Kevin Richard Halligen v Secretary of State for the Home Department Government of the United States of America (Interested Party)
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr. Justice Stadlen,Lord Justice Laws |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWHC 1584 (Admin) |
| Docket Number | Case No: CO/135253/2010,CO/135253/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 June 2011 |
and
[2011] EWHC 1584 (Admin)
Lord Justice Laws AND Mr. Justice Stadlen
Case No: CO/135253/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Vullo and Mr David Patience (instructed by Carter Moore Solicitors) for the Appellant
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: 19 th April 2011
There is before the Court a preliminary issue in an appeal by the Appellant, Kevin Halligen, against a decision by the Secretary of State for the Home Department made on 22 December 2010 to order his extradition to the USA. The preliminary issue is whether the court has jurisdiction to entertain the appeal or whether, as contended by the Respondent, the Secretary of State, and the Interested Party, the Government of the United States of America, the appeal is statute barred. The appeal came on the papers on 1 March 2011 before Pill LJ sitting in the Divisional Court and he ordered that there be a hearing on this preliminary issue.
The principal question on which this preliminary issue turns is whether the requirements as to service of the notice of appeal, with which on its face the Appellant accepts that he did not comply, should nonetheless on the facts of this case be taken as having been complied with.
The relevant chronology is as follows:
(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.
Legal Framework
Section 108 of the 2003 Act provides:
"(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)."
CPR part 52 .2 provides that:
"All parties to an appeal must comply with practice direction 52."
Practice direction 52, paragraph 22.6A(7) provides:
"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."
Practice direction 52, paragraph 22.6A(12) provides:
"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."
CPR 52.4 (3) provides;
"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."
It is accepted on behalf of the appellant that the decision in Mucelli v Government of Albania and Moulai v Deputy Prosecutor in Creteil, France [2009] 1WLR 276 is authority for the proposition that giving notice, for the purposes of the statutory appeals process under Part 2 of the 2003 Act, entails both filing and serving notice of appeal and that the fourteen day permitted period for giving notice cannot be extended by the Court invoking its powers under the Civil Procedure Rules ('CPR'). The provision with which the House of Lords was concerned was Section 26 of the 2003 Act.
Section 26 of the 2003 Act provides as follows:
"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.
It will be observed that the critical language in section 108(4) is the same as that in section 26(4): "Notice of appeal under this section must be given in accordance with rules of court before the end of the permitted period". The difference is that in section 26 the end period is 7 days starting with the day on which the order sought to be appealed is made, whereas in section 108 it is fourteen days starting with the day on which the Secretary of State informs the person of the order under section 100(1). This reflects the fact that under section 26 appeal lies against an order of the judge, whereas under section 108 it lies against an order of the Secretary of State who has ordered his extradition.
In Mucelli v Government of Albania Lord Brown of Eaton-under-Heywood identified what he described as the two core questions at the heart of the two appeals in that case as being:
"(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).
In both Moulai and Mucelli the notice of the proposed appeal was filed with the court within the specified time. The only issue was whether the notice of appeal in each case had been served within the specified time limit.
Lord Brown, with whose speech Lord Carswell agreed, concluded that section 26(4) (the analogous provision in the Part 1 of the 2003 Act) required the notice of any appeal to be both filed and served within the stipulated seven-day period and that being a statutory time limit this could not be extended. Accordingly, the court's ordinarily procedural powers set out in the CPR would only operate insofar as would be consistent with the filing and serving of the notice before the statutory time limit expired.
"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...
To continue reading
Request your trial
-
Lukaszewski and Others v The District Court in Torun, Poland and Others (No 2)
...Phillips, President Lady Hale Lord Mance Lord Kerr Lord Wilson THE SUPREME COURT Easter Term On appeal from: [2011] EWHC 2060 Admin; [2011] EWHC 1584 Admin Appellant Edward Fitzgerald Ben Watson Amelia Nice (Instructed by Kaim Todner Solicitors Ltd) Respondent John Hardy QC Ben Lloyd (Inst......
-
The Government of the United States of America v Keith Stuart Ashley Wood
...the conclusion of the Appellate Committee in Mucelli reaffirmed in similar language by Lord Mance in paragraph 18 of Halligen v. Secretary of State for the Home Department [2011] 1WLR 1604, that the "notice of appeal" must be served on the respondent. 30 CPR 52.1 (3)(e)(i) requires two cond......