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
		24th May 2011

1. MR JUSTICE LLOYD JONES: This is an appeal by Mr Lazlo Harmatos pursuant to section 26 of the Extradition Act 2003 against the order of District Judge Nicholas Evans ordering his extradition to Belgium.
2. His extradition is sought by the public prosecution office in Dendermonde, Belgium in order that he may serve a sentence of three years' imprisonment imposed in his absence. The European Arrest Warrant was issued by Deputy Public Prosecutor Ann Soenens on 8th October 2010 and it was certified by the Serious Organised Crime Agency on 13th January 2011.
3. The appellant was convicted before the Belgian court of six offences that were dealt with in the warrant under different headings. FACT A deals with the offence of belonging to a gang since 16th March 2009. The district judge found that this offence did not qualify as an extradition offence. FACT B states that the appellant entered a property in Zingem on 19th March 2009 and stole a sum of money. FACT D states that the appellant stole a sum of money in Zele on 27th March 2009 and furthermore he was convicted of stealing a number of items on 1st May 2009. FACT E states that the appellant attempted to steal property on 29th April and 3rd May respectively. It is common ground between the parties that the conduct alleged in respect of FACTS B, D and E would constitute an offence had it been committed in England and Wales.
4. The appellant was arrested on the European Arrest Warrant on 13th January 2011. He was produced before District Judge Grant at the City of the Westminster Magistrates' Court on the same day, when the matter was adjourned. The following day he was brought before District Judge Evans. No issues were taken under sections 4 and 7 of the Act. The appellant did not consent to his extradition and the hearing ended in the appellant being remanded into custody.
5. On 8th February, the substantive extradition hearing was heard by District Judge Evans and at the end of the hearing the judge reserved his judgment. On 17th February, District Judge Evans handed down his judgment and ordered the appellant's extradition to Belgium in relation to all the offences save that set out in FACT A. The District Judge found that this offence did not qualify as an extradition offence on the ground that it did not satisfy the requirement of double criminality.
6. The respondent does not appeal District Judge Evans' decision to discharge the appellant in relation to FACT A.

Ground 1

7. The appellant submits that the respondent is the King's Prosecutor in Dendermonde. On the face of the warrant, he submits, it has not been issued by the judicial authority but by a prosecution authority. On behalf of the appellant, Mr Atlee submits that the Framework Decision permits the prosecution authority to assist the competent judicial authority but not to assume the role of the judicial authority. He says that a prosecution authority is not competent to issue an European Arrest Warrant within the provisions of the Framework Decision.
8. Preamble 5 to the Framework Decision states that the intention is to abolish extradition between Member States and to replace it by a system of surrender between judicial authorities. It also states that traditional co-operation relations between Member States should be replaced by a free movement of judicial decisions in criminal matters.
9. Article 1(1) of the Decision states that the European Arrest Warrant is a judicial decision. Article 1(2) states that the Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision.
10. Article 6 provides in relevant part:

"1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law."

Article 7 provides in relevant part:

"1. Each Member State may designate a central authority or when its legal system so provides, more than one central authority to assist the competent judicial authorities.

11. Section 2(2) of the Extradition Act 2003 provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory. Section 2 then sets out the required contents of a valid Part 1 warrant. Section 2 also makes provision for the issue of a certificate and provides:

"(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the Category 1 territory.

(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State."

12. The authority designated by the Secretary of State for the purposes of Part 1 of the Act is the Serious Organised Crime Agency. It has the power of certifying warrants under section 2 (see the Extradition Act (Part 1 Designated Authorities Order) 2003 SI 2003/3190. On 13th January 2011, the designated authority issued a certificate under section 2 of the Act which certified that the warrant with which we are concerned was issued by the judicial authority of the Category 1 territory which has the function of issuing arrest warrants.
13. On this first ground of appeal, the appellant submits that the European Arrest Warrant is a judicial decision and the issuing authority must therefore be a judicial authority. While non-judicial authorities may be separately appointed to assist the competent judicial authorities as central authorities, they may not assume the role of a competent judicial authority.
14. Mr Atlee submits that the Framework Decision has the same binding effect as a directive made under Article 249 of the Treaty on the European Union and he submits that the recognition by the Serious Organised Crime Agency of the respondent prosecution authority as a judicial authority competent to issue this European Arrest Warrant is inconsistent with the implementation of the objectives of the Framework Decision. In particular, he puts his case on the basis of an abuse of process. He points to Tollman (R (on the application of the United States of America) v Senior District Judge Bow Street Magistrates' Court [2006] EWHC 2256 (Admin)) paragraph 84 in the judgment of Lord Phillips. He says that this case satisfies all of the requirements for showing an abuse of process, in that the conduct, that is the recognition of the prosecution agency as a judicial authority contrary to the objectives of the Framework Decision, can be identified with particularity; it is capable of amounting to an abuse of process; there are reasonable grounds for believing that that conduct may have taken place; and the court cannot be satisfied that an abuse has not occurred.
15. This point was taken below before District Judge Nicholas Evans. He considered that the Serious Organised Crime Agency certificate provided conclusive evidence for the purposes of an extradition hearing that the judicial authority that had issued the warrant before him was indeed the judicial authority of a Category 1 territory which has the function of issuing warrants. He observed:

"Under civil law systems throughout Europe many prosecuting authorities fulfil some judicial functions and there is nothing remotely odd in the Public Prosecution Office in Belgium issuing this EAW. I reject issue 1 as providing no basis for refusing to extradite this defendant. It is not for the extradition court ... to question the certificate and any such questioning can only be done in the Administrative Court if a judicial review is sought against SOCA for having allegedly wrongly issued their certificate."

16. The respondent submits first that this court has no power under section 27 to deal with this submission of the appellant. Such a challenge, it is submitted by Mr Grandison on behalf of the respondent, can be brought only by way of judicial review or an application for habeas corpus.
17. Mr Atlee for the appellant accepts that this ground cannot be advanced within the close structure of the Act but invites this court to reconstitute itself as an Administrative Court for the purpose of hearing this ground of challenge. We do so for the purpose of hearing an application for permission to apply for judicial review of the decision of the designated authority to grant this certificate.
18. We note that a similar argument to that advanced on behalf of this appellant was considered in Enander v Governor of Her Majesty's Prison Brixton, the Swedish National Police Board [2005] EWHC 3036 (Admin). There an objection was taken on behalf of Mr Enander that the Swedish National Police Board was not a judicial authority. The court rejected that submission. At paragraphs 23 to 25, Gage LJ said this:

"23. It seems to me that the clear purpose of the sections in the legislation was to put in place the provisions of the Framework Decision. It is common ground, as I have said, that that was the case, and I accept Mr Caldwell's submission that the object was to harmonise the arrest warrants throughout the member states of the European community. That part of the general principles, to which I have referred, seems to me to demonstrate that that was so.

24. In my judgment, in all the circumstances, the expression 'judicial authority' in section 2(2) must be read against the background of the Framework Decision and what it was intended to put in place. The Framework Decision leaves to the individual member state the right to designate its own judicial authority.

25. Mr Hardy points out that the 2003 Act does not define the term 'judicial authority'. But, in my judgment, whilst that is not determinative of the proper interpretation, it points towards an acknowledgment that it is left to the member states to use their own discretion as to what will or will not be designated the appropriate judicial authority. In my opinion, any other interpretation of the term judicial authority would, as is submitted on behalf of the respondent, undermine the whole purpose of mutual trust and co-operation between member states, which is expressed in the Framework Decision."

Then at paragraph 28 he said:

"As I have indicated, the factor which I have found most helpful in reaching my conclusion is the provisions of the Framework decision itself, and in particular Articles 6(1), (2) and (3). Having reached that conclusion, the evidence demonstrates that the respondent is the relevant judicial authority and that, for these purposes, that authority was delegated to one of its officers ..."

Similarly, Openshaw J said this at paragraphs 29 to 30:

"29. The essential flaw in the applicant's argument, to my mind, is in seeking to define the expression 'judicial authority' in section 2(2) of the Extradition Act 2003 as if it stood in isolation; whereas, in my judgment, plainly it is to be interpreted in the light of the Framework Decision of the European Union passed on 13 June 2002, which Part 1 of the Act sought to implement. By Article 6(3) it is for the requesting state to designate who is the competent judicial authority within that state. That concept underpins entirely the co-operation and trust between Member States on which the whole scheme of the European Arrest Warrant is based.

30. Sweden having validly appointed the Swedish National Police Board as the judicial authority to issue warrants in respect of persons already convicted of crime after judicial trial, this court, it seems to me, is bound to recognise the validity of that warrant. Any other interpretation of section 2(2) of the 2003 Act would require each executing State to investigate whether the function of issuing the warrant in the requesting State was undertaken by someone who would in this country be recognised as a person exercising a judicial function. Such an inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament."

