Guideline authority on electronic service in extradition: Greek prosecution appeal dismissed for filing appeal notice late

07.03.18 | |

Malcolm Hawkes represented a woman before the Divisional Court whose extradition was sought by Greece to serve a sentence of five years imprisonment for infanticide. The woman had given birth while on holiday in Greece, but her baby was found smothered shortly afterwards. She was held in prison for 11 months, at times in squalid conditions before being acquitted by a Greek jury. The Greek prosecutor appealed and, some six years later, secured her conviction and sentence in absentia and sought her extradition from the UK.


The woman was discharged on Article 8 grounds at the Westminster Magistrates Court. The CPS lodged an appeal against that decision and duly served notice of appeal on the court which was received and sealed. However, despite sending notice and grounds of appeal to the Respondent by email in time, these documents were not received within the 7-day statutory deadline. This, the court found, was likely because of restrictions on the size of attachments and mailbox capacity of the secure CJSM email system used by the CPS.


As a point of principle, the Divisional Court held that, when serving documents by email, it is essential that the sending party obtains confirmation of receipt of the message and attachments; the recipient would be expected to cooperate in that process. Whereas the Criminal Procedure Rules at 4.11 do establish same-day service of documents by email, that does not mean service is necessarily effective; rather, it creates a rebuttable presumption that the document has been received.


In the instant case, the court accepted the evidence of the woman’s solicitors, William Bergstrom and Chirag Patel that no appeal documents were received within the statutory period. The court agreed that the failure, by an appellant judicial authority to serve notice and grounds of appeal in time is indeed an incurable error and dismissed the appeal.


In Greece v LA, Malcolm was instructed by William Bergstrom of McMillan Williams Solicitors.


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