cannot accept that argument. First, the way in which the subsection is linguistically structured appears to me to mean that those words govern the way in which “notice of an appeal” is to be “given", not the time within which such notice is to be given, which is dictated by the closing part of the subsection.

76.  Secondly, I consider that the argument that time under section 26(4) can be extended pursuant to the CPR runs into difficulties with section 35, which is entitled “Extradition where there is no appeal". As already mentioned, the provisions of that section require the extradition process to be resumed and completed within a tight time-table following a decision of the District Judge. Section 35(6) is clear: the process must be resumed and completed, not merely promptly, but without regard to the possibility of any extensions of time which might otherwise be granted under the relevant rules of court. As I see it, the effect of section 35(6)(a) is that an appeal can only be validly brought if the time limits in section 26(4) are strictly complied with. The notion that the court could extend time would mean either that section 36(6)(a) had no effect or that the legislature contemplated that the court could grant an extension of time, which would render an appeal of academic interest only, because, by the time the appeal had been heard, the extradition would have been completed. Neither of those possibilities seems to me to be acceptable, in the light of the wording of section 36(6)(a), common sense, and the title to the section.

77.  Section 35(6) was relied on to support the opposite contention, on the basis that, read literally, para (a) appears to imply that the court would have power to extend time for service of a notice of appeal. However, not only does this seem inconsistent with the effect of section 36 as a whole, as just explained, but there is also the point that para (b) is something of a puzzle on any view. Once the appeal process is on foot, the need for an extension of time to take a procedural step would be irrelevant, and if the appeal process was not on foot in time, para (a) would be the relevant provision. The least unsatisfactory analysis of section 35(6) appears to me to be as follows. Para (a) was added as a precautionary provision to emphasise that, if the court would otherwise have any powers to extend time, such an extension could not be relied on by an appellant, or would-be appellant, as it would undermine the time-table laid down in section 35. As to para (b), it seems to have been added out of what Lord Rodger has characterised as hyper-precaution, for the same reason.

78.  It is true that the Practice Direction to CPR 52, and the prescribed form of the notice of appeal both suggest that the court’s powers to extend time under the CPR apply to the appeal process. As a general proposition this is of course, true, but it does not follow that the draftsman of those documents considered, let alone was stating, that the court must have such power in relation to every type of appeal. In any event, CPR 52.1(4) make it clear that the provisions of CPR 52 are “subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal", and the Practice Direction is brought into effect through CPR 52.2.

79.  The Divisional Court in the Moulai appeal thought that the court could nonetheless dispense with service of the appeal notice under CPR 6.9 (although they declined to make such an order in the event). I do not agree. If, as I have concluded, section 26(4) requires the appellant’s notice to be filed and served within seven days, the court can no more make an order dispensing with service than it can extend the time. This conclusion, arrived at in a case where the dispensing of service is being sought to avoid having to serve at all or to avoid the 7-day time limit, does not preclude the possibility of the court making an order for substituted service in appropriate cases under the 2003 Act. Indeed, on exceptional facts (e.g. where the respondent was evading service), the court might well order that service could be effected in a way that may well lead to the notice not being received by the respondent within the 7-day period, or even - conceivably - at all.

80.  For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal. For the same reasons, I reach the same conclusion in relation to section 103(9).

Service at the end of the 7 or 14 days

81.  Both filing and service of documents often occur towards the last minute, and this is particularly likely in cases where the time for filing and service is short. Two questions of principle arise in connection with this practical problem in relation to the time limits in sections 26(4) and 103(9). The first is whether the provisions of CPR 6.7, which is concerned with deemed service, are applicable to those time limits. Thus, under the rules as they were at the time of the instant appeals, a document transmitted by fax after 4.00 pm was deemed to have been served “on the business day after the day on which it is transmitted". Such deeming provisions have been consistently held to be irrebuttable - see e.g. Anderton v Clwyd County Council [2002] EWCA (Civ) 933, [2002] 1WLR 3174. In these appeals, it appears to have been generally assumed that these provisions govern the question of when a notice of appeal is treated as having been “given” under sections 26(4) and 103(9).

82.  In my view, that general assumption is wrong. Section 26(4) requires the appellant’s notice to be issued and served within 7 days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the Prosecutor’s case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In these circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period. The point is reinforced by practical considerations: the 7 day period laid down by section 26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by section 103(9) is somewhat longer, the same reasoning applies.

83.  Another point which arises is what happens if it is impossible to give notice on, or during the final part of, the last day. For instance, in relation to filing, the Court Office may be closed on the last day because it is Christmas Day or another Bank Holiday, and the Court office will be closed at some point in the late afternoon on the last day. Equally, the respondent’s office may be closed for the same reasons.

84.  Where the requisite recipient’s office is closed during the whole of the last day, I consider that the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i.e. the next business day). So if the final day for giving a notice of appeal would otherwise be Christmas Day, filing or service can validly be effected on the 27th December (unless it is a weekend, in which case it would be the following Monday). This conclusion accords with that reached in Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336. As Lord Denning MR said at 349E, “when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when time expires, then, if it turns out … that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open". I agree, and I can see no reason not to apply the same principle to service on a respondent in relation to the respondent’s office. The fact that fax transmission can be effected at any time does not cause me to reconsider that conclusion.

85.  It might be argued that it follows from this that time should be similarly extended to the next business day, in cases where, even if only for a few hours, the required recipient’s office is closed before midnight on the final day (as will always be true of the court, and will almost always be true of any other recipient). In my opinion, while there is a real argument based on consistency to support such a proposition, it is not correct, at least where the office in question is open during normal hours. While there is no reason to deprive an appellant of his full statutory 7 or 14 days, if, for instance he transmits his notice of appeal by fax, or even if he posts the notice through a letter box in the door of the respondent’s office, just before midnight on the last day for service, it does not follow that he should have cause for complaint if he cannot file the notice at the court office, or serve it on the respondent in person, outside normal office hours. I believe that this conclusion is consistent with the law as it is understood in relation to time limits for filing and service, when it comes to the operation of the Limitation Act 1980.

Lofti Moulai v Deputy Public Prosecutor in Creteil, France

86.  On 8 October 2007, the Deputy Public Prosecutor (“the Prosecutor”) in Creteil, France (a Category 1 territory) issued a European Arrest Warrant for the arrest and extradition of Mr Moulai, on the basis that he had been convicted in his absence on 4 October 2004 for the misappropriation of motor vehicles, and sentenced to 5 years imprisonment. The warrant was duly received by SOCA, who, on 10 October 2007, certified the warrant in accordance with section 2(7) and (8). After some intervening events, which are irrelevant for present purposes, the Extradition Hearing took place on 14 March 2008, when the District Judge ordered extradition.

87.  Mr Moulai decided to appeal against that decision. His appellant’s notice was duly filed in the office of the Administrative Court (part of the High Court) at 3.45 in the afternoon of 20 March 2008. It was served by fax on the CPS (which was acting for the Prosecutor, in the usual way) shortly after, the fax transmission being completed a few minutes after 4.00. The Prosecutor contended that the service was out of time, and that the appeal was accordingly ineffective. Collins J directed that this point be determined as a preliminary issue, which was duly decided on 9 May 2008, by the Divisional Court (Hooper LJ and Maddison J), [2008] EWHC 1024 (Admin) [2008] 3 All E R 226.

88.  The Divisional Court held that (i) section 26(4) required the appellant’s notice to have been filed, but not served, within 7 days of 14 March 2008; although (ii)(a) if section 26(4) does require service within the 7 days, CPR 6.7 applied and a document served by fax after 4.00 pm must be deemed to have been served on the following working day, so Mr Moulai’s notice was served a day late; but (ii)(b) time for service could be extended under CPR 3.1(2)(a), and in the circumstances it should be so extended. The Prosecutor now appeals to your Lordships’ House.

89.  For the reasons already given, I consider that the Divisional Court was wrong on point (i), and, if it was right on point (ii)(a), it had no jurisdiction to extend time under point (ii)(b). However, I would uphold the decision that Mr Moulai’s appeal to the High Court can proceed. This is because I do not consider that the Divisional Court was wrong on point (ii)(a). Section 26(4) requires the appellant’s notice to be issued and served within 7 days, and, as explained above, I can see no warrant for the CPR being invoked to cut down that period, even if only by a few hours.

90.  In my view, the service of the appellant’s notice on the respondent at its proper address before midnight on the 20 March 2008 means that the “notice of [his] appeal was given” by Mr Moulai within the 7 day period required by section 26(4). This point was only very briefly taken on behalf of Mr Moulai, but the Prosecutor had a chance to deal with it, and I am of the view that it is plainly correct.

Vullnet Mucelli v The Government of the Republic of Albania

91.  After allegedly committing a murder in Albania (a Category 2 territory under the 2003 Act) in 1997, Mr Mucelli fled the country. In October 1998, he was tried and convicted of the murder, in his absence, and he was sentenced to 25 years imprisonment. He was arrested in the UK pursuant to a provisional warrant, in February 2007. On 4 June 2007, after a hearing, the District Judge decided to send the case to the Secretary of State for a decision whether Mr Mucelli should be extradited. On 18 July 2007, the Secretary of State decided to order extradition, and informed Mr Mucelli (who was in prison at the time) and his solicitors, a couple of days later. Mr Mucelli instructed his solicitors to appeal; they filed a notice of appeal at the High Court on 31 July 2007, within the 14 day period laid down by section 103(9). However, those solicitors failed to serve the notice until 13 August at the earliest, well outside the 14 day period.

92.  The Divisional Court (Richards LJ and Aikens J) held that (i) the appellant’s notice had to be served, as well as filed, within 14 days under section 103(9), (ii) the court could not extend time for service; (iii) although the court had power to dispense with service, it would not do so in the instant case. - see [2007] EWHC 2632 (Admin), [2008] 2 All E R 340. For reasons already given, I consider that the Divisional Court was right on points (i) and (ii). Although they were also, in my view, right not to dispense with service, they were wrong, also for reasons I have given, in thinking that they had power to do so.

93.  The Divisional Court expressed doubts (in paras 23 to 27 of Richards LJ’s judgment) as to whether Mr Mucelli would get a retrial, or an appeal equivalent to a rehearing, if he was sent back to Albania, as required by section 85. It is not entirely clear to me what purpose those remarks were intended to serve, given the court’s conclusion that Mr Mucelli’s notice of appeal had been served out of time. However, as the point was discussed by the Divisional Court, it is right briefly to deal with it, as otherwise the outcome of Mr Mucelli’s appeal might appear a little unsatisfactory.

 
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