QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NEWMAN
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|CENTRAL EXAMINING COURT NO 5 OF THE NATIONAL COURT OF JUSTICE MADRID SPAIN
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Edmund Lawson QC and Adina Ezekiel (instructed by CPS) for the Defendant
Crown Copyright ©
Lady Justice Smith :
Also attached to that warrant was the list of Framework offences. Three offences were ticked. These were participation in a criminal organisation, terrorism and forgery of administrative documents and trafficking therein.
(1) Hedi Ben Youssef Boudhiba, Ahmed Taleb, Said Bahaji, Abderazzak Mahdjoub, Fard Mahdjoub, Samir Mahdjoub and Francisco Garcia Gomez (between) 1st day of January 2000 and 31st July 2004 conspired together and with persons unknown to receive money or other property to be used for terrorist purposes.
(2) (The same people between the same dates) conspired together and with persons unknown to provide money or other property to be used for terrorist purposes.
(3) Between 1st April 2001 and 31st July 2004 belonged to a proscribed organisation namely Al-Qa'ida.
(4) Between 1st September 2001 and 31st September 2001 used a false instrument, namely a document purporting to be a genuine passport in the name of Ammar Moula which was and which he knew to be false with the intention of inducing another to accept it as genuine and by reason of so accepting to allow him to travel from Spain using the passport.
The First Ground
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) 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) or
(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.
"It is not always easy for an English court to decide when, in a civil law jurisdiction, a suspect becomes an accused person. All one can say with confidence is that a purposive interpretation of 'accused' ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an accused person is satisfied."
A little later at 327E, he continued:
"I for my part am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution."
The Second Ground
The Third Ground
"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."
"The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex
(d) the nature and legal classification of the offence, particularly in respect of Article 2 [the Framework list provisions]."
It seems to me that the words used in Article 8 suggest that what is required is not the text of the provision of the Spanish Criminal Code but simply an identification of the nature of the offence (eg participation in a criminal organisation) and the legal classification of the offence (eg Article 576 Spanish Criminal Code). The fact that that is all that is required by Article 8 is not conclusive of the question as to what is required by section 2(4)(c) but it may be an indication. Only if the words of section 2(4)(c) go clearly beyond what is required by Article 8 will there be a greater requirement.
"The definitions of what constitute an extradition offence for the purposes of Part 1 are based on the principle, recognised in international law, that states claim criminal jurisdiction over conduct which takes place within their territory. The judge need not concern himself with the criminal law of the requesting state when it is addressing the question whether the offence specified in the Part 1 warrant is an extradition offence."
Mr Lawson submitted that in Evans, the House was considering a different question under different legislation from that which arises under this third ground of appeal.
The Fourth Ground
The Fifth Ground
"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 greater punishment."
I should mention at this stage that neither party sought to argue before us that the district judge ought to have considered each alleged offence separately. It is not clear that she did so. I am satisfied that this should be done.
"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 detection for a term of 12 months or a greater punishment (however it is described in that law)."
The Seventh Ground
The Eighth Ground
The Ninth Ground
The Tenth Ground
Mr Justice Newman: I agree.
LADY JUSTICE SMITH: We now formally hand down the judgment in this case, the effect of which is that the appeal is dismissed. Are there any consequential orders?
MISS EZEKIEL: No, my Lady.
MR SMITH: There are two matters so far as the appellant is concerned. There will, in due course, be a written application for leave to appeal to the House of Lords and certification. I have spoken to those who represent Mr Boudhiba. They are content for that application to be judged on the basis of the papers rather than any necessity for an oral hearing.
LADY JUSTICE SMITH: I must warn you that I will not be in the building for the next two weeks after Friday.
MR SMITH: I will make sure that is passed on. The second matter --
LADY JUSTICE SMITH: I want that to be plain, because you may run into time difficulties.
MR SMITH: I appreciate that. The second matter is an application for legal aid assessment.
LADY JUSTICE SMITH: No objection to that. You may have that.
MR SMITH: Very much obliged.