Germany v Kleinschmidt & Anor

This is an appeal brought by the government of the Federal Republic of Germany under section 105 of the Extradition Act 2003 against the decision of District Judge Anthony Evans sitting at Bow Street Magistrates Court on 2 March 2005 to discharge Roland Kleinschmidt and Laura Dewar, the Respondents in extradition proceedings conducted against them by the government of the Federal Republic. The issue is whether sections 70(9) and 78(4) of the Extradition Act 2003 require the judge at the extradition hearing to be satisfied that the documents sent to him by the Secretary of State have been served on the person whose extradition is requested prior to the commencement of the extradition hearing. In this case the relevant Order in Council had not been served prior to the hearing. The 2003 Act does not expressly state by whom or by when service is to be effected. The learned District Judge held that the statute requires service prior to the extradition hearing and stated that the statute did not make service the responsibility of the court. It is implicit in his decision is that it is not possible to cure any failure to serve documents once the hearing has commenced.

Before the learned District Judge and in this appeal the Appellant submitted that it is ultimately the Court’s responsibility and not that of the requesting state or its solicitor to serve the documents on the person whose extradition is requested. This issue involves consideration of the respective responsibilities of the Secretary of State, the court conducting the extradition hearing, and the Crown Prosecution Service. The Crown Prosecution Service acts as a private solicitor on behalf of the requesting state in extradition proceedings unless the requesting state wishes to instruct other solicitors. Its role has been put on a statutory footing by section 190 of the Extradition Act 2003. The question of responsibility for service is understandably of importance to the Crown Prosecution Service, and it is unfortunate that the 2003 Act does not specify who is to effect service. Raising it in the present case may, however, have deflected attention from the central point that arose at the extradition hearing. The outcome of that hearing and of this appeal do not necessarily turn on whose responsibility it is to effect service on the person whose extradition is sought. This is because, whoever has that responsibility, if the statute requires service to be made prior to the commencement of the extradition hearing, unless the requirement that there be such service or the timing of such service is not mandatory, the District Judge was required to discharge the Respondents and this appeal must fail. If, however, service at the hearing is sufficient, the question who may or must effect such service arises.

In support of the Federal Government’s appeal, Rosemary Fernandes, a solicitor employed by the Crown Prosecution Service, has made two witness statements, one on 10 March, when this appeal was launched, and the second on 6 May 2005. Her first statement sets out the facts and charges underlying the Federal Government’s request for the Respondents’ extradition and what occurred prior to and at the extradition hearing. The extradition hearing bundle and a manuscript note of the extradition hearing as recorded by the clerk of the court are exhibited to this statement. The manuscript note is not easy to read and there was no typescript available at the hearing of the appeal. Nor had those representing the Appellant taken steps to ascertain whether the District Judge considered the note accurately summarised the proceedings before him. At the hearing the Court requested that a typescript of the note approved by the District Judge as accurate be provided and this has been done. Paragraph 5.12 of the Practice Direction to CPR Part 52 states that a note of a judgment in the lower court should be submitted for approval to the judge whose decision is being appealed. This should have been followed. Where, as in this case, a manuscript note is, as it may be for understandable reasons, difficult to read, a typescript should be produced. In her second witness statement Ms Fernandes states she received a copy of the relevant Order in Council, the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, SI 2003 No 3334, from the Secretary of State on 5 May 2005 and served it on the Respondents’ solicitors on 6 May. The Order in Council is exhibited to this statement.

I turn to the factual background and the statutory framework. The charges against Mr Kleinschmidt and Ms Dewar are that they were members of an advanced fee fraud through a company called Allied Guarantee Company which they established for the purpose of committing the fraud. Although the company’s offices were at an address in Chislehurst, Kent, the prosecution claim that the company was in fact operating in Kappeln in Schleswig-Holstein in Germany. Mr Kleinschmidt is alleged to have entered into contracts and correspondence with the customers on behalf of the company and to have directed the transfer of proceeds of the alleged fraud from a bank account of another person alleged to be involved in the conspiracy, Mr Fricke. Mr Fricke had been a lawyer until he was disbarred. It is alleged that he acted for the company as a “solicitor” employed by “Gelt Solicitors”. Ms Dewar is Kleinschmidt’s companion and variously described as managing director of the company and trustee and secretary of Gelt Solicitors. It is alleged that she engaged in correspondence on behalf of Gelt in that capacity and that accounts registered in her name at the Halifax and HSBC in Bromley, Kent received the proceeds of the fraud.

The 2003 Act designates requesting countries as either category 1 or category 2 territories. Part 2 of the Act (sections 69 to 141) contains the provisions governing extradition to category 2 territories. The current designation of category 2 territories is contained in the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003, SI 2003 No 3334 (hereafter “SI 2003 No 3334”) as amended by SI 2004 No 1898 and SI 2005 No 365. At the time of the present request, Order in Council SI 2003 No 3334 designated the Federal Republic of Germany as a category 2 territory. By section 70(1) of the Extradition Act 2003, “the Secretary of State must issue a certificate under this section if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom”. By section 70(9), if a certificate under subsection (1) is issued, the Secretary of State must send the request, the certificate and a copy of any relevant Order in Council to “the appropriate judge”, who is to conduct the extradition hearing.

Where the documents referred to in section 70(9) have been sent to the judge, the judge may issue a warrant for the arrest of the person whose extradition is sought: section 71(1). Where the documents have not been sent the judge is empowered to issue a provisional warrant: section 73. This case involved provisional warrants and so it is only necessary to summarise the procedure concerning such warrants. Where a provisional warrant is issued the documents referred to in section 70(9) must be received by the judge within a specified period from the date of the person’s arrest: section 74(11). In the case of Germany the period is 45 days. If the documents are not received within this period the judge must order his discharge: section 74(10).

The next stage is the extradition hearing. Provisions as to the extradition hearing in respect of requests by category 2 territories are contained in sections 75-92 of the 2003 Act. In the case of arrest under a provisional warrant, if the documents referred to in section 70(9) are received by the judge within the specified period he must fix a date on which the extradition hearing is to begin: sections 76(1) and (2). By section 76(3) the date fixed must not be later than two months from the date on which the judge receives the section 70(9) documents. The initial stages of the hearing are governed by section 78. The Judge must, by section 78(2), decide whether the documents sent to him by the Secretary of State consist of (or include):-

In the present case, following a request for the extradition of Mr Kleinschmidt and Ms Dewar by the public prosecutor of Flensberg on 29 November 2004, on 8 December 2004 the Bow Street Magistrates Court issued provisional warrants for their arrest under section 73 of the 2003 Act. The warrants were executed on the following day and Mr Kleinschmidt and Ms Dewar were remanded on conditional bail. The Federal Republic’s extradition request was submitted to the Secretary of State on 20 December 2004. On 18 January 2005 the Secretary of State certified the request as valid in accordance with section 70 of the 2003 Act. Pursuant to section 70(9), the Secretary of State then sent the Bow Street Magistrates Court the request, the section 70 certificate, and a copy of the relevant Order in Council, SI 2003 No 3334. It is stated in paragraph 32 of Ms Fernandes’s first witness statement that on 18 January the date of the extradition hearing was fixed to begin on 2 March. Since, by section 76(1)(b) the judge can only fix the date on which the extradition hearing is to begin once he has received the documents referred to in section 70(9) it appears that the documents were received on the same day the certificate was issued. The hearing date was fixed to begin within a two month period from that date.

On 28 January 2005 an Opening Note on behalf of the Federal Republic for the extradition hearing signed by Mr Summers was (see paragraph 33 of Ms Fernandes’ first statement) served on the Respondents. Paragraph 23 of the Opening Note states that the relevant Order in Council sent to the judge by the Secretary of State in the present case was SI 2003 No 3334. Paragraph 36 of this Note states that the documents referred to in section 70(9) have “in fact” “been served by the Crown Prosecution Service”. I refer to this Note again in paragraphs [48-49] when considering whose responsibility it was to effect service. At this stage it suffices to observe that the Note was inaccurate in stating that service had been made before 28 January and suggesting that the Order in Council was one of the documents served. Ms Fernandes’s first witness statement states (paragraph 39) that the Crown Prosecution Service, as solicitors for the Appellant, served Mr Kleinschmidt and Ms Dewar with copies of the section 70 certificate and the extradition request, and a copy of the arrest evidence it had received from United Kingdom Police Authorities on 9 February.

Ms Fernandes also states (paragraph 37 of her first witness statement) that the Crown Prosecution Service received from the Secretary of State only one of the documents listed in section 70(9), namely a copy of the section 70 certificate and (paragraph 38) that it received no documents from the Bow Street Magistrates Court. I have referred to the fact that in her second witness statement she states she, and thus the Crown Prosecution Service, received a copy of SI 2003 No 3334 from the Secretary of State on 5 May 2005. The Crown Prosecution Service thus did not receive a copy of either the extradition request or the Order in Council from the Secretary of State before the extradition hearing on 2 March 2005. It obtained a copy of the extradition request directly from the Appellant. It did not serve the Respondents with a copy of SI 2003 No 3334 until 6 May 2005.

