Kane, Regina (on The Application of) v Trial Court No 5 Marbella, Spain: Admn 17 Mar 2011

The extradition court objected to the defendant’s appeal against extradition on the basis that it was not filed within time.
Held: Section 26(4) of the 2003 Act does not require that service of the Notice of Appeal on the Respondent must post date its filing in the court. Collins J said: ‘What matters for the purpose of giving the necessary information, as is made clear by what Lord Justice Stanley Burnton said in paragraph 14, is that the respondent should know that an appeal is being pursued.’ and ‘ It follows, as it seems to me from that, that a notice of appeal simply means what it says, namely that the individual has filled out the relevant form or document and has indicated on that that he is appealing. He must, of course, file it and he must serve a copy of it on the Crown Prosecution Service. But it does not follow – and in my judgment cannot follow – that it is necessary for the filing in the court to come before the service on the respondent. The respondent will know that it is said that he has filed a notice of appeal and thus the notice of appeal is pending . .
It follows, as it seems to me, also from that that the distinction that is sought to be drawn between a notice and a draft notice, is one which cannot be relevant or appropriate in the circumstances of an extradition appeal such as this. The notice is a notice of appeal. It does not matter that it has not yet been filed in court. True, I suppose, that it is possible that there may be variations. But those variations would only be in the contents of the notice. The fact that there is an appeal and that appeal is being commenced cannot be changed. That is the only fact that is essential for the purposes of the proper commencement of an appeal. Any failure to comply with the rules and what is contained in that notice – for example, grounds – can be dealt with by the court by making orders to require compliance because they are procedural irregularities which can be cured through CPR 3.10.
Thus I would construe the notice of appeal in section 26(4) to mean no more than notice that an appeal is being brought, not necessarily to extend to the grounds or the other contents of that notice. It seems to me at any other construction would mean that the full period of seven days was not given to an appellant.’


Collins J


[2011] EWHC 824 (Admin), [2012] 1 WLR 375




Extradition Act 2003 2(4)(c)


England and Wales


CitedRegional Court In Konin, Poland v Walerianczyk Admn 12-Aug-2010
In an appeal against an order for extradition, the service of a draft Notice of Appeal followed by the filing of the Notice of Appeal itself is not capable of complying with the requirement that Notice of Appeal be given within the permitted period. . .

Cited by:

Not on the pointHalligen v Secretary of State for The Home Department Admn 21-Jun-2011
The Home Secretary argued that the defendant’s attempted appeal against an extradition order was out of time and that accordingly the court had no jurisdiction to hear an appeal. Notice of service of the appeal was one day out of time.
Held: . .
CitedLukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
Lists of cited by and citing cases may be incomplete.


Updated: 13 September 2022; Ref: scu.441056