Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice)

Under sections 26(4) and 103(9) of the Extradition Act 2003, notice of an appeal must be both filed with the court and served on the respondent within the applicable seven or 14-day period. The statutory deadline cannot be extended, nor may service be dispensed with through the court rules.

Rules governing deemed service cannot shorten the statutory period. A notice transmitted by fax to the proper address before midnight on the final day is therefore served in time, even if a procedural rule would otherwise deem transmission after 4 pm to take effect on the next business day. If the recipient’s office is closed throughout the final day, filing or service may take place on the next day it is open.

These conjoined appeals concerned the time limits for extradition appeals under Parts 1 and 2 of the Extradition Act 2003.

In Moulai v Deputy Public Prosecutor in Creteil, France, the notice was filed within seven days and faxed to the respondent shortly after 4 pm on the final day. The Divisional Court, in [2008] EWHC 1024 (Admin), held that filing alone satisfied section 26(4) and alternatively extended time for service. The prosecutor appealed.

In Mucelli v Government of Albania, the notice was filed within 14 days but served substantially later. The Divisional Court, in [2007] EWHC 2632 (Admin), held that section 103(9) required timely filing and service and that time could not be extended. Mr Mucelli appealed.

The central issues were whether notice had to be both filed and served, whether the statutory periods could be extended, and how the deadline operated when service occurred after normal office hours.

1. Disposition. The House dismissed both appeals. The prosecutor’s appeal in Moulai v Deputy Public Prosecutor was dismissed unanimously, although Lord Rodger reached that result by different reasoning. Mr Mucelli’s appeal was dismissed by a majority of four to one.

2. Filing and service. Lord Neuberger delivered the leading speech. Lord Brown agreed with all his reasoning; Lord Carswell agreed with Lord Brown and Lord Neuberger; and Lord Phillips aligned himself with Lord Neuberger. The majority held that notice under sections 26(4) and 103(9) of the Extradition Act 2003 must be both filed or lodged with the court and served on the respondent within seven or 14 days respectively. The rules of each United Kingdom jurisdiction identify how and to whom notice is given. That construction promoted consistent operation throughout the United Kingdom and enabled the extraditing authority to know promptly whether the statutory timetable for extradition remained operative.

3. No extension or dispensation. Per Lord Neuberger, the prescribed periods were unqualified statutory time limits. The powers in the Civil Procedure Rules 1998 to extend procedural time, remedy procedural errors or dispense with service could not override them. The reference to compliance with rules of court governed the manner of giving notice, not the statutory deadline. Substituted service could nevertheless be ordered in an exceptional case where it constituted an appropriate means of effecting the required service.

4. The whole statutory day remained available. Per Lord Neuberger, subordinate procedural rules could not shorten the period granted by Parliament. The rule deeming a fax sent after 4 pm to be served on the following business day therefore did not govern the statutory deadline. Mr Moulai’s fax reached the respondent’s proper address before midnight on the seventh day and was timely. His extradition appeal could consequently proceed.

5. Closure of the recipient’s office. Lord Neuberger stated that, if the office was closed throughout the final day, filing or service could validly occur on the next day it opened. Closure after normal office hours did not itself extend the period. A fax transmission or delivery through the recipient’s letter box before midnight could still constitute timely service.

6. Application to Mr Mucelli. His failure to serve within 14 days was incurable, so his appeal could not proceed. Lord Neuberger added that, had the appeal been viable, the proper course would have been to remit the section 85 issue and permit the Albanian Government to adduce the further evidence considered in Bogdani v Government of Albania [2008] EWHC 2065 (Admin), with an opportunity for evidence in reply.

7. Dissent. Lord Rodger considered that sections 26(4) and 103(9) required only filing within the statutory period. Service was a procedural matter governed by court rules and remained amenable to extension or dispensation. He would therefore have allowed Mr Mucelli’s appeal.

1. House of Lords: In Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France [2009] UKHL 2, dismissed both appeals. The House held by a four-to-one majority that timely filing and service were required. Mr Moulai’s notice was nevertheless timely because the fax reached the proper address before midnight.

2. High Court, Divisional Court — Mucelli: In Mucelli v Government of Albania [2007] EWHC 2632 (Admin), reported at [2008] 2 All ER 340, held that section 103(9) required filing and service within 14 days and that time could not be extended. It declined to dispense with service.

3. High Court, Divisional Court — Moulai: In Moulai v Deputy Public Prosecutor in Creteil, France [2008] EWHC 1024 (Admin), reported at [2008] 3 All ER 226, held that section 26(4) required timely filing but not service. It alternatively held that time for service could and should be extended, allowing the extradition appeal to proceed.

4. District Judge: Ordered the extradition of Mr Moulai to France and sent Mr Mucelli’s case to the Secretary of State, who ordered his extradition to Albania.