England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/02/2009

Sir Anthony May, President of Queen's Bench Division:

1. This is the Judgment of the Court.
2. It is regrettable if inconsequential technical failures to comply with mechanical requirements of Part I of the Extradition Act 2003 have the effect of impeding the underlying parliamentary intention that European Arrest Warrants should be dealt with and executed as a matter of urgency – see Article 17 of the European Framework Decision on Extradition whose provisions Part I of the 2003 Act implemented. Strict compliance with some such requirement may be necessary – see for example Mucelli v Government of Albania [2009] UKHL 2. But the court is generally disinclined from enforcing strict compliance where the legislation permits the exercise of discretion and prejudice to a defendant is slight or not apparent.
3. Two technical failures have arisen in these proceedings and are relied on in support of the submission that Leonard Hughes, the respondent, should be discharged from arrest under a European Arrest Warrant issued on 19 December 2006 by the appellant Public Prosecutor in Hamburg for alleged offences relating to tax in 1998 and 1999.
4. The prosecutor first issued a European Arrest Warrant for the arrest of Mr Hughes on 28 November 2006. This was, for some reason, revoked on 19 December 2006, on which day a second European Arrest Warrant was issued for the same offences. The first warrant had, however, been transmitted to the Serious Organised Crime Agency in this jurisdiction who were not at first aware that it had been revoked. Mr Hughes was arrested pursuant to this first (revoked) warrant on 7 August 2008. But he was released from this arrest on 18 August 2008, having spent 11 days in custody, when the authorities learned that the warrant had been revoked. He was arrested again on 8 September 2008 pursuant to the second warrant of 19 December 2006.
5. On 26 September 2008, at an extradition hearing in the City of Westminster Magistrates Court, District Judge Purdy discharged Mr Hughes upon a finding that the European Arrest Warrant of 19 December 2006 was not valid because it did not contain particulars of the European Arrest Warrant of 28 November 2006. This is the first technicality relied on. The prosecutor appeals against this decision. Subject to matters discussed later in this judgment, it is agreed that in this court DJ Purdy's decision is now seen to be wrong because, since his decision, dicta which he applied have been authoritatively determined to be wrong.
6. Section 2(4) of the 2003 Act requires a Part I warrant to contain "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence". There was an issue whether "any other warrant" included any other European Arrest Warrant, or whether it referred only to a domestic warrant within the category 1 territory. DJ Purdy decided that it included any other European Arrest Warrant with reference to dicta of Dyson LJ in Jaso v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin) at paragraph 26; and of Maurice Kay LJ in Zakowski v Regional Court of Szczecin, Poland [2008] All ER(D) 228 at paragraph 25. But subsequently a three judge Divisional Court presided over by Dyson LJ decided in Louca v The Office of Public Prosecutor in Bielefil [2008] EWHC 2907 (Admin) that these dicta were wrong; that there was no obligation on the part of the requesting state to include particulars of a previous European Arrest Warrant; and that the requirement in s.2(4)(b) to include particulars of any other warrant was satisfied by including particulars of the domestic decision on which the European Arrest Warrant was based – see paragraph 28. Mr Summers, for Mr Hughes, did not submit that it was open to this court to decide that Louca was wrongly decided in this respect. If this were the only point, the appeal should therefore succeed.
7. The Divisional Court in Louca certified a relevant point of law of general public importance, and we indicated at the hearing of this appeal that we would certify an equivalent point in this case to preserve for Mr Hughes the possibility that the House of Lords might give leave to appeal in Louca and subsequently allow the appeal. In that event, we would not expect those involved in this case to participate actively in a Louca appeal.
8. On the face of it, therefore, the appeal should be allowed, but Mr Summers has three submissions, two of them related, why it should not. The two related submissions are variants of the proposition that Mr Hughes should have the benefit of the law as it was wrongly understood to be at the time of the District Judge's decision.
9. The first version of this submission is hopeless, and Mr Summers sensibly did not persist in it orally in the face of at least six difficulties put to him by the court. The submission was that the decision in Louca should be treated as having prospective effect only. It was accepted that judicial decisions which reverse or correct earlier decisions normally take effect so that the reversal or correction is treated as having been the law for the past as well as the present and future. But reliance was placed on the House of Lords decision in In re Spectrum Plus Ltd [2005] 2AC 680, in which it was held that there could be cases where a decision on a point of law was unavoidable, but the decision would have such gravely unfair and disruptive consequences for past transactions or happenings that the House of Lords would be compelled to depart from the normal principles relating to the retrospective and prospective effect of court decisions; and that, altogether exceptionally, it was not always beyond the competence of the House of Lords ever to limit the temporal effect of its rulings.
10. Reliance on In re Spectrum Plus Ltd in the present appeal is hopeless for one or more of the following summary reasons:

(1) the case would have to be altogether exceptional such that a ruling having retrospective effect would have gravely unfair and disruptive consequences. This case comes nowhere near that.

