England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		12 October 2009

Monday 12 October 2009

LORD JUSTICE SCOTT BAKER: Mr Justice Cranston will give the first judgment.

MR JUSTICE CRANSTON:

1. These are appeals under Part 1 of the Extradition Act 2003 ("the 2003 Act") against a decision of District Judge Evans to order the extradition of the appellants. That part of the 2003 Act implements the European Community Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA).
2. The appeals concern two European Arrest Warrants issued by a French judicial authority under Part 1 of the 2003 Act. The first warrant refers to Paul Johnson; the second to Martin Stevens. Both relate to a criminal prosecution for two offences of complicity in the importation of drugs through organised crime and complicity in the importation in contraband of prohibited goods. The warrants have been issued by an associate prosecutor at the Lille Magistrates' Court.
3. Both warrants have the following introductory passage. In English translation it reads as follows:

"The present warrant has been issued by a competent judicial authority. I request that the person mentioned hereunder be arrested and handed over to the judicial authorities for the purposes of conducting criminal prosecution or in executing a custodial sentence or executing a detention order."

The warrants go on to indicate the duration of any sentence. The maximum specified is 30 years' imprisonment for the importation under contraband of prohibited goods through organised crime, and 10 years' imprisonment for the smuggling of prohibited goods. Complicity is punishable "with the same sentence" as a result of the French penal code.

4. Under the heading "Description of the circumstances in which the offences were committed, including the date and time, the place and the involvement of the persons wanted", the warrant for Paul Johnson records that on 25 September 2008 French customs officials were on inspection duties at a border post with Belgium when a Citroen C3 vehicle drove off at high speed. The warrant explains that, following a car chase, the customs officials picked up two bags containing 28 kilos of cocaine and 5.7 kilos of heroin which had been thrown out onto the road. A few hours later the customs officials found the vehicle and apprehended the driver, Robert Briscoe, and his passenger, Anthony Johnson (who is no relation to Paul Johnson, named in the warrant). The warrant recalls that Anthony Johnson explained about the importation of narcotic drugs. He told the officers that that day a bus driver named Wayne from the Clarkson Coach Company at Pontefract was to transport drugs to Britain.
5. On the same day the customs officers inspected a bus driven by Wayne McNulty. They found 89.4 kilos of heroin in the baggage hold. Anthony Johnson and Robert Briscoe, who were both former drivers from the Clarkson Coach Company, indicated that they acted on behalf of Paul Johnson. They also admitted having undertaken several trips on behalf of Paul Johnson or Michael France. Anthony Johnson estimated having transported drugs on seven or eight occasions. According to the drivers, Paul Johnson had set up an independent drug trafficking enterprise for some months after a difference of opinion with Michael France. The drivers confirmed in front of the investigating judge their implication of Paul Johnson and Michael France as silent partners in the drug trafficking.
6. The warrant in relation to the appellant, Martin Stevens, essentially tracks that for Paul Johnson. However, a further person is introduced, namely Malcolm Tingey, who was with McNulty and was Martin Stevens' associate in a taxi company in England. Tingey explained that McNulty had been successively contacted by Martin Stevens and Michael France. McNulty admitted having undertaken five trips transporting drugs since April 2008 on behalf of Martin Stevens, for the payments of £250 to £1,000. He made clear that he thought he was transporting amphetamines. The warrant records that the French investigators had checked certain telephones and it was possible to confirm the numerous telephone contacts between Martin Stevens, Wayne McNulty and Michael France on 25 September 2008. I note that the warrant in relation to Stevens is thus to be contrasted with that for Paul Johnson, where there is no assertion that telephone calls link him (Johnson) with the other persons arrested.
7. Both warrants then set out the nature of the offences: both appellants are accused of complicity in the importation of drugs through organised crime, along with each other, Anthony Johnson, Michael France and Robert Briscoe, and complicity in the importation in contraband of prohibited goods, contrary to certain provisions of the French Penal Code and the French Customs Code.
8. The appellants were arrested in this country on 19 January 2009. They appeared at the City of Westminster Magistrates' Court. The case was adjourned on a number of occasions. Both appellants have been on bail.
9. On 21 April 2009 a letter from the French authorities was sent to Stevens' solicitor, under cover of a letter from the CPS. That letter said (in English translation):

"Following execution of the European Arrest Warrant [the defendant] will be questioned at an initial court hearing and an initial report will be drawn up by the judge dealing with the release and detention of prisoners.

In the case of a committal order being issued by the judge dealing with the release and detention of prisoners, the subject will be placed in preventative custody ...."

The Vice-President of the Lille Court confirmed on 4 May 2009 that, following their arrest, Anthony Johnson and Robert Briscoe had been remanded in custody on 29 September 2008, where they had remained pending a hearing of the case. A date for that had not been fixed. On 26 May District Judge Evans ordered the extradition of both appellants.

10. The appeal before us turns on one ground, namely that the warrant is defective in failing to comply with section 2(3)(b) of the 2003 Act, in that it does not contain an unequivocal statement that the appellants are wanted for the purpose of being prosecuted in France. Section 2(3) of the Act provides:

(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."

The accusation warrant of section 2(3) is to be contrasted with the conviction warrant in section 2(5), where someone is unlawfully at large.

11. The introductory paragraph of the warrants in this case, which I have quoted, are unclear. The person who drew them up has not struck out one of the two alternatives, whether it is an accusation or a conviction warrant. However, a consideration of the whole of the warrants shows that they are clearly a request for production for forthcoming proceedings, accusation warrants, as opposed to a request for someone already convicted.
12. The real issue before us has been the nature of the forthcoming proceedings for which the appellants are requested. The submission on behalf of the appellants is that the warrants fall on the questioning rather than the prosecution side of the line. Thus the appellants submit that extradition is being sought for an illegitimate purpose: interrogation with a view to obtaining evidence for a prosecution, rather than for prosecution itself. The appellants contend that this follows because there is no unequivocal statement in the warrants, as required by section 2(3)(b), that they are to be surrendered for the purposes of being prosecuted.
13. In his cogent submissions before us, Mr Jones on behalf of the appellants relies on this court's finding in Thompson v Public Prosecutor of Boulogne Sur Mer [2008] EWHC 2787 (Admin), where the appearance of the words "poursuites pénales" in the French warrant were held not to be sufficient to satisfy section 2(3)(b). In this case, contends Mr Jones, that phrase is repeated in the French version of the warrants, albeit that it has been translated in English in the two warrants "for the purposes of conducting criminal prosecution". Mr Jones submits that the introductory words do not say expressly "for the purposes of being prosecuted". The precise French phrase in these warrants was considered by this court in Thompson. In that case the words had been translated into English as "for legal proceedings". It was for the want of particularity in that case that the court examined the French term. The congruence of linguistic features in the appellants' cases and that of Thompson is striking. The only substantial difference between the two cases is in the differing English translations of the French phrase "poursuites pénales".
14. Secondly, Mr Jones refers to the letter dated 21 April 2009 from the French authorities, quoted earlier, which indicates that, on return to France, the appellants will be questioned at an initial court hearing following which, in his submission, one possibility is that a report will be drawn up and possibly a committal order issued. This suggested strongly that the appellants were being sought for preliminary questioning. He submits that the letter, when read in conjunction with the detailed analysis of French procedure in McCormack v Tribunal De Grande Instance, Quimper (France) [2008] EWHC 1453 (Admin), clearly demonstrates that the appellants could not be mise en examen until their arrival in France. Their status appears to be that of persons required for questioning, as opposed to prosecution.
15. Thus on behalf of the appellants Mr Jones submits that District Judge Evans erred; that since the original French text had been found wanting by this court in Thompson, the learned judge should not have accepted as satisfactory the English words used on the face of the translated version of the appellants' warrants. The terms of the original French phrase had not been held to satisfy the requirements of section 2(3)(b) of the Act in Thompson and that should have been the end of the matter. Moreover, District Judge Evans had been wrong to state that it followed from the use of the formulation in the French version of the Framework Directive that everyone understood it to mean, in the context of a European Arrest Warrant, that a person was wanted for prosecution and that it would be absurd to conclude otherwise. Mr Jones submitted that that approach effectively ignored the decision in Thompson, where those very words were held by this court not to have the effect imputed to them.
16. Thirdly, Mr Jones submits that the learned judge was wrong to ignore the April letter. The letter in its introductory paragraph conveyed a similar procedural impression as that contained in the warrant in Thompson.
17. Before addressing these submissions, I remind myself of the relevant principles. The first is, as was stated by Scott Baker LJ in Thompson, that one starts with the warrant. At paragraph 23 he expressed this view:

"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 offences, or in this case offences, that is sufficient to comply with section 2(3)(b)."

Secondly, as stated by Lord Scott of Foscote in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, at paragraph 54, it is necessary for there to be "an unequivocal statement of that purpose [ie. prosecution] in the arrest warrant itself" if the requirements of section 2(3)(b) are to be met. Thirdly, as Maurice Kay LJ pointed out in McCormack, at paragraph 6, it is important to recognise the cultural and contextual differences between our criminal procedure and that of other systems. Maurice Kay LJ quoted passages from Re Ismail [1999] 1 AC 320, 326-327, where 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 Postlewhwaite [1988] AC 924, 946-047. .... It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure ...."

18. In my view it is plain in this case that extradition is sought for the purpose of prosecuting the appellants. There is nothing in the warrants to suggest that they are wanted for questioning only. The French phrase considered in Thompson was translated into English in Thompson as "for legal proceedings". In this case the phrase was translated as "for the purposes of criminal prosecution". Significantly, in Thompson, there was a paragraph in the warrant entitled "Procedure" in which it was stated that the preliminary investigation initiated by the examining magistrate was still in progress regarding Thompson, who was alleged to have been involved in tobacco smuggling, while his alleged accomplices were placed under formal examination. It is not surprising that, given that contrast, this court said that the clear implication was that Thompson had not been placed under formal examination. Scott Baker LJ said that that being the case, he would find it difficult to conclude on the scant material before the court that the point had been reached where Thompson was wanted for the purposes of being prosecuted.
19. It is accepted that there is no comparable section contained in these warrants seeking the extradition of these appellants. However, Mr Jones contends that the April letter is equivalent to the "procedure" paragraph in the Thompson warrant. To my mind, that letter simply summarises the French procedure as described in the McCormack decision. In any event, the letter was provided by the judicial authority in response to a request for clarification following a suggestion raised by the appellants that, if extradited, they would be remanded in custody for many months pending trial. The subject of the letter is limited to that of bail. It raises no ambiguity as to the purposes for which the appellants are sought.
20. There is no doubt that the District Judge dealt with the matter robustly. His comments suggest that he may have placed too much emphasis on an assumption that everyone knows that one cannot seek the surrender of a person who is simply wanted for questioning. In my view, however, the District Judge plainly turned his mind to the relevant authorities and he correctly concluded that in the absence of anything in either warrant suggesting otherwise, the purpose for which extradition was being sought was unequivocal and was for prosecution.
21. In summary, there is nothing in the body of the warrant to suggest that extradition is sought for anything other than criminal prosecution, albeit under the French criminal procedure. I would dismiss the appeal.

LORD JUSTICE SCOTT BAKER:

22. I agree. The District Judge observed that at face value Thompson creates difficulties in all French accusation cases. I do not accept that this is so. As my Lord has pointed out, the present case is clearly distinguishable from Thompson, where the outcome turned on the particular ambiguity in the warrant. Where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning.
23. In the present case the wording of the warrants is clear. The appeals therefore fail. Thank you both for your assistance.

MR JONES: My Lord, may I trouble the court simply in relation to Mr Johnson's publicly funded costs? May I have a detailed assessment?

LORD JUSTICE SCOTT BAKER: Yes, you may have that.

MR JONES: I am most grateful.