Mucelli v Albania & Anor

The appellant seeks to challenge a decision made on 4 June 2007 by District Judge Anthony T Evans, sitting at City of Westminster Magistrates’ Court, to send the appellant’s case to the Secretary of State for a decision on whether the appellant should be extradited. The request for extradition came from the Government of Albania, which is a category 2 territory within the meaning of the Extradition Act 2003. The case is therefore governed by Part 2 of the Act.

The request relates to a count of murder committed on 13 June 1997 and a further count of possession of firearms. The victim lived in a flat in Tirana with the appellant’s aunt. A few days prior to the killing there had been an argument over gold coins. On the day of the killing the appellant’s wife visited the flat, spoke to the victim and then went out of the building. About 10 minutes later the appellant arrived with a large sports bag and went into the building. Some time later witnesses heard gunshots and saw the appellant walking down the stairs and putting a sub-machine gun into his bag.

Criminal proceedings were commenced on the same day by the District Prosecutor’s Office at Tirana. Both the appellant and his wife were charged with murder. They left Albania but were tried in their absence, in a series of hearings between 15 April and 25 September 1998. The appellant’s wife was acquitted. The appellant himself, who was represented at trial by a lawyer, was convicted and sentenced to 25 years’ imprisonment on the murder count and to 1 year’s imprisonment on the firearms count. An order for the execution of the sentence was issued on 15 October 1998. It was not until 6 February 2007, however, that the appellant was arrested pursuant to a provisional arrest warrant. The full extradition request followed on 28 February 2007.

The contested issues in the extradition proceedings were these. First, under s.79(1)(c), the judge had to decide whether the appellant’s extradition was barred by reason of the passage of time: by s.82, a person’s extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be). Secondly, since the appellant had been convicted in his absence, the judge had to decide, under s.85(3), whether the appellant had deliberately absented himself from his trial. If the answer to that question was in the negative, then the judge had to decide the alternative question, under s.85(5), whether the appellant would be entitled to a retrial on his return. An affirmative answer to one or other of the questions under s.85 would take the judge to s.87, under which he had to decide whether extradition would be compatible with the appellant’s Convention rights under the Human Rights Act 1998.

In his decision the judge said that in order to answer those questions it was necessary to look first at the evidence. He had heard evidence from the appellant himself and from the appellant’s mother.

The gist of the appellant’s account was that he left Albania in October 1997 for economic reasons. He left on a false Greek passport and worked for some time in Greece and Italy before coming to the United Kingdom. He was adamant in evidence in chief that he arrived in this country on 22 February 1998, but was forced to concede in cross-examination that it was in fact on 22 October 1998. He said he had come for a better life, not because he was in trouble. After 6 months in this country he was given leave to stay here. He denied knowing any of the witnesses in the case against him and said that he had never owned a gun, had never been to Tirana and had never met his aunt who lived there.

The judge did not believe or accept that evidence. He referred to various inconsistencies in it. He said that the reality was that the appellant had been living a lie for the whole of his time in this country. The appellant had used a variety of false names and given a false date of birth. It was apparent from a psychiatric report on him that, in the account given to the doctor, the appellant had invented yet another identity for himself, this time as a Kosovan.

The judge also mentioned that it had been the intention of the defence to call the appellant’s wife as a witness, but after receipt of the psychiatric report, in which the appellant had made no mention to the doctor of his wife, the case was adjourned for further instructions to be taken and the wife was not called.

The appellant’s mother was called, but the judge described her evidence as confused and confusing. He referred to inconsistencies between it and the appellant’s own evidence and what the appellant had told the doctor. The judge attached no weight to the mother’s evidence.

It was in the light of his findings on the evidence that the judge considered the questions he had to decide.

As to the first question, passage of time, he pointed out that in a category 2 case the request is made through government and diplomatic channels, and that until the whereabouts of the defendant are known that request cannot be made. He continued:

“It can safely be assumed that the defendant had been circulated as wanted by the Albanian authorities. However, this would have been under his known name of Mucelli, not the various aliases he assumed. His assumed dates of birth and, indeed, nationality would not have been known to the Albanian authorities. It would only have been after his arrest on the Provisional Warrant that his whereabouts would have been known to the Albanian authorities. Thereafter, they acted with commendable speed. The delay is due entirely to the efforts of the defendant in assuming new identities and travelling through Europe and finally obtaining leave to stay in this country which again was done on the basis of lies He cannot rely on the bar of passage of time.”

On the second question, the judge said that there was no doubt that the appellant deliberately left Albania to avoid the consequences of his actions. The judge did not accept for one moment the explanation of leaving for economic reasons and to have a better life. When told that the arresting officer had a warrant for his arrest for murder, the appellant’s immediate reaction was not to express surprise or to question this, as would be expected if he knew nothing of it, but to try and force his way past the officers and escape. The judge went on:

“I am satisfied that he left Albania to avoid prosecution. He must have been aware that a trial would follow and it is clear that he did not wish to attend …. [T]he defendant must have been aware that a trial would follow with inevitable consequence if convicted. [This], I am satisfied, was what he was trying to avoid.”

The judge then referred to Government of Albania v Bleta [2005] EWHC 475 (Admin), [2005] 1 WLR 3576, which he either distinguished on the facts or declined to follow (I shall examine his reasoning further when considering the relevant ground of appeal), before concluding:

“I am satisfied in this case that the defendant’s motive for fleeing Albania was to avoid his trial in due course. He knew that he would face trial if caught and this he was determined should not happen at all costs. The fact that he would not know its eventual date and place are, in this context, irrelevant, as due regard must be had to the practices and procedures of different jurisdictions.”

The judge said that if that conclusion was not right and the appellant did not deliberately absent himself, he had to consider the question of the right to a retrial. Distinguishing Bleta (on a basis that I shall again examine when considering the relevant ground of appeal), the judge concluded that he was satisfied by a “guarantee” given in letters from the Albanian authorities that the appellant would be entitled to a retrial if extradited.

Turning finally to s.87, the judge found that the appellant’s extradition would not give rise to a breach of his Convention rights.

The judge therefore sent the appellant’s case to the Secretary of State for a decision on whether the appellant should be extradited. On 18 July 2007 the Secretary of State ordered the appellant’s return to Albania.