19. The approach of the appellant in the present case differs somewhat from that of the appellant in Enander in that here it is submitted that there has been an abuse of process. Mr Atlee has, as I have already indicated, referred to the well-known principles laid down in Tollman. However, this does not seem to us to alter the substance of the application in any way. Furthermore, Mr Atlee seeks to distinguish Enander on the basis that Enander fails to distinguish between the different roles indicated in articles 6 and 7 of the Framework Decision. However, it seems to us that this is not a material distinction and that the passages which I have just cited are expressed in very general terms clearly wide enough to apply to this case.
20. For the reasons given by the Divisional Court in Enander, I consider that it is not appropriate for this court to embark on an investigation of the status of the requesting authority in its legal system and in particular to consider whether it meets criteria which we, in our domestic legal system, would normally associate with a judicial body. But, in any event, in this case the appellant has produced no evidence whatsoever to support his argument that the respondent is not a judicial authority and that it is not competent to issue European Arrest Warrants under the scheme of the Framework Decision. Mr Atlee asks us to infer from the title of the respondent that it is not a judicial authority. It does not seem to us that this is a legitimate approach. Accordingly, for these reasons, I would refuse permission to apply for judicial review and would dismiss ground 1.

Ground 2

21. The appellant submits that the European Arrest Warrant is invalid by reason of the insufficiency of its particularisation of the sentence or sentences imposed for the extradition offences.
22. The warrant in box (c) under the heading "Length of the custodial sentence or detention period order imposed" simply refers to an aggregate sentence of three years' imprisonment. On behalf of the appellant, Mr Atlee points to the fact that the District Judge ordered the appellant's extradition to Belgium in relation to all of the offences of the warrant with the exception of FACT A. On that matter, he was discharged on the ground that it could not be classified as an extradition offence. Mr Atlee submits that the aggregate sentence stated in the warrant therefore no longer meets the requirements of section 2(6)(e) of the Act. He says that the information contained in the warrant does not permit the court to identify with particularity the terms of imprisonment imposed in respect of the offences capable of being extradition offences.
23. He also submits that, as a result of the discharge of the appellant on FACT A, the conduct alleged in the remaining matters does not constitute an extradition offence or offences within section 65(3)(c).
24. Section 2(6)(e) provides:

"(6) The information is—

...

(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."

Section 10 provides:

"10 Initial stage of extradition

(1) This section applies if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing.

(2) The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence.

(3) If the judge decides the question in subsection (2) in the negative he must order the person's discharge.

(4) If the judge decides that question in the affirmative he must proceed under section 11."

Section 65(3)(c) provides:

(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

...

(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct."

25. In addition, the Extradition Act 2003 (Multiple Offences) Order 2003 provided for certain modifications to the Act. These modifications include, in paragraph 1(1) of the schedule, a provision in the following terms:

"Unless the context otherwise requires, any reference in the Act to an offence (including a reference to an extradition offence) is to be construed as a reference to offences (or extradition offences)."

26. This point was taken before the District Judge on a contingent basis. The District Judge did order the discharge of the appellant on FACT A and then went on to deal with this point. He referred to the decision of the House of Lords in Pilecki v Circuit Court of Legnica, Poland [2008] UKHL 7 and to the judgment of Swift J in Kucera v District Court of Karvina, Czech Republic [2008] EWHC 414 (Admin). He concluded that the aggregate sentence of three years' imprisonment was sufficiently particularised for the purposes of section 2(6) of the 2003 Act.
27. In Pilecki the question for consideration was whether for the purposes of Part 1 of the Act it has to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where the person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period. In that case, further information supplied to the court showed that the appellant had received a variety of sentences for each of the offences of which he had been convicted and that some of the sentences were for periods of less than four months and some were for longer periods.
28. Lord Hope, with whom the other members of the Committee agreed, referred at paragraph 32 to the decision of the European Court of Justice in Case C-105/03 Criminal proceedings against Pupino [2006] QB 83, where the Court at paragraph 42 laid down the principle that, when applying national law, national courts called on to interpret it must do so far as possible in the light of the wording and purpose of the Framework Decision. He then said at paragraphs 33 and 34:

"33. Adopting that approach to the construction of the 2003 Act, it seems to me that section 2(6)(e) does not present a problem. As modified, it requires information to be given of particulars 'of the sentence which has been imposed under the law of the category 1 territory in respect of the offences.' The singular use of the word 'sentence', even in multiple offence cases, matches exactly the wording of the Annex to the Framework Decision. Nor does section 65(3)(c) present a problem either. It refers to 'a sentence of imprisonment or another form of detention ... [that] has been imposed in the category 1 territory in respect of the conduct.' This wording too is consistent with the Framework Decision.

34. The problem lies only in the wording of section 10 as modified in the case of multiple offences. Section 10(2) requires the judge to decide whether 'any of the offences' specified in the Part 1 warrant is an extradition offence. I would hold that it is unnecessary, in a conviction case to which section 65(3) applies, for the judge to ask himself whether the sentence that was passed for each offence satisfies the test that is set out in section 65(3)(c). If the other requirements of section 65(3) are satisfied, all he needs to do is to determine whether the sentence for the conduct taken as a whole meets the requirement that it is for a term of at least four months. If it does, he must answer the question in subsection (2) in the affirmative and proceed to section 11: section 10(4). The information on which this decision is to be based must be found within the Part 1 warrant itself: section 2(6)(e). Further information such as that which was made available in this case will be irrelevant to his decision on this issue."

29. What then is the position if, as occurred in the present case, one of the offences fails to meet the requirements of section 65(3)(b)? In particular, what is the significance of Lord Hope's words in paragraph 34 "If the other requirements of section 65(3) are satisfied ..."?
30. Three weeks before the decision in Pilecki, a Divisional Court (comprising Latham LJ and Cooke J) decided Wiercinski v Second Division of the Criminal Circuit in Olsztyn, Poland [2008] EWHC 200 (Admin). There the warrant related to three offences: theft, possession of heroin and failure to maintain a child. The third was not an extraditable offence because it did not satisfy the requirement of double criminality in section 64(3)(b). Latham LJ, with whom Cooke J agreed, said at paragraph 14 of his judgment:

"The district judge concluded that those provisions did indeed satisfy the specialty requirements and she described the position as resulting in the sentence for the non-extraditable offence being 'ring-fenced'. The difficulty I have with that argument is that there is no way that this court can in fact determine the extent to which the aggregate sentence reflects the sentence which the court considered appropriate for failing to provide for his son. This court is accordingly unable, it seems to me, to carry through into this situation the logic of this court in Trepac and Pilecki. It simply is not possible for this court to feel any confidence that it can identify the extent to which in truth the two remaining offences capable of being extradition offences do meet the requirements of 65(3)c. Accordingly, it is not possible to identify, as required by section 2(6)e, the term of imprisonment for those two offences and the specialty arrangements do not seem to me to be capable of putting right that difficulty on the facts as we have them in the papers before us."

The reference to Pilecki there is a reference to Pilecki in the Divisional Court.

31. Mr Atlee has drawn to our attention two decisions of the Irish courts which take the same line on this issue as did this court in Wiercinski. Those decisions are of course concerned with the Irish legislation implementing the Framework Decision. In Minister for Justice, Equality and Law Reform v Ferenca [2008] IESC 52, a decision of the Supreme Court on 31st July 2008, Murray CJ concluded that, because it was not possible to disaggregate the sentences in circumstances where one of the offences was not an extradition offence, the offender could not be surrendered for the purpose of serving his sentence. That decision was followed by Denham J in Minister for Justice, Equality and Law Reform v Kizelavicius [2009] IESC 74.
32. In March 2008, in Kucera v District Court of Karvina, Czech Republic, this court considered the impact of Pilecki in a case where one of the offences which had given rise to the aggregate sentence did not meet the requirements of section 65(3). Swift J, with whom Richards LJ agreed, dealt with the matter in the following way:

"55. In Pilecki, the court held that it was unnecessary, in a case to which section 65(3)(c) applies, for the court to ask itself whether the sentence that was passed for each offence satisfies the test in that subsection. If the warrant specifies that a single sentence was passed for multiple offences, the court should not go behind that sentence in an attempt to ascertain how it was made up. The question is whether the position is different if, as in this case, one of the offences specified in the warrant has failed the dual criminality test and cannot form the subject of extradition. In Pilecki, the court was aware (although it held that the information was irrelevant to its considerations) that, if examined individually, the sentences imposed in respect of some of the offences specified on the EAWs would not have been capable of meeting the requirement imposed by section 65(3)(c) (because the original sentences of imprisonment identified were for periods of less than four months), so that the relevant offences would not if examined individually have constituted extradition offences. Nevertheless, the House of Lords declined to look at the individual offences separately and instead held that the correct approach was to look at each of the two single sentences of imprisonment identified in the warrants as having been actually imposed for the offences and to decide whether that sentence met the condition specified in section 65(3)(c). It therefore confirmed the requested person's extradition for all the offences specified in the two warrants.

56. It seems to me clear that, although the factual background of this case is slightly different, the principle is the same. This court should not go behind the sentence specified in the warrant and seek to separate what part of it can be attributed to the failure to pay maintenance and what part to the theft. To quote Keene LJ in Trepac, the sentence cannot be "disaggregated". I do not consider that, by referring in Pilecki to the other requirement of section 65(3) being satisfied (see paragraph 48 of this judgment), Lord Hope intended to suggest that the principle could not be applied in a case such as the present one; he was dealing with the facts as they were in that case. Since the sentence imposed in the present case is for a period of four months or more, it fulfils the condition in section 65(3)(c) and the offence therefore satisfies the requirements for an extradition offence.

