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
		29th October 2008

1. MR JUSTICE PITCHFORD: This is an appeal by Marc Lacorre under section 26 of the Extradition Act 2003 against the decision of District Judge Tubbs made at the City of Westminster Magistrates' Court on 11th July 2008 to order his extradition to France.
2. The appellant is a 50-year old French national who was arrested at Gatwick Airport on 16th May 2008 by officers acting under a European Arrest Warrant issued by the Public Prosecutor in Paris on 21st April 2008.
3. The appellant seeks to resist his extradition on the grounds that: (1) the particulars contained within the warrant fail to satisfy the requirements of section 2(4)(c) of the 2003 Act, and (2) the charges faced by the appellant do not satisfy the test for extradition offences set under sections 10 and 64 of the Act.
4. France is a category 1 territory. The United Kingdom is entitled to act upon the warrant only if the information required by section 2(4) is provided within it. Particulars must include the conduct alleged to constitute the offence, the time and place the alleged offence was committed, and the provision of law by which the conduct alleged constitutes an offence. So much is common ground.
5. The warrant explains that the charges in respect of which the appellant was arrested were:

"Criminal conspiracy with the purpose of committing such violations as importation, transportation, possession, sale, commercialisation of drugs, in this case cannabis resin;

Importation, transportation, possession, sale commercialisation of drugs, in this case cannabis resin."

The offences are in the main alleged to have been committed contrary to sections 222 and 450 of the French Penal Code. The particulars of circumstances identified in the warrant are as follows:

"In Paris, on the national territory, in Spain, in the years 2004, 2005, 2006 since time not covered by statutes of limitation.

In January 2004 the officers of the Paris Drugs Squad received undercover intelligence according to which a team of experienced mobsters, some of whom had already been convicted on armed robbery charges had switched to drug trafficking over cannabis resin on an international scale. According to the information received these individuals would organise sea trips of huge quantities of cannabis resin between the Moroccan coastline and Spanish coast in the vicinity of Alicante.

The criminal organisation was made up, among others, of Gerard DUPRE, Marc LACORRE, Eric PARTARRIEU, Guy PETIT, Abdelkrim BOUCORRA and Cherif TEMMAT who were all arrested with the exception of Marc LACORRE.

All these persons met several times in France and Spain while looking for a sailing ship in order to transport drugs and approach people in connection with the cannabis producers of the Moroccan Rif area.

More especially Marc LACORRE, aka 'Le Grand' appears as the one who conveys information and instructions from Gerard DUPRE within the organisation and attends to the preparation of the logistics in Spain (maintenance of the ships, organisation of sea trips with drugs, unloading and storage of the goods).

On 18th April 2008 we have been informed that Marc LACORRE had been arrested in Bridgetown (Trinidad & Tobago) from London, flight BA 2153 with French passport 04 CF 18440 issued by the authority in Hauts de Seine country on 14th December 2004, reported stolen as blank under the name of Marc Alain BARONNET born 11th May 1958 in Bordeaux and a national ID card under the same name, no.B061092058542."

In short, the particulars reveal that the appellant was a member of a criminal organisation engaged in drug trafficking on an international scale by importing cannabis resin from Morocco to Spain.

6. The information required by section 2(4)(c) of the Extradition Act 2003 is as follows:

"(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 the offence."

7. The first complaint made before the District Judge was that while the warrant alleges two separate offences, conspiracy and substantive, it fails in its recitation of the facts to distinguish the conduct alleged in each case. While this was a ground advanced before the District Judge, Ms Freeman, on behalf of the appellant, has wisely abandoned this ground of appeal. The District Judge was not concerned with an examination of the evidence upon which the charges were founded, only with the issue whether the criminal conduct alleged was sufficient to identify the extradition offences. I agree with the District Judge that the criminal conduct alleged was sufficiently identified in these respects and further particulars were not required.
8. It was secondly asserted that the offences were not sufficiently identified in time and place. This ground is pursued before us, but in a more limited form. The particulars provided are that the offences took place in 2004, 2005 and 2006. A similar point as to the vagueness of the allegation was taken by the appellant in Crean v Ireland [2007] EWHC 814 (Admin). Sexual offences were alleged to have been committed on unknown dates over four separate 12-month periods and one separate 2-year period. Beatson J, sitting in this court, said in his judgment at paragraph 18 that more specific averments were not required by the Act. I agree. It is, as I think Ms Freeman now recognises, commonplace that the prosecutor can establish activity taking place within a bracket of dates, but on specific days he is unable to identify. Were the requirement that specific dates must be identified in a warrant, it seems to me that the purpose of the warrant -- that is reciprocity between member states founded on confidence in the integrity of their respective legal systems -- would be defeated (see in this respect Office of the King's Prosecutor Brussels v Armas [2005] UKHL 67 per Lord Bingham of Cornhill at paragraph 2).
9. Ms Freeman raises a further argument as to the dates identified which she progresses as follows. The intelligence on which the prosecutor relied was received in January 2004. The warrant, she submits, reads as if the activity specified took place before January 2004 and was itself the subject of the intelligence. That being the case, the conduct identified cannot, as asserted, have taken place in 2004, 2005 and 2006. There is either an internal contradiction in the warrant or the alleged conduct cannot have occurred during the period the warrant claims. Furthermore, there is no identification in the warrant of any conduct of this appellant taking place in France during the period 2004 to 2006.
10. In my judgment, the warrant cannot be read as a pleading or a statute. It is a natural inference from its contents that the intelligence was received by the French authorities in January 2004 which led to an investigation revealing the specified activity taking place between 2004 and 2006. I express the opinion that it is a natural inference because the duration of the conduct establishing the two alleged offences is explicitly identified. It would, in my view, be perverse to construe the particulars as Ms Freeman invited us.
11. As to place, it is asserted that the named conspirators met to further these offences both in France and Spain. It is submitted that the information provided failed to identify any particular combinations of the conspirators in any particular places on any particular occasions. District Judge Tubbs, in considering the same submissions, summarised the effect of the information provided in the warrant as follows:

"The particulars of the conduct alleges, amongst other things, that Paris Police undercover intelligence had shown 'a team of experienced mobsters . . . had switched to drug trafficking [of] cannabis resin on an international scale . . . these individuals would organise sea trips of huge quantities of cannabis resin between the Moroccan coastline and Spanish coast in the vicinity of Alicante'.

The particulars also state that the criminal organisation was made up, among others, of Gerard Dupre, Eric Partarrieu, Guy Petit, Abdelkrim Boucorra, Cherif Temmat and the defendant Marc Lacorre. All these persons are alleged to have met several times in France and Spain while looking for a sailing ship in order to transport drugs and approach people in connection with the cannabis producers of the Moroccan Rif area. The defendant's alleged role is further particularised as 'More especially Marc Lacorre, aka 'Le Grand', appears as the one who conveys information and instructions from Gerard Dupre within the organisation and attends to the preparation of the logistics in Spain (maintenance of the ships, organisation of sea trips with drugs, unloading and storage of the goods)'."

She concluded:

"The defence submission is that there is a lack of sufficient particularity, eg, the particulars should go beyond saying the named alleged co-conspirators met in France and Spain and specify the place of each meeting and which of the co-conspirators were present and specific details of the defendant's role in the meetings. It was further submitted that in relation to the substantive offence of drug importation that details should be provided of the type, number and location of ships used to smuggle the drugs and details of how, when and where the drugs were unloaded and stored, and in what quantity. In my view this goes far beyond what is required by section 2(4)(c) given its plain and ordinary meaning. The particulars of time and place, the criminal conduct and the defendant's alleged participation in the two alleged offences are specified in sufficient detail to satisfy the requirements of section 2(4)(c) and I find that the EAW [European Arrest Warrant] is a Part 1 Warrant within the meaning of the Act."

12. In reaching that conclusion, the District Judge had considered the judgment of Auld LJ in Fofana and Another v Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) at paragraph 39:

"Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal 'pleading' vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:

' . . . the background to the relevant provisions made in the 2003 Act is an initiative of European law and . . . the proper administration of those provisions requires that fact to be borne firmly in mind . . . the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme . . . '."

13. In my view, and for the reasons the District Judge gave, she was right to decide that this warrant complied with the terms of section 2(4)(c) of the Act.
14. The second ground concerns section 10(2) which provides:

"The judge must decide whether any of the offences specified in the Part 1 Warrant is an extradition offence."

15. The warrant specifies the following alleged conduct as the extradition offence for the purposes of section 10(2) and section 64(2): "Illicit trafficking in narcotic drugs and psychotropic substances". The requesting state must further satisfy the requirement of section 64(2)(a), which requires that the relevant conduct occurred in the category 1 territory and that no part of it occurred in the United Kingdom.
16. It is sufficient for the purposes of paragraph (a) if some of the conduct took place within the requesting category 1 territory and none of it took place within the United Kingdom (see the speeches of Lord Bingham of Cornhill and Lord Hope of Craighead in Office of the King's Prosecutor Brussels and Armas and Others [2005] UKHL 67). It is accepted that none of the conduct alleged took place in the United Kingdom and the issue before us is whether it took place in France.
17. The District Judge concluded in respect of the conspiracy charge that, since the arrangements were in part alleged to have been made during meetings between the conspirators in France, that requirement of section 64(2)(a) is satisfied. I agree. Can, however, the same be said for the substantive offence, "Importation, transportation, possession, sale, commercialisation of drugs"?
18. There are, as Lord Hope said in Armas, two ways in which an offence can be committed within the relevant territory for the purpose of section 64(2) and section 65(2) of the Act. The first is by conduct within the territory which can be said to take place in the performance of the offence. The second is by conduct outside the territory, bringing about harm within the territory. While Lord Hope was dealing with a conviction case considered under section 65(2) and (3), the relevant words in section 64(2) and (3) are identical.
19. When considering the requirement that "the conduct occurs within the category 1 territory", Lord Hope said this:

"34. Common to the first condition about the place of the conduct, irrespective of the subsection under which it has to be satisfied, are two questions: (1) whether the person must be within the territory of the requesting State at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory. In many cases, of course, these will not be live issues as it will be plain that the conduct occurred exclusively in the territory of the requesting State. But many of the offences in the Framework list such as trafficking in human beings are commonly committed across borders. The appellant is alleged to have engaged in conduct of that kind, so these questions must be addressed in his case.

35. The answers are to be found in the first place in the language which has been used by the legislature which Lord Bingham has analysed. The context in which that language has been used is, of course, provided by the common law. It is provided in particular by the rules which apply when jurisdiction is claimed on the basis of territoriality. It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there. That rule is matched by its corollary which is that, if the effects of those actions were intentionally felt here, criminal jurisdiction can be exercised in respect of their effect irrespective of where the actions took place that gave rise to them . . . "

Later at paragraph 40, Lord Hope continued:

" . . . The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory . . . "

20. Ms Freeman submits that the only activity by the appellant in France conducted in pursuance of the offences named in the warrant are conversations between the conspirators. If the court were to conclude that that was sufficient for the allegation of conspiracy -- and for my part I do so conclude -- the question remains whether the warrant identifies any conduct in furtherance of an importation, transportation, possession, sale or commercialisation of drugs within the jurisdiction of the category 1 territory.
21. Ms Freeman submits that the conduct described is drug trafficking in general from Morocco to Spain. No particular allegation of importation, et cetera, is made, let alone any importation, et cetera, within the jurisdiction of France. It cannot therefore be said that the warrant identifies conduct within the category 1 territory in furtherance of the commission of a substantive offence in France. I accept that submission.
22. It does not follow that the requesting state's warrant must fail in such circumstances. Some states exercise jurisdiction over its own nationals committing offences abroad. France is one of those states. It can do so by virtue of section 2, Article 113 of its criminal code. But there are qualifying conditions. There is, however, no indication in the warrant that France is, on this occasion, seeking to exercise such a jurisdiction.
23. This raises the question whether it is possible to infer that the substantive offences alleged did occur within France. In my view, it is not possible to draw that inference, because the warrant is specific about importation to Spain but utterly silent about any substantive conduct in France.
24. Ms Collins, on behalf of the respondent, drew our attention to the decision of this court in Boudhiba v Central Examining Court No 5 National Court of Justice, Madrid [2006] EWHC 167 (Admin), and in particular to the words of Smith LJ at paragraph 38. She was dealing with the application of section 64(3) to the facts of that appeal. It was not, as I understand it, in issue that the conduct identified constituted an offence within the jurisdiction of Spain. The question in that case was whether any part of the conduct took place in Spain. Smith LJ said:

"38. As to that, it is true that some of the alleged conduct took place outside Spain. But that does not matter so long as some of the conduct alleged in respect of each offence took place in Spain. In my view, it did. There is an allegation that, for a time, the appellant was living in Bilbao and was involved in the receipt of money from Germany which was used for terrorist purposes and also in the forgery and distribution of false documents including passports for use in terrorist activity. It is alleged that during this time he was a member of Al-Qaeda. In my judgment, that is enough to satisfy subsection 3(a)."

I do not consider that Smith LJ's conclusion in that respect assists in the resolution of the present issue.

25. At the 59th minute of the 11th hour, Ms Collins invited us to consider whether the warrant could be sustained under section 64(5) which reads as follows:

"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied --

(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;

(c) the conduct is so punishable under the law of the category 1 territory (however it is described in that law)."

The critical paragraph is (c). There may be, as I have observed, circumstances in which the conduct alleged is punishable under the law of France, but Ms Collins had no instructions about it and the warrant contains no information which purports to support it. She is unable to advance subsection (5) as an alternative gateway to the extradition offences in these circumstances.

26. This then brings me to the alternative section 64(2) route adopted by the District Judge. In my judgment, her reference to unlawful enrichment of the conspirators (an enrichment which may have been enjoyed in France) was stretching the concept of intended effect too far. Lord Hope was not talking merely about gaining from criminal conduct, but the denouement of the offence itself. To give an example, the appellant in this case could have made all the arrangements in Morocco to bring about an importation from Spain to France. That offence would have been committed in France, notwithstanding his absence throughout from France. The reason is that the object of the offence and its intended effect would be felt in France. Illegal enrichment or money laundering is not charged against this appellant and it is not an intended effect of the type to which, in my view, Lord Hope was referring.
27. The question remains whether it can be said that by conducting in France arrangements for the transportation of illegal drugs from Morocco to Spain, the appellant was participating in the importation, transportation, possession, sale or commercialisation of drugs in France. In my opinion, it cannot. It is open to this court to draw natural inferences, but not by guesswork, to fill in an obvious gap in the information provided in the warrant. Lord Hope at paragraph 48 of Armas expressed approval for the caution advised by Crane J in R (on the application of Bleta) v Secretary of State for the Home Department [2005] 1 WLR 3194. He said this:

"48. I would wish to hear further argument on this issue before concluding that the approach which Crane J took to the facts . . . was the correct one, especially as your Lordships were not referred to his decision during the hearing of this appeal. It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied. But those against whom the system for extradition is invoked are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information, it ought not to be filled by mere guesswork."

28. I therefore conclude that in respect of the second and substantive charge, the warrant has failed to identify an extradition offence within the meaning of section 64(2) of the 2003 Act. The appellant should accordingly be discharged in respect of the substantive charge and the extradition should proceed on the conspiracy charge alone. To that extent, I would allow the appeal.
29. MR JUSTICE GROSS: I agree, and I add only a sentence so far as concerns ground 2 and the substantive offence. For my part, even giving the European Arrest Warrant its most sympathetic reading, I am unable to conclude that the facts therein set out satisfy the test of section 10(2) and section 64(2)(a) of the Extradition Act 2003. These are questions of fact and degree and in this case, on these facts, the warrant strikes me as on the wrong side of the line.
30. MS FREEMAN: My Lord, one further application. It is an application I make in respect of costs. I would ask for a representation order to be assessed.
31. MR JUSTICE PITCHFORD: I am sorry, I misunderstood you, Ms Freeman. Are you asking for an order for costs against the respondent?
32. MS FREEMAN: My Lord, no. I am asking for an assessment of the representation order.
33. MR JUSTICE PITCHFORD: The answer to that is yes.
34. MS FREEMAN: Thank you, my Lord.