The appellant advances three main grounds of appeal: (1) that the judge erred in finding that the appellant deliberately absented himself from his trial; (2) that the judge erred in finding there to be an adequate guarantee that the appellant would be afforded a retrial if extradited; and (3) that the judge erred in finding that the appellant had caused in whole or in part the delay in the commencement of the extradition proceedings and that it would not be unjust or oppressive to extradite him.

I propose to consider those grounds of appeal before moving to the procedural issues that became the primary focus of the argument before us.

The judge’s finding that the appellant deliberately absented himself from his trial cannot readily be reconciled with the decision in Bleta (cited above). The district judge in that case had found that, in the absence of any material to show that the defendant knew of the existence of the proceedings against him, and in particular to show that he knew or should have known of the date and place of his trial and that the trial might proceed in his absence, the defendant could not be said to have deliberately absented himself from his trial. The divisional court upheld that decision. It rejected a contention by the requesting state that, in leaving the country and, by inference, evading arrest the defendant had deliberately absented himself from the criminal process and thus his trial, and that the district judge had been wrong to rely on procedural criteria such as the formal charge and the moment of fixing the date and place of trial. Pill LJ, giving the leading judgment, expressed his reasons as follows (at para 48):

“I reach the following conclusions. (a) In section 85(3) Parliament has adopted the expression ‘deliberately absented himself from his trial’. Consideration must be given to the concept of deliberate absence and to the concept of a trial. The defendant has deliberately absented himself from Albania but there is no evidence that he knew of the existence of a trial or of any proceedings which might lead to a trial. (b) The word ‘trial’ was adopted by Parliament in the context of the presence of article 6 with its use of the word ‘hearing’ and its reference to a right to a hearing and a right to be informed of the nature and cause of the accusation. Article 6 confers the right to a fair trial and the word ‘trial’ would not have been used by Parliament in section 85(3) if a wider view of absence had been intended. (c) The subsection must be construed in a context in which capital importance is attached to the appearance of a defendant at his trial. The focus is on a specific event at which the defendant could expect to be present. Other factors, as well as the need to facilitate extradition, are at work. (d) Parliament could have used an expression such as ‘deliberately absenting himself from legal process’ which could, on appropriate findings of fact, include leaving a jurisdiction to avoid arrest but Parliament has not done so and the subsection cannot be construed as if it had. The expression ‘his trial’ contemplates a specific event and not the entire legal process. (e) In the result, I am unable to construe the words of section 85(3) as covering the present circumstances. While the absence from the jurisdiction of Albania is established, it is not established that the defendant left that jurisdiction, or remained in the United Kingdom, with the intention expressed in the subsection.”

On the face of it, that reasoning applies equally to the facts of the present case. In this case, too, there is no material to show that the appellant was aware of the proceedings against him, let alone that he knew of the date or place of his trial or had been informed that the trial might proceed in his absence. The judge found that his motive in leaving Albania was to avoid prosecution and all that would flow from it; but, to use the terms considered in Bleta, that is tantamount to deliberately absenting himself from the legal process rather than deliberately absenting himself from his trial. I do not think that the judge’s findings of fact are sufficient to overcome the hurdle posed by Bleta despite his evident determination to achieve that result.

The judge also cited a passage in Soering v United Kingdom (1989) 11 EHRR 439 to the effect that it is increasingly in the interests of nations that suspected offenders who flee abroad should be brought to justice, and observed that consideration must always be given to the Strasbourg jurisprudence and that Soering was not cited in Bleta. If he intended thereby to suggest that Bleta was decided per incuriam, the passage from Soering upon which he relied did not provide any basis for such a suggestion. There may be grounds for thinking that Bleta adopted an unduly restrictive approach to the meaning of “deliberately absented himself from his trial” in s.85(3), but they are not to be found in the judge’s decision. Nor are they to be found in the material before this court. Miss Cumberland, for the requesting state, did not press any argument that Bleta was wrongly decided. She preferred to put the weight of her argument on the alternative provision in s.85(5) as to a right to a retrial.

In the circumstances I take the view that the judge was in error in distinguishing or declining to follow Bleta. He ought to have decided, on the basis of Bleta, that the appellant had not deliberately absented himself from his trial.

That brings me to the alternative question under s.85, whether the appellant would be entitled to a retrial on return to Albania. In Bleta the Albanian Ministry of Justice had provided an “official guarantee” that the defendant would have a retrial, but on examination of the available material the divisional court was not satisfied by that guarantee. Pill LJ stated (at para 26):

“However, having made all allowances I properly can, I am unable to conclude that, upon examination of the Albanian provisions and the explanations given for them, I am satisfied that the defendant would be entitled to the required retrial or (on appeal) review amounting to a retrial in Albania. I do not doubt the good faith in which the ‘guarantee’ was given but I see considerable force in the submissions of [counsel for the appellant]. There are in my judgment too many open ends and insufficient clarity to be able to conclude that the information supplied belatedly and by instalments, following the concession before the judge, provides a sufficient assurance that the defendant would receive in Albania the retrial, or review amounting to retrial, which the 2003 Act requires if extradition is to be ordered.”

The judge in the present case distinguished Bleta on the ground that the position there had to be explored over a period of time and the information was only forthcoming in instalments, whereas here “the guarantee has been given from the beginning”.

It is true that a guarantee was given at an early stage in the present case, but that does not in itself provide a valid basis for distinguishing Bleta. It is necessary to consider the substance of the guarantee given. The wording used here, in a letter dated 28 February 2007 from the Albanian Ministry of Justice, is as follows:

“… the Ministry of Justice guarantees in advance on behalf of the Albanian state and in conformity with the article 504/2 of the Albanian Code of Criminal Procedure:

1.

The enforcement of the right for re-trial of the subject upon request, in accordance with the Albanian Constitution and pursuant to the articles 147, 148, 449, 450, 453 of the Code of Criminal Procedure of the Republic of Albania ….”

A further letter, dated 10 May 2007, confirms that the appellant could exercise “the right of retrial” within 10 days from the moment he was taken over by the Albanian authorities.

