England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		15 April 2005

Friday, 15 April 2005

LORD JUSTICE LAWS:

1. Belgium is a category 1 territory for the purposes of, and within the meaning of, Part 1 of the Extradition Act 2003. The appellant appeals against the decision of District Judge Evans given at the Bow Street Magistrates' Court on 22 March 2005 by which he ordered that the appellant be extradited to Belgium under section 21(3) of the Extradition Act 2003. By section 26 the statute gives a right of appeal against such a decision with no requirement of permission. The appeal is to this court and is on law or fact. The case was first listed before us last Friday, 8 April, when we adjourned it over to today in circumstances which I will explain.
2. Before looking at the short facts, it is convenient to explain the statutory scheme a little further. The background is an initiative of European co-operation in relation to criminal process. A Part 1 warrant such as was issued in this case is defined by section 2(2) of the 2003 Act. Section 2(2)(a) provides as follows:

"A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains --

(a) the statement referred to in subsection (3) and the information referred to in subsection (4),

....

(3) The statement is one that --

(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.

(4) The information is --

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) 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 alleged to constitute an offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it."

3. Where a person in respect of whom a Part 1 warrant is issued appears before the appropriate judge for an extradition hearing, the judge by section 10(2) must decide whether the offence specified in the Part 1 warrant is an extradition offence. Section 64(2) provides so far as relevant to this case for what shall count as an extradition offence. It is in these terms:

"The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied --

(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

(c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of three years or a greater punishment."

The reference to the "European framework list" is explained by Schedule 2 to the Act. The list includes fraud (paragraph 8), computer-related crime (paragraph 11) and forgery of means of payment (paragraph 24). If the judge decides that the offence specified in the Part 1 warrant is an extradition offence, he must proceed under section 11 which requires him to consider whether in the particular case extradition to the category 1 territory in question is barred by any of a series of specified factors. If it is not, he is to proceed under section 21. Section 21 requires the judge to decide whether extradition would be compatible with the person's Convention rights under the Human Rights Act 1998. If it would be compatible, the judge must order extradition to the category 1 territory in question. The appeal rights given by section 26, and exercised in this case, are then engaged. By section 31(3) the High Court must begin to hear the appeal before the end of the "relevant period", which is specified by Civil Procedure Rules, Part 52, Practice Direction 6A(3)(c) as "within 40 days of the person's arrest".

4. In this case there was no contest but that a Part 1 European Arrest Warrant (or what purported to be a Part 1 European arrest warrant) was issued against the appellant by the appropriate Belgium authorities. It specified offences under the Belgium Criminal Code as follows:

"IT swindle (article 504 quater Penal Code);

IT forgery (article 210 bis Penal Code);

participation to an association of criminals (articles 322, 323 and 324 Penal Code)."

The only point taken on this appeal is put in the grounds as follows:

"1. The judge ought to have decided the question of whether the offences specified in the relevant Part 1 warrant were extradition offences under sections 10 and 64 of the Extradition Act 2003 in the negative. This is because the conduct specified does not constitute an offence.

2. If the judge had decided the question in the negative, as he ought to have done, he would have ordered Mr Palar's discharge."

5. On a true analysis the complaint is that the purported warrant is not really a Part 1 warrant at all because it does not include particulars of the "conduct" alleged to constitute the offence which by section 2(4)(c) is a prerequisite of a proper Part 1 warrant within the statute. The submission is that if that is the case the judge acting under section 10 ought to have concluded that no extradition offence was properly specified in what purported to be the Part 1 warrant. The only translation of the purported warrant which was before us last week was, with respect, somewhat garbled. The conduct alleged in it was as follows:

"From the elements of the file it appears that the suspect Gheorghe Palar would be involved in the use of false credit cards. On 03/09/2004 the suspect Ion Gurau was found in the possession of a number of credit cards, among which three Tesco-Club cards. On the magnetic tape stripe of those three cards data was found of existing credit cards. This data was apparently illegally copied of the magnetic tape stripe of the original card. The suspect Ion Gurau stated that he would have found the Tesco-Club cards in the close proximity of a (Brussels) shop on 03/09/2004 (although it apparently seemed to be English cards).

It appeared that on 1 September and 3 September 2004 these cards (at least the data contained on them) would have been used to do a money withdrawal from a point-of-payment terminal for a total amount of 3,650 euros. Apparently the persons who did the money withdrawals were in the possession of the PIN code of one of the cards of which the data seemed to originate from. The original card was apparently issued by the British financial institution Halifax and used by the subject Gheorghe Palar. Another card which was apparently used to execute illegal money withdrawals also contained the data of a credit card which would have been issued on the name of the suspect Gheorghe Palar, more specifically by the MBNA-bank. Furthermore the suspect Gheorghe Palar appears to be the cousin of the wife of the suspect Ion Filip (who was on the razzle with the suspect Ion Gurau and would apparently have played a role in hiding the origin of the money that was found on Ion Gurau). Ion Filip stated that conversations were held between the suspect Palar and the suspect Ion Gurau by means of his mobile phone. These conversations apparently were about money withdrawals, theft of a bank card and a false card.

These elements make believe that the suspect Gheorghe Palar could be actively involved in credit card fraud which was set up and which would apparently show an international and organised character."

6. We have a manuscript note of the district judge's judgment. It includes this passage:

"On behalf of Mr Palar, it was submitted that I could not be satisfied that what was before me was sufficient for me to be sure that it amounted to an extradition offence. There is a use of subjunctive verbs, eg he could be involved. There was no evidence other than that of a co-defendant that he was involved in the telephone calls. These are matters for the trial court in Belgium. As this is a Part 1 application, I have to be satisfied only that the offence specified is an extradition offence. I do not have to be satisfied that there is prima facie evidence or of any other similar test. I am satisfied that this is an extradition offence, as defined in section 64."

7. On the face of it the translation of the warrant which I have read poses some difficulties. We adjourned the case last week so that the respondent, who was not then represented, might appear before us, and also, if possible, for a further translation. Such a translation has now been provided, but it seems to me to take the matter no further. In the result, in my judgment, the warrant (so far as either translation shows) alleges these facts. One or more of three Tesco-Club cards were used to draw cash from an ATM machine. Those cards bore data copied from the magnetic strip of other cards. Two of the original cards had been issued to this appellant respectively by the Halifax and MBNA-Bank. The appellant is the cousin of the wife of another suspect, Filip. The man Filip had stated that telephone conversations "apparently about money withdrawals, theft of a bank card and a false card" had taken place between the appellant and the third suspect Gurau. It is far from clear to me how it could be said that these facts are capable of constituting conduct which amounts to the extradition offences alleged. It is be noted (albeit in the context of the earlier legislation contained in the Extradition Act 1989) that in Castillo v the Kingdom of Spain and the Government of HM Prison Belmarsh [2004] EWHC (Admin) 1676, Thomas LJ said:

"25. However the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect of the offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate."

8. I bear fully in mind that the background to the relevant provisions made in the 2003 Act is an initiative of European law and that the proper administration of those provisions requires that fact to be borne firmly in mind. It goes without saying that the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme. However, it remains the case that the conduct said to constitute the extradition offence in question has to be specified in the warrant (section 2(4((c)).
9. What is the material in this case upon which Mr Hardy relies as amounting to such conduct? He submits, first, that the conduct of third parties may be material; and secondly, that it is to be inferred from the telephone conversations which are briefly described that this appellant was responsible for the withdrawals. As regards third parties, Mr Hardy refers to the general statement made by Lord Steyn in In Re Ismail [1999] 1 AC 320, 327:

"Extradition treaties and extradition statues ought therefore to be accorded a broad and generous construction so far as the texts permit in order to facilitate extradition."

With great deference, I am sure that that dictum applies as readily in the context of the 2003 Act, if not more so, as it did in relation to earlier legislation. But it cannot, as I see it, vouch the proposition that the conduct of others could itself be entirely sufficient for the purposes of a warrant issued against a person if no allegedly criminal conduct is specified against that person himself.