At the extradition hearing the Respondents’ solicitor, Mr Dante Leccacorvi gave evidence. The note of the proceedings records that Mr Leccacorvi stated his firm took over the case on 16 December 2004 before any extradition documents had been served, that the Respondents had not been served with the Order in Council and had not received any document sent by the Secretary of State to the Bow Street Magistrates Court from the Court. It also records that in cross-examination Mr Lecchacervi stated that on 25 February 2005 he was aware this point was to be taken but did not notify the court or the Crown Prosecution Service. He stated he did not notify the Crown Prosecution Service because he was not aware that it should be put on notice.

The ambush having been sprung, the Learned District Judge rejected the Appellant’s submission that it was possible to cure the failure. He held that section 78(4)(c) requires the documents listed in section 70(9) to be served upon the persons against whom proceedings are brought by the requesting state rather than the court and that such service must be complied with prior to the extradition hearing. He accordingly discharged Mr Kleinschmidt and Ms Dewar under section 78(6) of the Act. It is implicit in his ruling that there is no power under section 78(4) to remedy any failure to serve once the hearing commenced.

Mr Summers, on behalf of the Appellant, submitted that in so holding the learned District Judge fell into error. Mr Summers argued that as a matter of principle the primary duty to serve the person whose extradition is requested lies upon the court or the Secretary of State. Secondly, he argued that there is nothing in section 78(4) of the 2003 Act that requires service under the section to be made prior to the commencement of the extradition hearing.

Miss Campaspe Lloyd-Jacob, on behalf of Mr Kleinschmidt and Ms Dewar and in support of the District Judge’s ruling, submitted that it was the responsibility of the Crown Prosecution Service, as solicitors for the requesting state, to serve the documents on the persons whose extradition is requested. On the time by which the documents must be served, she submitted the requirement in section 78(4)(c) that copies of the documents sent to the judge by the Secretary of State be served on the person whose extradition is requested is a mandatory requirement, the purpose of which is so that the person sought knows in advance of the hearing the factual material and the legal basis on which his extradition hearing is to proceed.

At the hearing we invited the parties to make written submissions on the question whether, in the event that section 78(4)(c) requires service prior to the hearing, the consequences of a failure to serve depend on the effect of the breach. We have received helpful submissions on this third question from Mr Summers and Miss Lloyd-Jacob.

It is first necessary to consider the nature of the requirement of service in section 78(4)(c) of the 2003 Act. Section 78(4)(c) provides that the judge must decide whether copies of the documents sent to him by the Secretary of State under section 70(9) “have been served on the person” (emphasis added). Miss Lloyd-Jacob submitted that no distinction should be made between the different documents section 70(9) requires to be sent to the judge and that the Order in Council does not fall into a different category to the request and the certificate. She submitted that it is clear that in drafting the 2003 Act Parliament intended to depart from the previous regime under which it was considered sufficient for the Orders in Council to be available to all parties in Court. Section 78(6) provides that if the Judge “decides any of the questions in subsection (4) in the negative he must order the person’s discharge”.

The terms of section 78(6) mean that, subject to the point that I address in paragraphs [35-38] of this judgment, and although service of the section 70(9) documents is not a prerequisite to the jurisdiction of the judge at the extradition hearing, the requirement in section 78(4)(c) is mandatory. I accept that the purpose of the requirement that the specified documents be served is so that the person sought knows the factual material and the legal basis on which the extradition hearing is to proceed. In substance so does Mr Summers. Paragraph 20 of his supplementary skeleton argument states that that two of the three documents referred to in section 70(9), the request for extradition and the Secretary of State’s certificate, are “of fundamental importance to the defendant’s ability to contest the extradition proceedings” although he argues that the position of the Order in Council is different. The Order in Council is, however, also significant because the designation of the requesting states may be changed by Order in Council and because the Order in Council affects the question whether it is necessary for the requesting state to establish a prima facie case: see sections 84(1) and (7).

The potential importance of the person whose extradition is sought knowing of and having sight of the relevant Order in Council was recognised by Scrutton J in R v Governor of Brixton Prison, ex p. Servini [1914] 1 KB 77 at p 80. Scrutton J stated that “[i]t may be of importance to the prisoner to see it and have it proved in order to see whether it contains any provision which may assist him”, although he agreed with Ridley J that the writ of habeas corpus (which was sought in that case) would not be granted in a case of mere technicality not affecting the merits of the case. Mr Summers accepted that in relation to the fact of servicethe terms of section 78(6) are mandatory but, responding to the question posed by the court, submitted that if, contrary to his primary argument, service is required before the commencement of the extradition hearing, they are directory as to the timing of service.

The next question is the fundamental question in this appeal: does the statute require service to be effected before the commencement of the extradition hearing. Miss Lloyd-Jacob submitted that it does because the person whose extradition is sought must know in advance of the hearing the factual material and the legal basis on which the extradition hearing is to proceed.

