QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NEWMAN
| CHRISTOPHER COLIN HUNT
|- and -
|THE COURT AT FIRST INSTANCE, ANTWERP, BELGIUM
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John Hardy (instructed by CPS Casework Directorate) for the Defendant
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Mr Justice NEWMAN :
(1) On 24th September 2002 Belgian police issued a report regarding "legally valid investigation acts", and
(2) On an unspecified date, an "order for arrest" was given in absentia against the appellant.
ISSUES ON THE APPEAL
(1) Whether the EAW contains the statement that the person in respect of whom it was issued is accused in Belgium of the commission of an offence specified in the warrant, as required by section 2(3) of the 2003 Act;
(2) Whether the EAW contains the information including any provision of Belgian law under which the conduct is alleged to constitute an offence, as required by section 2(4) of the 2003 Act; and
(3) Whether the extradition of the appellant is barred by reason of injustice and/or oppression arising from the passage of time since he is said to have committed the offences.
"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, sentencing following conviction or execution of a custodial sentence or detention order.…".
1. Arrest warrant or judicial decision having the same effect:
Nature: Order for arrest given in abstentia.
2. For an executable court order – not applicable."
Under the heading: "indications on the length of the sentence:
1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s): 5 years.
2. Length of the custodial sentence or detention order imposed – not applicable."
"(4) The information is-…
(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 …".
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."
"… [section 14] that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there …. we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction";
and the approach of the court in R v Secretary of State for the Home Department ex parte Patel  7 ALR 56, I am satisfied that, where there is no information or evidence as to how the court in the requesting state would approach an abuse of process argument, it is for this court to consider the risk of hardship or injustice which could arise.
"… the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return …".
In my judgment, the inaction of the authorities must be seen in the context of the appellant's co-operation by attending for interview and offering a further interview. Where there has been full co-operation and the requesting state has thereafter delayed for years, it can be inferred that the subject may be lulled into a sense of security. That I accept has happened in this instance.
LADY JUSTICE SMITH: The judgment in this matter is now handed down. For the reasons given in the judgment of Newman J, with which I agree, we have concluded that the appeal should be allowed. The European arrest warrant is quashed and there is a declaration that the appellant's extradition to Belgium in respect of the conduct and offences specified in the warrant is barred by section 14 of the Extradition Act 2003. Are there any consequential orders?
MR SMITH: I represent the appellant again. There is an application for the appellant's costs. He was privately funded in the High Court, there being no means testing in the Magistrates' Court. The lower court was funded by the Legal Services Commission. The relevant section is section 61 of the 2003 Act.
LADY JUSTICE SMITH: Where will we find that? I have not brought --
MR SMITH: I beg your pardon --
LADY JUSTICE SMITH: The Act with me.
MR SMITH: I am grateful to my learned friend. May I hand it up?
LADY JUSTICE SMITH: Thank you very much. (Handed). As a matter of fact I think probably we have part of the Act in the papers in the case of Boudhiba. Thank you. Section 6?
MR SMITH: 61, my Lady. An order has been made by the High Court for the discharge of the appellant and therefore section 61(5) is engaged, which gives this court power to make an order for payment in the appropriate amount. Unless is the court is satisfied that there are good reasons why the full amount should not be paid -- that is section 61(7) -- the appropriate amount is either specified in the order or determined in accordance with regulations made by the Lord Chancellor -- that is 61(8).
There are no regulations at the moment in existence made by the Lord Chancellor, so, my Lady, my understanding of the situation is that section 61(8)(a) is engaged and the amount must be specified in the order.
I have a schedule of costs. My learned friend for respondent has seen it. I only have one copy. I shall hand that up now. (Handed). The front sheet is the total costs and thereafter it is broken down into individual pieces.
LADY JUSTICE SMITH: The total is, inclusive of VAT, £4,899.96.
MR SMITH: Yes, my Lady.
LADY JUSTICE SMITH: Yes. Miss Mannion.
MISS MANNION: I understand, my Lady, that the costs are from central funds if ordered, so I have no observations to make.
LADY JUSTICE SMITH: You have no observations as to the --
MISS MANNION: As to the amount.
LADY JUSTICE SMITH: -- as to the quantum. I must say, at first glance, it looks reasonable. (Pause). Thank you very much. We do make an order under section 61(5) in favour of the person whose discharge has been ordered, and we are satisfied, on looking at this schedule, that this sum is reasonable and we specify the amount pursuant to subsection (6) in the sum of £4,899.96.
MR SMITH: I am very much obliged.
LADY JUSTICE SMITH: Anything else?
MR SMITH: No.
LADY JUSTICE SMITH: Good. Thank you all very much. Perhaps that ought to remain on the file.
MR SMITH: There is a copy with those instructing me.
LADY JUSTICE SMITH: I will put that with my papers and return a well thumbed Extradition Act to Miss Ezekiel.