10. As far as the telephone conversations are concerned, there are a number of possible inferences that could be drawn from those conversations. On the face of it the case is in any event at least peculiar since it is this appellant's own credit cards, it appears, that were cloned so as to enable the Tesco-Club cards to be used with the appellant's cards' particulars for the purposes of withdrawing cash.
11. In my judgment no conduct reasonably capable of constituting the extradition offences specified is described in this Part 1 warrant. In those circumstances it seems to me that the appeal must succeed. Mr Hardy has relied on section 64(2). He says that the warrant itself is to be treated as a certificate under section 64(2)(b) to the effect that "the conduct falls within the European framework list". Even if the warrant could in some way be treated as a distinct certificate under section 64 (which for my part I doubt), the proposition cannot assist Mr Hardy if in truth there is no conduct specified that is capable of amounting to the extradition offence relied on. I do not for one moment underestimate the duties of co-operation and comity to which I have already referred, but this Act of Parliament requires the courts to be satisfied that conduct is described which on the face of it may be said to constitute the offence relied on by the requesting State. That condition is not met here. In those circumstances, for my part I would allow the appeal.

MR JUSTICE DAVID STEEL: I agree.

MR HARDY: My Lord, I have two applications, neither of which is that your Lordships should certify a point of law of general public importance since in the light of your Lordships' judgment it is not appropriate, in my view, for their Lordships to be invited even to consider this case. The only risk that the appellant faces is that of the issue of a new and better particularised European Arrest Warrant. The two applications, therefore, are these. First, would my Lords direct that the transcript of your Lordship's judgment be expedited? I pray in aid in particular my Lord, Laws LJ's observations, obiter though they are, strong obiter nonetheless, as to the certificate under section 64 because the practice hitherto has been that the warrant is treated at the lower court as a certificate and in a sense the statutory requirement, given the construction that my Lord has placed upon it, is merely a duplicatory requirement.

LORD JUSTICE LAWS: I see. Mr Hardy, you do not need to persuade me -- and it may very well be that my Lord agrees -- that this matter is of some importance to other cases. I am sure it would be right to ask the shorthand writer to expedite the transcript.

MR HARDY: I am very grateful. My other application is a most mundane one, and I apologise for having to make it, but can I ask for the return of my sole copy of Ismail?

LORD JUSTICE LAWS: Yes, of course you can.

MR HARDY: Thank you.

MR HEPBURNE-SCOTT: My Lord, may I apply for the appellant's costs in this case.

LORD JUSTICE LAWS: I suppose that follows, does it, Mr Hardy?

MR HARDY: My Lord, it is dealt with at section 27(5), which requires your Lordships to order discharge and quash the orders of extradition

LORD JUSTICE LAWS: We make those orders, and so we now we are looking at 61(1((a)?

MR HARDY: Yes.

LORD JUSTICE LAWS: Yes.

MR HARDY: And then on to 61(2)(b) when an order for a person's discharge is made by the High Court.

LORD JUSTICE LAWS: Right.

MR HARDY: Under subsection (4) the court may make an order in subsection (5) and that makes it clear, my Lord, that no costs are to be paid by the issuing judicial authority its costs out of central funds. That is the only application --

LORD JUSTICE LAWS: That he can make?

MR HARDY: And/or legal aid taxation.

LORD JUSTICE LAWS: Thank you, Mr Hardy.

MR HEPBURNE-SCOTT: That is the application I would make.

LORD JUSTICE LAWS: You are asking for an order for costs out of central funds? I am not sure I quite follow this because subsection (4) is not applicable since it only relates to subsection (1)(c)(d) or (e) --

MR HARDY: Would your Lordship forgive me? It is subsection (3).

LORD JUSTICE LAWS: (3)?

MR HARDY: Yes.

LORD JUSTICE LAWS: "The appropriate judge may make an order under (5)". I see.

MR HARDY: Indeed, it is an extremely complicated procedural rubric for giving effect to the old order, namely costs out central funds.

LORD JUSTICE LAWS: It is, is it not, Mr Hardy? You are quite right. We will make an order under section 61(5) in the appellant's favour.

MR HARDY: I am grateful.

MR HEPBURNE-SCOTT: I am grateful, my Lord.

LORD JUSTICE LAWS: Anything else?

MR HEPBURNE-SCOTT: No, thank you.

LORD JUSTICE LAWS: We are grateful to counsel.

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