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
		31/10/2013

Lord Justice Richards :

(This is the judgment of the Court.)

1. On 14 June 2013 District Judge Zani, sitting in the Westminster Magistrates' Court, ordered the appellant's extradition to Germany pursuant to a European arrest warrant ("EAW") to face prosecution for three offences of illicit trafficking in narcotics. An appeal is brought against that order.
2. In broad terms, the case against the appellant as described in the warrant is that he, together with others and as a member of a highly organised group of perpetrators of Somali origin, imported khat into Germany, mostly from East Africa via the Netherlands, with a view to exporting it for a profit to the USA and Canada. To export the khat, the gang used express delivery services provided by courier companies in Germany, including TNT Express GmbH. The gang concealed the identity of the senders by using parcel numbers that were attributed to legitimate companies.
3. The warrant details three specific offences:

i) The first is that the appellant placed an order online with TNT for collection of cargo on 31 May 2010. On that date he handed over four parcels to an employee of TNT. Each parcel weighed 13 kg and the four parcels contained a total of about 47 kg of khat, with an active ingredient of 17.89 grammes of cathinone. The parcels were intercepted before they were sent abroad.

ii) The second relates to a parcel of khat weighing 6.7 kg which was delivered to an address in Los Angeles pursuant to an order for collection placed online in the same way by the appellant with TNT on 25 May 2010.

iii) The third relates to the placing of an order online by the appellant with TNT for the collection of six parcels for delivery to addresses in the USA and Canada. The parcels contained 475 bundles of khat. The overall amount of khat seized was 94 kg, with an active ingredient of some 30 grammes of cathinone. The parcels were intercepted before they were sent abroad.

4. The nature and legal classification of the first two offences is described in the warrant as "illicit trafficking in narcotics and thereby acting as a member of a gang" pursuant to stated provisions of the German Narcotics Law; and in the case of the third offence it is described as "illicit trafficking in narcotics in not insignificant quantity and thereby acting as a member of a gang" pursuant to stated provisions of the same law. In each case the maximum sentence is stated to be 15 years' custody.
5. The warrant certifies, by a tick in the relevant box, that the offences are framework list offences of "illicit trafficking in narcotic drugs and psychotropic substances" punishable in Germany by a custodial sentence or detention order of a maximum of at least 3 years as defined by the laws of Germany. The significance of this is discussed below.
6. The issue in the appeal is whether the offences set out in the warrant are extradition offences within section 64 of the Extradition Act 2003. The District Judge held that they fell within section 64(2). The appellant challenges that conclusion. The requesting authority seeks to uphold the District Judge's conclusion but argues in the alternative that the offences fall within section 64(3).

The framework list issue

7. Section 64(2) of the 2003 Act provides:

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

(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

(c) the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment."

8. Those conditions reflect Article 2(2) of Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. Article 2(2) sets out the offences which may give rise to extradition pursuant to an EAW without verification of the double criminality of the conduct in question:

"The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

...

illicit trafficking in narcotic drugs and psychotropic substances

…."

9. On the face of it, all of the conditions in section 64(2) appear to be satisfied in respect of each of the three offences set out in the warrant.
10. For the appellant, however, Mr Jones submits that the expression "illicit trafficking in narcotic drugs and psychotropic substances" in the framework list is to be understood as referring only to offences relating to substances that are proscribed under the United Nations Convention against Illicit Traffic of Narcotic Drugs and Psychotropic Substances, 1988 ("the 1988 Convention"), and that khat is not so proscribed, so that this court should not accept the requesting authority's certification that the offences for which the appellant's extradition is sought are framework list offences.
11. The starting point for the appellant's submissions is the 1988 Convention itself. Article 1(m) of that Convention defines "illicit traffic" as meaning the offences set forth in Article 3(1) and (2) of the Convention. It is sufficient to set out part of Article 3(1):

"3(1) Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:

(a)(i) The production, manufacture, extraction; preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention …."

Article 3(11) provides that nothing contained in the article "shall affect the principle that the description of the offences to which it refers and of legal defences thereto is reserved to the domestic law of a Party and that such offences shall be prosecuted and punished in conformity with that law".

12. Article 1(n) of the 1988 Convention defines "narcotic drug" as meaning any of the substances, natural or synthetic, in Schedules I and II of the Single Convention on Narcotic Drugs, 1961 ("the 1961 Convention"), and the 1961 Convention as amended by a 1972 Protocol. Article 1(r) defines "psychotropic substance" as meaning any substance, natural or synthetic, or any natural material, in Schedules I, II, III and IV of the Convention on Psychotropic Substances, 1971 ("the 1971 Convention"). Those are also, of course, the Conventions referred to in the passage I have quoted from Article 3(1) of the 1988 Convention.
13. Khat itself is not listed in any of the schedules to the 1961 Convention (in its original form or as amended) or in any of the schedules to the 1971 Convention. But cathinone, which is the main active ingredient of khat, is listed in Schedule I to the 1971 Convention and its use is prohibited by that Convention.
14. The only other provision of the 1988 Convention to which it is necessary to refer is Article 6, which concerns extradition and provides, so far as material:

"6(1) This article shall apply to the offences established by the Parties in accordance with article 3, paragraph 1.

(2) Each of the offences to which this article applies shall be deemed to be included as an extraditable offence in any extradition treaty existing between Parties. The Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them."

15. Mr Jones submits that the inclusion of "illicit trafficking in narcotic drugs and psychotropic substances" in the framework list in Article 2(2) of the extradition Framework Decision is to be seen as a fulfilment of the obligation in Article 6 of the 1988 Convention (to which the European Union itself became a party in 1990) and that the language used in the Framework Decision is the language of the 1988 Convention: the full title of the primary international instrument on drug trafficking has been used, and the trafficking is "illicit" because it has been rendered so in international law. Other EU instruments show that the same language is used when it is intended to refer to the 1988 Convention and that a different expression is used when a different meaning is intended. Thus, by Article 71 of the 1990 Convention implementing the Schengen Agreement of 14 June 1985, the parties undertook "to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish the illicit trafficking in narcotic drugs and psychotropic substances". In Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, the provisions were again founded on the UN Conventions but "drugs" were defined more widely by Article 1(1), as meaning not only the substances covered by the 1961 Convention and the 1971 Convention, but in addition "the substances subject to controls under Joint Action 97/396/JHA of 16 June 1997 concerning the information exchange risk assessment and the control of new synthetic drugs".
16. To read the extradition Framework Decision as referring in this respect to the UN Conventions is, in Mr Jones's submission, entirely consistent with the underlying purpose of dispensing with the requirement of dual criminality in respect of offences where there is universal agreement that they should be criminalised. In support of that purpose, he cites the opinion of Lord Bingham in Office of the King's Prosecutor, Brussels v Cando Armas & Another [2005] UKHL 67, para 5:

"Paragraph 2 of article 2 of the Framework Decision is central to the main issue in this appeal. It sets out a list of offences which have been conveniently labelled 'framework offences'. These are not so much specific offences as kinds of criminal conduct, described in very general terms. Some of these, such as murder and armed robbery, are likely to feature, expressed in rather similar terms, in any developed criminal code. Others, such as corruption, racism, xenophobia, swindling and extortion, may find different expression in different codes. Included in the list, and relevant to this case, are the offences of trafficking in human beings, facilitation of unauthorised entry and residence and forgery of administrative documents. Underlying the list is an unstated assumption that offences of this character will feature in the criminal codes of all Member States. Article 2(2) accordingly provides that these framework offences, if punishable in the Member State issuing the European arrest warrant by a custodial sentence or detention order for a maximum period of at least three years, and as defined by the law of that state, shall give rise to surrender pursuant to the warrant 'without verification of the double criminality of the act'. This dispensation with the requirement of dual criminality is the feature which distinguishes these framework offences from others. The assumption is that double criminality need not be established in relation to these offences because it can, in effect, be taken for granted …" (emphasis added).

17. Mr Jones seeks also to rely on Article 31 of the 1969 Vienna Convention on the Law of Treaties, which provides in paragraph 1 that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty "in their context and in the light of its object and purpose", and in paragraph 3 that there shall be taken into account, together with the context, "any relevant rules of international law applicable in the relations between the parties".
18. Mr Jones accepts that cathinone, which is contained within khat, is prohibited by the 1988 Convention by reason of its inclusion in Schedule I to the 1971 Convention, but he submits that the mischief at which the inclusion of cathinone is aimed is highly likely to be that of synthetic cathinone (a publication by the US National Institute on Drug Abuse expresses concern, for example, about synthetic cathinones in bath salts) and that the prohibition does not apply in any event to cathinone in the form in which it occurs naturally in the khat plant. He says that the World Health Organisation's Expert Committee on Drug Dependency has considered on a number of occasions, most recently in 2006, whether khat should be included in the schedules to the UN Conventions but has rejected its inclusion; an approach which in his submission is clearly predicated on the understanding that the prohibition of cathinone does not entail a de facto prohibition on the khat which contains it. He points to examples within the Conventions where a recognised drug and the plant from which it is extracted both appear in the schedules (for example, both cocaine and the coca leaf appear in the schedules to the 1961 Convention), submitting that the inclusion of the plant would not have been necessary if the drug within it was covered by virtue of its natural presence in the plant prior to extraction.
19. Mr Jones also seeks to derive support for that approach from the decision of the House of Lords in Director of Public Prosecutions v Goodchild (1978) 67 Cr App R 56 in which it was held, as a matter of construction of the Misuse of Drugs Act 1971, that possession of the plant cannabis sativa (not at that point prohibited under the statute) did not involve possession of a prohibited cannabinol derivative which was an unseparated constituent of the plant. Lord Diplock, in a speech with which the rest of their Lordships agreed, said this (at page 61):

