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
		17 January 2012

LORD JUSTICE AIKENS:

1. Glen Howell is a British citizen who is now aged 38. He appeals the order of District Judge Zani made in the City of Westminster Magistrates' Court on 14 November 2011, that he be surrendered to the Court of Appeal of Douai, France, pursuant to a "conviction" European Arrest Warrant ("EAW") dated 26 January 2010 in order that he serve a custodial sentence of 2 years 11 month and 3 days. That is the balance of a sentence of 42 months imposed or confirmed by the 4th Chamber of criminal appeals of the Court of Appeal of Douai on 21 May 2008. It appears that, at the same time, Mr Howell fled back to England, where he now resides.

The history of the case

2. The EAW was certified by the Serious Organised Crime Agency ("SOCA") on 8 February 2011. The EAW stated that the four offences for which Mr Howell's surrender was sought all concerned drug trafficking. Mr Howell was arrested in the UK on 3 April 2011. He first appeared at the City of Westminster Magistrates' Court on 5 April 2011. The Extradition Hearing began on 1 August 2011. Initially the appellant raised a number of challenges to the proposed surrender: first that the EAW did not comply with section 2 of the Extradition Act 2003 ("The Act"); secondly, that the offence or offences were not extradition offences within sections 10 of 65 of the Act; and, thirdly, that extradition should be refused by reason of Mr Howell's physical health. During the course of the hearing, which was adjourned on 1 August 2011 and continued on 19 August 2011 and 29 September 2011, the appellant abandoned the second of those three grounds.
3. Mr Howell gave evidence at the Extradition Hearing. Judge Zani recorded in his judgment that Mr Howell had prepared and submitted a witness statement and that he also gave oral evidence. In this evidence Mr Howell said that he was aware that the matter "revolved around events" of 21 December 2005. Mr Howell said he was driving a lorry through France to the UK and he was stopped by the French Customs authorities in Calais. When they searched the lorry they found (according to Mr Howell's evidence) a number of illegal immigrants trying to smuggle themselves aboard. Mr Howell said in his evidence that he had no knowledge of this. He thought that he was only transporting, legitimately, a large quantity of tobacco into the United Kingdom. In his evidence before Judge Zani, Mr Howell went on to say that he was detained in prison in France for several months but was eventually released in relation to the allegations of people smuggling. His evidence was that he was, however, immediately detained again and questioned about an allegation that he also had a large quantity of cannabis in the lorry. Mr Howell's evidence before Judge Zani was that he was then again remanded in custody for several months before being released on bail.
4. Judge Zani recorded that Mr Howell's evidence before him was that approximately 18 months later Mr Howell returned to France to stand trial in relation to what Mr Howell described as "allegations of conspiracy in respect of the said controlled drugs". In oral evidence Mr Howell accepted that he gave evidence during his trial, although it was very brief.
5. France is a Category 1 territory for the purposes of Part 1 of the Act, which is the applicable part of the Act for the purposes of all issues concerning the EAW and its validity. This appeal is therefore brought pursuant to section 26 of the Act.

Issues on appeal

6. The appellant has indicated within the last 24 hours that he wishes to enlarge his original grounds of appeal. Originally the appellant submitted that:

(1) The EAW was not valid within the meaning of section 2 of the Act. It is said that the absence of a date of the original conviction of the appellant and the absence of a date (or a range of dates) for the criminal conduct of which he was convicted rendered this EAW invalid within the meaning of section 2(6)(b) of the Act;

(2) This means that he will not have benefit of the protection of the "specialty" provisions; and

(3) Surrender would be contrary to the appellant's rights under Article 8 of the European Convention on Human Rights because he should be able to exercise his rights to serve his sentence in the United Kingdom, and that was being denied him by the French authorities.

7. The appellant has now indicated by further written submissions which were served at the end of last week and we received yesterday, that he wishes to take two further points. The first is that this court should receive further evidence in support of the argument that Mr Howell's Article 8 rights would be infringed because the French authorities will not permit him to exercise his right to elect to serve his sentence in the United Kingdom.
8. Secondly, Mr Howell wishes to argue that the EAW was not issued by a competent "judicial authority" within the meaning of the Act and the underlying Council Framework Decision of 2002/584/JHA ("The Framework Decision"), because the authority that issued the EAW was a prosecuting authority. Therefore, it is proposed to be argued that the whole procedure under the EAW constitutes an abuse of process. It is also proposed that if necessary, this court should be invited to sit as if considering an application for leave to commence judicial review proceedings in relation to this "abuse of process" issue.
9. When these proposed further grounds of appeal and proposed fresh evidence were brought to the attention of Miss Tyler, who acts on behalf of the respondent authority, her response was that the further evidence should not be admitted because to do so would be contrary of the principles laid down in this court by Sir Anthony May P in the case of The Szombathely City Court and others v Roland and Kalman Fenyvesi [2009] EWHC 231. In particular Miss Tyler submitted that the material was available at the time of the original Extradition Hearing, which stretched out over 2 months. In any case, Miss Tyler submitted, this material was not "decisive", as Fenyvesi required. Miss Tyler obviously opposed both the original and the new proposed grounds of appeal.

First Issue: Was the EAW issued by a "judicial authority"?

10. It is common ground that the EAW is a "conviction" EAW, that is to say it is a warrant seeking the surrender of Mr Howell in respect of a sentence that he has not served because, for some reason, he had fled the jurisdiction of the territory where he was convicted and sentenced. Logically, the first issue that we must consider is the one that has been raised last. If there is any substance in that then the appeal must be allowed and the appellant discharged.
11. In my view there is absolutely no merit whatsoever in this so-called "abuse of process" point.
12. The submission of Mr Atlee on behalf of the appellant is that the "Deputy Attorney General at the Court of Appeal of Douai", as he has been referred to in Mr Atlee's written submissions, is not a judicial authority competent to issue the "conviction" EAW. It is said that "on the face of the warrant" it has not been issued by a judicial authority but by a prosecution authority. It is said that this is made the more obvious by the lack of particularity in the warrant as to the offences of which Mr Howell was convicted. Moreover, it is submitted by Mr Atlee that the certificate given by SOCA in its letter of 8 February to the effect that this particular EAW, which was issued by Monsieur Chaillet, whose title in French is "Substitut Général du Parquet de Procureur Général de la Cour d'Appel de Douai", is a certificate that is "inconsistent with the implementation of the objectives" of the Framework Decision. Thus, because, so it is claimed, this EAW has not been issued by a competent judicial authority, the English court has no power to act upon it at all.
13. Article 1(1) of the Framework Decision makes it plain that the EAW must be a "judicial decision" issued by a Member State. But Article 6(1) of the Framework Decision also stipulates that "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. Furthermore, Article 6(3) stipulates that each Member State will inform the General Secratariat of the Council of the competent judicial authority under its law. It follows that the Framework Decision contemplates that each Member State will decide, according to its own national law, what will be the judicial authority that is competent to issue a European Arrest Warrant.
14. The United Kingdom Act obviously does not deal with what constitutes a relevant "judicial authority" of other Member States for the purposes of Part 1 of the Act. But, significantly, section 2(7) of the Act stipulates that "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".
15. The Secretary of State has designated SOCA for the purposes of Part 1 of the Act and so SOCA is the body that is entitled to issue a certificate pursuant to section 2(7). It did so in respect of this EAW by the certificate dated 8 February 2011. That certificate has not been challenged until today. There is no evidence to support the proposition, which must underlie that challenge, that Monsieur Chaillet, who issued the EAW on behalf of the Parquet du Procureur Général de la Cour d'Appel de Douai, is not, by the law of France, a judicial authority competent to issue an EAW.
16. I am not surprised that there is no such evidence. Anyone with a passing knowledge of the French system of criminal justice will know that what we call "prosecutors" are a part of the French judicial system. "Le Parquet Général" refers to the office of a Procureur Général either in a Cour d'Appel or in the Cour de Cassation. A Procureur Général is the highest grade of office within Le Parquet. A "Substitut Général" is the highest officer in Le Parquet in courts of appeal. Under French law, officers of Le Parquet are "Magistrats au Parquet". Both "Magistrats au Parquet" and "Magistrats au Siège" exercise judicial functions, albeit different ones; both are regarded as part of the judiciary - "le corps judiciare". Both come under the control of the Conseil Supérieur de la Magistrature. See the comments of Thomas LJ in Assange v The Swedish Prosecution Authority [2011] EWHC 2849 (Admin) 38 - 45 and the materials there referred to. It is therefore not surprising that Monsieur Chaillet issued the "conviction" EAW in this case and that in respect of that EAW he has been certified as a judicial authority for the purposes of the Act by SOCA.
17. If this point were a good one then I suspect that many, if not all, "conviction" EAWs issued in France since the Act came into force would have to be called into question.
18. For my part, I am not prepared, in the absence of evidence, to go behind the certificate issued by SOCA. In my view, the submission that there was an insufficient lack of particularity with regard to the particulars of conviction is no support whatsoever for the proposition that Monsieur Chaillet does not constitute a proper judicial authority for the purposes of issuing this "conviction" EAW. Accordingly, I reject this ground of appeal.

Issue Two: Lack of particularity as to offences?

19. The next issue is whether this is not a proper EAW because it fails to identify sufficiently what are said to be "the key details of the four underlying offences and the dates of attendance of and attendances of the appellant at the trial". It is said, therefore, that this EAW fails to satisfy 2(6)(b) of the Act.
20. As I have already stated, this EAW is a "conviction" EAW, in other words it is issued by the judicial authority in the issuing territory, viz. France, in order that the executing country will surrender the person concerned, in this case to serve a sentence of imprisonment in respect of four offences. For such an EAW to be valid, therefore, the provisions of section 2(1), (2), (5) and (6) of the Act have to be satisfied. I will set out those subsections, although it is not suggested that (5) has not been complied with in this case. Indeed, the only requirement that is said not to have been fulfilled is that of 2(6)(b):

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)...

(5)The statement is one that—

(a)the person in respect of whom the Part 1 warrant is issued [F1has been convicted] 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.

21. Article 8 of the Framework Decision sets out what should be the "Content and Form" of the EAW. Annexed to the Framework Decision is the form that is to be used. Article 8 appears to contemplate that there will be one form that will be used both for "accusation" and "conviction" EAWs. That is clear from what is set out in Article 8(1). Hence, in Article 8(1)(d) it refers to the "nature and legal classification of the offence, particularly in respect of Article 2" and paragraph (e) refers to 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" and (f) refers to 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."
22. However, the United Kingdom statute does not deal with what has to be in the content and form of the EAW in that way when stipulating what is needed in order to make the particular warrant a valid EAW. The Act differentiates between what "statements" and "information" has to be in an "accusation" EAW and those "statements" and "information" that have to be in a "conviction" EAW.
23. In the context of a "conviction" EAW, what is meant by "particulars of conviction" for the purposes of section 2(6)(b) of the Act? It is said that this must mean the details of the offences, when they were committed, the detail of the trial and of what offences the offender was convicted.
24. In my judgment, those details are not necessarily required in the case of a "conviction" EAW. The Requirement to set out the "particulars of conviction" in accordance with S2(6)(6)is satisfied if the description is sufficiently indicative of what offences the offender has been convicted. To my mind, the details given in box (e) of the present EAW, under the heading "Infraction(s)," which means offences, sets out the four offences adequately. No details of dates are given in that box, but I do not construe section 2(6)(b) as necessarily requiring that.
25. Then in the next box, (f), details of how the offences were discovered are given; it is stated that Mr Howell confessed to them. Furthermore, the box states that he was convicted in the presence of the parties - ("contradictoirement") - by the 4th Chamber of the Cour d'Appel of Douai on 21 May 2008. To my mind, those boxes together fulfil the requirements of section 2(6)(b) satisfactorily in this case.
26. Therefore I would reject that ground of appeal.

Issue Three: Article 8 Rights infringed and proportionality

27. The last ground was that the surrender pursuant to the EAW would be contrary to Article 8 of the European Convention on Human Rights rights of the appellant, so that surrender should be refused pursuant to section 21 of the Act. The argument, so far as I understand it, is that: (i) there are cogent reasons why the appellant wishes to serve his sentence in the United Kingdom, not least because his son in autistic, the appellant suffers from bad health and, he says, a stroke was caused by his experiences of being held in custody in French prisons; (ii) the attitude of the French authorities is contrary to their Treaty obligations, in particular under the 1983 Treaty as amended by the 1997 Additional Protocol to the Convention on the Transfer of Sentenced Persons; (iii) therefore if the appellant's surrender were ordered, the interference with the appellant's family life would be so exceptionally compelling as to be wholly disproportionate, so that, in accordance with section 21 of the Act, the order should not be made.
28. The test, established in Norris v United States [2010] 2 AC 487, at [56] of the judgment of Lord Phillips of Worth Mastravers, President, is a high one. It is:

"...only if some quite exceptionally compelling feature or combination of features is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves."

29. The evidence that is before the court amounts to no more than this: there appears to be some confusion as to who has to ask whom first about the possibility of a transfer. Under the United Kingdom relevant legislation, which is the Repatriation of Prisoners Act 1984, it is clear that there has to be agreement between the relevant minister in the United Kingdom and the appropriate authority in the country or territory in which the sentenced person would otherwise serve his sentence before a transfer will occur.
30. The United Kingdom authorities are certainly not refusing a transfer. The letter of 23 December 2011 from the present Substitut Général of Le Parquet du Procureur Général de la Cour d'Appel de Douai, who is Monsieur Hugues de Phily, suggests that under the provisions of the Framework Decision it is for the United Kingdom authorities to make a request first. There is no indication in my reading of that letter that the French authorities will refuse to consider it.
31. In those circumstances, I can see no basis whatsoever for saying that the situation constitutes such exceptionally compelling circumstances so as to make it disproportionate to order the surrender of the appellant.

Conclusion

32. Accordingly, I would dismiss that point also. I would therefore dismiss this appeal.
33. MR JUSTICE MADDISON: I agree with each of the conclusions reached by my Lord, Aikens LJ, and I too would therefore dismiss this appeal.
34. LORD JUSTICE AIKENS: Thank you both very much.
35. MR ATLEE: I wonder, my Lord, whether I may make one final application, which is for legal aid assessment.
36. LORD JUSTICE AIKENS: Yes.