England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		6 February 2013

Wednesday 6 February 2013

LORD JUSTICE TOULSON:

1. On 13 December 2012 at Westminster Magistrates' Court, District Judge Zani ordered the extradition of the appellant to Spain under a European Arrest Warrant ("EAW") issued by Judge Galvez of the 6th Section of the Central Investigative Court of the National High Court in Madrid on an accusation that he was guilty of a terrorist offence. The EAW was issued on 18 February 2004 and certified by the Serious Organised Crime Agency ("SOCA") on 3 August 2012. The appellant was arrested on 8 August 2012.
2. Spain has been designated under section 1 of the Extradition Act 2003 as a category 1 territory, so that the relevant statutory provisions are those in Part 1 of the Act. In box (b) of the EAW the particulars inserted after the words on the form "Arrest warrant or judicial decision having the same effect" and "Type" were:

"25 October 2001

WRIT FOR AN INTERNATIONAL ARREST WARRANT"

In box (c) the maximum sentence was stated to be "FROM 5 TO 10 YEARS' IMPRISONMENT". Box (e) contained a fairly detailed description of the alleged offence. In summary, it was alleged that in October 2000 members of ETA were in contact with the appellant in Bilbao. At their behest he rented a flat in Basauri as a safe house for members of ETA. On 15 October 2000 police searched the flat under a court order. They found explosives, detonators, timing devices, false vehicle licence plates, ammunition and documents and instructions for preparing explosives. The nature and legal classification of the offence was stated to be "CO-OPERATION WITH A TERRORIST GROUP AS STIPULATED IN ARTICLE 576 OF THE SPANISH CRIMINAL CODE". That was followed on the original Spanish version of the EAW by a cross against "terrorism" in the list of Framework offences, but no cross appeared on the English translation. The judicial authority which issued the warrant was stated to be Examining Central Court number 6, Audiencia Nacional.

3. The validity of the EAW is challenged by the appellant on different grounds. At the outset of his submissions, Mr Summers reminded the court of the following principles, which are not disputed:

(1) The validity of an EAW is a jurisdictional requirement.

(2) Strict compliance is required.

(3) No extraneous material may be used for the purpose.

(4) The burden of proof rests on a requesting judicial authority to the criminal standard.

(5) The time for assessment of validity is when SOCA certified the EAW (in this case 3 August 2012).

(6) It may in some circumstances be open to a respondent to rely on extraneous material not for the purpose of challenging the validity of an EAW which is valid on its face, but in support of an abuse of process argument.

4. It is submitted first that the EAW did not comply with the formal requirements of section 2(4)(b) of the Act for two reasons. One reason is that the judicial decision dated 25 October 2001 was described as a "writ for an international arrest warrant" and therefore did not satisfy the statutory requirement for an EAW. The other ground of alleged non-compliance is that the document did not identify who issued the writ for an international arrest warrant. If those challenges fail on the face of the EAW, it is alleged that extrinsic material shows that the proceedings are an abuse of process. If the challenges in relation to section 2 fail, it is alleged that the requesting state has not shown that the appellant was guilty of an extradition offence, because the EAW does not establish that his extradition is sought for a framework offence, namely terrorism, nor is the requesting state able to demonstrate to the requisite degree of certainty that the offence for which is extradition is sought satisfies the dual criminality test under section 64(3).

The challenges under section 2

5. It is well established that this provision has to be read in harmony with the Framework Decision. Article 8.1 of the Framework Decision provides:

"The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable decision having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) 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;

(f) 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;

(g) if possible, other consequences of the offence."

Article 1, to which Article 8(c) makes reference, defines an EAW in this way:

"A European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

6. Section 2 of the Act provides, so far as material, as follows:

"(1) This section applies if a 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).

(3) The statement is one that --

(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, 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 prosecuted for the offence.

(4) The information is --

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) particulars of the circumstances in which the person is alleged to have committed 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 is convicted of it.

(5) The statement is one that --

(a) the person in respect of whom the Part 1 warrant is issued [has 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."

Subsections (5) and (6) are not directly in point in this case, but I have included them because they have featured in the argument, as will become clear.

