R (Mendy) v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 12 July 2007 |
| Neutral Citation | [2007] EWHC 1765 (Admin) |
| Date | 12 July 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | co/5767/2007 |
[2007] EWHC 1765 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Collins
co/5767/2007
Mr S Powles (instructed by Bindman & Partners) appeared on behalf of the Claimant
Ms M Cumberland (instructed by the CPS) appeared on behalf of the Defendant
This is an application by Mr Joseph Mendy that the notice of appeal which was served on his behalf, seeking to appeal against the decision of the Senior District Judge that he be extradited to Spain, should be regarded as having been served within time. Essentially, it is an application that time be extended because it is, as will become apparent, accepted that the notice of appeal was not served within the relevant time limits which are imposed by the statute and rules of court.
Mr Mendy was arrested pursuant to a European extradition warrant issued by the judicial authority in Spain on 20th March last. The extradition hearing took place before District Judge Wickham at the Westminster Magistrates' Court on 3rd July and the District Judge, following that hearing, ordered extradition pursuant to section 21(3) of the 2003 Act.
As a result of that decision, the applicant had a right of appeal under section 26 of the Act, and by section 26(4) it is provided:
"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."
That being so, the last day upon which notice could be served and be within time was 9th July. In theory, the time expired at 11.59 pm on that day.
What in fact happened was that the applicant had been represented at the hearing before the District Judge by a firm of solicitors, and it appears that he had not been entirely satisfied with the service that they had given. He indicated that he wished to transfer the Legal Aid to his present solicitors, Bindman and Partners. After the hearing on 3rd July he immediately contacted Bindmans, indicating that he wished to meet with them to discuss the possibility of an appeal. Bindmans should have been aware that it was necessary to act very quickly because of the provisions of section 26(4) to which I have already referred. Unfortunately, they do not seem to have appreciated this need, because the initial appointment made for the 4th July had to be cancelled and a rearranged appointment for the following day was also cancelled. In the result, the applicant did not see his solicitors until 3 pm on 9th July, the last day upon which the notice of appeal could properly be entered.
The relevant rule of court which deals with time is 52.2, which provides that all parties to an appeal must comply with the relevant practice direction. The relevant provision is paragraph 22.6A of the Part 52 practice direction. So far as material, this provides by paragraph (3):
"Where an appeal is brought under section 26 or 28 of the Act—
(a) 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;
(b) the appellant must endorse the appellant's notice with the date of the person's arrest;
(c) the High Court must begin to hear the substantive appeal within 40 days of the person's arrest; and
(d) the appellant must serve a copy of the appellant's notice on the Crown Prosecution Service, if they are not a party to the appeal, in addition to the persons to be served under rule 52.4(3) and in accordance with that rule.
(4) The High Court may extend the period of 40 days under paragraph (3)(c) if it believes it to be in the interests of justice to do so."
Incidentally, although it is not this case, the requirement to hear the substantive appeal within 40 days of arrest is somewhat hopeful in most cases because it frequently happens that 40 days has elapsed before the decision of the District Judge takes place, and certainly frequently there are only a very few days left and accordingly time has to be extended. But paragraph (4) provides for the possibility of that extension. It is to be noted that there is no provision in the practice direction for extension of time in relation to the filing and serving of the notice of appeal.
There is, of course, the general power in the court to extend or shorten time for compliance with any rule, practice direction or court order, even if an application for extension is made after the time for compliance has expired. That is rule 3.12 of the CPR. But that expressly indicates that it is not applicable where the rules provide otherwise. But it is that power upon which Mr Powles particularly relies.
What actually happened in this case was that the solicitor, having seen the client, realised that it was essential to get the relevant papers from the previous solicitors. He had some difficulty because some of the relevant documents were still with counsel, but eventually he got what he regarded as sufficient documentation and drafted a notice of appeal, which is very general in its terms due to the lack of proper information. He says that he did the best he could in the circumstances, but the grounds of appeal simply state:
"The applicant will raise the issue of delay and breach of Article 6, right to a fair trial within a reasonable time, and Article 8, right to respect for private and family life, as grounds for appeal."
I should say that the charge faced in Spain by the applicant relates to allegedly dishonest conduct, using counterfeit notes, and the offences are said to have been committed some considerable time ago in November 2003.
What the solicitor in question did then was to fax the notices to the court and to the CPS some time after 11 pm that evening. In fact he also...
To continue reading
Request your trial
-
Mucelli v Albania
...that the warrant cannot be resurrected by any exercise of the court's power to extend the time limits. 71 In R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765, Collins J held that the reasoning in Barcys applied equally to an appeal by the requested person under s......
-
Gercans v Government of Latvia
...lay wholly within the control of the appellant or his solicitors. 6 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 lat......