Recent Developments In Extradition Appeals

There have been some important decisions of the higher courts in the last two years relating to appeals, particularly in European Arrest Warrant (EAW) cases, many of which are of equal application in other extradition cases. The EAW regime was introduced throughout the European Union in a hurry after 9/11 with little consideration for procedural safeguards required to balance its streamlined surrender procedure based on the concept of mutual recognition of warrants issued by national courts. The recent case of Herdman v Greece [2010] EWHC 1533 (Admin) is another harsh reminder for defence practitioners that courts are right to refuse adjournments where there has been ample time to obtain defence expert evidence (over six weeks in that case), that new evidence must not have been available in the court below and must be decisive and that the threshold for showing a real risk of a total denial of article 6 rights was a high one. All defence practitioners in extradition cases need to take careful note of the strict procedural requirements applied by the courts.

Appeal on matters of law and fact

The Extradition Act 2003 (EA 2003) provides a single statutory right of appeal to the High Court for both the defendant and the Requesting State against decisions made by the judge in the magistrates' court and (in Category 2 cases) the Secretary of State for the Home Department (SSHD). The defendant cannot be returned while an appeal is outstanding.

Appeals in Category 1 (EAW) cases

The relevant provisions of the EA 2003 are sections 26-34.

A defendant may appeal the judge's decision to order his extradition to the High Court, provided he did not consent. The appeal may be brought on a question of law or fact.

The procedure and time limits for appeal are very strict:

Notice of an appeal must be filed and served within seven days, starting with the day on which the order is made The appellant's notice must be endorsed with the appellant's date of arrest The appellant must serve a copy of the notice on the CPS (acting as the representative of the requesting state) The High Court must begin to hear the substantive appeal within 40 days of the person's arrest, although the High Court can extend this if it is in the interests of justice to do so. Appeals in Category 2 cases

The relevant provisions of the EA 2003 are sections 103-116. Also see paragraphs 22.6A(5)-(12) of the Practice Direction to CPR Part 52 for further detail.

A defendant may appeal the judge's decision to send his case to the SSHD to the High Court, provided he did not consent. Again, the appeal may be brought on a question of law or fact. No appeal can be brought under s.103 if the SSHD has ordered the person's discharge.

As with Category 1 cases, the procedure and time limits for appeal are very strict:

Notice of an appeal must be filed and served within 14 days, starting with the day on which the SSHD informed the defendant of the order against him The appellant must serve a copy of the notice on the CPS (acting as the representative of the requesting state) and the Home Office The High Court must begin to hear the substantive appeal within 76 days of the appellant's notice being filed Where an appeal has been brought before the SSHD has made his decision, the 76 days does not start until the day on which the SSHD informs the defendant of his decision, and importantly, the appeal must not be heard until after the SSHD has made his decision. Relevant case law on procedure

The leading case on appeal procedure is the linked House of Lords decision in Mucelli v Government of Albania and Moulai v Deputy Public Prosecutor in Cretiel, France (21 January 2009). It was held that a notice of appeal must be "given" both to the representative of the authority (by serving) and to the relevant court office (by filing or lodging). The Court confirmed that it does not have any power to extend the time limits for service. The House of Lords also dealt with service at the end of the 7 or 14 day period - where the requisite recipient's office is closed during part of the last day, the notice will be validly filed or served if it is given at any time during the day, before midnight e.g. by fax or posting through the door. Where the requisite recipient's office is closed during the whole of the last day, the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i.e. the next business day).

The earlier case of Amoako v DPP [2006] confirmed that with respect to a Category 1 appeal, the 7 days commenced from the calendar day the decision was given, even if it was not handed down until after the end of the business day at 4.30pm. It would be unfair and uncertain to read the relevant section of the statute any differently.

The recent Administrative Court case of R (Mann) v City of Westminster Magistrates' Court & Ors (19 January 2010) confirms how important it is to comply with the strict time limits for appeal. Mr Mann's lawyer had served his notice of appeal one day late. The High Court held there was:

no power to extend time of service no power to apply for judicial review or habeas corpus no power to reopen the extradition hearing under the "slip rule" in section 142 MCA 1980 no power to judicially review the decision of SOCA to enforce the extradition order...

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