7. Mr Summers' argument for contending that the description in box (b) "writ for an international arrest warrant" was defective is founded on the judgment of the Supreme Court in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2250. The attack on the validity of the EAW in that case was based on the fact that it had been preceded by two earlier versions, which were no longer relied upon by the prosecution but which were not mentioned in the EAW. The Supreme Court held that the absence of any reference to those earlier EAWs did not render the EAW invalid. Mr Summers submits that the reasoning process demonstrates that the statement in the present EAW about an international arrest warrant was irrelevant and that what was critical was the omission of any identification of a warrant for the appellant's arrest in Spain. The sole judgment of the Supreme Court in Louca was given by Lord Mance. It is not a long judgment, and it upheld the reasoning of Dyson LJ in the Divisional Court, in particular in making the following four points:

"9. .... (i) the Framework Decision does not in Article 8(1)(c) use the phrase 'European arrest warrant', as it does consistently elsewhere when referring to such a warrant; (ii) the concepts of 'an enforceable judgment, an arrest warrant or any other enforceable judicial decision' cannot easily be understood as limited to a European arrest warrant; (iii) the phrase 'coming within the scope of Articles 1 and 2' can and should simply be understood as meaning that the enforceable judgment, arrest warrant or other enforceable judicial decision must be 'for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order' and be 'issued for acts punishable by the law of the issuing member state by a custodial sentence or a detention order for a maximum period of at least twelve months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months'; (iv) one European arrest warrant is most unlikely to be based on another...."

Lord Mance went on to say at [10]:

".... It is entirely understandable that the Framework Decision should require a European arrest warrant to set out its jurisdictional basis in the domestic law of the issuing state."

The requirement that the EAW should identify the jurisdictional basis for the EAW in the law of the issuing state lies at the heart of the judgment. Lord Mance concluded at [15]:

"The question certified by the Divisional Court is: 'Whether the reference to "any other warrant" in sections 2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based.' For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant."

8. The effect, therefore, of section 2(4)(b) is that the EAW must identify the jurisdictional fact which, under the law of the issuing state, provides a legal basis for issuing an EAW within the scope of Articles 1 and 2. By "jurisdictional fact" I mean the legal process which domestic law recognises as a proper foundation for the issue of the EAW. To take a simple building analogy, the EAW must identify the foundation brickwork on which the EAW stands.
9. I have referred to the words "within the scope of Articles 1 and 2" which appear in Article 8. In his judgment in the Divisional Court in Louca [2008] EWHC 2907 (Admin), [2009] All ER 719, Dyson LJ addressed the significance of the words "within the scope of Articles 1 and 2" which qualify Article 8(1)(c). He said at [24]:

".... To come within the scope of Articles 1 and 2, it must satisfy two conditions. First, it must be 'for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order' in the issuing Member State (article 1(1)). Secondly, it must be issued in respect of acts which 'are punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least twelve months ....' or be in respect of one of the offences specified in article 2(2) punishable in the issuing Member State by a custodial sentence or detention order for a maximum of at least three years. In other words, the scope of articles 1 and 2 is concerned with the purpose for which the enforceable judgment etc was issued (article 1(1)) and the content of the law of the issuing Member State (article 2). It is only an enforceable judgment etc which satisfied the two conditions specified in articles 1 and 2 that can provide a basis for the issue of an EAW. It follows that the words 'within the scope of articles 1 and 2' provide no support for the view that the enforceable judgment etc is a previous EAW. On the contrary, they indicate that the enforceable judgment etc must satisfy the two specified conditions of the domestic law of the state of the issuing judicial authority."

Dyson LJ added at [27]:

"In our judgment, there is no warrant for holding that article 8(1)(c) requires an EAW to contain evidence of an earlier EAW on which it is not based or for holding that it does not require an EAW to contain evidence of the enforceable judgment etc on which EAW is based." (original emphasis)

That proposition was put in largely negative terms, but the positive counterpart was that stated by Lord Mance at [10] in his judgment in the Supreme Court.

10. That brings me to the EAW in the present case and the words "writ for an international arrest warrant". The "writ" was issued on 25 October 2001 and so predated the Framework Decision which introduced the international arrest warrant. The word "writ" is clearly not to be construed by reference to English legal process, with which it can hardly be supposed that the issuing judicial authority would have been particularly familiar. In its context I take the reference to a "writ" to be the issue of a document recognised under Spanish law as providing authority for legal process to be taken with a view to obtaining the appellant's arrest abroad for the purposes of extradition to face trial in Spain for terrorism. I cannot see what less it could be. On its face that appears to me to satisfy the requirement of Article 8 which is given effect by Article 2(4). It provided evidence of what I have described as a jurisdictional fact or, in terms of Article 8, an "enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2". It met the fundamental requirement identified by Lord Mance in Louca at [10].
11. I do not see it as a fatal flaw that the document did not say "international arrest and thereafter his production before the Spanish Court". I accept that the requirements of the Act are to be strictly construed, but that does not require the document to be read in an unrealistically narrow fashion. It would be bizarre to interpret the writ as a document authorising legal process to obtain the arrest of the appellant abroad with a view to his instant release on reaching Spanish soil, rather than the obvious purpose of his production before the Spanish Court to respond to the accusation against him.
12. If prior authorisation for a person's arrest in his home state is a sufficient foundation for a process to secure his arrest abroad, as is accepted, I see no logic for saying that an authorisation recognised in domestic law as valid for the purpose of taking legal process to secure his arrest abroad cannot be a sufficient foundation under domestic law for an EAW to be valid.
13. The next part of the appellant's argument is based upon a communiqué sent by the requesting judicial authority to the District Judge dated 14 November 2012. It gave the following additional information about the order made on 25 October 2001:

"1. That the nature of the issued International Arrest Warrant is a court order dated 25 October 2001 decreeing the national search, arrest and preventive detention and the issuance of an international arrest warrant against Kemen Uranga Artola.

2. It is a court order issued by this Court decreeing the international arrest of the defendant Kemen Uranga Artola.

3. That the said International Arrest Warrant dated 25 October 2001 was issued by this Central Investigative Court Number Six of the National High Court."

The communiqué went on to give further details of the offence with which the appellant was charged. It is unnecessary to set those out.

14. Mr Summers submitted that this additional information demonstrated that the court on 25 October 2001 made two separate orders: one for the appellant's arrest and detention in Spain, and the other for international process to be taken with a view to securing his arrest abroad. It is clear from the face of the communiqué that the court ordered both matters. (Whether it was in one order or two orders; and, if in one order, whether in one paragraph or two paragraphs, cannot be a decisive matter.) Mr Summers' argument was that, conceptually, there is a critical difference between authorisation of the appellant's arrest in Spain and authorisation of proceedings to obtain his arrest abroad. The first could provide a lawful foundation for the issue of an EAW, but the second could not.
15. I am unpersuaded that that submission has any underlying principle or justice to commend it. For reasons already given, if process taken under domestic law to obtain the appellant's detention on Spanish soil is a good foundation for the issue of an EAW, it is hard to see why lawful domestic process, which has a wider reach, should not provide the necessary domestic legal foundation for an EAW.
16. However, Mr Summers faces a further difficulty. He accepts that if he is wrong on his primary position, namely that the EAW was deficient on its face, he cannot rely on the additional material to invalidate the warrant. What he might be able to do is to rely on the extraneous material to support an abuse of process argument, and that is what he seeks to do. The foundation for this approach is identified in the decision of the Supreme Court in Zakrzewski v Regional Court in Lodz, Poland [2013] UKSC 2, [2013] 1 WLR 324. Lord Sumption, in giving the judgment of the Court, recognised that the English Court, as the court asked to execute an EAW, has an inherent right to ensure that its process is not abused. That might encompass a case in which it is demonstrated that the particulars provided in the warrant were wrong. Lord Sumption went on to make the following observations at [13] about the jurisdiction to decline to give effect to an EAW which is valid on its face:

".... The first is that the jurisdiction is exceptional. The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally). Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute. .... Third, the error or omission must be material to the operation of the statutory scheme. No doubt errors in some particulars (such as the identity of the defendant or the offence charged) would by their very nature be material. In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition. The fourth observation follows form the third. In my view, Ms Cumberland was right to submit to Sir Anthony May P in Murua [[2010] EWHC 2609 (Admin)] that the sole juridical basis for the inquiry into the accuracy of the particulars in the warrant is abuse of process. I do not think that it goes to the validity of the warrant...."

