Gercans v Government of Latvia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MRS JUSTICE SWIFT |
| Judgment Date | 27 February 2008 |
| Neutral Citation | [2008] EWHC 884 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11607/2007 |
| Date | 27 February 2008 |
[2008] EWHC 884 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice Richards
Mrs Justice Swift Dbe
CO/11607/2007
Miss C Lloyd-Jacob (instructed by Whitelock & Storr) appeared on behalf of the Claimant
Miss C Powell (instructed by the CPS) appeared on behalf of the Defendant
(As approved)
The appellant is the subject of a European arrest warrant issued by the respondent court. The case falls within Part 1 of the Extradition Act 2003. On 20th December 2007 District Judge Nicholas Evans ordered the appellant's extradition. The appellant seeks to appeal to the High Court against that order under section 26 of the 2003 Act. The matter has been listed before us today for the sole purpose of deciding whether there is jurisdiction to entertain the appeal. That question depends on the application of section 26(4) which provides that:
“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 seven days starting with the day on which the order is made.”
The Practice Direction to CPR Part 52 provides in paragraph 22.6A that the appellant's notice must be filed and served before the expiry of seven days, starting with the day on which the order is made. Thus, it reflects the terminology of the statute.
The evidence is that a representative of the appellant's solicitors went to the Royal Courts of Justice on 24th December to lodge the notice of appeal but she found the office closed (indeed, the building was locked) and was unable physically to lodge the papers. On the same day, she sent an email to the Administrative Court Office explaining what had happened and saying that a member of the firm would lodge the papers as soon as possible. The court office was, of course, also closed on the following two days, 25th and 26th December. It reopened on 27th December and on that day a different representative of the appellant's solicitors attended the court office and lodged the papers.
The papers were then served on the Crown Prosecution Service, acting for the requesting court, by a letter from the appellant's solicitors dated 27th December and received on 31st December. In addition, on 27th December a fax was sent by the appellant's solicitors to the Crown Prosecution Service with a cover sheet and the front page of the notice of appeal, the fax containing an indication that the full enclosure had been sent by Document Exchange.
The objection raised is that in those factual circumstances notice of appeal was not given within the permitted period of seven days laid down by section 26(4), a period which it is said expired on 26th December. In District Court of Vilnius City v Barcys [2008] 1 AER 733, the court was dealing with an appeal by the requesting state under section 28 of the 2003 Act which contains in subsection (5) a time limit materially identical to that applying under section 26(4) to an appeal by the requested person. The notice of appeal in Barcys had been filed and served outside the seven day period. The court held that there was no power to extend the statutory time limit and that the late filing and late service of the notice of appeal were each sufficient to deprive the court of jurisdiction to entertain the appeal.
In relation to late filing of the notice, the court was understandably concerned about reaching such a conclusion, because the reason for the one day delay in filing was the wholly unexpected closure of the court building as a result of an electricity black-out on the day when the attempt to file had first been made. Both members of the court nevertheless took the view that on the true construction of the legislation there was no power in the court to do anything about the situation. The same concern did not arise in relation to late service which lay wholly within the control of the appellant or his solicitors.
In R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765 Admin, Collins J applied Barcys to an appeal by a requested person under section 26. It was another case in which there was late filing and late service of the notice of appeal. There, too, it was held that the court had no jurisdiction to entertain the appeal.
These issues were examined further by a court over which I presided in Mucelli v The Government of Albania [2007] EWHC 2632 Admin, a case under Part 2 of the 2003 Act but where the relevant statutory provisions were again materially identical, save that the permitted period under Part 2 is 14 days rather than seven days. In Mucelli the court looked in some detail at the possibility of dispensing retrospectively with the service of the notice of appeal (as distinct from extending time for service, since that had been ruled out in Barcys). The court held that the discretion existed, but it would not be proper in the circumstances to exercise that discretion.
Before us, Miss Lloyd-Jacob has advanced on the appellant's behalf various arguments why the court should assume jurisdiction, notwithstanding the apparent filing and service out of time. In her written submissions she has suggested the grant of an extension of time. She has espoused the route examined in Mucelli of retrospective dispensing of service. She has raised a possible alternative claim which was mentioned in Mendy, one that does not in itself amount to an appeal under the 2003 Act. She submits that the court should find some way of avoiding a rigid application of the rules which, it is submitted, would remove the...
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Mucelli v Albania
...which can be waived under the rules. 70 During the hearing we became aware of another judgment of the Divisional Court in Gercans v The Government of Latvia [2008] EWHC 884 (Admin) (Richards LJ and Swift J). Following the hearing we received a copy of the judgment. On Thursday 20 December ......
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Mucelli v Albania
...must be filed and served before the expiry of 14 days, starting with the day on which the order for discharge is made." In Gercans v The Government of Latvia [2008] EWHC 884 Richards LJ remarked at para 2 that this wording reflected the terminology of the statute. I agree. 3 Accordingly I c......
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Stockton-on-tees Borough Council v Orangzabe Latif
...my view, that there is no power to extend the statutory time limit in section 28(5).” 17 That case was followed in the case of Gercans v. The Government of Latvia [2008] EWHC 884 (Admin) and indeed has been followed in other cases as is apparent from the judgments in that case. 18 Faced wit......
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Arunthavaraja v Administrative Court Office Paphos District Court, Cyprus (Interested Party)
...that. As to the latter point, see in particular District Court Of Vilnius City v Barcys [2007] EWHC 615 (Admin), albeit that in Gercans v Government of Latvia [2008] EWHC 884 (Admin) I expressed some doubt on the point and indicated that it ought perhaps to be re-examined. On the basis of t......