England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2007

Lord Justice Latham:

1. On the 27^th November 2006 Mr Barcys was arrested in this country pursuant to a European Arrest Warrant issued by the Prosecutor General of the Republic of Lithuania on the 23^rd March 2006. Mr Barcys was brought before the City of Westminster Magistrates' Court on the 28^th November 2006 but did not consent to be extradited. As a result the matter was adjourned for hearing. The offences alleged against him are of the utmost seriousness. First is an offence of murder, allegedly committed by him at the end of 1998 or the beginning of 1999. The second is conspiracy to cause an explosion in and a related charge of possessing explosives with intent September 1999. On the 6^th February 2007, Senior District Judge Workman ordered Mr Barcys' discharge on the grounds that it would be unjust or oppressive to extradite him by reason of the passage of time since he was alleged to have committed the offences, pursuant to section 14 of the Extradition Act 2003 (the 2003 Act).
2. The Prosecutor General immediately indicated an intention to appeal the decision to this court pursuant to the provisions of section 28 of the 2003 Act. A notice of appeal was drafted and was ready for filing on the 12^th February 2007. Unhappily, because of the electrical blackout that day at the Royal Courts of Justice, the offices were closed. The appeal was filed the next day, the 13^th February 2007. The notice was not, however, served on Mr Barcys until sent by letter on the 21st February 2007 to his solicitors. At the hearing before us today, Mr Dogra, on behalf of Mr Barcys, submits that this court has no jurisdiction to hear the appeal, as the statutory time limits have not been complied with, and that, as a result of the failure to meet the statutory time limits, the Part 1 Warrant (the warrant issued for the arrest of Mr Barcys in this country) has been "disposed of" by virtue of section 213(1)(a) of the 2003 Act, and is, accordingly, of no effect.
3. Section 28 of the 2003 Act is the provision governing appeals from the Magistrates Court where a judge has ordered a person's discharge. Subsection(5) provides:

"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 for the person's discharge is made."

4. Section 213 of the 2003 Act provides:

"(1) A Part 1 warrant issued in respect of a person is disposed of –

(a) when an order is made for the person's discharge in respect of the warrant 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 discharge or 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 sub-sections (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."

5. The relevant rules relating to appeals under the 2003 Act are contained in the Practice Direction to CPR Part 52, paragraph 22.6A (52.PD120) which provides as follows:

"(1) In this paragraph, "the Act" means the Extradition Act 2003

.......

(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;

.......

(c) The High Court must begin to hear the substantive appeal within 40 days of the persons arrest;

......

(4) The High Court may extend the period of 40 days under paragraph (3)(c) if it believes it to be in the interest of justice to do so.

......."

6. The notice of appeal was neither filed nor served within seven days of the 6^th February 2007. And no application has been made to the court for any extension of time within which to comply with the statutory time limit. It is, however, submitted on behalf of the Prosecutor General that as far as the filing of the notice of appeal is concerned, CPR Rule 2.8(5) provides that where the period specified by the rules, a practice direction, or any judgment or court order ends on a day on which the office is closed, whatever act is required shall be in time if done on the next day on which the court office is open. It is accepted that this rule cannot apply directly, as the time limit with which we are concerned is a statutory time limit. But, it is submitted, this court can properly apply the principle behind the rule pari passu to the statutory time limit. As far as the failure to serve is concerned, that has not caused, on the evidence, any prejudice to Mr Barcys who knew from the day of the decision that it was the Prosecutor General's intention to appeal. This court should therefore, it is submitted, do whatever is necessary to permit the appeal to proceed, in particular in view of the provisions of CPR Rule 52.9, which deals with the power of the appeal court to strike out the whole or part of an appeal notice. This provides that the court will only exercise this power where there is "a compelling reason for doing so." Further, it is submitted that we should, when dealing with both the question of construction of the 2003 Act and the application of the statutory time limit, do so in the context of the Framework Decision relating to European Warrants, which is the Community Law background against which the provisions of the 2003 Act with which we are concerned were enacted.
7. The effect of the failure to comply with a statutory time limit was most recently considered by the House of Lords in R –v- Soneji [2006] 1 AC 340. Lord Steyn at paragraph 21 approved the conclusion of the Australian High Court in Project Blue Sky Inc –v- The Australian Broadcasting Authority (1998) 194 CLR 355, which included the following sentence:

"A better test for determining the issue of validity is to ask whether it was the purpose of the legislation that an act done in breach of the provision should be invalid."