(2) declaring quite exceptionally that a ruling should have prospective effect only is probably only within the competence of the House of Lords. This is our reading of the effect of the opinions in In re Spectrum Plus Ltd, and in any event decisions of lower courts are seldom beyond appeal. Mr Summers expressly conceded this point orally when the court put it to him.

(3) Dyson LJ did not consider making the ruling in Louca prospective only, let alone did he say that it should be.

(4) one Divisional Court probably could not make a ruling having prospective effect only which would bind another Divisional Court.

(5) the relevant law before Louca was probably dicta only which the District Judge did not have to follow.

(6) there is no conceivable justification for giving a decision prospective effect only on appeal when, as in this case, the now correct law was argued, albeit unsuccessfully, at first instance.

11. We do not positively decide that all these six points are correct, because we did not have sustained submissions on all of them at the hearing. But we do consider, as we say, that reliance on In re Spectrum Plus Ltd in this appeal is hopeless. Reason (2) was conceded, and in addition we do not see any significant argument in answer to at least reasons (1), (3) and (6).
12. The other version of Mr Summers's prospective effect only submission depends on an over-literal construction of section 29(3)(a) of the 2003 Act. This prescribes as a condition for allowing a prosecutor's appeal under section 28 that "the judge ought to have decided the relevant question differently". It is suggested that the tense of the verb in this clause directs attention to what at the time was to be regarded as the correct decision. The District Judge in the present case decided the point correctly at his judicial level according to the law as it was understood to be at the time, and so it cannot be said that he ought to have decided it differently. The use of the past tense in section 29(3)(a) is contrasted with the use of the present tense in section 2 of the Criminal Appeal Act 1968.
13. In our judgment, the construction contended for is wrong. The phrase "ought to be decided" is not relevantly in the past tense, since the operative verb "ought" signifies a present state of affairs. More importantly perhaps, the expression "the judge ought to have decided the relevant question differently" postulates an inquiry, if findings of fact are challenged, whether the judge made an error in his factual conclusions; and, if decisions of law are challenged, whether the judge applied correct legal principles. The universally understood principle that authoritative decisions on points of law have retrospective effect (except conceivably in altogether exceptional circumstances in which the House of Lords rules otherwise) means that a subsequent decision to the effect that the law applied by the District Judge is wrong embraces the proposition that the judge ought to have decided the relevant question of law differently. The fact that it might have appeared to be a correct decision when it was made is neither here nor there, except that this exonerates the judge from any personal criticism for his decision.
14. Mr Summers's third submission raises a second distinct area of technicality. Paragraph 22.6A(3)(b) of the Part 52 practice direction to the Civil Procedure Rules requires an appellant bringing an appeal under section 28 of the 2003 Act to endorse the appellant's notice with the date of the person's arrest. The appellant's notice in the present case as originally presented to the Administrative Court office was not endorsed with any date of Mr Hughes' arrest. When the office pointed this out, the wrong date was put in. The date that was endorsed was that of Mr Hughes' initial hearing on 8 August 2008 pursuant to the first revoked European Arrest Warrant. It should have been 8 September 2008, the date of his arrest pursuant to the operative European Arrest Warrant.
15. The purpose of endorsing the appellant's notice with the date of arrest is to enable the court easily to compute the 40 day period within which, subject to extension, the court has to begin to hear the substance of the appeal – see paragraph 22.6A(3)(c) of the practice direction. Calculating from the wrongly endorsed date in this case would have meant an earlier required beginning for the substantive appeal, subject to extension.
16. Mr Summers accepted that Mr Hughes had suffered no prejudice from this error. But he submitted that this was an error which the court had no discretionary power to cure; or, if the court did have such a discretion, we should not exercise it in favour of the prosecutor in this case. A parallel but materially different submission eventually succeeded in the House of Lords in Mucelli.
17. The relevant practice direction derives from section 31 of the 2003 Act. This provides that the High Court must begin to hear the appeal before the end of a period which rules of court must prescribe; and that rules of court must provide for that period to start with the date on which the person in respect of whom a Part 1 warrant is issued was arrested. So the court needs to know, for administrative purposes, the relevant date of arrest.
18. The House of Lords Mucelli were concerned with section 26(4) of the 2003 Act, which provides that a notice of appeal against an extradition order 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". There are materially identical provisions in section 28(5) where a prosecutor appeals against an order for a person's discharge. The issue before the House of Lords was whether a notice of appeal was "given" when it was filed in the High Court office or whether it also had to be served on the respondent within the 7 day period. It was held that it had to be both filed and served.
19. The House of Lords also decided that the 7 day period was a clear and unqualified statutory time limit which could not be extended. Discretionary powers in the Civil Procedure Rules could not be invoked to extend a statutory time limit unless the statute so provides, which this statute does not – see paragraph 25 of the opinion of Lord Rodger of Earlsferry and paragraphs 74, 78 and 80 in the opinion of Lord Neuberger, with whom Lord Phillips of Worth Matravers, Lord Carswell and Lord Brown of Eaton-under-Heywood agreed.
20. In support of his submission that endorsing the notice of appeal in this case with the wrong date of arrest is fatal to the appeal, Mr Summers relies on the terms of section 28(5) of the 2003 Act which, he submits, makes compliance with the relevant rules of court mandatory so that discretionary powers in other rules of court are not available. Mr Summers rightly did not persist in an alternative written submission that, with the wrong date in the appellant's notice, the court was deprived of the information necessary to find that the hearing of the appeal had begun before the end of the relevant period, so that the appeal must be taken to have been dismissed by a decision of the High Court under section 31(7). If the court has discretionary power to remedy the error under rule 3.10 of the Civil Procedure Rules and exercises that power, the court also has power to extend the period before the end of which it must begin to hear the appeal (even after the end of the relevant period), and the court has done so in this appeal.
21. In our judgment, the court does have power under rule 3.10 of the Civil Procedure Rules to make an order to remedy the error in the date of arrest endorsed on the appellant's notice. The short, but decisive, point of distinction between this case and Mucelli is that the 7 day permitted period for giving the appellant's notice is a requirement of the primary legislation (repeated in terms in paragraph 22.6A(3)(a) of the practice direction); but, that apart, the appellant's notice has to be given "in accordance with the rules of court". The requirement for endorsing the notice with the date of arrest is a requirement of the rules of court – see rule 52.1(4) for the rule which directs attention to the practice direction. Once you are into the rules, relevant discretionary general rules are also available, there being nothing in the primary legislation to gainsay this. We reject Mr Summers' submission to the contrary.
22. We are fortified in this conclusion by:

1) paragraph 38 in the opinion of Lord Brown of Eaton-under-Heywood in Mucelli, in which he held that the statutory time limit for filing and serving the appellant's notice was unextendable. But he added that:

"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 in so far as is consistent with the filing and serving of the notice before the statutory time limit expires."

2) paragraph 75 in the opinion of Lord Neuberger, where he rejected a submission that a power to extend time could be found in the words: "in accordance with the rules of court" in section 26(4) which would incorporate the various provisions of the Civil Procedure Rules. But he said:

"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 notices to be given, which is dictated by the closing part of the sub-section."

3) paragraph 82 in the opinion of Lord Neuberger, where he said that it was part of his reasoning that reference to the rules of court in section 26(4) govern the manner, not the time, of service.

4) section 35 of the 2003 Act, which has a mandatory requirement for extradition if a person whose extradition was ordered does not give a notice of appeal before the end of the period permitted under section 26, but no such rigid requirement for other deficiencies in the notice of appeal.

23. Accordingly, the Court's discretionary power under rule 3.10 is available in this case and we are persuaded that it should be exercised. Mr Summers gave some written reasons why the court should not do this, but accepted orally that Mr Hughes had suffered no prejudice by the technical failure to comply with the rules. Mr Summers' written reasons included that the prosecuting authority had been responsible for years of delay – an argument which remains available if the appeal is allowed and the case is remitted – and that Mr Hughes had already spent 11 days in custody through errors of the prosecuting authority – a regrettable fact but nothing to do with this procedural error. Likewise, the fact that Mr Hughes might be exposed to prosecution and imprisonment in Germany is not prejudice resulting from the procedural failure. The general need to be firm in enforcing procedural rules – see Anderton v Clwyd County Council No 2 [2002] 1WLR 3174 – does not, in our judgment, extend on the facts of this case to refusing to amend a technical mistake, not concerned with statutory time limits, which has had no practical adverse consequences for Mr Hughes.
24. For these reasons, we allow the appeal and remit the case for further consideration on other matters to the District Judge.