Regional Court In Konin, Poland v Walerianczyk [2010] EWHC 2149 (Admin)

[2010] EWHC 2149 (Admin)Case No CO/4746/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/08/2010
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE NICOL
Between
REGIONAL COURT IN KONIN, POLANDAppellantPAWEL WALERIANCZYKRespondent
John Jones (instructed by the Crown Prosecution Service) for AppellantBen Keith (instructed by Dalton Homes Gray) for RespondentHearing Hearing date: 27 July 2010
Judgment

Introduction

[1]This appeal raises an important point as to the construction and effect of sections 26 and 28 of the Extradition Act 2003 which has practical implications for the practice of those representing individual appellants and that of the CPS seeking to appeal pursuant to those provisions against decisions of District Judges. The issue of principle is whether service of a draft notice of appeal, followed by the filing of a notice of appeal in the same form with the Administrative Court Office, constitutes the giving of notice of the appeal for the purposes of those sections of the Act. If it may constitute such notice, the question then arises whether service of a sealed copy of the notice of appeal is required, and if so whether the Court may and in the circumstances of the present case should waive that requirement.[2]The Regional Court in Konin, Poland, the Appellant on this appeal, sought the extradition of the Respondent Pawel Walerianczyk pursuant to a European Arrest Warrant for him to serve a sentence of 1 year and 8 months. He had been sentenced on 15 November 2002 for obtaining a Sony PS2 console by false pretences. The sentence was originally suspended for 5 years. He was also ordered to pay compensation to the victim in the sum of 1409 zlotys (about £304) within 1 year of the sentence becoming binding, which was on 23 November 2002. On 9November 2007 the person due to receive that compensation complained that it had not been paid. As a result, on 29January 2008 the District Court in Konin brought the suspended sentence into effect.[3]The European Arrest Warrant was issued on 28 May 2009 and certified by SOCA on 14 November 2009. The Respondent was arrested on 15 December 2009 and brought before the City of Westminster Magistrates’ Court. The extradition hearing was held on 13April 2010 before District Judge Riddle. He observed that there had been considerable delay in bringing the suspended sentence into effect, and that the victim had subsequently and quite recently received his compensation. The judge found that in these circumstances extradition was oppressive and an abuse of the process of the court, and he discharged the Respondent.[4]The Appellant sought to appeal the decision of the District Judge. On behalf of the Respondent, the preliminary issue was raised as to whether notice of appeal had been given within the permitted period prescribed by section 28 of the Extradition Act 2003.[5]On 27 July 2010 we heard the submissions of counsel on this preliminary issue. We informed the parties that for the reasons we would set out in our written judgments we decided the preliminary issue in favour of the Respondent. It followed that the appeal was dismissed.[6]These are my reasons for deciding that the Appellant’s appeal was out of time.

The relevant chronology

[7]The relevant chronology is brief. As mentioned above, the judge ordered the Respondent’s discharge on 13 April 2010. The time to give notice of appeal under section 28 expired on Monday 19 April 2010. On Friday 16 April the Appellant faxed to the Respondent’s solicitors an unsealed notice of appeal and supporting documentation. On Monday 19 April 2010 notice of appeal in the same form (subject to the exception to which I refer below) was filed with the Administrative Court. On the following day, one day after the expiration of the permitted period under section 28, the CPS served by fax a sealed copy of the notice of appeal.

The issues

[8]In Mucelli v Government of Albania and Moulai v Deputy Public Prosecutor in Creteil, France [2009] 1 WLR 276 [2009] UKHL 2 the House of Lords held that the giving of notice of an appeal for the purposes of section 26 required that the notice be both filed and served within the permitted period. It also held that the court has no power to extend time for giving notice, in other words for those things to be done. It is common ground and clear that there is no material difference between the wording of section 26 and that of section 28, so that the same applies to section 28.[9]There are four issues in the present case:(i) Is service on the respondent of a draft notice of appeal, followed by the filing of notice, capable of complying with the requirement that notice of an appeal be given within the permitted period?(ii) If the answer to (i) is “Yes”, does service of an unsealed copy of the notice of appeal satisfy the requirement of section 28 that notice be given “in accordance with rules of court”?(iii) If the answer is to (ii) is “No”, does the court have power to waive the requirement that the notice of appeal served on the respondent must be sealed?(iv) If the answer to (iii) is “Yes”, should the Court exercise that power in the present case?

