Regional Court in Poznan (Poland) (1st Appellant) v Waldemar Czubala (1st Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 05 July 2016 |
| Neutral Citation | [2016] EWHC 1653 (Admin) |
| Docket Number | Case Numbers: CO/2182/2016, CO/2788/2016 and CO/2816/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2016 |
[2016] EWHC 1653 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Cranston
Case Numbers: CO/2182/2016, CO/2788/2016 and CO/2816/2016
Ms Julia Farrant (instructed by IMD Solicitors) for the 1 st Respondent
Ms Stephenson (instructed by Sonn Macmillan Walker) for the 2 nd Respondent
Mr David Josse QC (instructed by Lawrence & Co.) for the 3 rd Respondent
Hearing date: 22 June 2016
Approved Judgment
Introduction
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
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."
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.
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."
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.
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).
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."
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."
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
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....
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