CO/1757/2004 
Neutral Citation Number: [2005] EWHC 135 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Date: Thursday, 27th January 2005
 
B E F O R E:

MR JUSTICE MOSES 
 
and
MR JUSTICE RICHARDS 
----------------------------------- 
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989 
 
JAMES HEWITSON 
(CLAIMANT) 
-v- 

THE GOVERNOR OF FRANCE 
(DEFENDANT)
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Computer-Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR A NEWMAN QC and MR A DOS SANTOS (instructed by Paul Martin & Co, Romford, Essex RM1 3PJ appeared on behalf of the CLAIMANT
MR J HARDY (instructed by CPS, London EC4M 7EX appeared on behalf of the DEFENDANT
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J U D G M E N T 
1.	MR JUSTICE MOSES:  This is an application for a writ of habeas corpus ad subjiciendum on behalf of the applicant.  The background to this application was the arrest on 3rd February 2003 by French Customs Officers of two brothers, Andrew and Timothy Wright.  They were in a UK registered Saab which, on being searched on the French/Spanish boarder was found to have concealed within it 89.2 kilogrammes of cannabis resin.  Timothy Wright throughout maintained that the organiser was this applicant who had a villa in Marbella.  Andrew Wright blew hot and cold sometimes alleging that he was and sometimes denying it.
2.	The history of the extradition proceedings is that on 13th February Monsieur Thierry May at the Tribunal de Grande Instance of Bayonne issued an international arrest warrant.  On 28th February 2003 a District Judge at Bow Street issued a United Kingdom arrest warrant known as a provisional warrant. On 3rd March 2003, this applicant was arrested under that warrant at Poole.  On 12th March 2003, there was a formal request for extradition of the applicant to France.  On 25th March 2003, there was an interview, known in France as a Cour d'Appel de Pau of Andrew Wright, at which, during at least part of the interview, he blamed this applicant for being the organiser of the attempted dealing in the cannabis resin.  On 24th April 2003, the Secretary of State gave authority to proceed with the extradition.  The arrest of the applicant, on 3rd March 2003, led to the police searching his premises and recovering from that property a letter which had been sent from prison by Andrew Wright to the applicant.  
3.	On 18th December Rose LJ and Jackson J in James Hewitson v Chief Constable of Dorset Police and Government of France, Neutral Citation Number [2003] EWHC 3296 (Admin), concluded that the search was unlawful.  In a judgment, which fell into six small parts, Jackson J, at paragraph 37, ruled that the appropriate remedy was a mandatory order for the return of the property and an award of damages.
4.	On 22nd March 2004, committal for extradition was ordered by the District Judge at Bow Street Magistrates' Court.  On 29th June 2004, in the absence of the applicant, the Tribunal de Grande Instance convicted the applicant of an offence relating to dealing in cannabis resin and condemned him to a sentence of nine years’ imprisonment.
5.	The structure of the Extradition Act 1989 distinguishes between extradition in respect of an accusation of the commission of an extradition crime and extradition when the person, in respect of whom extradition is sought, is alleged to be unlawfully at large following a conviction (see section 1 of the Extradition Act 1989).  
6.	France is a signatory to the European Convention on Extradition Order 2001, and, in those circumstances, the Extradition Act does not require, in respect of one who is accused of the commission of an extradition crime, an evidential requirement before he may be convicted.
7.	The Extradition Act 1989 deals, at section 6, with one who is unlawfully at large following a conviction and provides that where the conviction was obtained in that person's absence, and it would not be in the interests of justice to return him on the ground of that conviction, then that he should not be returned (see section 6(2)).  Section 7 deals with authority to proceed and the relevant provisions provide, under section 7(2) that there should be furnished with a request for extradition: 
"(a) particulars of the person whose return is requested; 
 (b) particulars of the offence of which he is accused or was convicted (including evidence [or in a case falling within subsection (2)(A) below information] sufficient to justify the issue of a warrant for his arrest under this Act;) 
 (c) in the case of a person accused of an offence, a warrant [or duly authenticated copy of a warrant] for his arrest issued in the foreign state ... 
... 
and copies of them shall be served on the person whose return is requested before he is brought before the court of committal." 
Section 8 provides for arrest for the purposes of committal and by section 8(i):
"For the purposes of this Part of this Act a warrant for the arrest of a person may be issued -- 
... 
(b) without such an authority. 
[An authority to proceed by the Chief Metropolitan Stipendiary Magistrate]  
(i) by a metropolitan magistrate ... 
... 
Upon information that the said person is or is believed to be in or on his way to the United Kingdom; 
And any warrant issued by virtue of paragraph (b) above is in this Act referred to as a 'provisional warrant'."
8.	The first argument advanced in support of this claimant is that when the request was made by France the information which the Secretary of State was bound to consider in resolving the statutory question: whether the information was sufficient to justify the issue of a warrant, part of that information was the unlawfully obtained letter discovered on the arrest of this claimant in March.  It was said that that letter was obtained in breach of the applicant's rights enshrined in Article 8 and that it was plain, therefore, that the Secretary of State had misdirected himself in being satisfied as to the sufficiency of the information because he had, at least in part, relied upon the unlawfully obtained letter.
9.	The material provided with the request is to be found in our bundle between pages 2 and 72.  That material includes the international warrant for arrest and the information on which the examining Magistrate relied before issuing it, and also the confrontation, to which I have already referred.  During the course of that confrontation Andrew Wright, who had previously denied that the applicant was involved, was asked this question: 
"I inform you of the following elements:   
James HEWITSON was arrested in Dorset on 3rd March 2003; 
When he was arrested he had in his possession a letter forwarded by yourself on 9th February 2003, just as you were detained in Bayonne, a letter that we could not see coming through our usual control of mails; 
Explain yourself and tell me, notably, which way you have managed to transmit that mail to your organiser?  
ANSWER: In view of what you have just informed me about, I would like to say that my brother’s statements are true.  In the same way, the statements I gave to the police investigators and then in front of you previously are also true.  Thus I do confirm that James HEWITSON is indeed the organiser of these transportations of drugs.  
You asked me if I had changed account at the beginning of this interview because I was afraid of that man, I answer no."
Then he explained how it was that the letter had been smuggled out of the prison.  
10.	It is on that basis that it is contended that the Secretary of State relied upon unlawfully obtained material in order to satisfy the statutory requirement under section 7(2).  In those circumstances what is said is that it would be wrong to sanction the unlawfulness of that authority.
11.	The first matter, which it is important, in my judgment, to clarify, is that this point is taken in the context that this applicant is to be regarded as an accused person and as one who is accused of an offence.  In those circumstances, as Mr Newman QC rightly points out, the Secretary of State was under an obligation to satisfy himself that with the request he was furnished with information sufficient to justify the issue of a warrant for his arrest under this Act, because this was indeed a case falling within subsection (2)(a) of section 7.  
12.	In my judgment, the fact that the part of the material was the interview with Andrew Hewitson does not begin to demonstrate that the Secretary of State relied upon material unlawfully obtained.  It should be noted that the actual letter unlawfully seized was not before the Secretary of State, nor was there any suggestion that it was and nor did the examining Magistrate rely upon the contents of that letter.  All that was before the Secretary of State was the fact that just like Timothy Wright, Andrew Wright had himself blamed this applicant as being the organiser.  In fact, there was ample material shown that there was information sufficient to justify the issue of a warrant under section 8 of the 1989 Act, irrespective of the material contained within the confrontation.  
13.	Within the papers before the Secretary of State were certain facts set out in support of the international warrant for arrest issued by the Examining Magistrate Thierry May.  That included not only the assertion of Timothy Wright and Andrew Wright that Hewitson was the organiser, but other evidence to show that their accusation was well-founded.  It spoke of the relationship with Mr Hewitson in that they had access to his Spanish villa.  The telephone numbers they gave corresponded with telephone numbers in Mr Hewitson’s name. Andrew Wright was found in possession of keys and a remote automatic device to the applicant's Spanish villa.  
14.	All that material, laid as it was before the Secretary of State, was ample to justify the conclusion the Secretary of State reached, that there was sufficient information laid before him to justify the issue of the warrant.  In such circumstances, in my judgment, the assertion that the Secretary of State had relied upon unlawfully obtained material is hopeless.  It should be noted that I have not, hitherto, considered the consequences of a Secretary of State using material unlawfully obtained in breach of the rights of an applicant under Article 8.  
15.	In my judgment it is quite unnecessary, for the purposes of this case, to reach any conclusion as to what the consequences would be if a Secretary of State did rely upon such material, but that question just does not arise in this case and I wish to make it clear that my judgment is based on the assumption that the underlying legal proposition, upon which Mr Newman QC relies, is correct.  I wish to emphasise that I am not intending to rule one way or the other on that issue.
16.	The second point focuses upon the fact that this applicant was convicted in his absence on 29th June 2004.  He was convicted despite the fact, so Mr Newman says, that the Government of France must have known the whereabouts of the applicant because they had already issued a warrant for his extradition.  Furthermore, the conviction took place without the applicant being notified, or having the opportunity of any legal representation.  That was, so it is submitted, a flagrant breach of his rights enshrined in Article 3.  
17.	He relies upon the decision of the European Court of Human Rights in Krombach v France, judgment of 13th May 2001.  In that case the applicant had refused to attend before the French assizes court, but had sought legal representation.  There was apparently a rule that forbade the court from allowing such representation where a party had been given notice, but had declined to attend.  There was apparently no right of appeal to the court of Cassation following a  finding in those proceedings.  The European Court of Human Rights held that such a rule violated the claimant's rights under Article 6.
18.	In the instant case the material before this court is that should the applicant be returned he is entitled to set aside the conviction and the sentence in his case, as of right, provided that he lodges objection within ten days of arrival in France.  There is, for reasons I need not go into, no evidence, as there ought to be, that that is the situation, but sensibly Mr Newman does not dispute that which is set out in a letter on behalf of the French Embassy, dated 8th December 2004.  It says that "Were we to adjourn this matter for the evidence to be obtained, that would be the conclusion." That is why, earlier in this judgment, I referred to this case as being an accusation case.  
19.	On the basis of that material, it is clear that this applicant has an absolute right to set aside the judgment on his return to France.  In those circumstances this case is analogous to Foy v the Governor of her Majesty's Prison of Brixton and the Government of France [2000] EWHC (Admin)329 (see, in particular, the judgment of Kennedy LJ at page 4).  
20.	It was suggested that the two factors, to which I have referred, namely, the fact that the French Government knew where the applicant was, and nonetheless deprived him of legal representation, renders it oppressive for this court to allow his return.  It was not wholly clear to me under what limb it was sought to invoke this court's protection.  
21.	Section 6, for the reasons I have already given, does not apply because this claimant is not unlawfully at large following a conviction.  This is an accusation case falling under section 1(1)(a) of the 1989 Act.  Thus section 6 cannot apply.  Mr Newman relied inventively on section 11(3)(c), the relevant part of which reads: 
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that-  
... 
 (c) because the accusation against him is not made in good faith in the interests of justice,
It would, having regard to all the circumstances, be unjust or oppressive to return him." 
22.	It is not clear to me how 3(c) applies or why it would be unjust or oppressive to return him.  There is no suggestion that the accusation was not made in good faith in the interests of justice.  The case is wholly different, for the reasons I have already given, from Krombach where the party to those proceedings, who was complaining to the European Court of Human Rights, had no right to set aside the judgment made against him.  This claimant does have that right, as Mr Newman accepts, and therefore there is no basis for saying it would be unjust or oppressive to return him.  The second point is, in my judgment, as equally without merit as the first.  In those circumstances, for my part, I would dismiss this application.  
23.	MR JUSTICE RICHARDS:  I agree. I would only add this, that on the first issue I would be prepared to assume, for the purposes of my decision, that the Secretary of State, in reaching his decision to give authority to proceed, did take into account that part of the examining magistrates’ interview on 25th March 2003 in which reliance was placed on the letter that had been unlawfully seized, as was subsequently held by the Divisional Court (see the carefully structured judgment of Jackson J).  
24.	I would also be prepared to assume, for this purpose, that reliance on that letter involved, in some way, a breach of the claimant's rights under Article 8, though that matter has not been very clearly elaborated before us.  In my judgment, however, none of that can avail the claimant in these proceedings since it is plain that even without the material referring to, or based on, the letter that had been unlawfully seized, the information furnished with the request provided more than sufficient to justify the issue of a warrant under the Act.  Not only was the Secretary of State entitled to reach the conclusion that he did, that the relevant condition of section 7(2) had been met, but it seems to me that any other conclusion was not, on the material before him, reasonably open.  I have nothing to add on the second issue. 
25.	MR HARDY:  I know that my learned friend has an application shortly.  May I mention three matters: first, could I ask that the copy of the Home Office letter and the French Embassy letter be returned.  I am sorry that I furnished your Lordship with the original?  Secondly, my Lord, Moses J said in giving judgment, was 2 kilos, in fact it was 89.2 kilos.  One would not like to think that the Government of France were dealing with relatively small matters in this way.  
26.	MR JUSTICE MOSES:  You would not concede two kilos was trivial, I hope. 
27.	MR HARDY:  Thirdly, I know that my learned friends are privately funded. It follows that I apply for costs against the applicant. 
28.	MR NEWMAN QC:  I cannot resist the application for costs.  The application my learned friend foreshadows is an application for permission to appeal to the House of Lords.  Your Lordship will appreciate that because this is a habeas  corpus application certain measures are not necessary.  The only basis I make to the application is this: the whole basis of a proposition that a conviction in ad subjiciendum should be regarded as an application matter arises from Foy and the reasons in Foy. That is a decision of the division of this court basically.  It is point relating to convictions in absentia cases like France has never been taken higher. I will check that with my learned friend.  And it is an important matter, of course, to the applicant in this case because it is important in a much wider sense as well.  On that basis and on that ground alone, not on the Article 8 point, I do ask for permission to appeal.  
29.	MR JUSTICE MOSES:  No, you must ask their Lordships.  Thank you very much.