Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE RODERICK EVANS
Between:
RICHARD MARSH
Claimant
v
PRAGUE 6 DISTRICT COURT CZECH REPUBLIC
Defendant
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Ms C Dobbin (instructed by Saunders LLP) appeared on behalf of the Claimant
Ms C Lindfield (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
J U D G M E N T
LORD JUSTICE PILL: Mr Richard Marsh, the appellant, seeks to appeal against a judgment of District Judge Evans, sitting at the City of Westminster Magistrates' Court on 27th April 2010. The District Judge considered an application by Prague 6 District Court, Czech Republic, pursuant to a European Arrest Warrant ("EAW") dated 2nd April 2009 requesting that the appellant be surrendered to them so that he can serve the remainder of a six year sentence of imprisonment.
Sentence was imposed on 5th December 2007 and became final and enforceable with the judgment of the Municipal Court in Prague on 15th April 2008. Following protracted proceedings in the Czech Republic, the appellant had finally been convicted in his absence on 5th December 2007 and the decision of the Prague District Court was upheld by the Municipal Court. The remaining sentence to be served is 55 months and 11 days.
The District Judge ordered extradition. For present purposes it is not necessary to consider in more detail either the background or the reasons given by the judge.
Under section 26 of the Extradition Act 2003 ("the 2003 Act") a person whose extradition has been ordered under Part 1 of the Act may appeal to the High Court against the order. Section 26(4) provides:
"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 7 days starting with the day on which the order is made."
By virtue of that provision, any notice of appeal was required to be filed and served by 4th May 2010. The extra day beyond the seven was available because Monday 3rd May was a Bank Holiday (Moulai v Deputy Public Prosecutor in Creteil, France [2009] 1 WLR 276). For the purposes of section 26(4) the relevant rules are specified in the practice direction to Part 52 of the Civil Procedure Rules ("CPR"). CPR rule 52.2 provides:
"All parties to an appeal must comply with Practice Direction 52."
The relevant part of the practice direction provides:
In this paragraph, 'the Act' means the Extradition Act 2003.
Appeals to the High Court under the Act must be brought in the Administrative Court of the Queen's Bench Division.
Where an appeal is brought under section 26 or 28 of the Act –
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 must endorse the appellant's notice with the date of the person's arrest;
the High Court must begin to hear the substantive appeal within 40 days of the person's arrest; and
the appellant must serve a copy of the appellant's notice on the Crown Prosecution Service [CPS], 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.
It is agreed that it was necessary to serve the CPS in this case.
The appellant was unrepresented at the hearing before the District Judge which had taken place on 30th March 2010. His representation order was transferred to other solicitors on 15th April 2010, that is twelve days before judgment was given. It has since been transferred to the present solicitors and that transfer took place since the events which are material in this appeal.
On behalf of the appellant, Ms Dobbin submits that the appellant's solicitors sought to file an appeal. There is no doubt that the appellant wanted to appeal. On 4th May a completed notice was sent to barristers’ chambers with a request to file it. From information those solicitors have supplied to the present solicitors, it appears that there may have been a misunderstanding between them and chambers as to who would complete the notice of appeal. Those chambers are not the chambers of Ms Dobbin. In the event, on 4th May a completed notice was sent to chambers with a request to file it. A clerk from chambers attended the Administrative Court Office ("ACO") public counter at 3.35pm on 4th May to file the notice of appeal. The clerk did not have the requisite fee, and in its absence the clerk at the ACO did not accept the notice on issue or stamp it. The solicitors say that they were unaware of the £200 fee required to lodge the appeal.
CPR rule 2.5 provides:
Where these Rules require or permit the court to perform an act of a formal or administrative character, that act may be performed by a court officer.
A requirement that a court officer carry out any act at the request of a party is subject to the payment of any fee required by a fees order for the carrying out of that act.
