Chodan v United States of America

LORD JUSTICE MOSES: On 16 June 2010 the Secretary of State informed the applicant that she had made an order for extradition pursuant to Section 100 (1) (a) of the Extradition Act 2003 (2003 Act). She did so by fax, received at 15.54 hours on that day. It is not disputed that notification by that method satisfied the requirement under that section that the Secretary of State must inform a person if she orders a person's extradition under Part II of the Act (see Mucelli v Government of Albania [2008] 1 WLR 2437, paragraph 57 (Divisional Court)).

The extradition was ordered in respect of this applicant for the purposes of standing trial for offences of conspiracy to violate the Foreign Corrupt Practices Act and violating and aiding and abetting violation of the Foreign Corrupt Practices Act.

The applicant was arrested pursuant to a request by the Government of the United States of America for extradition on 10 August 2009. On 20 April 2010 District Judge Tubbs at Westminster Magistrates' Court sent the applicant's case to the Secretary of State for her decision whether to order extradition pursuant to Section 87 of the 2003 Act. On 16 June 2010 the Secretary of State ordered the applicant's extradition to the United States of America pursuant to Section 93 of the 2003 Act. As I have indicated, that order was communicated to the applicant's solicitors by fax received at 15.54 hours on 16 June.

On the afternoon of 30 June 2010 the applicant attempted to file with the Administrative Court Office and serve on the Crown Prosecuting Solicitor a notice of appeal against the order of District Judge Tubbs. The court, and the Crown Prosecution Service, refused to accept either filing or service on the basis that that notice of appeal was outwith the 14-day time limit specified in Section 103 (9) of the 2003 Act. This reads:

Mr Winter QC, on behalf of the applicant, contends that since his client was only informed of the order at 15.54 hours on 16 June he had until one minute before 15.54 on 30 June to serve notice of appeal. Anything less, so he contends, amounts to an unlawful curtailment of the time within which the statute confers the right to appeal. He achieves that result on two distinct bases. First, he contends that by virtue of Part 4 of the Criminal Procedure Rules 2010 time for giving notice of appeal did not start to run until the next business day after the fax was transmitted (see Rule 4.10.2 (d) of the 2010 Rules); that would be 17 June 2010. He says that the Secretary of State was a participant under Rule 1.2 (1) and required to comply with the Rules under Rule 1.2 (1) (b).

The proceedings for extradition before the District Judge at Westminster was a criminal case for the purposes of Rule 2.1 (a). This submission, he observes, is fortified by Part 17 of the Rules which applies specifically to extradition proceedings.

The difficulty, in my view, with that submission is that the Criminal Procedure Rules do not apply to the making of an order for extradition by the Secretary of State under Part II of the 2003 Act. By Section 87 of the Act, where the district judge has decided the matters identified in Section 84, Section 85 or Section 86, the District Judge is required to consider whether extradition is compatible with the (Convention Rights) of the person whose extradition is sought (see Section 87 (1)). If the District Judge decides in the affirmative, he is required to send the case to the Secretary of State for decision as to whether that person should be extradited (see Section 87 (3)). This is the trigger for the right of appeal under Section 103 (1). A person whose extradition is sought may give notice at any time thereafter although the appeal cannot be heard until the Secretary of State has made her decision (see Section 103 (5)). Thus the period during which notice of appeal may be given could be much longer than 14 days. If the District Judge does send the case to the Secretary of State for decision he is required to inform the person whose extradition is sought of his right to appeal pursuant to Section 92 (2) (a).

The Secretary of State's consideration of whether to make an order for extradition is pursuant to Section 93 of the 2003 Act. The Secretary of State must make the decisions and the orders or decide not to make an order as required under Section 93. Any decision or order she makes is identified in Section 93. There is no basis for regarding the Secretary of State's consideration under Section 93 or her order under Section 93 (4) as being criminal proceedings to which the Criminal Procedure Rules apply at all. The process of the Secretary of State's consideration under Section 93 is an independent statutory process, independent of criminal proceedings and of criminal procedure. Those processes are not criminal proceedings to which the Rules apply.

There is no other basis for applying [the] Criminal Procedure Rules or any rules to the process whereby the Secretary of State makes an order under Section 93 and informs a person of that order under Section 100. It is settled that the reference to the Rules in Section 103 (9) is a reference only to the manner in which notice is to be given and not to the time within which notice is to be given (see paragraph 75 of Mucelli).

The second basis advanced on the submission made by Mr Winter turns on the meaning of Section 103 (9). Mr Winter contends that Section 103 (9) identifies the permitted period within which notice of appeal is to be given as, in effect, 14 periods of 24 hours running consecutively from the time when a person whose extradition is sought is informed that the Secretary of State has made an order. Thus this applicant had until 3.53 on 30 June 2010 in which to give notice of appeal. Anything less, so Mr Winter contends gives less than the 14 days which the statute provides as the permitted period within which notice of appeal must be given. He contends that the provision of Section 103 (9) displaces the provisions of the Civil Procedure Rules - Civil Procedure Rule 2.8 - which provides that by Civil Procedure Rule 2.8 (2):

The difficulty with that submission is that the statute does not give 14 days from the time when the Secretary of State informs the person of the making of the order. It gives as the permitted period 14 days starting with the day on which the Secretary of State informs the person of the order she has made. The statute identifies the start of the permitted period as a day, not as a time. In order to identify the start of the permitted period, Section 103 (9) asks what day it was that the Secretary of State informed the person of the order he had made. The answer in the instant case is 16 June 2010. The answer is not 3.54 pm on 16 June 2010. The statute does not ask at what time on what day the Secretary of State will inform the person of the order she had made. If it had wanted to say that then the statute could have done so (see, for example, Section 35 (4) in Part I of the 2003 Act).

Mr Winter says it is impossible to conceive of the time for appealing starting to run before the information had been given by the Secretary of State or possibly even before she had decided to make the order. Not so. The statute has to identify a starting period and has done so by reference to a particular day, not a particular time. That is not surprising. There is an obvious need to identify the period limited for appeal with clarity. References to time would only lead to dispute and uncertainty, particularly where clocks were not synchronised on fax machines. There was even a dispute in this case as to when the fax by way of notice of appeal was received. Precision is important, not just in respect of those whose extradition is sought but also to identify the period in which extradition must be executed (see, for example, Section 117 (2) in Part II of the 2003 Act).

Accordingly, I would rule that the period within which notice of appeal should have been given in the instant case expired on 29 June 2010 and notice of appeal was given outwith the period permitted under Section 103 (9).

MR JUSTICE WYN WILLIAMS: I agree.

LORD JUSTICE MOSES: What is the context in which I have said all of that?

MR WINTER: As far as we are concerned, your Lordship ordered that this preliminary point be heard today. At one point you imagined that if I had succeeded we might continue with the substantive grounds of the appeal.

LORD JUSTICE MOSES: Until I heard Mr Perry was not available.

MR WINTER: Quite. It therefore seems to us that this is a matter that falls within the Extradition Act, and should we wish to apply for leave to appeal we would be governed by Section 114 (5) of the Act which would give us 14 days starting with today as day 1.

MISS DOBBIN: In Mucelli that is exactly the process by which the appeal ultimately reached the Supreme Court.

LORD JUSTICE MOSES: It that all right?

MISS DOBBIN: My concern had been that Section 103, which is the appeal where the case has been sent to the Secretary of State, is an appeal against the relevant decision which obviously is the decision.

LORD JUSTICE MOSES: This is an appeal against the relevant decision, that is the decision of the district judge to send the case to the Secretary of State.

MISS DOBBIN: Yes. But the concern arises as to the conditions that you need to get through, to get your appeal before the House of Lords which is, again, contingent on that decision. Having seen that it went up that way through Moulai and Mucelli, I think so long as the court is clear that it is part and parcel of the statutory appeal then that would suffice.

LORD JUSTICE MOSES: Yes.

MISS CUMBERLAND: I adopt those submissions and invite the court formally to dismiss the appeal under Section 103 of the 2003 Act so as to indicate the parties are within the statutory scheme.

MR WINTER: That would make sense.

LORD JUSTICE MOSES: I shall dismiss the appeal on that basis.

MISS CUMBERLAND: I apologise. It is Section 104 (1) (c). I should have said that.

LORD JUSTICE MOSES: We will dismiss it pursuant to Section 104 (1) (c). Is that it?

MISS CUMBERLAND: There are no other applications.