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
		17th October 2008

1. LORD JUSTICE SCOTT BAKER: This is an extradition appeal under Part 1 of the Extradition Act 2003. It concerns a European arrest warrant. The Appellant, Robert Thompson, is a 42-your-old British man sought by the French Judicial Authority ("the Respondent") for conduct said to have occurred in 2001.
2. It is said that in France, in late 2001, a British gang was involved in smuggling tobacco through France into England. The tobacco was bought using fake credit cards. The gang made use of stolen cards, which were then cloned. It is said that the Appellant was part of that gang. The case was originally argued before the District Judge in November 2005.
3. It was contended that the Appellant's extradition was barred by reason of the passage of time. The conduct was by then 4 years old and the French had unsuccessfully sought his extradition from the Netherlands in the meantime, where he had spent 8 months in custody. This argument was rejected by the District Judge, who found that the Appellant had fled from the Netherlands. There was also an argument in relation to the appropriateness of the charges, which was successful in part. Judgment was delayed until 15th May 2008, because the Appellant did not attend the original hearing date and could not be found.
4. The present appeal was originally due to be heard in July. The grounds being advanced by the Appellant were that the arrest warrant was defective in a number of respects. None of those points had been taken before the District Judge, but the contention was that the case law had developed since the hearing in November 2005 and these points were open to the Appellant on appeal. The time point was no longer being pursued.
5. On 24th July the following information was received from the public prosecutor in Boulogne in unauthenticated e-mail form:

"a) Mr THOMPSON was sentenced in absentia to 4 years imprisonment on 23^rd 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."

6. Up until then, everyone had been under the impression that the Appellant was wanted as an accused person. That appeared to be the basis on which he was sought in the European arrest warrant, and it was on that basis that the District Judge considered the case.
7. The state of the law when the appeal came before the Divisional Court in July was that the fact that the Appellant, so it appeared, had been convicted did not avail him because of the fact that he had a right of appeal against the conviction in France. Put simply, the French proceedings had not been concluded and so it remained appropriate to be seeking his return as an accused person rather than as a convicted person. But the point was under appeal to the House of Lords in Caldarelli v Court of Naples [2008] UKHL 51 and speeches were due to be handed down on 30th July. Accordingly, at the respondent's request, the Divisional Court adjourned the Appellant's appeal. In the event, the House's decision in Caldarelli does nothing to assist either side.
8. It is said that the warrant is defective in three respects, which are summarised as follows:

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.

9. The relevant provisions of the Extradition Act 2003 are:

"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]."

10. So it can be seen that there are two alternative routes: either he is sought because he is accused or because he has been convicted. The respondent contends that the warrant in the present case fell into the former category. Accordingly, if this is correct, the warrant had to contain the statement required by section 2(3) and the information required in section 2(4).
11. Section 2(4) requires particulars of the person's identity. There is no problem about that. It also requires particulars of any other warrant. Again there is no difficulty about that. There are, however, issues about the third requirement, which are particulars of the circumstances of the offence and particulars of the sentence which may be imposed.
12. The first question is whether the warrant is an accusation warrant or a conviction warrant. It is necessary to establish this in order to see whether the provisions of subsections (3) and (4) or (5) and (6) of section 2 are applicable. Unfortunately, the warrant, in its opening words, does not make the position clear. Immediately under the words "European arrest warrant" in bold type, it says:

"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.

