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
		25/11/2016

Mr Justice Leggatt (giving the judgment of the court):

Introduction

1. These proceedings are the fourth attempt by the respondent (Spain) to extradite the appellant (Mr Troitiño) under a European arrest warrant. On 14 June 2016 Senior District Judge Riddle ordered Mr Troitiño's extradition to Spain for the purpose of being prosecuted for an offence of membership of a terrorist organisation. Mr Troitiño has appealed against that order, with leave of the court.
2. There are three issues on the appeal:

i) Is extradition barred under section 12A of the Extradition Act 2003 by the absence of a decision by the Spanish authorities to try Mr Troitiño?

ii) Are these proceedings an abuse of process because Spain has acted in bad faith and/or is seeking to raise matters which could and should have been raised in previous extradition proceedings?

iii) Does Mr Troitiño have an immunity under article 31 of the Refugee Convention which prevents his extradition?

The factual background

3. The history of the matter up to the point when the third extradition attempt failed is set out in the judgment of this court in Spanish Judicial Authority v Antonio Troitiño Arranz (No 3) [2015] EWHC 2305 (Admin) dated 31 July 2015. In a nutshell:

i) In 1986 Mr Troitiño was a member of the Basque separatist group, ETA. With others, he was responsible for a terrorist bombing in Madrid which killed 11 members of the civil guard and injured 60 people.

ii) In 1989 Mr Troitiño was convicted of 91 offences including offences of terrorism, murder and attempted murder for his part in the attack and was sentenced to a total of 2,232 years' imprisonment.

iii) In 2000 a Spanish court fixed the prison term which Mr Troitiño must serve at 30 years, which was the maximum limit applicable under the Spanish Criminal Code. Without remission, this term would have expired in January 2017.

iv) At the time of sentence remission earned for good conduct was credited against the 30 year maximum term under Spanish law. However, in 2006, in a case involving another ETA prisoner, the Spanish Supreme Court decided that remission was to be applied successively to the individual sentences (which in Mr Troitiño's case totalled 2,232 years) and not to the 30 year maximum term. This became known as the "Parot doctrine".

v) Mr Troitiño had accumulated 2,164 days of remission which, if applied to the 30 year maximum term, would have resulted in his release on 4 February 2011. On 1 February 2011 a Spanish court ruled, applying the Parot doctrine, that the remission should instead be applied to the sentences totalling 2,232 years, with the result that he was not due to be released until January 2017.

vi) Mr Troitiño was nevertheless released pursuant to a court order on 13 April 2011. That order was revoked on 19 April 2011 but by then Mr Troitiño had left Spain. A European arrest warrant was issued on 26 April 2011, seeking his arrest in order to return him to prison.

vii) On 29 June 2012 Mr Troitiño was arrested in the UK. False identity documents were seized from him.

viii) Shortly after his arrest, the Third Section of the European Court of Human Rights held in the case of another ETA member that the retroactive application of the Parot doctrine violated article 7 and, insofar as it was relied on to justify detention, also article 5 of the European Convention on Human Rights: see Del Rio Prada v Spain (Application No 42750/09), 10 July 2012.

ix) Spain appealed to the Grand Chamber and in the meantime continued to seek Mr Troitiño's extradition pursuant to the European arrest warrant. On 14 June 2013 this court upheld an order for extradition on the basis of an undertaking that Spain would abide by the Grand Chamber's decision: see Troitiño Arranz v Spanish Judicial Authority [2013] EWHC 1662 (Admin).

x) However, before an application by Mr Troitiño for leave to appeal to the Supreme Court had been determined, the Grand Chamber delivered a judgment upholding the decision of the Third Section: see Del Rio Prada v Spain (2014) 58 EHRR 37. Mr Troitiño immediately applied to re-open his extradition appeal and on 27 November 2013 the Divisional Court quashed the order for his removal and ordered Mr Troitiño's discharge.

xi) On 10 January 2014 Spain issued a second European arrest warrant seeking Mr Troitiño's extradition on a new basis. His extradition was now sought for the purpose of prosecution for offences of (a) forgery of official documents (being the false identity documents seized on his arrest in the UK) and (b) membership of a terrorist organisation (the allegation being that on his release from prison he had rejoined ETA).

xii) On 17 October 2014 the Westminster Magistrates' Court held that the warrant did not comply with section 2 of the 2003 Act and Mr Troitiño was again discharged. Spain responded by issuing a third European arrest warrant on 17 November 2014, curing this defect, and Mr Troitiño was re-arrested.

Troitiño Arranz (No 3)

4. Mr Troitiño resisted extradition under the third European arrest warrant on a number of grounds. His central contention was that he was being treated unfairly by the Spanish judiciary and could not expect a fair trial in Spain because he is a convicted ETA terrorist. It was said that the release of ETA prisoners has provoked public outrage in Spain and that Spanish judges have succumbed to public and political pressure by engaging in such cases in "judicial engineering" – that is to say, being prepared to bend the law in order to keep convicted ETA terrorists in prison. The Parot doctrine was said to be a manifestation of this. It was further alleged that, when reliance on that doctrine failed, new charges had been concocted in order to put Mr Troitiño back in prison. Mr Troitiño's case was supported by evidence from an expert on Spanish politics, Mr Woodworth, and from a Spanish lawyer, Mr Casanova.
5. In his written findings of fact and reasons dated 14 April 2015, the Senior District Judge reviewed the evidence and rejected the allegation that Mr Troitiño was or would be a victim of "judicial engineering". He found that there was no real risk that the Spanish courts would treat Mr Troitiño on his return other than properly and fairly or would make any decisions on the basis of political pressure. Other grounds on which Mr Troitiño relied, including section 12A of the 2003 Act and article 31 of the Refugee Convention, which he relies on again in these proceedings, were also rejected.
6. The Senior District Judge discharged Mr Troitiño on the forgery offence as he was not satisfied that any part of the relevant conduct had occurred in Spain so that it did not constitute an "extradition offence" within the meaning of section 64 of the 2003 Act. But he ordered Mr Troitiño's extradition on the alleged offence of membership of a terrorist organisation.
7. Mr Troitiño appealed against that order to this court, which allowed the appeal: see Spanish Judicial Authority v Antonio Troitiño Arranz (No 3) [2015] EWHC 2305 (Admin) ("Troitiño Arranz (No 3)"). In relation to the allegation of "judicial engineering", the court carefully considered the evidence that was before the Senior District Judge but was unable to conclude that his decision was wrong (see para 28). The court also rejected certain other grounds of appeal including an argument that prosecution of Mr Troitiño for the alleged offence of membership of a terrorist organisation was untenable in Spanish law and hence an abuse of process. The ground on which the appeal succeeded was that extradition was barred under section 12A of the 2003 Act. This provision remains in issue on the present appeal and requires some explanation.

Section 12A

8. Section 12A bars a person's extradition to a category 1 territory if (i) the competent authorities in the territory have not made both a decision to charge the person with and a decision to try the person for the extradition offence, and (ii) the person's absence from the territory is not the sole reason for that failure. If it appears to the appropriate judge that there are reasonable grounds for believing that the two conditions which create a bar to extradition are met, the burden falls on those representing the category 1 territory to prove (to the criminal standard) that they are not.

The decision in Kandola

9. In Kandola v Generalstaatwaltschaft Frankfurt Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097, a Divisional Court expressed the view that, where the burden falls on those representing the category 1 territory to prove that (i) both a decision to charge and a decision to try the requested person have been made, or if not, (ii) that the sole reason for that fact is the absence of the requested person from the category 1 territory, then in the vast majority of cases a short, clear statement from the relevant judicial authority addressing those matters should be determinative. The court also considered that, in a case where there has been no decision to charge or no decision to try the requested person, it is relevant in deciding whether the person's absence from the territory is the sole reason for that failure to know whether the relevant judicial authority has considered the possibility of using mechanisms short of extradition to question the requested person, in particular requests for "mutual legal assistance" (MLA) under European conventions which provide for mutual assistance in criminal matters.^[1]
10. In one of the individual cases before the court in Kandola, that of Ms Droma whose extradition was sought by Germany, no charge could be brought against her under German criminal procedure before she had been examined by the Chief Public Prosecutor. In answering questions addressed to it, the German judicial authority had not given any coherent explanation of why MLA had not been used to examine Ms Droma. The Divisional Court concluded that in these circumstances those representing Germany had not proved to the criminal standard that the sole reason for not making the decisions to charge and try Ms Droma was her absence from Germany, and that her extradition was therefore barred under section 12A.

