Strand, London, WC2A 2LL
B e f o r e :
Mr Justice Maddison
| Lofti Moulai
|- and -
|Deputy Public Prosecutor in Creteil France
Mr J Jones for the Defendant
Hearing date: 17 April 2008
Crown Copyright ©
Lord Justice Hooper:
Whether it is a fatal bar to an appeal against an order extraditing (or not extraditing) a person, that a copy of the duly filed appeal notice was served on the respondent a few minutes late?
In the instant case the appeal notice was filed in time. The time limit for serving by fax on the respondent a copy of the filed notice of appeal expired at 4.00 pm on the 6th day after the making of the order. Although the transmission of the fax may have started before 4.00 pm, it was not completed until just after 4.00 pm. Collins J ordered the jurisdictional issue to be resolved first.
Mr Moulai gave me clear instructions at the conclusion of the extradition hearing that he wished to pursue an appeal. I would ask IS [Instructing Solicitor] to write immediately to the CPS notifying them of our intention to file and serve a notice of appeal.
That was done.
30. ... IS should make immediate application for public funding to the LSC.
31. ... IS should inform Mr Moulai and the prison authorities that an appeal is being lodged and that any communication with regard to Mr Moulai's extradition be forwarded to IS and that Mr Moulai be allowed to phone IS to immediately instruct them of any developments in that regard.
32. I will draft grounds of appeal and the appropriate appeal notice.
33. A further advice will be prepared with regard to the additional arguments.
34. The following documents must be filed with the application:
a. two additional copies of the appellant's notice for the Appeal Court;
b. copy of the appellant's notice for the respondent;
c. a copy of the order;
d. an agreed note of judgment.
This order covers work undertaken by a solicitor in the Magistrates Court (including advice and assistance in regard to making of an appeal against conviction or sentence but excluding the actual appeal proceedings).
He tells us that the office has always taken the view (and advised any solicitors who ask) that solicitors should prepare the appeal notice and file it under the Magistrates' Court order. He says that there has been an issue as to whether the fee of £200 is recoverable under that order, but it appears that it is and that many solicitors take the precaution of getting their legal aid application filed at the same time as the appellant's notice, so that the representation order for the appeal covers it as well, because the representation order for the appeal is backdated to the date the application is received. We have not sought further argument about this information and include it only to help practitioners in other cases. I take the view that whether the criticisms made by Mr Jones are justified or not, the outcome of the appeal would be the same.
"The appellant was arrested under a European arrest warrant on 2 November 2007."
The significance of that will become clear later in my judgment. He was, so he told us, unable to forward his draft until the morning of Thursday 20 March, as he needed further information.
We received the grounds of appeal on 20 March 2008 at approximately 9:30 am from Mr Henley. Ms Baba was not in the office that day and I had conduct of the matter with regard to filing and serving the notice of appeal. At some stage that morning I had a telephone conversation with Mr Henley in order to finalise some of the details within the notice. I had prepared the relevant paperwork but was unable to leave office until about 2 pm due to unavoidable professional commitments.
At about 2 p.m., just as I was about to leave, I was telephoned by the CPS who asked me whether the appeal notice was going to be served today I said I was on my way out to court to file the notice and I then said that I would fax the application to them. I was then told that the fax had to be with them by 4 pm. I said that there should be no difficulty in faxing to them at 4 pm. I was then told that the reason for phoning them was in order that they could discharge their professional duty, in relation to informing me about service, which they had now done. I was not told that if there were any difficulties I could always bring it round to their offices personally but that in that case I had to do it by 5 pm.
As stated in my earlier statement, I got to the court office about 3.20 and I finished filing the appeal at 3.45. I then went to Mr Henley's chambers in order to fax to the CPS's offices from those chambers. The fax was sent and I was under the impression that it had gone through before 4 pm.
No one from the CPS suggested to me that it had not been served properly until Ms Baba was faxed a letter by Mrs Riley on the 25 March 2008 and told me that there was a problem with the service of the claim form.
"At the time this e-mail arrived – 17:44 – I had no knowledge that an appeal had been lodged."
She was given the faxed notice of appeal on Tuesday 25 March 2008. It was the first time that she knew that an appeal had been filed. (We are also told that she was in the office on the Thursday the email arrived until 18.30.)
The legislative provisions
Notice of an appeal must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.
There is no dispute that "rules" includes practice directions made pursuant to the rules.
`filing', in relation to a document, means delivering it, by post or otherwise, to the court office; ...
In Van Aken v London Borough of Camden  EWCA Civ 1724 (also not cited in argument), it was held that delivery of an appeal notice to the appropriate court office after the closing of the office on a business day is sufficient to constitute the "filing" of the notice within the terms of the definition of that word in r. 2.3(1).