The submissions of the parties

[10]On behalf of the Appellant, Mr Jones submitted that these issues should be answered as follows:(i) It was sufficient to serve a notice of appeal before filing, provided the notice was filed within the permitted period, and that the decision of this Court in Sciezka v The Court in Sad Okregowy, Kielce, Poland [2009] EWHC 2259 (Admin) is binding authority to this effect.(ii) It was unnecessary to serve a sealed copy of the notice of appeal: no such requirement is to be found in paragraph 22.6A of the Practice Direction to Part 52 of the CPR.(iii) If the answer to (ii) was incorrect, the deficiency was as to the content of the notice of appeal, and not to the timing of giving notice of appeal, and failure to comply did not necessarily render the giving of notice ineffective. The Court has power to excuse such a deficiency under CPR Part 3.10.(iv) That power should be exercised in favour of the Appellant, having regard to the circumstances set out in the witness statement of Daniel Sternberg dated 26 July 2010 and the fact that no prejudice has been suffered by the Respondent as a result of the deficiency.[11]For the Respondent, Mr Keith submitted that section 28 required service of a notice that an appeal had been filed; that Part 52 of the CPR read with PD 52.6A requires service of a sealed copy of a notice of appeal; that if the failure to serve a sealed copy was a deficiency that could be excused, there were no circumstances in the present case justifying the exercise of the power of the Court under CPR Part 3.10 in favour of the Appellant.

