Time, time, time, look what’s become of me

2 May 2012 by Adam Wagner

In law, time can be everything. Every lawyer will have experienced waking up in the middle of the night in a cold sweat at the realisation that a time limit has been missed. Courts often have the discretion to extend litigation time limits, such as under rule 3.1 of the Civil Procedure Rules, but simple mistakes by lawyers rarely generate sympathy from judges. Even scarier, judges sometimes do not even have the power to extend time at all, however unfair the circumstances. The idea is to encourage certainty and predictability in the legal system.

The lesson of principle is that lawyers should never take risks on time limits. The practical reality is that this is a very easy to say  in retrospect. And so we reach the difficult case of Abu Qatada, in which 5 European Court of Human Rights judges are to decide next Wednesday 9 May whether an appeal by the preacher  will be heard in full by the court’s Grand Chamber. Whoever you think was right, Abu Qatada’s lawyers or Home Secretary Theresa May, this controversy has demonstrated that rules designed to provide certainty can have exactly the opposite effect in practice.

There are two issues before the judges. First, whether Abu Qatada appealed in time. The ruling in his case was handed down on 17 January 2012. Article 43 of the European Convention on Human Rights provides that he could only request referral to the Grand Chamber “Within a period of three months from the date of the judgment of the Chamber”. Abu Qatada attempted to appeal on the evening of 17 April 2012. The Home Office are apparently certain this was too late, as time ran out, they argue, on the evening of the 16th.

The second issue before the judges is whether the appeal raises issues which are important enough to be looked at again by the Grand Chamber.

Blogger Carl Gardner has already written about the wider issues in this case in detail here, here and here. I cannot add greatly his excellent analysis, except to say three  things.

First, I think the Home Office may have got the time limit right. At the very least, there is no clear answer. I have spoken to many lawyers about this issue and the general consensus seems to be that Abu Qatada’s lawyers were probably right. I think this may be due to the influence of Carl Gardner’s posts, because there really is no clear answer either on the European Court of Human Rights website, the previous case law or in the otherwise helpful (but not on this point) Grand Chamber “General Practice” document.

I am not even sure that the Court’s Registry know what the answer is. The initial reaction to the controversy was that “Court officials” thought the appeal was in time. It also seems, bizarrely, that the issue has simply never come up. But in any event, what is clear is that the decision on admissibility is ultimately for the panel of Judges who are meeting next week, not for the Registry.

Why the doubt? I have explained my reasoning in my comment under Carl’s original post. In summary, some of the Court’s case law in relation to a different time limit – the 6-month limit to bring a claim at the Court following the exhaustion of domestic remedies – clearly shows that when the clock starts running on the 17th of a month, it ends on the 16th of a month. See, for example, Otto v. Germany (“The six-month period… therefore started to run on 28 November 2005 and expired on 27 May 2006.“) But the court has not always been consistent on this point: see for example Fleri Soler v Malta, a case referred to by a commenter to Carl’s post, in which the Court held:

In the present case the final domestic decision was given on 18 March 2005. It follows that the six-month period …started to run on the following day, namely 19 March 2005. Therefore, even if it had been lodged on 19 September 2005, the present application would have been submitted on the last day of the said period.

In Grand Chamber applications – at least according to p.14 of the Court’s own General Practice document –  the clock starts running “on the date of the delivery of the judgment“, that is the 17th January. So by my reckoning, it is quite possible, following the reasoning in Otto, that the period ended on 16th April. Of course, what is good for the goose (the 6-month time limit) is not necessarily good for the gander (the 3-month time limit). But the issue is clearly arguable, and I would be surprised if the judges emerge with a clear answer.

In fact, the reason there is no clear answer arises from my second point, which is that we may never know how the judges reason on this issue. That is because there is no obligation on the panel of judges to say why they reached their decision. So the court may refuse to hear the appeal, but not say whether this is because the application was out of time, or because it did not raise a substantive issue which was appropriate to be heard by the Grand Chamber.

Equally, the Court may allow the case to be heard but not explain the legal basis for deciding the appeal was within the time limit. This will be no good for anyone, as it will let the Home Office, correctly, accuse the Court of ducking the issue.

The problem with this approach is that because there is no obligation to provide reasoned decisions, there are no reasoned decisions. Which means that there is no case-law to refer back to in relation to the issue of time limits. So whilst the Prime Minister stated on the Today Programme that “all the case law pointed in that direction“, I would be very interested to know what cases he was referring to. Because on this precise point, there doesn’t appear to be any case law at all.  This makes things very difficult for claimants and respondent states, as time limits – you may remember – are meant to be about certainty.

My final point is about the Court’s discretion. It has been floated that the Court may have discretion, even if the time limit was not complied with, to “extend” time. I think this is probably wrong, at least for the 6-month rule, where the Court has ruled that no extension of time is available as States did not expressly provide for one in the Convention itself, where the time limits arise from. See this case at para 38 and 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).

Leaving aside the legal niceties, it seems to have become the accepted wisdom that however sure the Home Office was about time limits, it should still have waited for a few days before rushing to deport Abu Qatada. This would, goes the argument, have limited some of the embarrassment although in reality it would have made little difference to the timetable for removal.

Whatever the outcome of this case, the Court needs urgently to revise its otherwise useful guidance documents for litigants to explain exactly when time limits run out. And whichever judges decide Abu Qatada’s fate next week, in the interests of justice and transparency, this time they should raise their heads over the parapet and explain how they have reached their decision.

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Related posts

• Abu Qatada and the law of time – Carl Gardner
• No deportation for Abu Qatada, but where are we now on torture evidence? – Professor Adam Tomkins
• Indefinite detention: not very British
• Suspected terrorist may not be deported to Jordan – Strasbourg rules