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
		13 December 2007

1. LORD JUSTICE MAURICE KAY: The appellant Anthony Brian Harvey is the subject of a European arrest warrant issued by the Albufeira Judicial Court in Portugal. On 9 October 2007 District Judge Tubbs, sitting at the City of Westminster Magistrates' Court, ordered his extradition to Portugal in respect of an offence described as the issue of a cheque without funds. The offence is alleged to have been committed on 24 September 1990, that is over 17 years ago.
2. There is now before this court an appeal under Section 26 of the Extradition Act 2003. The European arrest warrant issued in this case begins with a statement that it was issued -

" ..... by a competent legal authority. It is hereby requested that the individual identified below be detained and committed to the judicial authorities for purposes of legal procedure."

There then follows over a number of pages under conventional headings a variety of details. Under the heading "Grounds for the warrant of commitment", it is stated:

"Warrant of commitment or judicial decision with similar enforceability: Warrant of commitment

..... Warrant of commitment, dated 18-11-2005, issued by the 2nd Court Office of the Albufeira Judicial Court, which issued an order for the detention of the defendant to be presented for judicial interrogation as early as possible and within a maximum period of 48 hours upon entering Portuguese territory."

3. The next section of the document describes the offence as one of "issue of cheque without funds" and states the maximum sentence to be one of 8 years' imprisonment. It also makes clear that no sentence has yet been passed in the present case. The next section states that no decision has been taken in the absence of the defendant. Under the heading of "Infraction" there appear the following words:

"Issue of cheque without funds

.....

Description of the circumstances in which the infraction(s) was/were committed, including the moment (date and time), the place and the degree of participation of the warranted individual in such infraction(s):

On 24 September 1990, the defendant filled in, signed and handed António José Pinto Marante the cheque no. 0269758418 on the Bank Borges e Irmão, in the amount of 6.100.000$00. Upon attempting to cash this cheque at Bank Pinto e Sotto Mayor in Albufeira, António José Pinto Marante saw that the cheque had been returned to the services of the Bank of Portugal due to insufficient funds on 26-09-90.

The cheque was destined to pay the fees of the offended party, as lawyer for the defendant.

The defendant was well aware that he did not possess sufficient funds in his bank account to ensure the due payment of the cheque.

The amount of the cheque is considered quite high by the general individual, and as such the defendant acted freely and consciously, well aware that his conduct was prohibited and punishable by the law."

I interpolate that 6 million escudos (the amount of the cheque) was, we are told, the equivalent in Sterling of some £19,000.

4. Later passages of the warrant include further description of the infraction by reference to statutory provisions in Portugal. There is then stated the following:

"The above-mentioned defendant was declared contumacious on 21-06-1994, after being notified by means of decree and not appearing in court."

5. When the case was before the District Judge she heard submissions on behalf of the appellant under various headings, two of which survive for our consideration here. The first relates to the requirements of Section 2 of the 2003 Act as to the content of the warrant. The second relates to Sections 11 and 14 of the 2003 Act, raising an issue as to whether it would be unjust to extradite Mr Harvey having regard to the passage of time.
6. Dealing first with the issues arising under Section 2, the submission of Miss Scott, on behalf of Mr Harvey, is that a fair and proper reading of the warrant does not make it clear whether Mr Harvey is required for purposes of prosecution or simply for purposes of investigation or further investigation. Miss Scott accepts that there is no uncertainty as to whether the extradition is sought on a conviction basis. She accepts that the warrant could not confuse anyone into thinking that Mr Harvey has already been convicted and sentenced in Portugal for this offence.
7. Section 2 of the 2003 Act includes these provisions. Section 2 (2):

"(2) A Part I 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 sub-section (3) and the information referred to in sub-section (4)

.....

(3) The statement is one that -

(a) the person in respect of whom the Part I warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant; and

(b) the Part I 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 -

(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. The approach of the district judge was to go through the various parts of the warrant. Having done so, she was satisfied, taking the contents of the warrant as a whole, that it made clear that Mr Harvey is accused in Portugal - a category 1 territory - of the commission of an offence and is wanted for the purpose of being prosecuted rather than simply for purposes of investigation or further investigation.
9. It has to be accepted at the outset that compliance with Section 2 and its formal requirements is a pre-condition to an order for extradition upon a European arrest warrant. In Dabas v High Court of Justice Madrid [2007] UKHL 6, [2007] 2 AC 31, Lord Hope of Craighead said at paragraph 50:

"I wish to stress ..... that the judge must first be satisfied that the warrant with which he is dealing is a Part I warrant within the meaning of Section 2 (2). A warrant which does not contain the statements referred to in that sub-section cannot be eked out by extraneous information. The requirements of Section 2 (2) are mandatory. If they are not met, the warrant is not a Part I warrant and the remaining provisions of that Part of the Act will not apply to it."