It is accepted that by virtue of that provision a fee of £200 was required to lodge the appeal. CPR rule 3.2 provides:
"Where a step is to be taken by a court officer –
the court officer may consult a judge before taking that step;
the step may be taken by a judge instead of the court officer.
On the following day, 5th May, papers were again taken to the ACO with the requisite fee, but the ACO declined to issue because the statutory time limit for filing had expired. On 7th May a solicitor attended the ACO public counter to attempt to file the notice of appeal out of time. Mr Cowlin, Senior Legal Manager, agreed to refer the papers to a judge under CPR rule 3.2 for a determination as to whether the appeal should be issued. On 10th May Collins J ordered:
"I think the lodging of the appeal notice in time (or rather the attempt to do so) complies with the statutory provisions and time can be extended to enable the fee to be paid. Thus this appeal should proceed, but the Crown Prosecution Service may, if it thinks fit, seek to argue that the appeal was out of time. This had better be a Divisional Court if only to confirm (or reject) my view."
An unsealed notice to the CPS was sent with a letter of 11th May. It appears that a sealed copy of the appeal notice was served on the following day, that is seven and eight days out of time respectively.
The case has rightly been referred first for a determination of a preliminary issue as to whether the appeal can proceed. This is a jurisdictional issue. On behalf of the appellant, Ms Dobbin submits that the ACO could have accepted the notice of appeal on 4th May on the condition that the fee was paid promptly the next day. Alternatively, the court officer could have referred the matter to a judge before taking a final decision. It is submitted that the refusal to file the notice, or alternatively the failure to refer the matter to a judge, was an error on the part of the court officer. The decision is capable of remedy, it is submitted, either by virtue of the High Court's general supervisory jurisdiction over its own functions, or upon the operation of CPR rule 3.10. The appeal should be treated as having been both filed and served in time; alternatively, the court could treat the inability to file the appeal as one of impossibility and extend time for filing and serving.
In Mucelli v Government of Albania [2009] 1 WLR 276 (heard with Moulai, January 21st 2009) the appellant’s solicitor filed a notice of appeal at the High Court on the seventh day permitted and attempted to serve a copy of it on the CPS by fax. Since the fax was transmitted a few minutes after 4pm it was deemed by CPR rule 6.7 to have been served on the next business day and therefore outside the seven day time limit. It was held in the House of Lords that the notice of appeal had both to be filed in the High Court and served on all respondents to the appeal within the relevant period of seven days. It was held, Lord Roger of Earlsferry dissenting, that the court had no jurisdiction to extend that period or to dispense with service of a notice of appeal. Lord Phillips of Worth Matravers stated, at paragraph 1:
"Not without some hesitation I align myself with the reasoning and conclusion of Lord Neuberger. It seems to me that the draftsman of sections 26, 28, 103 and 105 of the Extradition Act 2003 was concerned not merely to make provision for the speedy implementation of the appropriate process for bringing an appeal, but for giving notice of this with equal expedition to those so vitally concerned. Where extradition has been ordered the authority that has, should there be no appeal, the responsibility for procuring the extradition within the very short 'required period' needs to know at the earliest opportunity if there is to be an appeal."
Lord Brown of Eaton-under-Heywood stated, at paragraph 37:
"If, moreover, the time for filing is unextendable, surely it makes no sense to allow time for service to be extendable, let alone to allow service to be dispensed with. True, in these particular cases, certainly in Mucelli, it would make a difference. But generally that would not be so. There is no more difficulty in serving in time than in filing in time and usually both will be, and invariably both should be, achieved more or less contemporaneously before the specified period elapses. And just as there is really very little purpose in allowing flexibility for the time of service when there can be none for the time of filing, so too there would be disproportionate disadvantages in such an arrangement, notably the complete loss of clarity and certainty so essential to the efficient and expeditious working of the new extradition scheme.
Against this background it seems to me tolerably plain both that section 26(4) is requiring the notice of any appeal to be both filed and served within the stipulated 7-day period and that this, being a statutory time limit, is unextendable. The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only insofar as is consistent with the filing and serving of the notice before the statutory time limit expires."
Lord Neuberger of Abbotsbury conducted a detailed analysis of the statutory scheme. Under the heading "Can the court extend the time for filing or for service?", he stated, at paragraph 73:
"The second question of principle is whether there is any basis on which the court could extend time for filing or service under sections 26(4) and 103(9) ...
Accordingly, it would be necessary to find some statutory basis for the court having power to extend time, or indeed to dispense with the service which section 26(4) requires. The only arguable such basis is to be found in the words 'in accordance with the rules of court', which, it is contended, incorporate the various provisions of the CPR to which I have just referred. I cannot accept that argument. First, the way in which the subsection is linguistically structured appears to me to mean that those words govern the way in which 'notice of an appeal' is to be 'given', not the time within which such notice is to be given, which is dictated by the closing part of the subsection."
Lord Neuberger’s second reason, which need not be spelt out, is in relation to the tight timetable required; a point Lord Brown had also considered.
In relation to service, Lord Neuberger stated, at paragraph 79:
"If, as I have concluded, section 26(4) requires the appellant's notice to be filed and served within seven days, the court can no more make an order dispensing with service than it can extend the time."
He concluded, at paragraph 80:
"For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal. For the same reasons, I reach the same conclusion in relation to section 103(9)."
At paragraph 82, Lord Neuberger repeated that "the reference to rules of court in the section govern the manner, not the time, of service" and stated at paragraph 83:
"Another point which arises is what happens if it is impossible to give notice on, or during the final part of, the last day. For instance, in relation to filing, the Court Office may be closed on the last day because it is Christmas Day or another Bank Holiday, and the Court office will be closed at some point in the late afternoon on the last day. Equally, the respondent's office may be closed for the same reasons."
Lord Neuberger referred to the decision of Lord Denning MR in Pritam Kaur v S Russell & Sons Ltd [1973] QB 336 at 349:
"... when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when time expires, then, if it turns out ... that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open."
Lord Neuberger added:
"I agree, and I can see no reason not to apply the same principle to service on a respondent in relation to the respondent's office. The fact that fax transmission can be effected at any time does not cause me to reconsider that conclusion."
Lord Carswell, at paragraph 28, agreed with Lord Brown and Lord Neuberger. As in the present case, it was the appellant’s solicitor who was in default.
It is submitted that the court officer was in error in refusing to file the appeal simply because the clerk had no means of paying the fee at the time of filing. The court officer's failure to file the appeal demonstrates, Ms Dobbin submits, either that he mistakenly believed that there was no power to accept filing on condition that the fee was paid as soon as possible, or that the discretion to do so was wrongly exercised. The error should be corrected in this court. If the court officer was minded not to issue the notice of appeal, the officer ought to have consulted a judge.
A further point is now made because there was submitted to the members of the court yesterday an internal note from the court office in relation to usual practice. This case was to be heard today, and the document was disclosed by me this morning to the parties:
"In the normal course of events if consulted I and my colleagues would have indicated that the appeal should be accepted, subject to a written solicitor's undertaking that the requisite fee will be lodged in 24 hours. It appears that in this case counsel's clerk was either not advised to obtain a written undertaking from his instructing solicitor or was not in a position to obtain the same."
Ms Dobbin adds to the submission that the officer ought to have consulted a judge the submission that he ought to have consulted a more senior officer, in which case a different course of events might have resulted. If it is accepted that the ACO ought to have accepted the notice of appeal, the notice should be treated as having been filed on 4th May or ought to be backdated to that date. Following the order of Collins J, the notice of appeal should also be treated as having been served on the CPS within time.
Those submissions have been developed orally by Ms Dobbin. This court has, she submits, an inherent jurisdiction to remedy errors. The action of the court officer on 4th May was a nullity. The appellant is entitled to be put in the position he would have been in had appropriate action been taken by the court officer. The court should treat the notice of appeal as having been filed and served on 4th May. Ms Dobbin accepts that if the inherent jurisdiction argument fails, any argument based on CPR 3.10 cannot succeed. If today is in fact the first day in which action can be taken, the document should be treated as having been filed and served on the CPS today, it is submitted. If the court decides today that filing of the document should have been permitted on 4th May, the court should treat the document as having been filed on that day. No service on the CPS is possible until today's order which would remedy the position. When the position is remedied, the document should be treated as having been served on 4th May.
Because of the statements in Mucelli that "the reference to rules of court in section 26 governs the manner not the time of service", reliance can be placed, submits Ms Dobbin, on the judgment of Sullivan LJ, with whom Wilkie J agreed, in Sciezka v Poland [2009] EWHC 2259 Admin. A notice of appeal had been faxed to the court within 7 days, if Sunday 18th January was excluded. Sullivan LJ stated at paragraph 11:
"There is no dispute that the document that was faxed to both the Administrative Court office and the respondent on Monday, 19th January was a notice of appeal against District Judge Tubbs' order. Was it filed and served on 19th January? The only reason why a hard copy of the notice of appeal was not filed on 19th January was because a senior legal manager in the Administrative Court office refused to accept it. With the benefit of hindsight, the subsequent decision in Mucelli makes it clear that the senior legal manager's decision was wrong."
(It should be made clear that the relevant events occurred before the House of Lords' decision in Mucelli about the extra day if the last day was a Sunday or Bank Holiday).
At paragraph 16, Sullivan LJ considered whether an "unavoidable emergency" as defined in paragraph 5.39 of the practice direction had occurred. Sullivan LJ stated at paragraph 21:
"Whereas the time for both filing and serving the notice of appeal is fixed by the Act and may not be extended by the court (nor may the court dispense with filing or service of the notice of appeal, see paragraph 80 of Lord Neuberger's opinion), the Act leaves the manner by which both filing and service of a notice of appeal are to be effected to the rules of court, ie the CPR supplemented by the relevant practice directions. Where procedural requirements governed by the CPR have not been complied with, the court has power to remedy the procedural error (CPR 3.10) and will do so if it is necessary in order to give effect to the overriding objective (CPR 1.2). This must apply with particular force to the very detailed procedural requirements which are not prescribed by the rules themselves, but which are contained within supplementary practice directions.
There is no doubt that a notice of appeal was faxed to (and received by) both the Administrative Court office and the respondent within the 7day period ... In my judgement, there can be no doubt whatsoever that this is an appropriate case in which the court should use its powers under the CPR to authorise the manner of filing and service of the notice of appeal that was adopted by the applicant's solicitors ...
For these reasons, I am satisfied that the court has power under the CPR to approve the manner in which the applicant's notice of appeal was filed and served within the 7day period. There is, therefore, a valid appeal ..."
Paragraph 25:
"I would emphasise that the decision in this case turns, in my judgement, entirely upon a particular and most unusual set of facts which, following the House of Lords decision in Mucelli, are unlikely to recur."
A different view was taken in this court in Regional Court in Konin, Poland, Polish Judicial Authority v Pawel Walerianczyk [2010] EWHC 2149 Admin. Stanley Burnton LJ, with whom Nicol J agreed, disagreed with the proposition inherent in Sciezka that service of a draft notice of appeal followed by service of a notice satisfies the requirements of section 26. Ms Dobbin submits that the court in the Konin case failed to consider the relevance of the error on the part of the court officer in Sciezka that the seven days had expired. Once it was subsequently established in Mucelli that the court office is not open for business on the last day for filing, a notice of appeal may be filed on the next day it is open. There was an error in the office in Sciezka which prevented filing on the seventh day. Service was also achieved within time.
As will have appeared, the present facts are very different from those in Sciezka, in particular in relation to service. No attempt was made to serve proceedings on the CPS within the seven day period. It is not, in my judgment, necessary in this case to attempt to resolve the difference of view about fax between the two constitutions of this court. In the present case there is no need to consider the impact of the case of Sciezka because of the differences of fact.
Reference was also made to the decision of this court in Arunthavaraja v Administrative Court Office [2009] EWHC 18921 Admin. The court was confronted with an argument somewhat similar to the present in relation to backdating. Richards LJ, with whom Maddison J agreed, stated at paragraph 11:
"Accordingly, if any useful purpose could be served by the issue of a notice of appeal now, backdated to 4 August 2008 when the notice was filed, I would be minded to direct issue of that notice. In order to decide, however, whether any useful purpose would be served by that course, I must turn to consider the question of service."
Richards LJ stated at paragraph 20:
"Even if a retrospective order were possible in other contexts, I do not think that one could properly make such an order in the present context, when it would have the effect of circumventing the statutory time limit. The House of Lords has made clear the absolute nature of that time limit and the unavailability of other means of avoiding the effect of the statute, whether by extensions of time or dispensing with the requirement of service. It seems to me that a retrospective order for substituted service would fall within the same vice as those other procedures and would be contrary to the legislative intention."
Richards LJ concluded at paragraph 28:
" Returning to the present case, for the reasons I have given I am satisfied that the notice of appeal was served here outside the statutory time limit and that the defect is not capable of being cured. It follows that the High Court lacks jurisdiction to entertain an appeal against the District Judge's extradition order."
I cannot accept an argument that it was impossible for action to have been taken at the appropriate time or that it is only if this court takes a favourable view of the position on the filing of the notice that the need for service arises. As Richards LJ has stated, the time limit covers both filing and serving.
A further point taken by Ms Dobbin is that once the court accepts, as it did in Moulai, that common law rules can have the effect of modifying a time limit, the same common law rules are capable of covering the situation in the present case and of providing a remedy for the appellant. I do not accept that submission. The decision in Moulai, in relation to not counting a bank holiday, is entirely different from the application made in the present case. The courts are prepared to deem that a bank holiday is not included within the seven day period. That does not open the door to common law remedies by way of exercise of the inherent jurisdiction as Ms Dobbin seeks.
I do not accept that the ACO was in error in declining to accept the notice of appeal on 4th May. A fee was required and was not provided. While there was a power to refer to the judge at 3.35pm, there was no duty to do so and no error of law in failing to do so. The appropriate officer was at the counter late in the afternoon on a day following a bank holiday. He was entitled to apply the rule as he did.
The court has explored with Ms Dobbin what might have happened had he taken a different view, as clearly sometimes happens on an attempt to file. Had the possibility of accepting an undertaking to pay the fee within 24 hours been raised, the barrister's clerk who had been sent to the office was in no position to give any undertaking. No arrangements had been made for him to report to the solicitors and it is entirely conjectural as to what might have happened had the point been raised with him. There is no clear evidence either from the clerk or the solicitors on this point.
It must not be overlooked that the duty to file and serve is that of the appellant, in this case acting by solicitors. It was for solicitors who had been instructed on 15th April to comply with the statute. They left filing until the last possible day. It was for them to ensure that the requirements in section 26(4) and the relevant rules were met and they cannot rely on the ACO to make good their default.
No request was made to refer to a judge or senior officer on 4th May. Moreover, there is no evidence of the solicitors showing any recognition of their duty to serve on that day. As I have said, no arrangements appear to have been made that the barrister's clerk who had been sent to the office should immediately fax it to the solicitors with a view to their serving it. Both filing, and service on the CPS, were required. Even though an application was later made to the judge, no attempt to serve was made until 11th May, that is seven days out of time, when it appears that an unstamped notice was sent with a letter.
Duties as to filing and serving are essentially, and for good reason, duties of solicitors. It was not appropriate to leave it to barristers chambers acting by a clerk to perform the duties of solicitors. The solicitors should have been aware of the requirement on filing to pay a fee. No question of emergency or impossibility arises; the acts required were routine acts within the everyday remit of litigation solicitors.
The effect of Mucelli on the present facts is plain. That too was a case in which it was the appellant’s solicitor who was in default. The duties are clearly stated by the majority in the House of Lords, as are the consequences of failure to comply with them. The notice of appeal was not filed and served within the time required by the statute and the court has no jurisdiction to extend time. The court has no jurisdiction, it follows, to consider an appeal by the appellant. I would add that the need for urgency and certainty and compliance with time limits in extradition proceedings, is well known and is considered in the cases to which I have referred.
For those reasons, I would state that the court has no jurisdiction to entertain this appeal which must accordingly be dismissed.
MR JUSTICE RODERICK EVANS: I agree.
LORD JUSTICE PILL: Are there any applications?
MS LINDFIELD: There is one, my Lord. My Lord having found that the notice was not issued and served within time, the applicant falls to be extradited pursuant to section 35, which is in cited in Mucelli at 289, tab 6.
LORD JUSTICE PILL: Yes.
MS LINDFIELD: At (b) the required period is --
LORD JUSTICE PILL: Sorry, what paragraph?
MS LINDFIELD: Section 35(3), the person must be -- paragraph 47, my Lord, page 289.
LORD JUSTICE PILL: Yes.
MS LINDFIELD: Citing section 35:
This section applies if —
the appropriate judge orders a person's extradition to a category 1 territory under this Part, and
no notice of an appeal under section 26 is given before the end of the period permitted under that section ...
The person must be extradited to the category 1 territory before the end of the required period."
Subsection (4) then gives the required period as 17 days starting with the day on which the judge makes the order, or "if the judge and the authority which issued the Part 1 warrant agree a later date, 10 days starting with the later date".
In the circumstances it was not possible to remove the applicant whilst the order of Collins J was undecided, so I would ask that the required period be extended from today by 17 days.
LORD JUSTICE PILL: How many days?
MS LINDFIELD: 17.
LORD JUSTICE PILL: 17 from today. Ms Dobbin?
MS DOBBIN: My Lord, I am afraid I do not think that is actually right for this reason. My Lord, under section 32 of the Extradition Act 2003 provision is made for appeal to the Supreme Court -- it may not have been amended in your book but it has been amended to refer to the Supreme Court. My Lord, you will see there at 32(5):
"An application to the High Court for leave to appeal under this section must be made before the end of the permitted period", which is 14 days starting with the day on which the court makes its decision on the appeal"."
So there is in fact a 14 day period within which that application could be made, and it is the expiry of that period that the time frames that my learned friend was referring to then take effect.
LORD JUSTICE PILL: Yes. You need certification though?
MS DOBBIN: Precisely, so I have a 14 day period within which to apply for certification. My Lord, my learned friend makes the point that you found that there is no jurisdiction, as it were, to hear an appeal because the appeal was not brought in time. My Lord, I have been in other (inaudible) to this one for the Secretary of State, rather than the requesting government.
LORD JUSTICE PILL: Under subsection (5) you will say that the order made today is the decision of the court on appeal to it?
MS DOBBIN: Yes, precisely.
LORD JUSTICE PILL: So time would start running, from the point of view of your application, from today.
MS DOBBIN: Yes. My Lord, there is still an ability to appeal this decision to the Supreme Court, and certainly that was the course that was followed in the case of Chodan v United States of America. This application was taken as having disposed of the --
LORD JUSTICE PILL: Yes. Well, are you making the application now?
MS DOBBIN: My Lord, I am not because I think one must read your judgment carefully and I think if there was a question to be certified, it would probably be on a wider principle basis as to whether or not the kind of approach taken in Embridge(?) and cases might be capable of being taken in extradition cases.
LORD JUSTICE PILL: But we are still at subsection (4), are we not?
MS DOBBIN: Yes, my Lord.
LORD JUSTICE PILL: Does the 14 days cover that?
MS DOBBIN: It does, my Lord, because it says "An application to the High Court for leave to appeal..." Well, my Lord, that covers both --
LORD JUSTICE PILL: You say that includes the application to certify, yes.
How does that affect, Ms Lindfield, your time? You would still maintain the 17 days, would you?
MS LINDFIELD: Yes, if the court accepts that it is possible to apply for leave to certify, then we will have the actual time under the Act to remove.
LORD JUSTICE PILL: But at this stage need one say anything other than Ms Dobbin has her 14 days?
MS LINDFIELD: The court need not make any order in relation to that.
LORD JUSTICE PILL: Do we not have to give some date?
MS DOBBIN: My Lord, you would not want to make an order today saying that extradition might take place --
LORD JUSTICE PILL: Because we have not heard your --
MS DOBBIN: -- because it would put the requesting state in a great deal of difficulty, it would only give them a very short period of time within which to extradite.
LORD JUSTICE PILL: Yes, but could there be an application that they have not extradited in time?
MS DOBBIN: Yes. My Lord, I think the better position is probably that you can extend time from the date upon which the application for leave is finally decided upon, I do not think you have to do it today.
LORD JUSTICE PILL: But do we have to agree a later date today?
MS LINDFIELD: There are two contrary submissions that my learned friend and I are making. I make the submission that since there was effectively no appeal under section 26, that there then was not a dismissal of any appeal, it would only be the dismissal of an appeal under section 26 which would trigger the right of appeal to the Supreme Court. So my submission is that the matter ends today because there is no jurisdiction under the Act and therefore in determining that there was no appeal notice in time, that we were therefore out of time in removing him 17 days from 4th May, and so consequent upon that I submit that we have acquired a further time to remove from today's date because we could not --
LORD JUSTICE PILL: That is right, but it is the interaction of your application and Ms Dobbin's application that I am seeking your help on.
MS LINDFIELD: My submission is because there was no appeal under section 26, because your Lordships have deemed that it was not issued and served in time, there is no appeal to dismissal, therefore where there is no appeal to dismiss there is no --
LORD JUSTICE PILL: What is the effect of that on your application?
MS LINDFIELD: Because my learned friend works on the assumption that she has 14 days to apply for the application to be certified. I would submit that there is no 14 days to certify a question because there was no appeal that was dismissed.
LORD JUSTICE PILL: What do you say about section 32(5)?
MS LINDFIELD: 32(5) is consequent upon 32(1): "An appeal lies to the House of Lords from a decision of the High Court on an appeal under section 26 or section 28". The appellant endeavoured to issue an appeal under section 26 which the court has determined he did not, therefore there is no jurisdiction.
LORD JUSTICE PILL: You are saying there is no jurisdiction to apply to certify?
MS LINDFIELD: According to the strict statutory --
LORD JUSTICE PILL: No, I am not following you. What strict words are you relying on?
MS LINDFIELD: Section 32 governs --
LORD JUSTICE PILL: A decision of the High Court.
MS LINDFIELD: On an appeal --
LORD JUSTICE PILL: Is today not a decision on an appeal?
MS LINDFIELD: A decision under section 26 and 28 --
LORD JUSTICE PILL: The decision is we have no jurisdiction to hear it. Is that not a decision on an appeal?
MS LINDFIELD: My Lord, I would submit that because the appellant's notice was not issued and served, therefore there was strictly no appeal under section 28. Therefore the decisions that the court were asked to make today was under the inherent jurisdiction of this court, and it was also pursuant to the order of Collins J.
LORD JUSTICE PILL: We may need to retire to consider that, but what I am seeking help on is, supposing you are wrong, where does that leave you? It would not be right for you to be in a position whereby, by taking advantage of the 14 days, you are in breach of the duty to remove. That is what I am seeking help on.
MS LINDFIELD: If I am wrong in my submission then the appellant, or the applicant, has the possibility to appeal to the Supreme Court and so therefore we go to section 36, which is extradition following appeal, which then states that --
LORD JUSTICE PILL: I am looking at Halsbury. The ten days have become 17 days, have they? I am looking at the original statute. Where I read ten, I should read 17 as it Mucelli?
MS LINDFIELD: Yes, but turning to section 36, that concerns extradition following appeal and gives the time frame for extradition following appeal. So therefore if it is possible --
LORD JUSTICE PILL: But is there not authority that says it does not become final until the application to certify has been considered?
MS LINDFIELD: It is actually in the Act, section 36:
"The required period is —
10 days starting with the day on which the decision of the relevant court on the appeal becomes final or proceedings on the appeal are discontinued."
LORD JUSTICE PILL: My recollection, and I think I have been in a case on this, is that it only becomes final once the 14 days have elapsed. That may be putting it too simply, but it does not arise today.
MS LINDFIELD: Section 36(5) states that:
"The decision of the High Court on the appeal becomes final —
when the period permitted for applying to the High Court for leave to appeal to the House of Lords ends, if there is no such application;
(b)when the period permitted for applying to the House of Lords for leave to appeal to it ends, if the High Court refuses leave to appeal and there is no application to the House of Lords for leave to appeal --"
LORD JUSTICE PILL: Yes, well it is (c).
MS LINDFIELD: If my learned friend is correct and she is able to appeal the decision to the Supreme Court extradition would then take place following any one of those events.
LORD JUSTICE PILL: Yes. I thought it was. Time does not start to run until the time limits for appealing have expired. Is that your understanding?
MS LINDFIELD: That is my understanding from section 36.
LORD JUSTICE PILL: Actually you can just stand by your 17 day application.
MS LINDFIELD: Yes, but my submission is an entirely different one in that if under section 35 -- if it is the case that there was no appeal under section 26 and this hearing was of a different nature, then there is no statutory power to apply for certification.
LORD JUSTICE PILL: Yes. Anything further on that point?
MS DOBBIN: Yes, can I just help you please. The House of Lords had no difficulty in -- and I cannot remember which of Mucelli and Moulai it was -- in hearing the appeal to it, even though it had been decided that there could be no appeal because the time limits had expired, precisely because the approach to the appeals is exactly as this court has just said, that there is a decision which is capable of being appealed for the purposes of section --
LORD JUSTICE PILL: We can go back through it, but there was an application to certify presumably -- there must have been in Mucelli. Was it made on the day?
MS DOBBIN: No, my Lord, but it would not matter whether it was on the day or within 14 days if there is a jurisdiction.
LORD JUSTICE PILL: Well, if it was made and refused on the day then time would not start to run.
MS DOBBIN: Yes. My Lord, section 32 does confer a right to a 14 day period. As I said, in the case of Chodan v The United States of America, Moses LJ took exactly that course where the appeal was on the basis that there was no ...
LORD JUSTICE PILL: We will retire to consider the submissions.
(The bench retired for a short time)
LORD JUSTICE PILL: We consider that the order made today is, for the purposes of section 32 of the Extradition Act 2003, an order on the appeal to it. We do not accept that because it is an adverse order to the appellant on a jurisdictional point that it prevents an order of this court within the meaning of section 32. Accordingly, the only order we need to make is that requested by Ms Lindfield under section 35, which is that the required period is one of 17 days -- I have understood your ...?
MS LINDFIELD: No, since my Lord has found that it is capable of being a decision under section 26 of the Act, there is no ancillary order required in relation to removal because section 36 will apply.
LORD JUSTICE PILL: Because of the rather complicated provisions of section 36.
MS LINDFIELD: Yes, my Lord. No order is required.
LORD JUSTICE PILL: Whereas we found there is an order for section 32 purposes, the decision of today has not become final under section 36(5). Is that the point?
MS LINDFIELD: Yes.
LORD JUSTICE PILL: Thank you. Any other applications? I take it, no order as to costs. So be it.