England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		23rd February 2006

Thursday, 23rd February 2006

1. LORD JUSTICE RICHARDS: This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Workman at Bow Street's Magistrates' Court on 23rd December 2005 ordering the appellant's extradition under section 21 of the 2003 Act.
2. The extradition was requested by the Government of Germany. Germany has been designated a category 1 territory for the purposes of section 1 of the 2003 Act. Part 1 of the 2003 Act therefore applies to it.
3. The background to part 1 is discussed at length in the judgment of the House of Lords in Office of the King's Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079. The legislation gives effect to (though is not a simple transposition of) the framework decision on the European arrest warrant which was adopted by the Council of the European Union in June 2002. As recorded in the fifth recital to the framework decision, the objective was to abolish the former system of extradition between member states and to replace it with a simplified system of surrender of sentenced or suspected persons which made it possible to remove the complexity and potential for delay inherent in the previous extradition procedures.
4. In the present case a European arrest warrant was issued by the Director of Public Prosecutions at Weiden in Upper Palatinate, Germany, on 10th May 2005. It has been duly certified as a part 1 warrant. Pursuant to it the appellant was arrested under section 3 of the 2003 Act on 23rd November. He appeared at Bow Street Magistrates' Court the following day when technical deficiencies in the certificate were corrected, his identity was accepted, and the matter was set down for an extradition hearing on 8th December. On that date the district judge heard argument and the matter was reserved for judgment which was handed down on 23rd December.
5. A number of issues were canvassed before the district judge, but only one is pursued on appeal. It is whether the warrant contains the information that the statute requires it to contain. Section 2(2) of the 2003 Act provides that a part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory, and which contains, so far as material, the statement referred to in subsection (3) and the information referred to in subsection (4).
6. The statement referred to in subsection (3) is one that the person is accused in the category 1 territory of the commission of an offence specified in the warrant and the warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of his being prosecuted for the offence.
7. Subsection (4), concerning the information required, is in these terms:

"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."

8. That provision gives effect, in part, to Article 8 of the framework decision. As noted by Lord Hope in Cando Armas at paragraph 26, there are some differences between section 2 and Article 8, but nothing turns on those differences for present purposes.
9. Article 8 of the framework decision provides that a European arrest warrant shall contain certain information set out in accordance with the form contained in the annex to the framework decision. The mandatory information includes, by Article 8(1)(d): "the nature and legal classification of the offence, particularly in respect of Article 2." By (e): "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." The form annexed requires a statement of the "nature and legal classification of the offence(s) and the applicable statutory provision/code."
10. Article 8(1)(d) refers to Article 2 which defines the offences in respect of which a European Union arrest warrant may be issued. Article 2(2) provides:

"The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 3 years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

...

- illicit trafficking in narcotic drugs and psychotropic substances..."

The offences in the list, one item of which I have included, are sometimes labelled "framework list offences".

11. The importance of compliance with section 2 of the 2003 Act is underlined by observations of Lord Hope in Cando Armas at paragraph 28 that:

"If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it."

The appellant's case is that the warrant here does not conform to the requirements of section 2.

12. The form used for the warrant follows that contained in the annex to the framework decision. The material section in the form is section (e), headed "Offences". It is in these terms (with standard text italicised):

"This warrant relates to in total: 1 offences.

Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person:

The accused commissioned at the end of June 2003 Manfred Naumann to collect from his cousin Edwin Gordon in Trinidad a bottle with 422,12 grams cocaine to smuggle it to Germany where the accused intended to sell it with profit. Manfred Naumann was arrested on July 9, 2003 at the airport of Tobago/Trinidad and the cocaine was seized.

Nature and legal classification of the offence(s) and the applicable statutory provision/code:

Jointly attempted impermissible import of narcotic drugs in substantial quantity in coincidence with impermissible trafficking of narcotic drugs in substantial quantity."

