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Another one bites the dust 2

Last week we saw something of the structure of the European arrest warrant. There are other aspects of the system however relating to appeals which it is important to consider before turning to the case of Mr Mann. For these we turned to the decision in Mucelli (Appellant) v Government of Albania [2009] UKHL 2, where the House of Lords by a majority decision held that the strict provisions regarding extradition act appeals meant that the appeal not only had to be issued within the relevant time limit but had to be served within that time limit. Even the majority had some concern about the decision that was being reached: Lord Phillips of Worth Matravers , himself described approving the majority decision is occurring " Not without some hesitation ". The consequence of the decision, as a result of interpreting the strict European arrest warrant procedure, was more fully described in the dissenting judgement of Lord Rodger as follows:

" 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).
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.
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. ".

So in practice what that means is that if there is a failure to launch the relevant appeal on time that, however meritorious the appeal, you are too late and that is it. Add that to the fact that however wrong the decision to issue the warrant appears to be, and even if it appears to have been issued on the basis of inadmissible evidence which factors have only come to light subsequent to the issue of a warrant, nonetheless those are all matters for the issuing court and are not supposed be ones that stop the warrant being executed.

The potential for this ending up as some sort of Kafkaesque nightmare for the hapless person at the wrong end of a warrant is obvious. Last autumn the Home Office indicated that under present arrangements the number of persons extradited annually under the European Arrest Warrant from Britain to other EU countries is likely to more than treble. That could lead to a lot of Kafkaesque nightmares. Next week we shall look at that of Mr Mann.

Michael J. Booth QC