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
		27 November 2009

Mr Justice Hickinbottom:

1. Where extradition is sought on the basis of a conviction in another state, section 2(2)(b) of the Extradition Act 2003 requires a European Arrest Warrant ("EAW") to contain, amongst other things, "particulars of the conviction". This appeal concerns the narrow but important issue of the level of information sufficient to satisfy that requirement.
2. The Appellant Constantin Sandi was born on 11 June 1991 in Craiova, Romania.
3. On 23 March 2007, he was arrested in Craiova and charged in relation to several thefts. He was released on conditional bail on 4 April 2007. However, on 1 June 2007, he was arrested again, and charged in relation to further thefts committed whilst on bail. He was released on bail again on 11 September 2007. One of the conditions of bail was that he was not to change his given residential address without the court's permission.
4. A summons was sent to that residence in respect of his trial, but he did not attend the trial, which proceeded in his absence. He was found guilty and, on 8 February 2008, again following notification to his given address, he was given an 18 month suspended sentence in his absence. However, the prosecution appealed that sentence and, on 9 September 2008, the sentence was increased to 2 years immediate custody without suspension.
5. On 30 June 2009, Judge Christian Popa, the President of the Craiova Court, issued an EAW for the arrest of the Appellant, which is the subject of this appeal. The warrant refers to the offence for which the Appellant was convicted as "qualified robbery", and the relevant provisions of the Romanian Penal Code are cited. The warrant describes the circumstances in which the offence was committed as follows:

"during 20.01.2007 - 08.03.2008 the convict, alone or with other persons, has stolen goods from the drying rooms of blocs from Craiova city, from the residences of some Owners Associations and from cars."

6. The warrant has been certified by the Serious Organised Crime Agency, and the Appellant was arrested pursuant to it on 15 July 2009. He was held in custody and produced at the City of Westminster Magistrates' Court where, on 25 September 2009, Deputy Senior District Judge Wickham ordered his extradition under section 21 of the 2003 Act. It is against that decision that the Appellant now appeals.
7. The sole ground of appeal is that the EAW is invalid because it fails to comply with the requirements for such warrants as set out in Part 1 of the 2003 Act. That Act was the means by which the United Kingdom transposed into national law the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States (2002/548/JHA; OJ 2002 L190, p1) ("the Framework Decision"). By Article 34(2) of the Treaty on European Union, such framework decisions have the same binding effect on member states as directives do under Article 249.
8. The Framework Decision is a product of the Tampere European Council of 15 and 16 October 1999 in which the concept of an area of freedom, security and justice within the European Union was first formulated. The purpose and objectives of the Framework Decision are set out in its preamble, as follows:

"(5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between member states should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice….

(8) Decisions on the execution of the European Arrest Warrant must be subject to sufficient controls, which means that a judicial authority of the member state where the requested person has been arrested will have to take the decision on his or her surrender…."

9. Article 1(2) of the Framework Decision provides:

"Member states shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this framework decision"

10. Article 17 (1) provides that an EAW shall be dealt with and executed as a matter of urgency.
11. The purpose of the Framework Decision was considered by the Judicial Committee of the House of Lords in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31. Reflecting the recitals I have quoted, Lord Hope said (at [18]):

"These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimicable to its objective."

12. The other opinions concurred. Lord Bingham added this (at [4]):

"[The Framework Decision] was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delays. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial co-operation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each others judicial institutions."

13. As this court said in relation to the requirements of the Framework Decision in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at [7]:

"As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures."

The Framework Decision therefore seeks to simplify extradition procedures between member states, within a spirit of cooperation and mutual respect, whilst ensuring that the rights of those sought to be extradited are respected.

14. However, although that is the purpose of the Framework Decision, Article 34(2)(b) of the European Union Treaty leaves the choice of form and methods to achieve the result at which the Framework Decision aims to member states. As Lord Hope indicated in Dabas at [23]:

"The United Kingdom has taken full advantage of that method of implementation".

15. It has done so in the provisions of the 2003 Act which deal with extradition from the United Kingdom. Those provisions are divided into two parts. Romania has been designated as a category 1 territory, which falls into Part 1 of the Act. Section 2 sets out the requirements for a "Part 1 warrant". The requirements are strict: those who are subject to extradition under a warrant "are entitled to expect the court to see that the procedures are adhered to according to the requirement laid down in the statute" (The Office of the King's Prosecutor, Brussels v Cando Armas and Another [2005] UKHL 67; [2005] 3 WLR 1839 at [24] per Lord Hope.
16. Although there is some considerable overlap, the requirements for a Part 1 warrant issued in circumstances where the subject is accused in the territory seeking extradition (set out in section 2(3) and (4)) are not the same as those where the warrant is issued in respect of a person who has been convicted (which requirements are set out in section 2(5) and (6)). In so far as relevant to this appeal, the information required for a warrant in respect of an accused ("an accusation warrant") includes (in section 2(4)(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".

