Legislation – The Criminal Procedure Rules 2020
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PART 50EXTRADITION
SECTION 3: APPEAL TO THE HIGH COURT
[Note. Under Part 1 of the Extradition Act 2003—
(a)
a defendant may appeal to the High Court against an order for extradition made by the magistrates’ court; and
(b)
the authority requesting the defendant’s extradition may appeal to the High Court against an order for the defendant’s discharge,
Under Part 2 of the 2003 Act—
(a)
a defendant may appeal to the High Court against an order by the magistrates’ court sending a case to the Secretary of State for a decision whether to extradite the defendant;
(b)
a defendant may appeal to the High Court against an order for extradition made by the Secretary of State; and
(c)
the territory requesting the defendant’s extradition may appeal to the High Court against an order for the defendant’s discharge by the magistrates’ court or by the Secretary of State,
In each case the appellant needs the High Court’s permission to appeal (in the 2003 Act, described as ‘leave to appeal’).]
Exercise of the High Court’s powers50.17.
(1)
The general rule is that the High Court must exercise its powers at a hearing in public, but—
(a)
that is subject to any power the court has to—
(i)
impose reporting restrictions,
(ii)
withhold information from the public, or
(iii)
order a hearing in private;
(b)
despite the general rule, the court may determine without a hearing—
(i)
an application for the court to consider out of time an application for permission to appeal to the High Court,
(ii)
an application for permission to appeal to the High Court (but a renewed such application must be determined at a hearing),
(iii)
an application for permission to appeal from the High Court to the Supreme Court,
(iv)
an application for permission to reopen a decision under rule 50.27 (Reopening the determination of an appeal), or
(v)
an application concerning bail; and
(c)
despite the general rule the court may, without a hearing—
(i)
give case management directions,
(ii)
reject a notice or application and, if applicable, dismiss an application for permission to appeal, where rule 50.31 (Payment of High Court fees) applies and the party who served the notice or application fails to comply with that rule, or
(iii)
make a determination to which the parties have agreed in writing.
(2)
If the High Court so directs, a party may attend a hearing by live link.
(3)
The general rule is that where the High Court exercises its powers at a hearing it may do so only if the defendant attends, in person or by live link, but, despite the general rule, the court may exercise its powers in the defendant’s absence if—
(a)
the defendant waives the right to attend;
(b)
subject to any appeal to the Supreme Court, the result of the court’s order would be the discharge of the defendant; or
(c)
the defendant is represented and—
(i)
the defendant is in custody, or
(ii)
the defendant’s presence is impracticable by reason of his or her ill health or disorderly conduct.
(4)
If the High Court gives permission to appeal to the High Court—
(a)
unless the court otherwise directs, the decision indicates that the appellant has permission to appeal on every ground identified by the appeal notice;
(b)
unless the court otherwise directs, the decision indicates that the court finds reasonably arguable each ground on which the appellant has permission to appeal; and
(c)
the court must give such directions as are required for the preparation and conduct of the appeal, including a direction as to whether the appeal must be heard by a single judge of the High Court or by a divisional court.
(5)
If the High Court decides without a hearing an application for permission to appeal from the High Court to the Supreme Court, the High Court must announce its decision at a hearing in public.
(6)
The High Court may—
(a)
shorten a time limit or extend it (even after it has expired), unless that is inconsistent with other legislation;
(b)
allow or require a party to vary or supplement a notice that that party has served;
(c)
direct that a notice or application be served on any person; and
(d)
allow a notice or application to be in a different form to one set out in the Practice Direction, or to be presented orally.
(7)
A party who wants an extension of time within which to serve a notice or make an application must—
(a)
apply for that extension of time when serving that notice or making that application; and
(b)
give the reasons for the application for an extension of time.
[Note. The time limits for serving an appeal notice are prescribed by the Extradition Act 2003: see rule 50.19.]
Case management in the High Court50.18.
(1)
The High Court and the parties have the same duties and powers as under Part 3 (Case management), subject to—
(a)
rule 50.2 (Special objective in extradition proceedings); and
(b)
paragraph (3) of this rule.
(2)
A master of the High Court, a deputy master, or a court officer nominated for the purpose by the Lord Chief Justice—
(a)
must fulfil the duty of active case management under rule 3.2, and in fulfilling that duty may exercise any of the powers of case management under—
(i)
rule 3.5 (the court’s general powers of case management),
(ii)
rule 3.12(3) (requiring a certificate of readiness), and
(iii)
rule 3.13 (requiring a party to identify intentions and anticipated requirements)
subject to the directions of a judge of the High Court; and
(b)
must nominate a case progression officer under rule 3.4.
(3)
Rule 3.6 (Application to vary a direction) does not apply to a decision to give or to refuse—
(a)
permission to appeal; or
(b)
permission to reopen a decision under rule 50.27 (Reopening the determination of an appeal).
Service of appeal notice50.19.
(1)
A party who wants to appeal to the High Court must serve an appeal notice on—
(a)
in every case—
(i)
the High Court officer,
(ii)
the other party, and
(iii)
the Director of Public Prosecutions, unless the Director already has the conduct of the proceedings;
(b)
the designated authority which certified the arrest warrant, where Part 1 of the Extradition Act 2003 applies; and
(c)
the Secretary of State, where the appeal is against—
(i)
an order by the Secretary of State, or
(ii)
an order by the magistrates’ court sending a case to the Secretary of State.
(2)
A defendant who wants to appeal must serve the appeal notice—
(a)
not more than 7 days after the day on which the magistrates’ court makes an order for the defendant’s extradition, starting with that day, where that order is under Part 1 of the Extradition Act 2003; or
(b)
not more than 14 days after the day on which the Secretary of State informs the defendant of the Secretary of State’s decision, starting with that day, where under Part 2 of the Act—
(i)
the magistrates’ court sends the case to the Secretary of State for a decision whether to extradite the defendant, or
(ii)
the Secretary of State orders the defendant’s extradition.
(3)
An authority or territory seeking the defendant’s extradition which wants to appeal against an order for the defendant’s discharge must serve the appeal notice—
(a)
not more than 7 days after the day on which the magistrates’ court makes that order, starting with that day, if the order is under Part 1 of the Extradition Act 2003;
(b)
not more than 14 days after the day on which the magistrates’ court makes that order, starting with that day, if the order is under Part 2 of the Act; or
(c)
not more than 14 days after the day on which the Secretary of State informs the territory’s representative of the Secretary of State’s order, starting with that day, where the order is under Part 2 of the Act.
(a)
if a defendant applies out of time for permission to appeal to the High Court the court must not for that reason refuse to consider the application if the defendant did everything reasonably possible to ensure that the notice was given as soon as it could be; and
(b)
a defendant may apply out of time for permission to appeal to the High Court on human rights grounds against an order for extradition made by the Secretary of State.
Form of appeal notice50.20.
(1)
An appeal notice constitutes—
(a)
an application to the High Court for permission to appeal to that court; and
(b)
an appeal to that court, if the court gives permission.
(2)
An appeal notice must be in writing.
(3)
In every case, the appeal notice must—
(a)
specify—
(i)
the date of the defendant’s arrest under Part 1 or Part 2 of the Extradition Act 2003, and
(ii)
the decision about which the appellant wants to appeal, including the date of that decision;
(b)
identify each ground of appeal on which the appellant relies;
(c)
summarise the relevant facts;
(d)
identify any document or other material that the appellant thinks the court will need to decide the appeal; and
(e)
include or attach a list of those on whom the appellant has served the appeal notice.
(4)
If a defendant serves an appeal notice after the expiry of the time limit specified in rule 50.19 (Service of appeal notice)—
(a)
the notice must—
(i)
explain what the defendant did to ensure that it was served as soon as it could be, and
(ii)
include or attach such evidence as the defendant relies upon to support that explanation; and
(b)
where the appeal is on human rights grounds against an order for extradition made by the Secretary of State, the notice must explain why—
(i)
the appeal is necessary to avoid real injustice, and
(ii)
the circumstances are exceptional and make it appropriate to consider the appeal.
(5)
Unless the High Court otherwise directs, the appellant may amend the appeal notice—
(a)
by serving on those listed in rule 50.19(1) the appeal notice as so amended; and
(b)
not more than 10 business days after service of the appeal notice.
(6)
Where the appeal is against an order by the magistrates’ court—
(a)
if the grounds of appeal are that the magistrates’ court ought to have decided differently a question of fact or law at the extradition hearing, the appeal notice must—
(i)
identify that question,
(ii)
explain what decision the magistrates’ court should have made, and why, and
(iii)
explain why the magistrates’ court would have been required not to make the order under appeal, if that question had been decided differently; and
(b)
if the grounds of appeal are that there is an issue which was not raised at the extradition hearing, or that evidence is available which was not available at the extradition hearing, the appeal notice must—
(i)
identify that issue or evidence,
(ii)
explain why it was not then raised or available,
(iii)
explain why that issue or evidence would have resulted in the magistrates’ court deciding a question differently at the extradition hearing, and
(iv)
explain why, if the court had decided that question differently, the court would have been required not to make the order it made.
(7)
Where the appeal is against an order by the Secretary of State—
(a)
if the grounds of appeal are that the Secretary of State ought to have decided differently a question of fact or law, the appeal notice must—
(i)
identify that question,
(ii)
explain what decision the Secretary of State should have made, and why, and
(iii)
explain why the Secretary of State would have been required not to make the order under appeal, if that question had been decided differently; and
(b)
if the grounds of appeal are that there is an issue which was not raised when the case was being considered by the Secretary of State, or that information is available which was not then available, the appeal notice must—
(i)
identify that issue or information,
(ii)
explain why it was not then raised or available,
(iii)
explain why that issue or information would have resulted in the Secretary of State deciding a question differently, and
(iv)
explain why, if the Secretary of State had decided that question differently, the order under appeal would not have been made.
[Note. The Practice Direction sets out a form of appeal notice for use in connection with this rule.]
Respondent’s notice50.21.
(1)
A party on whom an appellant serves an appeal notice under rule 50.19 may serve a respondent’s notice, and must do so if—
(a)
that party wants to make representations to the High Court; or
(b)
the court so directs.
(2)
Such a party must serve any such notice on—
(a)
the High Court officer;
(b)
the appellant;
(c)
the Director of Public Prosecutions, unless the Director already has the conduct of the proceedings; and
(d)
any other person on whom the appellant served the appeal notice.
(3)
Such a party must serve any such notice, as appropriate—
(a)
not more than 10 business days after—
(i)
service on that party of an amended appeal notice under rule 50.20(5) (Form of appeal notice), or
(ii)
the expiry of the time for service of any such amended appeal notice
whichever of those events happens first; and
(b)
not more than 5 business days after service on that party of—
(i)
an appellant’s notice renewing an application for permission to appeal, or
(ii)
a direction to serve a respondent’s notice.
(4)
A respondent’s notice must—
(a)
give the date or dates on which the respondent was served with, as appropriate—
(i)
the appeal notice,
(ii)
the appellant’s notice renewing the application for permission to appeal, or
(iii)
the direction to serve a respondent’s notice;
(b)
identify each ground of opposition on which the respondent relies and the ground of appeal to which each such ground of opposition relates;
(c)
summarise any relevant facts not already summarised in the appeal notice; and
(d)
identify any document or other material that the respondent thinks the court will need to decide the appeal.
[Note. Under rule 50.17, the High Court may extend or shorten the time limit under this rule.]
Renewing an application for permission to appeal, restoring excluded grounds, etc.50.22.
(1)
This rule—
(a)
applies where the High Court—
(i)
refuses permission to appeal to the High Court, or
(ii)
gives permission to appeal to the High Court but not on every ground identified by the appeal notice; but
(b)
does not apply where—
(i)
a defendant applies out of time for permission to appeal to the High Court, and
(ii)
the court for that reason refuses to consider that application.
(2)
Unless the court refuses permission to appeal at a hearing, the appellant may renew the application for permission by serving notice on—
(a)
the High Court officer;
(b)
the respondent; and
(c)
any other person on whom the appellant served the appeal notice,
not more than 5 business days after service of notice of the court’s decision on the appellant.
(3)
If the court refuses permission to appeal, the renewal notice must explain the grounds for the renewal.
(4)
If the court gives permission to appeal but not on every ground identified by the appeal notice the decision indicates that—
(a)
at the hearing of the appeal the court will not consider representations that address any ground thus excluded from argument; and
(b)
an appellant who wants to rely on such an excluded ground needs the court’s permission to do so.
(5)
An appellant who wants to rely at the hearing of an appeal on a ground of appeal excluded from argument must—
(a)
apply in writing, with reasons, and identify each such ground;
(b)
serve the application on—
(i)
the High Court officer, and
(ii)
the respondent; and
(c)
serve the application not more than 5 business days after—
(i)
the giving of permission to appeal, or
(ii)
the High Court officer serves notice of that decision on the applicant, if the applicant was not present in person or by live link when permission to appeal was given.
(6)
Paragraph (7) applies where a party wants to abandon—
(a)
a ground of appeal on which that party has permission to appeal; or
(b)
a ground of opposition identified in a respondent’s notice.
(7)
Such a party must serve notice on—
(a)
the High Court officer; and
(b)
each other party,
before any hearing at which that ground will be considered by the court.
[Note. Under rule 50.17 (Exercise of the High Court’s powers), the High Court may extend or shorten the time limits under this rule.
Rule 50.19 (Service of appeal notice) and the note to that rule set out the time limits for appeal.]
Appeal hearing50.23.
(1)
Unless the High Court otherwise directs, where the appeal to the High Court is under Part 1 of the Extradition Act 2003 the hearing of the appeal must begin no more than 40 days after the defendant’s arrest.
(2)
Unless the High Court otherwise directs, where the appeal to the High Court is under Part 2 of the 2003 Act the hearing of the appeal must begin no more than 76 days after the later of—
(a)
service of the appeal notice; or
(b)
the day on which the Secretary of State informs the defendant of the Secretary of State’s order, in a case in which—
(i)
the appeal is by the defendant against an order by the magistrates’ court sending the case to the Secretary of State, and
(ii)
the appeal notice is served before the Secretary of State decides whether the defendant should be extradited.
(3)
If the effect of the decision of the High Court on the appeal is that the defendant is to be extradited—
(a)
the High Court must consider any ancillary application, including an application about—
(i)
bail pending extradition,
(ii)
reporting restrictions, or
(iii)
costs; and
(b)
the High Court is the appropriate court to order a postponement of the defendant’s extradition where—
(i)
the defendant has been charged with an offence in the United Kingdom, or
(ii)
the defendant has been sentenced to imprisonment or detention in the United Kingdom.
(4)
If the effect of the decision of the High Court on the appeal is that the defendant is discharged, the High Court must consider any ancillary application, including an application about—
(a)
reporting restrictions; or
(b)
costs.
Part 6 contains rules about reporting restrictions. Part 45 contains rules about costs.
Early termination of appeal: order by consent, etc.50.24.
(1)
This rule applies where—
(a)
an appellant has served an appeal notice under rule 50.19; and
(b)
the High Court—
(i)
has not determined the application for permission to appeal, or
(ii)
where the court has given permission to appeal, has not determined the appeal.
(2)
Where the warrant or extradition request with which the appeal is concerned is withdrawn—
(a)
the party or person so informing the court must serve on the High Court officer—
(i)
notice to that effect by the authority or territory requesting the defendant’s extradition,
(ii)
details of how much of the warrant or extradition request remains outstanding, if any, and of any other warrant or extradition request outstanding in respect of the defendant,
(iii)
details of any bail condition to which the defendant is subject, if the defendant is on bail, and
(iv)
details sufficient to locate the defendant, including details of the custodian and of the defendant’s date of birth and custody reference, if the defendant is in custody; and
(b)
paragraph (5) applies but only to the extent that the parties want the court to deal with an ancillary matter.
(3)
Where a defendant with whose discharge the appeal is concerned consents to extradition, paragraph (5) applies but only to the extent that the parties want the court to—
(a)
give directions for that consent to be given to the magistrates’ court or to the Secretary of State, as the case may be; or
(b)
deal with an ancillary matter.
(4)
Paragraph (5) applies where the parties want the court to make a decision on which they are agreed—
(a)
determining the application for permission to appeal or the appeal, as the case may be;
(b)
specifying the date on which that application or appeal is to be treated as discontinued; and
(c)
determining an ancillary matter, including costs, if applicable.
(5)
The parties must serve on the High Court officer, in one or more documents—
(a)
a draft order in the terms proposed;
(b)
evidence of each party’s agreement to those terms; and
(c)
concise reasons for the request that the court make the proposed order.
(a)
order the defendant’s discharge and quash the extradition order or decision, where the defendant has appealed against extradition;
(b)
dismiss the application for permission to appeal or the appeal, as the case may be, where the authority or territory requesting the defendant’s extradition has appealed against the defendant’s discharge.
Part 45 contains rules about costs.]
Application for permission to appeal to the Supreme Court50.25.
(1)
This rule applies where a party to an appeal to the High Court wants to appeal to the Supreme Court.
(2)
Such a party must—
(a)
apply orally to the High Court for permission to appeal immediately after the court’s decision; or
(b)
apply in writing and serve the application on the High Court officer and every other party not more than 14 days after that decision.
(3)
Such a party must—
(a)
identify the point of law of general public importance that the appellant wants the High Court to certify is involved in the decision;
(b)
serve on the High Court officer a statement of that point of law; and
(c)
give reasons why—
(i)
that point of law ought to be considered by the Supreme Court, and
(ii)
the High Court ought to give permission to appeal.
(4)
As well as complying with paragraph (3), a defendant’s application for permission to appeal to the Supreme Court must include or attach any application for the following, with reasons—
(a)
bail pending appeal; or
(b)
permission to attend any hearing in the Supreme Court, if the appellant is in custody.
Determination of detention pending appeal to the Supreme Court against discharge50.26.
On an application for permission to appeal to the Supreme Court against a decision of the High Court which, but for that appeal, would have resulted in the defendant’s discharge, the High Court must—
(a)
decide whether to order the detention of the defendant; and
(b)
determine any application for—
(i)
bail pending appeal,
(ii)
permission to attend any hearing in the Supreme Court, or
(iii)
a representation order.
Reopening the determination of an appeal50.27.
(1)
This rule applies where a party wants the High Court to reopen a decision of that court which determines an appeal or an application for permission to appeal.
(2)
Such a party must—
(a)
apply in writing for permission to reopen that decision, as soon as practicable after becoming aware of the grounds for doing so; and
(b)
serve the application on the High Court officer and every other party.
(3)
The application must—
(a)
specify the decision which the applicant wants the court to reopen; and
(b)
give reasons why—
(i)
it is necessary for the court to reopen that decision in order to avoid real injustice,
(ii)
the circumstances are exceptional and make it appropriate to reopen the decision, and
(iii)
there is no alternative effective remedy.
(4)
The court must not give permission to reopen a decision unless each other party has had an opportunity to make representations.
Declaration of incompatibility with a Convention right50.28.
(1)
This rule applies where a party—
(a)
(b)
raises an issue that appears to the High Court may lead to the court making such a declaration.
(2)
If the High Court so directs, the High Court officer must serve notice on—
(a)
(b)
the Treasury Solicitor, if it is not clear who is the relevant person.
(3)
That notice must include or attach details of—
(a)
the legislation affected and the Convention right concerned;
(b)
the parties to the appeal; and
(c)
any other information or document that the High Court thinks relevant.
(4)
A person who has a right under the 1998 Act to become a party to the appeal must—
(a)
serve notice on—
(i)
the High Court officer, and
(ii)
the other parties,
if that person wants to exercise that right; and
(b)
in that notice—
(i)
indicate the conclusion that that person invites the High Court to reach on the question of incompatibility, and
(ii)
identify each ground for that invitation, concisely outlining the arguments in support.
(5)
The High Court must not make a declaration of incompatibility—
(a)
less than 15 business days after the High Court officer serves notice under paragraph (2); and
(b)
without giving any person who serves a notice under paragraph (4) an opportunity to make representations at a hearing.
Duties of court officers50.29.
(1)
The magistrates’ court officer must—
(a)
keep any document or object exhibited in the proceedings in the magistrates’ court, or arrange for it to be kept by some other appropriate person, until—
(i)
6 weeks after the conclusion of those proceedings, or
(ii)
the conclusion of any proceedings in the High Court that begin within that 6 weeks;
(b)
provide the High Court with any document, object or information for which the High Court officer asks, within such period as the High Court officer may require; and
(c)
arrange for the magistrates’ court to hear as soon as practicable any application to that court for bail pending appeal.
(2)
A person who, under arrangements made by the magistrates’ court officer, keeps a document or object exhibited in the proceedings in the magistrates’ court must—
(a)
keep that exhibit until—
(i)
6 weeks after the conclusion of those proceedings, or
(ii)
the conclusion of any proceedings in the High Court that begin within that 6 weeks,
unless the magistrates’ court or the High Court otherwise directs; and
(b)
provide the High Court with any such document or object for which the High Court officer asks, within such period as the High Court officer may require.
(3)
The High Court officer must—
(a)
give as much notice as reasonably practicable of each hearing to—
(i)
the parties,
(ii)
the defendant’s custodian, if any, and
(iii)
any other person whom the High Court requires to be notified;
(b)
serve a record of each order or direction of the High Court on—
(i)
the parties,
(ii)
any other person whom the High Court requires to be notified;
(c)
if the High Court’s decision determines an appeal or application for permission to appeal, serve a record of that decision on—
(i)
the defendant’s custodian, if any,
(ii)
the magistrates’ court officer, and
(iii)
the designated authority which certified the arrest warrant, where Part 1 of the Extradition Act 2003 applies;
(d)
where rule 50.24 applies (Early termination of appeal: order by consent, etc.), arrange for the High Court to consider the document or documents served under that rule; and
(e)
treat the appeal as if it had been dismissed by the High Court where—
(i)
the hearing of the appeal does not begin within the period required by rule 50.23 (Appeal hearing) or ordered by the High Court, or
(ii)
Constitution of the High Court50.30.
(1)
A master of the High Court or a deputy master may exercise any power of the High Court to which the rules in this Section apply, except the power to—
(a)
give or refuse permission to appeal;
(b)
determine an appeal;
(c)
reopen a decision which determines an appeal or an application for permission to appeal;
(d)
grant or withhold bail; or
(e)
impose or vary a condition of bail.
(2)
Despite paragraph (1), such a master or deputy master may exercise one of the powers listed in paragraph (1)(a), (b), (d) or (e) if making a decision to which the parties have agreed in writing.
(3)
A renewed application for permission to appeal to the High Court may be determined by—
(a)
a single judge of the High Court other than the judge who first refused permission, or
(b)
a divisional court.
(4)
An appeal may be determined by—
(a)
a single judge of the High Court; or
(b)
a divisional court.
Payment of High Court fees50.31.
(1)
This rule applies where a party serves on the High Court officer a notice or application in respect of which a court fee is payable under legislation that requires the payment of such a fee.
(2)
Such a party must pay the fee, or satisfy the conditions for any remission of the fee, when so serving the notice or application.
(3)
If such a party fails to comply with paragraph (2), then unless the High Court otherwise directs—
(a)
the High Court officer must serve on that party a notice requiring payment of the fee due, or satisfaction of the conditions for any remission of that fee, within a period specified in the notice;
(b)
that party must comply with such a requirement; and
(c)
until the expiry of the period specified in the notice, the High Court must not exercise its power—
(i)
to reject the notice or application in respect of which the fee is payable, or
(ii)
to dismiss an application for permission to appeal, in consequence of rejecting an appeal notice.