Miguel Antonio Da Cruz & Anor v Portugal

For an extradition appeal, the statutory period for giving notice under section 26(4) of the Extradition Act 2003 runs for seven calendar days up to midnight on the final day. Rules of court regulate the manner of service, but cannot shorten or extend that statutory period. Where the seventh calendar day is a non-business day, the period carries over to the whole of the first succeeding business day. A late notice may in any event be entertained under section 26(5) where the requested person did everything reasonably possible to ensure prompt filing and service.

The appellant challenged an extradition order made by a district judge in relation to a Portuguese conviction for theft. The judge had discharged him on a separate money-laundering offence and had also discharged his wife. The appeal raised issues concerning the timeliness of the notice of appeal, specialty protection under Article 625(2) of the Trade and Cooperation Agreement, and an Article 8 ECHR ground.

The notice was filed on the eighth calendar day because the seventh day was a Sunday, and was served electronically after the Criminal Procedure Rules’ 4.30 pm cut-off. The court determined whether the notice was nevertheless in time, or alternatively whether section 26(5) applied. It also settled questions to be sent to the Portuguese judicial authorities and deferred the Article 8 issue.

1. Timeliness. The notice of appeal was in time. Section 26(4) of the Extradition Act 2003 permits notice to be given during seven statutory 24-hour days, ending at midnight on the final day. The reference to rules of court concerns the manner, not the time, of service. Criminal procedure rules therefore cannot impose an earlier cut-off.
2. Where the seventh calendar day is a non-business day, the period carries over to the first succeeding business day. The notice may be filed or served at any time during that day. The electronic-service deadline in rule 4.11 of the Criminal Procedure Rules did not shorten the statutory period.
3. Alternative section 26(5) conclusion. If the notice had been out of time, the court would have applied the mandatory disapplication in section 26(5). The requested person had done everything reasonably possible to ensure that notice was given as soon as possible. A representative’s fault did not justify perpetuating a potential injustice.
4. Further information. The National Crime Agency was directed to ask the Portuguese Judicial Court of the District of Coimbra whether the appellant would serve five years or only the three-year sentence referable to the extradition offence, and, if only three years, which Portuguese-law provisions permitted amendment of the final judgment. Broader requests for examples of other cases and for further clarification about re-imprisonment were declined as unnecessary, burdensome and disproportionate.
5. Article 8. Consideration of the Article 8 ground was deferred by agreement pending the Portuguese response. The judge stated that the usual position in extradition appeals is to address distinct arguable grounds notwithstanding a stay or deferral, but made clear that the case-specific agreement was not intended to establish a precedent.

• District Judge. On 27 March 2023 District Judge Pilling ordered extradition for the theft offence, discharged the appellant on the money-laundering offence, and discharged his wife.
• High Court (Administrative Court). The court held the notice of appeal in time, alternatively found section 26(5) satisfied, ordered focused requests for information from the Portuguese judicial authorities, and deferred the Article 8 issue.