Article 504(2) of the Code of Criminal Procedure provides that “[t]he Minister of Justice is competent to decide about the conditions eventually imposed by the foreign country to provide the extradition, when they do not run against the main principles of the Albanian rule of law. The proceeding authority is obliged to respect the accepted conditions.” That might seem sufficient to ensure that the guarantee given in the body of the letter of 28 February 2007 would be honoured. But examination of the detailed provisions of the Code of Criminal Procedure to which the letter then refers casts real doubt on the effectiveness of the guarantee. Article 147 appears to provide for the possibility of reinstating the time-limit for an appeal, upon the request of a defendant who has been tried in his absence. But the decision whether to grant such a request is that of the court and there is no obvious mechanism whereby the government can require the court to accede to the request (nor would one expect there to be one if the independence of the judiciary is respected). Moreover article 450 lays down the grounds on which a “review” may be requested, none of which could reasonably be said to be engaged on the facts of this case; and although it is not clear whether that article governs consideration of a request under article 147, the reference to it in the Ministry’s letter suggests that it does.

The conclusion I reach is that the position is too uncertain to enable the court to conclude, on the strength of the guarantee provided, that the appellant would be entitled to a retrial on his return. There are still, in the words of Pill LJ in Bleta, “too many open ends and insufficient clarity”. I have reached that conclusion without the need to take into account additional expert evidence filed at a late stage on the appellant’s behalf, to which the respondent objected and did not have a proper opportunity to respond. It is fair to say that if the evidence were admitted it would reinforce the appellant’s case on this point.

If I am correct in the conclusions I have reached on the two relevant questions under s.85(3) and (5), as to deliberately absenting himself from trial and entitlement to retrial, then the district judge was wrong to send the case to the Secretary of State and ought, on the contrary, to have ordered the appellant’s discharge.

On that basis the final ground of appeal, concerning the judge’s finding that the appellant’s extradition was not barred by the passage of time, does not need to be considered. In short, however, I consider it to be without merit. I do not see how it can be sustained in the face of the judge’s findings of fact as to the appellant leaving Albania to avoid prosecution and assuming a series of false identities thereafter.

The favourable view I have formed on the first two of the appellant’s grounds of appeal can avail him only if he is able to overcome the procedural obstacles in his path.

The respondent government raised a preliminary objection that the appeal was out of time and that this court had no jurisdiction to entertain it. Having heard initial argument on that issue from Miss Cumberland for the respondent and from Mr Cooper for the appellant, we decided to adjourn so as to give the Secretary of State the opportunity to make representations and to file evidence. The Treasury Solicitor’s Department and the Home Office responded with commendable speed and we were greatly assisted by the submissions made by Mr Watson on behalf of the Secretary of State at the adjourned hearing.

The court itself identified a further procedural issue, on which it sought and received written submissions from all the parties: namely, whether on the proper construction of the relevant documents the appeal was brought under s.103 of the Act against the judge’s decision to send the case to the Secretary of State, or under s.108 of the Act against the Secretary of State’s extradition order.

I propose to deal first with the statutory basis of the appeal, then with the question whether the court has jurisdiction to entertain it.

Section 103 of the Act allows an appeal to be brought against the decision of a judge to send a case to the Secretary of State for his decision on whether a person is to be extradited. If the Secretary of State then makes an extradition order, s.108 allows an appeal to be brought against that order. The difference between the two statutory bases of appeal is important, since the focus in an appeal under s.103 has to be on the questions decided by the judge, whereas in an appeal under s.108 it has to be on the questions decided by the Secretary of State (see ss.104 and 109 respectively). The challenge that the appellant seeks to make in this case, against the reasoning of the judge, can only be made in an appeal under s.103.

The appellant’s notice as filed at court bears many of the hallmarks of an appeal under s.108. In section 1, the Secretary of State is named as the respondent to the appeal (though the CPS is also named, as an additional party). In section 2, the appeal is said to be from the “Decision of Secretary of State to grant extradition” and the date of the decision is given as “18/07/07”. In section 5, it is described as a “statutory appeal against the decision of the Secretary of State (Home Office) to order the extradition of Vullnet Mucelli to Albania (Part 2) for the offences contained within the request from Albania dated 2^nd March 2007”.

On the other hand, filed together with the appellant’s notice, and referred to in section 6 of the notice (which requires the grounds for appeal and the supporting skeleton argument to be set out on a separate sheet or sheets), was a document entitled “Grounds of Appeal and Appellant’s Skeleton Argument”, headed “In the matter of an appeal under s.103 of the Extradition Act 2003”, identifying the Government of Albania as the respondent, stating clearly that the appeal was brought against the judge’s decision of 4 June 2007 to send the appellant’s case to the Secretary of State, and setting out detailed arguments directed solely at the judge’s decision.

The explanation for the differences between the appellant’s notice and the accompanying document is that the former was settled by the appellant’s solicitor, who filled it in erroneously, whereas the latter was settled by counsel, who correctly understood the nature and statutory basis of the intended appeal and who settled the grounds and skeleton argument accordingly.

It seems to me that regard must be had to the documentation as a whole when determining the true nature of the intended appeal, and that an appellant should not be defeated by errors in one part of the documentation which are counteracted in another part. Having considered the documentation in that light, I have overcome my initial doubts in the matter and am satisfied that the intended appeal can properly be treated as brought under s.103 rather than s.108. In those circumstances it is unnecessary to delve into factual evidence placed before the court as to communications between the appellant’s solicitor and the Administrative Court Office concerning the basis of the appeal, and as to amendments made to the appellant’s notice before it was served on the Home Office and on the Treasury Solicitor’s Department.

Before I move on from this topic, however, I would observe that the standard form of appellant’s notice was plainly not drafted with extradition appeals in mind and is not entirely appropriate for them. Section 2 presupposes that an appeal is being brought from a court, which is correct in the case of an appeal under s.103 but not in the case of an appeal under s.108. More importantly, part B of section 8 of the form contains tick boxes relating to an extension of time which are potentially misleading to an appellant since, as explained in the context of the next issue, the court has no power to grant an extension of time for an appeal in extradition proceedings.

Notice of an appeal under s.103 must be given within the period of 14 days starting with the day on which the Secretary of State informs the requested person of the extradition order. The case for the respondent government, supported by the Secretary of State, is that (1) the appellant was informed of the order by letter to his solicitors on 18 July (and also by letter sent on the same date to the prison where the appellant was detained), so that time began to run on 18 July; and (2) the giving of notice of an appeal involves both filing and serving the appellant’s notice, and although the appeal notice was filed with the court on 31 July, just within the statutory time limit, service of the notice on the respondent did not take place until a later date, outside the time limit. The appellant takes issue with both limbs of that argument and contends that notice of an appeal was given in time. It is common ground that, if notice of an appeal was given outside the statutory time limit, there is no power in the court to extend time and the court has no jurisdiction to entertain the appeal.

The two limbs of the argument call for individual consideration. It is, however, convenient first to set out the facts relevant to them both.

By letter dated 9 July 2007, the appellant’s present solicitors, Shearman Bowen & Co, wrote to the Home Office to request that its records be updated “to reflect the fact that this firm will [now] be acting for Mr Mucelli in the above matter”, namely the “Request By Albania For The Extradition of Vullnet Mucelli”. The letter further stated:

“For your records I enclose a signed authority from our client stating he wishes us to represent him on appeal to the High Court if The Secretary of State decides to order his extradition to Albania.”

A signed authority was duly enclosed with the letter. It was written in English. In it the appellant stated that he had sacked the solicitors who represented him at the extradition hearing in the magistrates’ court and that he now wished to instruct Shearman Bowen & Co “to represent me in my appeal”, and that his former solicitors had agreed that they would not oppose his request for his representation order to be transferred accordingly.

The extradition order was made on 18 July. By letter of the same date the Home Office informed Shearman Bowen & Co that the Secretary of State had ordered the appellant’s extradition, and enclosed a copy of the order. The letter also stated:

“Mr Mucelli has the right within 14 days to give notice of appeal against the Secretary of State’s decision (the giving [of] notice of appeal within 14 days requires the filing and service of the appellant’s notice within these 14 days). Under the Extradition Act 2003, these 14 days start with the day on which the Secretary of State informs you of his decision. If you attend [i.e. intend] to appeal, please note the Practice Direction supplementing Part 52 of the Civil Procedure Rules which governs extradition appeals and which requires that any papers filed at the High Court must also be served upon the Home Office and the Crown Prosecution Service. We should therefore be obliged if you would notify Colette Talbot here at the Home Office as to whether there is to be an appeal; and, in that event, if you would comply with the Practice Direction. Please note that the provisions in this paragraph also apply to an appeal under section 103 against the District Judge.”

That letter was sent to the solicitors by first class post and by fax. There was a confirmation of its receipt by fax at 12.52 on 18 July.

By letter dated 19 July Shearman Bowen & Co replied to the Home Office’s letter, stating that “notice and grounds of appeal will be lodged with the Administrative Court within 14 days”.

The Home Office also sent a letter on 18 July to the Governor of HMP Brixton, where the appellant was in custody on remand, informing him that the Secretary of State had ordered the appellant’s extradition, enclosing a copy of the order, and stating in its final paragraph:

“Mr Mucelli has the right to appeal to the High Court against the Secretary of State’s decision under Section 108 within 14 days. I should be grateful if you would notify him today and ensure that he understands the contents. Mr Mucelli’s solicitors have been notified. Should he decide not to appeal I would be grateful if you would inform me at the above address.”

That letter, too, was sent by post and fax. There was a confirmation of its receipt by fax at 12.53 on 18 July.

The solicitor at Shearman Bowen & Co who was representing the appellant was Mr Ticehurst. In a witness statement he states that he received a telephone call from the appellant on 23 July. The appellant told him that he had received some documents from the Home Office which had been pushed under his cell door. According to Mr Ticehurst, the appellant can speak English but he does not read English very well. From their conversation it became apparent that the appellant had received the extradition order. The appellant seemed confused by the contents of the documents, so Mr Ticehurst explained the meaning of the documents to him and explained that he had a right of appeal. The appellant confirmed that he wished to appeal.

There is nothing to gainsay the account set out in Mr Ticehurst’s witness statement. A helpful witness statement from Mr Wood, Joint Head of Casework in the Extradition Section of the Home Office, states that enquiries have been made at the prison and that no record appears to have been made of the means by which the correspondence was passed to the appellant, but that one possibility is that the documents may have been pushed under the appellant’s cell door by staff at the prison.

On 31 July Mr Ticehurst filed the appellant’s notice with the Administrative Court.

Mr Ticehurst’s evidence is that on 1 August, by way of service, he sent a letter enclosing copies of the appellant’s notice (including grounds of appeal and skeleton argument) to the Crown Prosecution Service via the document exchange and to the Home Office by post. There is, however, no actual record of any documents being sent on that date or any evidence that any were received.

The position of the Crown Prosecution Service is that it had no knowledge of the appeal until 1 October.

As to the Home Office, what happened is as follows. On 10 August the Treasury Solicitor’s Department wrote to Shearman Bowen & Co, referring to the solicitors’ letter of 19 July and the stated intention to appeal, and continuing:

“As your client’s case (CO/6536/2007) has been listed for hearing on 3 October 2007, you presumably lodged an appeal. However, you failed to serve the Home Office with the appeal papers. I refer you to the third paragraph of Miss Talbot’s letter to you of 18 July 2007, which sets out the provisions as to filing and serving.

You will, no doubt, wish to serve the Home Office with the appeal papers, even though such service is out of time. Please also send me a copy of the appeal papers.”

This resulted in a letter from Shearman Bowen & Co to the Treasury Solicitor’s Department, enclosing a copy of the appellant’s notice. The letter was dated 10 August but was received on 13 August. It apologised for late service and said that papers had been sent to the Home Office on 1 August but seemed to have gone astray. In fact, a letter from Shearman Bowen & Co enclosing a copy of the appellant’s notice was received by the Home Office on 13 August. That letter was dated 1 August but was postmarked 10 August. In a further exchange of letters between the Treasury Solicitor’s Department and Shearman Bowen & Co, the latter confirmed that the appeal was not intended to challenge the Secretary of State’s order but only the decision of the district judge.

