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
		16th July 2008

1. LORD JUSTICE THOMAS: On 10th June 2008, the appellant was arrested at Liverpool John Lennon Airport under an European Arrest Warrant issued by the Tribunal de Grand Instance at Lille and certified on 2nd June 2008 as a warrant for the purposes of the Act in this country. He was brought to the central judicial authority which deals with European arrest warrants located at the Magistrates Court at Westminster and the hearing was held on 11th June 2008. Because of interpreting difficulties, the matter was put back until the 12th, when it was submitted that the European Arrest Warrant was defective. It is necessary to deal briefly with the circumstances in which this point arose, though this case gives rise to no principle of law at all.
2. What happened was this: on 8th October 2006, customs discovered in the spare wheel of a Mercedes motorcar on the French side of the Channel Tunnel a significant quantity of class A drugs. The driver was a Mr Foote, the owner was a Ms Anne Peters and the insurance was in the name of the appellant. The French examining magistrate interviewed Foote; he gave account that he had been told by the appellant to take the car, drive it to Germany, meet someone there, give him a key to the car and then, when he got the car back, bring it back to the UK. He said he had done four similar trips. There was no evidence of the kind common in drugs cases of mobile phone telephone calls between the driver and the appellant. The driver also identified the appellant from photographs as being the person whom the police had also identified separately. There was then co-operation of the kind one generally expects these days between the Serious Organised Crime Agency in the United Kingdom and between the French and German prosecuting authorities.
3. It is necessary because of the errors in the arrest warrant to refer to the verbatim text of the warrant:

"The judicial investigation conducted in Germany by the Prosecutions Office of Hamburg have allowed to identify formally Ali. Heard by the examining Magistrate, Paul Foote recognised him on photographs. Within the context of an International Letter of Request for mutual assistance issued on 9th February 2008, enquiries were made in England that have permitted to confirm Paul Foote's statements, in particular with regard to the cars hired in Portsmouth.

Saeed was identified as Saeed ARYANTASH [that is to say the appellant], born on 8 April 1971 in Tabriz, Iran, living at Flat 3, Helena Lodge, Helena Road, Southsea in Portsmouth.

Before the Examining Magistrate, Paul FOOTE recognized Saeed on photographs shown to him.

Ann Peters was arrested and indicted by the Examining Magistrate on May 4 2007, for carrying, possessing, importing narcotics and aiding and abetting in the importation of narcotics.

In consultation with the British authorities, the Examining Magistrate issued on May 29 2007 an arrest warrant against ARYANTASH that was recorded in files of persons wanted and a communication sent to the Public Prosecutor of LILLE, for the reissue of this arrest warrant under the Schengen agreement.

On January 30, 2008, the German authorities, via the Officer of Liaison of BKA in Paris, informed us on the possibility to arrest ALI in Germany. Consequently, it seems convenient to synchronize the arrests in order to ensure a better efficiency in the common judicial action taken against this international criminal organization of smugglers of narcotics."

The warrant goes on to set out other matters. It is then dated 1st February 2007.

