England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 June 2006

Lord Justice Richards:

1. These are appeals under section 26 of the Extradition Act 2003 against a decision of Deputy Senior District Judge Wickham at Bow Street Magistrates' Court on 12 April 2006 ordering the extradition of all three appellants.
2. The appellants were arrested in this country pursuant to European arrest warrants issued by the Head of the Prosecution Department of the Courts of Higher Instance, Paris. Since France is a category 1 territory for the purposes of the 2003 Act, these proceedings are governed by Part 1 of the Act. The extradition hearing before the district judge took place on 3 April 2006. Proceedings against a fourth person, Hajar Karkamed, who is otherwise in a similar position to the three appellants, were stayed because he was unwell and further medical reports were awaited.
3. The primary submissions for the appellants before the district judge were made on behalf of Azad Hosseini, with the other two appellants adopting those submissions where relevant. The appeal before us was conducted in a similar way: Mr Watson represented all three appellants but made his submissions primarily by reference to Hosseini, identifying the respects in which success in relation to Hosseini should also lead to success in relation to the other two appellants. I therefore propose to concentrate on Hosseini and to deal with the other appellants only at the end of my judgment.

Hosseini: background

4. Hosseini is of Kurdish descent and was born in Iran in 1972. He recounts a history in which his family were members of the PDK, a pro-Kurdish movement; his parents and many of his siblings were killed in a chemical weapons attack; he himself was tortured by the Iranian security services; and he, his wife and his family suffered a campaign of intimidation while in Iran. He and his wife arrived in this country from Iran in April 2003 and claimed asylum. In November 2004 they were granted indefinite leave to remain. They have lived openly in this country ever since, without leaving the jurisdiction. They have one daughter who is 22 months old.
5. Hosseini and his wife both have mental health problems. The district judge had before her a detailed report by Professor Ian Robbins, a consultant clinical psychologist. I think it sufficient to quote the concluding two paragraphs from that report:

"12.6 In conclusion Mr & Mrs Hosseini sought and were granted asylum in this country as a consequence of their experiences in their home countries. Mr Hosseini is suffering from PTSD and depression as a result of previous traumatic events in Iraq and Iran. These conditions are being exacerbated by his current imprisonment and the prospect of extradition to France. Mrs Hosseini is also suffering from a Major Depressive Disorder which is also being exacerbated by Mr Hosseini's imprisonment and the threat of extradition. This is impairing her ability to experience a normal family life and to provide one for her daughter.

12.7 In the past Mrs Hosseini has been highly dependent on her husband for support and currently she is supported by her mother who will soon have to return to Iraq. When that happens she is likely to deteriorate. Were Mr Hosseini to be extradited it is my opinion that it is highly likely that Mrs Hosseini would deteriorate further bringing with it a serious risk of self harm. Along with this would be a further reduction in her ability to lead a normal family life or provide one for her daughter."

The warrant

6. The warrant states that since October 2004 a very large-scale inquiry involving several European countries has been initiated concerning an immigration network set up by persons of Iraqi and Afghan origin. The immigrants would pass through Turkey, Greece, Italy and France on their way to England via Calais "by illegally slipping into transportation lorries". Hosseini is referred to as "Mr M Azad HOSSEINI alias AMJAD". The allegations against him are based on a series of tapped telephone calls in which Hosseini, situated in Birmingham, can be heard making various arrangements concerning the trafficking of people into this country. In outlining the circumstances of the offence alleged against him, the warrant refers to "facts committed in Birmingham indivisibly with the facts committed in France during 2004 and 2005 as the author". In the details that follow it states inter alia:

"Certain members of the organisation are based in England, notably in Birmingham. Certain are depositories of sums paid by the clandestine immigration seekers to Great Britain. The clandestine passengers are taken in hand only after a deposit payment and after the passage, the treasurer repays part of the money to the members of the network that intervened. The sums received by the members of the network in France permits them to pay for food, lodging and hence to stay in France without working and to finance the cost of the transportation and passage of the clandestines (ex: purchase of petrol, telephones, etc.).

