QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
| Vullnet Mucelli
|- and -
|The Government of the Republic of Albania
Secretary of State for the Home Department
Melanie Cumberland (instructed by the Crown Prosecution Service) for the Respondent
Ben Watson (instructed by The Treasury Solicitor) for the Interested Party
Hearing dates: 3 and 9 October 2007
Crown Copyright ©
Lord Justice Richards :
The district judge's decision
"It can safely be assumed that the defendant had been circulated as wanted by the Albanian authorities. However, this would have been under his known name of Mucelli, not the various aliases he assumed. His assumed dates of birth and, indeed, nationality would not have been known to the Albanian authorities. It would only have been after his arrest on the Provisional Warrant that his whereabouts would have been known to the Albanian authorities. Thereafter, they acted with commendable speed. The delay is due entirely to the efforts of the defendant in assuming new identities and travelling through Europe and finally obtaining leave to stay in this country which again was done on the basis of lies He cannot rely on the bar of passage of time."
"I am satisfied that he left Albania to avoid prosecution. He must have been aware that a trial would follow and it is clear that he did not wish to attend …. [T]he defendant must have been aware that a trial would follow with inevitable consequence if convicted. [This], I am satisfied, was what he was trying to avoid."
"I am satisfied in this case that the defendant's motive for fleeing Albania was to avoid his trial in due course. He knew that he would face trial if caught and this he was determined should not happen at all costs. The fact that he would not know its eventual date and place are, in this context, irrelevant, as due regard must be had to the practices and procedures of different jurisdictions."
The grounds of appeal
"I reach the following conclusions. (a) In section 85(3) Parliament has adopted the expression 'deliberately absented himself from his trial'. Consideration must be given to the concept of deliberate absence and to the concept of a trial. The defendant has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial. (b) The word 'trial' was adopted by Parliament in the context of the presence of article 6 with its use of the word 'hearing' and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word 'trial' would not have been used by Parliament in section 85(3) if a wider view of absence had been intended. (c) The subsection must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the defendant could expect to be present. Other factors, as well as the need to facilitate extradition, are at work. (d) Parliament could have used an expression such as 'deliberately absenting himself from legal process' which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the subsection cannot be construed as if it had. The expression 'his trial' contemplates a specific event and not the entire legal process. (e) In the result, I am unable to construe the words of section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the defendant left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the subsection."
"However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the defendant would be entitled to the required retrial or (on appeal) review amounting to a retrial in Albania. I do not doubt the good faith in which the 'guarantee' was given but I see considerable force in the submissions of [counsel for the appellant]. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the defendant would receive in Albania the retrial, or review amounting to retrial, which the 2003 Act requires if extradition is to be ordered."
"… the Ministry of Justice guarantees in advance on behalf of the Albanian state and in conformity with the article 504/2 of the Albanian Code of Criminal Procedure:
1. The enforcement of the right for re-trial of the subject upon request, in accordance with the Albanian Constitution and pursuant to the articles 147, 148, 449, 450, 453 of the Code of Criminal Procedure of the Republic of Albania …."
A further letter, dated 10 May 2007, confirms that the appellant could exercise "the right of retrial" within 10 days from the moment he was taken over by the Albanian authorities.
The procedural issues
The statutory basis of the appeal
Whether the notice of appeal was in time: setting the scene
"For your records I enclose a signed authority from our client stating he wishes us to represent him on appeal to the High Court if The Secretary of State decides to order his extradition to Albania."
A signed authority was duly enclosed with the letter. It was written in English. In it the appellant stated that he had sacked the solicitors who represented him at the extradition hearing in the magistrates' court and that he now wished to instruct Shearman Bowen & Co "to represent me in my appeal", and that his former solicitors had agreed that they would not oppose his request for his representation order to be transferred accordingly.
"Mr Mucelli has the right within 14 days to give notice of appeal against the Secretary of State's decision (the giving [of] notice of appeal within 14 days requires the filing and service of the appellant's notice within these 14 days). Under the Extradition Act 2003, these 14 days start with the day on which the Secretary of State informs you of his decision. If you attend [i.e. intend] to appeal, please note the Practice Direction supplementing Part 52 of the Civil Procedure Rules which governs extradition appeals and which requires that any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. We should therefore be obliged if you would notify Colette Talbot here at the Home Office as to whether there is to be an appeal; and, in that event, if you would comply with the Practice Direction. Please note that the provisions in this paragraph also apply to an appeal under section 103 against the District Judge."
That letter was sent to the solicitors by first class post and by fax. There was a confirmation of its receipt by fax at 12.52 on 18 July.
"Mr Mucelli has the right to appeal to the High Court against the Secretary of State's decision under Section 108 within 14 days. I should be grateful if you would notify him today and ensure that he understands the contents. Mr Mucelli's solicitors have been notified. Should he decide not to appeal I would be grateful if you would inform me at the above address."
That letter, too, was sent by post and fax. There was a confirmation of its receipt by fax at 12.53 on 18 July.
"As your client's case (CO/6536/2007) has been listed for hearing on 3 October 2007, you presumably lodged an appeal. However, you failed to serve the Home Office with the appeal papers. I refer you to the third paragraph of Miss Talbot's letter to you of 18 July 2007, which sets out the provisions as to filing and serving.
You will, no doubt, wish to serve the Home Office with the appeal papers, even though such service is out of time. Please also send me a copy of the appeal papers."
This resulted in a letter from Shearman Bowen & Co to the Treasury Solicitor's Department, enclosing a copy of the appellant's notice. The letter was dated 10 August but was received on 13 August. It apologised for late service and said that papers had been sent to the Home Office on 1 August but seemed to have gone astray. In fact, a letter from Shearman Bowen & Co enclosing a copy of the appellant's notice was received by the Home Office on 13 August. That letter was dated 1 August but was postmarked 10 August. In a further exchange of letters between the Treasury Solicitor's Department and Shearman Bowen & Co, the latter confirmed that the appeal was not intended to challenge the Secretary of State's order but only the decision of the district judge.
When did the Secretary of State inform the appellant of the order?
"(1) If the Secretary of State orders a person's extradition under this Part he must –
(a) inform the person of the order;
(b) inform him in ordinary language that he has a right of appeal to the High Court;
(c) inform a person acting on behalf of the category 2 territory of the order.
(4) If the Secretary of State orders a person's discharge under this Part he must –
(a) inform him of the order;
(b) inform a person acting on behalf of the category 2 territory of the order."
Was notice of an appeal given in time?
"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 14 days starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the order he has made in respect of the person."
"(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.
(12) Where an appeal is brought under section 103 … of the Act, the appellant must serve a copy of the appellant's notice on –
(a) the Crown Prosecution Service; and
(b) the Home Office,
if they are not a party to the appeal, in addition to the persons to be served under rule 52.4(3) and in accordance with that rule."
CPR rule 52.4(3), to which reference is there made, provides that unless the appeal court orders otherwise, an appellant's notice must be served on each respondent "(a) as soon as practicable, and (b) in any event not later than 7 days, after it is filed".
"(2) A request for a person's extradition is disposed of –
(c) when an order is made for the person's extradition in pursuance of the request and there is no further possibility of an appeal.
(3) There is no further possibility of an appeal against an order for a person's … extradition –
(a) when the period permitted for giving notice of an appeal to the High Court ends, if notice is not given before the end of that period;
(5) These must be ignored for the purposes of subsections (3) and (4) –
(a) any power of a court to extend the period permitted for giving notice of appeal or for applying for leave to appeal;
(b) any power of a court to grant leave to take a step out of time."
"A notice which does not comply with a particular rule but in respect of which that non-compliance has been subsequently waived under another rule is nonetheless a notice 'in such manner as may be directed by rules of court' within the meaning of [the statute]. The waiver validates the notice from the date of its lodging and does not merely bring into existence for the first time a valid notice when rule 11 is applied."
"50. … The heart of the matter, in my view, is that a person who has by mistake failed to serve the claim form within the time period permitted by rule 7.5(2) in substance needs an extension of time to do so. If an application for an extension is not made before the current time period has expired, rule 7.6(3) prescribes the only circumstances in which the court has power to grant such an extension. … I do not consider that rule … 6.9 can extend to enable the court to dispense with service when what would be done is in substance that which rule 7.6(3) forbids. If rule 6.9 did so extend, it would be tantamount to giving the court a discretionary power to dispense with statutory limitation provisions …."
"55. … As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin that rule 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in rule 7.6(3) and thereby validate late service of the claim form.
56. In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin, between two different kinds of case.
57. First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.
58. Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim …."
Mr Justice Aikens :