4. The point was taken that the date of 1 February 2007 could not be correct as it was wholly inconsistent with the detail of the arrest warrant which I have set out. When that point was taken, the Senior District Judge, who takes the primary responsibility as the judicial authority in England and Wales in relation to European Arrest Warrants, examined the matter in some detail. He concluded that the error was immaterial and did not affect the validity of the warrant as a Part 1 warrant for the purpose of section 2 of the 2003 Act. He did so on the basis that neither the Act nor the European Framework Decision in relation to European arrest warrants required such a date.
5. He then said that he was troubled by the date of 9th February 2008, as the date of the international letter of request which he thought was not correct. He asked the authorities in Lille to clarify that. Information was obtained and on the following day the matter came before Deputy Senior District Judge Daphne Wickham, who conveyed the information to the parties. It was to the effect that the error in relation to the date of the letter of request for mutual assistance should have been 9th February 2007 and that it was perfectly obvious that the date of the warrant was 2nd February 2008. She then ordered that the matter be listed for an extradition hearing on 24th June 2008.
6. The matter came before the court on that day. It was argued that, in addition to the point in relation to the validity of the warrant which had been disposed of by the Senior District Judge, the judge hearing this matter, District Judge Nicholas Evans, should also consider an abuse of process argument. The abuse of process relied on was the fact that once the error in the date had been pointed out, a further European Arrest Warrant was issued with the corrected date. For some reason it was argued that that was an abuse of the process. It is apparent that the principles put forward were those of R v Derby Crown Court [1985] 80 Cr.App.R 164 and the ground being argued was that the prosecution were manipulating or misusing the process of the court so as to deprive the defendant of the protection provided by the law to take unfair advantage of a technicality. The District Judge in robust terms rejected the argument and made an order for the extradition of the appellant.
7. The matter came to this court on the 27th June when the notice of appeal was filed. In the light of the course this appeal has taken, it is not now necessary for me to set out the further events but this case is yet a further illustration of problems that must be tackled in relation, first, to the way in which legal aid is granted; secondly, in relation to conditions that are attached to the bail if legal aid is granted; thirdly, issues that arise in relation to the transfer of legal aid between solicitors and the difficulties and delays that sometimes occur in the provision of a signed form of application for legal aid. The series of cases before the court this week have identified a number of serious administrative problems in relation to the swift and just despatch of appeals and they plainly need to be rectified.
8. However, it is not necessary to set out the detail of that because, if I may say so, Ms Tracey Elliott has taken a very responsible view of the way in which matters should proceed. With the assistance of her solicitors, an issue that related to the position of Anne Peters was looked at and investigated and, although the court would have been prepared to consider the position as a matter of law on the assumption put forward, it is clear, as a result of the enquiries, that it would not have been proper to pursue that argument. The argument essentially is yet another abuse of process argument relating to the position of Anne Peters.
9. Therefore in this court the two points that were taken were first of all the question as to the validity of the warrant in respect of the mistake with the date and the second the original abuse of process argument. When this court granted legal aid, it was not clear, because, again, of another defect in the system, namely the transmission of judgments from the Magistrates' Court to this court, what the abuse of process argument was. The abuse of process argument was really such that it was wholly unsustainable and, had this court known what that was, it is doubtful whether it would have granted legal aid. Be that as it may, if we may again with respect to Ms Tracey Elliott say that she has taken a very proper view that the point advanced could not properly be argued in this court. It is self evident that to suggest what happened in this case was an abuse of the process of the Derby Justices type was "absurd", to put it in the vernacular.
10. Therefore there remained one point of argument. That relates to the mistake as to the date. The Senior District Judge approached the matter, if I may with respect say so, with a degree of robustness and common sense characteristic of the Senior District Judge. He examined carefully the whole of the warrant and concluded that the error was wholly immaterial, which it plainly was: this was a warrant issued at the beginning of the year and the typist had plainly made an error putting down 2007 instead of 2008. The error was therefore immaterial. Was there anything in the Act or in the Framework Decision that required a date to be stated? There is nothing, as is common ground. The judge, having concluded the error was immaterial and there had been nothing in the Act requiring a date, the conclusion was obvious and that this was a valid European Arrest Warrant and a valid warrant for the purposes of the Act.
11. There is really no more to say about it than that I agree with the judgment of the District Judge. The error is plainly immaterial and it plainly does not affect the validity. If the court were to hold that a typographical error of this kind was in any way to affect the validity of a warrant, it would undermine significantly the whole basis upon which these instruments operate and be seriously detrimental to building mutual confidence between the judges of Member States. I would add that obviously there could be cases where an error in a date could be material or there could be circumstances, as in this case, where it was necessary to clarify the date of the letter of request. It is important that the judicial authority in this country, through the Senior District Judge, be in a proper position to contact judicial authorities comprising the judicial branch of other countries to clarify errors and see whether they are of an immaterial kind as transpired through the requests that the Senior District Judge made in relation to the international letter of request. Of course, if an error is or appears to be material, then the court would properly examine it, but a typographical error of this kind cannot in any circumstances go to the validity of the warrant. For those reasons, therefore, I would, despite the way in which Ms Elliott has put the matter, dismiss this appeal.
12. MR JUSTICE LLOYD JONES: I agree.
13. MR WATSON: Thank you very much, my Lord.
14. LORD JUSTICE THOMAS: Anything else?
15. MR WATSON: No, my Lord.
16. LORD JUSTICE THOMAS: Thank you both for your help. Thank you very much, Ms Elliott. Very well.
17. If you have any other suggestions as to things that can be put right, so you do not all waste your time running around, could you address them to me, because the result of this series of cases has shown something needs to be done about it. I think you all agree that things could be made to work better so it is fairer for everyone concerned and makes, I hope, your own lives slightly less fraught than it was apparent in Ms Elliott's position was yesterday.
18. MS ELLIOTT: I do beg your pardon.
19. LORD JUSTICE THOMAS: No, it is obvious Ms Elliott, but you must never be late again. But I said I will not say any more about it and I am sorry. Thank you.