The investigations and notably the interception of telephone conversations permitted to evidence the following elements:

In all likelihood, AMJAD is the brother of Amin BARZAN alias Baghet who is, with SIRWAN, one of the organisers in France.

AMJAD has a double role as treasurer and organiser of the network and he is in relation for the functioning of the clandestine immigration channel, with AMIN Abdurahman, alias RAHMAN, SALAH Allan, alias SIRWAN, AMIN Bayan (his brother) all three at the head of the French part of the network."

7. A little later the warrant describes Hosseini as "giving orders and instructions about the transfers of clients". Other passages describe his involvement in the transfer of monies, including the sending of money orders to persons involved in the network. In particular:

"In conversations no. 465 and 473 … Amjad confirms the transfer of money for the client who is in Paris. Baghet is to take care of it the next day with a group of persons. He takes the occasion to thank him. He received the money. Amjad explains that the forwarding was made under the identity of 'Salar Ali'.

Between April and September 2005, Azad HOSSEINII alias AMJAD sent 13 money orders to persons involved in the network …."

8. The warrant states the nature and legal classification of the offence in France as: "By direct or indirect assistance, facilitated or attempted to facilitate the illegal entry, circulation or stay in France with the circumstance that the facts were committed by an organised gang". It refers to the applicable statutory provisions. It also identifies the offence as a framework list offence, namely "assistance in illegal entry and stay": it is unnecessary for present purposes to explain the nature of framework list offences. The maximum sentence for the offence is stated to be life imprisonment.

The issues

9. Two issues are raised on the appeal:

i) whether the conduct described in the warrants amounts to an extradition offence for the purposes of the 2003 Act: this point was not taken before the district judge but is a matter of law going to the court's jurisdiction to order extradition, and there is no dispute that it can be taken on appeal despite the failure to raise it below; and

ii) whether the extradition would be in breach of Hosseini's rights under article 8 of the European Convention on Human Rights.

Issue (1): extradition offence

10. By section 10 of the 2003 Act, 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, the judge must decide "whether the offence specified in the Part 1 warrant is an extradition offence". If the judge decides that question in the negative he must order the person's discharge; if he decides it in the affirmative he must proceed under section 11. It is for the requesting authority to satisfy the judge that the conduct specified constitutes an extradition offence.
11. The question whether conduct constitutes an extradition offence is governed by sections 64 and 65, which are in the same terms save that section 64 applies to persons who have not been sentenced for the offence in question and section 65 applies to persons who have been sentenced. The relevant section in this case is section 64. It reads, so far as material:

"(1) This section applies in relation to conduct of a person if –

(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct ….

(2) 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 3 years or a greater punishment.

(3) The conduct also 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;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law).

(4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –

(a) the conduct occurs outside the category 1 territory;

(b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);

(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.

(5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –

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

(6) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied –

(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom …."

12. It is to be noted that save in subsection (2), which deals with framework list offences where the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom, the section requires the test of double criminality to be met: that is to say, the relevant conduct must be an offence both in the requesting state and in the United Kingdom.
13. The requesting authority concedes that, because some of the conduct occurred in the United Kingdom, the case does not fall within section 64(2) although the offence alleged is a framework list offence. Its contention is that the case falls within section 64(3), in that the conduct occurred in France (the relevant category 1 territory) as well as in the United Kingdom, and the other conditions of the subsection are met.
14. For a proper understanding of that contention it is necessary first to consider the decision of the House of Lords in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2005] 3 WLR 1079, where the materially identical provisions of section 65 were examined. Cando Armas had been convicted and sentenced in his absence by a court in Belgium. The arrest warrant subsequently issued for him described him as a member of an organised gang which was responsible for the systematic illegal immigration of Ecuadorean citizens towards Europe. The organisation was directed from London by Cando Armas. But he also went to Beligum, where he took care of accommodation and fake passports for the illegal immigrants.
15. In his judgment, Lord Bingham of Cornhill accepted at [16] the submissions for the prosecutor that "conduct" in section 65 means the conduct complained of or relied on in the warrant. At [17] he went on:

"I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occurred in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occurred in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory."

16. Lord Hope of Craighead agreed with Lord Bingham. Specifically in relation to sections 64(3) and 65(3) he stated:

"29. … I respectfully agree with the conclusions that he has reached for the reasons he has given. But I should like to add some comments of my own on the meaning that is to be given to the word 'conduct' in this context. For convenience I shall concentrate on the wording of section 65 bearing in mind that, for present purposes, the wording of the two sections is identical.

…

34 Common to the first condition about the place of the conduct, irrespective of the subsection under which it has to be satisfied, are two questions: (1) whether the person must be within the territory of the requesting state at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory. In many cases, of course, these will not be live issues as it will be plain that the conduct occurred exclusively in the territory of the requesting state. But many of the offences in the framework list such as trafficking in human beings are commonly committed across borders. The appellant is alleged to have engaged in conduct of that kind, so these questions must be addressed in his case.

35 The answers are to be found in the first place in the language which has been used by the legislature which Lord Bingham has analysed. The context in which that language has been used is, of course, provided by the common law. It is provided in particular by the rules which apply when jurisdiction is claimed on the basis of territoriality. It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there. That rule is matched by its corollary which is that, if the effects of those actions were intentionally felt here, criminal jurisdiction can be exercised in respect of their effect irrespective of where the actions took place that gave rise to them. Section 65(2) modifies these rules in the case of framework offences where the test of double criminality is dispensed with, as it requires that no part of the conduct took place in the United Kingdom. But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct."

17. In giving examples to illustrate the point, Lord Hope referred inter alia, at [36], to the speech of Lord Keith of Kinkel in DPP v Stonehouse [1978] AC 55, 93. Lord Keith based his decision in that case on the principle that an offence is committed within the jurisdiction if the effects of the act intentionally operate there or exist within it:

"This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it. In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act. But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there."

18. Having cited that and other authorities, Lord Hope concluded in Cando Armas:

"40. I would construe the word 'conduct' in sections 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. It would be immaterial to a request for extradition to Belgium, for example, that the actings which had a harmful effect were all in France or Germany. The situation would be different, of course, if some part of those actings occurred in the United Kingdom. But that is because of the qualification that section 65(2)(a) has introduced, which prevents cases where some of the conduct occurs in the United Kingdom from being treated as an extradition offence under that subsection. The fact that it was thought necessary to insert this qualification is consistent with the existence of a general rule of the kind that I have described."

19. The requesting authority's case, applying what Lord Hope said in Cando Armas, is that although Hosseini was situated in the United Kingdom and his actions took place there, he was directing and organising members of the people trafficking network in France and the effects of his actions were intentionally felt in France. His conduct therefore occurred in France as well as in the United Kingdom; and since there was conduct in France, section 64(3)(a) is satisfied.
20. The requesting authority contends next that section 64(3)(b) is satisfied because the conduct would constitute an offence under the law of the relevant part of the United Kingdom, namely England and Wales. Mr Caldwell's submission is that the subsection requires the court to presuppose that the relevant conduct took place in England, whether it did or not, and to consider whether, on that hypothesis, it would constitute an offence under national law.
21. The provision of national law relied on is section 25 of the Immigration Act 1971, as amended, which provides:

"25.(1) A person commits an offence if he –

(a) does an act which facilitates the commission of a breach of immigration law by an individual who is not a citizen of the European Union,

(b) knows or has reasonable cause for believing that the act facilitates the commission of a breach of immigration law by the individual, and

(c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union.

(2) In subsection (1) "immigration law" means a law which has effect in a member State and which controls, in respect of some or all persons who are not nationals of the State, entitlement to –

(a) enter the State,

(b) transit across the State, or

(c) be in the State.

…

(4) Subsection (1) applies to anything done –

(a) in the United Kingdom,

(b) outside the United Kingdom by an individual to whom subsection (5) applies, or

(c) outside the United Kingdom by a body incorporated under the law of a part of the United Kingdom.

(5) This subsection applies to –

(a) a British citizen,

(b) a British overseas territories citizen,

(c) a British National (Overseas),

(d) a British Overseas citizen,

(e) a person who is a British subject under the British Nationality Act 1981, and

(f) a British protected person within the meaning of that Act …."

22. Mr Caldwell submits that if one asks whether the conduct complained of in the warrant would constitute an offence in England if it occurred in England, section 25(1) shows that the answer is clearly "yes". The test of double criminality under section 64(3)(b) is therefore satisfied.
23. On the basis that the conditions in section 64(3)(a) and (b) are satisfied in the way described, and there being no issue about section 64(3)(c), the requesting authority's position is that the district judge was right to find that the offence specified in the warrant is an extradition offence.
24. For Hosseini, Mr Watson takes issue with that approach in a number of ways. He says that on any ordinary reading of section 64 the conduct would fall within subsection (4)(a) as conduct occurring outside the category 1 territory. But on that basis it would not constitute an extradition offence, since under subsection (4)(c) in corresponding circumstances equivalent conduct would not constitute an extraterritorial offence under the law of England and Wales: it would not fall within section 25 of the Immigration Act 1971 since the acts on this hypothesis would not have been done in the United Kingdom (see section 25(4)(a)) and none of the other provisions of section 25(4)-(5) applies to Hosseini.
25. Mr Watson submits that to avoid that consequence the French authority has sought to proceed under section 64(3), but that its case involves an unnatural and erroneous reading of the subsection and the effect of its approach would be to avoid the double criminality protection in that subsection. In particular, in relation to section 64(3)(a), it involves a misapplication of Cando Armas. The problem that arose in Cando Armas was how to categorise a situation where conduct straddled two jurisdictions, in that the appellant was at one point physically outside the category 1 territory and at another point physically within it. It was in those limited circumstances that the House of Lords held that the situation fell within section 64(3)(a), it being enough that some of the conduct complained of occurred while the appellant was in the category 1 territory. The case was not concerned with a situation where an appellant was at all times physically outside the category 1 territory.
26. Mr Watson acknowledges that the reasoning of Lord Hope in Cando Armas goes wider and, if followed, would be fatal to his case. But he submits that that reasoning did not reflect the approach of the majority, was obiter and should not be followed. It was directed to a situation that did not arise on the facts of the case and was not the subject of submissions; it does not make sense when applied to section 64(2); it was based on authorities relating to extraterritorial offences, whereas section 25 of the Immigration Act 1971 is not for relevant purposes extraterritorial; to apply the reasoning to the present situation would lead to the loss of the intended double criminality protection; and if section 64(3) has the extended scope that Lord Hope's reasoning would give it, there is little room for the application of section 64(4).
27. Mr Watson also takes issue with the requesting authority's approach to section 64(3)(b). He says that it is an unnatural reading of the provision to ask whether conduct which did in fact occur in England would have constituted an offence if it occurred in England. In his oral submissions he went further, advancing the proposition that section 64(3)(b) requires one to ask whether in corresponding circumstances the conduct, or equivalent conduct, would constitute an offence in the relevant part of the United Kingdom. Thus, in the present case the assumption to be made for the transposition exercise is that the appellant was physically outside the United Kingdom when he did the acts referred to in the warrant. On that basis the conduct would not constitute an offence in England and section 64(3)(b) would not be satisfied.
28. Well presented though Mr Watson's submissions were, I have come to the clear conclusion that the requesting authority's position is correct and that the conditions of section 64(3) are satisfied in this case.
29. I do not accept that the observations of Lord Hope in Cando Armas were obiter; but even if they were, they are of the highest persuasive authority and should in my view be followed. First, they addressed a situation that did arise on the facts of the case: whilst some of the conduct occurred while Cando Armas was physically present in Belgium, the warrant also alleged that he directed the organisation from London, and that latter aspect was plainly covered by Lord Hope's observations. Secondly, this was a carefully considered process of reasoning in support of Lord Hope's conclusions on the correct construction of the statutory provisions. Thirdly, the rest of their Lordships expressed agreement with him: Lord Bingham said at [17] that he agreed with the reasons given by Lord Hope, reserving his position only on a different point; Lord Scott of Foscote at [49] likewise expressed agreement with all of the reasons given by Lords Bingham and Hope; so, too, Baroness Hale and Lord Carswell at [60] and [61] expressed agreement with the reasons given by them both.
30. Fourthly, I see no reason to doubt the correctness of Lord Hope's observations, at least within limits that apply in the present case. Where, say, a gun is fired by an actor in territory A and the bullet hits its intended target in territory B, or a bomb is sent by an actor in territory A and explodes as intended in territory B, I think it perfectly sensible to attribute the events to conduct of the actor occurring in part in territory A and in part in territory B even though the actor was not physically present in territory B. This is not to say that whenever a person starts a chain of events, all subsequent intended events in the chain are necessarily to be regarded as conduct of that person. But the outer limits of the principle do not have to be addressed or resolved in the present case. Here, the allegations are, inter alia, that the appellant sent money orders from the United Kingdom to persons involved in the network in France. That seems to me to be a straightforward case closely akin to the gun and bomb examples. The transmission of the money orders can properly be regarded as conduct of the appellant occurring partly in France and partly in England, as much as if he had gone from England to France to deliver the money orders personally to the recipients.
31. For all those reasons I consider that the conduct alleged in the warrant did occur in part in France and that section 64(3)(a) is satisfied.
32. I do not think that section 64(3)(b) occasions any difficulty. It simply requires one to assume that the conduct alleged in the warrant occurred in the relevant part of the United Kingdom and to ask whether, on that hypothesis, it would constitute an offence under the law of that part of the United Kingdom. To deal with it as a hypothesis may strictly be unnecessary to the extent that the conduct alleged did in fact occur in the relevant part of the United Kingdom; but in my view it does not give rise to any conceptual or practical difficulty. I would reject Mr Watson's submission that the exercise of transposition requires one to ask whether in corresponding circumstances equivalent conduct would constitute an offence in the relevant part of the United Kingdom. Section 64(4), which deals with true extraterritoriality, contains that language, section 64(3) does not, and there can be no justification for importing the language of the former into the latter.
33. If one approaches section 64(3)(b) in accordance with its terms, it is plain that the condition is satisfied in the present case. The conduct alleged in the warrant, including the sending of the money orders, would constitute an offence under section 25 of the Immigration Act 1971 if it occurred in England. The requirement of double criminality is met.
34. Accordingly, I would hold on the first issue that the conduct alleged in the warrant constitutes an extradition offence pursuant to section 64(3) of the 2003 Act and that the district judge did not fall into error on this point.

