B e f o r e :
THE RT HON LORD JUSTICE LAWS THE HON. MR. JUSTICE BURNETT ____________________
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David Josse QC and Benjamin Keith (instructed by Dalton, Holmes, Gray Solicitors) for the First Claimant David Josse QC and Joel Smith (instructed by Tuckers Solicitors) for the Second Claimant Clair Dobbin (instructed by the Treasury Solicitor) for the Secretary of State Hearing dates: 15 December 2010 ____________________
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The Hon. Mr. Justice Burnett :
This is the judgment of the Court prepared by Burnett J. This is an application for judicial review of the decision on 3 November 2010 of District Judge Tubbs at the City of Westminster Magistrates'' Court whereby she refused to order the discharge of the claimants pursuant to section 99 of the Extradition Act 2003 ["the 2003 Act"]. The basis of the application was that the Secretary of State for the Home Department was obliged under the statutory scheme to order the claimants' extradition to Ukraine by 2 November at the latest, failing which on their application to the Magistrates' Court, the claimants were entitled to be discharged.
The District Judge, having heard rather less full argument than has been presented in this Court, decided that the last day upon which the Secretary of State could order the claimants' extradition was 3 November. Such an order was made that day by the Secretary of State. In those circumstances she concluded that the application for discharge should fail.
The claim for judicial review came before this Court for hearing at the same time as the claimants' appeals against the earlier order of District Judge Wickham sending their cases for extradition to the Secretary of State. That order was made in the City of Westminster Magistrates' Court on 3 September 2010. Having heard argument, we concluded that the last date on which the Secretary of State was empowered to order the claimants' extradition to Ukraine was 2 November and not 3 November as the District Judge had held. In those circumstances, we allowed the claim for judicial review. We quashed the decision of District Judge Tubbs and directed the discharge of the claimants. We did not proceed to hear the statutory appeals, which raised arguments concerning the administration of justice and prison conditions in Ukraine, because they had become academic. By consent those appeal was withdrawn.
These are our reasons for allowing the claim for judicial review.
The claimants' surrender was sought by the Government of Ukraine to stand trial for offences of dishonesty. It was alleged that they had misappropriated the equivalent of about £1,000,000 from a credit union which they had established. The extradition hearing in the City of Westminster Magistrates' Court took place on 3 September 2010 before District Judge Wickham. Ukraine is a Category 2 territory for the purposes of the 2003 Act. The final decision whether to extradite a requested person is entrusted by the statutory scheme to the Secretary of State after the Court has determined whether there is any legal impediment. Human rights issues were raised before the District Judge in opposition to the cases of the two claimants being sent to Secretary of State to decide whether they should be extradited. Having heard evidence, the District Judge rejected the arguments advanced on behalf of the claimants and that same day sent their cases to the Secretary of State pursuant to section 92 of the 2003 Act.
Section 99 of the 2003 Act provides:
Given the circumstances of this case, the appropriate day was governed by section 102(7), namely the day on which the claimants' cases were sent by District Judge Wickham to the Secretary of State. That was 3 September. By virtue of Section 99(2) of the 2003 Act a person whose case has been sent to the Secretary of State is entitled to be discharged if within the required period of two months starting with the appropriate day, the Secretary of State has not ordered his extradition or sought an extension of time. The 'appropriate judge' in this case to whom the application for discharge had to be made was a District Judge at Westminster Magistrates' Court. The Secretary of State did not apply for an extension of time.
We pause to observe that the 2003 Act provides many time limits for taking steps in connection with extradition proceedings. All of them are expressed in terms which 'start with' the day on which an event occurs. Most impose time limits expressed in days. It is uncontroversial that when a statute imposes a time limit 'starting with' or 'beginning with' the date on which an event occurs, that day is generally included for the purposes of calculating the expiry of a time limit. A clear example of the operation of that principle in the context of the 2003 Act is found in Mucelli v. Government of Albania; Moulai v. Deputy Public Prosecutor in Creteil, France [2009] UKHL 2 . The time limits in question were seven days and 14 days respectively for an appeal to the High Court starting with date on which the District Judge, on the one hand, and Secretary of State, on the other, made the decision in question. In Moulai's case the decision was made on 14 March 2008. The seven day time limit expired on 20 March (see paragraph [90] of the opinion of Lord Neuberger of Abbotsbury).
The time limit in section 99(3) is expressed in months rather than days. Two other provisions of the 2003 Act refer to time limits expressed in months (see sections 75 and 76).
In coming to the conclusion that the two month time limit expired on 3 November, when the case had been sent to the Secretary of State on 3 September, the District Judge accepted a submission that the 'corresponding date rule', as explained by Lord Diplock in Dodds v. Walker [1981] 1 WLR 1027, applied to the circumstances of this case. Dodds v. Walker was concerned with a time limit imposed by the Landlord and Tenant Act 1954 to make an application to the Court. Lord Diplock's discussion of the corresponding date rule, the reasoning of which was agreed by all their Lordships, is found between page 1029G and 1030D.
Miss Dobbin, who appeared for the Secretary of State, submitted that the corresponding date rule applied to the circumstances of this case. Thus the statutory requirement to order the extradition of the claimants within two months starting with the day on which the case was sent to the Secretary of State, when that day was 3 September 2010, was satisfied when she made the order on 3 November. She submitted that the rule is of general application when a statute expresses a time limit in months, irrespective of whether Parliament provided for a time limit 'starting with' the day of an event or 'after' a particular day. Mr Josse QC, who appeared for the claimants, submitted that the corresponding date rule applies only when the first day is left out of account for the purposes of calculating a time limit. He drew our attention to two decisions of the Court of Appeal ( Trow v. Ind Coope (West Midlands) Limited [1967] 2 Q.B. 899; Zoan v. Rouamba [2000] 1 WLR 1509), and one of a Divisional Court ( Hare v. Gocher [1962] 2 QB 641) in which time limits expressed in months in terms similar to section 99(3) of the 2003 Act were held to have expired not on the corresponding date of the appropriate later month but on the day before. He submitted that the first two decisions bind this Court. He also relied on the decision of the Court of Session in Pacitti Jones (a firm) v. Claire O'Brien 2006 SC 616 which concerned a time limit under the Employment Rights Act 2006 where an argument identical to that advanced before us by the Secretary of State was rejected.
Both Trow v. Ind Coope and Hare v. Gocher were concerned with time limits (12 months and two months respectively) expressed as 'beginning with' a particular day. Zoan v. Rouamba was also concerned with a time limit expressed in months 'beginning with' a particular date. There is plainly no distinction to be drawn between 'beginning with' and 'starting with' for the purposes of interpreting the statutes in question. It is convenient to cite a passage from the judgment of the Court delivered by Chadwick LJ in Zoan v. Rouamba to understand the reasoning which was applied in all three cases:
Miss Dobbin sought to escape the application of this reasoning on two bases. First, she submitted that both Hare v. Gocher and Trow v. Ind Coope were decided before the decision of the House of Lords in Dodds v. Walker and in consequence would now be decided differently. Secondly, she submitted that the decision of the Court of Appeal was reached without the benefit of considering that decision.
It is right that Chadwick LJ did not discuss Dodds v. Walker in the judgment of the Court. Nonetheless, as the report of the decision shows, it was cited in argument. The decision was not per incuriam . It is apparent that the Court of Appeal did not consider the corresponding date rule applicable, for reasons which we respectfully suggest become apparent when close attention is paid to the language used by Lord Diplock in Dodds v. Walker. His reasoning contained three components. First, that the Interpretation Act dictates that a month means a calendar month. Secondly, that in calculating a period that has elapsed after the occurrence of a specified event, the date of that event is excluded from the reckoning. Thirdly, when the relevant period is expressed in months after a specified event, the corresponding date rule applies.
In our judgment, the corresponding date rule depends for its application upon the exclusion of the day of the occurrence of the specified event. Lord Diplock recorded the well established canon of construction that excludes that day when a statute specifies a time limit after the occurrence of an event. He then noted that it was common ground that in circumstances where the statutory provision excluded that day, the corresponding date rule applied. Thus if section 99(3) had said 'the required period is the period of 2 months after the appropriate day' the corresponding date rule would have applied. However, because the appropriate day was included in the calculation of the period of two months ('starting with the appropriate day'), the time limit expired on the day preceding the corresponding date. To conclude otherwise would extend the period to one month and one day in defiance of the clearly expressed intention of Parliament. Dodds v. Walker said nothing which calls into question the correctness of the reasoning in either Hare v. Gocher or Trow v. Ind Coope .
The corresponding date rule does not apply to the time limit of two months specified by section 99(3) of the 2003 Act because the day on which the case is sent by the Magistrates' Court to the Secretary of State is included within that period.
Lord Diplock noted that 'the corresponding date rule is simple' in its application. In cases where it does not apply, because the day of the occurrence is included in the reckoning, it is no less simple. The time limit expires on the eve of the corresponding date. All that the person concerned has to do having determined from the statutory language that the day of the occurrence is included is mark in his diary the eve of the corresponding date.
We conclude that we are bound by the decisions of the Court of Appeal in Trow v. Ind Coope and Zoan v Rouamba. For the reasons we have given, there is no inconsistency between those decisions and Dodds v. Walker . That approach accords with the reasoning of the Court of Session in Pacitti Jones (a firm) v. Claire O'Brien. The issue before that Court concerned the calculation of a period of 12 months which 'began with' 8 April 2002. The conclusion of the Court was that it ended on 7 April 2003. In giving the opinion of the Court Lord Reed dealt with the argument advanced by reference to Dodds v. Walker in this way:
We agree fully with this reasoning.
The time limit of two months starting with 3 September 2010 ended on 2 November 2010. The Secretary of State ordered the claimants' extradition to Ukraine on 3 November 2010, one day outside the statutory time limit. She had made no anterior application for an extension of time. By virtue of section 99(2) of the 2003 Act, on the claimants' application to the District Judge, they were entitled to be discharged.