Although service should normally be made well before the hearing, and no doubt in most cases is so made, as Mr Summers submitted, there is nothing in section 78(4) requiring this. The Appellant’s primary case is that the words “have been served” in section 78(4)(c) mean that service must be made before the judge makes his decision under that subsection. Its argument is that when, at the first time during the hearing, the Respondents stated that they had not been served, the Appellant was still within time and able to comply with section 78(4(c), but was wrongly prevented from doing so by the judge. Mr Summers argued that where the Extradition Act 2003 requires that something must be done before the commencement of the extradition hearing, this is stated on the face of the statute. He relied on sections 75(3) and 76(4), provisions relating to the date of the extradition hearing which, as I have stated, is, by sections 75(1) and 76(2), fixed by the appropriate judge. These provisions enable a party to apply for the hearing to be fixed for a later date than that fixed by the judge if the application is made before the date fixed for the hearing. I observe that, had the Appellant known before 2 March that the extradition bundle they served on the Respondents on 9 February did not contain the Order in Council they could (see paragraphs [48-50] of this judgment) either have served it or (as this was a case in which a provisional warrant was obtained) applied under section 76(2) for the date of the hearing to be postponed.

For the reasons given by Miss Lloyd-Jacob, I accept that the respondent should normally be served before the commencement of the hearing. Moreover, there is some force in her argument that the change from the previous legislative regime under which it was considered sufficient for the Orders in Council to be available to all parties in Court indicates that under the 2003 Act it must be available before the hearing. If it remains sufficient for the Orders in Council to be available to the person whose extradition is sought in Court and to be served during the course of the hearing or during an adjournment, why (it might be asked) was it necessary to require that they be served on the person whose extradition is sought? I have, however, concluded that notwithstanding this argument, the contrast between section 78(4)(c) and sections 75(3) and 76(4) is significant. Since section 78(4)(c) does not state that the respondent must be served before the commencement of the extradition hearing, the issue is whether the words “before the commencement of the extradition hearing” should be read into it. In my judgment these or similar words should not be read into it.

On the construction of the section which Miss Lloyd-Jacob proposes, it would not be possible to deal with any failure of service that manifested itself at the outset of the hearing (for example where a document has erroneously been omitted from the extradition bundle) whether or not that failure prejudices or is unfair to the respondent. The effect would be in substance to deprive the court conducting the extradition hearing of the jurisdiction it obtained when it received the documents referred to in section 70(9). In Hughes (Inspector of Taxes) v Viner [1985] 3 All ER 40, at p. 46 Walton J described the proposition that the requirement in section 56 of the Taxes Management Act 1970 that a party requiring Tax Commissioners to state a case to send notice of the fact that the case has been stated to the other party “at or before the time when he transmits the case to the High Court” was mandatory as “quite extraordinary” inter alia because, if it was, late service would deprive the High Court of jurisdiction it had previously obtained as a result of the transmission of the case stated to the High Court. I refer to other examples of the reluctance of the court to construe a procedural requirement in this way in paragraph [36] below.

The procedural protection afforded by the Extradition Act 2003 to a person whose extradition is sought is important since that person’s liberty is at stake. But as was stated by Lord Steyn delivering the judgment of the majority of the Board of the Judicial Committee of the Privy Council in a Bahamian appeal, Cartwright v Superintendent of Her Majesty’s Prison [2004] 1 WLR 902, paragraph 14:

“Throughout extradition law there are two principal threads. First, in exercising powers of extradition courts of law must … be vigilant to protect individuals from the overreaching of their rights by the government. Justice to the individual is always of supreme importance. Secondly, the Board considers that it is imperative of legal policy that extradition law must, wherever possible, be made to work effectively.”

The consequence of Lord Steyn’s second thread is that the court should be slow to construe the Extradition Act 2003 so as to permit reliance on a purely technical point. The decision of this Court in R v Governor of Brixton Prison, ex p. Servini [1914] 1 KB 77, to which I have referred in paragraph [18], shows that the reluctance of a court considering an extradition matter to permit reliance on a purely technical point is long-standing.

In Re Ismail [1999] AC 320 at p 327 Lord Steyn, in a speech concurred in by the other members of the Committee, stated that:

“extradition statutes, ought … to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition”.

In that case the context differed. The House of Lords was considering whether a person was “accused” of an extraditable offence within section 1(1) of the Extradition Act 1989. Lord Steyn stated that a purposive interpretation of “accused”, also described by him as a “cosmopolitan approach”, ought to be adopted in order to accommodate the differences between criminal procedures in the United Kingdom and in civil law jurisdictions. In that context such an approach is particularly appropriate. But Cartwright v Superintendent of Her Majesty’s Prison was not such a case. The majority of the Board relied on the statement in Re Ismail, and there is no indication that the broad and purposive construction of extradition statutes is only to be used in the circumstances of Re Ismail.