Issue (2): Article 8

35. Under section 21 of the 2003 Act the final question the judge must decide at the extradition hearing is "whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998". It was contended for Hosseini before the district judge that his extradition would be incompatible with his rights to private and family life under article 8. That contention is renewed on this appeal.
36. I have referred already to the extent of the family life established by Hosseini in the United Kingdom since his arrival here with his wife in April 2003, and to his and his wife's mental health problems, which he relies on as an aspect of his private life under article 8. There is no dispute that article 8 is engaged. The issue is whether extradition would constitute an unjustified interference with Hosseini's article 8 rights. As to that, Mr Watson does not dispute that the extradition request is in pursuit of a legitimate aim, namely the prevention of crime and disorder. The thrust of his argument is that the interference would not be in accordance with the law and would not be a necessary or proportionate measure.
37. Mr Watson submits that an interference with article 8 rights is only in accordance with the law if that law is sufficiently clear, precise and accessible. Its quality must be such that an individual can regulate his or her conduct in accordance with the law and foresee the consequences of his or her actions: Malone v United Kingdom (1985) 13 EHRR 488. Where the interference is based on discretionary powers, there must be an adequate indication of the scope of the discretion.
38. On the face of it, extradition might be thought to be plainly in accordance with the law, in that the relevant law is contained in the 2003 Act, which constitutes a clear, precise and accessible code and the provisions of which will ex hypothesi have been satisfied if the order for extradition stands. Mr Watson seeks, however, to go back beyond the 2003 Act to the decision which led to the issue of the warrant triggering the extradition procedure, namely the decision to prosecute Hosseini in France and thus to issue the warrant in that country, and submits that that decision was not in accordance with the law as required by article 8. The argument is founded in turn on a set of "Guidelines for deciding which jurisdiction should prosecute" which were adopted by an EU body known as Eurojust. Mr Watson says that if there were no such guidelines, or if the guidelines were consistently applied, there would be no problem; but that the existence of guidelines which are intermittently applied, with arbitrary results, means that the requisite clarity and precision are lacking.
39. Eurojust was established by a Council Decision of 28 February 2002. It is composed of national members seconded by the member states: the United Kingdom member is a Crown prosecutor. Its objectives are in broad terms to improve co-ordination of investigations and prosecutions in the member states and to improve co-operation between, and to support, the competent authorities of the member states. Articles 6 and 7 of the Decision set out a list of tasks of Eurojust acting respectively though its national members and as a College. For example, by article 6(a) it may inter alia ask the competent authorities of the member states concerned to consider accepting that one of them may be in a better position to undertake an investigation or to prosecute specific acts.
40. The Eurojust guidelines were adopted in November 2003. They arose out of a seminar to discuss and debate the question of which jurisdiction should prosecute in cross-border cases where there is a possibility of a prosecution being launched in two or more different jurisdictions. The objective of the seminar was "to establish some guidance which would assist Eurojust when exercising its powers to ask one state to forgo prosecution in favour of another state which is better placed to do so". The document states that in the light of the discussion at the seminar "the Eurojust College offers the following guidance".
41. The guidelines include a section on "Making the Decision – Which Jurisdiction Should Prosecute?". They state that there should be a preliminary presumption that, if possible, a prosecution should take place in the jurisdiction where the majority of the criminality occurred or where the majority of the loss was sustained. When reaching a decision prosecutors should balance carefully and fairly all the factors both for and against commencing a prosecution in each jurisdiction where it is possible to do so. Factors that should be considered include the location of the accused.
42. The guidelines were published as annexes to Eurojust's annual reports for 2003 and 2004. There is evidence of their availability and use within the CPS. But they have no more than an advisory status, and there is no duty on the competent authorities of member states even to consider them. A report of the European Union Committee of the House of Lords on "Judicial Co-operation in the EU: the Role of Eurojust" (July 2004) referred to Eurojust as having "a pivotal role to play in facilitating decisions on where to prosecute cross-border offences" but considered it premature to give Eurojust power to take binding decisions (para 50).
43. The factual evidence as to Eurojust's role in the present case is given in a witness statement of Alison Riley, who records the information received by her from the United Kingdom member of Eurojust, Mr Michael Kennedy:

"Mr Kennedy advises as follows:

There was a meeting on 7th October 2005 which he attended. This dealt with negotiating and agreeing the co-ordination of the arrests which subsequently took place on 14th December 2005.

There was no discussion at Eurojust or involvement of Eurojust in deciding in which jurisdiction prosecutions should take place or with regards to which jurisdiction should issue European Arrest Warrants, either at the meeting on 7th October 2005 or subsequently.

More recently Eurojust has provided information on the progress of surrender proceedings which have followed the arrests."

44. Mr Watson submits that the Eurojust guidelines should have been taken into account in reaching the decision to prosecute Hosseini in France, but that there is nothing to show that they were taken into account at that stage. The position appears to have been merely that France got its act together before the authorities in the United Kingdom. He also complains more generally about a lack of certainty as to the application of the guidelines and as to the procedure adopted in relation to them. Defendants do not know about any communications between national authorities and there is no process by which they can make representations or even review the final decision of the prosecuting authorities in court. The current system is arbitrary. Such difficulties, it is said, have been recognised by the European Commission in its Green Paper on "Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings" (23 December 2005), where, for example, it is stated at page 3:

"… without a system for allocating cases to an appropriate jurisdiction while proceedings are ongoing, ne bis in idem can lead to accidental or even arbitrary results: by giving preference to whichever jurisdiction can first take a final decision, its effects amount to a 'first come first served' principle. The choice of jurisdiction is currently left to chance, and this seems to be the reason why the principle of ne bis in idem is still subject to several exceptions.

An adequate response to the problem of (positive) conflicts of jurisdiction would be to create a mechanism for allocating cases to an appropriate jurisdiction …."

45. This foray into the activities and guidelines of Eurojust and the problems of choice of jurisdiction in cross-border cases has a certain interest but is ultimately, in my judgment, of no assistance to Hosseini. There are several difficulties about the arguments advanced. First, there is in my view an illogicality in accepting, as Mr Watson did, that an untrammelled discretion as to whether to prosecute in France would not give rise to a problem, but contending that the existence of the guidelines causes the decision-making process not to be in accordance with the law: I do not see how the existence of the guidelines could make matters worse for the purposes of article 8.
46. Secondly, the content of the guidelines does not seem to me to add significantly to the factors that one would expect to be taken into account in any event in deciding whether to bring a prosecution in any individual jurisdiction in a cross-border case.
47. Thirdly, and most importantly, this focus on the decision to prosecute is in my view misconceived. It is not the decision to prosecute, but the extradition itself, that constitutes the interference with Hosseini's article 8 rights. It is his removal from the United Kingdom that would interfere with his family life and that would be liable to exacerbate his and his wife's mental health problems. The relevant question, therefore, is whether his extradition pursuant to the 2003 Act would be in accordance with the law; and, as I have already indicated, it plainly would be. The starting point under the 2003 Act is the issue of a European arrest warrant by a judicial authority in another member state. Consistently with the Council Framework Decision of 13 June 2002 which it implements, the 2003 Act recognises and gives effect to the issue of the warrant. One cannot go behind the warrant and question the methodology or correctness of the decision to prosecute which led to the issue of the warrant. None of the matters raised by Mr Watson can therefore arise for consideration under the clear terms of the statute which governs the extradition itself.
48. I would therefore reject Mr Watson's argument that the interference with Hosseini's rights would not be in accordance with the law. I should add that if the argument were correct, it would have serious implications for the general effectiveness of Part 1 of the 2003 Act pending the adoption of improved arrangements for determining the appropriate jurisdiction(s) in which to prosecute in cross-border cases.
49. The final strand in Mr Watson's case is that of necessity and proportionality. It must be considered in the light of a helpful summary of relevant principles by Laws LJ in R (Bermingham) v Director of the Serious Fraud Office [2006] EWHC 200 (Admin). After considering a number of House of Lords authorities, including Ullah [2004] 2 AC 323 and Razgar [2004] 2 AC 368, Laws LJ said this about the application of article 8 in an extradition case:

"… If a person's proposed extradition for a serious offence will separate him from his family, Article 8(1) is likely to be engaged on the ground that his family life will be interfered with. The question then will be whether the extradition is nevertheless justified pursuant to Article 8(2). Assuming compliance with all the relevant requirements of domestic law the issue is likely to be one of proportionality: is the interference with family life proportionate to the legitimate aim of the proposed extradition? Now, there is a strong public interest in 'honouring extradition treaties made with other states' (Ullah, paragraph 24). It rests in the value of international co-operation pursuant to formal agreed arrangements entered into between sovereign States for the promotion of the administration of criminal justice. Where a proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim."

