England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/12/2015

Mr Justice Collins:

1. This is an appeal under Section 26 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Zani on 21 July 2015 whereby he ordered that the appellant should be extradited to France pursuant to an European Arrest Warrant (EAW) which had requested his return to serve a sentence of 5 years imprisonment following his conviction of three offences. A number of defences were raised before the District Judge but leave to appeal was limited by Cranston J to one ground, namely that the EAW failed to comply with section 2(6)(b) of the 2003 Act and so the EAW was invalid.
2. The three offences of which the appellant had been convicted were that he:-

" Willingly participated in an operation of placement, concealment or conversion of the proceeds of an offence to the drugs law.

- Committed the customs and excise offences of laundering money coming from drug traffic.

- Omitted to abide by the obligation of declaring money concerning sums imported to France."

The circumstances in which the offences had been committed were stated thus:-

"Arrested on February 11, 1996 at the toll of the motorway in Villefranche Sur Saone in a vehicle containing many bags with bank notes (a total of 162,300 £). The vehicle, bags and hands of Mr King reacted positively to the cocaine test. The enquiry permitted to establish that this money was related to drug trafficking".

3. The 2003 Act gives effect to the Council Framework Decision of 11 June 2002 which established the EAW procedures. In Article 2(2) it sets out a list of offences which, provided they carry a maximum sentence of at least 3 years imprisonment or detention, give rise to surrender pursuant to an EAW without any need to verify dual criminality. This list is included in the form set out in the Annex to the Framework Decision which should be used. The list in Article 2 and in the annex includes "laundering of the proceeds of crime". The EAW used by the respondent omits this offence (we were not told why) and the offence identified as applicable is "illicit trafficking in narcotic drugs and psychotropic substances".
4. On the day of the hearing before the District Judge it was said on the respondent's behalf that the particulars set out in the EAW were inaccurate. The appellant's hands had not tested positive for cocaine and there was no forensic evidence supporting the police officer's roadside testing or indicating that the cocaine detected was at an evidentially significant level. But there was further information which had been produced from the judgment of the convicting court. This, so far as material, showed that the car which was investigated was being driven by a man called John Foy and the appellant was the passenger. When the car was examined, by what is called a system for detection of drugs, there was a positive reaction to cocaine. In what is described as 'the cavity in the back wings' there were found 35 bags containing a total of £162,330. There were two return tickets for a crossing from Dover to Calais at 9.30am on 11 February 1996 and return at 5.45pm. A subsequent test showed that Foy's hands reacted positively to cocaine. The appellant said that half the money was his, the other half being Foy's, and that it was to purchase a villa in Spain. Subsequently, he changed his story saying that the bulk of the money belonged to Foy who had asked the appellant to accompany him and to say if there were any problems that half the money was the appellant's.
5. Part 1 of the 2003 Act was intended to effect the transposition of the Framework Decision. In Office of the King's Prosecutor, Brussels v. Cando Armas [2006] 2 AC 1, Lord Bingham observed at paragraph 8 (p2E):-

"Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less."

Thus in considering s.2(6)(b) of the 2003 Act, it is necessary to consider the material provisions of the Framework Decision.

6. Article 8 is headed "Contents and form of the [EAW]". 8(1), so far as material, reads:-

"The [EAW] shall contain the following information set out in accordance with the form contained in the Annex:

(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 of the offence by the requested person….."

7. Article 4 sets out a number of situations which give grounds for optional non-execution of an EAW. Article 4(7) provides that the executing authority may refuse to execute an EAW:-

"where the [EAW] relates to offences which

(a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such…."

The purpose of this is obviously to enable the executing state to prosecute the requested person itself or to use the conduct the subject of the EAW in a prosecution which could perhaps be for more serious offences or where other defendants are involved and for which the conduct would provide helpful evidence. Article 3 gives grounds for mandatory non-execution. It is not necessary to specify other than that in 4.7(a).

8. It is to be noted that Article 8 does not differentiate between accusation and conviction cases in what is required to be included in the EAW. Section 2 of the 2003 Act is intended to transpose Article 8. It provides separately for information which must be included in an accusation (s.2(4)) and a conviction (s.2(6)) warrant. So far as an accusation warrant is concerned, s.2(4) provides that the information required is:-

"(c) particulars of the circumstances in which the person alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any other provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence….."

Section 2(6)(b) provides simply that what is required is "particulars of the conviction".

9. In her skeleton argument, Miss Montgomery contended that even with the inaccurate statement that the appellant's hands had reacted positively to the cocaine test, the particulars were insufficient to comply with the requirement of s.2(6)(b). If the inaccurate statement was removed, the lack of compliance was the more obvious. In her skeleton argument she did not seek to question the decision of this court in Sandi v. Romania [2009] EWHC 3079 (Admin) that the distinction between ss2(4)(c) and 2(6)(b) meant that the same level of particularity was not required for conviction warrants as for accusation warrants. She has argued before us, however, that that is not correct and that the same level is required since Article 8 draws no distinction between the two warrants. Miss Pottle, as we, did not appreciate that this argument was to be deployed, but it is obviously of considerable importance and we have felt it right to deal with it. I should say that Miss Pottle submitted that in the circumstances of this case the argument did not assist the appellant since the particulars given were sufficient whether this had been an accusation or conviction warrant.
10. Miss Montgomery relied on what Lord Hope said in Cando Armas. His reasoning was agreed with by the other members of the appellate committee. In paragraph 27, he said:-

"The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act……What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it".

He continued in paragraph 28 to make the point which is of fundamental importance that if the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it.

11. In paragraph 31 of his speech, Lord Hope said:-

"Section 2(4) requires particulars to be given in accusation cases of the circumstances in which the person is alleged to have committed the offence, including the time and place at which he is alleged to have committed it. The requirement is absent from the list of particulars in section 2(6) which must be given in conviction cases. Its omission from this list in section 2(6) is hard to understand, as the question where the conduct is alleged to have taken place is just as relevant in that context. As I have already noted, Article 8 of the Framework Decision which sets out the information which it 'shall contain' makes no distinction between accusation and conviction cases as to the content and form of the EAW. Therefore the offence will not be an extradition offence in domestic law unless the territorial requirements laid down in section 64 or section 65, as the case may be, are satisfied."

12. Since whether or not an offence is an extradition offence is defined in sections 64 (for accusation warrants) and 65 (for conviction warrants) I must refer to the relevant provisions of s.65. Section 65(2) 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…..."

This applies Article 4(7)(a) of the Framework decision and applies whether or not the offence is included in the framework list. If section 65(2)(a) applies to any offence in the warrant, section 65(3) will be material. This 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….."

Section 65(3)(c) requires that a custodial sentence of at least 4 months has been imposed.

13. While section 65 is not happily drafted, it makes no sense and would not comply with in particular Article 4(7) unless, as Lord Bingham stated in paragraphs 16 and 17 of Cando Armas, section 65(2) meant that the condition was not satisfied if some of the conduct complained of or relied on in the warrant occurred in the UK. Equally, section 65(3)(a) was satisfied if some of the conduct occurred in the requesting state. Thus if the condition in s.65(2)(a) was not satisfied because some of the conduct occurred in the UK, double criminality would apply pursuant to s.65(3)(a) whether or not the offence was identified in the warrant as a framework list offence. Lord Hope put the matter in this way in paragraph 40 of his speech:-

"The conduct must occur 'in' the category 1 territory if the condition which is set out in those paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actions elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory."

14. The harm referred to by Lord Hope would in my view be constituted by the breach of the territory's criminal law. I only doubt that it is necessary that the breach of the territory's criminal law was the intended effect of the conduct, unless by 'intended' Lord Hope meant no more than that the result of the conduct was to cause harm by breaching the criminal law of the territory.
15. Miss Montgomery drew our attention to the guidance issued by the Council of the European Union of 17 December 2010. In relation to cases of abolition of double criminality, the definition of the offence in the requesting state's criminal code is what matters. The guidance continues:-

"The circumstances of the case must always be described fully and exhaustively, so that the application of the rules of specialty, ne bis in idem and prescription can be assessed. It is always necessary to state the time, place and degree of participation in the offence(s) by the requested person. If the offence is non-listed, the description of the offence should be such that the executing judicial authority must be able to assess double criminality."

16. Since the object of the EAW process is to remove the complexity and potential for delay and the system is built on the mutual trust between the states which are party to the Framework Decision, I am far from persuaded that there is a need for full and exhaustive description. But sufficient circumstances must be set out in order for there to be compliance with Article 8 to enable the requested state and the requested person to be able to ensure that any barriers to extradition, whether compulsory or optional, do or do not apply or can be relied on. In principle there is no material difference between what is required in an accusation or conviction case, as Lord Hope observed in paragraph 31 of his speech in Cando Armas.
17. I must now consider the decision in Sandi v. Romania. Hickinbottom J gave the only judgment. He cited from Dabas v. High Court of Justice in Madrid, Spain [2007] AC 31 in which it had been said that the provisions of the 2003 Act must be construed purposively having regard to the Framework Decision. In paragraphs 25 and 26 Hickinbottom J said:-

"25. Although they have to be construed in the light of the Framework decision, the starting point for the requirements of a conviction warrant must be the terms of the statutory provisions in section 2 of the 2003 Act….[Counsel] submitted that both section 2(4)(c) and section 2(6)(b) required the same level of information about the underlying conduct, because both use the term 'particulars'. I do not agree. In those respective provisions, that term governs entirely different things: in section 2(4)(c), it gives the circumstances in which a person is alleged to have committed the offence, whilst in section 2(6)(b) it governs the conviction. As a matter of plain English, the phrase "particulars of the conviction" does not necessarily require the same level of detail in respect of the underlying changes imposed by the words of section 2(4)(c).

26. In section 2, in respect of information to be included, there is a patent dichotomy between the requirements for accusation warrants 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 this intention to have the requirements of section 2(4)(c) read across into section 2(6)(b) as [counsel] contended."

18. While I recognise the force of this reasoning, I do not think it is compliant with the approach which Article 8 of the Framework Decision requires. The obligation in section 2(4)(c) to give "particulars of the circumstances in which the person is alleged to have committed the offences" is tautologous and adds nothing to the requirement to give a description of "the circumstances in which the offence was committed" (Article 8(1)(e)). The only distinction between accusation and conviction is that the circumstances are alleged in an accusation case but established in a conviction case. 'Particulars of the conviction' are not necessarily limited since time, place and degree of participation are needed in order for there to be compliance with Article 8. I do not believe that the use of the word 'particulars' in s.2(4)(c) adds anything to the Article 8(1)(e) test and in s.2(6)(b) 'particulars' must extend beyond a mere recital of the conviction. What is needed in all cases is sufficient information to enable any mandatory or optional bar contained in Article 3 and 4 of the Framework Decision to be considered whether by the authority in the executing state or the requested person.
19. While it can be said that a convicted person will, if he attended his trial, know the full particulars, it must be borne in mind that, as in this case, the person may have been convicted in absentia. In those circumstances, a conviction warrant will be closer to an accusation warrant if there is a right of retrial. Section 2(6)(b) has to cater for such a case. In any event, knowledge of the full circumstances does not necessarily always assist since what the executing authority must know is whether there may be any bars and it is obviously undesirable and would cause delay if the requested person had to obtain information from the requesting state which could and should have been in the warrant.
20. In most Member States which are parties to the Framework Decision reasons for conviction will have to have been given and so there will be no difficulty in describing the circumstances in which the offence was committed. Where no reasons have to be given, as in the UK, it would be simple to undertake the necessary exercise since the trial would have identified all relevant circumstances.
21. As Hickinbottom J in my view correctly observed in Sandi, the level of particularity to meet the requirements of s.2(6)(b) will depend on the circumstances of each case. In many, where for example offences were committed wholly within the requesting state and involved acts directed at individual victims, little would be required beyond time, place and that the person did the criminal act which led to conviction.
22. I do not believe that the particulars required whether for an accusation or a conviction warrant need great detail. As I have said, provided they give sufficient information to enable any available point on a bar to be taken and the ability to judge whether the offence is properly listed in the framework list and dual criminality can be shown if that should be needed, they will suffice whether for accusation or conviction cases.
23. The particulars set out in the warrant in my view were sufficient to comply with the Article 8 obligation. They would have been sufficient if this were an accusation warrant. They show, having regard to the nature of the offences charged, that what was established was that the money was the proceeds of drug trafficking and that the appellant was engaged in laundering it and concealing it.
24. Before the District Judge, it was accepted by the respondent that the statement that the appellant's hands reacted positively to cocaine was inaccurate. It was not suggested that this information was included in the knowledge that it was wrong. It seem to me to be clear that it was a careless mistake muddling what was found against Foy with the appellant.
25. Inaccuracies such as this do not render a warrant invalid if they can be and are corrected by the time that the court in the UK considers whether extradition should take place. That is established by the decision of the Supreme Court in Zakrzewski v. District Court in Torun, Poland [2013] 1 WLR 324. Lord Sumption, giving the judgment of the court, observed in paragraphs 8 to 10:-

"8. It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value. The validity of the warrant depends on whether the prescribed particulars are to be found in it, not whether they are correct. It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong……

9. It does not, however, follow….that there is nothing to be done about it if the prescribed particulars in the warrant are or have become incorrect. It only means that the remedy must be found at the stage when the court is considering whether to extradite. Neither the Framework Decision nor Part 1 of the 2003 Act provides in terms for non-extradition on the ground of a factual error in the warrant. There are, however, two safeguards against an unjustified extradition in these circumstances.