Discussion

[12]In my judgment, issues (i) and (ii) are interrelated, in that if there is a requirement under the CPR that an appellant serve a sealed copy of his notice of appeal, the practical reasons for that may cast some light on the interpretation of section 28. I think it right to approach issue (i) at least initially as a matter of statutory construction before turning to the authorities.[13]I also think it necessary to be clear about what is meant by a notice of appeal or a copy of a notice of appeal or by an unstamped notice of appeal. A notice of appeal served before the appeal is filed is no more than a draft notice of appeal. It can signify no more than an intention to appeal. It differs from a copy of the filed notice of appeal in two respects. It is unstamped; and it does not bear the reference number allocated to the appeal by the Court Office. Thus a notice of appeal served before the appeal is filed is not a true or complete copy of the actual notice of appeal.[14]Moreover, the differences between a draft notice of appeal and notice of an appeal that has been filed are significant. Service on a respondent of a notice of appeal bearing the court stamp and appeal reference informs him that there is a pending appeal. That is particularly important if, as in the present context, there are steps that may be taken if an appeal is not in fact pending at the expiration of a specified time to appeal. If only a draft notice of appeal against an extradition order is served on the last day of the permitted period, the CPS will not know whether in fact a notice of appeal has been filed and whether they are free to effect the extradition of the person in question. To my mind, it is no answer that, as suggested by Mr Jones, the CPS may telephone the Court Office to ascertain whether the notice was in fact filed. In the first place, this puts a burden on the Court Office, and places undue weight on the accuracy and reliability of a telephone inquiry. Secondly, as the facts of Moulai demonstrate, a notice of appeal may be served, and may certainly be considered by the proposed respondent, after the Court Office has closed, so that it is impossible to make an inquiry by telephone. Conversely, a person whose extradition has been sought is entitled to know, immediately after the expiration of the permitted period under section 28, whether his extradition proceedings have come to an end. If he has been detained pursuant to section 30 he is entitled to know with certainty whether, at the expiration of the permitted period, his appeal is pending, since if it is not he has an immediate right to his liberty. Similarly the governor of the prison in which the person is detained must be entitled to receive written justification for his continued detention. These considerations were referred to by Lord Neuberger in Mucelli at paragraphs 67 and 68 of his opinion.[15]It is not without interest that in the not dissimilar context of the removal of unlawful immigrants and failed asylum seekers, it was the policy of the Home Office not to agree to defer removal beyond an initial 3-day period unless it was given the Administrative Court reference for judicial review proceedings. The policy was described by Silber J in his recent judgment in as follows:
“7. From July 1999, the Immigration and Nationality Directorate (“IND”) adopted a policy following discussion with the Administrative Court which was known as “the Concordat” and which was designed to clarify the arrangements for responding to last-minute judicial review challenges to removal and thereby reducing the high number of injunctions being sought in such cases. Under the Concordat, the IND agreed to defer enforced removals of an individual for three days in the event of a threat of judicial review so as to enable a court reference number to be obtained. If it was confirmed within 24 hours that judicial review proceedings had been initiated, the removal directions would then be cancelled.”
In other words, after the initial 3-day period, the IND would not treat a threat of judicial review proceedings as justifying deferral of removal: it required confirmation that proceedings had actually been filed.[16]Furthermore, one must bear in mind that persons whose extradition is sought, like persons whose removal on other grounds is sought, may act in person. Their notification of their intention to appeal may not necessarily be followed by the timeous, or any, filing of an appeal.[17]Quite apart from these considerations, I would construe section 28 as requiring notice to be given of an actual appeal, not of an intention to appeal. It is clear that filing the notice of appeal with the court does not satisfy section 28. If that was what Parliament had intended, it would have referred to the filing of notice of an appeal, not the giving of notice. The giving of notice must be to the respondent or respondents. The words are “Notice of an appeal must be given …”, not “notice of an intention to appeal”. Quite different wording is used in the Act to signify an intention to appeal: see sections 30(1) and 33A(1). The considerations to which I referred in paragraphs 14 to 16 above fortify my view that this is the correct construction of sections 26 and 28.[18]Issue (i) above was not argued in Mucelli. Subject to one matter, however, my interpretation of the requirements of sections 26 and 28 is consistent with, and fortified by, the majority opinions. I have already referred to paragraphs 67 and 68 of Lord Neuberger’s opinion. In paragraph 70, in referring to certain of the submissions to the effect that filing of notice of appeal without serving it sufficed, he said:
“It was also claimed that it would be inconvenient if section 26(4) referred to two events, rather than one. In my view, there is nothing in that: it requires filing and then service, so, in practice, it logically can be treated as only referring to service.”
The italics are mine. If service follows filing, what can and should be served is the notice of appeal with its court stamp and reference number.[19]I also ask, rhetorically, what if the draft notice of appeal served differs from that filed with the court? If service follows filing, and is of a sealed notice, the question cannot arise. If service precedes filing, it may arise.[20]The one matter pointing the other way is that the House of Lords appreciated that sections 26 and 28 apply to Scotland as much as England and Wales and Northern Ireland. The rules of procedure in Scotland require notice to be served before an appeal is filed. Their provisions are described by Lord Rodger in his dissenting opinion at paragraph 19. Compliance with this procedure was said to constitute the giving of notice of appeal. Hence, it was suggested, the service of notice of appeal before the filing of the appeal must also satisfy the statutory requirement in this jurisdiction; and a notice of appeal served before filing necessarily lacks both the court seal and a reference number.[21]There are I think two answers to this point. The first is that sections 26 and 28 require notice to be given “in accordance with rules of court”. What constitutes the giving of notice of appeal must therefore be determined by the rules of court, which may be different in different jurisdictions. What constitutes the giving of notice of appeal in Scotland may not be the same as the giving of notice of appeal in England and Wales. Lord Neuberger referred to this at paragraphs 59 to 61 of his opinion.[22]The second, and more fundamental, point is that subsequent delegated legislation is at best persuasive authority as to the meaning of a statute. The use of delegated legislation as a guide is said to be justified because it originates in the government department responsible for initiating and administering the legislation, and may therefore be assumed to reflect the views of its promoters: see Halsbury’s Laws, volume 44(1) at paragraph 1428. I am far from clear that the provisions of the CPR and Practice Directions, or the Scottish rules of court, were drafted by the government department responsible for promoting the Extradition Act. The Scottish rules of court relating to extradition appeals were adopted in August 2004, by Act of Adjournal (Criminal Procedure Rules Amendment No. 3) (Extradition etc.) 2004/346 (Scottish SI). Subsequent delegated legislation, including rules of court, show only how the draftsman of that delegated legislation interpreted the statute, and it is not unknown for the drafter of regulations to misconstrue the parent Act: see Bennion on Statutory Interpretation, 5th edition, at section 233. If sections 26 and 28 require notice to be given to a respondent of an appeal, and not merely of an intended appeal, that requirement cannot be cut down or modified by rules of court. It is, I believe, for this reason that Lord Rodger, in paragraph 19 of his opinion, said that all the rules of court were irrelevant. Their irrelevance is highlighted by the fact that the Scottish procedure is not invariable. As Lord Rodger said in that paragraph:
“This is not the product of some invariable rule for Scottish criminal appeals. On the contrary, practice varies.”
[23]In this connection, it is worth pointing out that, as Nicol J, who as counsel appeared in Mucelli,informed me, the Scottish rules of procedure were not raised in argument. They made their appearance for the first time in Lord Rodger’s opinion.[24]I would also mention that it is apparent from Mr Sternberg’s witness statement that it is the normal practice of the CPS to serve a sealed copy of the notice of appeal as soon as the notice of appeal has been filed with the court. There would appear to be no practical difficulty in complying with what I consider to be the requirements of section 28, particularly since, as held in Sciezka, the notice may be served by fax.[25]I turn to consider the decision of this Court in Sciezka. It was a very unusual case. The Administrative Court Office had initially refused to accept the notice of appeal that the defendant in the extradition proceedings sought to file, on the erroneous basis that it was out of time. A copy of the unsealed and unfilled notice was served by fax on the CPS. Subsequently, late on 19 January 2009, the last day of the permitted period, the Court Office accepted the notice, but the sealed copy was not served on the CPS until 23 January 2009. Sullivan LJ held, and Wilkie J agreed, that there was a valid appeal. If section 26 requires the notice of an actual appeal to be served, this decision was wrong.[26]It is not entirely clear that issue (i) was raised in that case. I refer to the first sentence of paragraph 11 of the judgment of Sullivan LJ:
“There is no dispute that the document that was faxed to both the Administrative Court office and the respondent on Monday, 19th January was a notice of appeal against District Judge Tubbs' order. Was it filed and served on 19th January? The only reason why a hard copy of the notice of appeal was not filed on 19th January was because a senior legal manager in the Administrative Court office refused to accept it. With the benefit of hindsight, the subsequent decision in Mucelli makes it clear that the senior legal manager's decision was wrong.”
[27]The issues argued in Sciezka related to the manner of filing and service of a notice of appeal. Issue (i) was indeed touched on in paragraph 12 of Sullivan LJ’s judgment, but in terms of submissions relating to the form of the notice served on the respondent. The ratio of Sullivan LJ’s judgment, with which Wilkie J agreed, is in paragraph 23:
“For these reasons, I am satisfied that the court has power under the CPR to approve the manner in which the applicant's notice of appeal was filed and served within the 7-day period. There is, therefore, a valid appeal and unless the respondent is prepared to give an appropriate undertaking, the injunction granted by the Divisional Court should be extended until such time as the appellant's appeal is dealt with by this court.”
The underlining is in the original. In my judgment, the question whether a draft notice of appeal can be a notice of appeal is not a question of form or manner of service, but of substance, going to the time of the giving of the notice of appeal. In my judgment, a party does not give notice of appeal by serving a draft of his notice on the proposed respondent. What must be served is a copy of the filed notice of appeal.[28]Sciezka was a very hard case on the facts, and I understand why the Court strived to find that notice of appeal on behalf of the person sought to be extradited had been given in time. However, for the reasons I have given, if it is authority for the proposition that service of a draft notice of appeal, followed by filing of a notice, satisfies the requirements of sections 26 and 28, I respectfully disagree. In this connection, I bear in mind that insistence on strict application of sections 26 and 28 is as relevant to the person whose extradition is sought as it is to the extraditing authority.[29]I turn to consider issue (ii). CPR Part 52.2 requires all parties to an appeal to comply with Practice Direction 52. Filing and service of an appellant’s notice are the subject of paragraph 5.19 of the Practice Direction, which requires among other things that a sealed copy of the appellant’s notice must be served on all respondents. I do not think it coincidence that the Practice Direction requires filing before service, and service of a sealed notice of appeal: these requirements ensure that the respondent is informed that there is a pending appeal.[30]Appeals under the Extradition Act 2003 are the subject of paragraph 22.6A, which is within Section III, entitled “Provisions about specific appeals”. Paragraph 20 of Section III is as follows:
“20.1 This Section of this Practice Direction provides special provisions about the appeals to which the following table refers. This section is not exhaustive and does not create, amend or remove any right of appeal. 20.2 Part 52 applies to all appeals to which this section applies subject to any special provisions set out in this section. 20.3 Where any of the provisions in this section provide for documents to be filed at the appeal court, these documents are in addition to any documents required under Part 52 or sections I or II of this practice direction.”
[31]Paragraph 22.6A(3) is so far as relevant as follows:
“(3) Where an appeal is brought under section 26 or 28 of the Act- (a) the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made; …” (a) the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made; …”
[32]There is nothing in paragraph 22.6A to exclude the general requirement that the notice of appeal served must be a sealed copy. I would therefore answer issue (ii) in the affirmative.[33]I add that I should not be thought to consider that the seal is a magical token, an essential feature of a notice of appeal served on a respondent the lack of which necessarily precludes the court from holding that notice of appeal has been duly given. The lack of a seal goes as to the form of the notice, and in an appropriate case may be excused by the Court under CPR Part 3.10. I would think that service of an unsealed copy of the filed notice of appeal that includes the case reference number allocated by the Court, which therefore informs the respondent that the appeal has been filed, would in an appropriate case be held to be sufficient. But that is not this case.

