Extradition - Appeal notice - European Arrest Warrants - Time limits

Kane v Spain: QBD (Admin) (Mr Justice Collins) 17 March 2011

The appellant (K) appealed against a decision of a district judge to order his extradition to the respondent requesting state, Spain.

European Arrest Warrants had been issued on 14 September 2010 in respect of four people, including K, to face charges of involvement in a plan to traffic a large quantity of hashish from Morocco to England, where it was alleged that a house had been rented on the coast where the boat would be unloaded.

The warrants stated that the plan involved a group including two British citizens who were in prison in Spain for drug trafficking, and that the shipment was due to leave Morocco on 15 or 16 September and arrive in England 10 days later.

K challenged the validity of the warrant on the basis that it did not comply with section 2(4)(c) of the Extradition Act 2003, but the judge found that the warrant was valid and ordered K’s extradition. K appealed.

Under section 26(4) of the act he had seven days in which to file and serve his notice of appeal.

On the seventh day, at 10.55, his solicitors faxed to the Crown Prosecution Service an unsealed copy of his notice of appeal along with his grounds of appeal.

At 12.50 they faxed the sealed front sheet of the notice with a covering letter explaining what was being sent and referring to the earlier fax.

The requesting state submitted, relying on the decision in Poland v Walerianczyk [2010] EWHC 2149 (Admin), [2010] CP Rep 46, that the two faxes did not amount to valid service of K’s notice of appeal because service could not be effected until the court had stamped the notice, and sending just the front page after filing was insufficient; therefore the court did not have jurisdiction to hear the appeal.

K submitted that the warrant did not comply with section 2(4)(c) because it failed to give sufficient particulars of the conduct alleged and did not specify the place where K’s conduct allegedly occurred.

Held: (1) An appellant had to have the full seven days provided by section 26(4) to file and serve his notice of appeal; that period could not be cut down, even by a few hours, Mucelli v Albania [2009] UKHL 2, [2009] 1 WLR 276 followed.

Therefore, an appellant had to be allowed to serve the notice right up to the last minute of the seven days, and he could also file in court right up to the last minute by whatever means, even if the court office was closed, Van Aken v Camden LBC [2002] EWCA Civ 1724, (2003) 1 WLR 684 considered.

Those circumstances inevitably meant that he would not be able to get a court seal or number at that time, and therefore the document that he served on the respondent would be unsealed.

Nevertheless, that would comply with section 26(4); to hold otherwise would deprive an appellant of the full seven days to which he was entitled, Walerianczyk not followed, Mucelli followed.

A notice of appeal meant just that: notice given to one party that the other was appealing. The distinction made in Walerianczyk between a notice and a draft notice could not be relevant in an extradition appeal.

The fact of the appeal could not be changed, and that was the only fact that was essential, Walerianczyk not followed.

There did not have to be filing before service, Mucelli considered. Therefore K’s service of the unsealed notice at 10.55 complied with section 26(4).

If that was not correct, then the subsequent service of the front page of the sealed notice would have sufficed.

The sending of two faxes had caused no misunderstanding; it would be absurd pedantry to conclude that it was not proper service.

(2) The warrant used the words ‘would be’ in relation to K’s involvement; he claimed it was not clear whether he was a party to an offence or a conspiracy or an attempt.

The wording of the warrant was entirely appropriate: the drugs had not arrived in England when it was issued and it left no doubt about K’s involvement.

The place of the offence was clearly Spain as it was an agreement run from Spain.

The court was entirely satisfied that the warrant contained sufficient information for K to know what he was accused of, so it complied with section 2(4)(c).

Appeal dismissed.

Robert Morris (instructed by Hughmans) for the appellant; Daniel Sternberg (instructed by CPS Extradition Unit) for the respondent.