Section 100 of the Act provides:

“(1)

If the Secretary of State orders a person’s extradition under this Part he must –

(a)

inform the person of the order;

(b)

inform him in ordinary language that he has a right of appeal to the High Court;

(c)

inform a person acting on behalf of the category 2 territory of the order.

…

(4)

If the Secretary of State orders a person’s discharge under this Part he must –

(a)

inform him of the order;

(b)

inform a person acting on behalf of the category 2 territory of the order.”

There is no specific statutory provision as to the method by which persons are to be so informed. Nor are there any rules prescribing the method to be adopted.

The appellant’s case is that he had to be informed of the order personally, in terms that he was able to understand, and that that was not done until the relevant information was communicated to him by his solicitor in their conversation on 23 July. Mr Cooper prayed in aid the language of s.100(1)(a) and (b), that the Secretary of State must inform “the person” of the order and must inform him “in ordinary language” that he has a right of appeal, which he contrasted with the provision in s.100(1)(c) as to informing the agent of the requesting state.

Mr Watson, for the Secretary of State, pointed to the range of situations in which the Act provides for the requested person to be informed of relevant matters, and submitted that the Act cannot sensibly be read as requiring a single method of communication in all cases. The phrase “inform the person” is used in two broad circumstances. The first is where the requested person is brought before the judge and is physically present in court at a time when the judge is required to inform him: see ss.8(1)(b), 72(7), 74(7) and 92(2). In those cases it is clear that the Act contemplates direct personal communication of the information. The second broad circumstance is where a warrant or request is withdrawn and the court (which may be the High Court or the House of Lords where an appeal is pending) therefore orders the person’s discharge and, if he is not before the court at the time the order is made, is required to inform him of the order as soon as practicable: see ss.41(4), 42(4), 43(5), 122(4), 124(5) and 125(5). In those cases, it is submitted, the Act must contemplate that the court’s duty can be discharged by notifying the person in accordance with the relevant rules of procedure (for example, in accordance with the Civil Procedure Rules in the case of the High Court). The Secretary of State is in a similar position under s.100 and the Act must contemplate that he can discharge his duty to inform the requested person by adopting a method of communication of the same kind as is available to the court.

Developing the point about normal rules of procedure, Mr Watson submitted that the sending of a letter by fax to a person’s solicitor, as occurred in this case, will generally constitute valid service under both criminal and civil rules: see Criminal Procedure Rules, rules 4.3 to 4.6, and Civil Procedure Rules, rules 6.2 and 6.4. The same applies under the procedural regime established for immigration cases: see the Immigration (Notices) Regulations 2003, regs. 4(3) and 7(1). The duty to inform under s.100 of the Act should be interpreted as permitting the information to be communicated in the same way.

In my judgment, Mr Watson is correct in his submission that the Secretary of State can discharge his duty to inform the requested person under s.100 by means of a letter sent to the person’s solicitor and that such a letter can be sent by any of the normal methods of communication, including fax. The language of the section does not compel the conclusion that there has to be direct personal communication to the requested person. The requirement in s.100(1)(b) to inform the person “in ordinary language” of his right of appeal is perhaps a pointer in that direction but is not inconsistent with the possibility that he may be informed through his solicitor. The requirement in s.100(1)(c) that the information be given to the agent of the requesting government does not mean that, by contrast, the information must be given under s.100(1)(a) and (b) to the requested person himself rather than to an agent: the requesting government has to act through an agent in the extradition proceedings and it makes sense to provide for the information to be given to the agent rather than to the government itself. More generally, I do not think that s.100 can have been intended to operate differently from those sections where the court has to provide information to a person who is not before it; and in each case, as it seems to me, Parliament must be taken to have intended that communication of the information by letter to the requested person’s solicitor would suffice. That is the general position under the procedural rules of English law, against the background of which the statute was enacted.

It does not follow that the full detail of those procedural rules, for example as to alternative methods of service and deemed date of service, is to be imported into s.100. The details differ in any event as between the Criminal Procedure Rules and the Civil Procedure Rules, and I see no warrant for “selecting” one set of rules in preference to another, as Mr Watson suggested the court might do. The rules assist in determining whether a particular form of communication can have been intended to be effective for the purposes of s.100, but they do not constitute a legislative code governing the communication of information under the section.

If, as I have held, information can be given by means of a letter to the requested person’s solicitor, it is obvious that the letter can be English. In any event I would reject the contention that the information must be given to the requested person in a language that he understands and that a letter in English will therefore not suffice if the person cannot read English. Had it been intended to impose a requirement as to the language in which the information was to be given, I would have expected the section to contain express wording to that effect (just as there is an express requirement to inform the person “in ordinary language” of the right of appeal). Moreover, there is no greater reason to imply such a requirement into s.100 than into any of the sections that provide for the court to give information to the requested person if he was not before the court when the relevant order was made; yet it cannot have been intended that the court, contrary to established practice, would have to translate documents into a language other than English (even assuming that it was able to ascertain what language or languages the requested person could read) in order to comply with its obligation to provide the information.

Mr Watson took the court de bene esse to the report in Hansard of part of the debate by the Grand Committee of the House of Lords on the Extradition Bill (18 June 2003, cols. GC320-GC326). An amendment to insert the words “in a language he understands” into what is now s.100 was moved but was withdrawn following Government opposition to it. I doubt whether the conditions in Pepper v Hart [1993] AC 593 for recourse to such material are met; but if and to the extent it is admissible, it supports the Secretary of State’s contention that s.100 does not require the information to be given in a language other than English.

Mr Watson also pointed to the practical difficulties that would arise if the appellant’s case in respect of s.100 were accepted. The Secretary of State would not necessarily know what language or languages the requested person understood. There would be scope for the person to feign a lack of comprehension. The Secretary of State would be burdened with an unprecedented duty of translation and personal communication which it would be extremely difficult to fulfil. There would be uncertainty as to precisely when the information was communicated and, therefore, when time began to run for removing the person. The efficacy of the strict statutory timetable for extradition procedures would be undermined. Those concerns serve to strengthen my view that Parliament cannot have intended s.100 to operate in such a way.

