Salazar-Duarte v The Government of the United States of America

For statutory extradition appeals, time runs from delivery of a communication informing the person, or a solicitor entitled to receive it, of the Secretary of State’s order. Actual reading or understanding is unnecessary where delivery has occurred through a normal communication method.

Strict procedural sanctions are exceptional. A technical failure to comply with a case-management order will rarely justify striking out or debarring a party absent repeated default, contumacious conduct or material prejudice. A decision under the Extradition Act 2003 must be challenged through the statutory appeal route and cannot be circumvented by judicial review.

The United States sought the extradition of Mr Salazar-Duarte on money-laundering charges. Following an extradition hearing, the District Judge rejected his double-jeopardy and disclosure arguments and sent the case to the Secretary of State. The Secretary of State ordered extradition and informed the appellant’s solicitors by e-mail on 16 June 2010.

The appellant filed his appeal against the District Judge’s decision on 29 June, but the respondent was not served until 1 July. He also applied to strike out the respondent’s jurisdiction documents for non-compliance with a case-management order and sought judicial review concerning disclosure by the prosecuting authorities. The central issues were whether the appeal was in time, whether procedural default justified striking out, and whether judicial review could be used to challenge the extradition decision.

1. Strike-out application. The court dismissed the application. Failure to comply with a court order within the prescribed time is assessed by reference to the extent and reasons for delay, its effect on the proceedings, prejudice and other relevant circumstances. Striking out or debarring a party is among the most severe sanctions and will rarely be justified without repeated failure or contumacious conduct. Here the respondent’s documents explained its case and caused no demonstrated prejudice. The failure was therefore technical.
2. Time for appeal. Under section 103(9) of the Extradition Act 2003, the appeal period began when the e-mail and attached letter reached the solicitors’ office on 16 June. Delivery of a letter, fax or e-mail containing the necessary information is sufficient. The solicitor cannot rely on absence from the office, delayed opening of the message or inadequate internal arrangements. This construction provides the certainty required by the statutory timetable and was consistent with Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R. 276.
3. The notice of appeal was served on the CPS no earlier than 1 July. It was therefore out of time, whether the final day was 29 or 30 June. The court had no jurisdiction to entertain the appeal, which was dismissed.
4. Judicial review. Section 116 of the Extradition Act 2003 provides that a decision of the District Judge or Secretary of State may be questioned only by appeal. Any alleged abuse of process or need for disclosure had to be raised before the District Judge and, if necessary, by statutory appeal. The appellant could not circumvent that scheme by judicial review. The proposed amendment joining the DPP and the application for permission to proceed were dismissed. The court referred to McKinnon v Government of the United States of America [2008] UKHL 59; [2008] 1 W.L.R. 1739 as an example of the proper appellate route.

• City of Westminster Magistrates’ Court: District Judge Purdy rejected the appellant’s defences, including double jeopardy and abuse of process, and sent the case to the Secretary of State.
• Secretary of State for the Home Department: An extradition order was made on 15 June 2010.
• High Court (Administrative Court): The statutory appeal was held out of time and dismissed. The application to strike out the respondent’s documents and the judicial review applications were also dismissed.