The information required where the warrant is issued in respect of a convict ("a conviction warrant") does not have an equivalent to section 2(4)(c), but does include (by section 2(6)(b)) "particulars of the conviction".

17. The correct approach to such domestic provisions was considered in Dabas, in which Lord Bingham said (at [5], adopting what was said by the European Court of Justice in Criminal Proceedings against Pupino (Case 105/03) [2006] QB 83):

"… [W]hile a national court may not interpret a national law contra legem, it must 'do so 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 32(2)(b) EU'".

In other words, whilst it is the provisions of the 2003 Act that must be construed in relation to the requirements for an EAW, one must scrutinise the wording of those provisions purposively in the context of the Framework Decision. That is stressed in each of the substantive opinions in Dabas (in addition to Lord Bingham at [5], per Lord Hope at [25], per Lord Scott at [69] and per Lord Brown at [76]).

18. Article 8 of the Framework Decision concerns "Content and Form of the European Arrest Warrant". Article 8(1) provides that:

"The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the annexe [to the Framework Decision]…"

That information includes:

"(d) the nature and legal classification of the offence…

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing member state…"

These provisions of the Framework Decision make no distinction between accusation and conviction warrants.

19. Mr Joel Smith for the Appellant submitted that, in construing the requirement of section 2(6)(c) of the 2003 Act for a conviction warrant to include "particulars of conviction", the effective starting point is Article 8(1)(e), which requires all warrants to include "a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person", which does not expressly feature elsewhere in the requirements of Section 2 for conviction warrants. He submitted that, consequently, "particulars of conviction" can and, on a proper construction, must include the Framework Decision requirements for what he called "the particulars of the offence", which are required for accusation warrants by virtue of section 2(4)(c) of the 2003 Act. On this construction, in respect of the circumstances of a relevant offence, a conviction warrant must therefore contain the same particulars as an accusation warrant, as identified in authorities on section 2(4)(c) such as Von der Pahlen v The Government of Austria [2006] EWHC 1672 (Admin). In that case, Dyson LJ said (at [21]):

"The language of section 2(4)(c) is not obscure and, in my judgment, it should be given its plain and ordinary meaning. The sub-section requires the warrant to obtain particulars of the circumstances in which the person is alleged to have committed the offence. These particulars must include four elements: (1) the conduct alleged to constitute the offence; the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence…. [Q]uestions may arise as to how specific descriptions of time and place need be…. The use of the introductory word 'particulars' indicates that a broad omnibus description of the alleged criminal conduct, 'obtaining property by deception', to take an English example, will not suffice."

20. The evidence in this case is that a person in the position of the Appellant - who has, for whatever reason, been tried in Romania and sentenced in his absence - is entitled to a re-trial if extradited there. Mr Smith submitted that, in those circumstances, a person extradited pursuant to a conviction warrant is very nearly in the same position as someone extradited under an accusation warrant: and it is therefore understandable and rational that the requirements for information about the underlying offences are the same. In any event, he submitted, the extraditing state needs to know the underlying circumstances of the offence, so that it can ensure that there is not a bar to extradition, e.g. because of time lapse, and that the requirements of dual criminality and speciality are satisfied.
21. Miss Wilkes for the Respondent submitted that, in deliberately omitting the section 2(4)(c) requirement for particulars of the offence from conviction warrants, Parliament must have intended there to be some substantive difference between the respective requirements for accusation and conviction warrants so far as particulars of the offence are concerned. Section 2(6)(b) is in clear language: no particulars of the offence are required by it, only particulars of the conviction, namely details of the dates and courts involved in the conviction. In support of that proposition, she relied upon Zakowski v Regional Court in Szecin, Poland [2008] EWHC 1398 (Admin), to which I shall return. Reading across the requirements of section 2(4)(c) (or, indeed, any requirement for details of the underlying offences) into conviction warrants would, she submitted, be to require a reading of section 2(6)(b) contra legem.
22. In summary, therefore, it was contended by Mr Smith that section 2(6)(b) requires a conviction warrant to contain the same particulars of the circumstances of an offence as an accusation warrant: and by Miss Wilkes that the section required no details of those circumstances to be given in a conviction warrant.
23. I am afraid I cannot accept either set of those submissions as initially put in their entirety. In my judgment, the correct approach to the requirement of section 2(6)(b) ("particulars of the conviction") is as follows.
24. If a warrant fails to comply with section 2, it is void ab initio (Dabas at [50] per Lord Hope). Although in this case further information has been obtained from the requesting judicial authority, the District Judge was right to ignore it (paragraph 10 of her decision). She was bound to do so.
25. Although they have to be construed in the light of the Framework Decision, the starting point for the requirements of a conviction warrant must be the terms of the statutory provisions in section 2 of the 2003 Act (see paragraph 17 above). Mr Smith submitted that both section 2(4)(c) and section 2(6)(b) required the same level of information about the underlying conduct, because both use the term "particulars". I do not agree. In those respective provisions, that term governs entirely different things: in section 2(4)(c), it governs the circumstances in which the person is alleged to have committed the offence, whilst in section 2(6)(b) it governs the conviction. As a matter of plain English, the phrase "particulars of the conviction" does not necessarily require the same level of detail in respect of the underlying charges imported by the words of section 2(4)(c).
26. In section 2, in respect of information to be included, there is a patent dichotomy between the requirements for an accusation warrant on the one hand, and a conviction warrant on the other. Section 2(4)(c) expressly requires particulars of the circumstances of the offence to be included in an accusation warrant: section 2(6)(b) does not require those particulars in a conviction warrant. It must be taken that Parliament intended the information as to the circumstances of the underlying offence required in an accusation warrant to be different from that required in a conviction warrant. It cannot have been their intention to have the requirements of section 2(4)(c) read across into section 2(6)(b), as Mr Smith contended.
27. In seeking a rational basis for that distinction, one needs to consider the purposes of each type of warrant.
28. An accusation warrant seeks to extradite a person so that he can face a criminal charge within the state seeking extradition: therefore, as Miss Wilkes submitted, it derives its legal characteristics from the alleged criminal conduct which founds that charge in the state seeking extradition. So far as an accusation warrant is concerned, the terminology of section 2(4)(c), namely "particulars of the circumstances in which the person is alleged to have committed the offence…", therefore understandably requires more than a general indication of the alleged criminal conduct (Van der Pahlen at [21], quoted at paragraph 19 above). A significant level of particularisation is required to enable the person sought to be extradited to identify exactly what he might face at trial.
29. A conviction warrant on the other hand seeks to extradite a person to face the appropriate consequences of his conviction: therefore, it derives its legal characteristics from the conviction. The trial has already taken place and, following conviction, a considerable number of matters which are unknown at the accusation stage are no longer uncertain. For example, the basis and even the evidence upon which the conviction was found are known and fixed. It is therefore understandable that, as section 2(6)(b) requires, the warrant must inform the person sought to be extradited of the details of the relevant conviction.
30. Those details must of course include, for example, the court and date of the conviction. However, I do not accept Miss Wilkes' submission that all information about the circumstances of the underlying offences is necessarily excluded. Zakowski (see Paragraph 21 above) is not supportive of that submission, as Miss Wilkes suggested: in that case, it just so happened that the details of the occasion on which the appellant was convicted were in issue (see the judgment of Maurice Kay LJ at [15]-[18]). The question is this: in a conviction warrant, what is the required level of detail of the circumstances of the underlying offences?
31. The requirement for particularisation must be placed in the context of a legislative scheme designed to eliminate undue complexity (see paragraphs 11-13 above; and Owens v Court of First Instance Marbella, Spain [2009] EWHC 1243 (Admin) at [16]). The requirement for particularisation must not be unduly onerous on the requesting authority.
32. There is no reason why the same level of particularity of the circumstances of the offence is needed for a conviction warrant as for an accusation warrant. Article 8 certainly does not require that. It does not refer to "particulars" at all, but only to "a description of the circumstances in which the offence was committed". As Mr Smith frankly and properly conceded in the course of argument before us, the degree of particularisation required by section 2(4)(c) so far as the underlying offences are concerned clearly exceeds the level required by Article 8: or, in other words, a lesser level of information about the underlying offence would satisfy the Framework Decision. Nor does Von der Pahlen suggest that the same level of information about the circumstances in which the offence was committed is required in accusation and conviction warrants.
33. The appropriate level of particularity to satisfy section 2(6)(b) will depend upon the circumstances of each case. In relation to how far a warrant has to go in terms of particularity, I echo Dyson LJ's caution in Von der Pahlen (at [22]): it would be unwise to attempt a prescriptive answer to that question, nor do I seek to do so.
34. However, adopting a purposive approach, in a conviction warrant case, the requested person will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he has been convicted of and sentenced for - and to enable him to consider whether any bars to extradition might apply. In the light of that, and having regard to Article 8(1) of the Framework Directive, I consider that it will almost always be necessary for a conviction warrant to contain the number of offences for which the requested person has been convicted - and some information about when and where the offences were committed, and the requested person's participation in them, although not necessarily in the same level of detail as would be required in an accusation warrant. Furthermore, common sense dictates that it is likely that more particulars will be appropriate in more complex crimes such as fraud than in crimes such as simple theft. However, there is no formula for appropriate particularisation. Each case will depend upon its own facts and circumstances.
35. In view of the difference in criteria between section 2(4)(c) and section 2(6)(b), whilst the precedential value of other cases that turn on their own facts is always limited, even by way of illustration it is very unlikely that reference to earlier section 2(4)(c) cases could be helpful in relation to a case which concerns a conviction warrant.
36. That brings me to the description of the circumstances of the offences in the warrant before us which, in full, read as follows:

"The warrant relates the committing of an offence of qualified robbery. The description of the circumstances in which the facts were commited, including the moment (date and hour), the place and the degree of participation to these of the sued person: during 20.01.2007 - 08.03.2008 the convict, alone or with other persons, has stolen goods from the drying rooms of blocs from Craiova city, from the residences of some Owners Associations and from cars."

37. I note the following.
38. This passage includes in amplified form the formal parts of the standard form document, which is set out in an annex to the Framework Decision. Neither the standard form in the annex nor Article 8 itself specifically requires "the moment (date and hour)" of the offence to be set out, but only the "time" of the offence.
39. The warrant indicates that the Appellant was convicted of one offence ("an offence of qualified robbery"), involving a course of conduct from 20 January to 8 March 2007.
40. In that course of conduct, the Appellant has "stolen goods". Whilst "qualified robbery" is not a specific crime in our jurisdiction, that description is sufficient to confirm that, if done here, the Appellant's conduct would amount to (at least) an offence under section 1 of the Theft Act.
41. The goods were stolen from a variety of places: drying rooms, owner association residences and cars. Although "Craiova city" expressly refers to the drying rooms, there is a clear inference that the residences and cars were also in that city.
42. Mr Smith sought to attack the particulars on three grounds:

(i) The number of charges upon which the Appellant was convicted is not given. However, as I have indicated, the number of convictions is given, as one. As I understand it, in Romania it is possible to bring one charge on the basis of a course of conduct.

(ii) There is no reference to the identity of the victims, or addresses of the residences (or roads in which the relevant cars were) from which the thefts were made. However, that is to require far too great a degree of particularisation, equating particulars of conviction to something akin to (at least) the particulars on an indictment.

(iii) There is no indication of whether the Appellant acted alone or in concert with others, his "degree of participation" being information particularly required by Article 8(1). However, although I appreciate that this level of detail might not be sufficient if this were an accusation warrant, I am satisfied that it is sufficient for this conviction warrant. The conviction was in respect of a series of thefts from residences and cars over a two month period, and it does not seem to me that an absence of particularisation as to which particular criminal activities were committed alone and which with others substantively detracts from the ability of the Appellant to understand the conviction and its consequences.

43. In relation to potential bars to extradition, the Appellant does not suggest that any bar to extradition is in fact applicable to him: but, certainly, on the basis of the details given, it seems to me that he is in a position to consider any bars to extradition that may apply to him. The description indicates that the goods were "stolen", and hence, as I have already indicated, there is no difficulty with the dual criminality requirement in this case. Nor is there any difficulty about specialty: the Appellant is being extradited for the one offence for which he has been convicted. In any event, we are concerned here with the validity of the warrant, which does not necessarily turn upon the absence of bars to removal being apparent from the face of the warrant.
44. Finally, Mr Smith submitted that the position of the Appellant was tantamount to that of an accused person because, on any return, he would have a right to a full re-trial. However, I do not consider that is so. That he has that right does not mean that there will in fact be a re-trial. If there is, it will be a re-trial of the Appellant for the offence for which he currently stands convicted, and, as such, the potential scope of the case against him is necessarily defined and restricted.
45. In all of the circumstances, I do not consider that the relevant details in this warrant are a "mere vague description of a robbery or theft" (Appellant's Skeleton Argument, paragraph 26). That is what the District Judge meant when she said that, "This is not a Von der Pahlen situation" (Paragraph 9 of her decision) - a reference to Dyson LJ's comments made in the different context of an accusation warrant, of a "broad omnibus description of the alleged criminal conduct" (Von der Pohlen at [21], quoted at paragraph 19 above). I am satisfied that, looking at the warrant in this case from a purposive standpoint, it adequately sets out the "particulars of conviction", including within that term the necessary details of the circumstances of the offence which underlies the conviction.
46. For those reasons, I consider the warrant conforms to the requirements of Part 1 of the 2003 Act, and I would dismiss this appeal.

Lord Justice Moses:

47. I agree.