IN THE MATTER OF AN APPEAL UNDER SECTION 26 OF THE
EXTRADITION ACT 2003
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
| THE JUDICAIL AUTHORITY OF THE COURT OF FIRST INSTANCE, HASSELT, BELGIUM
|- and -
Mr N Yeo (instructed by CPS HQ) for the Defendant/Appellant
Hearing date: 15 March 2010
Crown Copyright ©
Lord Justice Toulson:
"This warrant has been issued by a competent judicial authority. I 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."
"arrest warrant by default, issued by investigating judge D. JORDENS, court of first instance in Hasselt (Belgium), the 4th of May 2009."
"Illegal possession, importation, exportation and sale of drugs and psychotropic substances, with the aggravating circumstances that the offences constitute actions of participation in the principal or additional activity of an association: imprisonment of 10 to 15 years…
Having been part of a criminal organisation: imprisonment of 5 to 10 years…
Money laundering: imprisonment of 15 days to 5 years…"
"A Belgian criminal investigation has produced serious indications a criminal organisation surrounding [VW, VV] and other persons surrounding them is committing serious and large scale international drug trafficking and money laundering the profits which result from these activities.
The Belgian criminal investigation has produced serious indications, since October 2008, the organisation surrounding [VW] has performed at least 12 large scale narcotics transports to Great Britain. May 6 2009, based on designations from the Belgium police force, the German customs services managed to intercept one of these transports in Germany. It proofed (sic) to be a British lorry having a cargo of 400 kg of amphetamines and 130 kg of cannabis on board. There are indications March 25 2009 and April 15 2009 similar cargoes have been transported to Great Britain.
Resulting several telephone interceptions, the Belgian criminal investigation has produced serious indications that BARTLETT Warren is responsible for passing orders of narcotics to [VV] and is also involved in the transportation of these narcotics.
It also seems he is responsible for the financial handling of the narcotics which are delivered in Great Britain, since the multiple mobile text messages appear to relate to the price that has to be paid and the manor (sic) in which the price has to be paid. He also seems to have close connections to a person nicknamed "Jack", who is responsible for managing the financial interest of the organisation surrounding [VW].
Hence, there are serious indications BARTLETT Warren is part of the British branch of the organisation surrounding [VW and VV] which occupies itself with drug trafficking and money laundering."
"Since there are serious indications BARTLETT Warren is part of a criminal organisation which is established and residing in Belgium, and since he has performed actions of participation in the criminal acts which took place in Belgium, by Belgian law the facts of which he is charged can be considered to be committed as a whole on Belgian soil."
"(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.
(10) The mechanism of the European Arrest Warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in article 6(1) of the Treaty on European Union, determined by the council pursuant to article 7(1) of the said treaty with the consequence set out in article 7(2) thereof."
"1. The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. 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.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union."
"(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of article 2;
(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."
Extradition Act 2003
"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category one territory and which contains –
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or…
(3) This statement is one that –
(a) the person in respect of whom the part 1 warrant is issued is accused in the category one 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 one territory for the purpose of being prosecuted for the offence.
(4) The information is –
(a) particulars of the person's identity;
(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 the place at which he is alleged to have committed the offence and any provision of the law of the category one 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 one territory in respect of the offence if the person is convicted of it."
Belgium is a category one territory.
"This section applies in relation to conduct of a person if –
(a) he is accused in a category one territory of the commission of an offence constituted by the conduct, or
(b) he is alleged to be unlawfully at large after conviction by a court in a category one territory of an offence constituted by the conduct and he has not been sentenced for the offence."
Section 65(1) states:
"This section applies to conduct of a person if-
(a) he is alleged to be unlawfully at large after conviction by a court in a category one territory of an offence constituted by the conduct, and
(b) he has been sentenced for the offence."
The extradition hearing
"3 Mr Hines on behalf of the defendant challenges the validity of the warrant on two grounds. The first is that the conduct alleged is not sufficiently particularised to meet the requirements of section 2 of the Extradition Act 2003. His second submission is that the defendant is merely a suspect in the Belgian proceedings, and, as he is not an accused, the warrant is not issued for the purpose of conducting a prosecution."
"The defence called expert evidence and Jorg Burnyndonckx an advocate of the bar of Antwerp specialising in criminal law gave evidence before me. He told me that the warrant for the arrest of the defendant was issued by the Examining Magistrate within the framework of a judicial investigation. He described this as a preliminary phase prior to proceedings on the merits of the case. It was an initial enquiry and not part of a criminal trial. Once that phase has been completed the matter is referred to enquiry court known as Raadkamer. It is at the Raadkamer stage that the defendant would either be discharged or referred to a trial court at which point he would be regarded as an accused. It was the witness's evidence that the investigation stage was still "pre Raadkamer" and that therefore Mr Bartlett was a suspect and not an accused. The Belgian advocate's evidence was very helpful, entirely honest and professionally objective."
"Mr Bartlett's claim that he is being extradited only to be asked questions, and not because a criminal investigation has been initiated against him, is completely untrue…Mr Bartlett has been charged by means of an arrest warrant by default, which may only be issued if there are serious indication of guilt."
"Herewith I can expressly confirm that Mr Bartlett's extradition has been demanded for the purpose of bringing criminal prosecution against him and not only for the purpose of having him interrogated by the Examining Magistrate."
"The fact that my office issued an EAW against this suspect in itself is already an indication my office feels it to be absolutely necessary to have Mr Warren Bartlett detained, this way achieving this suspect to appear in front of the court who in a later stadium will have to judge the case.
Should Mr Warren Bartlett be extradited to Belgium, as soon as he is on Belgian soil, my office has 24 hours to interview him and to place him under arrest. During this interview, my office is obligated to confront him with the charges made against him and the evidence the investigation has revealed so far."
"The warrant is invalid as it does not meet the requirements of section 2 of the Extradition Act 2003 in two respects.
(a) The warrant has not been issued for the purpose of Mr Bartlett being prosecuted for the offence and Mr Bartlett is not accused in the category one territory of the commission of the offence specified in the warrant. The requirements of section 2(3) are not met. On the evidence particularly of Mr Burnyndonckx…but also from the Issuing Judicial Authority itself…it was clear that the appellant was the subject of an ongoing investigation, a suspect who was wanted for questioning by the requesting State. The issue of a European arrest warrant in such circumstances is improper and an abuse of the courts processes.
(b) The warrant sets out insufficient detail of the alleged conduct of the appellant to meet the requirements of section 2(4)(c). In particular it sets out insufficient particulars of the circumstances in which the person is alleged to have committed the offences, including where and when the offence was allegedly committed."
"(1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal.
(2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act.
(3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.
(4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure.
(5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.
(6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.
(7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
The admissibility of expert evidence
"Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who –
(a) is accused in that state of the commission of an extradition crime…
may be arrested and returned to that state in accordance with those procedures."
"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 phrase "wanted by the police to help them with their enquires". Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state an outline the approach to be adopted. The starting point is that the "accused" in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition: R v Governor of Ashford Remand Centre, ex parte Postlethwaite  AC 924, 946-947…
It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an "accused" person. All one can say with confidence is that a purposive of interpretation of an "accused" ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an "accused" person is satisfied…For my part I am satisfied that the divisional court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is "accused" within the meaning of section 1 of Act of 1989 will require an intense focus on the particular facts of each case."
"…a judge conducting an extradition hearing under section 10 of the 2003 Act may find the information presented to him is insufficient to enable him to decide whether or not the offence specified in the Part 1 warrant is an extradition offence within the meaning of section 64(2) or section 64(3). If so, he will be at liberty to request further information from the appropriate authority of the category one territory, and to adjourn the hearing to enable it to be obtained. He has not been given power to do this expressly by the statute. But articles 10(5) and 15(2) of the Framework Decision show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial cooperation on which it is based encourages this approach.
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 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."
"How does an English court decide, in the international context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "purposes of being prosecuted" (in the language of section 2(3)(a) and (b)), as opposed to a warrant which requests surrender of the requested person only for an investigation?"
More importantly, I do not consider Ms Montgomery's argument based on s10(2) and s64(1)(a) to be sound.
"What Part 1 of the 2003 Act provides for, in its simplest form…, is really just a system of backing of warrants. It is designed to enable the persons against whom they are directed to be handed over in the shortest possible time to the requesting authorities. The grounds on which a member state can decline to give effect to the European arrest warrant are…very limited.
But a system of mutual recognition of this kind, such as that which in their relations with each other the three jurisdictions within the United Kingdom have long been used to, is ultimately built upon trust. Trust in its turn is built upon confidence. As recital 10 of the preamble puts it, the mechanism of the European arrest warrant is based on a high level of confidence between member states."
Compliance of the warrant with s2(3)
"If [a person] is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as "accused" even if there is there no statement using that word. The subject of such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning."
Compliance of the warrant with s2(4)
"7. I am satisfied that the warrant clearly describes the conduct giving rise to the allegation of drug trafficking. The nature of the conspiracy is described, at least two of the co-conspirators are named, the dates over which the drug trafficking took place are defined, as is the degree of involvement by the defendant. I am satisfied that the description provides the defendant with information as to the offence he [is] said to have committed and the nature and extent of those allegations.
8. In respect of the allegation of being part of a criminal organisation, Mr Hines submits that is insufficient to rely upon the defendant's association with his alleged co-conspirators and that there is nothing beyond that conspiracy which could define membership of a criminal organisation. It is not appropriate for me to enquire into the meaning within Belgian criminal law of membership of a criminal organisation. I am however satisfied that the Framework List has been ticked and that on the face of the warrant those involved in the conspiracy itself could properly be described as being part of a criminal organisation. The detail contained within the warrant is in my view sufficient to describe that conduct.
9. The warrant also seeks the return of the defendant in relation to conduct which amounts to money laundering. The relevant part of the description states "It also seems he is responsible for the financial handling of the narcotics which are delivered in Great Britain, since the multiple mobile text messages appear to relate to the price that has to be paid and the manner in which the price has to be paid…" Other than a reference to the term "money laundering" there is no other information as to the conduct which could give rise to that allegation. I do not consider that text messages as to the price of the drugs or how payment is to be made can, without elaboration, describe the offence of money laundering."
Mr Justice Griffith Williams: