Mucelli v Albania & Anor

In an extradition appeal, statutory time limits must be applied with speed and certainty where Parliament has provided no power to extend them. Notice of appeal requires filing and service within the prescribed period. The court should not use retrospective dispensation with service to achieve, in substance, an extension of time.

Under section 85(3) of the Extradition Act 2003, deliberately leaving a country to avoid prosecution is not necessarily deliberately absenting oneself from one’s trial. The court must apply the narrower distinction identified in Government of Albania v Bleta. A retrial guarantee must be sufficiently clear and effective; a general governmental assurance is inadequate where the applicable domestic provisions leave material uncertainty.

The appellant challenged a district judge’s decision to send his extradition case to the Secretary of State under Part 2 of the Extradition Act 2003. Albania sought extradition for murder and firearms offences following a conviction in the appellant’s absence.

The district judge concluded that the appellant had deliberately absented himself from his trial, that Albania had provided an adequate retrial guarantee, and that extradition was not barred by passage of time. The Secretary of State subsequently ordered extradition. The appellant’s notice was filed within the statutory period but served outside it. The central issues were whether the appeal was properly brought under section 103, whether notice was given in time, and whether retrospective dispensation with service could preserve the appeal.

1. Nature of appeal. The documentation as a whole showed that the intended appeal challenged the district judge’s decision under section 103, rather than the Secretary of State’s order under section 108. Errors in one document did not defeat the appeal where the accompanying grounds correctly identified its statutory basis.
2. Merits. The district judge’s finding under section 85(3) could not be reconciled with Government of Albania v Bleta [2005] EWHC 475 (Admin); [2005] 1 WLR 3576. Leaving Albania to avoid prosecution amounted to absence from the legal process, not necessarily deliberate absence from the specific trial. The judge should also have concluded under section 85(5) that the Albanian assurances did not establish entitlement to a retrial. The references to articles 147, 148, 449, 450 and 453 of the Albanian Code of Criminal Procedure left too many uncertainties, particularly because the relevant decisions appeared to remain with the courts.
3. Time limit. Under section 103(9), read with the applicable Practice Direction, notice of appeal had to be both filed and served within 14 days. District Court of Vilnius City v Barcys [2007] EWHC 615 (Admin) and R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765 applied. The late service therefore meant that the court had no jurisdiction.
4. Dispensation with service. Although CPR rule 6.9 conferred a discretionary power to dispense with service, exercising it retrospectively would in substance extend a statutory time limit which Parliament had made non-extendable. The principles in Godwin v Swindon Borough Council [2001] EWCA Civ 1478; [2002] 1 WLR 997, as explained in Anderton v Clwyd County Council [2002] EWCA Civ 933; [2002] 1 WLR 3174, applied. The solicitor’s default, the merits of the proposed appeal and the absence of prejudice did not justify circumventing the statutory scheme.
5. The appeal was dismissed as out of time. The court did not determine whether any alternative remedy existed or entertain the late argument based on section 3 of the Human Rights Act 1998.

1. High Court (Administrative Court). The Divisional Court dismissed the appeal against the district judge’s decision, holding that the appeal was out of time and that the court had no jurisdiction.
2. District Judge, City of Westminster Magistrates’ Court. The judge sent the extradition case to the Secretary of State under the Extradition Act 2003.
3. Secretary of State. An extradition order was made on 18 July 2007.