Turning to the particular facts of this case, I am satisfied that the letter sent by the Home Office to Shearman Bowen & Co on 18 July (para 43 above) constituted compliance with the Secretary of State’s obligation under s.100 to inform the appellant of the extradition order and to inform him in ordinary language of his right of appeal. The firm had notified the Home Office that it was acting for the appellant and it had provided relevant contact details. It is sufficiently clear from the firm’s letter of 9 July and the enclosed legal authority signed by the appellant (para 42 above) that the firm’s authority to act for him was not limited to the intended appeal but encompassed dealings with the Home Office from the time when the firm was instructed.

The Home Office’s letter communicating the information about the order was sent and received by fax on 18 July: its receipt on that date is confirmed by Mr Ticehurst. Accordingly, 18 July was the day on which the Secretary of State informed the appellant of the order and was the first day of the permitted period for an appeal as laid down by s.103(9) (see below).

On the view I have taken of the matter, it was strictly unnecessary for the Secretary of State to do more than send the letter to the appellant’s solicitors. It was for the solicitors then to communicate in the normal way with their client, in the knowledge that the time for appealing ran from the date of receipt of the letter by them. Nevertheless the Secretary of State did also send a copy of the order to the governor of the prison where the appellant was detained, requesting the governor to notify the appellant as described at para 45 above. I would reject Mr Cooper’s submission that this casts light on the extent of the Secretary of State’s duty under s.100 or even on his perception of that duty. It was a perfectly sensible additional measure to take even if the duty under s.100 was fulfilled by the letter to the solicitors. Whether, on the evidence as to what happened within the prison, it would in itself have been an effective method of fulfilling the duty under s.100 is questionable but does not need to be resolved.

As already mentioned, s.103 gives a right of appeal to the High Court against a judge’s decision to send a case to the Secretary of State. Such an appeal can be brought before the date of the Secretary of State’s decision, in which case the appeal must not be heard until after the Secretary of State has made his decision; or the requested person can wait until the Secretary of State’s decision before bringing the appeal. An appeal is, however, subject to a strict outer time-limit laid down by s.103(9):

“Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period which is 14 days starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the order he has made in respect of the person.”

The rules of court applicable to appeals under s.103 are contained in para 22.6A of the Practice Direction to CPR Part 52, the most important provisions of which are these:

“(5)

Where an appeal is brought under section 103 of the Act, the appellant’s notice must be filed and served before the expiry of 14 days, starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the Act of the order he has made in respect of the person.

…

(12)

Where an appeal is brought under section 103 … of the Act, the appellant must serve a copy of the appellant’s notice on –

(a)

the Crown Prosecution Service; and

(b)

the Home Office,

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.”

CPR rule 52.4(3), to which reference is there made, provides that unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent “(a) as soon as practicable, and (b) in any event not later than 7 days, after it is filed”.

Reading those provisions together and in the context of the framework established by the Act, it would seem that the normal requirement in rule 52.4(3) to serve the appellant’s notice on each respondent as soon as practicable, and in any event not later than 7 days, after it is filed is displaced by the specific requirement in para 22.6A(5) of the practice direction to file the notice and to serve it on each respondent before the end of 14 days starting with the day on which the Secretary of State informs the requested person under s.100(1) or (4) of the order he has made. If the Crown Prosecution Service and the Home Office are not parties to the appeal, there is an additional requirement to serve them. It is not altogether clear from the wording of para 22.6A(12) whether the requirement is to serve them within the same 14 day period or whether it is to serve them as soon as practicable, and in any event not later than 7 days, after the notice is filed; but nothing turns on the difference on the facts of the present case.

Before referring to the authorities on how those various provisions are to be applied, I should mention s.213, which governs the circumstances in which an extradition request is deemed to be disposed of. It provides, so far as material:

“(2)

A request for a person’s extradition is disposed of –

…

(c)

when an order is made for the person’s extradition in pursuance of the request and there is no further possibility of an appeal.

(3)

There is no further possibility of an appeal against an order for a person’s … extradition –

(a)

when the period permitted for giving notice of an appeal to the High Court ends, if notice is not given before the end of that period;

…

(5)

These must be ignored for the purposes of subsections (3) and (4) –

(a)

any power of a court to extend the period permitted for giving notice of appeal or for applying for leave to appeal;

(b)

any power of a court to grant leave to take a step out of time.”

In District Court of Vilnius City v Barcys [2007] EWHC 615 (Admin) the requesting authority’s appeal against the decision of a district judge to discharge the requested person was dismissed by the Divisional Court on the basis that notice of the appeal had been given out of time and the court therefore had no jurisdiction to entertain it. It was a Part 1 case and the appeal fell under s.28, which provides in subs.(5) that “[n]otice of an 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”. Para 22.6A(3)(a) of the Part 52 Practice Direction provides that in the case of an appeal under s.28 “the appellant’s notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made”. The appellant’s notice in Barcys had been neither filed nor served within the permitted period of 7 days.

The court held that notice of an appeal is “given” by filing and serving the appellant’s notice and that this must be done within the period of 7 days, with no power to extend the statutory time limit: see, in particular, per Latham LJ at para 11 and per Davis J at paras 18 and 26. Applying R v Soneji [2006] 1 AC 340, it was held to be the legislative intention that acts done in breach of the statutory provision as to time-limits be invalid and null. The effect of s.213 is that once the 7 day period permitted by s.28(5) has passed, there is no extant warrant justifying the continuation of proceedings, and s.213(5) is intended to ensure that the warrant cannot be resurrected by any exercise of the court’s power to extend the time limits.

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.26(4) as to an appeal by the requesting authority under s.28(4); and that, since the requested person had filed his notice of appeal out of time, the court had no jurisdiction to entertain it.

In the present case, the appellant’s notice was filed within the 14-day permitted period under s.103(9) but was served on any view outside that period. Application of the reasoning in Barcys and Mendy would seem to lead inevitably to the conclusion that notice of appeal was given out of time and that this court therefore has no jurisdiction to entertain the appeal.

