QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE BURTON
|JUDICIAL AUTHORITY OF PORTUGAL - TRIBUNAL JUDICIAL DE ALBUFEIRA||Defendant|
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" ..... 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."
"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.
"The above-mentioned defendant was declared contumacious on 21-06-1994, after being notified by means of decree and not appearing in court."
"(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."
"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."
"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."
"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."
"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)."
"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."
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself ..... "
" ..... 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)."
"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.
"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."
"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).
" ..... 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."