10. It is common ground that it is for the court to construe the warrant as a whole.
11. It is also common ground that the court may draw proper inferences from the contents of the warrant, but that, as Lord Hope's words indicate, the court may not go outside the warrant and fill gaps by resort to extraneous material. It is not suggested in this case that the District Judge did go outside the face of the warrant. Plainly she did not. She came to her conclusion by setting out essentially the same parts of the warrant to which I have already referred. She attached significance to the fact that the warrant stated that it had been issued by a judicial court and required the presentation of Mr Harvey "for judicial interrogation". The District Judge expressed the view that that made clear that the matter had gone beyond mere questioning by the police and was for the purposes of a criminal prosecution. She also emphasised the part of the warrant in which it was stated that Mr Harvey was declared contumacious in 1994 "after being notified by means of decree and not appearing in court". In addition, the warrant was issued and signed by a judge.
12. The submission of Miss Scott is an uncomplicated one. It is that notwithstanding the reference to the judge, to the court and to the other matters of expression to which I have referred, the face of the warrant did not justify any inference that its purpose was to secure the attendance of Mr Harvey for prosecution as opposed to investigation or further investigation. She submits that fair reading of the warrant leaves that latter possibility as at least just that, namely a possibility. In Hilali v Central Court of Criminal Proceedings No 5 of the National Court of Madrid [2006] EWHC 1239 Admin, Lord Justice Scott Baker accepted the proposition in the submission of counsel that "the question is what message does the warrant give to the appellant or to any other reader". For my part, I, too, find that to be a helpful approach.
13. The question we have to consider is the one posed by Section 27 of the 2003 Act, namely ought the District Judge to have decided a question before her differently? And if she had decided it in the way in which she ought to have done, would she have been required to order the person's discharge?
14. In my judgment the District Judge in this case was entitled to conclude as she did when considering the requirements of Section 2. I do not consider that she was obliged to have decided any question in relation to those issues differently. The correct approach was to consider the warrant as a whole and, to my mind, when one does so, it is perfectly apparent that what Mr Harvey is required for in Portugal is for the purpose of prosecution rather than investigation.
15. There are conceptual and cultural differences as between different European countries in the way they process investigations and prosecutions. However in Re Ismail [1999] 1 AC 320, Lord Steyn emphasised that it is a question of fact in each case whether the person has passed the threshold of being an accused person as opposed to a mere suspect. He also referred to there being a transnational interest in bringing to justice those accused of serious crimes (see page 327 A). For this reason he opined that extradition statutes ought to be accorded a broad and generous construction so far as the text permits. He added at page 327 D:

"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 of whether as a matter of substance rather than form the requirement of there being an 'accused' person is satisfied."

16. As Lord Hope of Craighead said in Office of the King's Prosecutor Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1:

"It would be unduly strict ..... 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 I warrant ..... The purpose of the statute is to facilitate extradition, not to put obstacles in the way of process which serve no useful purpose but are based on technicalities."

17. In my judgment neither Mr Harvey nor anyone else would be misled by the face of the warrant in the present case into believing that the purpose for seeking his return to Portugal was to further an investigation as opposed to prosecuting him for the offence referred to in the warrant. For these reasons I detect no error on the part of the district judge on this first issue.
18. The second issue relates to Sections 11 and 14 and the passage of time. Section 11 provides that the judge must decide whether the person's extradition to the category 1 territory is barred by reason of, among other things, the passage of time. The passage of time is then dealt with in Section 14, the material parts of which state:

"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 -

(a) committed the extradition offence (where he is accused of its commission)."

19. The District Judge heard evidence from Mr Harvey. He is a professional man of good character, and an architect. At the time of these events he was working as a project manager for a development in the Algarve. He was sales and marketing director in connection with sales and purchases of high-value properties. He described how at the time it was common practice for a prospective purchaser or his agent to issue a cheque which would be held as a form of security. If the sale fell through the cheque would be returned. And if the sale progressed the cheque went towards the purchase price. The cheque in question in the present case was payable to a lawyer in the same field of practice. Mr Harvey could not remember his name. He remembered issuing a cheque for such a sum and could remember the property and the name of the purchaser client. His case in relation to the allegation is that he behaved entirely honestly, and that if he had been aware of any problem at the time the money could easily have been repaid.
20. The District Judge then said this in her judgment:

