QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON. MR. JUSTICE LLOYD JONES
| CRISTIAN POPA
|- and -
|REGIONAL COURT IN PLZEN MESTRO,
(instructed by Hodge, Jones and Allen) for the Appellant
Mr. Aaron Watkins (instructed by CPS Special Crime Division) for the Respondent
Hearing date: 15th February 2011
Crown Copyright ©
The Hon. Mr. Justice Lloyd Jones:
"(1) This section applies if at any time in the relevant period the High Court is informed by the designated authority that a Part 1 warrant issued in respect of a person has been withdrawn.
(2) The relevant period is the period—
(a) starting when notice of an appeal to the court is given by the person or the authority which issued the warrant;
(b) ending when proceedings on the appeal are discontinued or the court makes its decision on the appeal.
(3) The court must—
(a) if the appeal is under section 26, order the person's discharge and quash the order for his extradition;
(b) if the appeal is under section 28, dismiss the appeal.
(4) If the person is not before the court at the time the court orders his discharge, the court must inform him of the order as soon as practicable."
Miss Mannion invited the court to discharge the appellant under section 42 (3).
"The Czech Republic have cancelled the EAW of Cristian Popa dated 17 August 2009".
It went on to say that it had been replaced by a new warrant. The members of the court were satisfied that the warrant which was the subject of the appeal had been withdrawn within section 42. It followed that the appellant was entitled to be discharged under 42(3) and the order for his extradition was quashed. Mr. Jones consented to an order in those terms.
"I do not consider it is arguable that either defendant was guilty of misfeasance in public office; the claims are not well-particularised and there appears to be no sound evidential basis for a suggestion that these actions resulted from bad faith (as opposed to, at most, confusion and a lack of appreciation of what the statutory scheme required them to do)".
The abuse of process jurisdiction
"I should not leave the point without considering the nature of the juridical exercise involved in concluding as I would, that the judge conducting an extradition hearing under the 2003 Act possesses a jurisdiction to hold that the prosecutor is abusing the process of the court.
… the implication arises from the express provisions of the statutory regime which it is his responsibility to administer. It is justified by the imperative that the regime's integrity must not be usurped. Where its integrity is protected by other powers, as in the Atkinson, Schmidt and Gilligan cases, the implication is not justified. But under the 2003 Act that is not the case. The implication of an abuse jurisdiction – Lord Reid's inference – follows."
"Indeed, we would go further than this and apply to extradition proceedings the statement made by Bingham L.J., in relation to conventional criminal proceedings in R v Liverpool Stipendiary Magistrate, ex parte Ellison  R.T.R. 220, 227:
"If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to enquire into the situation and ensure that its procedure is not being so abused. Usually, no doubt, such enquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint.""
Later at paragraph 24 he addressed the procedural steps to be followed:
"No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place.
the first step must be to insist on the conduct alleged to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred…"
Finally Lord Phillips CJ stated (at paragraph 89):
"The appropriate course for the judge to take if he has reason to believe that an abuse of process may have occurred is to call upon the judicial authority that has issued the arrest warrant, or the State seeking extradition in a Part 2 case, for whatever information or evidence the judge requires in order to determine whether an abuse of process has occurred or not."
"To sustain an allegation of abuse of process in relation to proceedings under the Act, it is necessary, first to identify with specificity what is alleged to constitute the abuse; secondly to satisfy the court that the matter complained of is capable of amounting to an abuse; and thirdly to satisfy the court that there are reasonable grounds for believing that such conduct has occurred. If the matter gets that far, then the court should require the judicial authority to provide an explanation. The court should not order extradition unless satisfied that no such abuse has taken place."
The appellant's case on abuse of process.
"… there are sufficient grounds to show that the CPS kept the appellant in custody in full knowledge that EAW1 had become null and void. Those actions were unjust and unfair. The subsequent extradition proceedings…are therefore tainted by a protracted effort to keep the appellant in custody at all costs."
and further alleges that:
"The CPS breached their duty of candour to the court by not withdrawing the proceedings in relation to EAW1 until they were able to re-arrest the appellant."
(1) The CPS have a duty of candour and disclosure to the court regarding all criminal proceedings including extradition proceedings.
(2) The duty of candour to the court has not been adhered to in that the first warrant was invalid and the appellant was retained in custody so that the new warrant could be obtained.
(3) The detention of the appellant was unlawful.
(4) At the point of reissue the CPS must have known that first warrant was invalid.
(5) Nothing was done until it was possible to rearrest the appellant.
(6) There is no requirement for an extraditee to be present at a hearing where a warrant is withdrawn. That could have been done at any time by counsel from the point at which knowledge that the warrant was invalid was gained, namely 5th February 2010.
"Having considered this situation we take the view that the second EAW should not be executed unless and until the appeal against the order of extradition is allowed. It may be worthwhile for an officer to attend court next Friday in order to execute the new EAW in the event of the appeal being allowed. If the appeal is dismissed Mr. Popa can be removed on the first EAW."
"The reason that the amended EAW was sent through is that statute has changed in the Czech Republic. The original EAW has been withdrawn by the Czech Republic and therefore he cannot be extradited to the Czech Republic on the basis of this warrant. I have been advised that we are required to discharge the original EAW and arrest the subject on the new EAW, regardless of what stage his appeal is at."
She explained that she was waiting to hear from the police regarding when the appellant would be presented at the City of Westminster Magistrates' Court. On receipt of this email Mr. Sternberg sent an email to Miss Riley asking "What are we supposed to do about this then?" Later that afternoon Mr. Sternberg sent an email to Alison Riley headed "Confirmation of withdrawal of EAW" and stating "Perhaps we should seek the view of learned counsel before we decide the appeal is a nullity. In any case the new EAW will need to be executed at some point."
"We remain of the view that Mr. Popa must be produced at City of Westminster Magistrates' Court on or before Friday. Otherwise he will walk if his appeal succeeds.
Can you and Kent Police contact the Prison and stress to them that it is imperative that he be produced at court this week? …
The only alternative is to have an officer from Kent Police waiting outside the prison on Friday in the event that he is discharged. Since this depends on the view taken by the Administrative Court on being told the warrant is withdrawn it may be a waste of everyone's time."
"The appropriate plan of action is this:
1. Mr. Popa is produced to the cells of City of Westminster Magistrates' Court on Friday
2. Kent officers attend CoW and arrest Mr. Popa on the new EAW.
3. Kent officers serve Mr. Popa with a copy of the new EAW and provide a statement to the court and the Extradition Prosecutor at court saying that they have identified Mr. Popa, arrested him and served him with a copy of the new EAW.
The appeal before the Administrative Court can then be disposed of as the EAW on which it is based is no longer valid and has been withdrawn by the Judicial Authority. We can then proceed on the new EAW."
"Further to my telephone call of earlier this afternoon we can confirm that the European Arrest Warrant in relation to Cristian POPA has been withdrawn by the Issuing Judicial Authority.
The Czech Republic has reissued the warrant. Mr. Popa will be arrested on that warrant tomorrow. Our counsel has advised that the Administrative Court is therefore functus officio in relation to the appeal.
We shall invite the appellant's representatives to sign a consent order in relation to this matter withdrawing the appeal."
"Further to our previous phone call here is a run down of this afternoon's events.
(1) I have written to the court at their request explaining the EAW is withdrawn and that they are functus.
(2) I have drafted a consent order and sent it to ST Law [solicitors acting for Mr. Popa] inviting them to sign it. They phoned me back asking when we knew about the new EAW and the withdrawal of the old EAW. I declined to answer their question.
(3) Amy Mannion [counsel for Mr. Popa] then phoned me. I explained the situation – that we are of the view that the court is functus and the RP will be arrested on the new EAW and dealt with on that. She queried under what power the RP was held and said they may apply for habeas corpus.
In my view the RP remains remanded in custody lawfully on the old EAW until such time as (1) the appeal is withdrawn (won't be before tomorrow) (2) the court decides it is functus officio (3) the new EAW is arrested. (sic) The RP was RIC by the DJs at CoWMC…He was also refused bail by the Admin court on March 30th. He is therefore lawfully in custody again until the Admin court decides that there is no appeal or hears and allows the appeal. By that time he will already be held by Kent Police as a person wanted for arrest on an EAW so there is no time not lawfully in custody.
I am not an expert on habeas corpus, so am happy to be corrected on my reasoning, but this email might help if there is such an application.
"Further to our conversation a short while ago in which you confirmed that
- the EAW upon which Mr. Popa is currently detained has been withdrawn
- that a new EAW has been certified by SOCA
- and that CPS has arranged for Mr. Popa to be transported from HMP Wandsworth tomorrow morning to the City of Westminster Magistrates' Court where he will be arrested.
Please can you confirm at a matter of urgency
- the date (and time of possible) upon which the warrant was withdrawn in the Czech Republic
- the date and time this information was provided to the CPS
- the date upon which the new warrant was issued in the Czech Republic;
- whether the matter of the status of the warrant (currently under appeal) has been raised before any UK court to date. If so when and where?
- Please could you provide answer within 30 minutes of receipt of this message. I am sure you will appreciate the urgency of this matter."
Mr. Sternberg forwarded the message to Alison Riley and Mr. Jones of counsel observing that he did not intend to respond unless either of them thought that he should.
"In relation to recent correspondence and discussions regarding the cancellation of an EAW in the case of Popa and the issuance of a new EAW, please find attached the decision cancelling an EAW dated 8 March 2010.
It appears that the situation is, in fact, this:
On 17 August 2009, the District Court of Plzen issued the EAW which is the subject of today's appeal ("the District Court EAW").
On 11 January 2010, the Regional Court of Plzen (the higher court) issued an EAW in respect of the same offences ("the Regional Court EAW").
Some time subsequent to 11 January 2010, SOCA (presumably) informed the Regional Court of Plzen that the EAW was not acceptable, because the offences were set out in an appendix – this explains the words in the decision of 8 March 2010, "the British party was not satisfied with the formal execution of the European Arrest Warrant, and insisted on including the description of the crime directly into the European Arrest Warrant, instead of the applicable Appendix"
Hence on 8 March 2010, the Regional Court in Plzen cancelled the EAW issued on 11 January 2010. We have not seen a copy of that EAW.
On 8 March 2010, the Regional Court in Plzen issued a new EAW ("the 2nd Regional Court EAW") with the offences included in the body of the EAW itself. This is the EAW upon which Mr. Popa is due to be arrested.
As of this moment, therefore, the District Court EAW has NOT, in fact, been withdrawn. From that point of view, today's appeal could proceed. Arrangements were put in place for Mr. Popa to be arrested on the 2nd Regional Court EAW at City of Westminster Magistrates' Court today. However, he has refused to board the van from HMP Wandsworth to attend the City of Westminster Magistrates Court."
(1) On 8th April 2010 Mr. Sternberg was suggesting that the third warrant should not be executed unless and until the appeal is allowed and that if it was dismissed the appellant could be removed on the first warrant. On the face of it, that would be a most improper course if he was aware that the first warrant was invalid and that there was an obligation to draw that matter to the attention of the court. However, this suggestion was made before he was firmly advised by SOCA that the first warrant had been withdrawn and that the appellant could not be extradited on the basis of that warrant.
(2) The CPS and in particular Mr. Sternberg certainly became aware that the first warrant was no longer valid and had been withdrawn. On 8th April SOCA had advised Mr. Sternberg that it was necessary to discharge the first warrant and to arrest the appellant on the third warrant, regardless of what stage the appeal had reached. In setting out his plan of action on 13th April Mr. Sternberg states that the first warrant is no longer valid. However, he seems to have been genuinely confused as to the effect of the withdrawal of the first warrant on the proceedings. On 8th April he is suggesting that they seek counsel's advice "before we decide the appeal is a nullity". On 12th April he refers to "the view taken by the Administrative Court on being told the warrant is withdrawn" in terms which suggest that he believes that more than one outcome may be possible.
(3) The "plan of action" email of 13th April clearly shows that the CPS was aware that the first warrant was no longer valid and had been withdrawn and that Mr. Sternberg knew that the appellant was in custody on a warrant that was no longer valid. However the email has to be considered in its factual context. The whole point of the third warrant was to render the appeal moot. The mere fact of seeking to rely on a new warrant would not in itself be improper unless the person responsible was aware of the requirements of section 42 and was deliberately dragging his feet for administrative convenience. On the evidence of this email there is no suggestion that anyone was aware of the existence of section 42.