10. The first and main one is the mutual trust between states party to the Framework Decision that informs the entire scheme. The requesting judicial authority has a right, recognised by Article 15(3) of the Framework Decision, to forward additional information at any time. These are receivable in evidence by an English court under section 202 of the 2003 Act on the same basis as the warrant itself. If necessary, further information may be requested by the executing court under Article 15(2). The Framework Decision proceeds on the assumption that requesting states can be trusted to ensure that statements and information in a European arrest warrant are true. By the same token, if they subsequently cease to be true, either the warrant will be withdrawn or the statements and information in it will be corrected by the provision of further information, with or without a request for it."

26. Lord Sumption went on to consider the approach adopted by the court in Criminal Court v. Murua [2010] EWHC 2609 (Admin) in which Sir Anthony May, P had to consider a case where the particulars given were inaccurate. He considered that the validity of the warrant was affected even if the inaccurate statement was not to be regarded as an abuse of process. Lord Sumption said that unless the error was material to the validity of the warrant in that it would have misled the court in considering the validity of the warrant, and the true facts were not clear and beyond legitimate dispute, inaccuracies would not enable execution to be refused unless an abuse of process could be established. Factual inaccuracies such as occurred in this case cannot in my judgment have misled the court into believing that there was no proper basis for extradition since the true facts, which could properly have been taken into account, confirmed that the extradition was properly requested. There was no question of an abuse of process. The inaccuracies were immaterial to the validity of the warrant.
27. Miss Pottle submitted that the conduct relied on by the French judicial authority occurred exclusively in France so that s.65(2)(a) did not apply. It is in my view apparent, and the additional information puts beyond doubt, that the money laundering was from drug trafficking some of which occurred in the UK. The money was exported from the UK and so the offence of money laundering and the concealment in the car took place in part in the UK. Thus Article 4(7)(a) and s.65(2)(a) are engaged since it may have been that offences evidenced by the acts in transporting the money through France were being considered in the UK. I do not suggest that that is in fact the case here, but the purpose behind Article 4(7)(a) is clearly met.
28. No submissions were made to the District Judge based on conduct in the UK. Section 65(3) was relied on on the basis that the offence ticked in the framework list was not appropriate. But the District Judge decided that the offence ticked was a broad category of criminal offence encompassing, inter alia, the unlawful retention of the proceeds of drug trafficking. That has not been challenged in this appeal. But the District Judge did consider dual criminality and took into account, without objection, the subsequent information correcting the inaccuracy in the warrant. He decided that dual criminality applied and his decision in that regard is not challenged in this appeal. Since dual criminality does have to be considered because of s.65(2)(a), I would only say that I do not think that the third offence, namely failure to declare the importation of the cash into France, does meet the test of dual criminality. The other two offences clearly do.
29. Miss Montgomery correctly submitted that dual criminality had to be judged on the basis of the law applicable in the UK as at February 1996. The material offences were set out in sections 49 to 52 of the Drug Trafficking Act 1994. In essence, all the relevant offences could only be committed by dealing with the proceeds of drug trafficking or assisting another in such dealing. The essential point is that the money in this case must have been the proceeds of drug trafficking and no offence would have been committed by possession of cash which did not have that tainted background. The warrant in my view with or without the additional information is clearly consistent only with the money being the proceeds of crime, in this case drug trafficking.
30. As will I think be clear from my conclusion in this case, to conform with the requirements of Article 8(1)(e) of the Framework Decision as transposed into UK law by s.2 of the 2003 Act, it is not necessary to descend into great detail. The guidance from the Council of the European Union which I cited in paragraph 15 in my view requires too much detail and certainly in my experience is not followed to the letter in many states. I do not believe that the Framework Decision and so the 2003 Act requires more than that the requested person should know what are the circumstances relied on against him to the extent that enables him to raise any bars or defences to the warrant before the courts in the UK.
31. I would accordingly dismiss this appeal save that I would direct that the third offence cannot be relied on in France since it does not meet the dual criminality test.

Lord Justice Lloyd Jones:

32. I agree.