Where there has been an error of procedure such as a failure to comply with a rule or practice direction:
(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and
(b) the court may make an order to remedy the error.
(1) The court may dispense with service of a document.
(2) An application for an order to dispense with service may be made without notice.
See also Part 52 PD 5.23, which describes what the appellant must do if he wishes the court to dispense with the requirement of service on the respondent.
(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) 10 days starting with the first day after the period permitted under section 26 for giving notice of appeal against the judge's order or
(b) if the judge and the authority which issued the 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.
(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 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 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.
This section gives a person a right to appeal against the decision of the judge to order extradition under Part 1 of the Act.
Subsection (1) explains that a person may appeal to the High Court against a decision of a judge to order extradition, except where (subsection (2)) the person has consented to his extradition (see sections 46 and 48). Appeals may be made on a question of law or fact (subsection (3)) and 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)). (Underlining added)
(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
must be ignored.
In the alternative, any discretionary power that the Court may have to vary time for serving notice of appeal should not be exercised due to the lack of any exceptional circumstances, and since failure to serve notice of appeal on time is solely due to the dilatoriness of those representing Mr. Moulai.
Lamentable failure by the appellant's solicitors to make any attempt to effect service within the permitted period;
The case, therefore, falls within the 1st limb of the distinction made by Mummery LJ in Anderton (at para. 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  1 WLR 997 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."
Service of the notice could have been effected at any time on the preceding 7 days;
No explanation has been given for the failure to do so;
No circumstances beyond the appellant's solicitors' control which led to late service (electrical blackouts, offices being shut, etc.)
Mummery LJ comments at para. 36 of Anderton are highly apposite to this case:
"If the claimants in these cases are debarred from access to the court, it is not in consequence of a system of disproportionately strict procedural rules, which violate the fundamental right of access to the courts: it is as a result of the claimant, or of the claimant's legal adviser, waiting until almost the end of the generous period allowed for issuing and for serving the claim form, and then choosing at that last moment to use a method of service, such as postal service, without regard to the provision of the rules as to when service will be deemed to be effected if this method is used. The arguments appealing to proportionality, to justice and to the CPR's overriding objective of enabling the court to deal with cases justly lend no support to the case against an irrebuttable deemed day of service. Procedural rules are necessary to achieve justice. Justice and proportionality require that there are firm procedural rules which should be observed, not that general rules should be construed to create exceptions and excuses whenever those, who could easily have complied with the rules, have slipped up and mistakenly failed to do so."
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 12th 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 13th 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.
6. ... It is accepted that this rule cannot apply directly, as the time limit with which we are concerned is a statutory time limit.
8. ... 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 [ie that there was no power to extend the time limit] 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.
"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."
The Secretary of State informed the appellant of the extradition order on 18 July. On 31 July the appellant's notice was filed with the Administrative Court, within the 14 days but on the last day. On the next day the appellant's solicitors wrote a letter dated 1 August serving the notice on the respondent. Due to some administrative error within the solicitor's office, the letter and enclosures were not put in the post until 10 August, arriving three days later. Thus service was some 12-13 days out of time.
The rules of court applicable to appeals under s.103 are contained in para 22.6A of the Practice Direction to CPR Part 52, the most important provisions of which are these:
"(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".
Reading those provisions together and in the context of the framework established by the Act, it would seem that the normal requirement in rule 52.4(3) to serve the appellant's notice on each respondent as soon as practicable, and in any event not later than 7 days, after it is filed is displaced by the specific requirement in para 22.6A(5) of the practice direction to file the notice and to serve it on each respondent before the end of 14 days starting with the day on which the Secretary of State informs the requested person under s.100(1) or (4) of the order he has made. ...
In R (on the application of Mendy) v Crown Prosecution Service  EWHC 1765, Collins J held that the reasoning in Barcys applied equally to an appeal by the requested person under s.26(4) as to an appeal by the requesting authority under s.28(4); and that, since the requested person had filed his notice of appeal out of time, the court had no jurisdiction to entertain it.
72. ... Application of the reasoning in Barcys and Mendy would seem to lead inevitably to the conclusion that notice of appeal was given out of time and that this court therefore has no jurisdiction to entertain the appeal.
73. Mr Cooper submitted that Barcys and Mendy were distinguishable or were wrongly decided and should not be followed. I am satisfied, however, that s.103(9) is materially identical to ss.26(4) and 28(4), even though the permitted period under it is longer, and that the reasoning in Barcys and Mendy bites upon it in exactly the same way. It is true that there is a factual difference between the cases, in that the appellant's notice in this case, unlike that in both Barcys and Mendy, was filed in time, but in each case the notice was served out of time and the reasoning bites equally upon service as it does upon filing. I am also satisfied that this court should follow Barcys and Mendy. No detailed argument has been addressed to us to support the contention that they were wrongly decided, and the right course is for this court to follow them unless convinced that they were wrongly decided (R v Manchester Coroner, ex p. Tal  QB 67).