17. In my judgment, the appellant would in any event fail to clear the first hurdle. The facts as they now appear from the communiqué are that, in October 2001, the court ordered the appellant's arrest and further directed that steps be taken to secure his international arrest. Accordingly, if those full facts had been set out in the EAW, the order for his extradition would indubitably be correct. The court was therefore not misled into making an order which was wrong upon the full facts now known. There would therefore be nothing resembling abuse of process in proceeding to execute the warrant on the full facts as now known.
18. I turn to the other limb of the argument about the validity of the warrant, namely the absence of an identification of the body which issued the writ for an International Arrest Warrant. Mr Summers submitted that that information was necessary for compliance with section 2(4)(b), which requires "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence". The identity of whoever issued that process is, in his submission, so fundamental that its omission means that there is a fatal defect in the particulars supplied.
19. There is a sparsity of authority in relation to that topic where accusation warrants are concerned. Mr Summers cited two cases relating to conviction warrants: Sandi v Craiova Court, Romania [2009] EWHC 3079 (Admin) and R(Dennis) v Regional Court in Warsaw (A Polish Judicial Authority) [2010] EWHC 3507 (Admin). In Sandi Hickinbottom J explained how the different purposes of an accusation warrant and a conviction warrant affect the particulars required to be given. He said:

"26. In section 2, in respect of information to be included, there is a patent dichotomy between the requirements for an accusation warrant on the one hand, and a conviction warrant on the other. Section 2(4)(c) expressly requires particulars of the circumstances of the offence to be included in an accusation warrant: section 2(6)(b) does not require those particulars in a conviction warrant. It must be taken that Parliament intended the information as to the circumstances of the underlying offence required in an accusation warrant to be different from that required in a conviction warrant. It cannot have been their intention to have the requirements of section 2(4)(c) read across into section 2(6)(b).

27. In seeking a rational basis for that distinction, one needs to consider the purposes of each type of warrant.

28. An accusation warrant seeks to extradite a person so that he can face a criminal charge within the state seeking extradition: therefore, as Miss Wilkes submitted, it derives its legal characteristics from the alleged criminal conduct which founds that charge in the state seeking extradition. So far as an accusation warrant is concerned, the terminology of section 2(4)(c), namely 'particulars of the circumstances in which the person is alleged to have committed the offence ....', therefore understandably requires more than a general indication of the alleged criminal conduct .... A significant level of particularisation is required to enable the person sought to be extradited to identify exactly what he might face at trial.

29. A conviction warrant on the other hand seeks to extradite a person to face the appropriate consequences of his conviction: therefore, it derives its legal characteristics from the conviction. The trial has already taken place and, following conviction, a considerable number of matters which are unknown at the accusation stage are no longer uncertain. For example, the basis and even the evidence upon which the conviction was found are known and fixed. It is therefore understandable that, as section 2(6)(b) requires, the warrant must inform the person sought to be extradited of the details of the relevant conviction.

30. Those details must of course include, for example, the court and date of the conviction. ...."

20. In Dennis Wilkie J quoted parts of the judgment in Sandi in holding that a conviction warrant needed to identify the date of conviction. He also said at [20]:

"In my judgment in the vast majority of cases, amongst the most fundamental pieces of information provided will be: what is the court, and what is the date of the decision giving rise to the warrant? It must, in my judgment be an exceptional set of circumstances where failure to identify the date nonetheless can be made up by the surrounding information so as to satisfy the requirements of section 2(6)(b) to provide particulars of the conviction."

21. In his written submissions Mr Summers also referred to Dhar v National Office of the Public Prosecution Service, the Netherlands [2012] EWHC 697 (Admin). In that case the EAW as originally issued contained no details in box (b). It was amended after it was first signed, but before steps were taken to enforce it, by inserting the words "issued by Public Prosecutor GC Bos on 9 June 2011", and the amendment was signed and dated. It was held that the EAW in its amended form was valid. There was no discussion of the question whether it would have been valid without the identification of the Public Prosecutor.
22. I agree with Hickinbottom J that one cannot simply read across from the requirements of section 2(4) to section 2(6) or vice versa. Mr Summers submitted that if the identity of a convicting court was a fundamental particular, without which a conviction warrant would be fatally flawed, the same must apply, a fortiori, in an accusation case. Mr Lloyd submitted to the contrary. He observed that the proper starting point is the requirements of Article 8, to which section 2 is intended to give effect. He observed that, whereas Article 8(1)(b) requires the name, address, telephone and fax numbers, and e-mail address of the issuing judicial authority, it does not require similar particulars of the body which issued any enforceable judgment or arrest warrant. Article 8(1)(c) uses the more general expression:

"evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2."

Mr Lloyd submitted that the court should not lay down additional universal requirements. In that respect he referred to the observation of Hickinbottom J in Sandi at [33]:

"The appropriate level of particularity to satisfy section 2(6)(b) will depend on the circumstances of each case. In relation to how far a warrant has to go in terms of particularity, I echo Dyson LJ's caution in Von der Pahlen [[2009] EWHC 1672 (Admin)] (at [22]): it would be unwise to attempt a prescriptive answer to that question, nor do I seek to do so."

23. Mr Lloyd submitted that the question is whether the totality of the information contained in the EAW satisfied the requirements of section 2(4). I agree with that general approach. As to the facts of this case, he submitted that the EAW told the appellant sufficient to know of the identity of the judicial authority which issued the EAW, the charge which he was facing, the circumstances of the alleged offence, and the issue of the process against him in Spain in order to meet the objectives of Article 8. It is a fact-specific question. I agree with Mr Lloyd's submission. It follows that I would reject the argument that the EAW failed to provide the information required by Article 2 and accordingly was invalid on that ground.
24. There remains the question whether the EAW properly disclosed an extradition offence. Section 64 of the 2003 Act, so far as material, provides as follows:

"(1) This section applies in relation to conduct of a person if --

(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct ....

....

(2) 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 the 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 three years or a greater punishment.

(3) 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 twelve months or a greater punishment (however it is described in that law)."

25. In the present case is there a certificate issued by an appropriate authority to show that the conduct falls within the European Framework List? The EAW does so if, as a matter of law, it is capable of operating as such a certificate. I say that it does so, because the original Spanish version had a cross marked against "terrorism" in the list of Framework offences. Before the District Judge it was argued that he should not take account of that fact, but rather should find that there was no adequate certificate because the English translation did not have a cross against the appropriate offence. Before this court Mr Summers has not sought to pursue that point. In my judgment he was plainly right not to do so.
26. The question which Mr Summers seeks to raise is whether the EAW can itself serve the purpose of being a certificate within the meaning of section 64(2)(b). That question was decided by the House of Lords in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31. It held that the EAW can itself serve that function. Mr Summers advanced the bold submission that Dabas is no longer the law and that this court should not follow it. He submits that it is inconsistent with the recent decision of the Supreme Court in Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 WLR 1275. Before coming to Assange, and in order to do justice to Mr Summers' argument, it is necessary to say more about the decision in Dabas.
27. In Dabas the House of Lords held that if the question were being determined simply on the language of the statute and without regard to its international context, the proper answer to the question would be that the EAW could not serve the purpose of being a certificate within the meaning of section 62(2)(b), and that the subsection required a separate certificate. However, a majority was persuaded that the international context required the section to be construed as allowing the EAW itself to operate as the necessary certificate. In so doing, the majority were strongly influenced by the decision of the Court of Justice in Pupino [2006] QB 83, which in their view compelled the UK Court to construe the subsection in such a way as conformed with the objectives of the Framework Decision.
28. Mr Summers submits that that reasoning can no longer stand in the light of the decision in Assange, where it was recognised by the Supreme Court that the decision of the Court of Justice in Pupino did not have the compulsive effect to which I have referred. Therefore, he says, this court should look at the matter afresh, mindful of the principle stated by Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67, [2006] 2 AC 1 at [24]:

".... the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty."

Mr Summers submits that, when that principle is set alongside the House of Lords' conclusion in Dabas that, as a matter of ordinary construction of the statute (absent European considerations), section 64(2)(b) should be construed as an additional requirement imposed by Parliament on top of the contents of the EAW itself, the only proper conclusion for this court to reach is that the EAW cannot serve as a certificate within the meaning of section 64(2)(b).

