Case No. CO/7203/2013
Neutral Citation Number: [2013] EWHC 2799 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT 

Royal Courts of Justice
Strand
London WC2A 2LL
 
Date: Wednesday, 24 July 2013

B e f o r e:

MR JUSTICE BURNETT

Between:
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	PATRAUCEAN	Appellant	
	
v
		
	ROMANIA 	Respondent	
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Mr M Hawkes (instructed by Edward Hayes Solicitors) appeared on behalf of the Appellant 
Mr N Hearn (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
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J U D G M E N T (As Approved by the Court)

1.	MR JUSTICE BURNETT: This is an appeal against the decision of District Judge Zani on 6 June 2013 to extradite the appellant to Romania. There is one point in the appeal: that the District Judge should have discharged the appellant because, when the European arrest warrant was served upon him, it was incomplete, at least in the version translated into English.

2.	The European arrest warrant in this case, the detail of which is immaterial to the arguments, comprised eight pages. However, the English translation, when provided to the appellant's solicitor at the first hearing in the Magistrates Court, was missing pages 3 and 6.

3.	Section 4 of the Extradition Act 2003, headed "Person arrested under Part 1 warrant" provides:

(1)	This section applies if a person is arrested under a Part 1 warrant.

(2)	A copy of the warrant must be given to the person as soon as practicable after his arrest.

(3)	The person must be brought as soon as practicable before the appropriate judge.

(4)	If subsection (2) is not complied with and the person applies to the judge to be discharged, the judge may order his discharge.

(5)	If subsection (3) is not complied with and the person applies to the judge to be discharged, the judge must order his discharge.

(6)	A person arrested under the warrant must be treated as continuing in legal custody until he is brought before the appropriate judge under subsection (3) or he is discharged under subsection (4) or (5)."

4.	Mr Hawkes' short submission is that section 4(2) was not complied with. Even though no application for discharge was made at the initial hearing, District Judge Zani should have entertained such an application later. Had he done so, he would have discharged the appellant.

5.	I note immediately the contrast within section 4 between non compliance with subsection (2) and non compliance with subsection (3). Non compliance with subsection (2) gives rise to a discretion to discharge, if an application is made. Non compliance with subsection (3) results in an obligation to discharge.

6.	The EAW in this case was certified by the Serious Organised Crime Agency on 13 February 2013. The appellant was arrested on 8 March. That same day, he was produced at the Westminster Magistrates Court for the initial hearing before District Judge Purdy. No issues were raised under section 4 by the solicitor then appearing for the appellant4, nor under section 7 of the 2003 Act, relating to the identity of the person arrested.

7.	As a result, District Judge Purdy noted that "Section 4 in order and unchallenged."

8.	The extradition hearing was formally opened and adjourned that same day. The adjourned hearing was fixed for 12 March. The solicitor then acting for the appellant indicated that a challenge might be made at the extradition hearing on grounds that the warrant was insufficiently particularised. As it turns out, the lack of particulars that she had noted were contained on one of the missing pages.

9.	On 12 March the hearing was resumed. It was at this hearing that the advocate appearing on behalf of the Romanian authorities noticed that two pages in the English translation were missing. That was obvious, not least because the Romanian version, which the advocate had, was two pages longer. Those two translated pages were immediately obtained and provided to the appellant's solicitor. For reasons that are immaterial, the extradition hearing was then adjourned again to 28 March, then again to 12 April, and finally to 6 June. On that date, the extradition hearing proceeded.

10.	As I understand it, the only point taken on behalf of the appellant was that he should be discharged, pursuant to section 4(4) because a full copy of the translation of the EAW had not been originally served upon him. It was District Judge Zani's considered view that the issue under section 4 had been determined conclusively as part of the initial hearing by District Judge Purdy. He had the benefit of a skeleton argument filed on behalf of the now appellant. He concluded that even if it was the case that the appellant's solicitor had mistakenly overlooked the fact that two pages were missing, it was no part of his function to re-open the matter at the extradition hearing. I have been provided with a very short note of the reasoning of District Judge Zani.

11.	Although he did not refer in any detail to authority, it is likely that he had in mind two decisions of this court in coming to his conclusion. The first is Nur v Van der Valk [2005] Extradition Law Reports 109. The second is Stanczyk v Circuit Court Katowice, Poland [2010] EWHC 3651 Admin.

12.	It is sufficient to quote from the judgment of Laws LJ in Stanczyk to set out the applicable principles established by those authorities:

"16.Mr Atlee tells us this morning that by the first hearing, instructions had not been given as to delay in service of the warrant, and so he was in no position to put forward a case relying on any such assertion. But, as it seems to me, if a fugitive or alleged fugitive, seeks to raise a point under section 4, he must, in my judgment, do so before the case proceeds to issues prescribed to be determined at a later stage.

"17.If an advocate representing a person arrested pursuant to a European arrest warrant considers that there is an open question as to whether there might be an argument under any part of section 4, why then the matter should be looked into and, as I have already said, an adjournment sought if necessary...

"18.More to the point, in my judgment, is the judgment of Richards LJ sitting in this court in Nur and Public Prosecutor Van der Valk [2005] EWHC Admin 1874, holding that an issue of the extraditee's identity which falls to be determined at the initial hearing under section 7 cannot be re-opened at the extradition hearing. Richards LJ said this:

'So far as the extradition hearing is concerned, the first question is whether the District Judge was entitled to refuse to re-open at that hearing the question of identity that had been decided at the initial hearing. In my judgment, he was entitled so to refuse. The statutory scheme is clear. The question of identity falls to be determined at the initial hearing, as was done in this case. If it is resolved in the affirmative, as it was in this case, that leads to the fixing of the extradition hearing where, under the statute, a different series of issues fall to be determined. As regards identity, the statute does not contemplate that there can be a second bite of the cherry at the extradition hearing in respect of the matter dealt with at the initial hearing.'

I respectfully agree. It seems to me that there is a close analogy between the position being dealt with there by Richards LJ and the position here. It is true, of course, that the identity issue is specifically addressed in section 7 of the 2003 Act in the express context of the initial hearing. But, in my judgment, it is a premise of the extradition hearing's being held at all that the section 4 procedures have been completed without the arrested person having been discharged under that section. The extradition hearing procedures are introduced in the statute at section 9. The matters to be dealt with at that hearing are specified in the provisions which follow. It would be wholly incompatible with the statutory scheme as I see it to hold that he appropriate judge might be invited to decide whether, because some earlier decision should have been but was not made, the extradition hearing should take place at all.

"19.It is, I should note, conceded by the respondent that decisions under section 4 may, in a proper case, be examined by way of judicial review or [he adds] habeas corpus. It seems to me that on the assumption that the case is a proper one, that would be the appropriate remedy."

13.	Before parting from the decision in Stanczyk, I note that before the District Judge, the original argument that been advanced was that, whilst the requested person had been served a copy of the English version of the EAW, he had not been given a copy of the original from the Polish judicial authority. On the facts, that argument failed. But it is, of course, the mirror image of the argument being advanced by Mr Hawkes.

14.	The argument, as it has developed in this case, has focused exclusively on the alleged deficiency in the service of the English version of the EAW made good, as I have indicated, at the second hearing. It has never been suggested by the appellant that he was not served with a full copy of the Romanian version of the EAW, that is to say the version as issued by the relevant court.

15.	Mr Hearn, who appears for the Romanian authorities today, has confirmed that position. Mr Hawkes has three hurdles to overcome on behalf of the appellant to succeed in this appeal. First, he must establish that the statutory scheme requires the service of the complete version of the English translation of an EAW. Second, he needs to establish that the failure to serve two pages at the outset would have resulted in the discharge of the appellant, given that there is a discretion in that matter. Third, he must escape the coils of authority which suggest that it was too late to revisit the section 4 issue at the extradition hearing. As to the first, Mr Hawkes submits that the reference to the warrant in section 4 of the 2003 Act, must mean the English translation of the warrant. That is because, he submits, article 8 of the framework directive, which is an important aid to construction of the 2003 Act, requires the EAW to be translated into the language, or a language, of the executing state.

16.	He submits that the underlying purpose of that provision is to enable lawyers acting for a requested person to scrutinise the content of the document for statutory compliance. Article 8(2) is in these terms:

"The European arrest warrant must be translated into the official language or one of the official languages of the executing member state. Any member state may, when this framework decision is adopted, or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the institutions of the European Communities."

The second part of that article enables states to opt to accept translations into languages which are not their own.

17.	Mr Hawkes does not dispute that a clear purpose in the translation of the EAW is to enable the authorities of the executing state to deal with it. It is, in my judgment, of note that article 11 of the framework decision, which governs the rights of a requested person, does not require a copy of the warrant to be provided to that person. Instead, article 11(1) provides:

"When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant, and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority."

So, what the framework decision plainly had in mind was the need for the requested person to understand what was in the warrant, rather than necessarily have a copy if it.
 
18.	It goes on to require an interpreter to be provided, if necessary, and for the assistance of legal counsel. Section 2 of the 2003 Act defines the term "warrant" in this way:

"(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..."

The subsection goes on to identify what must be in a warrant. For the purposes of Mr Hawkes' argument, it is important to note that the warrant is the arrest warrant issued by a judicial authority.

19.	With that in mind, I do not accept that the use of the word "warrant" in section 4(2) means the translation provided by the requesting state. The warrant is the arrest warrant issued the judicial authority in the requesting state. There is no suggestion in this case that the appellant was not provided with a copy of the warrant issued by the Romanian authorities.

20.	As it happens, although it is not always the case, the Romanian version was likely to have been more helpful to the appellant than the English one. The translation is undoubtedly necessary to enable the Serious Organised Crime Agency to determine whether to certify the EAW. It is also necessary that there be a translation to enable the court dealing with the extradition matter to determine any relevant issues. But the purpose of section 4(2) is to ensure that the requested person has the document issued by the requesting state which has resulted in his arrest. On the facts therefore, this appeal fails at the first hurdle.

21.	Dealing with the second, I remind myself that if the point had been taken at the initial hearing, the question of discharge would have been a discretionary matter. So let us suppose what would have happened on the hypothesis that my finding on the first issue is wrong. The solicitor acting for the appellant would have noticed that two pages were missing from the English translation. It would have become instantly apparent to everybody that the Romanian version was two pages longer, and immediate steps would have been taken to obtain the missing two English pages.

22.	It is difficult to see how it could be argued that the appellant was in any way prejudiced by the absence of those two pages. If they could not have been obtained immediately, then the initial hearing might have been adjourned. It seems to me unlikely in the extreme that in the exercise of his discretion, District Judge Purdy would have discharged the appellant on the strength of what appears to have been a photocopying error which gave rise to no adverse consequences. The appeal therefore fails on the second ground.

23.	So far as the third is concerned, Mr Hawkes submits that to conclude in these circumstances that District Judge Zani could not revisit the section 4 question would be an altogether too technical approach to extradition law. He draws my attention to the decision of the High Court of Justice in Northern Ireland Queen's Bench Division in Ballan [2008] NIQB 140. That, it must be noted immediately, was an application for judicial review, and not a statutory extradition appeal. It concerned consent which was, on the findings of the High Court in Northern Ireland, no consent at all, and thus invalid.

24.	That decision does not, in my judgment, in any way undermine the clear authority in this Court to which I have referred, namely Stanczyk in dealing with section 4 matters, applying the principle articulated in Nur by reference to section 7 matters. District Judge Zani was correct when he decided that the statutory scheme did not allow him to revisit a decision which the statute assigns to the initial hearing, when he was called upon to decide the issues that arise at the extradition hearing. So, on the third basis also, in my judgment, this appeal fails.

The result will be that the appeal must be dismissed.

25.	MR JUSTICE BURNETT: Mr Hawkes, are you seeking the usual order?

26.	MR HAWKES: I would be very grateful, my Lord.

27.	MR JUSTICE BURNETT: Yes. There will be a detailed assessment of the appellant's public funds, in the usual way.

28.	Mr Hearn and Mr Hawkes, are there any other matters that I need to deal with in connection with this appeal?

29.	MR HEARN: Not for my part, thank you, my Lord.

30.	MR HAWKES: No thank you.