QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Kevin Richard Halligen
|- and -
|Secretary of State for the Home Department
Government of the United States of America
Mr Ben Watson (instructed by Treasury Solicitors) for the Respondent
Mr Ben Lloyd (instructed by The Crown Prosecution Service) for the Interested Party
Hearing date: 19th April 2011
Crown Copyright ©
The Hon. Mr. Justice Stadlen
(i) On 22 December 2010 the Secretary of State notified the Appellant of her decision to order his extradition under the provisions of Part 2 of the Extradition Act 2003 ("the 2003 Act").
(ii) The notification was contained in a decision letter from Julian Gibbs, an official at the extradition section of the judicial co-operation unit of the respondent, which, together with a copy of extradition order, was faxed to the Appellant's former solicitors, Janes Solicitors by Gemma Kelly, another official in the extradition unit. It is not clear whether the fax was sent at 1548pm or 1648pm.
(iii) That letter contained details of the notice of appeal requirements under the 2003 Act including the need to file and serve any notice of appeal within fourteen days, starting on the day on which the Secretary of State notifies her decision. It also referred him to the Practice Direction supplementing Part 52 of the Civil Procedure Rules governing extradition appeals and the need to serve any notice of appeal on the Crown Prosecution Service (on behalf of the Government of the United States who had sought the extradition order) as well as on the Home Office. The letter concluded: "We should therefore be obliged if you would notify Gemma Kelly 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";
(iv) on 29 December 2010 the Appellant's former solicitors filed a notice of appeal on the proper form at court;
(v) on the same day the Appellant wrote a handwritten letter to Mr. Gibbs and Ms Kelly, addressed to Ms Kelly, in response to Ms Kelly's fax and Mr.Gibbs' letter, inviting her to treat his letter as notice and service of his intent to appeal. The letter contained the Appellant's name and address at HM Prison Wandsworth. It referred to a request by the United States of America for his extradition with a reference number. The letter acknowledged receipt of Ms Kelly's fax of the same date containing the letter from Mr. Gibbs and the decision to proceed with his extradition. It continued: "Given the timing of receipt of the fax and letter and the extended holiday period, please accept this letter as notice and service of my intent to appeal that decision. My solicitors and counsel have been duly instructed and this letter is only necessitated by the imposed due date of 4 January 2011 and my inability to make contact with them given the restrictions imposed by HMP Wandsworth. Please confirm receipt of this letter as soon as possible to me at the above details. Yours Sincerely, K. Halligen."
(vi) On 4 January 2011 the deadline for serving the notice of appeal expired;
(vii) on 5 January 2011 the Appellant's former solicitors faxed to the Crown Prosecution Service, on behalf of the Interested Party, a copy of the sealed Notice of Appeal which had been filed at the court on 29 December 2010. Prima facie this was out of time.
(viii) On 6 January 2011 the Secretary of State was also served with notice of the Appellant's appeal. The documents had been sent by post the previous day by the Appellant's former solicitors. Again on its face this also was out of time.
"(1) If the Secretary of State 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 the rules of court before the end of the permitted period, which is fourteen days starting with the day of which the Secretary of State informs the person of the order under sectioN100(1)."
"All parties to an appeal must comply with practice direction 52."
"Where an appeal is brought under section 108 of the Act the Appellant's notice must be filed and served before the expiry of the 14 days starting with the day on which the Secretary of State informs the person that he has ordered his extradition."
"Where an appeal is brought under section 103, 105, 108 or 110 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 to be served under rule 52.4(3) and in accordance with that rule."
"Subject to paragraph (4) and unless the appeal court orders otherwise, an Appellant's notice must be served on each respondent-
(a) as soon as practicable;
(b) in any event, not later than seven days after it is filed."
"Appeal against extradition order
(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 appeal under this section must be given in accordance the with the rules of the court before the end of the permitted period, which is 7 days starting on the day the order is made.
"(i) what is meant by the requirement that notice is 'given' – does that mean merely filed with the court or both filed with the court and served on the Respondent?;
(ii) secondly, whichever is meant, is such judicial discretion as is ordinarily available under the rules of court - variously to extend time for compliance with any rule (CPR r.3.1(2)(a), to vary the time-limit for filing an appeal under notice (rule 52.6(1), to dispense with service (rule 6.9), or perhaps more generally to remedy errors (rule 3.10) – available in this context to overcome any failure to give notice within the specified time?"(Paragraph 32).
"Against this background it seems to me tolerably plain both that section 26(4) is requiring the notice of any appeal to be both filed and served within the stipulated seven day period and that this, being a statutory time limit, is unextendable. 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." (Paragraph 38).
" 73. The second question of principle is whether there is any basis on which the court could extend time for filing or service under sections 26(4) and 103(9). Again, I shall deal first with the position under section 26.
74. On the face of it, at any rate, there is a clear and unqualified statutory time-limit, namely seven days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the Civil Procedure Rules, which contain provisions whereby the court can extend time for the taking of any step, under CPR r 3.1(2)(a), can make an order remedying any error of procedure, under CPR r 3.10, or can make an order dispensing with service of documents under CPR r 6.9. However, these powers cannot be invoked to extend a statutory time-limit or to avoid service required by statute, unless of course, the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR r 3.2 (a) which refers to the time limits in "any rule, practice directions or court order", and from CPR r 6.1 (a) [which] states that the rules in CPR Pt 6 apply, "except where….any other enactment… makes a different provision".
75 Accordingly, it would be necessary to find some statutory basis for the court having power to extend time, or indeed to dispense with the service which section 26(4) requires. The only arguable such basis is to be found in the words "in accordance with rules of court", which, it is contended, incorporate the various provisions of the CPR to which I have just referred. 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 notice is to be given, which is dictated by the closing part of the subsection....
78 It is true that the Practice Direction to CPR Pt 5.2, and the prescribed form of the notice of appeal both suggest that the court's powers to extend time under the CPR apply to the appeal process. As a general proposition this is of course, true, but it does not follow that the draftsman of those documents considered, let alone was stating, that the court must have such power in relation to every type of appeal. In any event, CPR r 52.1 (4) makes it clear that the provisions of CPR Pt 52 are "subject to any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal", and the practice direction is brought into effect through CPR r 52.2.
79 The Divisional Court in the Moulai appeal thought that the court could none the less dispense with service of the appeal notice under CPR r 6.9 (although they declined to make such an order in the event). I do not agree. If, as I have concluded section 26 (4) requires the appellant's notice to be filed and served within seven days, the court can no more make an order dispensing with service than it can extend the time. This conclusion arrived at in a case where the dispensing of service is being sought to avoid having to serve at all or to avoid the seven day time limit, does not preclude the possibility of the court making an order for substituted service in appropriate cases under the 2003 Act. Indeed, on exceptional facts (e.g. where the respondent was evading service), the court might well order that service could be affected in a way that may well lead to the notice not being received by the respondent within the seven day period, or even – conceivably – at all.
80 For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal. For the same reasons, I reach the same conclusion in relation to section 103(9)."
"19. What matters for the purpose of giving the necessary information, as is made clear by what Lord Justice Stanley Burnton said in paragraph 14, is that the respondent should know that an appeal is being pursued."
"22. It follows, as it seems to me from that, that a notice of appeal simply means what it says, namely that the individual has filled out the relevant form or document and has indicated on that that he is appealing. He must, of course, file it and he must serve a copy of it on the Crown Prosecution Service. But it does not follow – and in my judgment cannot follow – that it is necessary for the filing in the court to come before the service on the respondent. The respondent will know that it is said that he has filed a notice of appeal and thus the notice of appeal is pending....."
38. It follows, as it seems to me, also from that that the distinction that is sought to be drawn between a notice and a draft notice, is one which cannot be relevant or appropriate in the circumstances of an extradition appeal such as this. The notice is a notice of appeal. It does not matter that it has not yet been filed in court. True, I suppose, that it is possible that there may be variations. But those variations would only be in the contents of the notice. The fact that there is an appeal and that appeal is being commenced cannot be changed. That is the only fact that is essential for the purposes of the proper commencement of an appeal. Any failure to comply with the rules and what is contained in that notice – for example, grounds – can be dealt with by the court by making orders to require compliance because they are procedural irregularities which can be cured through CPR 3.10.
39. Thus I would construe the notice of appeal in section 26(4) to mean no more than notice that an appeal is being brought, not necessarily to extend to the grounds or the other contents of that notice. It seems to me at any other construction would mean that the full period of seven days was not given to an appellant."
In that case an employee of the Appellant's then solicitors filed a notice of appeal with the Administrative Court Office (ACO) and then served on the Crown Prosecution Service a bundle which was supposed to include a copy of the Appellant's notice. By error in fact he served only the covering letter which stated (incorrectly): "Please find enclosed the appeal bundle containing the following: Appellant's notice…….."
"6.26 deemed Service
A document, other than a claim form, served within the United Kingdom in accordance with these Rules or any relevant practice directions is deemed to be served on the day shown in the following table….. 4. fax – if the transmission of the fax is completed on a business day before 4.30pm, on that day; or in any other case, on the next business day after the day on which it was transmitted."
The Appellant submitted that on the basis that the faxed notification of the Secretary of State's decision to extradite was not sent until 1648pm on 22 December 2010 the effect of CPR Rule 6.26 is that the notification was deemed to have been sent on 23 December 2010 with the consequence that the fourteen day permitted period in which the Appellant was required to give notice of Appeal did not commence until 23 December 2010. Therefore it was submitted the sealed copy of the Appellant's notice which was faxed to the CPS on 5 January 2011 constituted valid service with the statutory fourteen day time frame.
Lord Justice Laws: