QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE PENRY-DAVEY
|TRIBUNAL DE GRANDE INSTANCE, QUIMPER, FRANCE||Respondent|
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Mark summers (instructed by the Crown Prosection Service) appeared on behalf of the Defendant
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"(3) The statement is one that——
(a) the person in respect of whom the... warrant is issued is accused... of the commission of an offence specified in the warrant, and
(b) the... warrant is issued with a view to his arrest and extradition... for the purpose of being prosecuted for the offence."
"The investigators have been in contact with him since then and have informed him that he shall have to explain himself in relation to the facts. He has, despite this, refused until now to comply with their summons."
"During the investigations on Richard MAC CORMICK, in October 2005, for facts of rape, the gendarmes from the squad of Chateaulin found a certain number of elements that led to the supposition of concealed work by concealed employees.
The first investigations revealed that Richard MAC CORMICK has founded, on December 3, 2004, a company named RM RENOVATION. The URSAFF confirmed that the company has not been registered in their office and there is no employer's account open in the name of the company, and that Mr. MAC CORMICK hasn't proceeded to any registration of any pre-employment declaration. Consequently, he was supposed to function without any employee, but the volume of the activity of the company [left] some doubts.
Actually, the inquiry showed that he regularly worked with his brother Roger, with his father who has the same first name, and with three other identified salaried employees. However, these persons have never been declared as salaried persons but they could have been employed by Mr. MAC CORMICK in the course of the years 2004 and 2005, up to October 7, 2005."
A later passage in the warrant states:
"... he concealed the employment of salaried employees, he backed out of the obligation of nominal pre-employment declaration of a salaried employee by the employer at the social welfare institutions; he omitted to draw up payslips to the employed persons."
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of 'accused' persons. It is also common ground that it is not enough that he is in the traditional phase 'wanted by the police to help them with their inquiries.' Something more is required... Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford Remand Centre, Ex parte Postlethwaite  A.C. 924, 946-947. That approach has been applied by the Privy Council to the meaning of 'accused' in an extradition treaty: Rey v. Government of Switzerland  AC 54, 62G. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure...
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 whether as a matter of substance rather than form the requirement of there being an 'accused' person is satisfied...
For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is 'accused' within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case."
"When one applies the approach prescribed by Lord Steyn, and keeps in mind the purpose to which he referred, together with the need to safeguard the rights of the individual, it is abundantly apparent that this appellant is being prosecuted as an accused person in Switzerland. Such unanswered questions that remain are unanswered because of the stance of the appellant."
I acknowledge that, whilst there are similarities in the position of the examining or investigating magistrate in France and the magistrate Switzerland, their positions are not identical. It remains necessary to focus on the specific position in France.
The decision of the District Judge
"12... I am satisfied that these EAWs have been issued, by the investigating magistrate, against the defendant and that each makes it clear that the matters have gone beyond mere questioning and he is now wanted for the purposes of prosecution. Whether such a prosecution proceeds all the way to a determination of guilt or innocence or is halted at some earlier stage remains to be seen.
13. I am reassured as to the correctness of that conclusion when I resort to the extraneous information provided by Jean-Yves Goueffon, the public Prosecutor... in his 4-page undated letter faxed on 1st February 2008."
On appeal to this court under Section 26, and in the circumstances of this case (there being no new issue or further evidence), we may allow the appeal only if (I read from section 27(3)(a)):
"(a) the appropriate judge ought to have decided a question before him at the. Extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."
"The investigation of the police and the Public Prosecutor has ceased in both cases and the investigations have reached a stage where the matter is before the examining magistrate. Questioning is part of the formal judicial process conducted by the examining magistrate.
Mr. MacCormick can only be placed under judicial examination (mise en examen) once he appears before the examining magistrate and the examining magistrate has, on the occasion of his initial appearance, heard his comments — or given him the opportunity to be heard — while being assisted by his lawyer... Mr. MacCormick has not yet been placed under judicial examination... in either case. The examining magistrate cannot determine whether or not to do so until such time as Mr. MacCormick appears before her and is heard. He must be heard in person. The case cannot proceed to the next stage (placing under judicial examination) until he does. Until that time Mr. MacCormick has the status of assisted witness (témoin assisté)... He cannot be placed under judicial control or detained in custody unless during the course of this procedure serious or concordant evidence arises justifying his 'mise en examen'; then the examining magistrate may proceed to place him under judicial examination at which stage the person heard has the status of mise en examen and can then be placed under judicial control or detained in custody.
It is not right to say that '...the evidence against Mr. MacCormick is not sufficiently strong to make him mise en examen... Whilst it is true that the issuance of an arrest warrant by the examining magistrates does not, as a matter of law, mean that Mr. MacCormick has been placed under judicial examination, it is important to observe that, to be able to issue the warrant, the examining magistrate also had to be satisfied (pursuant to article 122 of the French Code of Criminal Procedure), on the information known to her, that there exists 'serious or corroborating materials making it likely that Mr. MacCormick may have participated as author or accomplice to the commission of the offence'. This is the same test that will determine whether a person should be placed under examination (Article 80-1).
As a matter of French law, in cases concerning serious offences such as these, the 'requisitoire introductif', by which the examining magistrate is designated, commences 'poursuites pénales' in respect of that person."
"The national court is required to take into consideration all the rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the Framework Decision."
In my judgment, this court would be failing in that duty if we were to take an insular view of the present case, or to see the stage of mise en examen as a prerequisite. To do so would subvert the purpose of the Framework Decision, as to which see Dabas, per Lord Bingham of Cornhill at paragraph 4.