QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF KANE||Appellant|
|TRIAL COURT NO 5 MARBELLA, SPAIN||Respondent|
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Mr Daniel Sternberg appeared on behalf of the Respondent
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"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
"(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."
"(i) Is service on the respondent of a draft notice of appeal, followed by the filing of notice, capable of complying with the requirement that notice of an appeal be given within the permitted period?
(ii) If the answer to (i) is 'Yes', does service of an unsealed copy of the notice of appeal satisfy the requirement of section 28 that notice be given 'in accordance with rules of court'?
(iii) If the answer is to (ii) is 'No', does the court have power to waive the requirement that the notice of appeal served on the respondent must be sealed?
(iv) If the answer to (iii) is 'Yes', should the Court exercise that power in the present case?"
"13 I also think it necessary to be clear about what is meant by a notice of appeal or a copy of a notice of appeal or by an unstamped notice of appeal. A notice of appeal served before the appeal is filed is no more than a draft notice of appeal. It can signify no more than an intention to appeal. It differs from a copy of the filed notice of appeal in two respects. It is unstamped; and it does not bear the reference number allocated to the appeal by the Court Office. Thus a notice of appeal served before the appeal is filed is not a true or complete copy of the actual notice of appeal.
14 Moreover, the differences between a draft notice of appeal and notice of an appeal that has been filed are significant. Service on a respondent of a notice of appeal bearing the court stamp and appeal reference informs him that there is a pending appeal. That is particularly important if, as in the present context, there are steps that may be taken if an appeal is not in fact pending at the expiration of a specified time to appeal. If only a draft notice of appeal against an extradition order is served on the last day of the permitted period, the CPS will not know whether in fact a notice of appeal has been filed and whether they are free to effect the extradition of the person in question. To my mind, it is no answer that, as suggested by Mr Jones, the CPS may telephone the Court Office to ascertain whether the notice was in fact filed. In the first place, this puts a burden on the Court Office, and places undue weight on the accuracy and reliability of a telephone inquiry. Secondly, as the facts of Moulai [the other case that was heard with Mucelli] demonstrate, a notice of appeal may be served, and may certainly be considered by the proposed respondent, after the Court Office has closed, so that it is impossible to make an inquiry by telephone. Conversely, a person whose extradition has been sought is entitled to know, immediately after the expiration of the permitted period under section 28, whether his extradition proceedings have come to an end. If he has been detained pursuant to section 30 he is entitled to know with certainty whether, at the expiration of the permitted period, his appeal is pending, since if it is not he has an immediate right to his liberty. Similarly the governor of the prison in which the person is detained must be entitled to receive written justification for his continued detention. These considerations were referred to by Lord Neuberger in Mucelli at paragraphs 67 and 68 of his opinion."
"41 I can now state my own conclusions. I turn to the first issue. In my judgment, this is a case in which mere delivery of an appeal notice to the appropriate Court Office is sufficient to constitute the filing of a notice within the terms of the definition of that word in CPR 2.3 (1) without any additional requirement."
"In my opinion it is difficult to say that presentation requires any action on the part of the body to whom presentation is made. Delivery of the document to the proper quarter does not require action on the part of anybody at that proper court."
"45 In my judgment the instant case is stronger than Swainston's case in that whilst the concept of presentation requires some form of collaboration by the person to whom the presentation is being made, the concept of delivery to an office does not. If presentation to a court or tribunal is a unilateral act then in my judgment, a fortiori, delivery to an office is."
"59 I see the force of Mr Bhose's argument [counsel for respondent] that this may lead to uncertainty. If no one is in the office to verify whether the document arrived before or after midnight there is a potential difficulty. Under 5 PD paragraphs 5.1 and 5.2 the court is required to record on the document the date on which it was filed and enter that date and other information on the court records. It will be apparent however to the court staff that the document of the kind we would be dealing with here could have been personally delivered by hand and not he postman. It may therefore be necessary for inquiry to be made by the Court Office of the filing party to ascertain when delivery was effected. And that is a nuisance. It does enable the date of delivery to be ascertained and the uncertainty resolved. I hope in any event that this does not happen often."
"81 Both filing and service of documents often occur towards the last minute, and this is particularly likely in cases where the time for filing and service is short. Two questions of principle arise in connection with this practical problem in relation to the time limits in sections 26 (4) and 103 (9). The first is whether the provisions of CPR 6.7, which is concerned with deemed service, are applicable to those time limits. Thus, under the rules as they were at the time of the instant appeals, a document transmitted by fax after 4.00 pm was deemed to have been served 'on the business day after the day on which it is transmitted'. Such deeming provisions have been consistently held to be irrebuttable ..... In these appeals, it appears to have been generally assumed that these provisions govern the question of when a notice of appeal is treated as having been 'given' under sections 26 (4) and 103 (9).
82 In my view, that general assumption is wrong. Section 26 (4) requires the appellant's notice to be issued and served within 7 days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the Prosecutor's case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In these circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period. The point is reinforced by practical considerations: the 7 day period laid down by section 26 (4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by section 103 (9) is somewhat longer, the same reasoning applies.
83 Another point which arises is what happens if it is impossible to give notice on, or during the final part of, the last day. For instance, in relation to filing, the Court Office may be closed on the last day because it is Christmas Day or another Bank Holiday, and the Court Office will be closed at some point in the late afternoon on the last day. Equally, the respondent's office may be closed for the same reasons."
"85 It might be argued that it follows from this that time should be similarly extended to the next business day, in cases where, even if only for a few hours, the required recipient's office is closed before midnight on the final day (as will always be true of the court, and will almost always be true of any other recipient). In my opinion, while there is a real argument based on consistency to support such a proposition, it is not correct, at least where the office in question is open during normal hours. While there is no reason to deprive an appellant of his full statutory 7 or 14 days, if, for instance he transmits his notice of appeal by fax, or even if he posts the notice through a letter box in the door of the respondent's office, just before midnight on the last day for service, it does not follow that he should have cause for complaint if he cannot file the notice at the court office, or serve it on the respondent in person, outside normal office hours. I believe that this conclusion is consistent with the law as it is understood in relation to time limits for filing and service, when it comes to the operation of the Limitation Act 1980."
"Quite apart from these considerations, I would construe section 28 as requiring notice to be given of an actual appeal, not of an intention to appeal. It is clear that filing the notice of appeal with the court does not satisfy section 28. If that was what Parliament had intended, it would have referred to the filing of notice of an appeal, not the giving of notice. The giving of notice must be to the respondent or respondents. The words are 'Notice of an appeal must be given ..... ', not 'notice of an intention to appeal'. Quite different wording is used in the Act to signify an intention to appeal: see sections 30 (1) and 33A (1). The considerations to which I referred in paragraphs 14 to 16 above fortify my view that this is the correct construction of sections 26 and 28.
18 Issue (i) above was not argued in Mucelli. Subject to one matter, however, my interpretation of the requirements of sections 26 and 28 is consistent with, and fortified by, the majority opinions. I have already referred to paragraphs 67 and 68 of Lord Neuberger's opinion. In paragraph 70, in referring to certain of the submissions to the effect that filing of notice of appeal without serving it sufficed, he said:
'It was also claimed that it would be inconvenient if section 26 (4) referred to two events, rather than one. In my view, there is nothing in that: it requires filing and then service, so, in practice, it logically can be treated as only referring to service.'
The italics are mine. If service follows filing, what can and should be served is the notice of appeal with its court stamp and reference number.
19 I also ask, rhetorically, what if the draft notice of appeal served differs from that filed with the court? If service follows filing, and is of a sealed notice, the question cannot arise. If service precedes filing, it may arise."
"67 This point is reinforced by consideration of section 35. The provisions of section 35 (1), (3) and (4) mean that the consequence of not giving a notice of an appeal within the time prescribed by section 26 (4) is that the extradition must take place very promptly. Lord Phillips pointed out in argument, if section 26 (4) only requires the appellant's notice to be filed within the 7 days referred to, then there is no clear and immediate sanction for failing to serve the appellant's notice on the authority. In England and Wales, one would be thrown back on CPR 52.4 (3)," -
"and if its requirements are not met, there would be likely to be delays due to consequential applications and arguments resulting from non-compliance with that rule.
68 Fifthly, quite apart from this, if section 26 (4) does not extend to service of the notice of appeal in England and Wales and in Northern Ireland, the authority seeking to enforce the warrant may well assume that section 35, with its very tight time limit in sub-section (4), has been triggered in circumstances where it has not. This is because, if section 26 (4) only extends to filing an appeal notice, SOCA may be unaware that an appeal has been brought within the prescribed time, and will therefore proceed promptly with the extradition - especially in the light of section 35 (5) - when, in fact it would be inappropriate to do so. It is no doubt true that, in many cases, SOCA will have been informally alerted to the probability of an appeal, and, indeed, that SOCA can check whether an appeal has been brought. However, those factors do not seem to me to meet the force of the point that section 35 does not sit easily with the notion that section 26 (4) applies only to filing an appeal, and not to serving the appellant's notice."
"70 ..... If section 26 (4) does so apply, there is no 'pending' appeal unless and until the notice is served in time. It was also claimed that it would be inconvenient if section 26 (4) referred to two events, rather than one. In my view, there is nothing in that: it requires filing and then service, so, in practice, it logically can be treated as only referring to service. It was also said to be rather harsh if there is a 7-day time limit under section 26 (4) for service, particularly as some people who wish to rely on the right of appeal may have limited English and may be incarcerated. But, on any view, there is such a time limit for filing, and it is not greatly different if it also applies to service. In any event, an identical time limit applies equally, by virtue of section 28 (5), to a case where the appeal is against a refusal to extradite."
"45 Stanley Burnton LJ at [paragraph] 18 emphasises that Lord Neuberger at [paragraph] 70 said that s.26 (4) requires 'filing and then service'. I, with respect, do not find this argument persuasive. Lord Neuberger was there addressing an argument that it would be inconvenient if s.26 (4) referred to two events (filing and service) rather than just one. His response, in effect, was that this was not so. Since one involved the other, there was in practice a single event at which the Act was directed. In England this came about because service involved a prior filing. I do not understand him at this point to have had in mind the Scottish sequence. He could, if he had done so, have given an equivalent answer. In Scotland, filing necessarily involves prior service so in that jurisdiction as well the time limit is directed at a single act. If my Lord was right, Lord Neuberger was in this passage requiring Scottish appellants to serve twice. As I have said, I do not believe that this was what he intended."
"14 Nothing in the rules precludes service on the CPS or on the Respondent of an Appellant's Notice which has not been issued (or stamped as received) by the Administrative Court Office as Mr Justice Collins pointed out in dialogue with counsel during a hearing on 6 April 2009 conducted by video link when, it appears to me, at least initially the CPS thought that it could waive service. Alerted by the court, counsel preserved the jurisdiction point and Mr Justice Collins granted legal assistance so that it could be argued or at least ventilated."
"The trial court - No 5 in Marbella, Spain - is carrying out a judicial inquiry since 28 April 2010 concerning a group of British citizens resident in Costa del Sol, namely two British citizens who are serving a sentence of prison in the third degree for drugs trafficking and who are free on weekends and - through watching thoroughly their telephone conversations under the court order according to established law - we have found out that they are planning an international transport of hashish between Morocco and England in a ship that should be loaded in front of the Moroccan coast by means of Zodiac motor boats and then should be headed to England for the hashish to be unloaded on the embankment of a house that has been rented on the coast by the organisation for that purpose. From the whole telephone conversations we can appreciate that the planning of the transport of hashish is in a very advanced stage because they have mentioned on the telephone the dates of 15 and 16 September in Morocco in order to arrive in England ten days later and also co-ordinates for landing and stoppage.
Concerning Stephen Kane, he would be in charge of the English part of the organisation to collect the hashish in the landing gear in England."
"During the months of August and September Mr Stephen Kane maintained telephone contact with Mark Edward Vango, a member of the organisation in Spain"
"During the months of August and September Mr Stephen Kane maintained telephone contact with Mark Edward Vango, a member of the organisation in Spain. During one conversation Mr Kane informs Mark Vango of his intention to be present for the arrival of the drugs in the United Kingdom in order to receive them. There were other conversations between the pair in which they discussed financial issues relating to payment for the house in Cornwall. In conversations between the pair on 13 September 2010 they discussed the imminence of the operation and talked about the fact that the captain on his way to pick up the cargo. In another on 16 September 2010 Mark Vango asked him if on his way in reference to whether he is already heading for the house in Cornwall."
"7 A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
MR MORRIS: I am grateful. The appellant is publicly funded. May I ask for detailed assessment of his costs?
MR JUSTICE COLLINS: Yes. (Pause) Is there anything else?
We now have the interesting position of two conflicting decisions which you cannot take any further because I have dismissed the appeal. As you appreciate, there is nothing to certify on that aspect, but you have won.
MR STERNBERG: Indeed. I know my friend and I looked briefly at Section 32 of the Act before coming to receive judgment. It seems to me certainly that that does not require a party, if a party wishes to trouble the Supreme Court, to have lost or to have had an appeal dismissed.
MR JUSTICE COLLINS: This is the trouble. I take the point. It is unfortunate that there are now two views. Someone in due course, I suppose, is going to have to decide which is right.
MR STERNBERG: I make it clear I am not going to - - - - -
MR JUSTICE COLLINS: I do not think you can unfortunately. I think it is obviously of some importance to decide. Anyway I have made clear what my views are. It is not as polished as I would have liked but I will make some corrections when I get the transcript.
MR MORRIS: On my reading of Section 32, it is possible for either of us to apply to certify a point of law.
MR JUSTICE COLLINS: Yes. You can apply but as far as you are concerned I would not conceivably certify a point on the merits of the appeal.
MR MORRIS: No, but given the - - - - -
MR JUSTICE COLLINS: But you have won on that so why certify? You do not want to appeal against that. You have won on the jurisdiction point.
MR MORRIS: Yes.
MR JUSTICE COLLINS: There is nothing for me to certify. You cannot appeal against a decision that goes in your favour, can you?
MR MORRIS: Certainly it seems to be difficult. Nevertheless if there is to be an application - - - - -
MR JUSTICE COLLINS: I do not think I can, particularly as you are on public money anyway. You are not prejudiced by my decision on jurisdiction, are you?
MR MORRIS: No.
MR JUSTICE COLLINS: That is what you wanted.
MR MORRIS: Well, yes.
MR JUSTICE COLLINS: How can you appeal?
MR MORRIS: The point of the appeal would be to seek guidance from the House of Lords on that particular issue.
PRESIDENT: That is matter for the Crown Prosecution Service in due course, not for you. It does not help you, does it?
MR MORRIS: No.
MR JUSTICE COLLINS: Unless it means you can stay here while the appeal is pending. That would be something I would not contemplate. If you are applying, you are not succeeding.