Henderson v Court of Appeal of Aix En Provence

An appeal against an extradition order must be both filed and served within the statutory time limit. Filing within time does not preserve jurisdiction where service is late. Strict procedural limits remain compatible with EU law and the European Convention on Human Rights. Neither the right to an effective remedy nor alleged defects in a European Arrest Warrant requires the court to disregard the time limit. Where the appellant had an earlier judicial hearing at which the warrant’s validity could be challenged, the court need not entertain a late appeal to provide an additional remedy.

A European Arrest Warrant was issued in France and the claimant’s extradition was ordered by District Judge Nicholas Evans on 5 February 2008. The claimant filed an appellant’s notice within seven days but served it on the Crown Prosecution Service outside that period.

He argued that the High Court nevertheless had jurisdiction because the appeal raised the validity of the warrant and because EU law and the Convention required an effective remedy. He also sought a reference to the European Court of Justice under article 234 of the EC Treaty.

1. Appeal dismissed. The appellant’s notice had been filed within the permitted period but served outside it. Under section 26(4) of the Extradition Act 2003, CPR 52.2 and paragraph 22.6A of the part 52 Practice Direction, both filing and service were required within seven days.
2. The court applied the legal position established by the House of Lords in Mucelli v The Government of Albania and Mulai v Deputy Public Prosecutor in Criteil, France: failure to comply with either requirement rendered the appeal irredeemably out of time and deprived the court of jurisdiction.
3. The claimant had already had a judicial hearing before the District Judge, where he could raise all objections to the European Arrest Warrant and the statutory conditions for extradition. The District Judge had considered and rejected those objections.
4. Neither the Council framework decision governing the European Arrest Warrant procedure, EU law generally, nor the Convention required the court to entertain an appeal in defiance of the statutory time limit. The framework decision contemplated a streamlined procedure, and strict time limits were compatible with EU and Convention law.
5. The Convention right to an effective remedy did not require the court to circumvent the statutory limit. The arguments based on article 5 of the Convention could not establish appellate jurisdiction. There was no doubtful issue of EU law requiring or justifying a reference under article 234 of the EC Treaty.
6. The court declined to express any view on the substantive arguments concerning the warrant’s validity or the alleged oppression of extradition by reason of the claimant’s physical and mental health. Certification of a point of general public importance was refused.

• City of Westminster Magistrates’ Court: District Judge Nicholas Evans ordered the claimant’s extradition to France on 5 February 2008.
• High Court (Administrative Court): The appeal was dismissed because the appellant’s notice had not been served within the statutory seven-day period. Certification was refused.