England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		1 April 2011

LORD JUSTICE SULLIVAN:

Introduction

1. In these proceedings we have to decide whether this court has jurisdiction to entertain Mr Szelagowski's appeal against the order of Deputy District Judge Wickham on 7 April 2010 that he be extradited to Poland under part 1 of the Extradition Act 2003 ("the Act"). For convenience I will refer to Mr Szelagowski as the appellant.

The law

2. For present purposes the relevant provisions of section 26 of the Act are as follows:

"1) if the appropriate judge orders a person's extradition under this part, the person may appeal to the High Court against the order.

...

4) 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 is made."

3. In Mucelli v Government of Albania, Moulai v Deputy Public Prosecutor in Cretiel, France [2009] UKHL 2 the House of Lords decided that "given" in subsection 26(4) means both filed and served and that the court has no power to extend the 7 day period within which notice of an appeal under section 26 must be filed and served.

The facts

4. It is common ground that the 7 day period in this case expired on 13 April 2010. The parties are also agreed as to what occurred on that day. There is no dispute that a notice of appeal was filed on 13 April 2010 but there is a dispute as to whether, in the light of what is agreed to have happened, a notice of appeal was served on that day.
5. What happened was as follows. The appellant's then solicitors, Lawrence and Company, made up six appeal bundles, those bundles, each of which included an appellant's notice and grounds of appeal, were given to an employee of the firm with instructions to take them to the Administrative Court Office to be filed and sealed. The employee was instructed to leave three of the bundles at the Administrative Court Office and then to take one sealed copy of the appeal bundle to the Extradition Unit of the CPS. He was provided with a covering letter, dated 12 April, from Lawrence and Company addressed to the CPS Special Crime Division at 50 Ludgate Hill, London, EC3, which said:

"Dear sirs, Re: Poland v Stanislaw Szelagowski"

And there was then, added in manuscript, a Crown Office reference number, CO/4568/2010. The letter continued:

"Please find enclosed appeal bundle containing the following:

• Appellant's notice.

• Grounds of appeal.

•European Arrest Warrant and.

• Arrest statement.

Kindly acknowledge receipt by signing below,

Yours faithfully Lawrence and co."

It indicated that there were enclosures.

6. At the foot of the letter there was a blank acknowledgement of receipt form:

"I [blank] of CPS Special Crime Division acknowledge receipt of the appeal documents listed above. Signed [blank] date [blank]."

7. The employee of Lawrence and Co duly filed the notice of appeal at the Administrative Court, paying the appropriate fees. He then went to the CPS and delivered a package of documents which included the covering letter. The acknowledgement at the foot of the covering letter was signed and dated 13 April 2010 by a CPS caseworker, Miss Sema Jugdharee. She is not legally qualified. She did not check to see the whether the documents in the package were those listed in the covering letter. Having acknowledged receipt she passed the documents to the CPS lawyer with responsibility for the case, a Mr Close.
8. Meanwhile, the employee of Lawrence and Co returned to that firm's office and gave the caseworker there three copies of the appeal bundle and the covering letter with the signed acknowledgement of receipt.
9. On 20 April 2010 Lawrence and Co received a letter from Mr Close. That letter said that the documents which had been received by the CPS on 13 April 2010 did not include a notice of appeal. In a witness statement dated 11 May 2010, Miss Jugdharee has produced copies of the documents which were received by the CPS on 13 April. Those documents included a copy of the covering letter addressed to the CPS, without the Administrative Court reference number in manuscript and with the acknowledgement of receipt part of the letter left uncompleted; the completed letter having been retained by the employee of Lawrence and Company who returned it to that firm. It is unnecessary to list the remaining documents in the package, because it is not suggested on behalf of the appellant that they included a notice of appeal.
10. It is now conceded by Mr Owen Davies QC, who appears on behalf of the appellant (neither he, nor Mr Harland, nor the appellant's present solicitors were involved in any way in the events in April 2010) that the employee of Lawrence and Company must have made a mistake on 13 April 2010 and given a different package of documents, not one of the appeal bundles, to Miss Jugdharee.
11. The appellant is of course blameless in all of this. There is no doubt that he intended to appeal. There is equally no doubt that, on receipt of the covering letter on 13 April 2010, the respondent knew that the appellant wished to appeal. The question for this court is whether the appellant's then solicitors had served notice of an appeal on the CPS on 13 April 2010.

Discussion

12. Mr Davies submitted that sufficient notice of an appeal had been given for the purposes of section 26(4) within the 7 day period and that the court could rectify any error of procedure under CPR Rule 3.10 and or Rule 6.27.1. Mr Davies pointed out that the covering letter which was given to the respondent to sign had referred to an appellant's notice and grounds of appeal and had contained in manuscript the Administrative Court reference number CO/4560/2010. Both Mr Davies and Mr Hardy QC, who has appeared on behalf of the respondent, referred us to the different approaches in the authorities as to what must be served within the 7 days in order to comply with section 26(4). For example, in the Regional Court in Conin, Poland v Parvel Walerianczyk [2010] 2149 (Admin) Stanley Burnton LJ, with whom Nichol J agreed, said that what must be served was a copy of the filed notice of appeal (see paragraph 27). Stanley Burnton LJ distinguished an earlier decision Parvel Sciezka v the Court in Sad Okregowy Kielce, Poland [2009] EWHC 2259 (Admin), in which a different approach had been adopted, as a "very hard case on the facts" (see paragraph 28). More recently, in Cane v Spain [2011] QB (Admin), dated 17 March 2011, my Lord Collins J has declined to follow the decision in Conin. Mr Davies relied on Cane in his skeleton argument. Mr Hardy submitted that Cane had been wrongly decided.
13. While it might have been tempting to endorse one or other of the different approaches adopted in the conflicting authorities, for my part I would resist the temptation to do so and leave that conflict to be resolved in another case. I say that because, on the facts of this case, any conclusion we might reach would be obiter because, even if one adopted what in my view would be the lowest possible threshold for compliance with section 26(4) and assumed (without deciding the point) in the appellant's favour that, so far as the requirement for service is concerned, all that an appellant has to do within the 7 day period in order to give notice of an appeal is to serve upon the respondent a document which can sensibly be described as a notice of appeal, the package served on the respondent on 13 April 2010 did not, in my view, include such a document. Apart from the covering letter, it is not suggested that any of the documents in the package might be said to have been a notice of appeal.
14. That leaves the covering letter. Although the copy signed by Mr Jugdharee had the Administrative Court's reference number upon it and the letter referred to the existence of notice of appeal and grounds of appeal, Mr Davies accepted that, on its face, that letter did not purport to be, and was not itself capable of being regarded as, a notice of appeal. A letter which tells the reader that there is a notice of appeal is not itself that notice of appeal for the purposes of section 26(4). It merely tells the reader that there is another document which is such a notice.
15. Mr Davies submitted that, in order to comply with section 26(4) it was not necessary to serve a document that could be said to be a notice of appeal. He submitted that it was sufficient in order to give notice of an appeal that the respondent was given a document which made it plain that there was a notice of appeal and told the respondent what the reference number of that appeal was. I do not accept that submission. It is plain, in my judgment, from the decision in Mucelli that what is required for the purposes of service is, at the very least, service of a document that can be said to be a notice of appeal (see for example the speech of Lord Brown at paragraph 38).
16. It is a common feature of all of the cases to which I have referred that there was a document served which could be said to be a notice of appeal. However, if that is not right and all that was needed was that the appellant should provide a letter in effect saying "I have appealed and the reference number of my appeal is such and such", even that requirement was not, on the facts of this case, complied with. That is because the letter that was left with the respondent did not include the Administrative Court reference number. It is perfectly true that the letter including that reference number was shown to Miss Jugdharee but as soon as she signed the acknowledgement of receipt form that copy of the letter containing the reference number was taken away and returned by the employee to Lawrence and Co. Thus, the CPS was not even given, save for the briefest of glances, an Administrative Court reference number for the appeal.
17. Therefore, even if the assumption that I am for present purposes prepared to make in favour of the appellant that something that can be called a notice of appeal must be served on the respondent is too onerous, there was nothing given to the respondent which gave it even the most basic information such as the Administrative Court reference number of the appeal that had been filed. It follows in my view that there was no document which was capable of being described as a notice of appeal served upon the respondent within the 7 day period. If there is no such document then there is nothing in the CPR which can avail the appellant. It follows that this court, in my view, does not have jurisdiction to consider this appeal.
18. I merely observe that this case demonstrates how a rigid statutory time limit which cannot be extended under any circumstances can work injustice in practice, but the statutory scheme is very clear. Bearing in mind that some appellants will not have been represented at extradition hearings before district judges, the potential unfairness of such a rigid time limit could be mitigated if a form was served on all appellants whose extradition is ordered under part 1, telling them clearly of the right of appeal, warning them of the 7 day period, and telling them what must be done within that period. In some other statutory schemes which make provision for appeals there is requirement for such a notice and, given the draconian consequences of failing to comply with section 26(4), it is perhaps unfortunate that there is no such requirement within this statutory scheme.
19. That said, I fear that we have no option but to decline jurisdiction in this matter.

20. MR JUSTICE COLLINS: I agree that we have to decline jurisdiction. I merely add this, in my decision in Cane v Spain I did not intend to indicate, as the judgment of my Lord with which I entirely agree has made clear, that there could be compliance with the provisions of section 26(4) or section 28(4) by serving anything other than a document which, on its face, stated that it was a notice of appeal. Normally, that would be done by service of the required form N161 together with the statement that my Lord has indicated would be desirable to be served upon a person whose extradition is ordered by the magistrates' court, there should be service too of that form as an indication that that is the notice which he should fill in. It would apply to those represented as well as those not represented because it, in the experience of this court, quite often happens that appellants, or would be appellants, in this court, although they may have been represented at the magistrates' court, do not continue to be represented for the purpose of any appeal. A document which gave notification that an appeal was to be or had been lodged would not suffice.

21. MR JUSTICE TREACY: I agree we have no jurisdiction in this case.