R Kane v Trial Court No 5 Marbella, Spain
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 17 March 2011 |
| Neutral Citation | [2011] EWHC 824 (Admin) |
| Date | 17 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/12469/2010 |
[2011] EWHC 824 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Collins
CO/12469/2010
Mr Robert Morris appeared on behalf of the Appellant
Mr Daniel Sternberg appeared on behalf of the Respondent
(As approved)
MR JUSTICE COLLINS: This is an appeal against a decision of District Judge Evans on 26 November 2010, ordering the appellant's extradition to Spain to face a charge of involvement in the international trafficking of hashish from Morocco to England. Four arrest warrants were issued by the Spanish court against the appellant and three co-defendants. All four challenged extradition at the hearing before the district judge on the ground that the warrant did not comply with Section 2 (4) (c) of the Extradition Act 2003 in that it did not specify properly what was required by that sub-section.
Section 2 (4) (c) provides that the warrant must contain:-
"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."
The three co-defendants have either not appealed or withdrawn their appeal. That of course should not be held against this appellant if there is merit in the appeal that he seeks to maintain. I must bear in mind that the warrants are individual warrants and the description in each case, particularly of the involvement in the offence of the individual in question, is somewhat different.
Two points arise in this appeal. First, the respondent asserts that there has been a failure to comply with Section 26 (4) of the 2003 Act in that notice of appeal was not properly given. Secondly, the appellant contends that the district judge was wrong to conclude that there was compliance with Section 2 (4) (c). The allegation that there has been a failure to comply with Section 26 (4) made by the respondent goes to the jurisdiction of the court. If the notice of appeal was not properly given so as to comply with Section 26 (4), this court has no jurisdiction to consider the appeal. In those circumstances it seemed to me convenient to deal with that issue first. I will do so in this judgment.
Section 26 (4) of the Act provides as follows:
"(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."
There are precisely the same provisions in Section 28 of the Act which relates to an appeal by the respondent where a district judge has discharged the individual, the subject of the warrant, at the extradition hearing. The wording in each is identical so the approach to each is identical.
Section 26 (4) was construed by the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276. Essentially, the House of Lords by a majority of four-to-one decided that "given" in Section 26 (4) meant filed in the court and served on the respondent and both the filing and the service had to take place within the seven days. The statute allowed seven days and that period could not be cut down by the rules or any practice direction made under the rules. Thus, an individual must have the full period of seven days to enable him to give notice of appeal, namely to file in court and serve on the respondent. In this case the seven days expired on 2 December 2010.
The circumstances relating to giving of the notice were these so far as material. At 10.55 on the morning of 2 December the appellant's solicitors sent a copy of the notice of appeal on a Form N161, a copy of the grounds and a copy of the district judge's ruling to the respondent the Crown Prosecution Service. That was by fax. Thereafter —the time is not precisely recorded – the solicitors received from the court the sealed copy of the notice. It seems that they may well have filed the notice of appeal with the court after they had sent the documents to the Crown Prosecution Service at 10.55. I should say that in the context of the Administrative Court the word "sealed" is perhaps slightly misleading. There is no seal but there is a court stamp which indicates that the court has issued an appeal or a claim, on the date indicated by the stamp. The court has an obligation to make a note of the time at which any appeal is filed with it. If it is done by fax or e.mail there is no problem since the time is clear on that. If it is done in person or by post then it may be important to identify the time. However that is not material in the circumstances of this case.
At 12.50 that same day —2 December —the solicitors sent a fax of the first page of the form showing that it had been stamped by the court and included a covering letter which made it clear, as indeed was obvious, that the balance of what had been filed with the court was what had already been served on the Crown Prosecution Service.
The Crown Prosecution Service contend that that is non-compliance because it ought to have received a stamped copy of the notice of appeal as filed in the court because it was not possible, within the meaning of Section 26 (4), to serve a copy of a notice of appeal before that appeal had been filed in the court. They further submit that sending a copy only of the front sheet after the court had stamped it was insufficient.
There are thus two questions that arise. First, was the service at 10.55 of the notice of appeal sufficient to comply with the requirement of service within the meaning of Section 26 (4)? Secondly, if it was not, was the service of the stamped copy of the front page later that day at 12.50 sufficient compliance? Only if neither was sufficient would this court lack jurisdiction.
The respondent places reliance on a decision of the Divisional Court in Government of Poland v Walerianczyk [2010] CP Rep 46, [2010] EWHC 2149 Admin. That, as its title indicates, was an appeal against a decision of a district judge discharging an individual. In Walerianczyk the relevant facts were these. The relevant chronology can shortly be stated. The judge had ordered the respondent's discharge on 13 April 2010. The time to give notice of appeal under Section 28 expired on Monday 19 April. On Friday 16 April the appellant faxed to the respondent's solicitors an unsealed notice of appeal and supporting documentation. On the Monday, notice of appeal in the same form —apparently there was one small exception —was filed with the Administrative Court. The following day, that is the day after the expiration of the permitted period, the Crown Prosecution Service served a sealed copy of the notice of appeal on the respondents' solicitors.
Thus four issues were said to arise. Stanley Burnton, LJ identified these as follows:-
"(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?"
The court decided that it was necessary to serve a sealed copy of the notice of appeal or at least one which showed the number allocated by the Court. Until it was filed with the court it could not be properly described as a notice of appeal. It was merely a draft notice. Therefore there was, in the circumstances of the case, a failure to comply with the provisions of Section 28 (4) of the Act. In those circumstances the court decided it had no jurisdiction to hear the appeal.
That case was pursued, as I was informed, because there was a problem in that the Crown Prosecution Service were concerned that unsealed copies of appeal notices were frequently being served and they wanted the court to decide whether such unsealed copies constituted a proper compliance with s.26(4). It is somewhat ironic that in the circumstances it was their appeal which decided, or was thought to decide, that issue —they were on the losing side —although I have reason to believe that insofar as it affected service on them, they were rather pleased with that decision.
The court indicated that in its view there was a distinction to be drawn between a notice of appeal and a draft notice of appeal. At paragraph 13, Lord Justice Stanley Burnton said:
"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...
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