"… But there are some listed drugs which, although they can be synthesised, also occur in the natural state in plants, fungi or animals, and these include some of the most used narcotic drugs. It would not in my view be a natural use of language to say, for instance, that a person was in possession of morphine when what he really had was opium poppy straw from which whatever morphine content there might be in it had not yet been separated; nor do I think it would be apt use of language to describe the poppy straw as a 'preparation or other product' containing morphine, since this expression is inappropriate to something that is found in nature as distinct from something that is man-made. Regarded simply from the point of view of language the matter is in my view put beyond doubt as respects the specific narcotic ingredients found in opium poppies by the inclusion in the list as separate items 'opium' and 'poppy straw' as well as morphine, codeine and several other specified alkaloids which are or may be constituents of opium and of poppy straw. A similar indication of the meaning of references in the Schedule to specific drugs by their scientific names is to be found in the inclusion as separate items of 'cocaine' itself and 'coca leaf' which contains cocaine and from which cocaine can be extracted. I should conclude, therefore, that prima facie a reference in Schedule 2 to a specific drug by its scientific name does not include a reference to any naturally occurring substance of which the specific drug is a constituent but from which it has not yet been separated.

So prima facie one would not suppose that possession of naturally occurring leaf and stalk of the plant cannabis sativa of which a cannabinol derivative, THC, was an unseparated constituent could be charged under the Act as possession of a 'cannabinol derivative'."

It is submitted that that reasoning applies as much to the 1988 Convention as to the domestic statute.

Discussion of the framework list issue

20. Article 2(2) of the extradition Framework Decision, quoted above, provides that the definition of offences within the framework list is a matter for the law of the issuing state. This point was emphasised by the European Court of Justice in Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad (judgment of 3 May 2007), in rejecting a challenge to the validity of the Framework Decision on the ground of breach of the principle of legality of criminal offences and penalties. Having set out the terms of Article 2(2), the court continued:

"52. Consequently, even if the Member States reproduce word-for-word the list of the categories of offences set out in Article 2(2) of the Framework Decision for the purposes of its implementation, the actual definition of those offences and the penalties applicable are those which follow from the law of 'the issuing Member State'. The Framework Decision does not seek to harmonise the criminal offences in question in respect of their constituent elements or of the penalties which they attract.

53. Accordingly, while Article 2(2) of the Framework Decision dispenses with verification of double criminality for the categories of offences mentioned therein, the definition of those offences and of the penalties applicable continue to be matters determined by the law of the issuing Member State, which, as is, moreover, stated in Article 1(3) of the Framework Decision, must respect fundamental rights and fundamental legal principles as enshrined in Article 6 EU, and, consequently, the principle of the legality of criminal offences and penalties."

21. Later in the judgment, in rejecting an argument that the Framework Decision infringed the principle of equality and non-discrimination, the court said this:

"57. With regard, first, to the choice of the 32 categories of offences listed in Article 2(2) of the Framework Decision, the Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality."

22. On the basis that it is the law of the issuing state that governs, and having regard to the provisions of the Framework Decision and of section 64(2)(b) of the 2003 Act concerning certification by the requesting authority that an offence is a framework list offence, the Divisional Court in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) held at para 112 that the court executing the EAW "should ordinarily accept the classification of the issuing Member State, unless there is an obvious inconsistency which shows that the conduct alleged does not amount to the offence under the law of that state"; and at para 115 the court held on the particular facts that there was "no inconsistency between what is set out in the EAW and the classification of rape in Sweden".
23. In the present case, as will be apparent from our summary of Mr Jones's submissions, a different kind of inconsistency is put forward as a reason why, as an exception to the ordinary rule, the executing court should decline to accept the certification of the requesting authority. It is not in dispute that the offences set out in the EAW are offences under German law, but it is said that they are not framework list offences on the proper construction of the expression "illicit trafficking in narcotic drugs and psychotropic substances" in the Framework Decision; and that if they are not framework list offences the executing court should decline to accept their certification as such by the requesting authority.
24. We think that an argument along those lines is open in principle to the appellant. Mr Jones referred in his submissions to another category of offences within the framework list, namely "crimes within the jurisdiction of the International Criminal Court". If the requesting authority ticked that box in the EAW but the offence described in the warrant fell plainly outside the jurisdiction of the International Criminal Court, then it seems to us that the executing court could and should decline to accept the certification. A similar approach should apply in principle if an offence is certified as an offence of "illicit trafficking in narcotic drugs and psychotropic substances" but is not capable of being such an offence on the proper construction of that expression.
25. The success of the argument depends in practice, however, on establishing both that the expression "illicit trafficking in narcotic drugs and psychotropic substances" in the Framework Decision is to be construed by reference to the definitions in the 1988 Convention and, if it is to be so construed, that the offences set out in the warrant do not relate to a narcotic drug or psychotropic substance as defined in that Convention. The appellant's case on these issues was very well presented by Mr Jones and has a considerable attraction to it, but we have come to the conclusion that it is mistaken and should be rejected.
26. It is a striking feature of the framework list that the categories of offences are described in very general terms, as Lord Bingham observed in the passage in Cando Armas quoted at [16] above. It is true that the category of "crimes within the jurisdiction of the International Criminal Court" has a specific, in-built reference to the jurisdiction of that court; and the category of fraud is stated, presumably for the avoidance of doubt, specifically to include fraud "affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests". Subject to those two points, however, very general terms are used throughout. In our view one should be very cautious about cutting down the scope of such general terms by reading implied limitations into them, whether by reference to international instruments or otherwise. Indeed, if the expression "illicit trafficking in narcotic drugs and psychotropic substances" had been intended to be qualified by reference to the 1988 Convention, one would have expected the use of express language to that effect. We note that Article 71 of the 1990 Convention implementing the Schengen Agreement (see [15] above) included an express reference of that kind in setting out the parties' undertaking "to adopt in accordance with the existing United Nations Conventions, all necessary measures to prevent and punish illicit trafficking in narcotic drugs and psychotropic substances".
27. The concentration in this case has been on illicit trafficking in drugs and the UN Conventions on that subject. But many of the categories of offences in the framework list are the subject of international instruments, and in none of those cases does the Framework Decision refer to the instruments in question or seek to incorporate their definitions. Instead, it uses general terms and leaves the definition of the offences to the domestic laws of the Member States, in the manner and for the reasons explained by the Court of Justice in Advocaten voor de Wereld VZW v Leden van de Ministerraad (see [20]-[21] above). There is no reason to believe that the Framework Decision intends in this respect to treat offences of "illicit trafficking in narcotic drugs and psychotropic substances" in any different way.
28. It follows that an offence of trafficking in khat is capable of amounting to a framework list offence of "illicit trafficking in narcotic drugs and psychotropic substances" even though khat as such is not a narcotic drug or psychotropic substance prohibited by the 1988 Convention. It is for the issuing Member State to define the relevant offences, and it is the law of the Member State, not the 1988 Convention, that governs.
29. Our reasons for rejecting the appellant's case go further than that. Even if the expression "illicit trafficking in narcotic drugs and psychotropic substances" in the Framework Decision has the meaning contended for by the appellant, it has not in our view been shown that the offences set out in the warrant do not relate to a narcotic drug or psychotropic substance as defined in that Convention. The description of the first and third offences includes specific reference to the amount of cathinone contained within the intercepted khat. Analysis of that kind was plainly not possible in relation to the second offence, where the parcel of khat had been delivered rather than intercepted; but there is no reason to believe that the presence of cathinone within the khat is not a feature of that offence too. Cathinone is listed in Schedule 1 to the 1971 Convention and thereby falls within the scope of the 1988 Convention. We do not accept Mr Jones's submission that the reference to cathinone does not encompass cathinone in the form in which it occurs naturally in the khat plant. We see no basis in the Convention for limiting it to synthetic or extracted cathinone: the fact that in some cases the plant and the active ingredient within it are separately listed does not justify the inference that, where only the active ingredient is listed, it does not include the active ingredient in its natural form within the plant.
30. If that is right, then it must be open to a state to define an offence of trafficking by reference to the cathinone contained within the khat even though the khat itself is not a prohibited substance. Article 3(11) of the 1988 Convention (see [11] above) reserves the description of offences to the domestic law of the state.
31. That is the approach that appears to have been adopted in the USA. In United States of America v Mire and Rafle (Nos. 12-2792 & 12-2793, decision of 25 July 2013) the United States Court of Appeals for the Seventh Circuit upheld convictions relating to trafficking in cathinone in circumstances where the cathinone in question was contained naturally within khat plants. The court observed (at pages 4-6 of the judgment) that the plant itself is not illegal in the USA but that it contains two controlled substances, cathinone and cathine; not all khat leaves contain the same or similar amounts of either substance, and some contain none; the regulation of khat is therefore dependent upon the particular chemical composition of each leaf, and the only way to determine whether a particular khat leaf has cathinone or cathine is to chemically analyse it. Thus, the offences were founded on the presence of natural cathinone in khat notwithstanding that khat itself was not prohibited.
32. The description of the offences in the present warrant suggests that German law may well take a similar approach, and there is in any event nothing to show positively that it does not take such an approach. In those circumstances, we take the view that the appellant has failed to establish that the offences in question fall outside the scope of "illicit trafficking in narcotic drugs and psychotropic substances" even if that expression has the meaning contended for.
33. This reasoning may be thought to sideline the decision in Director of Public Prosecutions v Goodchild (see [19] above), including Lord Diplock's statement that "a reference … to a specific drug by its scientific name does not include a reference to any naturally occurring substance of which the specific drug is a constituent but from which it has not yet been separated". But that was a decision relating specifically to the domestic law of England and Wales and we do not think that the reasoning in it should be applied across to the UN Conventions or to the domestic law of other countries so as to negative the conclusion we have otherwise reached on this matter for the reasons given above.
34. We therefore agree with the conclusion of District Judge Zani that the EAW in this case satisfies the provisions of section 64(2) of the 2003 Act.

The application of section 64(3): double criminality

35. For the issuing authority, Mr Payter puts forward an alternative basis for finding that the conduct set out in the EAW amounts to an extradition offence, namely that the conditions of section 64(3) are satisfied. Our finding that section 64(2) is satisfied makes it strictly unnecessary for us to deal with this point, but we will explain briefly why we do not consider Mr Payter's case on it to be well founded.
36. Section 64(3) provides:

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

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

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) 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)."

37. The contentious condition is the requirement of double criminality in subsection (3)(b). Mr Payter submits first that the conduct would amount to an offence contrary to section 3(1) or section 4(1) of the Misuse of Drugs Act 1971, which prohibit the importation, exportation and supply of controlled drugs. Part III of Schedule 2 to the 1971 Act contains a list of controlled drugs of class C. It includes cathinone, in paragraph 1. It also includes, in paragraph 4, "any preparation or other product containing a substance for the time being specified in any of paragraphs 1 to 3 of this Part of this Schedule". Mr Payter contends that the khat leaves in this case were a "product" containing cathinone and would therefore have been a controlled drug within the meaning of the Act. He relies on the decision of the Divisional Court in Hodder and Matthews v Chief Constable of Avon & Somerset Constabulary [199o] Crim LR 261. It was held in that case that packages of frozen "magic mushrooms" were produced in much the same way as supermarkets produce packaged and frozen vegetables, and that "the calling of such packets of frozen vegetables 'products' is an ordinary and natural use of language" (transcript, pages 6-7).
38. The decision in Hodder and Matthews does not sit comfortably with the observations of Lord Diplock in Director of Public Prosecutions v Goodchild (see [19] above). In any event, however, it does not seem to us that the khat plants described in the warrant could properly be regarded as a "preparation or other product" containing cathinone, within paragraph 4 of Schedule II to the 1971 Act, so as to bring the importation, exportation and supply of the plants themselves within the scope of the offences in sections 3(1) and 4(1) of the Act. The warrant does not suggest that anything had been done to the khat beyond picking it and bundling it up in parcels. To our minds it remained the natural plant, not a product within the meaning of the statute.
39. Mr Payter has a further argument, based on sections 20 and 36 of the 1971 Act, but this takes one back into issues considered in the context of section 64(2) of the 2003 Act concerning the effect of the prohibition of cathinone, but not khat, under the UN Conventions. If what we have said in the context of section 64(2) is correct, Mr Payter does not need this point; but if we are wrong in what we have said there, we do not think that he can win on the point.

Conclusion

40. We hold, in agreement with the court below, that the EAW in this case satisfies the provisions of section 64(2) of the 2003 Act, and we therefore dismiss the appeal.