England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		22 October 2010

1. LORD JUSTICE MOSES: This is an appeal from an order of District Judge Zani of 3rd June 2010. On that date he ordered the appellant's extradition at the request of the Juzgado de Instruccion Cinco de Palma de Mallorca, the judicial authority, against Dr. Meizoso-Gonzalez pursuant to a European Arrest Warrant issued on 5th February 2010. The appeal raises the not unusual problem of whether the extradition warrant is issued for the purpose of being prosecuted for an offence constituting an offence or offences for which the appellant may be extradited. The problem is whether, as the appellant contends, the extradition is sought merely so that he should be investigated as to whether he is guilty of an offence or whether it is for the purposes of his prosecution. The problem is particularly acute where, under the criminal process in question, the Spanish criminal system, investigation and questioning takes place as part of the process of prosecution. The starting point must be the warrant by which the appellant's extradition was sought. It contains on its face a statement:

"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."

No one suggests that the purpose of the warrant is for executing a custodial sentence or detention order.

The warrant sets out the offences as follows:

"on the complaint from 29/6/2006 filed in name of Pilar Montaner it is stated that the defendant aiming to appropriate two plots of land valued in two million six hundred ninety-one thousand and two hundred euros made her, by means of deceit, sign general powers of attorney which were used to convey illegally the estate of the complainant.

Furthermore, there is also explained the psychological ill-treatment, insults, threats and constant intimidation and coercion and the situation of psychological terror. The facts took place in Palma de Mallorca (Balearic Islands)(Spain) and started between 1st and 31st April 2002."

2. The extradition offences are not those printed on the form but have been added by the Judicial Authority as being fraud and an offence against moral integrity. Later in the warrant the Judicial Authority issuing the warrant is identified and a file reference given, "diligencias previas 2539-2006". Those are the relevant parts of the warrant.

There is now ample authority for the proposition that, absent any equivocal statements within the warrant or ambiguity, it is to the warrant that the District Judge or the court on appeal must look to determine the question posed by section 2 of the Extradition Act 2003, namely whether a Part 1 arrest warrant contains the statement that the person named is accused in the category 1 territory of the commission of an offence specified in the warrant, and that the 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 (see section 2(3)(a) and (b) of the Extradition Act 2003).

3. That it is to the warrant that one must look is confirmed in the authorities relating to the regime under the Framework Directive. In Office of the King's Prosecutor Brussels v Cando Armas and Another [2005] UKHL 67, [2006] AC 1 Lord Scott said:

"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)."

Thus, when it is suggested that the purpose of the warrant is to extradite a person for investigation and not for prosecution, it is to the warrant that one must look. Normally, one will have to look at no more than the expression of the purpose at the beginning and the statement of the offences and look at the rest of the warrant to see whether within it there is any equivocal statement which undermines the purpose for which it is stated that the warrant was issued.

4. The question of whether, as Aikens LJ put it in Asztaslos and the Szekszard City Court, Hungary [2010] EWHC 237, this case has crossed the boundary from investigation into prosecution (see paragraph 37) must be answered in accordance with the discipline and rigour expressed in that case and in the decision of the Divisional Court in The judicial authority of the Court of First Instance, Hasselt, Belgium v Warren Bartlett [2010] EWHC 1390. In Asztaslos Aikens LJ summarised the effect of a number of decisions as follows:

"(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 clearly 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."

5. That approach was followed in the judgment of Toulson LJ in Warren Bartlett where he rejected an attempt on behalf of the appellant to introduce extraneous evidence in order to establish that the purpose of the extradition was for investigation. Toulson LJ said:

"Article 1 of the Framework Decision defines an arrest warrant as including a warrant issued with a view to the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution; and it requires member states to execute an EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 8 requires that the EAW should contain evidence of an arrest warrant within the scope of Articles 1 and 2. Whether the person's surrender is being sought for the purposes of conducting a criminal prosecution is a matter peculiarly within the knowledge of the requesting authority. The Act requires the EAW to contain a statement to that effect. If the EAW contains a statement to that effect, it would be inconsistent with the terms of the Framework Decision and the principle of mutual confidence that the United Kingdom court should investigate the matter further."

6. In Asztaslos the court concluded that the extradition warrant was for the purposes of prosecution and referred to the documents that the police had produced containing statements from alleged victims and child psychologists (see paragraph 45). In Bartlett Toulson LJ looked at the warrant and referred to the fact that it stated that the Belgian criminal investigation had produced serious indications of the appellant's guilt of drug and other offences (see paragraph 53).
7. The question in this case, therefore, following those principles as I seek to do, is whether the warrant did contain an unequivocal statement as to the purpose for which it was issued, namely for conducting a criminal prosecution. True it is that is the statement which appears at the front of the document. If there was nothing within the warrant which in any way cast doubt on the accuracy of that statement, that would be an end of the matter. The description of the offences, referring as it does merely to the complaint, does not of itself undermine that as being the purpose. It is trite to observe that the warrant need not refer to the evidence on which the accusation is based, nor is it for this court to inquire into the nature, still less the strength, of the evidence on which the accusation is based.
8. There is, however, one important aspect of the warrant to which I have already referred, namely the file reference. This was not translated but, as I have said, contains the words "diligencias previas" without any further explanation. It was no doubt those words which prompted on 8th January 2010 the appellant to obtain expert evidence from Jose de los Santos Ostos, a professor of procedural law at the University of Seville, Spain. In his statement the appellant's solicitors asked at what stage the proceedings had reached. Professor Ostos responded that the case was at the first stage of investigation of an offence alleged by the plaintiff in a private complaint (Querella). He continues:

"The first phase of investigation has not yet been completed, nor has the opening of an oral trial been requested, and the documents of accusation have not presented.

That is to say, the proceedings in this case are at the first stage of investigation, called preliminary inquiry (Diligencias Previas), and that means that Dr Meizoso is not accused of any crime whatsoever, but is the defendant (imputado) in a legal investigation being carried out into his alleged commission of an offence."

9. The third question asks what diligencias previas means. An answer is given consistent with the previous answer and asserting that the true prosecution only takes place at the phase of oral trial. This statement prompted a riposte from the Judicial Authority herself. On 10th February 2010 she wrote to the liaison magistrate referring to the Framework Decision which establishes that an EAW should be ordered for the purposes of conducting a criminal prosecution, referring to domestic statute to the same effect and continuing:

"3. The EAW is issued to arrest and surrender a person subject to criminal proceedings as these are the proceedings where the criminal prosecution is conducted (European Arrest Warrant for preventative/investigating purposes). It can be issued in any stage of the proceedings, whether in the investigation stage or for the oral hearing to be held.

The issuing of this EAW is the procedural need for Mr Meizoso to be present in the criminal proceedings that were initiated in this court in 1996; his arrest has been ordered as he has always failed to appear when summonsed, and he has to be examined as alleged offender, being the public and/or private prosecution afterwards entitled to request his custody or any other measure restricting his freedom.

The terms used in the Spanish Law for criminal procedure 'alleged offender', 'prosecuted', 'culprit', 'defendant', correspond to the different stages in criminal proceedings where a criminal prosecution is being conducted deriving from the commission of an offence."

In a later letter the Judicial Authority wrote on 19th April 2010:

"1. The criminal proceedings cannot continue to the second stage if Mr. Meizoso Gonzales hasn't declared as accused. Precisely because Mr Meizoso Gonzalez has failed to appear before the court when he was summoned we have ordered his detention and because the proceedings are on hold, this is the reason for issuing the European Order of Detention and Surrender. If the proceedings continue being on hold and Mr Meizoso Gonzalez remains absent this circumstance will be to his benefit, because with the time passing by, the supposed crimes will prescribe.

