Henderson v Court of Appeal of Aix En Provence

LORD JUSTICE RICHARDS: On 6 April 2007, a European Arrest Warrant was issued by the Deputy Prosecutor of the Court of First Instance in Grasse, France for the arrest of Ahmed Farid Attar, also known as Michael John Henderson. Mr Henderson, as I shall call him, was arrested in this country and brought before the City of Westminster Magistrates' Court. His extradition to France was ordered on by District Judge Nicholas Evans on 5 February 2008. He now seeks to appeal against that order.

The first issue is whether this court has jurisdiction to entertain an appeal. The case falls under part 1 of the Extradition Act 2003. By section 26, subsection 4, notice of an appeal in such a case must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order was made. The relevant rule of court is CPR 52.2, which provides that all parties to an appeal must comply with the relevant practice direction. Paragraph 22.6A of the part 52 Practice Direction provides in turn that where an appeal is brought under section 26, the appellant's notice must be filed and served before the expiry of seven days starting with the day on which the order is made. In this case the appellant's notice was lodged on 11 February 2008, within the seven-day period specified, but it was not served on the Crown Prosecution Service acting for the Judicial Authority until a considerable time later, well outside the seven day period. The failure to serve the notice was the responsibility of the solicitors then acting for Mr Henderson, they ceased to act for him shortly afterwards, and I should make it clear he is currently represented by a different firm, and indeed by different counsel.

It was decided by the House of Lords in Mucelli v The Government of Albania, and Mulai v Deputy Public Prosecutor in Criteil, France [2009] 1WLR 276, that a notice of appeal against an Extradition Order must be both filed in the High Court and served on all respondents to the appeal within the specified period, that is within the period of seven days in a case under part 1 of the 2003 Act, and that failure to comply with the requirement as to filing or service renders an appeal irredeemably out of time and deprives the court of jurisdiction to entertain it.

The present case was twice adjourned pending the decisions of the Divisional Court and then of the House of Lords in Mucelli and Moulai. On the face of it the decision of the House of Lords is fatal to the attempted appeal, in view of the failure here to serve the appellant's notice within the period specified. At one point that appeared to be acknowledged by those representing Mr Henderson. Before us, however, Mr Cooper has made a brave attempt to argue that the court has jurisdiction, notwithstanding what was laid down in Mucelli. He says that the substantive issues sought to be raised by the appeal include issues as to the validity of the European Arrest Warrant, and that this court has the power and duty pursuant to EU Law to determine the validity of the Warrant and to discharge Mr Henderson if the Warrant is invalid. Mr Cooper submits that this is a new argument not considered by the Divisional Court or the House of Lords in the previous cases. Mucelli itself was a part 2 case which was not governed by EU Law, and although Moulai was a part 1 case, no argument based on EU Law was in fact advanced in it.

The EU Law argument is based on the council framework decision of 13 June 2002 governing the European Arrest Warrant procedure. To take the matter first by reference to Mr Cooper's written skeleton argument, it is submitted that part 1 of the 2003 Act must be interpreted, so far as possible, in a manner consistent with the framework decision, and that in any event the framework decision generates directly effective rights on which Mr Henderson can rely to resist an unlawful extradition and/or imposes duties on this court to prevent an unlawful extradition. Emphasis is placed on the provisions of the framework decision that lay down in mandatory terms the form and content of a European Arrest Warrant, and to provisions of the framework decision and of the Treaty on European Union concerning respect for fundamental human rights. In that connection reference is also made to the right in Article 13 of the European Convention on Human Rights to effective remedy for violation of that convention. Reference is made, in addition, to R~(Government of the United States of America) v Bow Street Magistrates' Court [2007] 1WLR 11(57), in which Lord Phillips of Worth Matravers CJ giving the judgment of the court, expressed agreement with a submission that the standards required by Article 13 of the Convention should apply to extradition proceedings (see paragraphs 62(i) and 90 of that judgment). All of this is submitted to lead to the position that where the validity of a European Arrest Warrant is in issue, this court must dispense with the requirement of service of the appellant's notice so as to bring about the position in which an appeal may be entertained. Only in that way, it is said, can the court provide an effective remedy to a person who is the subject of an invalid warrant and act so as to prevent unlawful extradition.

It is unnecessary to examine the fine detail of those submissions. In my view they overlook the fact that Mr Henderson has already had a judicial hearing before the District Judge at which it was open to him to take any point he wished as to the validity of the European Arrest Warrant against him, or non-fulfilment in other respects of the statutory conditions for his extradition. The District Judge considered all points that were taken before him, including points as to the validity of the Warrant. He ruled against Mr Henderson and ordered his extradition.

Our domestic procedural rules allow an appeal against that decision if, and only if, tight time limits are observed. Section 34 of the 2003 Act provides that a decision of the District Judge may not be questioned in legal proceedings otherwise than by means of an appeal. Nothing in the framework decision itself, in EU Law generally or in the Convention, precludes such time limits or requires an appeal to be entertained where there has been a failure to comply with time limits. On the contrary, the framework decision contemplates a streamline procedure within which the timetable in part 1 has been held to be entirely consistent (see Mucelli paragraph 66, per Richards LJ). Strict time limits are accepted and applied under EU Law and under the Convention. It can not seriously be suggested, in my view, that where there existed a right of appeal, that the right had been lost through a failure to comply with the statutory time limit. Article 13 of the Convention, whether or not taken in conjunction with EU Law or any other provision of EU Law or of the Convention, requires the court to entertain an appeal in defiance of and circumvention of the statutory time limit.

Mr Cooper's skeleton argument also contains submissions based on Article 5 of the convention, including the requirement that extradition proceedings must be prosecuted with due diligence if they are to be justified under Article 5(1)(f). For my part however, I can not see how any such arguments can assist in establishing jurisdiction to entertain an appeal from the District Judge's decision.

In his oral submissions this morning, Mr Cooper has, to some extent, restated his basic propositions, though he has taken us through the material in his skeleton argument as providing support in his submission for those propositions. He has submitted, first, that the United Kingdom is in breach of EU Law by bringing into being, through the 2003 Act, an inflexible law in relation to appellants who have lodged their appeal on time but have served it out of time, and who are thereby denied access to an Apellate Court to review the legality of their extradition in cases where the lower court is alleged to have made an error of fact or law. It is submitted that permitting extradition without correction of such an error would be contrary to the terms of the framework decision. It is further submitted that the United Kingdom's implementation of the framework decision has been insufficiently precise to comply with the principle of legal certainty. As to that, reference is made to an observation of mine, in giving judgment in Mucelli in the Divisional Court, that the standard form of appellant's notice was misleading and incorrect in referring to the possibility of applying for an extension of time. Reference is also made to observations of mine in Gercans v Government of Latvia [2008] EWHC 884 Admin, about the problems that can arise in relation to attempted filing of an appellant's notice when the court office is closed. Mr Cooper has submitted that if the court is minded to find against him on those points, it should make a reference to the European Court of Justice under Article 234 of the EC Treaty, though the precise terms of the suggested reference have not been elaborated.

To my mind the reformulation of Mr Cooper's propositions on the appellant's behalf adds nothing to the substance of his argument. I have already indicated why the argument, as expressed in the written skeleton argument, is unsustainable, in my judgment its reformulation orally is equally unsustainable, essentially for the same reasons.

I have referred to Mr Cooper's submissions as brave, in my view they are also wholly unrealistic. I am satisfied that this appeal was out of time; that the court does not have jurisdiction to entertain it, and that nothing in EU or Convention Law compels any other conclusion; that there is no doubtful issue of EU Law requiring or justifying a reference to the European Court of Justice under Article 234. The issue can, and should be, determined by this court on the basis of what I consider to be the clear legal position established by the House of Lords in Mucelli, and in relation to which no doubt is cast by the submissions put forward by Mr Cooper.

For those reasons I would dismiss the appeal. It is inappropriate in the circumstances to express any view of the substantive issues that Mr Cooper has sought to raise with regard to the validity of the Warrant, or in relation to a further argument that it would be oppressive to extradite Mr Henderson in view of his physical and mental health.

MR JUSTICE MADDISON: I agree.

LORD JUSTICE RICHARDS: Mr Cooper, you have mentioned in the course of your submissions that you would wish this court to certify your point of general public importance. What are the terms of the point that you ask this court to certify?

MR COOPER: My Lord, the point that I would invite this court to certify is that which I read out previously, which is --

LORD JUSTICE RICHARDS: Where the United Kingdom is in breach of EC Law by bringing in an inflexible law etc?

MR COOPER: Indeed, yes.

LORD JUSTICE RICHARDS: And whether a permutation of the framework decision is insufficiently precise to comply with the what is being served?

MR COOPER: Indeed.

LORD JUSTICE RICHARDS: No, we decline to certify. We are not satisfied that there is any issue of substance that has been raised by the arguments we have heard so far.

MR COOPER: My Lords, I am grateful.

LORD JUSTICE RICHARDS: Is there any further order that is required?

MR HINES: No, thank you, my Lord.

LORD JUSTICE RICHARDS: Thank you very much. Thank you Mr Hines for your skeleton argument, even though we did not need to call on it. And thank you again, Mr Cooper.