England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2013

Mr Justice Foskett:

1. The appellant seeks to appeal against the decision of the Senior District Judge on 11 April 2013 that he be extradited to France to serve a sentence of three years imprisonment that was imposed by the Paris Court of Appeal in respect of three offences of tax fraud. The hearing before the Senior District Judge had taken place on 28 March.
2. The European Arrest Warrant was issued on 23 January 2008 and the appellant was arrested in August 2012. His first appearance before the Westminster Magistrates' Court was on 10 August 2012. The warrant related to offences committed some considerable time ago. The sentence was imposed following the appellant's conviction on 17 February 2005. What appears to be an arrest warrant that would be valid in France was issued that day because the appellant had failed to appear in court. The following paragraph appears in the European Arrest Warrant:

"The accused deliberately failed to appear at his trial, despite having been personally informed of the date and place of the hearing of the case by the Court of Appeal. His Attorney, personally chosen by the accused, was present and pleaded in defence of his client, by both written submittals and oral pleading. After being convicted and sentenced, the accused deliberately absconded. This warrant is issued for the purpose of having the accused serve the sentence handed down after conviction of the offences charged."

3. The sole ground of appeal is that the extradition sought is an abuse of the process of the court in that the service of the sentence is time-barred under French law. This submission is advanced on the basis of the evidence of a French lawyer, Mlle Dominique Tricaud, whose report of 23 May 2013 was not before the Senior District Judge but is sought to be adduced before me. Objection is taken to its submission by Mr Nicholas Hearn for the Judicial Authority on what I will for short call Fenyvesi grounds. I have considered it de bene esse. Mr Daniel Jones, who now appears for the appellant, says that it is potentially decisive evidence and should be admitted.
4. Mr Jones encapsulated the two points of importance, if the evidence is admissible at this stage, as follows:

i) Whether it is ever an abuse of process for an extradition request to be made when there is clear evidence that the activation of a sentence is time barred.

ii) If it may be, whether this court is sufficiently concerned that there may be an improper request for extradition in this case to require a full response from the French judicial authority.

5. The District Judge had refused an application for an adjournment to obtain a report from a French lawyer on the issue identified above. I will return to that later if necessary, but he did say this in response to the general submission made:

"I must consider whether this conduct, if established, is capable of amounting to an abuse of process. In my view this would not amount to an abuse of process. This would be a matter for the domestic court in France."

6. It appears to be common ground between Mr Hearn and Mr Jones that there is no previous authority precisely on this issue.

The first issue

7. That there may be no previous authority directly on the point may well evidence the proposition that no-one has seen fit to take it before. I do not say that critically of Mr Jones: if a previously unargued point may support his client's case, he is perfectly entitled to take it and indeed obliged to do so if his client insists. That being said, I am bound to say that, in my judgment, every judicial instinct would support the view of the Senior District Judge. Whilst it is not impossible for the English courts, with suitable expert evidence, to evaluate the position in law of a legal situation in another country, the question surely arises in the kind of situation with which this case is concerned as to why it should be necessary. The French courts are pre-eminently qualified to adjudicate on the issue that the appellant seeks to raise in this case and, if the point raised by the appellant is a good one, it can confidently be assumed that it will succeed before the French courts where it can be taken and considered properly.
8. The nearest authority on the approach of the English court is Elpidio Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin).  In that case the appellant (an Italian national) appealed against a decision to order his extradition to Italy to stand trial for offences of tobacco smuggling, handling stolen goods, counterfeiting bank notes and forging identity documents. The offences were alleged to have been committed eight years earlier in 2001. The appellant contended that the district judge had been wrong to find that extradition would not be unjust or oppressive by reason of the passage of time and, in a new ground of appeal, sought to adduce evidence at the appeal that the extradition proceedings were an abuse of process because the offences would probably be statute-barred and he would be entitled to a statutory pardon in the event of a conviction.  In relation to this ground of appeal Maurice Kay LJ (with whom Lloyd-Jones J, as he then was, agreed) said this:

"12. This ground of appeal, as now formulated in the appellant's skeleton argument, is expressed in this way:

"The probability that the extradition offences would be statute-barred in the course of the pre-trial proceedings, coupled with the available evidence of the absence of the requisite preliminary authority of the Minister of Justice for the prosecution of all counts other than A and F, and the appellant's entitlement to the application of a statutory pardon in respect of all matters in the event of conviction, are issues of which the respondent must be taken to be aware. In the particular circumstances it is submitted that the request amounts to an abuse of process, and should be refused."

13. There are a number of obvious answers to this new ground of appeal. The emphasis is placed on the limitation periods that exist under Italian law. This was not the subject of expert evidence before the District Judge. The position now is that, on behalf of the appellant, Mr Atlee seeks to adduce recently acquired expert evidence and there is before us today evidence from a partner in Mr Atlee's firm explaining why the material was not produced before the Magistrates' Court.

14. Essentially, the proposed expert evidence seeks to support the ground of appeal by reference to limitation periods under Italian law and also contains brief reference to the issues of prosecutorial authority and a pardon. Even if we were to admit that evidence, it raises a manifest difficulty. It is not evidence that is agreed or accepted by the respondent. Indeed, there is now a response to it in the form of a letter from the Deputy Public Prosecutor in Naples, and there is also a schedule dealing with specific limitation periods in relation to the various offences.

15. On this view of the law in Italy, the ground of appeal would be utterly misconceived in any event. However, the prior question is whether this court should become involved in adjudicating upon these inconsistent interpretations of Italian law. For my part, it seems to me fundamental that in a European Arrest Warrant case it is wholly inappropriate for this court to proceed to adjudicate upon rival interpretations of Italian law. All this is a matter for the Italian courts in accordance with the principle expounded by Lord Brown in Gomes. Quite simply, we should not get involved."

9. That case was concerned with an extradition request to enable a prosecution to proceed and was not concerned with an issue concerning the implementation of a previously imposed sentence. Mr Jones submits that there is nothing in what Maurice Kay LJ said in that case to support the proposition that an extradition request to facilitate a prosecution that was time-barred could never amount to an abuse of process however well-founded and uncontested the suggestion of a time bar appeared to be.
10. I do not think that Mr Hearn contended that it was never possible to raise such an issue as an answer to a request for extradition. He did place emphasis on the words "Quite simply, we should not get involved" in what Maurice Kay LJ said and submitted that, in the absence of any evidence of bad faith in this case, the Tollman principles were simply not engaged.
11. I would make these observations:

i) Even though Battistini did not involve precisely the kind of situation that arises in this case, the basis upon which it was decided would be persuasive so far as this case is concerned.

ii) It is to be observed that Maurice Kay LJ did not end paragraph 15 with the expression "Quite simply, we should never get involved".

iii) It is generally better never to say never.

12. This leads to the conclusion, in my judgment, that a point of this nature may be available in response to a request for extradition, albeit in the rarest of circumstances. It would be futile to try to define those circumstances save to say that, as it seems to me, the clearest possible evidence of bad faith would be required, coupled with unequivocal evidence that the sentence was indeed time-barred. That cannot possibly be said about the circumstances of this case.

The second issue

13. The opinion of Mlle Tricaud indicates that there are two limitation statutes in France: the "prosecution limitation" and the "sentence limitation". She says that the sentence limitation is substituted for the prosecution limitation on the day the court's decision becomes final which is when the time limit for appeal expires. Her view, on the evidence available to her, is that the "prosecution is time barred" because service of the decision (presumably of the conviction) has not been effected on the appellant in the way required by Article 562 of the French Code of Criminal Procedure and Article 7 of the European Convention on Mutual Assistance in Criminal Matters – or at least proof of service on him has not been established.
14. She says that, if this is correct, "the appeal period has not started yet and the decision is not final and may not be implemented".
15. I am reluctant to comment on this opinion in any critical way because it is possible that at least some of its true effect has been lost in the translation or, of course, that I do not understand precisely the concepts being discussed. However, it seems to suggest that the time limit for bringing a prosecution has not expired and, accordingly, the time limit for implementing any sentence "is not relevant" – by which I must assume is meant that the sentence cannot be enforced.
16. As thus stated, this seems an extraordinary state of affairs in the context of a case where someone such as the appellant has already been convicted: it means that someone such as the appellant (who absented himself from the hearing on 17 February 2005, but sent a lawyer on his behalf) can simply remain out of the jurisdiction of the French courts and, with the effluxion of time, become absolved from serving any sentence even though he must have known (because he will have been told by his lawyer, as the Senior District Judge concluded) what the outcome was.
17. However, leaving that observation to one side, I agree with Mr Hearn that Mlle Ticaud's opinion is couched in suitably guarded terms and, read as a whole, cannot be said to raise a clear and unequivocal assertion that the sentence cannot be implemented. It certainly does not raise in my mind any suggestion of an improper request for the appellant's extradition that requires some explanation from the requesting party. The Tollman principle is not, in my judgment, engaged.
18. Having said that it should also be noted that the CPS contacted the French Judicial Authority in October last year and the effect of the information conveyed in response is that the "date of prescription", as it is described, is 4 November 2013. This suggests, if I understand that information correctly, that there is still time to run before any question of a time-bar on sentence arises.

Conclusion

19. For these reasons, I see no merit in the points raised concerning Mlle Ticaud's opinion. To that extent, the question of whether the opinion should be admitted on this appeal is irrelevant. In those circumstances, I decline to decide, as a matter of principle, whether its admission is permissible despite Fenyvesi. I would observe that, in my experience, requests for the admission of new expert material on appeal are becoming quite frequent. In Battistini such an attempt was made. Whilst, of course, the finding of a suitable expert and the funding of the preparation of a report is not always easy, those advising those who are the subject of an EAW must understand that the District Judges and this court are becoming increasingly less tolerant of requests for an adjournment and/or for the submission of new evidence on appeal. In this case the Senior District Judge repeated in his ruling something he had said in a previous case in which the government had applied to introduce evidence in breach of the time limits imposed:

"It must be accepted that in the past this court has been tolerant of late service. Indeed we reached the stage where it was more common for directions not to be complied with than for compliance. There were two main reasons for that. The first was that the court worked hard to comply with the intention underlying extradition proceedings that they be conducted expeditiously. This resulted in short deadlines which, with legal aid difficulties and need for expert evidence, were often unattainable. The second was that the Divisional Court is a court of appeal and should not normally be put in the position of deciding facts – that is the work of the court of first instance. However, this court is now fixing dates for the extradition hearing that allows sufficient time for preparation and for directions to be met. If, in the time allowed, one or other party is not properly prepared, then it is far less likely than in the past that an adjournment will be granted or that leave will be given for late evidence to be admitted."

20. The Senior District Judge commented that in this case it should have been relatively simple for the appellant to establish that the sentence was time-barred because he had lawyers acting for him in France in 2011, his arrest was in August 2012 and the hearing before the Senior District Judge was in March this year. I respectfully agree.
21. If I had applied Fenyvesi strictly, it is likely that I would have refused to receive the report. However, I have looked at the matter on the merits de bene esse and I do not consider that the admission of the report makes any difference.
22. The appeal is dismissed.
23. I am grateful to Mr Jones and Mr Hearn for their assistance.