13. There follows a list of the framework list offences. There is a tick in the box next to "illicit trafficking in narcotic drugs and psychotropic substances". Section (c) of the form states that the maximum length of sentence that may be imposed for the offence is 15 years.
14. Mr Smith, in his succinct and properly focused submissions on the appellant's behalf, puts forward the case that there are two respects in which the warrant fails to give the information required by section 2(4)(c). First, there is no information as to the German legal provisions which the appellant's conduct is said to have violated. Secondly, there is no information as to the appellant's whereabouts when the alleged conduct took place.
15. It is submitted that these failures are all the more significant in the case of framework list offences under Article 2, in relation to which a part 1 warrant contains no other information or particulars as to German law. Since the warrant fails to specify the information required by the statute it is submitted that it was not a valid part 1 warrant and the district judge had no jurisdiction to order the appellant's extradition under part 1.
16. Before moving on to consider those specific submissions, I should say by way of preface that our attention has been drawn to various observations as to the general approach that the court should adopt to the construction of a statute of this kind. Mr McCoubrey has referred to what was said by Lord Steyn in In re Ismail [1999] 1 AC 320 at 327:

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

17. He has also referred to what was said by Lord Hope in Cando Armas at paragraph 44:

"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 warrant is to qualify as a Part 1 warrant... 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."

18. For his part, Mr Smith has drawn our attention to a decision of the Divisional Court in Pinto v The Governor of HM Prison Brixton and Anr [2004] EWHC 2986 Admin, in which the court quashed an extradition order for failure to make clear that the person concerned was unlawfully at large; information which was required by a different provision of section 2.
19. Tuckey LJ said at paragraph 11:

"I agree that it is not necessary for the warrant slavishly to follow the language of the statute, but it must in some way make it clear that the person concerned is at large and unlawfully so."

20. In paragraph 15 he said that, lest it be thought that his approach was over-technical, he would draw attention to observations of Lord Hope in R(Guisto) v Governor of Brixton Prison [2003] UKHL 19 at paragraph 41 concerning the need for vigilance by the courts to ensure that the extradition procedures are strictly observed.
21. Like Tuckey LJ in Pinto, I do not think it necessary for a warrant slavishly to follow the language of the statute, but in my view it must contain the substance of the information required by the statute. If it fails to do that it is not a valid part 1 warrant. One must approach with a degree of caution the suggestion that a broad and generous construction is to be adopted in a case where one is concerned with a set of very specific provisions laying down, in clear terms, the matters that have to be included in a warrant.
22. I turn to consider the first of the points raised by Mr Smith on the appellant's behalf, namely the alleged lack of particulars of "any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
23. The district judge was satisfied that the statement in the warrant as to the legal classification of the offence, and the identification of it as a framework list offence, provided sufficient definition of the offence to comply with the requirements of section 2(4)(c). Mr Smith submits that the district judge's approach was wrong and inadequate; section 2(4)(c) and the form referred to in Article 8 of the framework decision require the applicable provision or provisions of German law to be set out.
24. Mr Smith relies on a recent decision of the Divisional Court in Hunt v The Court At First Instance, Antwerp, Belgium [2006] EWHC 165 Admin, in which extradition to Belgium was sought under a European arrest warrant. The warrant did not refer to the provision of Belgian law which rendered the conduct an offence under Belgian law. This was held to be fatal to the validity of the warrant. Newman J, with whom Smith LJ agreed, stated at paragraph 18:

"The EAW contains the list of 'Framework Offences' following the categories of conduct set out in the proforma. The EAW refers to the circumstances as 'the money... originated out the cigarette smuggling' and identifies with a mark X that the conduct amounts to 'money laundering and the proceeds of crime', but the EAW does not refer to the provision of Belgian law ('statutory provision/code') which renders the conduct an offence under Belgian law. In the usual course, whilst the 2003 Act should not be taken as requiring the text of the law to be recited, section 2(4)(c) of the 2003 Act requires the provision to be identified so that it can be seen that the alleged conduct constitutes an offence under Belgian law. Having considered the warrant, in my judgment, no part of it can be taken as having identified the provision of Belgian law in the manner required under the 2003 Act. As Lord Hope observed... in Cando Armas 'there is no way back for the judicial authority of a category 1 territory...' It follows that since I am satisfied that this warrant does not conform to the requirements set out in section 2 of the 2003 Act, it is not a Part 1 warrant under the 2003 Act and in my judgment the warrant must be quashed."

Mr Smith submits that this court should follow the approach in Hunt which is decisive in his favour.

25. Mr McCoubrey acknowledges that Hunt represents an obstacle to the respondent on this appeal. He submits that notwithstanding that decision the warrant in this case was tolerably clear and should be held to be sufficient. In line with what was said by Lord Steyn in Ismail, section 2(4)(c) should be given a broad construction, and if given such a construction the relevant words are capable of being satisfied by the description of the offence that was given in the warrant in this case.
26. Mr McCoubrey further submits that there is a slight difference between this case and Hunt in that it does not appear that there was any description of the offence at all in Hunt, though the point so advanced is weakened by the fact that it is not possible to discern from the judgment the full details of the warrant in that case.
27. Mr McCoubrey submits that the information in the warrant was sufficient both for the purposes of section 2(4)(c) and to meet the requirements of Article 8(1)(d) of the framework decision to which the statutory provision gives effect.
28. For my part I can see no answer to the appellant's case on this point. There is a clear requirement in section 2(4)(c) (reflecting, in this respect, the wording of Article 8, and in particular the wording of the form of warrant annexed to the framework decision and referred to in Article 8) to give particulars of any provision of German law under which the conduct is alleged to constitute an offence. To my mind it is plain that no such particulars were given.
29. I would follow Hunt in holding that this was a failure to conform to the requirements of section 2. As I have said, we do not know the precise details of the warrant in Hunt, but in my view there is no material distinction between Hunt and the present case, even if the warrant in Hunt did contain even less information than the warrant in the present case.
30. Accordingly, I would allow the appeal on this first point which must lead to the quashing of the warrant. In those circumstances it is unnecessary to consider the second point raised by Mr Smith concerning the absence of information about the place at which the appellant is alleged to have committed the offence. The warrant does not in terms specify the relevant place.
31. In his skeleton argument Mr McCoubrey advanced ingenious submissions by reference to the definition of "extradition offence" in section 64, to the effect that any omission was immaterial because there was sufficient information in the warrant to show that this was an extradition offence. We have not heard full argument on the subject, and it would be wrong to express any final view on it, but it is fair to indicate that so far as I was able to assess the strength of the relevant arguments by reference to the written submissions received, there seemed to me to be substantial force in the appeal on this point too.
32. However, the basis of my decision is the appellant's success on the first point. I would allow the appeal and pursuant to section 27(5) of the 2003 Act I would order the appellant's discharge and quash the order for his extradition.
33. MR JUSTICE DAVID CLARKE: I agree.
34. LORD JUSTICE RICHARDS: Mr Smith, that is the right order, is it?
35. MR SMITH: I believe it is, yes. Section 27(5), my Lord, yes.
36. LORD JUSTICE RICHARDS: It follows, by virtue of the statutory provisions, that there seems to be no discretion in the matter in any event. The court is required to adopt that course having allowed the appeal.
37. MR SMITH: My Lord, yes, allowing the appeal under section 27(1) and 27(3) and then go on to order his discharge and quash the order.
38. LORD JUSTICE RICHARDS: Yes.
39. MR SMITH: My Lord, I do not know if it is necessary, but if it is may I make an application for Legal Aid assessment?
40. LORD JUSTICE RICHARDS: You may certainly have detailed assessment for Legal Aid purposes. Is that all that is required?
41. MR SMITH: I believe so.
42. LORD JUSTICE RICHARDS: Thank you both very much.