CO/3652/2008 
Neutral Citation Number: [2008] EWHC 1453 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Tuesday, 20th May 2008
 
B e f o r e:

LORD JUSTICE MAURICE KAY 

MR JUSTICE PENRY‑DAVEY 
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Between: 
RICHARD McCORMACK 
Appellant

v 

TRIBUNAL DE GRANDE INSTANCE, QUIMPER, FRANCE 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Seth Levine (instructed by Lewis Nedas) appeared on behalf of the Claimant
Mark summers (instructed by the Crown Prosection Service) appeared on behalf of the Defendant
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J U D G M E N T
1.	LORD JUSTICE MAURICE KAY:  The appellant is the subject of two European Arrest Warrants (EAWs) issued by the French authorities.  They seek his extradition pursuant to Part 1 of the Extradition Act 2003.  The first EAW relates to allegations of rape and attempted rape, the second to an allegation of tax fraud.  On 10th April 2008 District Judge Nicholas Evans ordered his extradition in respect of both warrants.  The appellant now appeals to this court pursuant to Section 26 of the 2003 Act.  The issue is whether the appellant is an accused person whose extradition is sought for the purpose of prosecution or whether he is merely a suspect who is wanted for investigative purposes or interrogation.  To resolve this issue it will be necessary to consider French criminal procedure.  
2.	An EAW must contain the statement referred to in Section 2(3) of the 2003 Act:  
"(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."
3.	The first EAW, which relates to the allegations of rape and attempted rape, is headed "European Arrest Warrant for the purpose of prosecution".  It includes a clear description of the allegations and states that, on the day following the alleged offences, the appellant telephoned the complainant several times to apologise before returning to England with his wife and family.  It concludes:
"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." 
4.	The second EAW, which concerns the alleged revenue offence, is headed "European Arrest Warrant".  It describes the allegation in these terms:
"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."
5.	The procedural position in France in relation to each EAW is that the police have passed the case on to the Public Prosecutor, who has in turn submitted a requisitoire introductif to the juge d'instruction, or examining magistrate.  The appellant can only be placed under judicial examination (mise en examen) when he appears before the examining magistrate and the examining magistrate has given him the opportunity to be heard.  That stage has not been reached because the appellant has chosen to leave France and to remain in this country.  It requires his attendance in person before the examining magistrate.  It is in these circumstances that Mr Levine submits that the appellant has not obtained the status of an accused person who is wanted for the purpose of being prosecuted, but is a mere suspect who is wanted for further investigation and questioning.  
The law 
6.	Even before the Extradition Act 2003, it had become important to recognise the cultural and conceptual differences between our criminal procedure and that of other systems.  In Re Ismail [1999] 1 AC 320, 326‑327 Lord Steyn said:
"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 [1988] 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 [1999] A.C. 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."
7.	In Vey (Gersine Nazaret Raoul) v Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin) Moses LJ considered the requirements of Section 2 of the 2003 Act in the context of a French extradition request.  To the extent that he expressed certain provisional views about Section 2(3), Mr Levine seeks to rely on them.  However, that extraordinary case was decided by reference to Section 2(4).  Section 2(3) has been considered in later cases, including Paschayan v Government of Switzerland [2008] EWHC 388 (Admin).  Although that was a Part 2 case concerning a request from Switzerland, it too turned on whether the appellant was an "accused" person.  In my judgment in that case, with which Paul Walker J agreed, I emphasised the continued importance of Ismail, and the exceptional nature of the facts in Vey.  Paschayan was also concerned with the situation where the next formal step in the requesting state was being prevented by the requested person's elective absence.  I said, at paragraph 28:
"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 
