England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 March 2013

1. MR JUSTICE COLLINS: This is an appeal under section 26 of the Extradition Act 2003 against the decision of District Judge Rose who, on 31 December last, ordered the appellant's return to France to face four charges: three of armed robbery and one of conspiracy. The three armed robberies were committed in Toulouse in May, June and July of 2011 respectively. The conspiracy charge alleges that the appellant had participated in an association formed or an agreement established that was characterised by one or more circumstances, one or more crimes. The date and place of commission was said to be in Toulouse in 2011 until 8 July 2011; 8 July was the date on which the third of the armed robberies was committed.
2. Two grounds have been relied on. The first is that the warrant does not indicate properly that the stage of accusation as opposed to investigation has been reached and there was insufficient material to justify the finding of the District Judge that this was indeed an accusation as opposed to an investigation situation.
3. Reliance has particularly been placed upon Vey v The Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin), a decision of a Divisional Court consisting of Moses LJ and Holland J. Vey was in this way disapproved in Asztalos v The Szekszard Court Hungary [2011] 1 WLR 252, a decision of a Divisional Court consisting of Aikens LJ and Openshaw J. It is said that, although it is not for this court or a court in this country dealing with extradition to go into the details of the process which is relevant in any particular requesting state, nonetheless, it is necessary and in all cases it ought to be made clear that the stage has been reached that means that it is accusation as opposed to investigation. It is said that that has not been identified in the warrant in question; that is the first ground.
4. The second ground is that the conspiracy charge is defective in as much as it does not contain the particulars that are needed by virtue of section 2.4(c) of the Extradition Act 2003 in as much as it does not properly set out the circumstances of the alleged offending so as to make clear to the appellant precisely what it is that he faces in that particular charge. That is a second point which I will consider independently of the first ground which covers all four of the offences for which extradition is sought.
5. The starting point obviously is the warrant itself. As so often is the case, it does not delete the relevant part that appears at the outset, namely whether it is an accusation as opposed to a conviction case. Nonetheless, as authority in this court has made clear, that is by no means fatal because it is obvious from what follows which it is said to be. In this case, clearly it is said to be a warrant for the purpose of conducting criminal prosecution.
6. It is only if there is to be the conduct of a prosecution, that is to say the stage has been reached that the person requested is to be prosecuted for the offence or offences set out in the warrant that such a warrant can be issued. It must be issued by or at the instance of a judicial authority. Thus, the starting point is that this court will approach the matter on the basis of an assumption which may not prevail when one looks at the warrant as a whole or all the relevant circumstances that it is indeed what it purports to be, namely an accusation case.
7. What then is set out? One looks at the nature of the offences, set out in part E of the warrant. I think it is perhaps desirable simply to set out the description of the circumstances fully. What is said is this:

"On 8 July 2011, two individuals armed with tear gas and a gun entered the BNP PARIBAS branch at [the address in Toulouse], and demanded 6,000 euros. As they fled one, of them, Damien CORA, was arrested, and the second threatened a police officer with his weapon. CORA acknowledged his participation in the deeds, but against all evidence, claimed to have committed them alone. The investigation continued and a stolen FORD FIESTA was discovered in proximity to the site of the attack.

A preliminary inquiry was opened, and connections were quickly made with two other cases of armed robbery committed in Toulouse in May and June 2011 at [the branch and the individual branches of the banks are then set out].

The FORD FIESTA that was discovered had been stolen on the night of 5 to 6 July 2011 ...

The investigation identified three individuals close to CORA: [they are named and they include this appellant].

The photographs taken of [one of them] identified him as one of the perpetrators of the armed robbery ... committed on 10 June 2011.

The investigations as well as the statements of the co-offenders identified [the appellant] as the man wearing a hat and wig visible on surveillance video, and as having participating, at least as the instigator, in the commission of three armed robberies. He was defined as the mastermind of the conspiracy and the supplier of the weapons, the organiser and co-perpetrator of the deeds."

Then the nature of the various offences are set out, namely the armed robberies in question.

8. The warrant is said to be issued by the Vice President in charge of the investigation of Magistrates Court of Toulouse and is dated 6 April 2012. What is submitted and what was submitted before the District Judge is that those details did not indicate sufficiently clearly that the matter had got beyond the stage of suspicion. It seems to me that if one looks at the statement which I have read contained in Box E as a whole, there is nothing there which can be said to indicate other than that there was - in the view of the Vice President in question, the examining magistrate - sufficient evidence to put the appellant on trial. Mr Davies suggests that it is less than clear as to precisely what role it is that the appellant played. But it seems to me it is absolutely clear, namely he was said to be the instigator which meant that he was defined as the mastermind and the supplier of the weapons, the organiser and the co-perpetrator; that is as clear as could be.
9. As I have said, the argument is largely based upon Vey. Vey was a case which very much depended on its own facts. The warrant in that case against Madam Vey was based it seems, upon evidence supplied by her son. But her son had changed his story from time to time and finally had put her as the person who was responsible for committing the offence which was I think an offence of murder.
10. The warrant in question did leave the District Judge to consider that it was necessary to make further enquiries. If one looks at paragraph 17 of the judgment of Moses LJ in the case, one sees him saying this:

"The decision of the Senior District Judge on 2 March 2005 records the contention on behalf of the appellant, by Mr Hines, that the purpose of the warrant was not for prosecution but for investigation. The Senior District Judge pointed out, correctly, that there was no allegation that the appellant was acting jointly with her son. He noted that the proceedings had not been withdrawn against the son. He accepted the possibility that the warrant was sought in order to secure the interrogation of the appellant in order to establish whether the prosecution of her son should be continued or whether she herself could be prosecuted. In the light of that view he sought further information."

11. The importance there was that the son's statements showed that he could hardly be regarded as a very satisfactory witness, if witness is the proper description, and it was not suggested that the offence committed was one which had been committed jointly with him. In those circumstances there was a real question mark as to whether this was in reality an accusation or a conviction case.
12. When the information sought was obtained from the authority in France, the answer to the relevant question posed was this: Madam Vey's status is considered to be that of neither suspect nor accused. In those circumstances, it is perhaps not surprising that the court took the view that it was not established that this was indeed an accusation as opposed to an investigation case. But reliance is placed upon the observations of Moses LJ at the end of his judgment, in paragraph 61, where he says this:

"District judges should not be expected to be placed under the burden of resolving disputes as to French procedural criminal law. I would have expected the French authorities to be able to assist the UK liaison magistrate to remove this burden from District Judges. It is, after all, wholly inimicable to the objective of the Framework Decision and the 2003 Act. In short, the particulars ought to be founded upon a clear description of that which emerges from the serious or corroborating material. By that means Article 8 of the Framework Decision and Section 2(4) can be clearly satisfied. It should be possible to explain, with precision, the stage at which proceedings have reached notwithstanding that the appellant has never been interrogated. I would allow this appeal."

13. Those observations in Vey were considered by the court in the subsequent case of Asztalos. What Aikens LJ said and what Mr Davies particularly relies on in that case is, in paragraph 26:

"At paragraph 59 - 61, Moses LJ pointed out that it was important for the English court, as the requested court, to know the stage reached in the proceedings, to ensure that the EAW was within the terms of section 2(3)(b) of the Act. He also pointed out that if this had to be determined by expert evidence, it placed a considerable burden on District Judges hearing these cases. Therefore, the requesting authorities (in that case the relevant French prosecution authorities) ought to explain the stage reached in the proceedings for the benefit of the English court, as the requested court."

Mr Davies makes the point that Aikens LJ does not appear to disapprove of the observations of Moses LJ. The suggestion must be that in every case it is necessary to state, on the face of the warrant, that the stage has been reached in the relevant procedural provisions in the country in question where he is indeed an accused person as opposed to someone who is merely to be regarded as a suspect.

14. I do not think that the combination of the cases takes the matter that far. Obviously if there is, as there was in Vey, a real question mark raised on the face of the warrant which required further investigation then, of course, that has to take place. As matters turned out in Vey, it was less than clear that Madame Vey was indeed to be regarded as an accused person. But where there is nothing on the face of the description given of the offences in the warrant or any other indication in the warrant that the assertion that it is indeed an accusation warrant is in doubt then it is not necessary for the further detail to be provided. In this case, there is nothing that is ambiguous in the statement under Box E of the circumstances of the offences which could conceivably suggest that they were still merely at the stage of investigation as opposed to accusation. Accordingly, that ground in my view, fails.
15. The second ground relates to the particulars or, as Mr Davies submits, the absence of proper particulars, in relation to the fourth of the offences. The circumstances set out are these:

"To have in TOULOUSE, in 2011 and until 8 July 2011, and in any case on the national territory and within a time not covered by the statute of limitations, participated in an association formed or an agreement established to prepare, characterised by one or more circumstances, one or more crimes. And as a repeat offender, having been sentenced by the Criminal Court of Haute-Garonne to ten years' imprisonment for armed robbery as a repeat offender, confirmed on appeal by the Criminal Court of Appeal at Tarr et Garonne on 1 December 2006, deeds covered by [the relevant provisions] of the Criminal Code."

