Halligen v Secretary of State for the Home Department

For an extradition appeal under Part 2 of the Extradition Act 2003, notice must be both filed and served within the statutory fourteen-day period. The court cannot extend that period, dispense with the required service, or cure the failure through the procedural powers in the Civil Procedure Rules.

A communication expressing an intention to appeal is insufficient. The document served must itself be, or at least purport on its face to be, a notice of appeal. The deemed-service rule for documents served under the Civil Procedure Rules does not apply to the Secretary of State’s notification of an extradition order where no rule or practice direction governs that notification.

The appellant challenged the Secretary of State’s decision to order his extradition to the United States. A notice of appeal was filed at court within the fourteen-day period, but service on the Crown Prosecution Service and the Secretary of State occurred one and two days late respectively.

The appellant relied on a handwritten letter sent within time, the deemed-service provisions of the Civil Procedure Rules, and the interpretive obligation under section 3 of the Human Rights Act 1998. The preliminary issue was whether those matters meant that the statutory requirements for giving notice had been satisfied or could be remedied.

1. The court held that it had no jurisdiction to entertain the appeal. Section 108(4) of the Extradition Act 2003 required notice of appeal to be given within fourteen days, and the requirement involved both filing and service. The statutory period could not be extended by the Civil Procedure Rules.

2. The handwritten letter sent on 29 December 2010 did not constitute valid service. It expressed an intention to appeal and referred to the appellant’s instructions to solicitors and counsel, but it did not purport to be a notice of appeal or even a draft notice. The court considered that this conclusion followed even on the more permissive approach in Kane v Spain.

3. The court applied the reasoning in Mucelli v Government of Albania and Moulai v Deputy Prosecutor in Creteil, France, and the subsequent clarification in Szelagowski v Regional Court of Piotrkow Trybunalski Poland. A document merely stating that a notice of appeal exists, or that an appeal is intended, is not itself a notice of appeal. The procedural powers in the Civil Procedure Rules therefore could not cure the defect.

4. Rule 6.26 of the Civil Procedure Rules did not deem the Secretary of State’s fax to have been served on the following business day. The fax was not a document served in accordance with the Civil Procedure Rules or a relevant practice direction, because those provisions did not govern how the Secretary of State was to inform the appellant of the extradition order.

5. Section 3 of the Human Rights Act 1998 did not require section 108(4) to be construed as permitting notice of an intention to appeal, nor did it confer a residual discretion to extend the statutory period. Lord Justice Laws agreed with Mr Justice Stadlen.

• Divisional Court: On 1 March 2011, Pill LJ directed that the preliminary jurisdiction issue be heard after considering the appeal on the papers.
• High Court (Administrative Court): The court held that the statutory requirements for filing and service had not been met and that it had no jurisdiction to entertain the appeal.