Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice), (2009)

 
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HOUSE OF LORDS

SESSION 2008-09

[2009] UKHL 2

on appeal from:[2007] EWHC 2632 (Admin)

[2008] EWHC 2632 (Admin)

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice)

Appellate Committee

Lord Phillips of Worth Matravers

Lord Rodger of Earlsferry

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Counsel

Appellant (Mucelli):

Richard Gordon QC

Ben Cooper

(Instructed by Sonn Macmillan Walker )

Respondent: (Mucelli)

Andrew Nicol QC

John RWD Jones

(Instructed by Crown Prosecution Service)

Appellant(Moulai):

Andrew Nicol QC

John RWD Jones

(Instructed by Crown Prosecution Service)

Respondent: (Moulai)

Manjit Gill QC

Martin Henley

(Instructed by Central law Practice)

Hearing dates:

11 and 12 NOVEMBER 2008

ON

WEDNESDAY 21 JANUARY 2009

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty’s High Court of Justice)

Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty’s High Court of Justice)

[2009] UKHL 2

LORD PHILLIPS OF WORTH MATRAVERS

My Lords,

  1. I have had the benefit of reading in draft the speeches of my noble and learned friends Lord Rodger of Earlsferry and Lord Neuberger of Abbotsbury. 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. Equally, if discharge has been ordered, the person whose extradition is sought will be anxious to know at the earliest opportunity if the warrant or the extradition request is “disposed of", within the provisions of section 213.

  2. The draftsman has left it to those responsible for the rules of court in their respective jurisdictions to make specific provision for the giving of “notice of appeal". In Scotland they have made provision by rule 34.3(1)(a) for service first and lodging of the note of appeal second. In England and Wales CPR 52.2 provides “all parties to an appeal must comply with the relevant practice direction". The Rule Committee has drafted a lengthy Practice Direction to CPR 52 dealing with the Extradition Act 2003. This includes the following provisions:

    “Appeals under the Extradition Act 2003

    22.6A

    . . .

    (3) Where an appeal is brought under section 26 or 28 of the Act -

    (a) 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;

    . . .

    (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.

    (6) Where an appeal is brought under section 105 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 order for discharge is made.”

    In Gercans v The Government of Latvia [2008] EWHC 884 Richards LJ remarked at para 2 that this wording reflected the terminology of the statute. I agree.

  3. Accordingly I concur in the manner in which Lord Neuberger proposes for the disposal of each appeal.

    LORD RODGER OF EARLSFERRY

    My Lords,

  4. If someone who is facing extradition wishes to appeal against the order of the District Judge, does section 26(4) or 103(9) of the Extradition Act 2003 (“the 2003 Act”) require that he should not only file his appellant’s notice but serve it on the respondent within the specified period of 7 or 14 days? Your Lordships agree with my noble and learned friend, Lord Neuberger of Abbotsbury, that the Act requires that both should be done within that time. Indeed, to my noble and learned friend, Lord Brown of Eaton-under-Heywood, that construction is “tolerably plain". I content myself with saying that I find the reasons advanced for your Lordships’ construction unpersuasive. In my view, all that Parliament requires is that the appeal should be filed within the specified period.

  5. I approach the interpretation of sections 26(4) and 103(9) on the basis that Parliament rarely gets involved in matters of procedure. It may lay down a time for raising proceedings or bringing an appeal, but it stops at the door of the court. Parliament doesn't teach its grandmother to suck eggs: it proceeds on the assumption that the courts are experienced in matters of procedure and their rule-making bodies know best how they should be regulated. Given the umpteen rules and countless practice directions in the Civil Procedure Rules (“CPR”), not to mention their equivalents in Scotland and Northern Ireland, that seems a fair assumption. Rules on service are quintessentially matters of procedure, which are liable to differ in the different jurisdictions and which may be altered from time to time in the light of experience and advances in technology. So if, exceptionally, Parliament had intended to enter the realm of procedure and prescribe an immovable date for service of an extradition appeal, I should have expected it to spell that out.

  6. What is the practical issue which lies behind these appeals? Presumably, it is illustrated by Mr Mucelli’s case where the appellant’s notice was filed within the 14 day period permitted by section 103(9), but was not served on the Crown Prosecution Service (on behalf of the Government of Albania) until about two weeks later. Since PD22.6A(5) provides that the notice must be filed and served before the expiry of 14 days, this was a clear breach of the practice direction. Admittedly, if section 103(9) does not prescribe a time-limit, there may be no clear sanction for such a breach, but the same applies to all appeals. If the lack of a sanction means that the rules for service of appeals are not being observed and this is causing practical problems, it is surprising that they have not been amended before now. In fact, however, Mr Nicol QC, who appeared for the Albanian Government and the French prosecutor, did not put forward anything to show that, when the 2003 Act was passed, this was recognised to be a significant problem with appeals in general or was anticipated as being a particular problem with extradition appeals. In other words, there is nothing to show that this was a mischief which Parliament was addressing in sections 26(4) and 103(9).

  7. A relatively short but utterly rigid deadline for bringing an appeal is readily understandable. Even so, it imposes a substantial burden on a prospective appellant and his advisers. The question is whether Parliament considered that, exceptionally, the matter of service had to be taken out of the hands of the courts and subjected to the same immovable time-limit - with failure to meet the deadline resulting in the prisoner’s extradition, however meritorious the appeal that had been filed, however venial the slip that had resulted in service being late, and however little the prejudice that it had caused to the respondent. The potential for substantial injustice is striking. Busy practitioners with many demands on their time may, quite understandably, fall down from time to time - as Mr Moulai’s case vividly illustrates. Rules of court on procedural matters are designed to allow for these realities and to enable substantial justice to be done. If the intention was, on this occasion, to ignore these realities and impose a rigid deadline for service, I would again have expected the Bill to say so in clear terms. Members of Parliament could then have seen that this was what they were being asked to enact and could have pondered the consequences.

  8. The suggestion is that, despite all this, Parliament did indeed lay down a rigid time-limit for service in section 26(4) because of the emphasis in the Framework Directive on the need for speed. As Lord Neuberger acknowledges, this argument is weakened by the fact that the wording in section 26(4), which is supposed to have been prompted by the Framework Directive, also turns up in section 103(9) - and that provision deals with appeals which have nothing to do with the Framework Directive. It is further weakened by the fact that Parliament did not find it necessary to enact other, more obvious, measures to ensure the speedy disposal of appeals, e g, prescribing a timetable. Instead, these have been left, entirely appropriately, to the courts. And - no doubt, with official encouragement - the relevant rule-making bodies have met the challenge by prescribing a timetable which aims to ensure that extradition appeals are heard quickly: PD22.6A(3)(c) and (4), (9)-(11) in England and Wales; rule 34.4, especially paras (5) and (6), of the Act of Adjournal (Criminal Procedure) Rules 1996 (“the Act of Adjournal”) in Scotland; Order 61A, rule 4, of the Rules of the Supreme Court (Northern Ireland) in Northern Ireland. If Parliament could trust the rule-making bodies to ensure the rapid disposal of appeals, it is hard to see why it could not trust them to deal with the lesser matter of timely service.

  9. With these considerations in mind, I turn to look at sections 24(6) and 104(3) themselves. In interpreting...

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