Cartwright’s case may represent the high-water mark of this approach, see the dissenting judgment of Lord Hoffmann and Lord Rodger of Earlsferry in which it is stated (paragraph 42) that the majority had given the statute (section 17(3) of the Bahamas Court of Appeal Act) “a far-fetched construction” to remedy what they perceived as a defect in the law. Whether or not it is, in the present case giving section 78(4)(c) a broad and generous construction involves a more modest and familiar exercise. Since the issue is, as I have noted, whether to read into the sub-section the words “before the commencement of the extradition hearing”, a broad and generous construction is given to the sub-section simply by not adding restricting words to the language used by Parliament.

In deciding whether the need to be vigilant to protect persons whose extradition is sought from the overreaching of their rights by the government means that it is necessary to construe section 78(4)(c) as requiring service prior to the commencement of the extradition hearing, it should not be forgotten that the appropriate judge has other means of protecting the position of such persons. By section 77 of the 2003 Act the powers of the appropriate judge are the same (as nearly as may be) as those in a magistrates’ court. In particular he thus has the power to stay proceedings for abuse of process (see R (Kashamu) v Governor of Brixton Prison [2002] QB 887 and the discussion in Knowles, Blackstone’s Guide to the Extradition Act 2003 pp. 66-69) and he has the power to adjourn the extradition hearing: see section 77(4).

There is thus a power to adjourn the hearing before the appropriate judge makes any or all of the decisions he is required to make under section 78. It is convenient to state at this point that although it appears that the Appellant did not seek an adjournment, the rejection of its argument that it was possible to cure the failure of service after the hearing commenced but before the judge’s decision, meant that an application to adjourn in order to serve the Respondents was unlikely to succeed.

The purpose of a power to adjourn a hearing is inter alia to enable the court and the parties to deal with problems which manifest themselves at or immediately before the hearing. Decisions on applications to adjourn are subject to the control of this Court and the Administrative Court. The power to grant or refuse an adjournment must be exercised appropriately, that is by taking account of the interests of all the parties and the public interest, and not so as to undermine the statute under which the proceedings are brought or in a way that deprives a person of rights conferred by that statute: see R v Dudley Magistrates’ Court, ex p. Hollis [1998] 1 All ER 759.

R (Waldon and Stern) v Highbury Corner Magistrates Court [2003] EWHC 708 is an example of a case where an adjournment granted on the application of a prosecutor who had failed to warn the prosecution witnesses was set aside. R v Aberdare Justices, ex p DPP (1990) 155 JP 324 and R v Hereford Magistrates Court, ex p Rowlands [1998] QB 110 are examples of improper refusals to adjourn on the application of a prosecutor. In the Hereford Magistrates Court case Sir Thomas Bingham MR, as he then was, set out the principles upon which applications to adjourn should be considered. His Lordship stated that Justices are required to pay regard to the interests of justice as they affected both sides and to the question of whether the person applying for the adjournment was at fault or not. He set aside the decision to refuse an adjournment stating that, although the Justices were conscious of the defendant’s desire that the matter should be cleared up one way or another and should not continue to hang over him, they failed to pay proper regard to the undesirable consequence of refusing an adjournment when the result would be that the prosecution would thereupon collapse. The court stated that the Justices had to take account of the interest of the prosecution, representing the public, that a charge properly preferred against a defendant should be the subject of proper adjudication.

Although we did not hear argument on the application of these principles in the context of an extradition hearing, it is clear they enable the appropriate judge to protect the position of the parties, and in particular the position of the person whose extradition is sought. In the absence of such argument, while expressing no concluded view, I consider that the factors which should be considered in deciding whether to grant an application to adjourn an extradition hearing include the statutory two month time limit in the case of a provisional warrant in section 75(2) and 76(3) (see paragraph [7] above), the responsibility for the problem which has led to the application to adjourn, and the prejudice each party would suffer from the grant or the refusal of the application. It would prima facie seem inappropriate to grant an adjournment where the extradition hearing could only be resumed after the expiry of the statutory two-month period. As to responsibility for the problem, for the reasons I give in paragraphs [44-50] of this judgment, in practice responsibility for the service of the documents including the Order in Council lies with the Appellant or its solicitor and so they bear a substantial part of the responsibility for a failure to effect service.

I would therefore hold that it is not too late, as a matter of law, to effect service for the purposes of s.70(9) at the hearing, and that where such service is undertaken or proposed the district judge may grant the defendant an adjournment if the interests of justice require it. Had late service caused prejudice in this case it could have been addressed either by not granting the Appellant an adjournment to enable service to be effected or (had it been sought) by granting the Respondents an adjournment to enable them to consider the impact of the document on their position.