13. There is another problem with these opening words. Section 2(3)(b) requires the warrant to contain a statement that the warrant is issued with a view to the person's arrest and extradition for the purpose of being prosecuted (my emphasis) for the offence. The words on the warrant refer to the object as being "legal proceedings" rather than "the purpose of being prosecuted". The authorities make clear that the court should look at the whole of the warrant when an issue of lawfulness arises. That is common ground. In my view, it is clear from looking at the whole warrant that it is an accusation warrant rather than a conviction warrant.
14. Mr Yeo for the Appellant submits that section (b) will often provide clarification, where the standard form "introduction" has left the position ambiguous, but, he says, not in this case, because there is reference to a judgment reference number which implies concluded proceedings. Closer examination, however, reveals that the number is no more than the prosecution's department number (see page 13).
15. There are clear indications that it is not a conviction warrant. The maximum sentence that may be given is referred to, rather than any sentence actually passed. There is reference to the preliminary investigation being still in progress with regard to the Appellant. I have no doubt, from looking at the whole of the warrant, that this was an accusation warrant rather than a conviction warrant.
16. Mr Yeo has a much stronger argument, that as an accusation warrant it is invalid because it does not state that the warrant is issued with a view to his arrest and extradition for the purpose of being prosecuted (my emphasis). There is all the difference in the world between being wanted for questioning and being wanted for the purpose of being prosecuted. See, for example, Lord Scott in Office of the King's Prosecutor, Brussels v Armas [2005] UKHL 67 at paragraph 54, where he said:

"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."

17. The English translation of the warrant refers not to the purpose of being prosecuted, as required by section 2(3)(b), but instead uses the much broader words "for legal proceedings". We were referred to the original French version of the warrant, which uses the expression "poursuites pénales". We were also referred by Miss Rebecca Hill, who has appeared for the respondent, to the judgment of Maurice Kay LJ in McCormack v the Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin). That was a case in which the court had had the benefit of expert evidence from Professor Jacqueline Hodgson of Warwick University. There has been no such evidence in the present case.
18. Maurice Kay LJ drew attention, in that case, to the evidence 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 existed serious or corroborating materials making it likely that Mr McCormack may have participated as author or accomplice in the commission of the offence, and that that is the same test that will determine whether a person should be placed under examination.
19. The evidence went on that as a matter of French law, in cases concerning serious offences such as those there under consideration, the requisitoire introductif by which the examining magistrate is designated, commenced poursuites pénales in respect of that person.
20. Maurice Kay LJ said:

"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."

21. Miss Hill submits that the reference to poursuites pénales in the French version of the warrant is sufficient to clarify any uncertainty arising from the English translation of being wanted "for legal proceedings". The English translation leaves it unclear what stage the French proceedings have reached. Some help is to be found at the top of page 4 of the warrant, under the heading "Procedure":

"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.

22. Moses LJ had touched on the issue of complying with section 2(3)(b) 2 years before Maurice Kay LJ in Vey v The Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin). The appeal in that case was decided on the grounds that section 2(4) had not been complied with and the court did not need to, and indeed did not reach, a concluded view on Article 2(3). The court had received conflicting evidence from experts as to the stage which the proceedings against the Appellant had reached. He said:

"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.

23. The European arrest warrant procedure is designed to provide a summary and speedy process for securing the extradition of accused and convicted persons between Member States. Where the warrant contains the required information, it is unnecessary and indeed inappropriate to go behind the warrant. The last thing the court wants, save in most exceptional circumstances, is for the proceedings to become bogged down by contested expert evidence. If the warrant provides that the person is required for the purpose of being prosecuted for the offence, or in this case offences, that is sufficient to comply with section 2(3)(b). Whilst I appreciate that warrants are often directed to more than one Member State, and it may not be easy to provide a form of words that meets the requirements of each recipient state's national legislation, it should surely be possible, on receipt of a warrant in the United Kingdom, for it to be carefully checked to ensure that it complies with the requirements of the Extradition Act 2003. Then any defect can be remedied before time is wasted on what are likely to be costly and abortive proceedings.
24. The second point relates to the lack of particulars of sentence. It could be said that this is a very technical point, because we have been told in unauthenticated form, as I mentioned earlier in this judgment, that the Appellant was in fact sentenced to 4 years' imprisonment in absentia on 23rd November 2006; that the maximum sentence for the counterfeiting offence is 7 years' imprisonment, and that for handling stolen vehicles 5 years. It appears he was not convicted of the smuggling offence. However, no application was made to adduce extraneous evidence to clarify an ambiguity within the warrant and therefore we have to deal with the point on the information within the warrant itself.
25. In section C of the warrant, under the heading "information regarding the term of imprisonment to be served" is recorded "maximum duration of the sentence or custo[dy] to be served that may be given for the offence(s) committed: 7 YEARS imprisonment". The reference to "Sentence or custody provision given" and "remaining period time to be served" are both left blank. It is not clear whether 7 years is the maximum for each offence or for all three. The offences in respect of which the Appellant is sought are described as "aiding and abetting in the forgery of credit cards, using forged credit cards (for payment and withdrawal)", "possessing, transporting, importing goods without the carrier's bill, qualified as smuggling" and "receiving of stolen cars". In every case the relevant provisions of the penal code, or customs regulations, are referred to, but there is no mention of any maximum penalty that breach of these provisions might attract.
26. The reason why the sentence for each offence has to be specified is so that it can be seen whether it carries a sufficiently long sentence to qualify as an extradition offence and in relation to specialty.
27. The words of Lord Hope in Dabas at paragraph 50 are important. He said:

"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."

28. So too are the observations of Richards LJ in Haynes v Court of Magistrates, Malta [2007] EWHC 2651 (Admin), where this same problem arose. Richards LJ referred to a possible exception to the principle that the particulars of sentence must be contained in the warrant itself identified by Toulson LJ in the case of Kuprevicius v Vice Minister of Justice Ministry of Justice Lithuania [2006] EWHC 1518 (Admin), where he thought, without deciding the point, that it might be possible to look at other material to resolve an ambiguity. The respondent has not sought to do that in this case. In my view, the warrant is also defective for non-compliance with section 2(4).
29. Mr Yeo's third point is that the warrant fails to particularise the circumstances of the receiving offence. The narrative of the warrant describes how vehicles stolen in Great Britain were cloned, ie fitted with number plates that belonged to similar vehicles, and taken to France. The trader, who was presented with, but refused to accept, forged credit cards from the Appellant, noted the registration number of his car, which was one of the fleet used by the smugglers. That seems to me to be sufficient particulars to meet the requirement of section 2(2)(c). Accordingly, I would reject the argument of Mr Yeo that the warrant is defective in this regard. However, having concluded the warrant is defective on the other two grounds, I would allow the appeal.
30. MR JUSTICE AIKENS: I agree with the judgment of my Lord. I only wish to add some comments on the second aspect of the first issue which my Lord has identified, viz the issue of whether this warrant has complied with the requirements of sections 2(3)(a) and (b) of the Extradition Act 2003 ("the Act").
31. It is clear, taking the wording of the warrant, as a whole, that this is what Lord Hope in the Armas case at paragraph 27 called an "accusation case" warrant as opposed to a "conviction case" warrant. But, as Lord Hope emphasised at paragraphs 27 and 28 of his speech in the Armas case, if the warrant does not comply with the requirements of section 2 of the 2003 Act, then it is not a warrant within the meaning of that section and the terms of Part 1 of the Act will not apply to it. Accordingly, there will be no jurisdiction to send the person sought to the requesting judicial authority: see Boudhiba v Central Examining Court No 5 of the National Court of Justice Madrid Spain [2006] EWHC 167 (Admin), at paragraph 15 per Smith LJ.
32. The terms of section 2(2)(a) and section 2(3)(a) and (b), which apply to arrest warrants in "accusation" cases, are clear. A Part 1 warrant in an "accusation" case is an arrest warrant which will contain the statement that (section 2(3)(a)):

"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.

