EXTRADITION — Appeal — Jurisdiction — Appeal notice filed in time but not served on respondent in time — Whether court empowered to extend time for service of appeal notice — Whether court having jurisdiction to hear appeal — Extradition Act 2003, s 26(4)

Moulai v Deputy Public Prosecutor in Creteil, France [2008] EWHC 1024 (Admin); [2008] WLR (D) 148

QBD: Hooper LJ and Maddison J: 9 May 2008

Late service of a copy of a duly filed appeal notice was not a fatal bar to an appeal against an order extraditing (or not extraditing) a person.

The Divisional Court of the Queen’s Bench Division so held when determining that it had jurisdiction to hear an appeal by the appellant, Lofti Moulai, against an order of District Judge Anthony Evans on 14 March 2008 by which he had ordered the extradition of the appellant to France under Pt 1 of the Extradition Act 2003.
The appeal notice had been filed in the High Court within the time prescribed by s 26(4) of the 2003 Act, which provided “Notice of an 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” but the transmission of the fax by which it was being served on the respondent had been completed a few minutes after the time limit had expired.
HOOPER LJ said that but for the provisions of s 26(4) of the 2003 Act the court would have had the jurisdiction to waive the time limit and waive any failure to endorse the appellant’s notice with the date of the person’s arrest. Having regard to both the explanatory note about s 26(4) of the 2003 Act and to s 213(3) of that Act, the meaning of the words “notice of an appeal must be given” in s 26(4) referred to the filing of the notice of appeal in the High Court and not the service of the appeal. If s 26(4) did not apply to the service of the appeal, the respondent would have to show that some other section in the 2003 Act made it clear that the intention of Parliament was that the court would have no jurisdiction to waive defects which it would normally have the jurisdiction to waive under the rules. However, the respondent’s reliance on ss 35 and 213 of the 2003 Act did not help because they did no more than exclude the power to waive procedural defects in relation to the late filing of the notice of appeal. The judgments of the Divisional Court in both District Court of Vilnius City v Barcys [2007] 1 WLR 3249, which decided that a failure to serve the appeal notice could not be waived, and Gercans v Government of Latvia [2008] EWHC 884 (Admin), which held that there was no power to extend the time for service of the notice of appeal, were both wrong. Powers were exercised under CPR r 3.1(2)(a) to extend the time limit for service of the notice of appeal.

MADDISON J gave a concurring judgment.

Appearances: Manjit Gill QC and Martin Henley (Central Law Practice, Wembley) for the appellant; John Jones (Crown Prosecution Service, Ludgate Hill) for the respondent.

Reported by: Ben Urdang, barrister