Kane, R (on the application of) v Trial Court No 5 Marbella, Spain

MR JUSTICE COLLINS: This is an appeal against a decision of District Judge Evans on 26 November 2010, ordering the appellant's extradition to Spain to face a charge of involvement in the international trafficking of hashish from Morocco to England. Four arrest warrants were issued by the Spanish court against the appellant and three co-defendants. All four challenged extradition at the hearing before the district judge on the ground that the warrant did not comply with Section 2 (4) (c) of the Extradition Act 2003 in that it did not specify properly what was required by that sub-section.

Section 2 (4) (c) provides that the warrant must contain:-

The three co-defendants have either not appealed or withdrawn their appeal. That of course should not be held against this appellant if there is merit in the appeal that he seeks to maintain. I must bear in mind that the warrants are individual warrants and the description in each case, particularly of the involvement in the offence of the individual in question, is somewhat different.

Two points arise in this appeal. First, the respondent asserts that there has been a failure to comply with Section 26 (4) of the 2003 Act in that notice of appeal was not properly given. Secondly, the appellant contends that the district judge was wrong to conclude that there was compliance with Section 2 (4) (c). The allegation that there has been a failure to comply with Section 26 (4) made by the respondent goes to the jurisdiction of the court. If the notice of appeal was not properly given so as to comply with Section 26 (4), this court has no jurisdiction to consider the appeal. In those circumstances it seemed to me convenient to deal with that issue first. I will do so in this judgment.

Section 26 (4) of the Act provides as follows:

There are precisely the same provisions in Section 28 of the Act which relates to an appeal by the respondent where a district judge has discharged the individual, the subject of the warrant, at the extradition hearing. The wording in each is identical so the approach to each is identical.

Section 26 (4) was construed by the House of Lords in Mucelli v Government of Albania [2009] 1 WLR 276. Essentially, the House of Lords by a majority of four-to-one decided that "given" in Section 26 (4) meant filed in the court and served on the respondent and both the filing and the service had to take place within the seven days. The statute allowed seven days and that period could not be cut down by the rules or any practice direction made under the rules. Thus, an individual must have the full period of seven days to enable him to give notice of appeal, namely to file in court and serve on the respondent. In this case the seven days expired on 2 December 2010.

The circumstances relating to giving of the notice were these so far as material. At 10.55 on the morning of 2 December the appellant's solicitors sent a copy of the notice of appeal on a Form N161, a copy of the grounds and a copy of the district judge's ruling to the respondent the Crown Prosecution Service. That was by fax. Thereafter - the time is not precisely recorded – the solicitors received from the court the sealed copy of the notice. It seems that they may well have filed the notice of appeal with the court after they had sent the documents to the Crown Prosecution Service at 10.55. I should say that in the context of the Administrative Court the word "sealed" is perhaps slightly misleading. There is no seal but there is a court stamp which indicates that the court has issued an appeal or a claim, on the date indicated by the stamp. The court has an obligation to make a note of the time at which any appeal is filed with it. If it is done by fax or e.mail there is no problem since the time is clear on that. If it is done in person or by post then it may be important to identify the time. However that is not material in the circumstances of this case.

At 12.50 that same day - 2 December - the solicitors sent a fax of the first page of the form showing that it had been stamped by the court and included a covering letter which made it clear, as indeed was obvious, that the balance of what had been filed with the court was what had already been served on the Crown Prosecution Service.

The Crown Prosecution Service contend that that is non-compliance because it ought to have received a stamped copy of the notice of appeal as filed in the court because it was not possible, within the meaning of Section 26 (4), to serve a copy of a notice of appeal before that appeal had been filed in the court. They further submit that sending a copy only of the front sheet after the court had stamped it was insufficient.

There are thus two questions that arise. First, was the service at 10.55 of the notice of appeal sufficient to comply with the requirement of service within the meaning of Section 26 (4)? Secondly, if it was not, was the service of the stamped copy of the front page later that day at 12.50 sufficient compliance? Only if neither was sufficient would this court lack jurisdiction.

The respondent places reliance on a decision of the Divisional Court in Government of Poland v Walerianczyk [2010] CP Rep 46, [2010] EWHC 2149 Admin. That, as its title indicates, was an appeal against a decision of a district judge discharging an individual. In Walerianczyk the relevant facts were these. The relevant chronology can shortly be stated. The judge had ordered the respondent's discharge on 13 April 2010. The time to give notice of appeal under Section 28 expired on Monday 19 April. On Friday 16 April the appellant faxed to the respondent's solicitors an unsealed notice of appeal and supporting documentation. On the Monday, notice of appeal in the same form - apparently there was one small exception - was filed with the Administrative Court. The following day, that is the day after the expiration of the permitted period, the Crown Prosecution Service served a sealed copy of the notice of appeal on the respondents’ solicitors.

Thus four issues were said to arise. Stanley Burnton, LJ identified these as follows:-

The court decided that it was necessary to serve a sealed copy of the notice of appeal or at least one which showed the number allocated by the Court. Until it was filed with the court it could not be properly described as a notice of appeal. It was merely a draft notice. Therefore there was, in the circumstances of the case, a failure to comply with the provisions of Section 28 (4) of the Act. In those circumstances the court decided it had no jurisdiction to hear the appeal.

That case was pursued, as I was informed, because there was a problem in that the Crown Prosecution Service were concerned that unsealed copies of appeal notices were frequently being served and they wanted the court to decide whether such unsealed copies constituted a proper compliance with s.26(4). It is somewhat ironic that in the circumstances it was their appeal which decided, or was thought to decide, that issue - they were on the losing side - although I have reason to believe that insofar as it affected service on them, they were rather pleased with that decision.

The court indicated that in its view there was a distinction to be drawn between a notice of appeal and a draft notice of appeal. At paragraph 13, Lord Justice Stanley Burnton said:

I will come to Mucelli shortly.

I confess that I have some difficulty in following the significance in the context of these extradition appeals. . I appreciate of course that an appeal cannot be said to be in being until it is filed with the court. In that sense, I suppose, a notice which has not been filed can be said not to indicate that an appeal has been commenced in reliance on that notice. However it is to be borne in mind that in this jurisdiction the notice that has to be used, according to the rules, is in the Form N161. That is not to say that if the form is not used, but a document which purports to be a notice of appeal is filed, the court should reject it. However as a matter of practicality those who are in custody, those who are unrepresented who seek information and all solicitors involved in the extradition process must know that the form to be used is Form N161.

What matters for the purpose of giving the necessary information, as is made clear by what Lord Justice Stanley Burnton said in paragraph 14, is that the respondent should know that an appeal is being pursued.

As will become clear when I deal with Mucelli, the House of Lords made it plain that an appellant must have the full seven days. It is a short enough period as it is. Therefore a notice given after office hours but before midnight on the seventh day is to be regarded as validly given. In those circumstances it must be open to an appellant both to file his notice of appeal with the court and to serve a copy on the respondent after office hours but before midnight.

What follows from the submissions made by Mr Sternberg and from the decision in Walerianczyk is that that period is cut down. Because if, in truth, what is required is a sealed copy, or at least a copy with the court number on it, of what is filed then the appellant must file his appeal with the court before the close of office hours. That means inevitably that he is deprived of the full period of seven days. That, as the House of Lords clearly decided, was not to be permitted.

It follows, as it seems to me from that, that a notice of appeal simply means what it says, namely that the individual has filled out the relevant form or document and has indicated on that that he is appealing. He must, of course, file it and he must serve a copy of it on the Crown Prosecution Service. But it does not follow - and in my judgment cannot follow - that it is necessary for the filing in the court to come before the service on the respondent. The respondent will know that it is said that he has filed a notice of appeal and thus the notice of appeal is pending.

In reality, despite what is said in paragraph 14 by Lord Justice Stanley Burnton, no one will be able to discover what the position is until the following morning. That would have been the case in any event whenever the appellant in question was making use of his full complement of seven days. The reality is that after office hours nothing would be done until the following day. In those circumstances it seems to me that the concerns raised are concerns which cannot carry any weight.

The Crown Prosecution Service or the respondent in a Section 28 case will easily be able to discover whether there is in fact an appeal in being. The rules require, as we shall see, that a sealed copy is sent to the respondent as soon as practicable and, in any event, within seven days of the filing of the notice. It is also open to the respondent to check with the court on the next working day.

I should add that one of the matters raised in Mucelli (in Lord Hopes’ speech although not I gather as part of the argument) was that the situation in Scotland is different from that in England and Wales inasmuch as in Scotland it is necessary to serve a notice of appeal on the respondent before the court will accept it. It has to be that way round. But the language of Section 26 (4) and Section 28 (4) must be construed in a way which caters for both those situations. Certainly so far as Scotland is concerned, it is difficult to see how a notice of appeal could be construed other than as a notice which is to be lodged. Thus, the concept of a draft notice is not one which would be appropriate in Scotland.

Before turning to Mucelli, I should deal with what is meant by filing a notice of appeal. That was considered by the Court of Appeal in Van Aken v Camden London Borough Council [2003] 1 WLR 684, [2003] 1 All ER 552. The question was whether a statutory appeal against a County Court decision was in time when, on the last day for filing the appeal notice, the claimant's solicitors had taken the papers to the County Court Office but had arrived after the office had closed. What they did was to post the papers through the court letter box. When processed the next day the papers were dated with that day's date.

The County Court judge held that he had no jurisdiction to hear the appeal. The Court of Appeal allowed the appeal, deciding that filing simply meant delivering to the Court Office and was a unilateral act. In the case in question the appeal notice had been filed when it was posted through the letter box of the Court Office.

Lord Justice Jonathan Parker gave the lead judgment of the court. He referred at paragraph 9 to the definition of "filing" in CPR 2.3 (1) which provides that filing in relation to a document means delivering it by post or otherwise to the Court Office. I would note that nowadays "otherwise" includes faxing or e.mailing. After dealing with the arguments, in paragraph 41 he said:

Lord Justice Jonathan Parker cited observations of Waller LJ Swainston v Hetton Victory Club Ltd [1983] ICR 341:-

In paragraph 45, Lord Justice Jonathan Parker continued:

To deal with the problem - if there is delivery without a time stamp - of ensuring it was before midnight, Lord Justice Ward said:

It would only happen where there was delivery through a letter box rather than by fax or by e.mail because faxes and e.mails would contain on their face the time at which they were sent.

I turn now to Mucelli and consider in more detail. The leading speech was given by Lord Neuberger.

He decided that the notice must be served as well as filed within the seven-day period. The court had no power to extend the time since the statute laid it down. Equally the court could not dispense with service of the notice of appeal. Then he dealt with the question of service at the end of the seven-day period. In paragraph 81 and onwards of his speech he said:

Lord Neuberger said if it was closed all day - Christmas Day or Boxing Day or whatever - then service could properly be made on the next working day. He went on in paragraph 85:

It seems to me that what is clear from that is that the appellant must be allowed to give his notice at any time up to the final minute of the seven-day period. This must mean, and indeed what I have just cited makes it plain that it does mean, that he can both file with the court - since filing requires no more than delivery to the Court Office - whether by fax or e.mail or by handing it through a letter box to the High Court. That might mean handing to a member of the security staff on duty who would forward it to the relevant Court Office. However nowadays one suspects fax or e.mail would be the normal method of filing.

That means inevitably that the appellant will not be able to get a seal or indeed a copy of the notice which contains the court number. What he therefore serves is not a notice which has "received by" and stamped as or otherwise indicated to have been received by the court. That in my judgment clearly undermines the approach of the court in Walerianczyk. I will come back to that again.

It follows, as it seems to me, also from that that the distinction that is sought to be drawn between a notice and a draft notice is one which cannot be relevant or appropriate in the circumstances of an extradition appeal such as this. The notice is a notice of appeal. It does not matter that it has not yet been filed in the court. True, I suppose, that it is possible that there may be variations. But those variations would only be in the contents of the notice. The fact that there is an appeal and that appeal is being commenced cannot be changed. That is the only fact that is essential for the purposes of the proper commencement of an appeal. Any failure to comply with the rules in what is contained in that notice - for example, grounds - can be dealt with by the court by making orders to require compliance because they are procedural irregularities which can be cured through CPR 3.10.

Thus I would construe the notice of appeal in Section 26 (4) to mean no more than notice that an appeal is being brought, not necessarily to extend to the grounds or the other contents of that notice. It seems to me that any other construction would mean that the full period of seven days was not given to an appellant.

I come back to Walerianczyk. Service of notice before filing with the court was the first issue dealt with in that case. Lord Justice Stanley Burnton, at paragraph 17, said:

As to that, in my view, it could never arise because the only important issue is that the notice is that there is an appeal in the context of filing in time.

I should perhaps, since Lord Justice Stanley Burnton relies on it, go back to what Lord Neuberger said in paragraphs 67, 68 and 70 of Mucelli. In paragraphs 67 and 68 he is dealing with the requirement for consideration of Section 35 of the 2003 Act. Section 35 deals with extradition where there is no appeal. It requires that the person must be extradited within ten days of the expiry of the time allowed for an appeal to be given. That is subject to the power of the court to extend time. In paragraph 67 Lord Neuberger, in dealing with the importance of the seven-day period, said:

[That is the rule that requires that a copy of the sealed notice of appeal must be given to the respondent as soon as practicable and, in any event, within seven days]-

As is apparent, those are considerations which persuaded Lord Neuberger that there was a need both to file and to serve.

With the greatest possible respect to Lord Justice Stanley Burnton, it does not seem to me to be material in considering whether it was necessary for a sealed copy of the notice to be served as opposed to the need to ensure that the Crown Prosecution Service - or another respondent if it is an appeal by the Crown Prosecution Service - was served with the notice of appeal which had also been filed, that is to say that it was made clear to the respondent that an appeal was being pursued.

In paragraph 70 of his speech, Lord Neuberger was dealing with a contention that difficulties would arise in connection with whether and when an appeal was pending. He said that he did not see that. He continued:

Reliance is therefore placed on the word "then" which is said to indicate that the service of the notice must come after the filing. I do not myself think that so much can be read into the use of the word "then". After all, Lord Neuberger was there dealing with an argument based on the alleged difficulty in Section 26 (4) referring to two events. Furthermore, what he said in paragraphs 81 to 85 (which I have already cited) would, it seems to me, be inconsistent with a positive requirement if filing with the court came first.

I note too that Mr Justice Nicol did not entirely agree with Lord Justice Stanley Burnton in this. At paragraph 45 Mr Justice Nicol said:

It seems to me in those circumstances that it would be wrong to assume that for the English cases Lord Neuberger was assuming that there had to be a filing in the court before service on the respondent.

Accordingly, I do not accept that it is necessary for service on the respondent to post-date filing in the court. It follows that in those circumstances I take the view that there was a proper compliance with Section 26 (4) when a copy of the notice was served at 10.55, even if that was before the filing of the notice in the court.

It is perhaps also worth noting that reference was made by Mr Justice Nicol to Dunne v Ireland [2009] EWHC 2003 Admin. In that case the appellant acting in person, in custody, filed his appeal on the last day of the statutory time period but the court did not return a sealed copy of the appellant's notice until three days later. He did not serve the Crown Prosecution Service until several months after that. There were issues as to what was or could be a validly constituted appeal. Mrs Justice Rafferty, with whom Lord Justice Leveson agreed said:

It simply makes the point, which in my view is inevitable, that there can be proper service of a notice of appeal notwithstanding that there has been no issuing of the notice from the Administrative Court. I see no reason in principle why that should not extend to service before it has been filed in the court.

It is said that difficulties may arise because of need to check if there is a seal or authenticated copy.

But similar difficulties can arise where there are questions about service on the respondent. The court is all too frequently met with issues about whether there has been proper service.

The approach indicated by the court in Walerianczyk seems to me to give rise to the possibility of satellite litigation where there are issues as to whether the appeal notice was filed within time and, more particularly, not so much whether it was done in time but whether it was filed before or after service on the respondent. Take perhaps an illustration. The Crown Prosecution Office is in South London. It is possible that someone may wish to file and to give notice after office hours. If, it is convenient to go to the court via the respondent's offices and he decides to serve the respondent before filing, would he find himself deprived of the right of appeal simply because he had gone that way round whereas if he had gone to the court first and then to the Crown Prosecution Office he would have been in time? It seems to me to be a recipe for unnecessary satellite litigation.

As I say, the reality is that, in my judgment, the seven-day full period must be given. Nothing must be done to deprive an appellant of that.

In those circumstances I cannot agree with the decision of the court in Walerianczyk. I would only not follow it if persuaded it was clearly wrong and I am, for the reasons that I have given, so persuaded. I should add that if I were wrong about that I would be entirely satisfied that the subsequent service of the first page of the sealed notice sufficed. The covering letter made clear what it was. The Crown Prosecution Service could have had no misunderstanding of the situation. They clearly were receiving a copy of the notice of appeal in the circumstances. It would be absurd pedantry to conclude that that was not a proper service of the notice.

Accordingly, the contention that the court has no jurisdiction fails.

I turn therefore - and I can deal with this very much more briefly - to the merits of the appeal itself. I have read Section 2 (4) (c). The warrant refers to one offence. The details, are set out under the heading "Description of the circumstances in which the offence is committed, including the time, place and degree of participation in the offence by the requested person" thus:

The warrant was issued on 14 September, the day before it was said that the hashish (I think amounting to some 3000kgs) was to be loaded in order to be taken to England.

The district judge, apart from considering whether the warrant complied with Section 2 (4) (c), was also concerned about transposition of the offence. That was an issue that was raised before him. Further information was obtained from the Spanish authorities. In relation to Mr Kane, that further information stated as follows:

This warrant was issued on 14 September, the day before it was said that the hashish (I think amounting to some 3000kgs) was to be loaded in order to be taken to England.

The court, apart from considering the validity of the warrant as to whether it complied with Section 2 (4) (c), was also concerned about transposition of the offence. That was an issue that was raised before the district judge. Further information was obtained from the Spanish authorities. In relation to Mr Kane, further information stated as follows:

That further information could not of course be used to supplement what was in the warrant. That had to stand or fall on its face. It could be - and was - used to deal with the question of transposition and whether the circumstances complied with Section 64 of the Act. I do not need to deal with that because it was conceded that for the purposes of transposition that additional information sufficed. So there was no issue as to whether the offence would have been an offence within the jurisdiction of this court if committed here.

Two points essentially are taken.

I should say before dealing with them that the principles to be applied are not in contention. In Dabas v High Court of Justice in Madrid [2007] 2 AC 31, at paragraph 50, Lord Hope said that the requirements of Section 2 (4) (c) were mandatory and if they were not met the warrant was not a Part 1 warrant and statements referred to in the sub-section could not be eked out by extraneous information. In addition, the scope and purpose behind Section 2 (4) (c) was correctly set out by Mr Justice Cranston in Ektor v Netherlands [2007] EWHC 3106. At paragraph 7 he said:

In relation to that lastaspect further information is permissible.

It is important to bear in mind that it is the conduct of the individual the subject of the warrant whichis in issue and which has to be covered by the warrant in accordance with Section 2 (4) (c). Section 2 (4) (c) reflects accurately what is contained in Article 8 of the Framework Decision which indicates what must be the content and form of a European arrest warrant.

The first point taken is that it is not made clear who the two British citizens serving a sentence in prison are. Thus it will not be clear whether the appellant is one of those two. Merely reading the words of the warrant does not make that clear. While I accept that it is usually wrong to have regard to what an appellant himself will know in deciding whether a warrant gives sufficient detail, in circumstances such as this, where it is clear that the two in question - described as a group - cannot be the appellant, it seems to me that the point that is sought to be taken in that regard is not one which has any merit or validity at all. One has to use a degree of common sense in construing a warrant. Of course I recognise that liberty is at stake and it is important that the requirements of a warrant are complied with. In this case, on that point, it seems to me that there could not be any doubt as to who those British citizens were, namely resident and imprisonedin the Costa del Sol.

The second argument is based on the words "would be". It is said, concerning Stephen Kane, thathe “would be” in charge of the English part of the organisation to collect the hashish in the landing gear. That, submits Mr Morris, means it is unclear whether he was, indeed, party to the conspiracy or whether it was that he would become party to the conspiracy. It seems to me that the words "would be" are entirely appropriate because the hashish had not arrived in England. His role was said to be that he would be the person who received it. And it cannot be read into "would be" that there is any doubt about the assertion that he wasinvolved.

So far as time and place are concerned - in the circumstances of an allegation such as this which effectively, as is clear, is involvement in an agreement or conspiracy to commit this international drug-running offence, in the context of this allegation - time is dealt with clearly. The conspiracy is said to have taken place between 28 April and would have come to fruition, so far as those involved are concerned, on 25 or 26 September. As to place, the offence was an offence committed in Spain. It was an agreement run from Spain by the two British citizens serving their sentences in Spain. The evidence against the appellant - and against the three other co-defendants - involved what they said on the telephone. It may have involved more than that, but so far as this appellant was concerned it was what was said on telephone.

Mr Morris has submittedthat it was not clear what the offence was, whether it was a substantive offence or a conspiracy, because conspiracy is not an offence which is one which is within the terms of the Framework Decision. In fact, what was said in this case was that this was trafficking in narcotic drugs and psychotropic substances.

So far as the warrant is concerned, it clearly, in my judgment, indicated that the allegation was that he was involved in an unlawful agreement to smuggle the drugs as alleged. In those circumstances I am entirely satisfied that he had sufficient information to enable him to know what it was that was alleged against him and what his involvement was said to have been and the warrant, as the district judge decided, did comply in the circumstances with the provisions of Section 2 (4) (c).

In those circumstances I dismiss this appeal.