33. My Lord has already quoted from the speech of Lord Scott of Foscote, at paragraph 54 of the speeches of their Lordships in the Armas case. I need not repeat it. It is an important passage. In two recent cases in the Divisional Court concerning European arrest warrants, problems have arisen over the issue of whether the European arrest warrant in question stated unequivocally that it was issued by the requesting judicial authority for the purpose of prosecuting the person named in the warrant for the offence identified in the warrant. Those cases are, chronologically, Vey v The Office of the Public Prosecutor in County Court of Montluçon, France [2006] EWHC 760 (Admin) and McCormack v the Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin).
34. In each case the dichotomy considered was whether the person whose extradition being sought was an accused as opposed to someone who was merely wanted for questioning. (For the distinction, see the speech of Lord Steyn in re Ismail [1999] AC 320 at page 327). In both the Divisional Court cases I have referred to, this court considered that the question of whether the arrest warrant stated unequivocally that the person whose extradition was sought was for the purpose of being prosecuted turned upon the stage the criminal proceedings had reached in the French criminal court concerned. In each case expert evidence as to French criminal procedure was before the court. In the Vey case the experts did not agree on whether, given the stage of the procedure reached, it warranted the conclusion that the person whose extradition was sought was an accused as opposed to somebody who was merely wanted for questioning.
35. In deciding whether the requirements of section 2(3)(b) of the Act are fulfilled, the court in each case did so on the basis of the wording of the warrant, such extraneous material that it was prepared to admit (such as the further information from the requesting authority sought under Article 15 of the Framework Decision) and expert evidence on French Criminal procedure. In this case we have no extraneous material or expert evidence.
36. The heading of the European arrest warrant in the English version in this case states that the arrest and delivery of Mr Thompson is requested "to the judicial authorities for legal proceedings". That does not follow the English language wording of the pro-forma European arrest warrant that is annexed to the Framework Decision. That refers to a person being arrested and surrendered "for the purposes of conducting a criminal prosecution". That language would obviously satisfy the statutory test under section 2(3)(b), as explained by Lord Scott in the Armas case.
37. Miss Hill points to the French version of the warrant in the present case, which uses the case phrase "soit arrêtée et remise aux autorités judiciaries aux fins de l'exercice de poursuites pénales". She points to the fact that this accords with the French language version of the pro-forma warrant annexed to the Framework Decision. So, she submits, that should be sufficient to satisfy the statutory test in this case. The problem, however, is that there is nothing in the remainder of the warrant, including the section in box E on procedure, which leads to the unequivocal conclusion that the purpose of the arrest and extradition of Mr Thompson is for conducting a criminal prosecution against him. Indeed, both the English and French versions of the statement concerning procedure in box E suggest that the position is undecided as regards Mr Thompson.
38. The English courts are duty bound to interpret national law, particularly Part 1 of the Act, "as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU": see criminal proceedings against Pupino (Case C-105/03) reported at [2006] QB 83, which was quoted in the speech of Lord Bingham of Cornhill in the Dabas case at paragraph 5. Nevertheless, we cannot get away from the plain wording of the statutory requirements. Like my Lord, on this point I am not satisfied that in this case those requirements are fulfilled.
39. This court and, a fortiori, District Judges who have to deal with applications for European arrest warrants on an almost daily basis, must not be put in the position where the court may have to consider detailed evidence about criminal procedures in other European countries for the purpose of the deciding whether or not the statutory requirements in section 2(3)(b) of the Act are fulfilled. If the objectives of speed and simplicity in the procedure of cross-border arrest and surrender within the EU are to be achieved, the solution, in my view, is clear. When a requesting authority issues a European arrest warrant with a request to the United Kingdom, the precise English-language wording in the head of the pro forma warrant annexed to the Framework Decision should be used. Furthermore, care should be taken to ensure that there is nothing in the body of warrant that detracts from that unequivocal statement. The liaison magistrate in the requesting state and the liaison authority in the United Kingdom can ensure that this is done. In that way, the objective of paragraph 5 of the recitals to the Framework Decision and Part 1 of the Act, viz the introduction of a new simplified system of arrest and surrender between judicial authorities, can be fulfilled.
40. MISS LYLE: My Lord, if the legal aid costs could be assessed in the usual way.
41. LORD JUSTICE SCOTT BAKER: Yes, certainly. Are you asking for any further consequential orders? It is simply a quashing order, is it?
42. MISS LYLE: It is.