QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE AIKENS
|PUBLIC PROSECUTOR OF BOULOGNE SUR MER||Defendant|
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Rebecca Hill (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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"a) Mr THOMPSON was sentenced in absentia to 4 years imprisonment on 23rd November 2006.
B) The judgment was made in absentia under the terms of section 489 and subsequent sections of the French code on criminal prosecutions. An appeal may be lodged within 10 days of the date that the subject is notified of the arrest... or made aware of the conviction. If an appeal is lodged, he will be given a new trial date, a new decision will be passed and the first declared nul and void.
C) Mr THOMPSON was convicted of:
- the offence of using counterfeit bank cards and complicity in counterfeiting and using false bank cards. The maximum sentence for this offence is 7 years imprisonment as under the terms of French law, an accomplice incurs the same sentence which is likely to be imposed upon the chief perpetrator. (section 121-6 of the Penal Code).
- the offence of handling stolen vehicles, for which the maximum sentence is 5 years imprisonment."
1. Lack of section 2 statement. It does not state whether the person is sought for the purpose of being prosecuted for the offence or with a view to his extradition to serve a sentence, as required by sections 2(3) and 2(5) of the Act. Nor is it apparent from the warrant as a whole what stage the proceedings in his case have reached and whether he is sought for prosecution or as part of the investigation for questioning.
2. Lack of particulars of sentence. It does not specify particulars of sentence in respect of each offence which may be imposed under French law, as required by section 2(4)(d).
3. Lack of particulars of the handling offence. In respect of the allegation of handling stolen cars, it does not specify the particulars of the circumstances of the offence, as required by section 2(4)(c).
It is submitted that these defects are fatal to the warrant.
"2. Part one warrant and certificate...
(2) A Part 1 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 subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that——
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 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.
5. The statement is one that——
(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
(b) the... warrant is issued with a view to his... extradition [to serve sentence]."
"The present warrant was issued by a judicial competent authority. I request the arrest and delivery of the hereabove mentioned person to the judicial authorities for legal proceedings or execution of a sentence or as a custody provision."
The cause of the problem appears to have been the use of standard wording without eliminating one of the two alternatives so as to indicate whether it was an accusation warrant or a conviction warrant.
"These features of the Framework Decision explain, I think, the inclusion in the 2003 Act of the requirement that if an arrest warrant is issued for the purpose of prosecuting the person named in the warrant, the arrest warrant must so state (see section 2(3)(b)). Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant. But the judicial authority in the requested State cannot inquire into the purpose of the extradition. It is therefore necessary for there to be an unequivocal statement of that purpose in the arrest warrant itself. Hence the requirement in section 2(3)(b). It is to be noted that the opening words of the form of arrest warrant set out in the Annex to the Framework Decision refer to a request that
'the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.'
It is presumably intended that the inapplicable alternative be deleted. The person is question is surely entitled to know which of the alternatives apply to him."
"15. 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 Hodgeson 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."
"the preliminary investigation initiated by the Examining Magistrate is still in progress regarding Robert THOMPSON, but in the meanwhile other persons involved were placed under formal examination and appeared before [the] court or were sentenced in spite of being absent."
The clear implication is that the Appellant had not been placed under formal examination and I would find it difficult to conclude on the scant material before the court that the point had been reached where he was wanted for the purpose of being prosecuted. Section 2(3)(b) requires the warrant to contain a statement to that effect, and in my view this warrant does not. I am not persuaded, absent any evidence, that the mere appearance of the words "poursuites pénales" in the French warrant is sufficient to cure the deficiency.
"41... The appellant's expert, M. Serres, Avocat à la Cour de Paris, contends that she is not mise en examen. She is therefore not accused and her extradition is not sought for the purposes of taking proceedings against her. The Public Prosecutor disputes the contention that the appellant is not mise en examen. The answers to the questions make it clear that she is. But he also contends that it is unnecessary to resolve this issue. The logically prior question is whether proceedings have commenced once an opening brief (réquisitoire introductif) has been referred to the juge d'instruction. Since there is no dispute that the opening brief has been referred to a juge d'instruction, the stage of the proceedings has been reached which satisfies Section 2(3)(b).
42. This issue is clearly of importance. It has implications far beyond this case. It is, therefore, dangerous to reach any final conclusion when it is unnecessary for the purposes of this decision."
He then went on to express his provisional views.
"I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection 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 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
"the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of the offence specified in the warrant..."
And (section 2(3)(b)):
"the Part 1 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."
Given the statement in recital (5) of the Council Framework Decision of 13th June 2002 that the principal object of that decision is to abolish "extradition" between Member States and to replace it with a system of "surrender" between judicial authorities, the reference to "extradition" in section 2(3)(b) may seem a little odd, but that is the wording of the United Kingdom statute.