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
		9 March 2010

1. LORD JUSTICE LAWS: I will ask McCombe J to give the judgment of the court.
2. MR JUSTICE MCCOMBE: This is an appeal under section 26 of the Extradition Act 2003 by Kurtis Mighall ("the appellant") against an extradition order made on 7 December 2009 by District Judge Evans sitting in the City of Westminster Magistrates' Court. The order was made pursuant to a European Arrest Warrant issued by the respondent judicial authority in Palma de Mallorca in Spain on 2 October 2009. On 14 November the appellant was arrested. He was brought before the District Judge, and that judge then made the order now under appeal on 7 December.
3. The warrant specifies one offence of illicit trafficking in narcotic drugs and psychotropic substances, contrary to article 368.1 of the Spanish Criminal Code, for which it is stated a maximum sentence of five years' imprisonment is available. The circumstances of the alleged offence are stated in the warrant in the following terms:

"On 25/6/06, 601 tablets which turned out to be MDMA with a total weight of 138,766 [grams], a bag of 0.276 [grams] of MDMA and a paper wrap with what turned out to be 0.406 [grams] of cocaine were found on the defendant and his room-mates. These substances, up to 5,881.54 Euro worth on the market, were going to be sold by the defendants to other persons. The facts took place in the early morning on 23 June 2006 on the street Avda, Soliveras, in front of the discoteque BCM in the town of Magalluf - Calvia - Spain."

4. Before the District Judge and in this court the point taken by the appellant is a short one, and is this. It is submitted that Article 1 of the Council Framework Decision 2002/548/JHA of 13 June 2002 requires that the warrant relied upon must be for the purposes of a prosecution or for executing a custodial sentence order, but not for both. It is argued that the warrant in this case infringed that requirement in failing to specify properly for which of the two purposes extradition was requested.
5. Article 1 of the Framework Decision is in the following terms:

"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."

6. Article 8 then provides as follows:

"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(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;

(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;

(g) if possible, other consequences of the offence."

7. It is to be noted that Article 8 refers to a prescribed form in the annex to it, which is the form that this warrant took. These provisions are reflected in domestic terms in section 2 of the 2003 Act in the following terms:

"2. Part 1 warrant and certificate

(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

(3) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 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 1 territory for the purpose of being prosecuted for the offence.

(4) The information is—

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(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;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.

(5) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.

(6) The information is—

(a) particulars of the person's identity;

(b) particulars of the conviction;

(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;

(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."

8. It is clear from reading them that those provisions draw distinctions in the information to be provided in a warrant between (on the one hand) a warrant issued for the purposes of prosecution and (on the other hand) a warrant issued for the execution of a sentence. Article 8 of the Framework Decision obviously envisages the same printed form to be used in each case, and for it to be adapted for a prosecution or an execution of sentence as appropriate.
9. The warrant in this case was in the customary form, identifying itself in the first page as a European Arrest Warrant and containing the usual statement as follows:

"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."

It does not surprise me to hear this morning that authority exists in this court for the proposition that it is not a necessary element of the validity of a warrant for the non-applicable part of that statement to be deleted.

10. On page 2 of the warrant in the present case, particulars of the appellant's identity are given. The issue of a domestic Spanish warrant is identified in terms of a "search warrant and committal to prison", and a maximum sentence for the offence is stated. Those particulars, therefore, met the requirements of section 2(4)(a), (b) and (d). Over the page on page 3, the spaces provided for a statement of sentence imposed in the case, as would be required under section 2(6)(e) in an execution of sentence case and the remaining sentence to be served, have been left blank appropriately for a prosecution case. Then in section (e) on that page there appears a statement of the circumstances of the offence (already quoted) as required by section 2(4)(c) in a prosecution case. Such a statement is not required in a case where there has already been a conviction (see section 2(6)).
11. Page 4 of the warrant in this case is blank as containing no relevant matters to be completed. Page 5 sets out the details of the prosecuting authority in Spain, which is in fact of course the respondent to the present appeal.
12. On that material, it is submitted by Mr Atlee in careful written submissions, supplemented to us succinctly this morning, that the warrant is in effect a hybrid in that it fails to identify whether it is issued for the purposes of prosecution or the execution of a sentence. It is therefore argued that it is defective. That argument was rejected by the learned District Judge below in the following terms:

"Under the framework decision there is a power for a JA [judicial authority] to issue an EAW [European Arrest Warrant] either to seek arrest of someone for criminal prosecution or to serve sentence or detention order. It can only be one or the other. That is clear from the framework decision. In this case, by purposes of elimination it is clearly not seeking the execution of a custodial sentence. It mentions the sentence that may be imposed. The box re actual sentence is left blank as is the remaining sentence to be served. It is clearly an accusation warrant. I reject the argument that it does not comply with section 2."

13. For my part, I agree with that reasoning and cannot, with respect, express the reasons any better than the learned District Judge did in that short passage. All the details required by section 2 in the case of a prosecution warrant are to be found in the document. Information which would be required in the case of a warrant for the execution of a sentence does not appear, and information which would not be required in a sentence case (that is, for example, about the circumstances of the offence) does appear. It is quite clear to my mind that the purpose of this warrant was properly specified when the document is read as a whole. That impression is not contradicted by the descriptive title of the warrant form, given on its first page.
14. In my judgment, the District Judge was correct in his decision and in his reasons. For my part, I would dismiss this appeal.
15. LORD JUSTICE LAWS: So would I, and for the same reasons.