England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		14th December 2005

1. LORD JUSTICE HOOPER: This is an appeal against an order made by District Judge (Magistrates' Courts) Tubbs on 18th November 2002 ordering that the appellant be extradited to Italy. Miss Lloyd-Jacob, for whose submissions we are grateful, attacks the order of the Magistrates in two respects, both of which relate to the European arrest warrant which formed the basis of the order made by the District Judge.
2. Before looking at the facts of the case, it is helpful to remind myself of the accepted general principles. In Augusto Pinto v Governor of Her Majesty's Prison Brixton [2004] EWHC 2986 Tuckey LJ, sitting in the Divisional Court, referred to a passage from an earlier decision in the House of Lords. Tuckey LJ said this:

"Lest it should be thought that what I have said is over-technical, I refer to what was said by the House of Lords recently in R (Guisto) v Governor of Brixton Prison [2003] UKHL 19, at paragraph 41, where Lord Hope said:

' . . . it is fundamental point of principle that any use of the procedures that exist for depriving a person of his liberty must be carefully scrutinised. Lord Atkin's declaration in Liversidge v Anderson [1942] AC 206, 245: 'that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act' has lost none of the force which it had when it was delivered over sixty years ago. When, in Re Farinha (Antonio da Costa) [1992] Imm AR 174, 178 Mann LJ said that the courts must be vigilant to ensure that the extradition procedures are strictly observed, he was making precisely the same point. The importance of this principle cannot be over-emphasised.'"

3. Guidance is also to be found in The Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67. In paragraph 57, Lord Scott said:

"The requirement that an arrest warrant must contain one or other of these statements seems to me to be a natural and desirable feature of an extradition system that does not permit the merits of the extradition request to be investigated by the judge who is asked to order the execution of the arrest warrant. At the least, the State seeking extradition can be, and under section 2 of the Act is, asked to commit itself to the propriety of the extradition. These statements are not, in my opinion, formalities. They form an important part of the new extradition procedure."

At paragraph 44 Lord Hope said:

"It would be unduly strict in these circumstances to insist that a statement must appear in the actual words used in section 2(5) if a European arrest is to qualify as a Part 1 warrant. The purpose of the requirement is to provide protection against an unlawful infringement of the right to liberty, so it is an important part of the procedure provided for by Parliament. But the court should be slow to construe those words in a way that would make it impossible to give effect to a warrant which is in the terms which the Framework Decision has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities."

4. Lord Steyn said in Re Ismail [1999] 1 AC 320, at 327 A:

"Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate expedition."

5. To understand the appeal, it is helpful to set out what the District Judge said in relation to the two issues before this court:

"The preamble on the first page of this warrant requests Mr Parasiliti-Mollica be surrendered 'for the purposes of conducting a criminal prosecution'. It does not delete the alternatives in the next phrase 'or executing a custodial sentence or detention order'. However, it does, on the second page, state that the warrant was based on a 'remand in custody order', and on the fourth page, it describes that order as a decision of the 'Pretrial Investigation Judge'. Those parts of the warrant that have been left blank, have not been deleted. However, it is clear from the contents of the warrant that Mr Parasiliti-Mollica has not been tried and sentenced so the alternatives in the preamble would not apply and it follows that he is sought 'for the purposes of conducting a criminal prosecution'. Different procedures, of course, apply in other jurisdictions. Here the warrant is issued by the Deputy Public Prosecutor attached to the Court of Messina. There is reference to the Pretrial Investigation Judge and his making of a remand in custody order. I am satisfied that the matter has proceeded beyond the merely investigative phase and is now before the court. I am satisfied that the position is clear that Mr Parasiliti-Mollica is accused of the commission of an offence and that his extradition is sought for the purpose of being prosecuted for that offence so the warrant complies with the requirements of S2(3)(a) and (b) of the Act."

Section 2(3)(b) requires that the warrant be issued "for the purpose of [the person] being prosecuted for the offence" (or by virtue of subsection (5) that he is unlawfully at large).

6. I turn to the warrant. It is described as a European arrest warrant issued by an Office of the Public Prosecutor in Messina and starts with these words:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

The prosecutor had not struck out any words in that sentence. Looking at the European arrest warrant which is attached to the Council Framework Decision of 13th June 2002, 2002/584/JHA, there is there no provision requiring or suggesting the striking out of one or other of the two reasons. We have been referred to paragraph 54 of the Armas case in which Lord Scott said:

"It is presumably intended that the inapplicable alternative be deleted."

7. Whether that be right or wrong, it is not suggested by Miss Lloyd-Jacob that the failure to delete is fatal to the validity of the warrant. What she says, and I agree with her, is that if the alternative is not deleted, then it must be clear from the balance of the warrant which of the two grounds for the warrant is satisfied. She submits that if one looks at the balance of the warrant, that has not been done. Her submission can be stated simply. What the warrant does not make clear, so she submits, is whether this is a warrant for the purposes of conducting a criminal prosecution against the appellant, or a warrant simply to investigate an offence. We have not been pointed to any Italian law which might suggest that there is such a creature. The District Judge heard the same argument and concluded that it was a warrant for prosecution.
8. In box (b), there are two alternatives -- one relating to being prosecuted and the other to being unlawfully at large. It is clear that whoever filled this form in was filling in the part which related to the former of these two alternatives. What is written down are the words "Remand in Custody Order", and then there are references to a court file number.
9. I turn to the box (e) which sets out what is described as a description of the circumstances in which the offence or offences were committed. Miss Lloyd-Jacob rightly notes, first of all, that whoever filled in this form failed to fill in the first part which reads:

"This warrant relates to in total: [blank] offences."

She says that that supports her contention that this may be a warrant for investigation and not a warrant for trial. The description of the circumstances reads as follows:

"Co-author in complicity with an armed organisation for drug trafficking purposes (cocaine and hashish), made up of more than 10 members, set up to commit more offences of possession and distribution of narcotic and psychotropic substances. The criminal organisation purchased the narcotic substance in Naples and distributed it in Capo d'Orlando and surrounding areas. The Pre-trial Investigation Judge issued a remand in custody order against PARASILITI MOLLICA, WHO, in order to escape imprisonment, fled in a foreign country, namely England, and reached London. His dwelling is unknown at the moment."

The date is given as "2004-2005" and the place as "Capo d'Orlando (ME) and surrounding areas".

10. One learns more about the Pre-trial Investigation Judge looking at box (i). There it says the judicial authority which issued the warrant was the "Pre-trial Investigation Judge attached to the court of Messina". The file references are repeated, his name and address is given and the post is described as "Pre-trial Investigation Judge".
11. In my view, on the material available to the court in the arrest warrant, there is no ground for saying that this could have been a warrant other than a warrant for the prosecution for an offence. The alternative (unlawfully at large) had no application. The warrant is issued by a competent judicial authority "for the purposes of conducting a criminal prosecution". The appellant is described as the "co-author in complicity with an armed organisation for drug trafficking". There is nothing to suggest that he is merely suspected of that offence.
12. In my view, the suggestion that this could be only a warrant for investigation is mere speculation and I would agree with the conclusion reached by the District Judge on this part of this appeal.
13. The second part of the appeal I can deal with briefly. Section 2(4) of the Extradition Act 2003 in subparagraph (c) requires the following information to be given on the arrest warrant:

" . . . particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the Category 1 territory under which the conduct is said to constitute an offence . . . ."

That seeks to reflect the words in Article 8 of the Framework Decision. In paragraph 1(c) the required information is described in this way:

" . . . a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person . . . "

14. Lord Bingham in paragraph 8 of Armas had this to say about the relationship between the Framework Decision and the section:

"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

What is said by Miss Lloyd-Jacob is that the circumstances do not sufficiently set out what the appellant actually did, what was his role in this conspiracy. In my view this point has no merit. He is described as the "co-author in complicity with an armed organisation". Co-author means someone who is at the centre of, and part of, the organisation with which the conspiracy is concerned. In my view, that sufficiently describes his role to meet the complaint made by Miss Lloyd-Jacob.

15. We have been provided with a document which I have ignored in reaching the conclusion which I have reached. According to that document, dated 12th December, it is being made clear that the appellant is sought in order to face trial in Italy. I shall assume, without deciding, that I cannot use that document to assist the interpretation of the European arrest warrant. All I would say is that the expense and time that was taken for this matter to be investigated before the District Judge and before this court could have been saved if the words "sought in order to face trial in Italy" had appeared in the European arrest warrant. Through Mr Caldwell, I would invite those who are responsible for liaising with foreign governments over the application and use of the warrant to draw these words to their attention.
16. For these reasons, I would dismiss the appeal.
17. MR JUSTICE GROSS: I agree.
18. MISS LLOYD-JACOB: My Lord, can I raise two matters. One is could I have Legal Aid assessment?
19. LORD JUSTICE HOOPER: Yes.
20. MISS LLOYD-JACOB: The other is this. It may well be that it will not go any further, but if an appeal is considered under section 32 of the Extradition Act a point of public importance has to be certified by this court. Before we came into court my learned friend discussed what those potential points might be. I do not know if I could just read to you what we discussed:
21. In the light of your judgment in relation to the first point, whether in a case where the introduction to an European arrest warrant has not had the irrelevant passages deleted, it must satisfy section 2(3) of the Extradition Act 2003. In the case of an accused person, it must contain an unambiguous assertion that the warrant is a view to the arrest of the person sought.
22. LORD JUSTICE HOOPER: We will discuss that. (Pause). I am afraid we are against on that too.
23. MISS LLOYD-JACOB: Thank you, my Lord.
24. LORD JUSTICE HOOPER: Thank you very much.