Case Nos: CO/7187/2010
  CO/7703/2010 
Neutral Citation Number: [2010] EWHC 3150 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 1 December 2010

Before :

LORD JUSTICE MOORE-BICK
and
MR. JUSTICE RAMSEY
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Between :

	ALEXANDER SALAZAR-DUARTE	Appellant	
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	THE GOVERNMENT of the UNITED STATES of AMERICA

And between :

THE QUEEN
(on the application of ALEXANDER SALAZAR-DUARTE)
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THE CITY of WESTMINSTER MAGISTRATES’ COURT
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THE CROWN PROSECUTION SERVICE

THE GOVERNMENT of the UNITED STATES of AMERICA
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THE SECRETARY OF STATE for the HOME DEPARTMENT	
Respondent

Claimant

Defendant

Interested Parties	

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Mr. Rupert Bowers (instructed by J.D. Spicer & Co) for Mr. Salazar-Duarte
Mr. Aaron Watkins (instructed by the Crown Prosecution Service) for the United States of America
Miss Clair Dobbin (instructed by Treasury Solicitors) for the Secretary of State
Miss Gemma Lindfield for the Crown Prosecution Service

Hearing dates: 11th November 2010
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Judgment
Lord Justice Moore-Bick : 
1.	The Government of the United States of America is seeking the extradition of the appellant, Mr. Salazar-Duarte, to stand trial on various charges of money-laundering. On 11th August 2009 the appellant was arrested on a provisional warrant issued by District Judge Evans on 27th May 2009 and was produced before the City of Westminster Magistrates’ Court on 12th August for the initial hearing.
2.	A full extradition hearing was eventually held before District Judge Purdy at which the appellant contended, among other things, that since he had previously been prosecuted and acquitted in this country on drugs charges closely related to the charges of money laundering he faces in the United States, his extradition should be refused on the grounds of double jeopardy. In support of that argument he asked the judge to order the Crown Prosecution Service (“CPS”) to disclose to the court material arising out of that prosecution which he believed would support his case. He said that it would be an abuse of process to proceed without doing so. The judge declined to do so, however. He rejected the appellant’s defences and on 20th April 2010 he sent the appellant’s case to the Secretary of State for a decision whether the appellant should be extradited. 
3.	On 15th June 2010 the Secretary of State decided to order the appellant’s extradition and an order giving effect to that decision was formally made by the Minister of State at the Home Office on 15th June 2010. On 16th June an official at the Home Office sent a letter to the appellant’s solicitors, J.D. Spicer & Co,  by fax informing them of the order. The transmission failed, but at 1.39 pm the same day another official at the Home Office sent an e-mail to the appellant’s solicitors to which the letter was attached. That e-mail was duly received and the solicitors subsequently confirmed in correspondence that the order had been served on them on 16th June.
4.	On 29th June 2010 the appellant filed a notice of appeal seeking to overturn the order of the Secretary of State. The appeal is properly against the decision of the District Judge (see s.103(3) of the Extradition Act 2003), but nothing turns on that for present purposes. A copy of the sealed notice of appeal was sent by the appellant’s solicitors to the CPS as legal representatives for the respondent under cover of a letter dated 1st July 2010 sent by post and fax. There is a dispute whether the letter was also served by fax on 30th June. A copy of the notice of appeal was served on the Secretary of State on 30th June. 
5.	Section 103(9) of the Extradition Act 2003 provides as follows:
“Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 14 days starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the order he has made in respect of the person.”
6.	The respondent said that the appellant had failed to comply with the provisions of that subsection and that there was therefore no valid appeal before the court. The appellant did not accept that, but by way of response on 15th July 2010 he issued a claim for judicial review against the City of Westminster Magistrates’ Court in which he named the CPS and the respondent as interested parties. 
7.	On 27th July 2010 the matter came before Ouseley J. for consideration on the papers of the appellant’s application for permission to proceed with his claim for judicial review and for directions in the appeal. The judge ordered that the papers relating to the claim for judicial review be served on the Secretary of State and the Director of Public Prosecutions (“DPP”) in his capacity as head of the CPS as interested parties. In relation to the appeal he ordered the respondent to file a respondent’s notice within three weeks of the service of the order stating whether it intended to argue that the court had no jurisdiction to hear the appeal and, if so, at the same time to serve any evidence on which it wished to rely.
8.	The judge’s order was sent to the CPS by post, arriving on 5th August 2010. The three week period for filing a respondent’s notice therefore expired during the last week of August. On 27th August the appellant’s solicitors wrote to the CPS asking whether the respondent had complied with the order and on 1st September 2010 Mr. Paul Close replied saying that he believed that it had. He said that preliminary submissions on the issue of jurisdiction had been filed on 16th August and he enclosed an unsigned copy of a witness statement that he proposed to file in support of them. The letter did not refer to or enclose a copy of a respondent’s notice and in fact no such notice had by then been filed.
9.	On 3rd September 2010 the appellant’s solicitors wrote to the court complaining that the respondent had failed to comply with the order of 27th July and asking the court to proceed on the basis that no issue arose in relation to jurisdiction. On 10th September counsel for the respondent sent an e-mail to the Administrative Court office in the absence of Mr. Close, who was then on holiday, confirming that he had personally supplied the court with written submissions and a draft witness statement of Mr. Close in electronic form and had provided copies to counsel for the appellant on the same day. Hard copies were with the court on 7th September.
10.	On 18th September the appellant issued an application under rule 3.4(2)(c) for an order striking out the documents filed and served by the respondent in support of its case on the court’s jurisdiction to entertain the appeal. The matter was referred to Ouseley J. for directions. On 1st October 2010 he made an order directing that, if pursued, the application should be dealt with at an oral hearing and that the respondent should apply for an extension of time, if it considered that to be necessary. He expressed some surprise that the appellant should contemplate pursuing an application of that kind.
The appellant’s application
11.	Despite that discouragement from the judge, the appellant has chosen to pursue his application. He submitted, through his counsel, Mr. Bowers, that the respondent’s attempt to insist on compliance with the strict requirements of section 103(9) of the Extradition Act relating to the service of a notice of appeal provides sufficient grounds for requiring it in turn to adhere strictly to the requirements of the judge’s order. Mr. Bowers also submitted that the delay in complying with the judge’s order had prejudiced his client by prolonging the period of his detention in custody.
12.	Rule 3.4(2) provides (as far as relevant) as follows:
“(2)The court may strike out a statement of case if it appears to the court –
(a)	that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b)	that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c)	that there has been a failure to comply with a rule, practice direction or court order.”
13.	Mr. Watkins for the respondent submitted that the rule does not apply to extradition proceedings because there is no document that can properly be described as a “statement of case” for these purposes. “Statement of Case” is defined in rule 2.3 as meaning a claim form, particulars of claim, defence, Part 20 claim, or reply to defence, but in the context of proceedings for judicial review it has been held to be capable of including a wider class of documents.
14.	In my view it is stretching the terms of the rule to breaking point to describe the documents filed by the respondent as a statement of case, but it is unnecessary to decide this question, since the application can, and in my view should, be disposed of on other grounds. Failure to comply with an order of the court within the time prescribed is by no means uncommon. Sometimes there are good reasons for the failure and sometimes there are not, but the court will usually have regard to the extent of the delay, the reasons for it and its effect on the course of the proceedings (as well as any other relevant circumstances) when deciding what further action to take. One important factor is the prejudice, if any, which has been caused to the other party to the proceedings. Striking out the whole or part of a statement of case, or debarring a party from relying on an argument (which is effectively the same thing) is one of the most severe sanctions at the court’s disposal and can rarely be justified in the absence of repeated failure to comply with orders or conduct that can fairly be described as contumacious. That is particularly the case if the delay has caused little or no prejudice to other parties.
15.	In the present case the respondent’s failure to comply with the order made on 27th July was little more than technical. Although it failed to file a formal respondent’s notice within the time prescribed (and indeed has still not done so), documents setting out the nature of its case and of the evidence on which it was based were made available to the appellant’s lawyers in plenty of time to enable them to understand the case they had to meet and to make preparations accordingly. It is true that the appellant is being held in custody, but there is nothing to suggest that these proceedings would have been listed for hearing at an earlier date if the respondent had complied strictly with the judge’s order. There is no evidence that the delay has caused any prejudice to the appellant at all. There is no comparison to be drawn between the provisions of the Extradition Act 2003 by which Parliament has seen fit to define the period within and the manner in which an appeal may be brought (on which the respondent relies) and an order of the court made in relation to the future conduct of proceedings which have been validly commenced and are currently before it. 
16.	In my view this application should not have been made and once made should not have been persisted in. It should therefore be dismissed.
Jurisdiction
17.	It is convenient to consider next the question of the court’s jurisdiction to entertain the appellant’s appeal. The respondent’s argument is simple: notice of the order was given by e-mail on 16th June and therefore time for giving notice of appeal expired on 29th June; notice of appeal was not served on the respondent until 30th June at the earliest and was therefore out of time; time cannot be extended and so the appeal is invalid and the court has no jurisdiction to entertain it: see Mucelli v Govt of Albania [2009] UKHL 2, [2009] 1 W.L.R. 276.
18.	The appellant accepts that the fourteen day period prescribed by section 103(9) begins to run on the date when the person whose extradition is sought is informed of the Secretary of State’s order. He also accepts that the notice of appeal must both be filed and served on the respondent within that period. He submitted, however, that a person is not informed of the order within the meaning of the subsection until he has actual notice of it and that in the present case his solicitor, who was out of the office when the e-mail was received and did not open it until he returned the next day, was not informed of its contents until 17th June. Accordingly, he submitted that the period for giving notice of appeal did not expire until 30th June and that, since a copy of the notice of appeal was sent to the CPS by fax that day, the appeal was in time.
19.	The position seems to be that the e-mail carrying the Secretary of State’s letter was received in the solicitors’ general e-mail box during the afternoon of 16th June and was forwarded the same day to the personal e-mail box of the solicitor acting for the appellant, Mr. Macdonald. However, he was out and did not open it or read the attachment until he came into the office the next day. He appears to have thought that the last day for giving notice of appeal was 30th June, despite the fact that in correspondence officials at the Home Office emphasised that in their view it was 29th June.
20.	In a statement made for the purposes of these proceedings Mr. Macdonald says that a copy of the notice of appeal was sent by fax to both the CPS and the Home Office on 30th June at 7.24 pm. However, although the records of fax transmissions from the offices of J.D. Spicer & Co show a transmission to the Home Office on 30th June, they show no transmission to the CPS on that day. Mr. Watkins pointed out that the documents were sent by mail to the CPS under cover of a letter dated 1st July 2010 which was marked with a fax number 020 7023 6501 and that the transmission records show that a fax was sent to that number from J.D. Spicer & Co at 1.15 pm on 1st July. In his statement Mr. Macdonald draws attention to the fact that certain files are missing from the transmission records, which he says is consistent with a fax having been sent but not recorded. Mr. Close, the solicitor at the CPS who had responsibility for this matter, says that he is not aware of any message having been received on 30th June. However, he does not say whether he took any steps to find out whether a fax was received that day anywhere within the relevant offices of the CPS.
21.	If there were any evidence to cast doubt on the general reliability of the fax transmission records, it would lend some support to Mr. Macdonald’s suggestion (though even then it would have to be set against Mr. Close’s evidence that, as far as he is aware, no message reached the CPS on 30th June). There is no such evidence, however, and the fact that several files in what is otherwise a continuous numerical sequence are missing raises the obvious possibility that these records capture only successful transmissions. There is also the rather surprising fact (if Mr. Macdonald is right) that a second fax was sent to the CPS at the same number on 1st July. Taking the evidence as a whole, I do not think that it supports the conclusion that a copy of the notice of appeal was given to the CPS by fax on 30th June. In my view it supports the conclusion that the earliest date on which it was served was 1st July and, for my part, I find that to be the case.
22.	It was accepted that the Secretary of State can fulfil her duty under section 100(1) by informing the solicitors acting for the person whose extradition is sought of the order that has been made. The question before the court therefore turns entirely on the meaning of the expression “informs the person . . . of the order” in s.103(9). Is delivery of a document containing the information sufficient, or is it necessary for the person to whom it is given to read it and understand it? In Mucelli v Govt of Albania the question for decision was when notice of appeal is “given” for the purposes of s.103(9). The Secretary of State had made an extradition order in respect of the appellant on 18th July 2007 and on the same day had sent a letter written in English by first class post and fax both to the appellant in prison and to his solicitors. The appellant did not understand English and therefore could not read the letter. It was read to him by his solicitor when he visited him on 23rd July. The solicitor filed a notice of appeal on 31st July, but did not attempt to serve it on the respondent until the next day. This court held that the Secretary of State can discharge her duty by any normal method of communication and by a communication in English, regardless of whether English is a language that the person in respect of whom the order was made can understand. She can also discharge her duty by letter to that person’s solicitor. The court therefore held that time in that case began to run on 18th July when the letter was sent by fax, not on the date when the hard copy was received or opened, nor (as the appellant contended) on the day when he was informed of its contents. These questions were not discussed in the House of Lords where it was accepted that time started to run on 18th July.
23.	It cannot be doubted that e-mail has become a normal method of communication; indeed, it is often preferred to fax. Letters and other documents are routinely sent as attachments to e-mails and once one accepts that documents may be sent electronically by fax there are no grounds for distinguishing between fax and e-mail. The only distinction is that an e-mail (and any attachment) has to be opened in order to read its contents, whereas a fax may be read as it comes off the machine, but that is a distinction without a difference. If anything, it renders an e-mail more akin to transmission by post, where again the envelope has to be opened in order to read the contents. If the Secretary of State can discharge her duty to inform the person concerned by sending a letter to his solicitor, the only question is whether it is necessary for the solicitor to have actual knowledge of its contents in order for him to be informed that the order has been made.
24.	As a matter of principle I do not think that mere posting of a letter can suffice, but the decision of this court in Mucelli is in my view consistent with the conclusion that the person concerned is informed of the order when his solicitor receives a letter, whether by post, fax or e-mail, which informs him that it has been made. Delivery is sufficient, because once the letter has reached the solicitor’s office the time at which it is opened and read is within his control. Just as he cannot rely on a wilful failure to open and read it, so too he cannot rely on absence on other business or the lack of efficient procedures within his office for opening and distributing mail. Exactly the same considerations apply to communications by fax or e-mail. The solicitor cannot say that he was not informed of the order because of a failure of arrangements within the office to put the fax on his desk or forward the e-mail to him; nor can he rely on his absence from the office at the time when the letter, fax or e‑mail is received. Business can only be conducted on the understanding that communications of this sort are read when they are received. I think it can reasonably be inferred, therefore, that when Parliament decided to impose a duty on the Secretary of State to “inform” the appellant it was entitled to, and did, assume that the appellant (or anyone else who could properly be informed on his behalf) would inform himself of the contents of a letter, e‑mail or fax immediately upon its receipt. For practical purposes, therefore, it must have proceeded on the basis that delivery of the letter to the appellant (or in this case his solicitor) amounts to the communication of its contents on the day of receipt. In my view the word “inform” is to be construed so as to give effect to that assumption.
25.	Added to this is the fact that Parliament has chosen to subject extradition proceedings to a clearly defined timetable under which steps have to be taken within limited periods. That is the case both with the procedure relating to appeals and with the process of extradition itself if there is no appeal.  In each case time runs from the date on which the Secretary of State informs the person concerned of the order (s.117). It is important, therefore, for that date to be capable of being ascertained with certainty. The time of transmission of fax and e-mail is recorded electronically and in the ordinary way there would be a very strong presumption that a letter despatched by first class mail had been delivered the next business day. To interpret section 100(1) as requiring the Secretary of State to bring the existence of the order to the actual notice of the person concerned, or that of his solicitor, as opposed to simply requiring the delivery of a letter or electronic message containing the necessary information, would render the date of performance of that duty very uncertain and would risk seriously undermining the statutory provisions. 
26.	For all these reasons I consider that the appellant was informed of the order on 16th June when the letter reached his solicitor’s office as an attachment to an e‑mail. A copy of the notice of appeal was not given to the CPS until 1st July and accordingly, whether the last day for giving notice was 29th June (as I think) or 30th June, the appeal was out of time. It follows that this court has no jurisdiction to entertain it and it must be dismissed.
The claim for judicial review
27.	By his claim form seeking judicial review the appellant seeks an order quashing the decision of D.J. Purdy and a mandatory order requiring the CPS to provide him and the Magistrates’ Court with all material that it, the police or any other domestic prosecuting authority may hold that is relevant to the question whether his extradition is barred by reason of double jeopardy. At the beginning of his submissions, however, Mr. Bowers sought permission to amend the claim form to join the DPP as an additional defendant. He also applied to amend section 3 to challenge the decision of the DPP not to examine material in his possession arising out of the prosecution of the appellant or to disclose to the court such parts of that material as might be relevant to the question of double jeopardy. The claim for judicial review was opposed by the respondent and the interested parties on the grounds that it was an attempt to challenge the decision of the District Judge by illegitimate collateral means.
28.	Although Mr. Bowers insisted that the relief he sought to obtain against the DPP was entirely separate from that which he was seeking to obtain against the Westminster Magistrates’ Court, the fact is that he is still seeking an order quashing the decision of D.J. Purdy and that unless he succeeds in obtaining such an order nothing can be gained from any order for disclosure that might be made against the DPP. Before considering whether the DPP should be joined as a defendant to these proceedings, therefore, it is necessary to consider whether there is any real prospect of the appellant’s obtaining an order quashing the decision of the District Judge. 
29.	Section 116 of the Extradition Act 2003 provides that a decision of the District Judge or the Secretary of State may be questioned in legal proceedings only by means of an appeal and it must follow that such a decision is not amenable to challenge by judicial review. Mr. Bowers sought to meet that objection by submitting that if evidence in the DPP’s possession were to demonstrate that the appellant’s right to a fair trial had been violated and that the proceedings before the District Judge had been an abuse of process, his decision would have to be set aside. He did not explain, however, by what mechanism that might be achieved other than an appeal.
30.	In my view the answer to the problem of potential abuse of process, which was the foundation of Mr. Bowers’ argument, is that the matter must be raised in the course of the extradition hearing itself. If, as in this case, the person whose extradition is sought alleges that a third party is in possession of material that will assist his case, he must make an application for whatever order he needs to obtain access to it or seek to oppose his extradition on the grounds that without disclosure of that material the proceedings are an abuse of process; and if the proceedings result in an order permitting his extradition, he may challenge it on appeal: see, for example, McKinnon v Government of the United States of America [2008] UKHL 59, [2008] 1 W.L.R. 1739.  What the would-be appellant cannot do is circumvent the appeal system by making a claim for judicial review.
31.	In the present case those acting for the appellant did seek to persuade the District Judge that to proceed with the extradition hearing in the absence of material said to be in the hands of the prosecuting authorities would amount to an abuse of process. The matter was fully argued, as one can see from the District Judge’s ruling, but he rejected that argument. Indeed, he did not consider that the defence had done enough to require him to investigate a possible abuse. Having rejected all the appellant’s arguments, he therefore sent the case to the Secretary of State for her decision. An attempt to challenge his decision by way of appeal failed because notice of appeal was not given within the prescribed time.
32.	In my view the appellant has no prospect in those circumstances of successfully challenging the order of the District Judge and so there is nothing to be gained by joining the DPP as a defendant to the claim in order to obtain an order for disclosure against him. I would therefore dismiss both the application to amend the claim form and the application for permission to proceed with the claim for judicial review.
Mr. Justice Ramsey :
33.	I agree.