8.	In his judgment in the present case, the District Judge referred to the mandatory requirements of Section 2 as explained in Dabas v High Court of Justice, Madrid [2007] UKHL 6, per Lord Hope of Craighead at paragraph 50.  He also referred to the relevant passages in Ismail, Vey and Paschayan before concluding:
"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." 
Discussion 
9.	Mr Levine points to the two‑headed requirements that the appellant must be both an accused person and wanted "for the purpose of being prosecuted".  He submits that they are not satisfied in this case.  He further submits that, whilst the allegations are clearly spelt out in the first EAW, the second EAW is more cautiously expressed.  In that regard, he refers in particular to the words "they could have been employed". 
10.	The District Judge had, and we have, the benefit of assistance from Professor Jacqueline Hodgson of the University of Warwick and the Public Prosecutor upon whose application the examining magistrate issued the EAWs.  The Public Prosecutor states:
"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." 
11.	Mr Levine submits that unless and until the appellant has become mise en examen, the requirements of Section 2(3) are not satisfied.  On the other hand, Mr Summers submits that there are strong similarities between the present case and the case of Paschayan, and that, where there are differences, the case is in some instances stronger here than it was there.  He submits that, like Paschayan, the appellant has been called for interrogation but has declined to attend.  As in Paschayan, the description of the alleged offences contained in the extradition requests discloses that the case against the appellant is highly particularised and not vitiated by any lack of clarity.  
12.	Again comparing the matter with Paschayan, he submits that in the present case the issue of the requisitoire introductif is founded upon a finding by the Prosecutor that there exists "serious or concordant evidence that [the appellant] is likely to have taken part in the commission of offences as a perpetrator or an accomplice."  In fact here, unlike in Paschayan, the magistrate has reached a similar conclusion applying the same effective test.  
13.	Finally, Mr Summers submits that, as in Paschayan, although the case against the appellant has not finally passed from the investigating magistrate, it is a reasonable inference that the explanation is that the appellant is impeding the process by his refusal to attend for interrogation.  What is missing is simply the self‑inflicted absence of an explanation from the appellant. 
14.	In my judgment, it is abundantly clear that Mr Summers is correct and that, in relation to both EAWs, the appellant is an accused person who is wanted for the purposes of prosecution.  I do not consider that the single reference in the second EAW to "could have" obviates such a conclusion.
15.	There is another reason, also raised by Mr Summers, for reaching this conclusion.  Part 1 of the 2003 Act is the national implementation of the Framework Decision on the European Arrest Warrant, and it is incumbent upon us to construe the Act so as to give effect to the Framework Decision: see Dabas.  The English language version of Article 1 of the Framework Decision refers to the EAW as relating to the arrest and surrender of the requested person "for the purpose of conducting a criminal prosecution", and this wording is reflected in Section 2(3)(b) of the 2003 Act.  However, the French language version of the Framework Decision refers to arrest and surrender "pour l'exercice de poursuites pénales", and that is the wording used in paragraph 695‑11 of the French Code of Criminal Procedure.  It is common ground between Professor Hodgson and the Public Prosecutor that, although the appellant is not presently mise en examen, poursuites pénales have in fact commenced. 
16.	In Tribunale di Firenze (Italy) v Maria Pupino Case C‑105/03, 16 June 2005, the Grand Chamber of the ECJ said at paragraph 61:
"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.  
Conclusion 
17.	For all these reasons I would dismiss this appeal. 
18.	MR JUSTICE PENRY-DAVEY:  I agree. 
19.	LORD JUSTICE MAURICE KAY:  Thank you both very much. 
20.	MR SUMMERS:  My Lord, I apologise for I hope assisting my Lord during the course of the judgment.  The photocopying is unclear.   
21.	LORD JUSTICE MAURICE KAY:  I am most grateful to you.  One or two of the photocopies were a little unclear. 
22.	MR SUMMERS:  Indeed, my Lord.  As far as the French authorities are concerned, there are no applications.  The appellant remains on bail granted by the District Judge. 
23.	MR LEVINE:  It remains for me to ask for a detailed assessment of legal aid. 
24.	LORD JUSTICE MAURICE KAY:  Yes, certainly.  Thank you very much.