57. In reaching this conclusion, I do not of course overlook the decision in Wiercinski. However, at the time the court decided that case, it did not have the advantage of having before it the decision of the House of Lords in Pilecki, which was given very recently. It seems to me that, had the court in Wiercinski had the opportunity of studying the statements of principle set out in that case, it might well have come to a different conclusion."

33. The approach adopted in Kucera was also followed by Jackson LJ in Zboinski v Circuit Law Court in Swidnica Poland [2010] EWHC 558 (Admin). This, again, was a case of multiple offences, one of which did not satisfy the double criminality test. Having been referred to Pilecki, Wiercinski and Kucera, Jackson LJ considered first whether this was a Part 1 warrant within section 2(5) and (6). He then turned to consider whether the requirements of section 10 were satisfied and concluded that they were:

"40. In my view it is implicit in the reasoning of the House of Lords in Pilecki that the court should disregard the fact that individual offences, listed in the European arrest warrant, do not satisfy the definition of 'extradition offence' if (a) the total sentence exceeds four months and (b) some of the offences listed satisfy the requirements of section 65. In this regard I agree with the reasoning of Swift J in Kucera at paragraphs 51 to 57 of her judgment. Accordingly, I shall follow the decision of this court in Kucera. I shall not follow the decision in Wiercinski."

Mr Atlee has told us today that Jackson LJ certified a point of law of public importance. However, he refused leave to appeal to the Supreme Court. The Supreme Court has been asked to grant leave and their decision is awaited.

34. In approaching these issues, it is necessary to proceed through the Act in the methodical order indicated by its provisions. As Scott Baker LJ observed in Sonea v Mehedinti District Court [2009] EWHC 89 (Admin) at paragraph 16:

"The structure of Part 1 of the Extradition Act 2003 envisages a step by step approach by the judge. Each step requires consideration of a particular question and its answer determines the next move that the judge is required to make."

35. Thus it is necessary to consider first the issue of the validity of the warrant. The court is not at this stage concerned with the question of whether or not the conditions specified in section 65, including double criminality, have been met (see Pilecki at paragraph 33 and Kucera at paragraph 54).
36. Under section 2(6)(e), the warrant must contain "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". That provision is modified by the Extradition Act 2003 (Multiple Offences) Order 2003, as I have already indicated.
37. As modified, section 2(6)(e) requires information to be given of particulars "of the sentence which has been imposed under the law of the Category 1 territory in respect of the offences". The sentence that was imposed under the law of the Category 1 territory in respect of the offences was a sentence of three years' imprisonment. Accordingly, the requirements of section 2(6)(e) are satisfied. The fact that a single sentence was passed in respect of six different offences did not invalidate the warrant (in this regard see Pilecki at paragraph 3).
38. It is then necessary to move on to consider section 10, which in turns refers to the definition of an extradition offence in section 65(3). Because more than one offence is specified, it is necessary to apply section 10 as modified by the order. The District Judge was required to ascertain whether any of the offences specified in the Part 1 warrant is an extradition offence as defined in section 65(3).
39. With the exception of FACT A, all of the conduct specified in the warrant would constitute an offence or offences if committed in England and Wales. They satisfy the double criminality test in section 65(3)(b).
40. However, when one turns to section 65(3)(c), it is not possible to say what specific sentence has been imposed in respect of any specific offence. To my mind this does not lead to the conclusion that the offences are not extradition offences within section 10. I find myself in total agreement with the reasoning of Swift J in Kucera and that of Jackson LJ in Zboinski. In particular, it follows from the reasoning of the House of Lords in Pilecki that it is not necessary to disaggregate the total sentence imposed and to apply it to each specific offence in order to determine whether the sentence imposed in respect of each offence satisfies the test in section 65(3)(c). If the court in Wiercinski had had the advantage of the analysis in Lord Hope's speech in Pilecki, it may not have come to the conclusion that it did. In any event, matters have now moved on and in relation to the specific point which arises for consideration here, I would follow Kucera and Zboinski in preference to Wiercinski.
41. Accordingly, ground 2 also fails.
42. For these reasons, I would dismiss the appeal against the order of District Judge Evans made on 17th February 2011.
43. MRS JUSTICE DOBBS: I agree.
44. MR ATLEE: I have no applications.
45. MRS JUSTICE DOBBS: Thank you very much.
46. MR JUSTICE LLOYD JONES: Thank you.