It was not argued by Miss Lloyd-Jacob that the Respondents were in fact prejudiced in any way by the failure to serve the Order in Council. It is clear they were not. The Respondents and their solicitors knew or should have known what Order in Council was relevant to their case on or shortly after 28 January when they received Mr Summers’ Opening Note on behalf of the Federal Republic for the extradition hearing (see paragraph 28 of Ms Fernandes’s first statement) since this Note refers to it (paragraphs 23 and 39). They knew or should have known of the failure to serve the Order in Council when, on or about 9 February, three weeks before the hearing, they were served with the bundle for the extradition hearing containing the other section 70(9) documents and a copy of the arrest evidence. I have referred to the fact that Mr Leccacorvi stated that by 25 February, over a week before the hearing he was aware that the point would be taken and chose not to inform either the Court or the Appellant. Even if they were under no duty to inform the Court or the Appellant that they had not been served with the Order in Council, which Mr Summers’ Opening Note (see paragraphs 25 and 36) stated had been served the Respondents were not in any way prejudiced by the failure to serve the Order.

My conclusion that section 78(4)(c) does not require service prior to the commencement of the hearing means that it is not in the event necessary to decide the issue on which we requested further submissions. That question is whether, if section 78(4)(c) required service of the section 70(9) documents prior to the commencement of the extradition hearing, the consequences of a failure to serve depend on the effect of the breach. Mr Summers argued that if, contrary to his primary case, the requirement that the documents be served should be treated as mandatory so far as concerns the requirement to serve the notice at some time, but directory as to the precise time of service. He relied in particular on Hughes (Inspector of Taxes) v Viner [1985] 3 All ER 40, to which I have referred in paragraph [22].

There is a certain artificiality in concluding that section 78(4)(c) requires service of the documents prior to the commencement of the hearing but also concluding that the precise timing of the time of service is directory. In Hughes (Inspector of Taxes) v Viner, however, this was done even though, unlike the present case, the statute expressly specified the time that notice was to be given to the other party. Despite any artificiality, to so construe a statutory requirement is legitimate provided that it does not frustrate the legislative purpose and the requirement in question does not go to the relevant court’s jurisdiction. It has the advantage of enabling the court to consider the substance of the matter before it, here whether late service is unfair to the person served. The inclination to construe procedural requirements not going to jurisdiction as not defeating the jurisdiction of a Court or tribunal at least where, as in the present case, there is no real possibility of one party suffering prejudice is also seen in other contexts: see R v Daljit Singh Sekhon [2002] EWCA 2954 at paragraph 21(ix) and R v Secretary of State for the Home Department, ex parte Jeyeanthan [2000] 1 WLR 354 at pages 359, 362 as qualified by Rydvist v Secretary of State for Work and Pensions [2002] EWCA Civ. 947, 1 WLR 3343.

For the reasons I set out in paragraphs [12-34] I do not consider that to permit service of the Order in Council and, notwithstanding Mr Summers’ concession (see paragraph [17] above) about their importance, the other section 70(9) documents at the hearing would frustrate the purpose of section 78(4)(c). The discretion of the appropriate judge under section 78 is limited. Section 78(7) provides that if the judge decides the questions in section 78(4) in the affirmative he must proceed under section 79 which is only concerned with whether one of the statutory bars to extradition apply. Issues of prejudice can, however, be dealt with by exercising the power to grant adjournments or to refuse applications by the requesting state to adjourn to effect service. Deliberate flouting of the provisions for service may give rise to consideration of whether the proceedings should be stayed as an abuse of process.

Accordingly, had I concluded that section 78(4)(c) required service of the section 70(9) documents prior to the commencement of the extradition hearing, I would have held that the requirement was directory as to the precise time of service provided that the timing of service in a particular case is not unfair to the person served. As my Lord, Sedley LJ, observed in the course of the hearing, everything served has to be served in time to be fair to the person who is being served. To hold the timing of service to be, to this extent, directory, enables the court to consider the substance of the matter, that is whether late service is unfair to the person who is being served.

I now return to the question of whose responsibility it is to serve the persons whose extradition is requested. I have noted that the 2003 Act does not specify who is to effect service of the documents referred to in section 78(4)(c). Mr Summers’ argument that the primary duty to effect service lies upon the court or the Secretary of State is based on the fact that the documents are in the possession of the Secretary of State and the Court, and (apart from the request for extradition) not in the possession of the requesting state unless supplied to it by either the Secretary of State or the Court. There is no statutory obligation on either the Secretary of State or the Court to provide copies of the documents to the requesting state or to the parties and sometimes, as in the present case in relation to the request and the Order in Council, he does not do so.

Miss Lloyd-Jacob submitted that if it were for the Secretary of State or the Court to serve documents on the persons whose extradition is requested one would expect the statute to say so but it does not. Miss Lloyd-Jacob argued that the court has neither the role nor the resources to serve the documents in these cases and that it is well understood in extradition proceedings that service of all relevant documents is effected by the Crown Prosecution Service acting as agents of the requesting country. That is what normally happens and the bundle normally includes a copy of the Order in Council.

In the present case Mr Summers argued that the Crown Prosecution Service could not include the Order in Council with the documents served in the extradition bundle because the Secretary of State had not sent it to the Crown Prosecution Service and because in the case of the Federal Republic of Germany two Orders in Council might be “relevant” for section 70(9)(c); Order No 3334 of 2003, which was sent to the appropriate judge, and the Extradition Act 2003 (Multiple Offences) Order 2003, SI 2003 No 3150 (hereafter “SI 2003 No 3150”). He submitted that the Crown Prosecution Service would not know which of these was regarded as relevant by the Secretary of State. Miss Lloyd-Jacob described this proposition as extraordinary since the Orders in Council are public documents readily available to the Crown Prosecution Service and are regularly produced and served by it in other cases.

At one point Mr Summers also suggested that the service by the Crown Prosecution Service of a copy of the Order in Council obtained otherwise than from the Secretary of State would not satisfy section 78(4)(c) but he did not press this, and in my judgment was correct not to do so.

In response to a question Mr Summers stated that the Crown Prosecution Service had not asked the Secretary of State which Order in Council had been sent to the judge or asked the Secretary of State for a copy. This he said was because it was reluctant to engage in correspondence with the Secretary of State who is a decision-maker in the process and has a quasi-judicial role at a later stage. I consider that any reluctance by the Crown Prosecution Service to ask for a copy of the Order in Council sent by the Secretary of State to the judge was wholly misplaced. The extradition process is initiated by the requesting state. The Crown Prosecution Service acts as the requesting state’s solicitor. It cannot be even arguably improper for the requesting state’s solicitor to ask the Secretary of State to send it a copy of any document which is a necessary part of the process in the sense that it needs to be served on the person whose extradition is sought.

The fact that the 2003 Act neither specifies who is to effect service of the documents referred to in section 78(4)(c), nor requires the Secretary of State or the Court to send copies of the documents sent to the appropriate judge pursuant to section 70(9) to the requesting state or its legal representatives may lead to difficulties where copies of all the documents are not sent to them if the Secretary of State is unwilling to supply them and if they are unavailable elsewhere. There is, however, no indication of unwillingness on the part of the Secretary of State. Paragraph 34 of Ms Fernandes’s first statement states that the Secretary of State often forwards a copy of the documents sent by him to the appropriate judge to the Crown Prosecution Service, as solicitors for the requesting state. The request will in any case be available from the requesting state, and the Order in Council will, for reasons I give in paragraphs [50-51], generally be available to the Crown Prosecution Service. I reject Mr Summers’ submissions as to who is primarily responsible for serving the persons whose extradition is requested. Neither the provisions of the 2003 Act nor practice in extradition proceedings including this case support the proposition that the responsibility for serving them lies on the Secretary of State or the Court.

First I consider whether the Act allocates responsibility to the Court. The Act does not in fact allocate tasks to the “court” but to “the appropriate judge”. Assuming that Mr Summers’ argument is that the appropriate judge has the responsibility to effect service,apart from arguments based on his role and the resources available to him, the argument does not sit comfortably with the wording of the statute. Section 78(4) requires the judge to decide whether “copies of the documents sent to the judge by the Secretary of State have been served on the person” whose extradition is sought. The language suggests that service is to be made by someone other than the judge. There is nothing in section 78 or elsewhere in the Act to indicate that it is the judge who is the person responsible for service.

Section 72(7) sets out the responsibilities of the appropriate judge when the person whose extradition is sought first appears or is brought before the appropriate judge following the arrest of that person pursuant to a warrant issued under section 71. By section 72(7)(a) the judge “must” inform that person of the contents of the request for his extradition and by section 72(7)(b) he must give him the required information about consent set out in section 72(8). This occurs after the Secretary of State sends documents to the judge under section 70(9) because an arrest warrant under section 71 may only be issued after the documents have been sent to the judge. If service of the documents sent to the judge under section 70(9) is a responsibility of the judge, one would have expected this to be stated in section 72(7), but it is not.

As far as the Secretary of State is concerned, section 70 sets out his responsibilities in relation to certifying a request. These do not include a requirement that he serve the documents on the persons whose extradition is requested. As Miss Lloyd-Jacob also observed, the statutory scheme does not put the Secretary of State in contact with those persons.