16. What Mr Davies submits is that that does not set out properly the circumstances because it does not identify the crimes which are covered by the alleged conspiracy. Equally, it does not limit in any way the width of that conspiracy to the armed robberies which are the three substantive offences. The District Judge dealt with this in this way:

"The first part of box E provides considerable detail of this requested person's role as set out above. He was identified as having participated at least as the instigator in the commission of three armed robberies. He was defined as the mastermind of the conspiracy and supplier of the weapons, the organiser and co-perpetrator of the deeds [his co-conspirators are named]. The particulars of his role in the organisation, which are the subject of the fourth offence, clearly relates to the conspiracy to commit the three offences of armed robbery that are listed in the warrant. The time is limited to a period of just over 6 months culminating with the date of the final role."

17. The approach set out by Cranston J in the case of Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) has been consistently relied on. What is there said is that the person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to him that offence, and the amount of detail may turn on the nature of the offence. It is necessary, too, that the warrant as a whole has to be considered in deciding whether there is sufficient particularity given of the circumstances of the offence.
18. I have no doubt that it would have been helpful, and probably desirable, to have made it clear - it could have been done by the addition of a very few words - that the conspiracy alleged (which seems to be what it is in terms of our approach,) was a conspiracy to commit armed robberies and that the three armed robberies in fact committed were acts which showed what the conspiracy was all about. It seems to me that if one looks at the warrant as a whole it must have been clear, and indeed is clear as the District Judge decided, that the offence of conspiracy is indeed limited in that way and covers the commission of the armed robberies in question. No doubt it may be that conspiracy can add, in the sense that it may well be that, had one of the offenders not been arrested after the third robbery of 8 July, had it been successful, there might well have been further armed robberies committed. But what is clear is that the conspiracy is to be regarded as so limited, that is to say limited to conspiracy to commit the armed robberies set out as the three offences. It would be wrong for any wider conspiracy to be prosecuted on the appellant's return to France. That that was the intention behind the conspiracy charge is accepted, as I understand it, by Mr Hearn on behalf of the judicial authority in France. I make it clear that that limitation applies, so that anything wider would be a breach of specialty. Subject to that observation, I would dismiss this appeal.
19. Mr Davies asked for an adjournment this morning on the basis of information that had been received that he had been unable to discuss with his client, because apparently it is said that he has received some specific threats as to what would happen to him were he to return to France. Those are threats to his life or limb. It seems to me that it is, on the face of it, somewhat unlikely that whatever may be the source of those threats and whatever may be their contents that they would give rise to any ground for submitting that to return would be oppressive, or that there would be any bar in terms of Articles 2 or 3 of the Human Rights Act. But it is right that Mr Davies should have the opportunity to investigate the matter properly and to take full instructions. If he is persuaded that there is any possible merit in pursuing such a ground then he must have the opportunity to do so. Accordingly, what I propose to do is to say that the dismissal of this appeal will not take effect for a period of 14 days. If, within that period, Mr Davies takes the view that there is a possible basis for submissions, he must put in writing his contentions and of course serve it the other side and the matter will be considered by the court.
20. If, on the other hand, he takes the view that in reality there is no chance of a successful outcome based upon those allegations, again, he should notify the court, in which case the dismissal will become effective. If the court hears nothing within 14 days, the dismissal will come into effect 14 days from today. You had better have the usual order.
21. MR DAVIS: Yes, thank you very much indeed.
22. MR JUSTICE COLLINS: That is the best I think I can do.
23. MR DAVIS: My only concern was the opportunity to get into Wandsworth Prison.
24. MR JUSTICE COLLINS: You can indicate that, because of the tight time limit, the prison must make arrangements so that you are able to see him no later than 7 days on.
25. MR DAVIS: Thank you very much. If the matter is to be pursued, would your Lordship intend to hear any further submissions?
26. MR JUSTICE COLLINS: I think that depends. You must decide whether you want to apply, if there is any possible merit, in writing or whether there needs to be any oral. You had better have time, Mr Hearn, to respond if there is anything raised.
27. MR HEARN: Yes, my Lord.
28. MR JUSTICE COLLINS: If I say 14 days to respond, then between you, you can submit whether it should be dealt with on the paper or whether a further hearing would be needed.
29. MR DAVIS: My Lord, yes, so grounds to be lodged within 14 days otherwise the decision takes effect.
30. MR JUSTICE COLLINS: Obviously if you do lodge grounds then the dismissal will be deferred until the final decision.
31. MR DAVIS: Thank you very much indeed.
32. MR JUSTICE COLLINS: Can you set out that in the form of an order because it is slightly more complicated than the usual order.