8. In other words, as later explained by Lord Steyn, the question is essentially one of statutory construction. In Soneji and many other cases that exercise has had to be carried out in the absence of any express provision in the statute in question which provided the answer. But in the case of the 2003 Act, it seems to me that the intention has been made reasonably clear in section 213. Although that section is an interpretation section, and the phrase "disposed of" is not a phrase which appears in any of the sections with which we are directly concerned, the effect of the section must be that once the seven day period permitted by section 28(5) has passed, there is no extant warrant justifying the continuation of proceedings; the continued detention of the person arrested and section 213(5) is intended to ensure that the warrant cannot be resurrected by any exercise of the court's power to extend the time limits.
9. I am, however, somewhat puzzled by the reference to the court's supposed powers. For section 213 is not the only section of the 2003 Act which indicates that the 7 day time limit in section 28(5) is one which Parliament intended to be a strict time limit, the passing of which would bring to an end any right to appeal. A consistent theme throughout, in particular, Part 1 of the 2003 Act, is that a timetable is provided for the taking of the various steps following on from the execution of a Part 1 warrant; and a feature of that timetable is that express power is given to extend time only in relation to some of those steps: see e.g. section 8(5), section 35(4)(b), section 36(3)(b). Perhaps, however, most relevant is the time limit for the start of the hearing of an appeal set out in section 31. This makes provision for time limits to be prescribed by rules of court; and section 31(4) gives an express power to extend the relevant period, which power is replicated in paragraph 22.6A(4) of the Practice Direction set out above. No equivalent power is provided for extending the time for filing and serving the notice of appeal.
10. The only pointer to the contrary seems to me to be that reference in section 213(5) to the powers of the court. Indeed the same words are used in section 32(9) in relation to the time limits for appeals to the House of Lords, and in section 35(6) and section 36(6) dealing with the time limits for giving effect to orders for extradition. It might be said that these subsections clearly envisage the court having the power to extend the time limits, quite apart from any express powers given by the 2003 Act itself, and that accordingly where those words do not appear, as in section 28, Parliament envisaged that such a power would be available.
11. I acknowledge the apparent force of this argument. But it begs the question as to what power the court does have to extend time in the circumstances where there is an express statutory time limit. Section 28 does not in itself provide any power to extend time. And no other general provisions in the 2003 Act giving such a power was drawn to our attention In so far as it brings into play rules of court, it only does so in the context of defining how a notice of appeal is "given". The rules to which I have already referred make it plain in paragraph (3)(a) that this is to be done by way of filing and serving the relevant notice. No power is given to extend the statutory time limit. Further, as with the provisions of the CPR Rule 3.9, the court's general powers of management in Rule 3.1(2)(a) only give power to the court to extend time for compliance with a rule, practice direction or court order. It follows, in my view, that there is no power to extend the statutory time limit in section 28(5).
12. I reach that conclusion without any regret in relation to the requirement to serve the notice within seven days. That is a matter wholly within the control of the appellant. In the present case, service was well out of time; and there is no explanation before us as to the reason for the failure to effect service. But the failure to file the notice was clearly not the fault of the Prosecutor General. If that had been the only failure to comply with the statutory time limit in the present case, to hold that the consequence of the office being unexpectedly closed was that the notice of appeal was not filed in time would have been an unfortunate and unsatisfactory consequence of the construction, which I consider to be inevitable, of section 28(5) of the 2003 Act.
13. Further, I do not think that the Prosecutor General can escape from this construction of the 2003 Act by reference to the Framework Decision. This has been considered in detail by the House of Lords in Office of the King's Prosecutor, Brussels –v-, Cando Armas & Anr [2006] 2 AC 1. Nothing in the Decision prevents the imposition of time limits. The purpose of the Decision is best set out in recital (5) of the preamble:

"The objective set for the union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional co-operation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, and security and justice."

14. Whilst therefore it is clear that judicial cooperation is a fundamental feature of the new system, the objective includes the avoidance of delays. It seems to me that reading the 2003 Act in so far as it relates to European Arrest Warrants makes it plain that the United Kingdom Government considered that a tightly drawn timetable for the process of extradition consequent on the implementation of such a warrant was a necessary part of the procedures to give effect to the Decision. It follows that I can see nothing in the Decision which could in anyway affect my conclusion as to the proper interpretation of section 28(5).
15. I would accordingly hold that this court has no jurisdiction to entertain any appeal from the decision of the Senior District Judge.

Mr Justice Davis:

16. I agree. I express my conclusion in my own words, however, in view of the potential importance of the point: the more so as the same result must apply, as I see it, to the time-limits applicable to those seeking to appeal against an extradition order: the wording of s.26(4) of the 2003 Act being, in all relevant respects, identical to that contained in s.28(5). It may be that the same result potentially also would apply to, for example, Category 2 cases: see sections 103 and following.
17. In approaching the issue of statutory interpretation that arises here, it is both legitimate and necessary to consider the consequences of non-compliance with the statutory provision as to time-limits, and to ask whether it was the intention and purpose of the legislation that acts done which are in breach of the provision are invalid and null: see R v Soneji [2006] 1AC 340. An example of where this approach was applied can be found in the decision of the Court of Appeal (Criminal Division) in R v Ashton [2006] EWCA Crim 794.
18. In argument before us, Mr Dogra, on behalf of the respondent, concentrated on the late service of the appeal notice: that, on any view, being several days beyond the prescribed 7 day time-limit and with no explanation, other than oversight, offered. But I can see no difference, for the purposes of s.28(5), between the late filing of the notice of appeal and the late service of the notice of appeal. For s.28(5) 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…"; and by para 22.6A(3) of PD 52 (which applies to appeals under s.26 and s.28 of the 2003 Act) it is expressly provided that the notice must be filed and served before the expiry of 7 days. Accordingly the "giving" of notice of appeal requires both filing and service within the permitted period.
19. In the present case, it was through absolutely no fault of the prosecuting authority that the notice of appeal was not filed in time. As the evidence shows, it was prevented from doing so by reason of the blackout at the High Court on the 12^th February 2007. In circumstances such as these, one has to ask whether it really had been intended by Parliament that any proceedings thereafter should be a nullity and that the High Court should have no jurisdiction to entertain an appeal. Moreover, as Mr Weekes pointed out in the course of argument, it is entirely foreseeable that an extradition decision sought to be challenged may be given shortly before holiday periods, such as the Christmas or Easter holidays, when the High Court may be closed for some days.
20. It might be said that any potential hardship or injustice (at least for s.28 appeals) could be alleviated by the prosecuting authority seeking, in an appropriate case, to issue a fresh warrant. But even if that were practicable in some cases there would in the interim be the potential disadvantage – I am talking generally, not with regard to this specific case – of there being no power under the 2003 Act to remand in custody or on bail.
21. Consequently, a purposive approach to interpretation would suggest that the time-limits applicable to giving notice of appeal under s.28 or s.26 should not be mandatory. But ultimately the intention of Parliament is to be found in the words used. An example of a case where time limits laid down by statute relating to criminal appeals were held not to be capable of being extended by the courts can be found in the decision of the House of Lords in R v Weir [2001] 1WLR 421 (which concerned s.34 of the Criminal Appeals Act 1968). Moreover, it can be said that in the context of extradition there are broad policy reasons why Parliament may indeed have intended a strict regime as to time-limits relating to the extradition process in general and to appeals in particular.
22. Paragraph 20.2 (contained in Section III of the Practice Direction 52PD) provides that Part 52 applies to all appeals to which that Section applies subject to any special provisions set out in the Section. Rule 52.6 and Rule 3.1.2(a) gives wide powers to the court to extend time. But this only applies to time for compliance with any rule, practice direction or court order. The rules thus cannot be used to trump the express provisions of the applicable statute.
23. Section 28(5) has, it is to be noted, not left the time for giving notice of appeal to be provided by rules of the court. (Had it done so, there would potentially have been available the power to extend time under those rules). On the contrary, as I read the subsection, whilst the "giving" of the notice is to be in accordance with rules of court the timing of the giving of such notice is expressly laid down by the subsection itself: that is to say, it "must be" before the end of the "permitted period": which is defined as being 7 days starting with the day on which the order for discharge is made.
24. Further, in the same part of this Act relating to appeals there is provision expressly enabling the High Court to extend the period prescribed by the rules for beginning the hearing of an appeal: see section 31(4)(5). It is striking that no such express power relating to extending time for giving notice of appeal is provided for. That distinction is also maintained in the Practice Direction 52 PD at para 22.6A(4).
25. Yet further, in the general interpretation section of the 2003 Act (s.213) the provisions of s.213(3) would seem to reinforce a conclusion that the time-limits under s.26(4) and s.28(5) are mandatory. It is true that s.213(5) refers to "any power of a court to extend the period permitted for giving notice of appeal": that may, perhaps, suggest that there is some such power. But where such power actually comes from is left unexplained. In any event, even if there were such a power, the effect of s.213(5) is that the availability of such a power is to be ignored for the purposes of s.213(3). Mr Weekes in argument frankly acknowledged the difficulty s.213(5) put in his way in seeking to apply to extend time.
26. For these reasons, I feel compelled to the conclusion – with, I make clear, a considerable degree of reluctance – that there is no power to extend the time-limit contained in s.28(5). It may be noted that this was the position also taken by Ouseley J. on s.26(4) of the 2003 Act in the case of R (ex-parte Amoako v Director of Public Prosecutions [2006] 4 All ER 230, [2006] EWHC 1572 (Admin) : albeit, as the report makes clear, it was in fact agreed by both counsel appearing before Ouseley J. that there was no power in the court to extend time.
27. Mr Weekes suggested that such a conclusion would not be consistent with the Council Framework Decision of 13^th June 2002, 2002/584/JHA. But such Framework Decision gives a degree of procedural latitude to Member States and, moreover, in its recitals it refers to the desirability of removing the potential for delay in extradition procedures.
28. In the result, for these reasons and for the reasons given by Latham LJ with which I agree, I would dismiss the appeal on the basis that this court has no jurisdiction to entertain it.