74. In the course of the hearing the court raised for consideration whether it might be possible to rely on the power to dispense with service under CPR rule 6.9 as a means of tempering the inflexibility of the conclusion reached in Barcys and Mendy. ...
The situation here seems to me to be caught squarely by the principle in Godwin. The effect of the relevant statutory provisions, as held in Barcys and Mendy, is that notice of appeal must be given within the permitted period which cannot be extended. The statute does not address the possibility of dispensing with service and cannot be read as impliedly removing the power to dispense with service. But the reality is that the appellant needs an extension of time for service, which the statute precludes, and that the exercise of the power to dispense with service would have the same consequence as an extension of time and would circumvent the statutory time-limit. Furthermore, on the facts there was no attempt to serve the appellant's notice in time: even if an attempt at service was made on 1 August, it took place just outside the permitted period. The case is therefore directly comparable to the first category identified in Anderton, which was held to be clearly caught by the principle in Godwin.
Another potentially relevant consideration, as mentioned in Anderton at para 59, is the explanation for late service. In this case the explanation is a lamentable failure by the appellant's solicitor to effect service within the permitted period. There had been ample time for the purpose. A notice of appeal under s.103 could have been given at any time after the judge's decision of 4 June; and Shearman Bowen & Co were instructed by 9 July and had the remainder of July in which to give such notice. Following notification on 18 July of the making of the extradition order it must have been appreciated that time was running out. In the event the appellant's notice was filed on the last possible day and was not served until it was too late.
11. That may not have given rise to any actual injustice in the particular circumstances of the present case, because the appellant was represented by solicitors and the solicitors could have filed the notice of appeal by fax, even though the court office was closed. The Practice Direction to Part 5 of the Civil Procedure Rules provides in paragraph 5.3 that a party may file a document at court by sending it by fax. A potential drawback is that if it is delivered by fax after 4 pm it will be treated as filed on the next day the court office is open. That should not be a problem here, because the email sent to the Administrative Court Office explaining what had happened on 24th December was sent just after midday, so a fax could easily have been sent on 24th December which would have been treated as delivered on the same day and would have resulted in the timely filing of the appellant's notice. The Practice Direction provides that a fax should not be used, except in unavoidable emergencies, to deliver a document which attracts a fee; but where such a situation arises, the fax should explain the emergency and include an undertaking as to payment of the fee. That provision would not have stood in the way of filing in the circumstances that arose on 24th December.
12. I am doubtful, however, whether that is truly an end to the matter because this case does highlight the potential unfairness that can arise from a court office being closed, and one can readily imagine that although solicitors would be aware of the possibility of filing by fax and would have a fax, that might not be true of an appellant acting in person. The position here is that not only was the office closed between 24th and 26th December, but it must also have been closed during the immediately preceding weekend of 22nd and 23rd December. So in practice the appellant had only two days from the District Judge's order in which to file the notice at the court office. I would wish to see further consideration being given to how the statutory time limit is intended to operate in those circumstances.
17. But that brings me to the issue of late service in the present case, an issue which, in my judgment, is as fatal to the appellant's position as it was to the appellant in Barcys, and which therefore makes it unnecessary to reach any concluded view on the question whether the notice of appeal in this case was filed in time. On no view can it be said that the notice of appeal in this case was served in time. It was not posted to the Crown Prosecution Service until 27th December at the earliest, the date of the covering letter. The deemed date of service, in so far as one is concerned with the transmission of the documents by post or by Document Exchange, will have been no earlier than the second day after posting, that is to say 29th December. The letter did not in fact arrive until 31st December. The fax sent on 27th December did not amount to service, including as it did only the first page of the notice of appeal. No explanation has been given as to why proper service was not effected on the Crown Prosecution Service as agent for the respondent court earlier than it was.
18. Barcys is authority for the proposition that time for service cannot be extended. Mucelli came down against dispensing with service on the facts of that case when no attempt had been made to serve the notice within the time limit, and to dispense with the requirement of service would have been an unacceptable circumvention of the statutory time limit. The same reasoning applies here, and in my view there is nothing in the circumstances of the case that would warrant what would be a highly exceptional exercise of discretion in the appellant's favour.
19. For those reasons, I have reached the conclusion that there was a failure to comply with the statutory time limit, that the failure cannot be cured, and that the consequence of the failure is that this court does not have jurisdiction to entertain the appellant's appeal. Accordingly, I would dismiss the appeal.
Mr Justice Maddison: