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
		14 February 2012

1. MR JUSTICE COLLINS: The appellant was ordered to be extradited to Germany on 14 September 2011 by District Judge Purdy pursuant to a European Arrest Warrant which had been issued by the Public Prosecutor's Office in Berlin on 3 August 2010. He was to face prosecution for 23 offences of sexual abuse of a child and 2 offences of serious sexual abuse of a child. The hearing before the District Judge was uncontested. The arguments, therefore, which have been raised before me were not put before the District Judge, which was unfortunate, but it is clear to me -- and the contrary has not been argued by Miss Wilkes -- that where it is a question of raising an argument which does not depend upon fresh evidence, this court will deal with that matter even though it was not raised below. After all, we are concerned with the liberty of an individual and it is important, therefore, that points which could properly have been taken which do not require further evidence can be deployed on appeal even though those representing the appellant did not spot the points below.
2. The warrant alleges a number, as is clear, of sets of offences. The details given are short. The warrant states as follows: that the period during which the offences were committed was 1 November 2000 to September 2003. The complainant, or the person against whom the offences were committed, was born on 18 January 1990. She therefore was between the ages of 10 and 13 when these alleged offences were committed. At the time that the offending commenced, the appellant was resident in Berlin and what is alleged is as follows:

"Sexual acts between the accused and aggrieved born on 18 January 1990 took place on 23 occasions at his home [and the address is given] and at the home and at the home of the aggrieved party's mother [and that address is given] in Berlin. He stroked the aggrieved party's vagina over and underneath her clothes with his hand and penetrated the vagina with his finger several times and gave her French kisses. In another case, the accused tried to penetrate the vagina of the aggrieved party who was lying on top of him with his penis but was not successful.

During the summer holidays 2003 when the aggrieved stayed with the accused in England, he had sexual intercourse with the aggrieved who was sitting on top of him by penetrating her vagina with his penis.

Degree of involvement: Perpetrator."

3. The nature and legal classification of the offences is described as: "Sexual abuse of children in 23 cases and serious sexual abuse of children in 2 cases." The applicable statutory provisions are section 176, paragraph 1; 176a paragraph 2, number 1; and section 53 of the German Criminal Code. The maximum length of the custodial sentence which may be imposed for the offences is given as 15 years, and the framework offence ticked is: "Sexual exploitation of children and child pornography".
4. I should add that it is common ground that the appellant was only resident in Berlin until 2002 and since then he has been resident in England and the offence charged in England was when the aggrieved was on holiday with him in England. In fact, it appears from evidence before the court that he went to Germany and accompanied her, she being then 13, to this country and the offence allegedly committed is what would be in our jurisdiction unlawful sexual intercourse with a girl under 16.
5. There are various points taken. The first is an argument that particulars of the circumstances were not properly given within section 2(4)(c) of the 2003 Act. That requires that the following information is given in relation to an accusation warrant:

"(4) The information is -

(a)particulars of the person's identity; [no problem with that]

(b)particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence; [no problem with that]"

Then (c) and (d) are material:

"(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."

6. The requirement to comply with section 2(4) affects the validity of the warrant. So much is made clear by the decision of the House of Lords in Dabas v High Court of Justice in Madrid [2007] 2 AC 31. The court there made it clear that defects in the warrant affected its validity and unless there was sufficient compliance with the requirements of section 2(4) then the warrant would be regarded as defective.
7. Section 2(4) refers to an offence. But by virtue of the Interpretation Act, offence includes offences and where there are multiple offences alleged, the Extradition Act 2003 (Multiple Offences) Order 2003 (2003 No 3150), which was made in December 2003 and came into effect on 1 January 2004, applies. That makes it clear that in considering an appeal against an order made for extradition, the appeal can relate to extradition in relation to an offence. That is to say one or more of the offences which are included in the warrant.
8. It seems to me to be apparent from that that the purpose behind it -- and indeed the effect of it -- was to require the court to consider the validity of the individual offences in the warrant. Sometimes it is only possible to give somewhat omnibus details and that is the position here. It is entirely understandable -- and indeed evidence subsequently makes clear -- that the complainant (the warrant refers to the aggrieved party) was not able now to recall precisely when the individual offences were committed. But one of the matters that has to be specified is the place at which the offending is alleged to have taken place. The warrant itself refers to two separate addresses where offending took place. Subsequent information makes it clear -- and indeed the warrant equally makes clear -- that there were some four sorts of sexual abuse: stroking vagina over clothing, stroking vagina underneath clothing, penetrating vagina with his finger, and giving her French kisses. Those are different circumstances of the offences. It may be said that the French kissing is arguably less serious than the fingering or stroking of the vagina; over clothes is, of course, less serious that under clothes; and fingering is more serious than merely stroking. So there are different qualities of offending.
9. So far as what I can term the vagina offence are concerned, one can understand that it was not possible to identify the different occasions but it was possible to identify the place because we now know that the offending at her mother's flat was French kissing, and that should and could, in my view, have been made clear in the warrant. Equally, the other offending was in his flat. Again, that could and should have been made clear.
10. Mr Stansfield has submitted that it should have gone further and given some indication of the number of occasions that each sort of offending was committed. There were 23 in all, and it should have been possible at least to indicate the number of occasions when each type of offending took place.
11. It is important to bear in mind that it is not necessary to go into any great detail. It would be contrary to the whole purpose behind the divisions in relation to European Arrest Warrants if too much detail were required. The approach which has been accepted was set out by Cranston J in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106. In that case he said this:

"A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."