Leaving the statutory provisions, Mr Summers’ submissions that the primary responsibility for service lies on either the Secretary of State or the Court and that the Federal Republic and its solicitors the Crown Prosecution Service would not know which of the Orders in Council that deal with the Federal Republic of Germany were regarded as “relevant” by the Secretary of State in this case do not reflect the reality of this case. As to service, it was the Crown Prosecution Service which served the documents, apart from the Order in Council, on the Respondents. I have referred to the fact that paragraph 36 of Mr Summers’ Opening Note on behalf of the Federal Republic prepared for the extradition hearing and dated 28 January 2005 states that “in fact the documents [referred to in section 70(9)] have been served by the Crown Prosecution Service”. The Note also invites the Court conducting the extradition hearing to ascertain from those representing Mr Kleinschmidt and Ms Dewar that they had been served with copies of the documents. Although not altogether accurate (see paragraph [9] of this judgment) the Note shows that the Crown Prosecution Service in practice effects service.

As to knowledge, the Crown Prosecution Service does not appear to have been under any uncertainty as to what Orders in Council were “relevant” in this case and thus within section 70(9). Paragraphs 1 and 39 of Mr Summers’ Opening Note state that Order in Council No 3334 of 2003 designated the Federal Republic as a Category 2 territory so that Part 2 of the 2003 Act applied, as modified by the provisions of the Extradition Act 2003 (Multiple Offences) Order SI 2003 No 3150. Paragraph 23 of Mr Summers’ Opening Note states (in footnote 2) that the relevant Order in Council sent to the judge by the Secretary of State in the present case was SI 2003 No 3334. On 28 January, well before the hearing date, the requesting state and its legal representative thus identified the Order in Council that was considered “relevant” and sent to the judge by the Secretary of State. At the hearing of the appeal Mr Summers did not explain how his submission that the Crown Prosecution Service would not know which Orders in Council were “relevant” in this case ties in with what is stated in his Opening Note.

I do not, moreover, accept that the Crown Prosecution Service, with its statutory role in the extradition process and consequent expertise and experience in acting as the solicitor for requesting states, would not know which Order in Council was relevant. The Crown Prosecution Service will know or have the means of knowing whether the requesting state is a category 1 or a category 2 territory. In the case of a category 2 territory, such as the Federal Republic was at the time of the present request`, until it is superseded by another Order, SI 2003 No 3334 will always be a “relevant” Order in Council. Where extradition is sought in respect of more than one offence so that SI 2003 No 3150 is also “relevant” and must be sent to the judge by the Secretary of State this will be almost invariably be clear from the request for extradition.

As Miss Lloyd-Jacob observed, Orders in Council are public documents readily available to the Crown Prosecution Service. If in any particular case where the Secretary of State has not sent them a copy and there is uncertainty it is open to the Crown Prosecution Service to ask the Secretary of State which Order in Council has been sent to the judge. In this case it appears from the Opening Note for the extradition hearing that there was no uncertainty but that, although the Opening Note was prepared on the basis that the relevant Order in Council sent to the judge by the Secretary of State was SI 2003 No 3334, and that it had been served by the Crown Prosecution Service as part of the extradition bundle, the Crown Prosecution Service omitted to include a copy in the extradition bundle.

The court’s powers on an appeal under section 105 of the 2003 Act are set out in section 106. These include directing the judge to decide the relevant question again. For the reasons given in paragraphs [22-34] of this judgment I have concluded that in holding that section 78(4)(c) requires service of the documents before the commencement of the extradition hearing the learned District Judge fell into error. This appeal is allowed. I would remit the case to the district judge with a direction that he should proceed in accordance with the judgment of this court.

The Extradition Act 2003 is throwing up a number of problems, of which the present one is not the only problem attributable to apparent haste in its composition. Its resolution has not been helped by the attitude taken by the CPS as the requesting state’s solicitor.

I am able nevertheless to give my reasons for agreeing with the judgment of Beatson J very shortly. Two questions arise: by when and by whom are the documents specified in s.70(9) to be served?

Since, remarkably, no provision is made in or under the Act for ensuring that defendants receive necessary documents in good time, the justice of the common law (as Byles J once called it) will supplement Parliament’s prescription by recognising that, since the Act on the face of it allows service at any time up to the moment when the judge decides whether or not to order extradition, there is a judicial power – which may become an obligation - to grant an adjournment if late service is a source of prejudice to the defendant. If this pushes the case past the time limits, the requesting state, for the reason I turn to next, will have only itself to blame.

Even more remarkably, the Act fails to say who is to serve these essential documents. It follows in principle that they may be served by anybody. But in practice, assuming that nobody else is prepared to do it, it is the CPS on the requesting state’s behalf which will have to undertake service, for the elementary reason that otherwise there will be no extradition. This is a matter not of legal obligation (for there is none) but of common sense.

Accordingly the district judge was wrong to hold that, failing service before the hearing, the time for service was past and extradition could not therefore be ordered. His decision not to order extradition has to be quashed. He should resume the hearing and decide what course to take in the light of what has by then been done by way of serving the missing Order in Council.