Moulai v Deputy Public Prosecutor in Creteil France

Under section 26(4) of the Extradition Act 2003, “giving” notice of an appeal means filing the appeal notice in the High Court. The statutory seven-day limit for filing is ordinarily jurisdictional and cannot be extended where Parliament intended strict compliance. Service of the filed notice is a separate procedural requirement imposed by the rules and practice direction. A short delay in service may therefore be waived, extended or remedied under the Civil Procedure Rules, provided the court considers all relevant circumstances, including prejudice, the explanation for delay and the importance of access to an effective appeal.

A district judge ordered the claimant’s extradition to France under Part 1 of the Extradition Act 2003. The claimant filed his appeal notice within the statutory seven-day period, but the faxed copy served on the respondent was completed seven minutes after the 4.00 pm deadline prescribed by the rules. The respondent argued that the late service deprived the court of jurisdiction, relying on earlier Divisional Court decisions. The claimant sought an order dispensing with service, an extension of time or relief for procedural error. The central issue was whether late service was a fatal statutory failure or a procedural defect capable of waiver.

1. The appeal was allowed to proceed. The court extended the time for service by seven minutes, alternatively remedied the procedural error or dispensed with service.
2. Section 26(4) of the Extradition Act 2003, read with section 213(3), requires the notice of appeal to be filed within seven days. The word “given” refers to filing, not service. Sections 35(6) and 213(5) reinforce the conclusion that late filing cannot ordinarily be cured.
3. The requirement that the notice be filed and served within the period in paragraph 22.6A of the Practice Direction is procedural. Section 26(4) does not show that Parliament intended every failure to comply with the rules to be fatal. The court retains powers under CPR rules 3.1(2)(a), 3.10 and 6.9.
4. The court applied the approach in R v Soneji that the question is whether Parliament can fairly be taken to have intended total invalidity as the consequence of non-compliance.
5. District Court of Vilnius v Barcys, R (on the application of Mendy) v Crown Prosecution Service, Mucelli v Government of the Republic of Albania and Gercans v The Government of Latvia were wrong insofar as they treated late service as incapable of waiver. Their reasoning on late filing was not displaced.
6. The short delay was excusable. The appeal notice could not be served until it had been filed, the respondent knew an appeal was forthcoming, and there was no material prejudice beyond loss of a technical objection. Striking out the appeal could have caused serious prejudice to a detained person.
7. Mr Justice Maddison agreed. He stressed that service deadlines remain important in extradition cases, but accepted that unusual circumstances and very short, non-prejudicial delay may justify relief.