12. Miss Wilkes submits that he does have on the face of the warrant knowledge of what he is said to have done and the nature and extent of the allegations against him in relation to those offences. To some extent that is right but, as I have indicated, what it fails to do is to identify the place at which he is alleged to have committed offences in the particular circumstances, and that could, and, as I say, in my view, should, have been included in the warrant.
13. There is thus, in my judgment, a defect in relation to the 23 offences and the information does not properly comply with 2(4)(c).
14. So far as 2(4)(d) is concerned, it is common ground that 15 years is wrong in relation to offences 1 to 23. The maximum penalty in relation to those is 10 years. Indeed, the difference of seriousness between the two sorts of offences suggests prima facie that there may be a distinction in sentence that is appropriate. The warrant on its face simply says 15 years. Again, on its face there is no apparent ambiguity because what is asserted is that the maximum is 15 years. We now know, it is common ground, that that is, as I say, defective and that information could have been obtained and put before the lower court, and the lower court would then have been faced with a warrant that was defective in relation to the maximum sentence for 1 to 23 because it did not properly give those particulars.
15. Miss Wilkes submits that all that is essentially required is that it is shown that it is more than 3 years but section 2(4)(d) could so easily have provided for that if that was all that was needed. It does not. It makes it clear that the particulars which must be given are the sentence or sentences which may be imposed in respect of the offence or the offences, and those particulars are not given in the warrant in question.
16. In those circumstances, it seems to me to be unarguable but that there was a defect in the warrant in respect of that as well. That being so, in relation to offences 1 to 23, I am persuaded that, following the approach of the House of Lords in Dabas, this was a warrant that was bad ab initio and invalid in relation to those offences.
17. One then has to consider offences 24 and 25. 15 years was correct in relation to 24 and 25. Mr Stansfield submits that it is not possible for the 15 years to be applied to those only because there is nothing on the face of the warrant that makes it clear that that is the position. But it is known and it is clear and the contrary cannot be argued that 15 years was the correct maximum penalty in relation to those offences. One looks at them as individual offences which the warrant covers, and one knows as a result of the 2003 Order, the individual offences within a warrant can be considered separately and a warrant which may be defective in relation to some may not be defective in relation to others. The 15 year defect relates only to 1 to 23. In those circumstances, it seems to me that the warrant on 24 and 25 is on that basis not effective.
18. What about 2(4)(c) in relation to 24? We know that 24 was an offence which was committed at his flat and not at the mother's. That is not clear. Equally, although it is said that the victim cannot now recall precisely when, I would be surprised if it was impossible to say at what stage of the offending that single offence took place -- and it is a single offence of attempting to have unlawful sexual intercourse. Was she under 13 or over 13? It seems to me that it should have been possible to say where but the place is not identified, and it may well have been possible to say when within a much narrower bracket than November 2000 to September 2003. At the very least, if it had been impossible, that could have been made clear in the warrant.
19. Accordingly, I am satisfied that the warrant is defective in that regard in relation to 24.
20. That leaves 25, an offence committed in this country. The question then arises of jurisdiction. What is relied on is section 7 of the Sexual Offences Act 1997, which was the law in force in this country at the relevant time. That provided, broadly speaking -- and I will go through the details in a moment -- that certain sexual offences, which included unlawful sexual intercourse and indecent assault, were triable in England and Wales against a British citizen or a British resident even if the offence was committed outside the jurisdiction.
21. Section 64 of the Extradition Act deals with extraterritoriality, and the relevant provisions are contained in section 64(4), which provides:

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

(a)the conduct occurs outside the category 1 territory;

(b)the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);

(c)in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment."

22. The conduct comes within 4(a) because it occurred outside Germany, which is the relevant category 1 territory. It is punishable under the law of that territory, Germany, so it comes within (b). The question, therefore, is does it come within (c)? To answer that one has to look the section 7 of the 1997 Act. That provides:

"(1)Subject to subsection (2) below, any act done by a person in a country or territory outside the United Kingdom which—

(a)constituted an offence under the law in force in that country or territory; and.

(b)would constitute a sexual offence to which this section applies if it had been done in England and Wales, or in Northern Ireland,

shall constitute that sexual offence under the law of that part of the United Kingdom.

(2)No proceedings shall by virtue of this section be brought against any person unless he was at the commencement of this section, or has subsequently become, a British citizen or resident in the United Kingdom."

23. So, the offence in question clearly falls within section 71 because one substitutes Germany for the United Kingdom, and so one has to assume that the United Kingdom is Germany for the purposes of section 64. The question, therefore, is whether it is a matter that could have been dealt with here by virtue of subsection 2. He was not a German citizen. Incidentally, what one has to do instead of British citizen or resident of the United Kingdom, is one reads German citizen or resident in Germany for the purpose of seeing whether there is a section 64 jurisdiction. The question is would residence in Germany suffice or, rather, would it be covered? Because in 1997, when section 7 came into force, he was resident in Germany albeit at the time the offence was committed he was not. So, putting it in the terms of the United Kingdom, would subsection 2 prevent prosecution of someone who was no longer resident in the United Kingdom albeit he had been so resident in 1997?
24. The purpose behind subsection 2 is to make it clear that it could not apply to someone who was a British citizen and was a resident before the commencement of the section but was no longer so when the section came into force. Thus, retrospectivity had to be avoided. The question is whether ceasing to be a resident or a British citizen at the time of the commission of the offence takes it out of section 7.
25. It would, in my judgment, be surprising if the mere fact of residence in 1997 was sufficient to provide jurisdiction to deal with someone who was no longer a resident at the time the offence was committed. The whole purpose behind the section was to catch those who were British citizens or who were resident in this country when they committed offences outside the jurisdiction, and it would be surprising, in my view, if that were construed to extend to non-residents who committed offences at the time when they were, and remained, non-residents. That would be taking extraterritoriality, it would seem, to an extent which was not justified by the legislation in question.
26. Accordingly, I am not satisfied that this offence 25 does fall properly within the ambit of section 64. It would, in fact, be surprising if the warrant, being defective in relation to all the offences allegedly committed in Germany, the only validity was in relation to the one offence committed when he was no longer a German resident in England, and that is not, in my view, what this sort of extradition is all about.
27. Of course, nothing that I have said will prevent the issue, if the authorities in Germany think it right to do so, of a fresh warrant but, in the circumstances, I must allow this appeal and thus quash the extradition order.
28. I should only add that an Assange point was raised on the basis that the requesting authority was the Public Prosecutor's Office in Berlin, and the issue as to whether that Office is a proper judicial person for the purposes of the extradition legislation may be decided by the Supreme Court. I say may be because it is not entirely certain quite how far that decision will go. But, as is it, it is not necessary to deal with that.
29. MR STANSFIELD: My Lord, I am grateful. The appellant is legally aided in this matter.
30. MR JUSTICE COLLINS: Are you asking for costs? I think you are bound to.
31. I do not think you can resist, can you, Miss Wilkes?
32. MISS WILKES: My Lord, the usual order is that the costs be paid subject to legal aid taxation. It is not an order against the Crown Prosecution Service nor indeed the respondent because the respondent is the Public Prosecutor's Office of Berlin.
33. MR JUSTICE COLLINS: Is there a power to order costs out of central funds? I do not think there is, is there? Or is there?
34. MR STANSFIELD: I was going to say I believe there is but only from experience in the court as opposed to knowledge --
35. MR JUSTICE COLLINS: I might have no power but it has to be the Divisional Court if there is such power. I think you are right. I think this is a curious situation where actually the only power is to make the usual legal aid order. Can I leave it like this: have a look over lunch and see whether there is a power to order costs out of central funds. If there is -- and I do not think there is -- you can tell me where that is based and if it is only in the Divisional Court, I shall have to have words with a fellow judge and constitute the Divisional Court for the purposes of costs. It does not affect you, Miss Wilkes, at all.
36. MR STANSFIELD: I will make those enquiries.
37. MR JUSTICE COLLINS: Otherwise, you will just have the usual legal aid order.
38. MR STANSFIELD: May I very briefly just turn my back to confirm instructions in relation to two matters.
39. MR JUSTICE COLLINS: In relation to what?
40. MR STANSFIELD: In relation to any costs being sought because, of course, Mr Taylor is legally aided and it may be that he just needs the assessment of legal aid order. Unless the Legal Services Commission seek their costs.
41. MR JUSTICE COLLINS: No, that is fine. The question is whether there is a power to award costs from someone else, so that the legal aid people get some money from some other vote(?). It is all within the Ministry of Justice.
42. MR STANSFIELD: My Lord, I believe I am being ably assisted. My Lord, section 62 of the Extradition Act details costs where discharge is ordered:

"(2) As so applied those subsections have effect as if an order under section 61(5) were an order under Part 2 of that Act for a payment to be made out of central funds."

43. MR JUSTICE COLLINS: It looks as though I do have power.
44. MR STANSFIELD: My Lord, I believe I am bound on behalf of the interests of the Legal Services Commission --
45. MR JUSTICE COLLINS: You can certainly have an order under section 62(2): costs out of central funds.
46. MR STANSFIELD: I am grateful, my Lord.