The Public Prosecutor's Office of the appeal Court of Eastern Crete, Greece v Leah Louise Andrew
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol,Lord Justice Hickinbottom |
| Judgment Date | 06 March 2018 |
| Neutral Citation | [2018] EWHC 441 (Admin) |
| Date | 06 March 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3863/2017 |
[2018] EWHC 441 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Nicol
Case No: CO/3863/2017
Richard Evans (instructed by Crown Prosecution Service Extradition Unit) for the Appellant
Malcolm Hawkes (instructed by McMillan Williams Solicitors Limited) for the Respondent
Hearing date: 6 March 2018
Judgment Approved
This is an appeal under section 28 of the Extradition Act 2003 (“the 2003 Act”) against the decision of District Judge Kenneth Grant of 17 August 2017 to discharge the Respondent, Leah Andrew, from a European Arrest Warrant issued by the Appellant Greek judicial authority on 20 October 2016 and certified by the National Crime Agency on 29 November 2016. The Appellant seeks the Respondent's extradition to serve the balance of a five year sentence imposed after a conviction at trial by way of appeal rehearing in absentia for a single offence of infanticide committed on 21 July 2008.
At the first instance trial, at which she appeared and was legally represented, the Respondent was found not guilty by a four to three majority verdict from the mixed jury of three judges and four lay jurymen. Under the Greek Criminal Procedure Code, after such a majority verdict, the prosecution has a right to appeal, the appeal being by way of full rehearing, again before a mixed jury of seven. At the appeal in this case, the Respondent neither appeared nor was she represented. She was unanimously convicted; and sentenced to a term of five years' imprisonment, of which, taking into account time served on remand, the balance to be served is just over four years.
Greece being a designated category 1 country, Part 1 of the 2003 Act applies. The District Judge discharged the Respondent under section 21, on the basis that extradition would amount to a disproportionate interference with the rights of her and her family under article 8 of the European Convention on Human Rights (“the ECHR”). Other challenges to extradition were dismissed, and the only substantive issue before this court is whether the District Judge erred in concluding that extradition would breach article 8.
However, Mr Hawkes on behalf of the Appellant has raised a preliminary issue on her behalf. He submits that the Appellant's Notice was served out-of-time, so that this court has no jurisdiction to entertain the appeal.
Leave of the court is required to appeal against an extradition order or an order for discharge. Notice of application for leave to appeal “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” (sections 26(4) and 28(5) of the 2003 Act). So far as appeals by a judicial authority in a Part 1 case are concerned, that time limit is confirmed by CrimPR rule 50.19(3)(a).
That time limit is rigid and generally incapable of extension ( Mucelli v Albania [2009] UKHL 2; [2009] 1 WLR 276). However, from 15 April 2015, section 160(1)(c) of the Anti-social Behaviour, Crime and Policing Act 2014 added a new section 26(5) to the 2003 Act, as follows:
“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.”
Save for that limited exception in respect of appeals by a requested person against an extradition order, the seven day time limit for giving notice of appeal in a Part 1 case remains rigid. Notably for the purposes of this case, unless a requesting judicial authority gives notice within the requisite time limit, this court has no jurisdiction in relation to the appeal.
The form of the notification is set by rules of court, until 6 October 2014 the Civil Procedure Rules, and since that date Criminal Procedure Rules (see section 174 of the Anti-social Behaviour, Crime and Policing Act 2014). Particularly relevant to this appeal is CrimPR rule 50.19(1)(a)(i) and (ii), which provides that “a party who wants to appeal to the High Court must serve an appeal notice on… in every case (i) the High Court officer, (ii) the other party,…”. Prior to October 2014, the form of notification was governed by paragraph 22.6A of CPR 52 PD, which, in similar terms, required the appellant's notice to be “filed and served before the expiry of 7 days”. In Mucelli, the House of Lords (Lord Rodger of Earlsferry dissenting) held that section 26(4) which concerns appeals by requested persons (and, by extension, the similarly worded section 28(5), which concerns appeals by requesting judicial authorities) required the appellant's notice to be both served, as well as filed, within the seven day period; and, as I have already indicated, that that time limit was clear and unqualified, and could not be extended by the court, the 2003 Act providing no basis to invoke general powers under the (then) CPR to extend the time limits. In cases such as Pomiechowski v Poland [2012] UKSC 20; [2012] 1 WLR 1604, the courts have taken what might be regarded as a generous view as to what constitutes adequate notification of an appeal to a respondent; but the rigours of Mucelli, both with regard to the need to notify the court and the respondent of an appeal, and the need to do so within seven days, remain undiminished, and the case has been consistently applied and approved.
CrimPR rule 4.6 deals with “Service by electronic means”. So far as material to this appeal, it provides:
“(1) This rule applies where—
…
(b) the person to be served is legally represented in the case and the legal representative—
(i) has given an electronic address….
(2) A document may be served—
(a) by sending it by electronic means to the address which the recipient has given;…
(3) Where a document is served under this rule the person serving it need not provide a paper copy as well.”
By CrimPR rule 4.11(1), a document served by being handed over to the relevant individual or to identified persons within an organisation or to a custodian of an individual in custody is served on the day it is handed over. However, rule 4.11(2), so far as relevant to this appeal, provides that:
“ 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 (4.30pm that day, in an extradition appeal case in the High Court)…” (emphasis added).
Therefore, unlike rule 4.11(1), rule 4.11(2) is introduced and governed by the words, “Unless something different is shown…”. Mr Evans properly accepted that those words must be given some content; and thus a document sent by (e.g.) email is not served simply when it is sent. However, if a document in an extradition appeal is sent by email...
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