QUEEN'S BENCH DIVISION
On appeal from Bow Street Magistrates' Court
(Senior District Judge Workman)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLLAND
| GERSINE NAZARET RAOUL VEY
(aka GERSINE NAZARET RAOUL TIM)
(aka GERSINE NAZARET RAOUL FITZPATRICK)
|- and -
|THE OFFICE OF THE PUBLIC PROSECUTOR OF THE COUNTY COURT OF MONTLUÇON, FRANCE (A CATEGORY 1 TERRITORY)
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Mark Summers (instructed by The CPS) for the Respondent
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Lord Justice Moses :
Chronology and facts
"with a view of penal proceedings or the execution of a sentence or security measure privative of freedom ("sureté privative de liberté").
By that time it appears that the judicial authority had discovered the appellant's address; it was stated on the face of the warrant. But the warrant gave no further information, save as to the maximum sentence, other than saying that the decision on which the European warrant for arrest was grounded was the warrant for arrest issued by the examining magistrate on 12 May 2004.
"accused of a crime. She has not been tried or sentenced for these facts. The purpose of this warrant is to take proceedings against her."
"Description of the circumstances under which the offence(s) have been committed, including the time (date and time), the place as well as the level of participation of the wanted person in the offences."
The description described the attack on Mourens, his death and questioning of the appellant's son on 22 May. It recorded that:-
"He finally acknowledged the facts. He explained he had swindled his friend, Jacques Mourens, by using his bank card. On May 18 2001, the victim had him establish an acknowledgment of a debt (sic). On the very night, by 6pm, he went upstairs to see his friend and, following an argument, he felt threatened. He then took a hammer and hit several times on Jacques Mourens head, and then fled.
On September 14 2001, during the examination, he went back on his statement and accused his stepfather, Norman Tim, (at the time of the facts, Norman Tim was the husband of Mrs Tim Gersine née Vey and is not Marvin Vey's father), of having hit with a hammer, but the checking of the police of Montluçon allowed to ignore this track.
On June 18 2003, at the hearing of the Juvenile Court of Moulins, Marvin Vey went back again on his declarations and, this time, accused his mother, Gersine Tim, of being the author of the knocks received by the victim.
The Court ordered additional information and postponed the judgment of the case.
The rogatory committee left to Mrs Hernandez, judge of the Juvenile court at the Regional Department of Judicial police in Clermont-Ferrand did not allow to find Gersine Tim, but to conclude after inquiry she had probably left the national territory with her family early 2003. Indeed the hearing of her elder daughter, Marcia Vey, revealed that she had been contacted by telephone by her mother in January 2003, who had confirmed her intention of leaving France, yet in a quite clandestine way, since she had warned no social or administrative institution about her leave.
Since, the attempts of the officers to find her remained vain."
The decision of the Senior District Judge
"i In relation to the legal process that is underway in France in respect of this defendant following the issuance of an arrest warrant by the examining magistrate, may that process properly be classified as part of the trial process in the sense that it may now only be brought to a conclusion by means of a judicial finding of (a) guilt, (b) innocence or (c) insufficiency of evidence?
ii If the answer to (i) is no, why not?
iii At this stage in the proceedings is Mrs Vey Accused or merely suspected?
iv In the eurowarrant it is said that in the proceedings against Martin Vey "the court ordered additional information and postponed the judgment of the case". Is the "additional information" the investigation against Mrs Tim Gersine nee Vey, and if not what is the additional information?
v Does judgment or verdict in the proceeding against Martin Vey remain postponed? If not what is the present status of the proceedings?"
"An act of formal proceedings (poursuite)."
"If the examining magistrate considers that the facts against the persons placed under judicial examination (mise en examen) constitute an offence classified as a crime under the law, he orders their indictment (mise en accusation) before the court."
The answer continues:-
"Consequently at the end of the judicial examination and investigation currently underway if the examining magistrate considers that there is sufficient material demonstrating that Mme Vey has committed the murder of Jacques Mourens he will order her indictment…"
"Mme Vey's status is considered to be that of neither suspect nor accused. The word "suspect" is not a legal term under French law but could correspond to a person under investigation (mise en cause) by the police during the investigations by the judicial police and therefore prior to the opening of the judicial examination and investigation (information judiciaire).
If there is sufficient information the person placed under judicial examination (mise en examen) is indicted (mise en accusation) at the end of the judicial examination and investigation (instruction).
The status of Mme Vey is between these two concepts. She is a person placed under judicial examination (mise en examen), since the examining magistrate's arrest warrant is the equivalent of placing a person placed under judicial examination (mise en examen).
Her being put under judicial examination (mise en examen) is as a result of the fact that there exists serious or corroborating material rendering it likely that she could have participated, whether as author or accomplice, in the commission of the murder in respect of which the examining magistrate is seized (articles 80-1 and 122 of the Code of Criminal Procedure).
The status of Mme Vey as a person placed under judicial examination (mis [sic] en examen) means that only the examining magistrate may conduct her interview and her presence is necessary for certain acts during the judicial examination and investigation (instruction).
During the judicial examination and investigation (instruction), Mme Vey, as a person under judicial examination (mise en examen), or her lawyer, may request the examining magistrate to interview her, question a witness, carry out a confrontation or visit the scene (article 82-1 of the Code of Criminal Procedure)."
"either a finding of "no case to answer" or the sending Mme Vey to the Cour d'Assises for trial."
The relevant statutory provisions
"(2)(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 –
(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."
(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies –
(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
(b) it purports to be authenticated by the oath or affirmation of a witness.
(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act."
Particulars pursuant to Section 2(4)
"the author of the knocks received by the victim."
The requirements of Section 2(3)
"accused of a crime".
The presence of such a statement should be conclusive (see the provisional view of Lord Scott at paragraph 58 of Cando Armas at page 1100). But in answer to question 3, the Public Prosecutor states that:-
"Madam Vey's status is considered to be that of neither suspect nor accused."
The question then arises whether, as Lord Scott puts it, her status can unequivocally be implied from the warrant and the answers which were provided pursuant to Section 202.
"The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
"d'une personne recherché pour l'exercice de poursuites pénales…".
"unless they are placed under judicial examination according to the provisions of Article 116."
"may proceed with the placement under judicial examination only after having previously heard the observations of the person or having given him the opportunity to be heard, when accompanied by his advocate, either in the manner provided by Article 116 on questioning at first appearance or as an assisted witness…".
The arrest warrant of 12 May 2004 referred to Article 131 which empowers an investigating judge, after hearing the opinion of the District Prosecutor, to issue an arrest warrant.
"If the person cannot be arrested, an official report of the fruitless search is sent to the judge who issued the warrant. The person concerned is then considered to be placed under judicial examination for the purposes of Article 176."
Article 176 refers to the closing stages of the judicial examination when the investigating judge considers whether to charge a person under judicial examination with an offence.
Mr. Justice Holland: