Abu Qatada and the law of time – Carl Gardner

19 April 2012 by

The BBC reported yesterday that there’s “doubt” about the deportation of Abu Qatada, following his arrest on Tuesday and now his appeal to the European Court of Human Rights – which the Home Secretary Theresa May says is out of time. So: is she right? Is the appeal out of time? How has the Home Office got into this apparent mess? And what if any difference does this appeal make?

The European Court’s judgment in Abu Qatada’s case was dated January 17th 2012. Of that there’s no doubt; and it’s irrelevant whether the government or anyone else was given notice of the judgment before, or received it later.

Article 43.1 of the European Convention on Human Rights says

Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.

It’s this reference to the Grand Chamber that’s the “appeal” Abu Qatada has now lodged.

Article 44.2(b) says that the judgment becomes final

three months after the date of the judgment, if reference of the case to the Grand Chamber has not been requested

If you’re interested in the French text (and you should be – the meaning of the Convention depends on both texts), it says (Article 43.1)

Dans un délai de trois mois à compter de la date de l’arrêt d’une chambre, toute partie à l’affaire peut, dans des cas exceptionnels, demander le renvoi de l’affaire devant la Grande Chambre

and that judgment becomes final (Article 44.2(b)

trois mois après la date de l’arrêt, si le renvoi de l’affaire devant la Grande Chambre n’a pas été demandé

On the face of it, the English texts are ambiguous: it would have been clearer had article 43.1 had said either that reference could be made within three months beginning on and including the date of judgment, or else within three months after that date. You might think the French text is more clearly helpful to the government, since it emphasises that counting begins from the date of judgment – but even that’s not completely clear. Yes, you clearly count from the 17th January; but the legal issue is whether, when you then point to 18th January on the calendar, you mentally count that as day 1 (the clock having notionally started at day zero on the 17th), or day 2 (“judgment day” having been day one).

The first point to make about this ambiguity is that it illustrates the importance of precision in legal texts. People are too often tempted to think that legal exactitude in drafting amounts to mere verbiage. Not so. The second is that it’s a bit surprising that the Convention is unclear – but not amazing. It’s not easy to achieve complete clarity in texts negotiated internationally, as these texts were in Protocol 11 to the ECHR. Whatever the government achieves at Brighton, I expect plenty of argument about what any new Protocol means.

How, then, to resolve this ambiguity? The first principle legally speaking must be to interpret these provisions of Convention in the light of their object and purpose – in accordance with Article 31 of the Vienna Convention on the Law of Treaties. In my view the purpose of the provisions is to give a clear and finite period for “appeal”, and their purpose is best served by reading them firstly, as allowing as clear a period as possible, and secondly, by reading them at the margin favourably to applicants. To me, that argues in favour of seeing applicants as having a full, clear three calendar months in which to apply, i.e. three months after the date of the judgment. Such a period would begin the day after judgment and would last three full months expiring at midnight (which midnight, by the way? Strasbourg midnight, presumably) at the end of Tuesday 17th April. The appeal would be in time, on this reckoning.

Adam Wagner was typically quick and right on Twitter yesterday to draw our attention to the relevant cases: Praha v Czech Republic, and Otto v Germany, neither of which is specifically about this three-month period but rather the six-month time limit for bringing your claim to the ECtHR in the first place. I read both cases as supporting Abu Qatada’s reading, rather than the Home Secretary’s.

In Otto, the Court said

the day on which the final domestic decision is pronounced is not counted in the six-month period referred to in Article 35 § 1 of the Convention. Time starts to run on the date following the date on which the final decision has been pronounced

and in Praha that

the six-month period begins to run on the day after the date on which the final domestic decision was pronounced

both of which support Abu Qatada’s contention that the three-month period began on 18th January – the day after its judgment was pronounced – and so expired at the end of the 17th April.

Adam also drew our attention to the Court’s “General Practice” note on Article 43 applications (page 14):

the period of three months within which referral may be requested runs starts to run on the date of the delivery of the judgment, irrespective of whether the party concerned may have learned of it at a later stage.

That doesn’t really help any further because as in the text of the Convention itself, it’s not clear whether the count starts with “judgment day” as day zero or day one. I think the answer must be found in purposive interpretation, supported by Otto and Praha.

How could the Home Office get mixed up about this, then? Some commentators on the media last night, with the complacent superiority that I know comes naturally to us commentators, expressed disbelief that the government didn’t simply “phone the court”. Things are not as simple as the commentator’s imagination might suggest, though. I’ve no doubt government lawyers were on the phone to Strasbourg more than once.

There may well have been crossed wires here between Foreign Office Lawyers – who deal with the European Court of Human Rights and who formally conduct litigation in it – and Home Office lawyers and civil servants. The prime concern in Whitehall’s mind must have been how long the government itself had to appeal the Abu Qatada judgment, which after all went his way in a practical sense (although a key element of its legal reasoning suited the government, as Theresa May agreed in Parliament on Tuesday). It’s not at all surprising that, if it were asked how long the government had to appeal (and what other purpose could the UK have had to ask?) Court staff should cautiously have cited the 16th of April. If I’d been an FCO lawyer asked to advise when the UK needed to appeal by, I’d have said 16th April, to be safe.

To be fair to government lawyers (of whom I’ve been one), these time issues can be tricky. It often amazes non-lawyers that there can be confusion about questions like this, but one of the surprising things you learn at law school is that it’s not obvious how you calculate time. Indeed, a whole section of the massive and brilliant law encyclopedia Halsbury’s Laws is devoted to the law of time.

In government you have the added difficulty that your ministerial clients seem obsessed with time, and the room it gives to delay decisions, in contexts where giving precise advice on time is difficult. I’ve advised on many EU law cases where the time-limit for a UK response depended in part on complex rules involving additional days allowed to government that varied according to how long the post was assumed to take between Luxembourg and the national capital. It frustrated me enormously that the only legal advice ministers seemed to be interested in was how I calculated the precise date, and that no one seemed anxious to listen to whether I thought we could win, or in getting on with deciding what if any arguments we’d make. A week or two would go by, then at the next meeting the only question would again be: “Till when do we have?”

What I learned was that, in order to focus minds, I had to be precise, cautious and unambiguous about time limits. The worst thing that could happen would be to give a date that turned out to be too late. I also learned in government that it’s best to avoid complexity in your answers, if possible: it’s generally unwanted, and often interpreted as proof that you’re a typical civil service ditherer, whose view can be ignored. That’s why, as I’ve already said, if I’d been advising ministers in a meeting in a context where we ourselves were considering appealing, I’d have given Monday 16th April as the final day for appealing. No other answer would have been so clear and safe, or have commanded confidence. I’d have kept the hidden complexity to myself unless asked for written advice, or unless asked specifically about how long the other side might have to appeal.

What was really needed here was good, old-fashioned lawyers’ advice. Regardless of when the time-limit technically ran out, the government would have been well advised to wait until at least midnight at the end of April 17th before treating the judgment as final. Theresa May’s statement should have taken place after Prime Minister’s Questions yesterday, rather than on Tuesday. But often in modern government, advice in that broad sense seems unwelcome: if they offer it, lawyers can be told sharply that all ministers want is a simple technical answer to a simple technical question such as “how long do we have to appeal”. In this case, especially if as I suspect a government appeal was a live issue, then the only good answer to give was Monday 16th April. I wonder whether this impatient, advice-averse culture and the “garbage in, garbage out” sort of lawyering it can spawn might be partly to blame for the apparent muck-up here.

Finally, some people will wonder why on earth Abu Qatada’s lawyers would have waited till the last moment – and possibly too late – to enter their appeal. Well, first, I’ve already said I think their view of the time-limit is correct. They’re in time, which is all that matters. But there may be a practical explanation for why the application came so late.

It’s worth remembering that Abu Qatada in effect won on 17th January: the European Court of Human Rights decided he couldn’t be deported because of the possible use in Jordan of evidence obtained by torture. It’s not obvious why he’d want to appeal that ruling, or whether they have serious grounds to do so. But what his lawyers certainly want is to find some procedural means of preventing deportation now, if they can. There’s a possibility of a final appeal to the Special Immigration Appeals Commission against deportation – in which case, deportation itself will be suspended pending the outcome. But given that SIAC and the higher UK appeal courts have already ruled his deportation lawful, even before the most recent agreement with Jordan, Abu Qatada must know those proceedings offer him little hope, and may not be drawn out all that long.

He must have hoped that the government – which after all lost on 17th January and has much better grounds on which to contest it – would appeal the ECtHR’s judgment, therefore keeping proceedings in that court alive and enabling him if need be, once deportation action was revived, to ask Strasbourg again for interim measures to temporarily block it. Once it became clear from Theresa May’s Commons statement that the government was not appealing the judgment, but believed it could effect a deportation compliant with it, Abu Qatada’s lawyers finally realised the only way the existing interim measures could be kept in existence or further interim measures applied for would be their own last-minute appeal, however odd that might seem. No doubt the papers had already been prepared in advance – his lawyers are certainly a capable lot – and so were ready to be sent to the court on the day or his arrest, after a few final hours work.

Oddly what was forgotten in yesterday’s media flurry about “confusion” and “doubt” was that this appeal makes little real difference, in the scheme of things. Theresa May told the Commons on Tuesday that she expected deportation could take “many months” because of appeals – this just proves her right. And deciding not to arrest Qatada till Wednesday would not actually have prevented an appeal being made on Tuesday.

I don’t think there’s any question of Tuesday’s arrest being unlawful, by the way. What the interim measures prevent is deportation itself, rather than arrest or detention with a view to deportation.

I expect Abu Qatada to land in Jordan eventually; but not before Julian Assange lands in Sweden.

This post by Carl Gardner first appeared on the Head of Legal blog and is reproduced with permission and thanks.

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  1. See Fleri Soler and Camilleri v. Malta, no. 35349/05, § 31, ECHR 2006-X. +1 day.

  2. frednach says:

    I think this ‘legal’ saga (if, you call it that is too simplistic; common sense dictates three months runs from date after judgement and not on judgement day) or a government farce is simply a smokescreen and deliberate act with the real objective to spin and indoctrinate yet more hatred of islamophobia.in the guise of terrorism and national security.

    The government armed with expert lawyers in this field, we are led to believe have sanctioned an illegal arrest by one day, and could not have foreseen the publicity and fuel for populist hatred?

    The same government then says yes, even if we have got this so wrong, the fact remains, we are talking about substance and not timing- reference to the fact that the courts have all but sanctioned the extradition save assurance of fair trial.

    The question must now be put of how ‘dangerous’ is this man, and how likely is he to receive a fair trial given the prejudicial publicity both national and international- thanks to no small part to this government’s incompetence or is this an April fools joke at all our expense gone too far?,

    1. John Dowdle says:

      I think frednach above raises a very salient point. This Qatada person has never been charged with anything in this country. It seems he has never ever once ever broken the law in this country. So why is he being held in prison at taxpayer expense? This long running saga has cost us as taxpayers a fortune, which is utterly ridiculous. It does make you wonder just what kind of governmental motivation lies behind it all. Are government departmental ministers and employees truly so incapable as to not know what time it is?

  3. Jan Wetzel says:

    Some of the confusion may come from legal traditions: In some civil law countries time-limits start running the day AFTER an event, so the day of e.g. the actual decision is not counted. The German translation of the ECHR rule of procedure (not authoritative) actually translates “FROM the day of the judgement” as “AFTER” that day (rule 73).

    Maybe somebody could say what the French pracise is, probably guiding for Strassburg?

    Contrary to the blog, I still think it is pathetic that the HO lawyers did not check this, precisly because it is such a 1st-year law student problem. A simple look into available commentary (e.g. Mayer-Ladewig, 3rd ed. 2011, article 35, margin note 35) would have sufficed.

    1. Lofthouse, J. says:

      ….on watching the HOC exchange between the Shadow HS and Theresa May again, I found it odd that Cooper (who spoke first) seemingly hammered on for eons for an assurance that there were no timing issues – as if someone had advised Cooper there was a potential legal problem, but failed to inform the Home Secretary before she made her statement….

  4. Simon Carne says:

    Carl Gardner’s comments on the dialogue between government lawyers and their ministerial clients prompt two thoughts: one on language and one on relationships.

    On language, I can well understand why the lawyers wouldn’t want to say: “It’s complicated, Minister …” It’s easy to imagine the Ministerial blood pressure rising at such an answer – as would any busy executive’s.

    But it’s oh so easy to say: “To be absolutely safe, Minister, you’d need to get your appeal in by Monday night.” The first four words give the clearest possible signal that there is a margin of uncertainty, which can be explored or ignored, depending on whether the Minister needs or wants to know about the possibility of a longer period.

    Simply giving the Monday deadline, because it’s safe (if you are the appellant), without any indication that longer may be available isn’t a proper answer – as this case shows.

    On relationships, the striking feature is that this excellent blog seems to be describing a world in which legal advice is sought – and given – without the lawyer being told of the practical use to which the advice will be put. Again, this case highlights the dangers of that. This is almost certainly the (mistaken) consequence of too many instances in the past when answers were longwinded and ambivalent, rather than helpful.

    This sorry tale provides a perfect example for a lecture I am giving tomorrow on how to express complex advice to clients. Given what is at stake, I would much prefer that the example had not presented itself!

  5. r1xlx says:

    forget the time and focus on the ‘exceptional cases’ – this one isn’t exceptional as its been properly taken through the legal system and had its final decision based on all known facts and assurances.
    Ship him out on 30th…or do I mean 1st of May LOL

  6. Lofthouse, J. says:

    You said: “I read that to mean that the date that the judgment is delivered is the date when it is “transmitted to the Committee of Ministers”. I assume (ha!) that this is the same day that it is published on the website etc.”

    But Carl, if it was transmitted at the speed of light, it could travel backwards in time….like Ken Clarke appears to…someone interfaced his fibre optic broadband connection to a particle accelerator and suddenly we’re all back in the 1930s!

  7. Richard Maher says:

    It may be helpful in understanding this to imagine a scenario where instead of Three months to appeal you instead have one day. Article 43.1 would then say “Within a period of one day from the date of the judgement…”. In such a case of receiving a judgement today you would obviously say that you have until tomorrow to file your appeal papers rather than the end of today. Otherwise you are always going to have a period of time which is less than a day and so clearly this cannot be the intent of such wording. In the absence of a specific point in time being specified on the judgement and wording of the law to match, the rest of today is therefore day zero and doesn’t count.

    In the three month time limit case, a judgement handed down on 17th January is actually given part way through the 17th. To then make the cut off point the end of the 16th April, Mr Qatada would always have had an amount of time slightly less than three calendar months to appeal. He will then argue that this cannot be right according to the legislation which says he has three months! To make the cut off then the following day, he has always had three calendar months plus an additional short amount of time and about which he cannot then complain despite the legislations ambiguous wording.

    Of course the issue and confusion comes from the fact that a particular date represents a period of time rather than a point in time so if you give someone time from a date to appeal the cut off point similarly will also span a one day period of time. This is clearly a nonsense. This is something that engineers and mathematicians understand very well and go to great lengths to get right because otherwise stuff doesn’t work or falls down. However it seems the poor lawyers, judges and legislators, bless them, after centuries of time to learn how to clearly define themselves are still struggling to do such basic things competently and so precipitate massive and unnecessary complexity not to mention enormous cock ups while maintaining their lucrative closed shop.

    A cynic might say that the lawyers, judges and legislators like it this way as it gives them more to do in sorting out such issues as their misunderstanding of time and consequent sloppy use of language that is resulting in ill defined laws and litigation for a very hansom fee. Either way, I’m wholly unimpressed with Mrs Theresa May, her Home Office not to mention the bloated EU and all its institutions and of course the innumerate legislators and lawyers.

  8. Hawkins, S. says:

    A Physicist writes..
    …here at CERN, we forge the interface between the laws of physics and the laws of man. It seems we need to apply Heisenberg’s Uncertainty Principle to the European Court System and many of the activities of the UK Home Secretary’s Office. To read a document, you need to shine light on it, which Heisenberg suggests may disturb the judgement – this could be why Jack Straw did not read through extradition papers before he signed them.

    Anyone calculated the ‘quantum’ for Abu Qatada if Theresa May got her dates wrong???

  9. John Dowdle says:

    Lofthouse: the constant growth of the surveillance state in Britain can only mean that we have become locked into a perpetual 1984 time frame. Everything starts and ends right there !! All other time indicators are simply pure delusion. We will never see the back of this Qatada character !!!!!!

  10. Lofthouse J says:

    Carl – one point you have failed to take into account is that the clocks in the UK went forward by one hour during the relevant time period – there is NO MECHANISM at the European Court to allow for the potential ‘time-date duality’ (unless some swot knows otherwise????).

    Couple this to the fact that some Civil Servants appear to work to the Julian Calendar (as it allows you to work for 11 fewer minutes per year), we could actually still be in…. 1984. Add in the fact that European countries adopted the Gregorian calender on different dates, and the UK actually LOST 11 DAYS in 1752 when it adopted the calender,and allowing for ‘leap seconds’… we could be anywhere.

    Why haven’t the Daily Mail asked Steven Hawkins yet ?

    1. Lofthouse, J. says:

      Does anyone have the actual TIME of receipt at the European Court???I I wonder if someone at the HO failed to set the computer clocks to automatically adjust to DST (or BST as it used to be called)???? Or whether anyone involved in the case could have been working to some other time – is there a European Standard for computers?

      Its quite an interesting IT issue for the computerised service of documents internationally. For example, London and Edinburgh are on ‘UTC(coordinated universal time)’, but Amsterdam,Paris and Brussels are on ‘UTC + 1’ right now.

      According to this news report, there appears to be a single ‘1 hour issue’ here.
      “Shadow home secretary Yvette Cooper yesterday demanded to know whether the Home Office had clarified the deadline with the European court prior to the appeal being lodged. Mrs May replied: “Of course the Government were talking to the European court throughout the three months and we were talking to them on the basis that the deadline was April 16.”
      Mrs May acknowledged that the court could find that the deadline was midnight on Tuesday – as Qatada’s lawyers argued – an hour after the appeal was lodged.”

      From an IT perspective, does the European Court use the time of transmission, or the time of receipt??? And how are its computer systems configured? I (like anyone) can ‘forge ‘ the time of transmission on any document by changing the time on my computer clock – OR I can absent mindedly fail to update the clock correctly for Daylight Saving Time, thereby inadvertently send a misleading datestamp out on my emails etc.
      Given the number of time zones that the European Court works across now, and the often inter-continental teams of lawyers working on cases like this,one wonders if there is a sufficiently rigorous QC procedure in place?

  11. John Dowdle says:


    You say above ‘I read that to mean that the date that the judgment is delivered is the date when it is “transmitted to the Committee of Ministers”. I assume (ha!) that this is the same day that it is published on the website etc.’
    On the web site it shows the two following statements:
    ‘This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.’; and
    ‘Done in English, and notified in writing on 17 January 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.’.
    It would be interesting to know what Article 44 § 2 of the Convention actually says, as a possible guide in this matter? Also, what Rule 77 §§ 2 and 3 of the Rules of Court actually say, as well.
    The concluding statement seems to make it completel;y clear that the date of announcement was January 17th so -presumably – the appeal “clock” began “ticking” from 00:00:01 on January 18th 2012.

  12. Adam Wagner says:

    Good question Rachit – this is getting a bit like trying to explain Donnie Darko

  13. Kevan says:

    Of course the court could have been helpful and stated the date and time by which an appeal must be lodged instead of referring to a time limit in weeks, months or years. That would, of course, removed the opportunity for legal argument not to mention political point scoring. One question – if the person in question has been in the UK since 2001 (?) what were the previous government doing to remove his?

    1. Adam Wagner says:

      That would indeed have been helpful! But it might not have resolved the issue. For example, if the Court had stated the wrong date (i.e. one less than was actually permitted), the applicant would still have been able to rely on the real date…

      But you are absolutely right that the Court should state the date – indeed, the minute – on which appeal rights run out, particularly given that claimants are often without legal representation in Strasbourg.

      1. Rachit Buch says:

        Would that be at the beginning or end of the minute?

        Sorry for the facetious comment to an excellent article and discussion.

  14. Tom (iow) says:

    There is some discussion of the meaning of time limits in the parking case of Wandsworth Council v Al’s Bar (page 5), at least as far as English law goes, and some higher authorities are cited:


    ‘Within three months’ includes the day three months later, i.e. the 17th, but ‘before the end of three months beginning with the date of judgment’ or similar wording means the deadline would be the 16th.

    If the English rule is followed, it seems that the 17th is correct.

  15. @londonstatto:

    “Only if midnights don’t apply (unless the event actually happens at midnight).

    Three months after 9:30am (for example) on the 17th January is 9:30am on the 17th April; not midnight 17th/18th.”

    But in law, time-limits aren’t normally calculated that way, for practical reasons as much as anything else (precise times are often not recorded, or not recorded accurately). This has been established for a very long time. See e.g. In re Railway Sleepers Co (1895) 29 Ch D 204 per Chitty J:

    “The general rule of law in the computation of time is that fractions of a day are not reckoned. Sir William Grant in Lester v. Garland (1808) 15 Ves 248 says, “Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point; so that any act done in the compass of it, is no more referable to any one, than to any other, portion of it; but the act and the day are co-extensive; and therefore the act cannot properly be said to have passed, until the day is passed.””

  16. Adam Wagner says:

    Elizabeth – I think the answer is no, at least for the 6-month rule. See the Court’s Guide to Admissability, p.22:

    69. It is not open to the Court to set aside the application of the six-month rule (for example in the absence of observations from a government on that question) (Belaousof and Others v. Greece*, § 38).

    The Belaousof case is here. In it the Court observed (warning: Google translation of the French):

    38. The fact that the Government did not submit comments on the matter is not likely to change the situation. The Court recalls that this rule, which reflects the wish of the Contracting Parties not to see questioning of old decisions after an indefinite delay, serves the interests not only of government but also of legal certainty as intrinsic value. It marks the temporal limits of supervision carried out by the Court and indicated to both individuals and authorities the period beyond which this control is not exercised. The Court therefore has no possibility of not applying the rule of six months for the sole reason that Government has not raised a preliminary objection based on it (Walker c. United Kingdom (dec.), no 34979/97, ECHR 2000-I).

  17. Elizabeth says:

    Can anyone clear up whether the ECtHR has a discretion to extend time? I’m assuming not given that it is established by treaty so does not have inherent jurisdiction, but in Praha v Czech Republic the court it said:

    “the Court does not find any exceptional circumstances why the applicant company could not have complied with the six-month time-limit”

    This implies it could extend time in exceptional circumstances… All so complicated!

  18. londonstatto says:

    “If it weren’t for Praha and Otto, I would say that was simply wrong: it starts on day X in the commencing month and ends on day X in the concluding month, as per the Convention above.”

    Only if midnights don’t apply (unless the event actually happens at midnight).

    Three months after 9:30am (for example) on the 17th January is 9:30am on the 17th April; not midnight 17th/18th.

  19. (I should of course have ended that post by saying “Monday 16 [not 17] at the latest”… see how confusing time limits can be?)

  20. There is actually a European Convention on the Calculation of Time-Limits (http://conventions.coe.int/Treaty/en/Treaties/Html/076.htm), which provides a fairly clear answer. It states as follows:

    Article 3(1): “Time-limits expressed in days, weeks, months or years shall run from the dies a quo [day from which the time limit runs] at midnight to the dies ad quem [day on which the time limit ends] at midnight.”

    Article 4(2): “Where a time-limit is expressed in months or in years the dies ad quem shall be the day of the last month or of the last year whose date corresponds to that of the dies a quo…”

    So, on that basis, the time limit in Abu Qatada’s case started on 17 January and expired at midnight on 17 April, just as the European Court has said. The UK has not itself signed up to the European Convention on the Calculation of Time-Limits (relatively few countries have), but it is in force and it would be odd if the European Court of Human Rights, as a Council of Europe body, didn’t apply the rules found there to calculate its own time limits.

    Adam: your position seems to be that if a time limit expressed in months starts on day X in the commencing month, it ends on day X-1 in the concluding month. If it weren’t for Praha and Otto, I would say that was simply wrong: it starts on day X in the commencing month and ends on day X in the concluding month, as per the Convention above. The rule set out in the Convention isn’t unusual: it exists in English law (the “corresponding day” rule) (Dodds v Walker [1981] 1 WLR 1027 (HL)) and has been applied by the European Court of Justice (Case 152/85 Misset v Council para 8).

    What Praha and Otto do, unhelpfully, is in substance to apply this established rule but explain it by saying that this is because the time limit only really starts to run on day X+1. That’s an unnecessary gloss on a fairly straightforward rule. I think the Home Office are in the wrong here, albeit that if the UK had itself wanted to refer the case to the Grand Chamber it would have been sensible to advise out of caution that this be done by Monday 17 at the latest.

  21. Why is it that the government will pay very close attention to the letter of the law when it comes to their (bad) time-keeping but will then drive and reverse a coach and horses over the final judgment in Hirst v UK (no2) ? It’s as if they think that they can set aside the rule of law and enjoy some sort of ‘judicial buffet’ in which they pick and choose which laws they must take seriously. It defeats the point of it all.

  22. Many thanks for this post, Carl. When I was a pupil barrister, I was told that the only joke in the White Book (the civil lawyer’s procedural ‘bible’) was: “Time does not run in August”. Whether or not that can actually be regarded as funny probably depends on the bent of your sense of humour, and perhaps whether you are a lawyer or metaphysicist (although I suspect that neither group can be too choosy in this respect). Since the Civil Procedure Rules came into effect in April 1999, however, time does now run in August in domestic civil procedure, and there are some detailed provisions – which are reasonably clear, if a bit fiddly – as to how it is calculated at CPR rule 2.8 and 2.9. These apply regardless of whether or not August is involved. I don’t believe that there are any candidates for joke status to be found in the present edition of the White Book, but would like to be proved wrong.

  23. Adam Wagner says:

    They certainly should Carl! But, as Ken Clarke told the Today Programme: “I’m quite sure the Home Office lawyers will be able to work it out””

  24. Richard Moorhead says:


    I always really enjoy your posts. The insight here into simplicity and complexity in advice is very interesting. For me it might also be an interesting example of the dangers (for lawyers and clients) of lawyers responding to a client’s narrow question: how quickly can we do something, when they should also advise on how quickly should they do something.

  25. Someone at the Home Office should show ministers this post before the urgent Commons question (11.30 this morning I understand from @paulwaugh). If we can disagree, Adam, then there’s definitely a disagreement to be had!

  26. Alastair Mullis says:

    Thank you for such an insightful and interesting comment. I thought what you had to say about ministers and legal advice of particular note, albeit rather depressing.

  27. Adam Wagner says:

    Carl – thanks for the excellent post, which almost clears things up!

    I expect there is some case law out there about Grand Chamber admissibility and time-limits….

    In the meantime, my impression from the procedure rules and the case law on the 6-month time limit is that the Home Office is probably right.

    Putting it very simply (perhaps too simply), all of the 6-month time limit cases refer to time starting on the day after the final domestic decision. This is sensible as who knows when in the day a domestic court or public body will deliver its decision. It could be first thing in the morning, or last thing at night. By starting the clock running the day after, everyone is left in more or less the same position.

    The important point is that the case law is clear that if the day the clock starts running is e.g. the 17th of a given month, then it stops ticking on the 16th, 6 months later.

    But for Grand Chamber decisions, the European Court itself controls when the Chamber decisions are “delivered”, the term of art which is defined, not very well, in the Rules of the Court at Rule 77, which says:

    “2. The judgment adopted by a Chamber may be read out at a public hearing by the President of the Chamber or by another judge delegated by him or her. The Agents and representatives of the parties shall be informed in due time of the date of the hearing. Otherwise, and in respect of judgments adopted by Committees, the notification provided for in paragraph 3 of this Rule shall constitute delivery of the judgment.

    3. The judgment shall be transmitted to the Committee of Ministers. The Registrar shall send copies to the parties, to the Secretary General of the Council of Europe, to any third party, including the Council of Europe Commissioner for Human Rights, and to any other person directly concerned. The original copy, duly signed and sealed, shall be placed in the archives of the Court.”

    I read that to mean that the date that the judgment is delivered is the date when it is “transmitted to the Committee of Ministers”. I assume (ha!) that this is the same day that it is published on the website etc.

    So if “delivery” of the judgment is on the 17th of a month, then following the Court’s usual method of calculating calendar months, the time period ends on the 16th. Taking a purposeful approach, as long as the Court is fair and consistent in when it delivers judgments, i.e. in the morning which seems to be the case, it seems fair that the period starts running then.

    1. James Whitehead says:

      It strikes me that there is an easier way to make this argument. We return to treating time as continuous.
      The date of delivery of the judgement was the seventeenth, and the clock starts on the date of delivery.
      The only credible way to interpret this is as 12am on the seventeenth (I think this is obvious but can argue in greater detail if necessary).
      Qatada had three months to launch an appeal, from the starting point, so the deadline was 12am on the seventeenth of April.
      So the last date on which he could have appealed was the sixteenth.

      This treatment is intuitive and probably provides the reasoning behind the “X”,”X-1″ examples.

      1. Lofthouse, J. says:

        But 12 am on the 17th where – the UK, or in Strasbourg? With Universal Time, 12 am in the UK is UTC + 1 in Brussels – there is still an hour’s difference.

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