50. Mr Watson submits, first, that Bermingham was a case under Part 2 of the 2003 Act and that the principles stated by Laws LJ do not apply in a case under Part 1. The treaty context in a Part 1 case is very different, namely a process of co-operation between prosecuting authorities in member states through the system of European arrest warrants and Eurojust. It is recognised in the Commission Decision establishing Eurojust and in the Eurojust guidelines that there may be cases where it is appropriate for the authorities of one member state to defer to those of another member state. The correct approach to article 8 in that context is not to apply the "exceptional circumstances" test expressed in Bermingham but to examine the issue of necessity and proportionality by reference to the Eurojust guidelines. The application of those guidelines should lead to a separate prosecution of Hosseini in the United Kingdom, having regard to the presence of Hosseini and his family in the United Kingdom at all material times, their mental health problems, and the fact that the United Kingdom was the "victim" of the alleged trafficking operation. The French authorities have not put forward anything to show that that course would give rise to disadvantages.
51. I am wholly unpersuaded by that line of argument. Essentially for reasons already covered, it seems to me that Mr Watson seeks to attribute to Eurojust and its guidelines a significance they do not have. It is true that there is an increasing degree of co-operation between the member states in relation to cross-border crime, but the extradition arrangements agreed between the member states are a key part of the process of co-operation between them, and at least as much weight should be attached to them as to extradition treaties with third countries. I see no reason for departing from the ordinary approach in extradition cases, as set out in Bermingham, namely that a wholly exceptional case would have to be shown to justify a finding that extradition would be disproportionate to its legitimate aim.
52. Mr Watson advances the alternative submission that the circumstances of this case are within that exceptional category, having regard to the personal considerations already mentioned, the fact that Hosseini could be tried in the United Kingdom without any obvious difficulty, and the fact that a trial in France without the support of his family would place him in a much worse position than if he were tried in the United Kingdom.
53. In my judgment the case falls well short of an exceptional case in which extradition would be disproportionate. Separation from the family is a normal feature in cases of this kind, and there is no particular feature of Hosseini's family life in the United Kingdom that carries exceptional weight. In relation to the mental health issues, including the risk of self-harm by his wife, a consistent line of cases establishes a very high threshold for successful reliance on article 8: those cases include Razgar (cited above) and, most recently, R (Tozlukaya) v Secretary of State for the Home Department [2006] EWCA Civ 379. On the face of it, the decision of the French authorities to mount a prosecution is perfectly reasonable, given the links with France that appear from the allegations set out in the warrant. Even in the absence of evidence establishing what disadvantages a separate prosecution of Hosseini in the United Kingdom might have, I am satisfied that extradition would not be disproportionate.
54. For those reasons I consider that the district judge's conclusion on this issue was correct in law.

Conclusion

55. It follows that Hosseini's appeal must be dismissed.
56. It is necessary to consider whether the same result must follow for the other two appellants, whose cases must be considered on the basis of the information given to us by Mr Watson since no separate documentation has been lodged in respect of either of them.
57. We are told that Omar Ahmad is a 32 year old Kurdish male with a history of persecution of himself and his family in Iraq. He arrived in the United Kingdom in September 2000, applied for asylum and was granted indefinite leave to remain. Besran Zada is a 19 year old Kurdish male of Iranian origin who was persecuted in Iran. He arrived in the United Kingdom in October 2003, applied for asylum and was granted five years' leave to remain in October 2005. The allegations in the European arrest warrants relating to Ahmad and Zada are very similar to those in Hosseini's warrant. In each case the warrant describes a series of telephone conversations through which they are said to have assisted the illegal trafficking operation. Like Hosseini, each of them is also described as a treasurer of the operation. Each was physically present in the United Kingdom at all material times.
58. I can see nothing in those circumstances that could place Ahmad or Zada in any better a legal position than Hosseini in the present appeals. Mr Watson has not sought to suggest otherwise. Accordingly, I take the view that their appeals, too, must be dismissed.

Mr Justice Toulson:


 


59. I agree.