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
		1 December 2014

MR JUSTICE COLLINS: 1. This is an appeal against a decision of District Judge Ingram, given on 8 October 2014, to order the appellant's extradition to Hungary pursuant to an accusation warrant alleging that he committed an offence described as misappropriation in April 2008. It is not necessary to go into any of the details since in this appeal only one point is taken. It is said that there has been a failure to comply with Section 2 (4) (b) of the Extradition Act 2003 in as much as there is no reference to - and indeed there appears to be no existence of - a domestic warrant or domestic legal decision which has to be referred to and indeed has to exist in order to justify the issuing of a European arrest warrant.

1. Section 2 (4) (b) of the Act follows the provisions of Article 8.1 (c) of the Framework Decision. So far as material, Section 2 provides:

"(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 sub-section (3) and the information referred to in sub-section (4) ..... "

and the information in question, so far as material, in sub-section (4) (b) is -

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

2. The question as to what was meant by "any other warrant" was considered by the Supreme Court in Louca v Germany [2009] 1 WLR 2550. I should also refer specifically to Article 8.1 (c) which provides as follows:

"(1) The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

.....

(c) 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."

Article 1 defines the European arrest warrant as being -

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

3. Article 2 defines the scope of the warrant, in effect, setting out a number of Framework offences and equally other offences which may be regarded as extraditable offences. There is no issue so far as this case is concerned but that the offending in question does fall within the scope of Articles 1 and 2.
4. In Louca, the Supreme Court had to decide whether the reference in Section 2 (4) (b), following Article 8, was to be regarded as another European arrest warrant or a domestic warrant. Perhaps somewhat unsurprisingly, the Supreme Court decided that what it covered was a domestic judicial decision. At the end of his judgment, giving the only reasoned judgment of the Supreme Court, Lord Mance said:

"15 The question certified by the Divisional Court is: 'Whether the reference to 'any other warrant' in ss. 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 ..... "

5. The issue was dealt with in a subsequent case before the Divisional Court: Artola v Sixth Section of the National High Court in Madrid, Spain [2013] EWHC 524 Admin Lord Justice Toulson, having cited what Lord Mance said at paragraph 15 (which I have cited), said:

"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."

6. In this case the relevant provision in the warrant states under B, which is headed "Decision on which the warrant is based":

"(1) Arrest warrant or judicial decision having the same effect, European arrest warrant [number is given] issued by the relevant court with a territorial scope including Hungary which would be considered accordingly also as a national arrest warrant."

7. So what is there said is that the arrest warrant itself effectively serves two purposes. It is to be regarded as a national warrant and also as the European arrest warrant.
8. Clearly, in those circumstances, as this is set out by the judicial authority in Hungary, Hungarian law has recognised that there is no need for a separate document to exist in order to found jurisdiction for the issue of a European arrest warrant. That is itself sufficient legal justification for the issuing of the arrest warrant.
9. Miss O'Raghallaigh submits that there has to be evidence of a separate act - judicial act - or a separate document which can be relied on as a domestic warrant. As she puts it, there is no brick which can be regarded as a proper foundation for the arrest warrant.
10. That, in my judgment, is far too narrow a construction of the section. Provided that it is clear, as it is in this case, that the national law of the requesting state enables the EAW to act in addition as a domestic warrant then that is in compliance with the law as set out both in the Framework Decision and in Section 2 (4) (b). What is required in Article 8.1 (c) is evidence of any enforceable judicial decision which has the same effect as an arrest warrant. Indeed, there is here not only that but an arrest warrant because the EAW acts not only as the European arrest warrant but also as the domestic arrest warrant.
11. In those circumstances I am entirely satisfied that there is proper compliance with what the law requires. It is necessary always in these EAW cases for this court to recognise that the legal system in requesting states is not the same as that applicable in this country in many respects. There are differences. And that has to be borne in mind when considering points such as this. It seems to me as clear as it can be that there is a domestic arrest warrant and that this document is that warrant. There is no reason at all, in my judgment, why that cannot - provided that the law of the requesting state allows it - properly be regarded as compliance with Section 2 (4) (b). In those circumstances that point, in my judgment, fails.
12. There was before the district judge reliance placed on Article 8 but I do not need to go into that because it is not pursued before me.
13. In those circumstances this appeal is dismissed.