(4) There seems to have been no intention to withhold from the Divisional Court the fact that the first warrant had been withdrawn. On 12th April he refers to the future status of the appellant depending upon the attitude of the Divisional Court on being told that the warrant has been withdrawn. The plan of action of 13th April involves executing the third warrant and telling the Divisional Court what has happened. On 15th April Mr. Sternberg wrote to the court informing it that the first warrant had been withdrawn.
(5) Mr. Sternberg's letter dated 15th April to the court reveals some muddled thinking in relation to the appeal before the court. The appellant was not bound to withdraw the appeal nor was the court functus. However there is nothing here to suggest that the CPS had considered section 42 or was aware of its implications.
(6) Mr. Sternberg's email of 15th April to Mr. Jones of counsel shows further confusion on the part of Mr. Sternberg. His analysis makes little sense and is clearly wrong in law. However, I consider that this is a statement of the views he genuinely held at the time. In particular, I consider that Mr. Sternberg believed that the appellant was lawfully held in custody. If Mr. Sternberg was acting in bad faith and knew that he was doing wrong I very much doubt that he would set out his thoughts to counsel in this way. Once again this email strongly suggests that Mr. Sternberg was simply unaware of section 42.
(7) Mr. Josse was very critical of Mr Sternberg's letter to the court dated 16th April. He says that the author knew that the first warrant had been withdrawn and that in stating that it had not he was attempting to mislead the court. It is difficult to see how Mr. Sternberg could have persuaded himself that the first warrant had not been withdrawn and remained valid. He says he did not have a copy of the second warrant (which in fact expressly stated that it replaced the first warrant). However, he was in possession of a copy of the third warrant which also expressly stated that it replaced the first warrant. Nevertheless, I am persuaded that this is another example of muddle on the part of Mr. Sternberg. His conclusion that the first warrant remained valid and had not been withdrawn is totally at odds with three other statements by him.
(a) On 13th April he had sent an email to Mr. Jones stating that he had confirmation from the Czech judicial authority that the first warrant was now formally withdrawn.
(b) On 15th April he had written to the court stating that the first warrant had been withdrawn by the issuing judicial authority.
(c) On 15th April he had sent documents to the appellant's solicitors which we have not seen but which immediately prompted the question when he knew about the withdrawal of the first warrant. (See Mr. Sternberg's email of 15 April to Mr. Jones). This strongly suggests that he had told the appellant's solicitors that the first warrant had been withdrawn.
If he really was attempting to mislead the court, this would have been an extraordinary way to set about it.
(8) To my mind nothing in this documentary history suggests that Mr. Sternberg or anyone else involved in this matter on behalf of the CPS was aware of section 42, strange as that may seem. On the contrary, all the indications are that the persons responsible for this matter at the CPS had no understanding of the duty, albeit one which fell principally on SOCA as the designated authority, to notify the court of a withdrawal of a warrant or the consequences of doing so.
(9) It was Mr. Jones of counsel who raised with SOCA the question whether it had informed the High Court of the withdrawal of the first warrant in accordance with section 42. He did so in an email of 16th April, shortly before the hearing, because the defence had raised it with him. SOCA's response showed that those responsible there did not understand how these warrants were to be viewed.
"...it cannot, given the circumstances, possibly be regarded in itself as an abuse of process so as to taint in any way the reinstitution of proceedings following the issue of a third properly certified warrant. The only basis urged by Mr. Lloyd was, as I have said, that, for the court not to mark what happened on 28th April as an abuse of process by discharging Mr. Lopetas, would be to condone the unlawfulness. Such a submission is totally inappropriate to the circumstances of this case, the facts of which disclose, whether lawful or unlawful, no error in the way in which the proceedings were reinstituted. This does not approach the egregious conduct that the court has considered, notably that in Bennett which was touched on in argument.
17. As to Mr. Lloyd's third argument, that the District Judge could and should have investigated against the possibility, prompted by the error of 28th April, that there might have been some skulduggery here, for the reasons given by the District Judge, there was clearly no basis for such suspicion."
Lord Justice Toulson