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
		05/07/2016

Mr Justice Cranston:

Introduction

1. These are three applications by judicial authorities for permission to appeal under Part 1 of the Extradition Act 2003 ("the 2003 Act"). Two preliminary issues have been raised by the Administrative Court Office. First, whether an extradition appeal notice which is served by a judicial authority electronically after 2.30pm on the final day for serving is to be regarded as having been properly served on all necessary parties for the purposes of rule 50.19 of the Criminal Procedure Rules ("Crim PR"), in light of the electronic service provisions set out in rule 4.11(2) of these rules; and secondly, if not, whether in such circumstances the court has the power to grant an extension of time for service of the appeal notice given that the wording of section 26(5) of the 2003 Act, which allows time to be extended in an appeal brought by an individual, is not replicated in section 28.

Statutory framework

2. Appeals by those ordered to be extradited in cases falling under Part 1 of the 2003 Act are governed by section 26 of the 2003 Act. This sets down a 7-day time limit, which can be extended by the court. Section 26(4)-(5) is as follows:

"(4) Notice of application for leave to 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.

(5) But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given."

3. The opening clause in subsection (4), "Notice of application for leave to appeal", was substituted for the words in the 2003 Act as originally enacted, "Notice of an appeal", once a leave stage for appeals was introduced into the 2003 Act by the Anti-social Behaviour, Crime and Policing Act 2014: see Schedule 11, Part 4. More importantly for present purposes, that Act also introduced subsection (5), a limited discretion for this court to allow out of time appeals: section 160(1)(c) of the 2014 Act. Section 26(5) has been authoritatively interpreted by the Divisional Court (Burnett LJ and Cox J) in Szegfu v. Hungary [2015] EWHC 1764 (Admin); [2016] 1 WLR 322.
4. The provisions are different from appeals by judicial authorities against decisions to discharge a requested person in Part 1 cases. The effect of section 28 (5) of the 2003 Act, combined with rule 50.19(3)(a) of the Criminal Procedure Rules, is that any notice of application for leave to appeal brought by a judicial authority must be given within 7 days of the magistrates' court decision, starting with the date of that decision. Section 28 reads as follows:

"(5) Notice of application for leave to 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 for the person's discharge is made."

5. Section 210 of the 2003 Act enables the making of rules of court as to the practice and procedure to be followed in connection with proceedings under it. Until 2014 extradition appeals fell under Part 52 of the Civil Procedure Rules, modified by Practice Direction 52D, paragraph 21.1. The rules for extradition appeals are now in part 50 of the Criminal Procedure Rules. Rule 50.19(3)(a) of those rules provides:

"(3) An authority or territory seeking the defendant's extradition which wants to appeal against an order for the defendant's discharge must serve the appeal notice –

(a) not more than 7 days after the day on which the magistrates' court makes that order, starting with that day, if the order is under Part 1 of the Extradition Act 2003…"

The effect of rule 50.19(1)(a)-(b) is that the appeal notice in such appeals must also be served on the Court, the requested person and the National Crime Agency ("the NCA"). Rule 50.17(b) provides that the High Court may shorten a time limit or extend it even after it has expired, unless that is inconsistent with other legislation.

6. Earlier in the Criminal Procedure Rules is Part 4 entitled "Service of Documents". It applies to the service of every document in a case to which the rules apply. Rule 4.1(2) reads:

"(2) The rules apply subject to any special rules in other legislation (including other Parts of these Rules) or in the Practice Direction."

Under rule 4.3(1)(e) a document may be served on the court by handing it to a court officer with authority to accept it at the relevant court office, and rule 4.3(4)(c) states that in relation to an extradition appeal in the High Court this is the Administrative Court Office of the Queen's Bench Division of the High Court. The hours during which the Administrative Court Office is open to the public are set out in Practice Direction 2A of the Civil Procedure Rules as 10am to 4.30pm: 2APD2.1(2)(a).

7. There are special rules for electronic services under the Criminal Procedure Rules. By rule 4.6(2) of the Criminal Procedure Rules a document can be served (a) by sending it by electronic means to the address which the recipient has given, or (b) by depositing it at an address to which the recipient has been given access. Rule 4.11 reads in its relevant parts as follows:

"4.11.—(1) A document served under rule 4.3… is served on the day it is handed over.

(2) Unless something different is shown, a document served on a person by any other method is served –

…

(d) in the case of a document served by electronic means—

(i) on the day on which it is sent under rule 4.6(2)(a), if that day is a business day and if it is sent by no later than 2.30pm that day,

(ii) on the day on which notice of its deposit is given under rule 4.6(2)(b), if that day is a business day and if that notice is given by no later than 2.30pm that day, or

(iii) otherwise, on the next business day after it was sent or such notice was given; and

(e) in any case, on the day on which the addressee responds to it, if that is earlier.

…

(4) Where a document is served on or by the court officer, 'business day' does not include a day on which the court office is closed."

8. The position for electronic service under the Civil Procedure Rules is different. Paragraph 4.2 of Practice Direction 5B provides:

"4.2 Where an e-mail, including any attachment, is sent pursuant to this practice direction and the e-mail is recorded by HMCTS e-mail software as received by the court at or after 4.00pm and before or at 11.59pm –

(a) the date of receipt of the e-mail will be deemed to be the next day the court office is open;

(b) the date of issue of any application will not be before that date; and

(c) any document attached to that e-mail will be treated as filed on that date."

9. However, that Practice Direction only applies to parties communicating and filing specified documents with the court by e-mail in proceedings to which the Civil Procedure Rules apply. It has no application to extradition matters, which now fall under the Criminal Procedure Rules.

The jurisprudence

10. The time limits for requested persons to appeal orders of extradition have been considered in a number of cases. Mucelli v. Government of Albania; Moulai v. Deputy Public Prosecutor in Creteil, France [2009] UKHL 2, [2009] 1 WLR 276 was a decision under the earlier version of section 26, when there was no discretion in the court to extend time. The House of Lords held by a majority (Lord Rodger of Earlsferry dissenting) that the requirement in section 26(4) of the Act that a notice of appeal be given in accordance with rules of court within the statutory 7 day period meant that it had both to be filed in the High Court and served on all respondents to the appeal within that period. Failure to comply with that requirement was fatal to any appeal. The House of Lords also held that rules of court were incapable of cutting down the statutory period for appeals. Lord Neuberger (with whom the other Law Lords agreed on this point) said:

"82 … 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."

11. Lord Neuberger then turned to the situation when, for example, the court or the respondent's office is closed for business during the whole of the last day of the statutory period because it is Christmas Day or a bank holiday, or is closed in the late afternoon on the last day. In the first example, he said that a notice would be validly filed or served if it is given at any time on the first succeeding business day on which the office is open. That a fax transmission could be effected at any time did not affect the position: at [84]. As to the second situation, when the court or the respondent's office is closed in the late afternoon of the last day, Lord Neuberger said (Lords Carswell and Brown agreeing):

"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 seven 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."

12. Moulai's case was one of the joined cases in Mucelli, where on the final day of the 7-day statutory appeal period the appellant's notice was filed at the court at 3.45pm but served on the Crown Prosecution Service (legal representatives for the judicial authority) ("CPS") by fax a few minutes after 4.00pm. It was therefore deemed to have been served on the following business day in accordance with the provision of the Civil Procedure Rules, then applicable, with the consequence that the appeal was filed outside the statutory time limit. Lord Neuberger, with whom the others agreed, held that service via fax after 4pm constituted proper service given that the notice of appeal had been served on the respondent at its proper address before midnight on the final day of the 7-day period required by section 26(4) of the Act: at [90].
13. The approach in Mucelli was not disturbed in the subsequent case of Pomiechowski v. District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604. There the Supreme Court declined to depart from it insofar as it requires not merely the filing, but also some form of notice, of an appeal being given to the respondents, both within the permitted period [17]. Giving the judgment of himself, Lords Phillips, Kerr and Wilson, Lord Mance said at paragraph [18]:

"The statute requires notice of an appeal to be given in accordance with rules of court, so any failure to comply with the rules of court requires the appellant to seek relief from the court to cure the irregularity."

14. On the question of what constitutes notice, Lord Mance held that a generous view should be taken of the form of notice which is required, bearing in mind the shortness of the permitted period and the fact that what really matters is "that an appeal should have been filed and all respondents should be on notice of this", sufficient to warn them that they should not proceed with extradition pending an appeal. However, Lord Mance added at [18]:

"This should not however be taken as a licence to appellants to give informal notices of appeal. Any potential appellant serving anything other than a complete copy of the sealed Form N161 will need to seek and will depend upon obtaining the court's permission to cure the position under the rules."

15. The consequences of failing to serve the authority responsible for the process of removing extraditees with an appeal notice within the statutory time period arose in Aldhouse v. Royal Government of Thailand, Secretary of State for the Home Department [2012] EWHC 191 (Admin), in the context of a request falling under Part 2 of the Act. In that case the Home Office submitted that in order for a notice of appeal to have been properly given pursuant to section 103(9) of the Act it had to be given not only to the High Court and the CPS acting on behalf of the respondent judicial authority but also to the Home Office pursuant to the requirements of Part 52.2 of the Civil Procedure Rules and Practice Direction 52. The Divisional Court (Sir John Thomas PQBD and Ouseley J) held that it would require clear words to make the service of a notice of appeal on a person who is not a respondent a prerequisite of the court's jurisdiction to entertain the appeal: at [35]. The decision in Aldhouse was followed by a differently constituted Divisional Court (Moses LJ and Davies J) in Lumenica v. Government of Albania [2012] EWHC 2589 (Admin), at [14].

Notice of appeals

16. The respondent Waldemar Czubala was discharged from extradition proceedings pursuant to a conviction warrant for offences of obtaining property by deception by District Judge Zani on Friday 15 April 2016. Time for lodging an appeal expired on Thursday, 21 April 2016. The respondent Grzegorz Kowalewski was discharged from extradition proceedings pursuant to an accusation warrant for offences of conspiracy to supply substantial quantities of class A and class B drugs by District Judge Jabbitt on Tuesday, 24 May 2016. Monday, 30 May 2016 was the seventh day, but it was a bank holiday. The respondent James Williams was discharged from extradition proceedings pursuant to a conviction warrant in respect of one offence of murder by District Judge Purdy on Friday, 27 May 2016. Time for lodging an appeal expired on Thursday, 2 June 2016.
17. In all these cases, the CPS acting on behalf of the three judicial authorities filed appeals with the Administrative Court. Under an arrangement with the CPS, which, amongst other things, guarantees that the appropriate fee will be paid, this was done electronically. Notices of appeal in these cases were filed at the ACO and served on the respondent requested persons by email on the seventh, the last day under section 28(5). The times the Administrative Court received the emails containing the three applications for permission to appeal were as follows:

(i) Czubala, at 6:12pm on 21 April 2016;

(ii) Kowalewski, at 4:25pm on 31 May 2016 (this was the seventh day by virtue of 30 May 2016 being a bank holiday); and

(iii) Williams, at 4:04pm on 2 June 2016.

18. The CPS served the notice of appeal on Czubala in the same email as that sent to the Administrative Court Office at 6:12pm; on Kowalewski, in a separate email sent at 4:25pm on 31 May; and on Williams, at 4:04pm on 2 June 2016. In Czubala the application for permission to appeal was issued for service on 25 April 2016, in Kowalewski, on 1 June 2016 and in Williams, on 2 June 2016. It does not appear that either the Administrative Court Office or the respondent in any of the appeals responded to the electronically filed appeal notice on the day on which it was emailed.
19. By rule 50.19(1)(b) of the Criminal Procedure Rules, the NCA must be notified of an appeal; it is the authority with the responsibility for removing persons whom the court has ordered to be extradited. An attempt was made to serve it with the notice of appeal in Czubala on 21 April 2016, but due to a typographical error in the email address, the notice of appeal was sent on 22 April 2016 at 9:04 am. With Kowalewski, the NCA had been notified on 24 May 2016 by Westminster Magistrates' Court that the CPS were lodging an appeal, but this not was confirmed by email until 1 June 2016. The NCA was notified on 27 May 2016 that the CPS intended to lodge an application for permission to appeal regarding Williams.

First issue: electronic filing and service

20. For the 1^st and 3^rd respondents, Mr Josse QC, whose submissions were supported by Ms Stephenson on behalf of the 2^nd respondent, submitted that Mucelli's case [2009] UKHL 2, [2009] 1 WLR 276 was concerned with applications by requested persons to appeal under section 26 and did not relate to appeals brought by a judicial authority under section 28. In any event, he continued, Lord Neuberger's remarks are obiter and so not binding on this court. Both Mucelli and Pomiechowski pre-date the addition of section 26(5) to the Act – the limited power to extend time for requested persons – and were to avoid obvious injustice to requested persons at risk of the draconian consequences of extradition. Until the insertion of section 26(5), there was a real danger of injustice to vulnerable or unrepresented requested persons and to those who could not quickly obtain representation, in particular when in custody. The present appeals, Mr Josse contended, are of a different nature, being brought by the CPS on behalf of judicial authorities, public bodies in no way comparable to requested persons and not facing the same obstacles, risks or consequences. As Mr Josse put it, it does not follow that the problem identified in Mucelli, which Lord Neuberger sought to circumvent in relation to section 26 appeals, could be said to have equal application to section 28 appeals.
21. In my view, the notices of appeal in these three cases were properly given under section 28(5) of the 2003 Act. Mucelli is binding authority. The words of section 28(5) for appeals by judicial authorities mirror those of section 26(4) for appeals by requested persons and, despite their different context, I cannot see how a different interpretation is possible. Lord Neuberger put the issue as one of principle: rules of court cannot curtail a statutory time limit. In Moulai, Lord Neuberger applied this principle and held that the service by fax after the time provided in the rules was good service since it was within the 7-day period. In any event, the electronic filing provisions in Part 4 of the Criminal Procedure Rules are expressly subject to statutory provisions such as section 28(5) as a result of rule 4.1(2). Consequently, the court has jurisdiction in each of the appeals.
22. As to the injustices for requested persons identified by Mr Josse, and in his submission pressing for a different approach to that in Mucelli for appeals by judicial authorities, the answer is threefold. First, Lord Neuberger seemed to accept at paragraph 85 of his judgment that a requested person filing or serving the notice during office hours would be at a disadvantage to one doing so later by fax or, one could add, by email. Secondly, there is nothing to prevent a law firm acting regularly for requested persons reaching a similar agreement with the Administrative Court Office about email filing appeals as the CPS has in acting on behalf of judicial authorities, as long as the appropriate fee can be paid. Thirdly, requested persons now have the limited protection for late filing and service offered by section 26(5) of the Act, which is not available to judicial authorities.
23. Mr Josse raised a further point that the appeal notices in these cases were not served on the requested persons in a proper form. He accepted that there is no requirement in the Criminal Procedure Rules for an appellant's notice to be sealed before it is served on a respondent, as previously required. However, in his submission, notices of appeal sent to the court and the respondent at the same time are not properly filed at court. All that is being served on the respondent is a notice of intention to appeal. Mr Josse referred to the words of Lord Mance in paragraph 18 of Pomiechowski, that what really mattered was that an appeal should have been filed and all respondents were on notice of it.
24. I cannot accept this submission. Rule 50.20 of the Criminal Procedure Rules does not require sequential filing and service. For the judicial authorities Ms Farrant pointed out that Lord Mance's analysis in paragraph 18 of Pomiechowski reflected the pre-2014 position. Under the Civil Procedure Rules, appellants must serve sealed notices on respondents: 52 CPD.3.4. Thus serving a notice had to follow filing. However, sealing is not required under the Criminal Procedure Rules. Moreover, as Lord Mance highlighted, the important point is that a respondent know that an appeal is being taken. In these cases that was obvious, either because the respondents received the appeal notice at the same time as it was filed with the court, or shortly afterwards.
25. Mr Josse's final point was that, in relation to the respondent Mr Williams, a UK national, the words in section 28(5) – "must be given in accordance with the rules of Court" - needed to be read strictly given Lord Mance's comments in Halligen's case, one of the appeals dealt with in Pomiechowski. There the Supreme Court held that as a UK citizen Mr Halligen's appeal fell with Article 6.1 ECHR and his common law right to a fair determination of his case. Pursuant to section 3(1) of the Human Rights Act 1998 the statutory provisions concerning appeals had therefore to be read subject to the qualification that the court should have a discretion in exceptional cases to extend the time for filing and serving a notice of appeal.
26. I cannot see how in Mr Williams's case this should affect giving effect to the statutory provisions governing the time limits for appeals by a judicial authority. As I have said the rules in part 4 of the Criminal Procedure Rules about electronic filing and service are expressly made subject to statutory provisions. The statutory provisions give judicial authorities seven full days to appeal. Mr Williams's undoubted Article 6.1 and common law rights are not affected.
27. In the light of Aldhouse and Lumenica, Mr Josse did not pursue any point in relation to the late service on the NCA of the appeal notices.

Second issue: extension of time

28. As regards the second issue identified by the Administrative Court Office there is simply no statutory or other power I can see to extend time for a judicial authority bringing an appeal pursuant to section 28 of the Act.

Conclusion

29. In these three cases the appeals were both filed with the court and served on the respondents within the statutory 7-day period. The court has jurisdiction to consider them. The applications will be dealt with on the papers in the ordinary way.