EXTRADITION—EXTRADITION ORDER—APPEAL

Queen’s Bench Division, Divisional Court
Richards LJ and Aikens J
15 November 2007

The secretary of state can discharge his duty to inform the requested person under s 100 of the Extradition Act 2003 (EA 2003) by means of a letter sent to the person’s solicitor and such a letter can be sent by any of the normal methods of communication, and in English. It is for the solicitors then to communicate in the normal way with their client, in the knowledge that time for appealing ran from the date of receipt of the letter by them. 

Ben Cooper (instructed by Shearman Bowen & Co) for the appellant.
Melanie Cumberland (instructed by the Crown Prosecution Service) for the Government of Albania.
Ben Watson (instructed by the Treasury Solicitor) for the interested party, the secretary of state for the Home Department.

The appellant was convicted in his absence in Albania, a category 2 territory, and the secretary of state for the Home Department ordered the appellant’s extradition. By letter of the same date (18 May 2003) it informed the appellant’s solicitors that the extradition had been ordered and gave notice of the right within 14 days to give notice of appeal. There was confirmation of the receipt by solicitors by fax on the same day. The Home Office also sent a letter to the governor of the prison where the appellant was in custody on remand informing him that extradition had been ordered and asking that the appellant be informed of his right to appeal within 14 days. The appellant was given the letter on 23 July. By EA 2003, s 103(9), the time limit for bringing the appeal was 14 days, starting from the day on which the secretary of state informed the person under s 100(1) of the order he had made. The appellant’s solicitors filed the appeal but did not serve it within the time limit on the Home Office. The respondent government argued that the appeal was out of time. The appellant submitted that under s 100 he had to be informed of the extradition order personally, in terms that he was able to understand, and that that had not been done until the information had been communicated to him by his solicitor.

LORD JUSTICE RICHARDS:

Section 100 provided:

 “(1) If the Secretary of State orders a person’s extradition under this Part he must—(a) inform the person of the order; (b) inform him in ordinary language that he has a right of appeal to the High Court; (c) inform a person acting on behalf of the category 2 territory of the order …”

There was no specific statutory provision as to the method by which persons were to be so informed. Nor were there any rules prescribing the method to be adopted.

The appellant’s case was that he had to be informed of the order personally, in terms that he was able to understand, and that that was not done until the relevant information was communicated to him by his solicitor in their conversation some time after the fax.

His lordship held that the secretary of state could discharge his duty to inform the requested person under s 100 by means of a letter sent to the person’s solicitor and that such a letter could be sent by any of the normal methods of communication, including fax.

The language of the section did not compel the conclusion that there had to be direct personal communication to the requested person. The requirement in s 100(1)(b) to inform the person “in ordinary language” of his right of appeal was perhaps a pointer in that direction but was not inconsistent with the possibility that he might be informed through his solicitor.

The requirement in s 100(1)(c) that the information be given to the agent of the requesting government did not mean that, by contrast, the information had to be given under s 100(1)(a) and (b) to the requested person himself rather than to an agent: the requesting government had to act through an agent in the extradition proceedings and it made sense to provide for the information to be given to the agent rather than to the government itself.

More generally, s 100 could not have been intended to operate differently from those sections where the court had to provide information to a person who was not before it; and in each case, Parliament had to be taken to have intended that communication of the information by letter to the requested person’s solicitor would suffice. That was the general position under the procedural rules of English law, against the background of which the statute was enacted.

It did not follow that the full detail of those procedural rules, was to be imported into s 100. The details differed in any event and assisted, but they did not constitute a legislative code governing the communication of information under the section.

Language of information

If information could be given by means of a letter to the requested person’s solicitor, it was obvious that the letter could be in English. Had it been intended to impose a requirement as to the language in which the information was to be given, his lordship would have expected the section to contain express wording to that effect.

Practical difficulties would arise if the appellant’s case were accepted. The secretary of state would not necessarily know what language or languages the requested person understood. There would be scope for the person to feign a lack of comprehension. The secretary of state would be burdened with an unprecedented duty of translation and personal communication which it would be extremely difficult to fulfill. There would be uncertainty as to precisely when the information was communicated and, therefore, when time began to run for removing the person. The efficacy of the strict statutory timetable for extradition procedures would be undermined.

The appeal would therefore be dismissed.
Mr Justice Aikens agreed.