QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE LLOYD JONES
|MRS JUSTICE DOBBS DBE|
|MR JUSTICE LLOYD JONES|
|OFFICE OF THE KING'S PROSECUTOR IN DENDERMOND, BELGIUM||Defendant|
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Mr Myles Grandison (instructed by the Crown Prosecution Service) appeared on behalf of the Defendant
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"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."
Article 7 provides in relevant part:
"1. Each Member State may designate a central authority or when its legal system so provides, more than one central authority to assist the competent judicial authorities.
"(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the Category 1 territory.
(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State."
"Under civil law systems throughout Europe many prosecuting authorities fulfil some judicial functions and there is nothing remotely odd in the Public Prosecution Office in Belgium issuing this EAW. I reject issue 1 as providing no basis for refusing to extradite this defendant. It is not for the extradition court ... to question the certificate and any such questioning can only be done in the Administrative Court if a judicial review is sought against SOCA for having allegedly wrongly issued their certificate."
"23. It seems to me that the clear purpose of the sections in the legislation was to put in place the provisions of the Framework Decision. It is common ground, as I have said, that that was the case, and I accept Mr Caldwell's submission that the object was to harmonise the arrest warrants throughout the member states of the European community. That part of the general principles, to which I have referred, seems to me to demonstrate that that was so.
24. In my judgment, in all the circumstances, the expression 'judicial authority' in section 2(2) must be read against the background of the Framework Decision and what it was intended to put in place. The Framework Decision leaves to the individual member state the right to designate its own judicial authority.
25. Mr Hardy points out that the 2003 Act does not define the term 'judicial authority'. But, in my judgment, whilst that is not determinative of the proper interpretation, it points towards an acknowledgment that it is left to the member states to use their own discretion as to what will or will not be designated the appropriate judicial authority. In my opinion, any other interpretation of the term judicial authority would, as is submitted on behalf of the respondent, undermine the whole purpose of mutual trust and co-operation between member states, which is expressed in the Framework Decision."
Then at paragraph 28 he said:
"As I have indicated, the factor which I have found most helpful in reaching my conclusion is the provisions of the Framework decision itself, and in particular Articles 6(1), (2) and (3). Having reached that conclusion, the evidence demonstrates that the respondent is the relevant judicial authority and that, for these purposes, that authority was delegated to one of its officers ..."
Similarly, Openshaw J said this at paragraphs 29 to 30:
"29. The essential flaw in the applicant's argument, to my mind, is in seeking to define the expression 'judicial authority' in section 2(2) of the Extradition Act 2003 as if it stood in isolation; whereas, in my judgment, plainly it is to be interpreted in the light of the Framework Decision of the European Union passed on 13 June 2002, which Part 1 of the Act sought to implement. By Article 6(3) it is for the requesting state to designate who is the competent judicial authority within that state. That concept underpins entirely the co-operation and trust between Member States on which the whole scheme of the European Arrest Warrant is based.
30. Sweden having validly appointed the Swedish National Police Board as the judicial authority to issue warrants in respect of persons already convicted of crime after judicial trial, this court, it seems to me, is bound to recognise the validity of that warrant. Any other interpretation of section 2(2) of the 2003 Act would require each executing State to investigate whether the function of issuing the warrant in the requesting State was undertaken by someone who would in this country be recognised as a person exercising a judicial function. Such an inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament."
"(6) The information is—
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
Section 10 provides:
"10 Initial stage of extradition
(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.
(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.
(4) If the judge decides that question in the affirmative he must proceed under section 11."
Section 65(3)(c) provides:
(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."
"Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences)."
"33. Adopting that approach to the construction of the 2003 Act, it seems to me that section 2(6)(e) does not present a problem. As modified, it requires information to be given of particulars 'of the sentence which has been imposed under the law of the category 1 territory in respect of the offences.' The singular use of the word 'sentence', even in multiple offence cases, matches exactly the wording of the Annex to the Framework Decision. Nor does section 65(3)(c) present a problem either. It refers to 'a sentence of imprisonment or another form of detention ... [that] has been imposed in the category 1 territory in respect of the conduct.' This wording too is consistent with the Framework Decision.
34. The problem lies only in the wording of section 10 as modified in the case of multiple offences. Section 10(2) requires the judge to decide whether 'any of the offences' specified in the Part 1 warrant is an extradition offence. I would hold that it is unnecessary, in a conviction case to which section 65(3) applies, for the judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for a term of at least four months. If it does, he must answer the question in subsection (2) in the affirmative and proceed to section 11: section 10(4). The information on which this decision is to be based must be found within the Part 1 warrant itself: section 2(6)(e). Further information such as that which was made available in this case will be irrelevant to his decision on this issue."
"The district judge concluded that those provisions did indeed satisfy the specialty requirements and she described the position as resulting in the sentence for the non-extraditable offence being 'ring-fenced'. The difficulty I have with that argument is that there is no way that this court can in fact determine the extent to which the aggregate sentence reflects the sentence which the court considered appropriate for failing to provide for his son. This court is accordingly unable, it seems to me, to carry through into this situation the logic of this court in Trepac and Pilecki. It simply is not possible for this court to feel any confidence that it can identify the extent to which in truth the two remaining offences capable of being extradition offences do meet the requirements of 65(3)c. Accordingly, it is not possible to identify, as required by section 2(6)e, the term of imprisonment for those two offences and the specialty arrangements do not seem to me to be capable of putting right that difficulty on the facts as we have them in the papers before us."
The reference to Pilecki there is a reference to Pilecki in the Divisional Court.
"55. In Pilecki, the court held that it was unnecessary, in a case to which section 65(3)(c) applies, for the court to ask itself whether the sentence that was passed for each offence satisfies the test in that subsection. If the warrant specifies that a single sentence was passed for multiple offences, the court should not go behind that sentence in an attempt to ascertain how it was made up. The question is whether the position is different if, as in this case, one of the offences specified in the warrant has failed the dual criminality test and cannot form the subject of extradition. In Pilecki, the court was aware (although it held that the information was irrelevant to its considerations) that, if examined individually, the sentences imposed in respect of some of the offences specified on the EAWs would not have been capable of meeting the requirement imposed by section 65(3)(c) (because the original sentences of imprisonment identified were for periods of less than four months), so that the relevant offences would not if examined individually have constituted extradition offences. Nevertheless, the House of Lords declined to look at the individual offences separately and instead held that the correct approach was to look at each of the two single sentences of imprisonment identified in the warrants as having been actually imposed for the offences and to decide whether that sentence met the condition specified in section 65(3)(c). It therefore confirmed the requested person's extradition for all the offences specified in the two warrants.
56. It seems to me clear that, although the factual background of this case is slightly different, the principle is the same. This court should not go behind the sentence specified in the warrant and seek to separate what part of it can be attributed to the failure to pay maintenance and what part to the theft. To quote Keene LJ in Trepac, the sentence cannot be "disaggregated". I do not consider that, by referring in Pilecki to the other requirement of section 65(3) being satisfied (see paragraph 48 of this judgment), Lord Hope intended to suggest that the principle could not be applied in a case such as the present one; he was dealing with the facts as they were in that case. Since the sentence imposed in the present case is for a period of four months or more, it fulfils the condition in section 65(3)(c) and the offence therefore satisfies the requirements for an extradition offence.
57. In reaching this conclusion, I do not of course overlook the decision in Wiercinski. However, at the time the court decided that case, it did not have the advantage of having before it the decision of the House of Lords in Pilecki, which was given very recently. It seems to me that, had the court in Wiercinski had the opportunity of studying the statements of principle set out in that case, it might well have come to a different conclusion."
"40. In my view it is implicit in the reasoning of the House of Lords in Pilecki that the court should disregard the fact that individual offences, listed in the European arrest warrant, do not satisfy the definition of 'extradition offence' if (a) the total sentence exceeds four months and (b) some of the offences listed satisfy the requirements of section 65. In this regard I agree with the reasoning of Swift J in Kucera at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera. I shall not follow the decision in Wiercinski."
Mr Atlee has told us today that Jackson LJ certified a point of law of public importance. However, he refused leave to appeal to the Supreme Court. The Supreme Court has been asked to grant leave and their decision is awaited.
"The structure of Part 1 of the Extradition Act 2003 envisages a step by step approach by the judge. Each step requires consideration of a particular question and its answer determines the next move that the judge is required to make."