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, WC2A 2LL
		03/07/2007

The Honourable Mr Justice Treacy:

1. This is an Appeal by Edwin Osunta under Section 26 of the Extradition Act 2003 against an order made for his extradition by District Judge Nicholas Evans on 16 May 2007. On 21 December 2006 a European Arrest Warrant was issued in Dusseldorf Germany. The warrant requests the return of the Applicant to Germany to stand trial for two offences of drug trafficking. The Appellant was arrested in this country on 2 April 2007. He has nationality of both Nigeria and Germany. Germany is a designated territory for the purposes of Part 1 of the 2003 Act.
2. The first Ground of Appeal related to an alleged offence said to have been committed in March 2004. At the hearing, Mr Martin Huseyin expressly abandoned this Ground, acknowledging that there was no merit in it. Accordingly we dismiss the Appeal on this Ground in relation to this offence and the District Judge's order therefore remains in force.
3. The second Ground relates to the second alleged offence said to have been committed on 14 February 2004. The assertion is that the District Judge wrongly excised United Kingdom conduct from the warrant and consequently was in error in holding that the conduct constituted an extradition offence pursuant to section 64(5) of the 2003 Act. The Respondents submit that the District Judge was permitted in law to excise UK conduct from the warrant in order that the conduct should constitute an extradition offence.
4. In respect of this second offence, the Appellant's extradition was ordered in respect of only some of the conduct alleged. The full description of the conduct relating to this offence is set out in the warrant as follows:

"On February 14 2004, the accused person together with the witness Kalinowski, who has been convicted separately, brought 2,260 grams of cocaine with a cleanness of 100% from Abuger (sic) Nigeria [to London Heathrow] for the purpose of reselling it profitably in Europe. For that purpose, before the departure in the morning of February 14 2004, he forced the witness Kalinowski in a Hotel in Abuger, Nigeria to put on a belt with the drugs threatening her she would not leave the country alive otherwise and in this way made her carry the drugs to the plane. On the way to the airport and during the flight the accused kept close to the witness. [The scheduled handover of the drugs in a toilet in Heathrow did not take place since the witness was detected by a British customs dog when she left the plane and was arrested by the British authorities]."

5. It is apparent from the face of the warrant that this conduct was committed outside Germany and has no factual connection with that country. The basis upon which the German Judicial Authority claims jurisdiction is that the Appellant has German nationality.
6. It was common ground here and below that the only possible provision applicable to this offence for the purpose of deciding whether the offence is an extradition offence is section 64(5) of the Extradition Act 2003. In order to conform to the requirements of section 64(5) the District Judge limited the conduct alleging the offence to that which took place in Nigeria and on the airplane, and excised from the warrant reference to any conduct which took place in the United Kingdom. The words which I have put in square brackets in reciting the description of the conduct set out in the warrant, (see paragraph 4 above), are the words which the District Judge excised.
7. The Judge accepted that the non UK conduct would have constituted the following offences in this jurisdiction if committed here.

i) An offence of making threats to kill, contrary to section 16 of the Offences Against the Persons Act 1861;

ii) An offence of possession of a controlled drug (namely cocaine) with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971;

iii) An offence of evasion of the prohibition on the exportation of controlled drugs, contrary to section 170 of the Customs and Excise Management Act 1979.

8. The Judge also created a document entitled 'Supplemental Order' in which he clarified the process of excision which he had undertaken, deleting references to conduct which had taken place in the United Kingdom, and he identified the three specific offences I have just referred to, stating that the basis upon which extradition was ordered was represented by those three charges. He created another document entitled 'Charges' which again set out the three charges as they would be framed in English law.
9. He set out his brief reasoning. He adopted the reasoning of Lord Hope at paragraph 51 of Dabas v High Court of Justice, Madrid [2007] 2WLR 254. He concluded that although in Dabas the House of Lords approved excision so as to limit a period of time, it was similarly acceptable to limit a geographical area. He observed that the excision exercise did not affect the substance of the offence alleged against Mr Osunta. The reality of the case was that if he were concerned in the exportation he would also be concerned in the importation into the UK. Whichever charge he faced, if proved, would result in the same penalty. He concluded that there was no injustice caused to the Appellant by this course and found that, having excised the UK related conduct, the remaining conduct amounted to an extradition offence.
10. Section 64(5) of the 2003 Act is in the following terms:

"(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;

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

(c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law)."

11. The key words in this case appear at the end of subsection (a) "and no part of it occurs in the United Kingdom". Mr Huseyin argues that the conditions of section 64(5) cannot be satisfied because part of the conduct referred to in the warrant occurred in the United Kingdom. He submitted that the process of excision carried out by the District Judge should not be permitted. The excision which was countenanced in the case of Dabas was one which related to time rather than geography. What was being sanctioned was a process of excision to affirm or define the limits of dual criminality which had been established. Here it was said that the purpose of the excision exercise was to confer a jurisdiction which would not otherwise exist.
12. He further submits that the phrase at the end of section 64(5)(a) should operate as a bar to classification as an extradition offence, if any part of the conduct occurred in the United Kingdom. He referred to Ex parte Pinochet Ugarte [2000] 1 AC 147. This well known case again involved temporal excision. That is excision of material relating to a period before the crimes alleged became criminal offences in this country. He also referred to Hilali v Governor HMP Whitemoor [2007] EWHC 939. In that case the court was prepared to excise references to material which was plainly inadmissible under Spanish Law. The Court observed that those matters were superfluous recitals of evidence which were unnecessary to the warrant. Neither of those cases gave consideration to the issues before this Court. Mr Huseyin submitted that these cases were of a different nature to the current case and so did not add weight to the Respondent's case.
13. Mr Huseyin relied on the decision of the House of Lords in Cando Armas [2006] 2 AC 1. That case involved an illegal immigration racket impacting on Belgium but which had been directed from London. The Belgian Judicial Authority was seeking extradition. The relevant section of the Act was section 65 which deals with persons who have been sentenced as opposed to section 64 which deals with those who have not been convicted It is common ground that the provisions of section 64 and section 65 mirror one another as far as is material to this appeal.
14. In Cando Armas the House of Lords was concerned in part with section 65(2)(a) whose wording contains the same phrase as that with which we are concerned, "and no part of it occurs in the UK". It is clear from the statute itself and from paragraph 11 of Cando Armas (per Lord Bingham) that the phrase is to be given the same meaning irrespective of which subsection of the Act it appears in. Counsel relied strongly on paragraphs 16 (Lord Bingham) and 40 (Lord Hope) as clear and unambiguous authority for the fact that, since some of the conduct complained of or relied on in the warrant, occurred in the United Kingdom, the condition was not satisfied and the subsection was inapplicable. In that case the House of Lords had differed from the decision of the Divisional Court reported at (2005) 1 WLR 1389 and preferred the view of the District Judge who had held that section 65(2) of the Act did not apply because some of the Appellant's conduct was said to have occurred in the United Kingdom. This point initially appeared to me to be a very strong one in favour of the Appellant's case. It appeared to represent a clear finding of the highest authority consistent with the Appellant's argument.
15. Mr Huseyin also drew our attention to the fact that the Extradition Act is based upon, and to be interpreted in the context of, the European Council Framework Decision, albeit that its provisions are not couched in identical terms. He drew our attention to Article 4(7)(a) and (b). The relevant terms of Article 4 provide:

"Article 4

Grounds for optional non-execution of the European arrest warrant ….

7. where the European arrest warrant relates to offences which:

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or

(b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory."

16. These provisions, he said, left it open to national authorities to exclude certain types of conduct as extradition offences. He submits that reference to Article 4(7)(a) in particular demonstrates an area in which national legislatures were enabled to opt out of the execution of European Arrest Warrants. He submits that this is what has happened in the enactment of section 64(5)(a).
17. Finally, he argued that if it was permitted to excise UK based conduct from a warrant when considering section 64(5), this would be an illegitimate avoidance of the requirement of the safeguard of extraterritoriality which is part of section 64(4).
18. As to this last point, I do not find it an argument of substance. Section 64 sets out in its subsections a variety of ways in which conduct may be designated an extraditable offence. As is apparent, each subsection deals with different situations. There may be overlap between some of them but if any one of the sets of conditions is satisfied then an extradition offence is constituted. The attempt to construe section 64(5) by reference to separate conditions in a different subsection was to my mind unhelpful and erroneous.
19. Miss Cumberland for the Respondent dealt with the point advanced in relation to Cando Armas. She pointed that no excision exercise had been carried out by the Divisional Court in Cando Armas. Indeed one could not have taken place because section 65 was a sentencing case where the court of the requesting state had already determined the offences. What the Divisional Court had done in Cando Armas was in effect to ignore the allegations in so far as they related to conduct taking place in the United Kingdom and to concentrate on the conduct alleged to have taken place outside the United Kingdom.
20. Accordingly, the Court held that the conduct described as a whole in the warrant was capable of constituting an extradition offence, notwithstanding that some of the conduct had taken place within the United Kingdom. The Court remitted the case to the Magistrates' Court having quashed the Order of Discharge. What the Court did not do, therefore, was to carry out any excision exercise. What it did was to remit the warrant holding that, in its present form, it was capable of constituting an extradition offence notwithstanding the fact that some of the material in the warrant related to UK based conduct. It follows that when the House of Lords came to consider the point, it was not dealing with a warrant from which conduct had been excised, it was dealing with a warrant which contained a recitation of conduct which, on its face, referred to UK based conduct. The conclusion that since some of the conduct complained of or relied on in the warrant occurred in the United Kingdom, the case failed to satisfy the condition in subsection 2(a) of section 65 is unsurprising in those circumstances. Indeed neither experienced counsel had argued any differently in their submissions to the House of Lords. The situation being considered by their Lordships in Cando Armas was therefore a somewhat different one from that which is before this Court. There is a plain difference between an extradition order limited to non-UK conduct, and the case in which an order is based on a warrant in which UK conduct remains unexcised. I conclude, therefore, that the decision in Cando Armas does not determine the present case.
21. Miss Cumberland justified the process of excision next by reference to paragraph 51 of Dabas: Paragraph 51 is as follows:

"The second observation, which I make with reference to the test of double criminality in section 64(3), is this. A judge may conclude that this test is not satisfied because part of the conduct which is said to constitute the offence mentioned in the Part 1 warrant occurred before it constituted an offence under the law of the relevant part of the United Kingdom if it occurred there. The question is whether in that situation he has no alternative other than to order the person's discharge under section 10(3). In my opinion it would be open to the judge in such circumstances to ask that the scope of the warrant be limited to a period that would enable the test of double criminality to be satisfied. If this is not practicable, it would be open to him to make this clear in the order that he issues when answering the question in section 10(2) in the affirmative. The exercise that was undertaken by your Lordships in Pinochet Ugarte (No 3), pp 229-240, shows how far it was possible to go under the pre-existing procedure to avoid the result of having to order the person's discharge in a case where part of the conduct relied on took place during a period when the double criminality test was not satisfied. It can be assumed that the Part 1 procedure was intended to be at least as adaptable in that respect as that which it has replaced."

22. Particular reliance was placed on the sentences:

"in my opinion it would be open to the Judge…. to ask that the scope of the warrant be limited to a period that would enable the test of double criminality to be satisfied. If this is not practicable it would be open to him to make this clear in the Order that he issues when answering the question in section 10(2) in the affirmative".

I accept the argument that the District Judge took the latter course by issuing the documents referred to earlier in this judgment. It seems to me that the argument that effect should be given to extradition arrangements and that the Court should seek to avoid discharging a warrant where serious offences are alleged is a powerful one, as is the need to trust the judicial arrangements in other jurisdictions. If excision is necessary to achieve justice in those circumstances then I find it hard to understand how an excision relating to temporal matters should be acceptable whereas one relating to matters of geography should be unacceptable.

23. The significance of excision is related to the specialty rules referred to in section 17 of the Act. In very brief summary, and subject to exceptions which do not apply here, extradition under Part 1 of the Act, to a country such as Germany, can only take place if by specialty arrangement, that is to say by bi-lateral agreement between the UK and Germany, the requesting state has undertaken to prosecute only for the offence(s) for which the extradition order is made. There is such an agreement with Germany. Therefore, if excision is possible, and proper, it has the effect of limiting the exposure of the accused to prosecution on return to the offences identified as extradition offences.
24. I did not find Mr Huseyin's submission as to the way in which a distinction could be drawn between the excision exercise carried out so as to preserve a finding of dual criminality, and the exercise of excision to confer jurisdiction by deletion of geographical material from the conduct relied on, to be a sustainable one. Whether one is looking at geography or time, whether one is looking at dual criminality or territoriality, the exercise is the same one of seeing whether jurisdiction exists. I was impressed by, and accept the argument, that the process adopted by the District Judge of excision buttressed by the Supplemental Order and the list of Charges was an appropriate means by which the judge could hold that an extradition offence had been committed.
25. Miss Cumberland went on to submit that there was a degree of artificiality in the argument of the Appellant. She submitted that frequently in a warrant a course of described conduct would yield on the face of the warrant a succession of distinct offences which were identified seriatim. In a section 64(5) extradition, orders would be made only in relation to those offences which had no element of conduct occurring in the United Kingdom. This type of excision exercise is not unusual. The fact that the conduct here had not been subdivided into a series of individual offences by the issuing state should not result in a different outcome.
26. I remind myself that the purpose of the Framework Decision was to establish, as between Member States, a quicker, simpler more effective procedure founded on Member States' confidence in the integrity of one another's legal and judicial systems. It seems to me that the process for which the Respondent contends is entirely consistent with those laudable aims. I consider that the procedure referred to at paragraph 51 of Dabas can apply to the situation arising in this case in order to achieve the same ends.
27. The rights of this country to bring a prosecution in relation to conduct occurring within its jurisdiction are expressly safeguarded by the provisions of section 22 of the Act. If the element of criminal activity in this country is not great, or if there is some public policy reason as to why a prosecution in this country would not be appropriate, that should not operate as a bar to some other state, which has a legitimate interest in the prosecution of an alleged offender, pursuing such a prosecution if any one of the conditions laid down by Parliament in section 64 can be satisfied.
28. If, on the facts of this case, Mr Osunta had offended as alleged but had landed in Paris rather than in Heathrow, delivered the drugs, and then had made his way from France to the United Kingdom for other reasons, the conditions in section 64(5) would be satisfied and an extradition offence would have occurred. I find it hard to understand how, if that had occurred, he should be in any worse position than he would be if his alleged conduct had brought him directly to Heathrow Airport.
29. For these reasons I reject the Appellant's argument that the excision exercise referred to in Dabas should be confined narrowly in the way outlined in argument. I hold that the exercise carried out by the District Judge was one which he was entitled to perform. I hold that he was right to treat Offence 2 as an extradition offence but only in respect of the conduct set out in the warrant after the excision exercise.
30. I would dismiss the appeal in relation to the first offence as it is acknowledged there is no substance in that appeal. I would dismiss the appeal in relation to the second offence for the reasons given above.

The Right Honourable Lord Justice Hughes: I agree.