Mr Cooper submitted that Barcys and Mendy were distinguishable or were wrongly decided and should not be followed. I am satisfied, however, that s.103(9) is materially identical to ss.26(4) and 28(4), even though the permitted period under it is longer, and that the reasoning in Barcys and Mendy bites upon it in exactly the same way. It is true that there is a factual difference between the cases, in that the appellant’s notice in this case, unlike that in both Barcys and Mendy, was filed in time, but in each case the notice was served out of time and the reasoning bites equally upon service as it does upon filing. I am also satisfied that this court should follow Barcys and Mendy. No detailed argument has been addressed to us to support the contention that they were wrongly decided, and the right course is for this court to follow them unless convinced that they were wrongly decided (R v Manchester Coroner, ex p. Tal [1985] QB 67).

In the course of the hearing the court raised for consideration whether it might be possible to rely on the power to dispense with service under CPR rule 6.9 as a means of tempering the inflexibility of the conclusion reached in Barcys and Mendy. The point was not considered in those cases and would have had no significance on their particular facts (given the failure to file as well as to serve the notice in time). It stems from the reasoning in Pollard v The Queen [1995] 1 WLR 1591, a Privy Council case cited by Mr Cooper.

Pollard concerned an appeal to the Eastern Caribbean Court of Appeal by a man who had been convicted of murder and sentenced to death. Notice of appeal against conviction had to be made “in such manner as may be directed by rules of court”. The appellant’s notice was taken for filing within the time limit but was returned as defective because it had been signed by counsel rather than by the appellant, as the rules required. There was no power under the statute to extend the time limit. The Court of Appeal held that it had no jurisdiction to hear the appeal. The Privy Council, however, accepted a submission that found a way around the jurisdictional bar. Rule 11 allowed non-compliance with a rule to be waived in certain circumstances where it was in the interests of justice to do so. It was held that non-compliance with the rule requiring the appellant’s notice to be signed by the appellant could be waived pursuant to rule 11, thereby validating the notice from the date of its lodging. Lord Jauncey of Tullichettle, giving the judgment of their Lordships, put the point this way (at p.1594):

“A notice which does not comply with a particular rule but in respect of which that non-compliance has been subsequently waived under another rule is nonetheless a notice ‘in such manner as may be directed by rules of court’ within the meaning of [the statute]. The waiver validates the notice from the date of its lodging and does not merely bring into existence for the first time a valid notice when rule 11 is applied.”

The question is whether an analogous procedural possibility exists here. Under CPR rule 6.9 the court may, on an application made without notice, make an order dispensing with service of a document. It has been held that the rule is sufficiently widely worded to entitle the court to dispense retrospectively with service of a claim form in an appropriate case (Anderton v Clwyd County Council [2002] EWCA Civ 933, [2002] 1 WLR 3174), and the same must in principle apply to an appellant’s notice. Mr Cooper invited the court to exercise the power here. If that course were adopted, the result would be that notice of an appeal was given in this case within the permitted period and the court would have jurisdiction to entertain the appeal. That is because notice of an appeal must be given under s.103(9) “in accordance with rules of court”; the requirement under the rules to file the appellant’s notice within the period was complied with; and there would be no further requirement under the rules to serve the notice within that period since the requirement would have been dispensed with, so that the fact of late service would cease to have any significance. Thus there would be a clear parallel with the reasoning in Pollard.

Whilst the court has the discretionary power under rule 6.9 to achieve such a result, there are in my judgment compelling reasons why it should not exercise its discretion in that way.

One of the questions addressed in Godwin v Swindon Borough Council [2001] EWCA Civ 1478, [2002] 1 WLR 997, was whether the court was entitled to dispense with service under rule 6.9 in a case where the claim form had been issued just before expiry of the limitation period but had not been served within the time permitted and the conditions for an extension of time were not met. The court held that rule 6.9 could not avail the claimant in such circumstances. May LJ, with whom Pill LJ agreed, put the matter this way:

“50.

… The heart of the matter, in my view, is that a person who has by mistake failed to serve the claim form within the time period permitted by rule 7.5(2) in substance needs an extension of time to do so. If an application for an extension is not made before the current time period has expired, rule 7.6(3) prescribes the only circumstances in which the court has power to grant such an extension. … I do not consider that rule … 6.9 can extend to enable the court to dispense with service when what would be done is in substance that which rule 7.6(3) forbids. If rule 6.9 did so extend, it would be tantamount to giving the court a discretionary power to dispense with statutory limitation provisions ….”

The matter was considered further in Anderton (cited above), in which Mummery LJ, giving the judgment of the court, stated:

“55.

… As a general rule applications made for retrospective orders to dispense with service will be caught by the reasoning in Godwin. There may, however, be exceptional cases in which it is appropriate to dispense with service without undermining the principle in Godwin that rule 6.9 should not be used to circumvent the restrictions on granting extensions of time for service as laid down in rule 7.6(3) and thereby validate late service of the claim form.

56.

In our judgment there is a sensible and relevant distinction, which was not analysed or recognised in Godwin, between two different kinds of case.

57.

First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form.

58.

Second, an application by a claimant, who has in fact already made an ineffective attempt in time to serve a claim form by one of the methods allowed by rule 6.2, for an order dispensing with service of the claim ….”

In Cranfield v Bridgegrove Ltd [2003] EWCA Civ 656 the court emphasised that “[t]he Godwin principle is important, and must not be subverted. It will be subverted unless the power to dispense with service retrospectively is confined to truly exceptional circumstances” (para 32).

The situation here seems to me to be caught squarely by the principle in Godwin. The effect of the relevant statutory provisions, as held in Barcys and Mendy, is that notice of appeal must be given within the permitted period which cannot be extended. The statute does not address the possibility of dispensing with service and cannot be read as impliedly removing the power to dispense with service. But the reality is that the appellant needs an extension of time for service, which the statute precludes, and that the exercise of the power to dispense with service would have the same consequence as an extension of time and would circumvent the statutory time-limit. Furthermore, on the facts there was no attempt to serve the appellant’s notice in time: even if an attempt at service was made on 1 August, it took place just outside the permitted period. The case is therefore directly comparable to the first category identified in Anderton, which was held to be clearly caught by the principle in Godwin.

It is of course important to have regard to the difference in context. An extradition appeal engages issues of liberty and human rights that do not arise in relation to service of a civil claim form within the limitation period. Yet that does not take the matter very far in circumstances where Parliament has established a scheme which, whilst conferring the requisite protection for the individual through the availability of judicial supervision at all stages of the procedure, places an emphasis at every stage on speed and certainty. The non-extendable time-limit for appeals is a prime example of that. And once the Secretary of State has made an extradition order, s.117 provides that the requested person must be extradited within 28 days if no notice of appeal under s.103 or s.108 is given before the end of the permitted period (again ignoring any power of a court to extend the permitted period for giving notice of appeal). That is a tight timetable and the Secretary of State needs to know clearly where he stands in order to comply with it. He would be placed in real difficulty if a notice of appeal, although not served within the statutory time limit, were liable to be validated by the later exercise of the court’s power to dispense retrospectively with service.

It is true that in the particular circumstances of the present case the Secretary of State knew at all material times that there was going to be an appeal and was not misled by the absence of service of a notice. The letters of 9 July and 19 July from the appellant’s solicitor made clear the intention to appeal, and the correspondence in August shows that the Treasury Solicitor’s Department was aware of the filing of the notice of appeal and that the Home Office was proceeding on the assumption of an appeal. Thus in this individual case there would be no prejudice to the Secretary of State if service were dispensed with. Nor would there be any prejudice to the respondent government. Nevertheless the general point of principle made in the preceding paragraph remains a weighty consideration.

Another potentially relevant consideration, as mentioned in Anderton at para 59, is the explanation for late service. In this case the explanation is a lamentable failure by the appellant’s solicitor to effect service within the permitted period. There had been ample time for the purpose. A notice of appeal under s.103 could have been given at any time after the judge’s decision of 4 June; and Shearman Bowen & Co were instructed by 9 July and had the remainder of July in which to give such notice. Following notification on 18 July of the making of the extradition order it must have been appreciated that time was running out. In the event the appellant’s notice was filed on the last possible day and was not served until it was too late.

Mr Cooper submitted that the appellant should not be penalised for the fault of his solicitor. He relied heavily on FP (Iran) v Secretary of State for the Home Department [2007] EWCA Civ 13. In that case an immigration judge had heard and dismissed the appellant’s appeal in her absence, as he was entitled to do under the relevant procedural rules because notice of the hearing had been sent to her at her last known address. The problem was that her solicitors had failed to inform the AIT and the Home Office of her change of address. The Court of Appeal rejected an argument on behalf of the Secretary of State that there is a general principle of law which fixes a party with the procedural errors of his or her representative. It cited, for example, an observation of Lord Denning MR in R v IAT, ex parte Mehta [1976] Imm AR 38 that “[w]e never let a party suffer because his solicitors have made a mistake and are a day or two late in giving notice of appeal …. If she is out of time for appeal, she will be removed from this country, and it would be of no consolation to her to say that she has a remedy against her solicitor”. The court held that the rules in question were productive of irremediable procedural unfairness and unlawful, because the appellant had lost the opportunity to be heard through the default of her representative and not through her own fault.

The possibility of a requested person losing his right of appeal through the fault of his solicitor and not through any fault of his own is a matter of real concern. But if Barcys and Mendy are right and there is no power to extend the time limit, the legislature must be taken to have accepted that possibility in the interests of speed and certainty. Just as there is no general principle of law which fixes a party with the procedural errors of his or her representative, so there is no general principle of law which protects a party against the consequences of procedural errors of his or her representative. Everything depends on the circumstances. A key feature here is that the Act does not permit the court to extend time even if the failure to give notice of an appeal within the time-limit is not the fault of the appellant but of his representatives. If the court were to seize on the fact that the failure was the fault of the solicitor as a reason for exercising its discretion to dispense with service, it would be running directly counter to the legislative intention. One comes straight back to the principle in Godwin.

A further consideration to which I think it right to have regard in a discretionary decision of this kind is that of substantive merit. For reasons that I have covered earlier in this judgment, an appeal, if entertained, should in my view succeed on the basis of the decision in Government of Albania v Bleta, which this court would have to follow. That consideration tells in favour of the exercise of the power under rule 6.9. Again, however, I do not think that it should be decisive, given the strength of the principle telling against exercising the power so as to circumvent the statutory time-limit. Moreover, I have to say that in terms of broader merit this case does not strike me as one of the most sympathetic to come before the court, having regard to the nature of the charge against the appellant, the fact that he was convicted after a trial at which he had legal representation and at which his wife was acquitted, and the judge’s findings as to the appellant’s motivation for leaving Albania and as to his subsequent conduct.

Taking all the above matters into consideration I have reached the conclusion that it would not be proper for this court to exercise its power under rule 6.9 to dispense retrospectively with service.

For those reasons, I would dismiss the appeal on the ground that it is out of time and the court has no jurisdiction to entertain it.

At para 15 of Mendy the question was raised whether a requested person whose appeal was out of time might have some other remedy open to him, at least where it was contended that removal would be in breach of his Convention rights. I should make clear that in this case the respondent government disputed the existence of any such alternative remedy both in principle and on the facts, but the issue was not before us and has not been considered by us.

At an extremely late stage, when arrangements had been made with counsel's clerks for our judgment to be handed down and a draft to be circulated to counsel in advance, Mr Cooper sent further written submissions to the court in support of an argument that, by virtue of s.3 of the Human Rights Act 1998 and in order to safeguard the appellant's Convention rights, s.213(5) of the 2003 Act should be read as if it included the words "save in exceptional circumstances where the interests of justice so require". We accept that s.3 of the 1998 Act was touched upon in Mr Cooper’s original submissions, but we do not consider there to be any substance in the argument raised and in any event we are firmly of the view that the recent attempt to elaborate it came too late. The exchanges of submissions in this case have already been very protracted and should not be allowed to extend any further.

I agree entirely with the analysis and conclusions of Richards LJ. For the reasons he gives, I also would dismiss this appeal. I also agree that it is far too late for Mr Cooper to attempt to make further submissions concerning the interpretation of s.213(5) of the 2003 Act in the context of s.3 of the Human Rights Act 1998.