"It was submitted on behalf of Mr Harvey that, after seventeen years, his business and banking records would almost certainly have been destroyed and that he would not be able to recall this transaction with sufficient clarity to prepare his defence. No enquiry or evidence was put before me to confirm whether or not business and banking records would be available. The complaint was lodged on 14 March 1991. It is an allegation that will turn on documentary evidence. From the additional evidence from the Deputy Public Prosecutor, it is clear that some documentary evidence is preserved in the criminal case file. Mr Harvey, when giving his evidence, was able to name the client concerned in the purchase transaction in which the cheque appeared to have been issued. He practised as a professional in the area for some years and maintains links and property in the area. Portugal is, of course, a signatory to the ECHR, and there is nothing before me to suggest that the Judicial Court of Albufeira would not abide by the Article 6 requirements for a fair trial and no reason to think that any difficulties raised by the passage of time could not be addressed and dealt with appropriately during the trial by that Portuguese court. Similarly, there is nothing before me to suggest that Mr Harvey is unable to access appropriate legal advice and representation. In spite of the long period of relevant time, I do not find that there is a risk of prejudice to the accused in the conduct of the trial itself even if, as Mr Harvey maintains, and contrary to the evidence in the criminal case file, he was unaware of the allegation before 2007."

21. "Injustice", in the context of Section 14, continues to bear the meaning that had been attributed to it under previous extradition legislation. As Lord Diplock said in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779 at 782:

"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself ..... "

22. In the light of that, Miss Scott's submissions have focussed on the potential for unfairness and injustice in respect of such a trial. She refers to difficulties in relation to documentary evidence and in relation to difficulties of recollection after such a period of time. She suggests that exculpatory documents may no longer be available.
23. In my judgment these submissions do not point to the District Judge having fallen into error when considering the Section 14 issues. It is important to keep in mind that what Section 14 is concerned about is, as Lord Justice Simon Brown said in Woodcock v Government of New Zealand [2003] EWHC 2688 Admin, [2004] 1 WLR 1979 at paragraph 20, the question is not:

" ..... whether, having regard to the passage of time, it would be unjust to try the accused, but rather whether it would be unjust to return him (albeit, of course, return him for trial)."

24. It is common ground that under Section 14 the burden is on Mr Harvey to establish a risk or serious risk of injustice on the balance of probabilities. What the District Judge found was something of an evidential vacuum in that regard. Hence her contrast between the submission that was made on behalf of Mr Harvey and the fact that "no inquiry or evidence was put before me to confirm whether or not business and banking records would be available". Plainly there must be some documentation held by the prosecution otherwise they would not be in a position to begin to prove their case on such a charge.
25. Miss Scott refers to two small pieces of evidence suggesting that they show that Mr Harvey was having difficulties in preparing his response to any charge. He told the District Judge that he had asked his daughter in Portugal to make inquiries, but, as at 27 June, she had discovered nothing. In the course of his evidence he is also noted as having said:

"I cannot prove my innocence. I have been trying to get hold of information."

That, it seems to me, does nothing to undermine the conclusion of the District Judge.

26. It is important to keep in mind the context. This is a Part I category 1 case. In those circumstances it is not for the requesting state to establish the excellence or even adequacy of its criminal procedure if no positive case has been put against it in relation to procedural shortcomings. In Krzyzowski v Circuit Court in Gliwice, Poland [2007] EWHC 2754 Admin, Lord Justice Longmore said at paragraph 25:

"Of course it is for our courts to decide whether it is unjust or oppressive to surrender a defendant to another category 1 state. But if we are to require positive evidence that an abuse of process application will fail or if we start to assume that a fellow European country will from time to time (like the United Kingdom) be found to be in breach of Article 6 of the Convention, that is not giving full faith and credence to each other's legal and judicial systems. It will also be a recipe for more and more paper evidence which will then be subject to controversy. The simple quick and effective procedure envisaged by Lord Bingham will then be impossible to achieve."

27. His Lordship then referred to the preamble to the Council's Framework decision and in particular to Recital 10 which states:

"The mechanism of the European arrest warrant is based on a high level of confidence between Member States."

(See also the judgment of Mr Justice Mitting in Krzyzowski at paragraph 31).

28. In the present case Mr Harvey had put no material before the district judge and has put no material before this court pointing to any unfairness in the way in which Portuguese courts approach the kind of issue that wall arise in this case having regard to the passage of time. Miss Scott has attempted to overcome that vacuum by referring to paragraph 21 of the judgment of Lord Justice Simon Brown in Woodcock where he said:

" ..... 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."

29. It seems to me that that ingenious submission by Miss Scott is an attempt to stand the established principles on their head, particularly having regard to what was said by both members of this court in Krzyzowski. It is significant that Woodcock is not a European case. The requesting state was New Zealand.
30. In my judgment it is abundantly plain, as I understand it was conceded in the present case, that the burden of proof under Section 14 is on Mr Harvey and he has not produced any material suggesting deficiencies in the Portuguese system or justifying a departure to our obligation to give full faith and credence to the legal and judicial system of a fellow European country.
31. Accordingly I conclude that the District Judge made no mistake in her conclusion under Section 14. There is no question which she ought to have decided differently. I would dismiss this appeal.
32. MR JUSTICE BURTON: I agree.