29. However, it is necessary to observe how the majority of the Supreme Court in Assange approached the earlier reasoning in Dabas. Lord Phillips at [10] said that while the decision in Pupino did not bind the court to interpret Part 1 of the 2003 Act insofar as possible in a manner which accorded with the Framework Decision, he considered that it was plain that the court should do so. Similar observations were made by Lord Brown at 98, Lord Kerr at 112 and following, and Lord Dyson at 122 to 123. I recognise that the context in which those observations were made was different from the context in the present case in that the Supreme Court was concerned with the meaning of the words "judicial authority"; it was not concerned with the issue which confronted the House of Lords in Dabas. Nevertheless, it indicates that, while the Supreme Court has recognised that the House of Lords overstated the effect of the decision of the Court of Justice in Pupino, it does not follow that the contextual considerations are not still highly significant.
30. In Assange the Supreme Court was not concerned with the question whether the decision in Dabas itself was right. There is no foundation, in my judgment, for saying that it can be inferred that the Supreme Court intended to depart from that decision. This point is reinforced by an observation of Lord Sumption in Zakrzewski at [6], where he said:

"Under section 64(2)(b)(c), the questions whether 'the conduct' falls within the European Framework list and whether it is punishable under the law of the requesting state by a sentence of imprisonment of three years or more are to be determined by reference to information certified by the requesting authority, which may be (and commonly is) certified in the warrant itself: see Dabas ...."

Once again, the Supreme Court was not directly concerned with the correctness of the decision in Dabas, but in making that obiter observation the Court was manifestly not conscious of having reached a decision which involved a reversal of Dabas.

31. If the Court of Appeal finds itself faced with two decisions of the House of Lords or the Supreme Court which are inconsistent, it may be in the unfortunate position of having to choose between them. But that situation only arises when the decisions themselves, as distinct from some of the argument contained in them, are inconsistent. The limitations on a lower court's authority to question decisions of the House of Lords has been considered on a number of occasions, including Broome v Cassell & Co Ltd [1972] AC 1027.
32. I am quite clear that it cannot be said that the decisions in Assange and Dabas are incapable of standing together and therefore this court is bound by the decision in Dabas. By those remarks I do not mean to imply that I would respectfully consider the decision in Dabas to be wrong. It does not properly arise for the decision of this court, and therefore we did not invite argument from counsel for the requesting state on that issue.
33. It follows that I would reject the challenge to the District Judge's finding that the EAW validly certified that the appellant is accused of a Framework offence. It is therefore unnecessary to consider the alternative arguments about section 64(3).
34. I would therefore dismiss this appeal.

MR JUSTICE UNDERHILL: I agree.

MR SUMMERS: My Lord, it is my intention to apply to this court to certify points of law of general public importance. I have a statutory fourteen days in which to lodge that application. With my Lords' permission, I would seek to do so in writing?

LORD JUSTICE TOULSON: Yes, absolutely. You have fourteen days. That brings us pretty nearly up to Easter, does it not?

MR SUMMERS: My Lord, I have fourteen days to lodge the application. My Lords' consideration of it is not constrained --

LORD JUSTICE TOULSON: No, I know, but I am somewhat trying to clear the desks. You will have your fourteen days, but if you are able to get it to your opponent by the end of next week -- I will not abridge your time, but if you could get it to him before the end of next week; I do not suppose, Mr Lloyd, you will want to say very much on it?

MR LLOYD: My Lord, I will respond very briefly.

LORD JUSTICE TOULSON: If we were able to have both sides' submissions by Monday or Tuesday week, that would, with good fortune, enable us to deal with it before the Easter vacation, but I appreciate you may have other things to do.

MR SUMMERS: My Lord, it would certainly assist me in performing that task if this court were to order an expedited transcript of today's judgment.

LORD JUSTICE TOULSON: Yes, we will order an expedited transcript.

MR SUMMERS: I am grateful, my Lord. Lastly, my Lord, may I have an order for the assessment of the appellant's publicly funded costs?

LORD JUSTICE TOULSON: Yes, certainly. Thank you very much.