QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE GROSS
|THE DEPUTY PUBLIC PROSECUTOR OF MESSINA ITALY||(DEFENDANT)|
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MR P CALDWELL (instructed by Crown Prosecution Service) appeared on behalf of the DEFENDANT
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"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  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  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)  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.'"
"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."
"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."
"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).
"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."
"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".
" . . . 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 . . . "
"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.