In Spanish criminal law to give leave to the complaint is processed through a justified resolution which means that the legal and factual appraisal of the crimes attributed to the accused and the European Order of Detention and Surrender has been issued against Mr Meizoso Gonzalez because he hasn't given any statement to, in his case to refute the evidence put forward by the accusation.

In Spanish criminal law the proceedings can be started or through filing a complaint by the private prosecution in court, exposing determined facts that are criminals, like for example a complaint filed by an individual at court or at the police. The fact whether there is a prior police investigation does not determine or prevent processing of the criminal proceedings, also during this processing, the judge can entrust the investigation that he considers appropriate to the criminal investigation department."

The judicial authority uses interchangably the expression "criminal proceedings" and "criminal prosecution". In her letter dated 10th February 2010 it is plain that she is well aware of the purposes of the European Arrest Warrant consistent with the Framework Decision and that it is for the purposes of a criminal prosecution and regards both the investigation stage and the oral hearing as being part of the criminal proceedings, namely the criminal prosecution.

10. In my judgment, absent the words in the warrant "diligencias previas", there would be nothing equivocal within the warrant at all. Following the principles identified both in Asztaslos and in Bartlett, there would be no warrant whatever for looking at any of the extraneous evidence. Since those words have not been translated it was therefore necessary for some translation to be obtained to see whether there was any ambiguity or equivocation as to the purpose of the extradition. After all, those words were part of the warrant and the warrant has to be read as a whole.
11. The fact that the prosecution is at what Mr Ostos describes as a preliminary inquiry was not a ground for questioning the statement of purpose contained in a warrant issued in Spain, in a recent decision of this court, Street v Spanish National Court which has not yet been corrected, CO/4780/2010. Mr Grandison for the judicial authority recalled such decision had been given but it was the diligence of the court reporter that led to this court being able to obtain a copy of the unrevised judgment. I should record that the copy was obtained from the shorthand transcribers and that Nicol J, who gave the judgment, has read it through speedily and has given permission for the case to be cited. It is apparent in that case that the warrant also referred to preliminary investigation in summary proceedings. The court then went on to look at the warrant and reached the conclusion, having regard to the warrant itself without reference to any extraneous material, that it was issued for the purpose of prosecution. Nicol J found that the warrant read as a whole was not ambiguous as to whether the appellant was wanted for the purpose of conducting a prosecution or for the purpose of some preliminary stage prior to the conducting of the prosecution, notwithstanding the reference to which he referred, to a preliminary investigation in summary proceedings.
12. In my judgment, having regard to the need for trust in the judicial authorities of those countries which fall within Part 1 of Category 1 and Part 1 of the Extradition Act 2003, it is not possible for this court to go behind the express statements from the judicial authority as to the purpose of the extradition. True it is that she refers to investigation but there is ample authority and example of cases where, notwithstanding the fact that the extradited person or others are to be questioned and notwithstanding the fact that investigations are continuing, the process still forms part of the process of prosecution. Examples were provided to this court in decisions such as Paschayan v Government of Switzerland [2008] All ER(D), [2008] EWHC 388. In my view the District Judge was entitled to look at the extraneous material but was none the less bound to follow that which the warrant said was the purpose of the extradition in the light of the statements made by the judicial authority. The judicial authority showed that she appreciated the purpose for which an extradition warrant could be issued and made clear that the statement which it contained was an accurate description of its purpose. In those circumstances, I dismiss the appeal advanced on the ground that the purpose of the warrant was investigation and not prosecution.
13. The second ground was advanced only faintly since it would not amount to a bar to the extradition of this appellant. One of the offences for which his extradition was sought was an offence against moral integrity set out within the description of the complaint. It was said that it lacked sufficient particularity to establish that it amounted to conduct which would be criminal conduct within England. However, in my judgment, as Mr Grandison demonstrates, it was a sufficient description to fall within the scope of harassment contrary to section 2 of the Protection from Harassment Act 1997. That ground also fails. For those reasons I dismiss this appeal.
14. MR NEWTON: May I ask for a detailed assessment?
15. LORD JUSTICE MOSES: Yes.