Issues (iii) and (iv)

[34]If, contrary to my view, service within the permitted period of a draft notice of appeal, before a notice of appeal is filed with the court, may comply with the requirements of section 26, the defects of lack of a seal and the reference number of the appeal relate to the form of the notice, and may be waived by the Court under CPR Part 3.10.[35]However, there must be good reason for the court to exercise its power under CPR Part 3.10. Paragraphs 7 to 10 of Mr Sternberg’s witness statement gives an account of what happened:
“7. The Administrative Court Office rejected the Appeal documents which the CPS attempted to lodge on Friday April 16th 2010. The reason given was that only one copy of the supporting material was supplied with the form N161, instead of supporting material being attached to each of the four copies of the notice of appeal that were submitted to the Administrative Court Office. 8. I learned on the afternoon of Friday April 16th 2010 that the Administrative Court had rejected the appeal. I therefore asked that a CPS caseworker lodge the appeal again on Monday April 19th 2010 together with supporting documentation in each case. 9. The appeal was successfully lodged on Monday April 19th 2010. I was not able to serve a sealed copy of the notice of appeal on the representatives of Mr. Walerianczyk on this day as I was at the City of Westminster Magistrates’ Court all day prosecuting extradition cases. The permanent lawyer at the CPS Extradition Unit with conduct of the case was on leave on this day. 10. A copy of the sealed notice of appeal was served on Dalton Holmes Gray, the Representatives of the Respondent Mr Walerianczyk by fax and by Document Exchange on Tuesday 20th April 2010. The letter covering the sealed notice of appeal noted that this firm had already been sent a copy of the unsealed notice of appeal and supporting documentation on Friday April 16th 2010. ”
[36]No reason is given why the person who lodged the notice of appeal in the court office on behalf of the CPS was not instructed immediately thereafter to fax the sealed notice of appeal by way of service on the Respondent, or why no one else at the CPS was so instructed. In a context in which there is a strict time limit for giving notice of appeal, this was a significant failure.[37]I see no justification for exercising the power under CPR Part 3.10 in favour of the Appellant so as to cure the failure timeously to serve a sealed copy of the notice of appeal.[38]It follows that for this reason too I consider that this appeal is not a valid appeal. It was therefore dismissed.[39]I agree, although I have found the answer to the first issue identified by Stanley Burnton LJ in paragraph 9 to be far from straightforward.[40]There is an attractive simplicity to the argument that ‘notice of an appeal’ presupposes that there is an appeal. Until an Appellant’s notice is filed with the Court, there is no appeal and there can be no question of giving notice of something which does not exist. There are also the real practical reasons why (in the case of an appeal under s.26 of Extradition Act 2003) the Respondent needs to know that an appeal has been brought (i.e. filed). Both parties to the present appeal agreed that the appeal provisions in s.26 (where extradition has been ordered by the District Judge) and s.28 (where the District Judge has ordered the person to be discharged) were materially identical.[41]While all of this would seem to be axiomatic for an English lawyer, it must be remembered that the Extradition Act 2003 applies across the UK. In Mucelli Lord Rodger drew attention to the practice in Scotland of requiring a would-be appellant to serve a ‘note of appeal’ on the Respondent and then afterwards to lodge the note of appeal with an ‘execution of service’. Thus the Scottish practice envisages service first followed by lodging. Lord Rodger went on to make the point at [19] that neither the Scottish nor English rules of procedure could influence the interpretation of the statute.[42]It is, however, notable that Lord Neuberger did not dismiss the procedural sequence in Scotland as irrelevant because it derived from subsidiary legislation. On the contrary, he was anxious to adopt an interpretation which was ‘equally appropriate throughout the United Kingdom’ – see [59]. He did look at the procedural rules (of all the UK jurisdictions) to see to whom a ‘notice of appeal’ was to be ‘given’. As he put it ‘there is nowhere else to look’ – see [60]. This led him to the conclusion that a proper interpretation of the statute required a person who wished to appeal under either s.26 or s.28 to both file and serve within the seven-day period.[43]I do not understand Lord Neuberger to have contemplated that this conclusion would lead to the consequence that in Scotland a would-be appellant has to serve twice: once prior to lodging (in order to satisfy the requirement of the Act of Adjournal); a second time after lodging (because the statute required notice that an appeal had been lodged to be given to the Respondent). On the contrary, he appears to treat the phrase ‘notice of an appeal’ to have sufficient flexibility that it can accommodate both the English and the Scottish procedures.[44]Nonetheless, it seems to me that a prospective appellant in England cannot say that his service of a draft notice of appeal is capable of being valid because it would be valid if the proceedings all took place in Scotland. A notice of appeal may be deficient in minor ways that are capable of being condoned under CPR r.3.10. Thus in Office of Public Prosecution Hamburg, Germany v Hughes [2009] EWHC 279 (Admin) the Appellant’s notice had failed to include the date on which the appellant had been arrested, contrary to CPR 52PD para 22.6A(3)(b). The Court held that it was able to condone that omission through the power in r.3.10. But, in England at least, there is a fundamental difference between a draft notice of appeal and a notice of appeal that has been filed. Just as Lord Neuberger looked at the rules of procedure to see to whom a notice of appeal had to be ‘given’, in my judgment one can look to those rules to identify the essential features of a ‘notice of appeal’. As he said, there is nowhere else to look.[45]Stanley Burnton LJ at [18] emphasises that Lord Neuberger at [70] said that s.26(4) requires ‘filing and then service’. I, with respect, do not find this argument persuasive. Lord Neuberger was there addressing an argument that it would be inconvenient if s.26(4) referred to two events (filing and service) rather than just one. His response, in effect, was that this was not so. Since one involved the other, there was in practice a single event at which the Act was directed. In England this came about because service involved a prior filing. I do not understand him at this point to have had in mind the Scottish sequence. He could, if he had done so, have given an equivalent answer. In Scotland, filing necessarily involves prior service so in that jurisdiction as well the time limit is directed at a single act. If my Lord was right, Lord Neuberger was in this passage requiring Scottish appellants to serve twice. As I have said, I do not believe that this was what he intended.[46]In [21] Stanley Burnton LJ notes that sections 26 and 28 requires notice of an appeal to be given ‘in accordance with rules of court’ and says that what constitutes the giving of notice must be determined by the rules of court which may differ from one jurisdiction to another. That is, of course, right. However, it is also the rules of court which, for instance, require a notice of appeal to include the date of the individual’s arrest. In my judgment there needs to be some way to distinguish between a requirement of that kind and a requirement that (in England) the appeal must actually have been filed. In my view it is a distinction between the essential features of a notice of appeal and the other requirements. If a document with the essential features of a notice of appeal is only served out of time, the statutory condition is not fulfilled and there is no appeal; if a document is served which has those essential features but where there has been a failure to follow some other rule of procedure or practice direction then the Court retains its power (in an appropriate case) to validate service.[47]I agree with what Stanley Burnton has said about the decision of this Court in Sziecka at [25] – [28]. The distinction which he draws at the end of para [27] between a question of form or manner of service and of substance is perhaps the same as I have attempted to describe in the previous paragraph.[48]In Dunne v High Court, Dublin [2009] EWHC 2003 (Admin) the Appellant (who was acting in person and who was in custody) filed his appeal on the last day of the statutory time period. The Court, though, did not return a sealed copy of the Appellant’s Notice until 3 days later. He did not serve the CPS until several months after that. An issue arose as to whether there was or could be a validly constituted appeal. Rafferty J. (with whom Leveson LJ agreed) said at [14]:
“Nothing in the rules precludes service on the CPS or on the Respondent of an Appellant's Notice which has not been issued (or stamped as received) by the Administrative Court Office as Mr Justice Collins pointed out in dialogue with counsel during a hearing on 6 April 2009 conducted by video link when, it appears to me, at least initially the CPS thought that it could waive service. Alerted by the court, counsel preserved the jurisdiction point and Mr Justice Collins granted legal assistance so that it could be argued or at least ventilated.”
[49]For the reasons which Stanley Burnton LJ has given in [29] – [32] I agree that the Rules do require an Appellant to serve a sealed copy of the Appellant’s Notice on the Respondent in extradition matters. So far as Richards LJ and Maddison J. in Arunthavaraja v Administrative Court Office Paphos District Court Cyprus [2009] EWHC 18921 (Admin) suggested that the position might be otherwise at [24]-[25], I respectfully disagree. However, if an Appellant’s Notice has been filed and all that is missing is the seal, then I also agree with Stanley Burnton LJ that this can (in an appropriate case) be waived by the Court exercising its power in r.3.10. Returning to Dunne, I would therefore agree that an appellant who has filed a notice of appeal but who has not yet received back a sealed copy, is nonetheless in a position to serve an unsealed version of the notice of appeal and, if that is done within the statutory time, he may then ask the Court to condone service of an unsealed document. Because Dunne had filed in time, it was not strictly necessary for the Court in that case to consider the position of an Appellant’s Notice which had not even been issued. However, it will be apparent from what I have said above, that so far as the Court in Dunne indicated that service of an ‘Appellant’s notice’ which had not yet been issued might suffice, I respectfully disagree.[50]Finally, I agree with Stanley Burnton LJ that, if service of a draft notice of appeal in 7 days was capable of satisfying s.26 of the 2003 Act and could be waived under r.3.10, good reason has not been shown in this case as to why the Court should exercise that power.[51]For all of these reasons, I agree that there is no valid appeal and it should be dismissed.

Cited in 7 later judgments