Kandola is followed in Troitiño Arranz (No 3)

11. When this court considered the last attempt to extradite Mr Troitiño in Troitiño Arranz (No 3), it was common ground there had not yet been a decision to try Mr Troitiño in Spain and that such a decision cannot be taken before the completion of the instrucción (investigatory) phase of the Spanish proceedings, which had not been completed. The Spanish judicial authority issued a certificate dated 13 February 2015 stating that the only reason why a decision to try had not yet been taken was Mr Troitiño's absence from Spanish territory which impeded the final conclusion of the instrucción phase. At the hearing before the Senior District Judge the Spanish lawyer acting as a defence expert (Mr Casanova) gave evidence disputing that Mr Troitiño's presence was required in order to progress the proceedings and asserting that Mr Troitiño could have been questioned in the UK by video conferencing, taking evidence from him in the UK pursuant to a request for MLA, or even a temporary transfer to Spain for the purposes of questioning under section 21B of the 2003 Act.
12. The response of the Spanish judge was to provide a further statement explaining that "the communication of the 'auto de procesamiento' (formal statement of the charges) and the invitation to the defendant to give a statement about the facts included in this ruling, accepting or denying these facts, can only be made direct and personally with the defendant himself being physically at the disposal of the court." The statement continued:

"This is the only activity pending for the conclusion [of the instrucción phase of the proceedings]. I can confirm that, in issuing [the earlier] certificate, I had considered whether there was any suitable alternative means of interviewing the defendant in this case, including for example the use of mutual legal assistance and video link. I can confirm, having considered this, that the position remains as set out in the document of 13 February 2015; the only reason in this case why a decision to try has not yet been taken is exclusively the absence of the defendant from Spain."

13. The Senior District Judge accepted this statement from the Spanish judicial authority as conclusive but, on appeal, this court did not. Following the approach taken in the case of Ms Droma in Kandola, the court took the view that Spain had not discharged its burden of proof under section 12A as no proper reasons had been given to explain why MLA had not been used to examine Mr Troitiño. The court invited those representing Spain to consider whether they wanted to apply to adduce further evidence addressing this point. The invitation was, however, declined. The court described that response as "inexplicable" and concluded (in para 60):

"(5) In the light of these matters and of evidence which we have considered under the first issue, 'judicial engineering', and the concerns we have expressed, the failure to answer the simple points raised by Mr Casanova cannot be accepted in this particular case.

(6) Even if Kandola was wrongly decided (which we think it was not) and the usual position is that it is permissible to accept the unreasoned statement of a judicial authority, it would not in the circumstances of this case be appropriate to accept the unreasoned statement of the Spanish Judicial Authority."

14. It was on this ground that the court allowed the appeal and ordered Mr Troitiño's discharge.

Spain requests MLA

15. After the judgment in Troitiño Arranz (No 3) was given on 31 July 2015, Spain made a request for MLA. In the request, dated 13 August 2015, the Spanish judicial authority maintained its insistence that the instrucción phase of the proceedings could not be concluded or the charge formulated (not to mention holding a trial) because "one of the guarantees of proceedings is for the defendant to be present, so he can know charges against him and exercise his right to defence." For this reason, it remained the view of the Spanish judicial authority that MLA mechanisms "cannot be used if the individual has fled as a strategy to evade court action." Nevertheless, without prejudice to that position, a formal request was made to take a preliminary statement from Mr Troitiño by video conferencing.
16. Pursuant to that request, Westminster Magistrates' Court summoned Mr Troitiño to appear in order to give evidence over a video link. The solicitors acting for Mr Troitiño responded by arguing that the request to take evidence from him in this way was unlawful. They pointed out that article 10 of the EU Convention on Mutual Assistance in Criminal Matters 2000 and sections 29-30 of the Crime (International Cooperation) Act 2003 which give effect to the Convention in UK law only make video conferencing available for hearing witnesses and not for hearing an accused person. Although article 10(9) of the EU Convention gives member states a discretion to make video conferencing available for hearing an accused person, the UK has not done so.
17. The Home Office accepted this argument and informed the Spanish judicial authority in a letter dated 8 October 2015 that it was therefore obliged to refuse the request for a video conference.

These proceedings

18. On 23 October 2015 Spain then issued the fourth European arrest warrant which has given rise to the present proceedings. The warrant included an explanation that the reason why a request had been made for a video conference was out of respect for the decision of the High Court, "even though its findings were not shared and they were not in accordance with Spanish legislation," and in the interests of "avoiding a situation with no clear way out."
19. In his decision dated 14 June 2016, the Senior District Judge rejected an argument that Spain had acted in bad faith by requesting MLA, found that Spain has now explored all less coercive measures and was satisfied that the only reason for the absence of a decision to try Mr Troitiño is his absence from Spain. He concluded that there is no bar to extradition and made the order for extradition which is the subject of this appeal.

Section 12A reconsidered in Puceviciene

20. Since then, there has been a notable legal development. On 22 July 2016 a three judge Divisional Court gave judgment in Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin), in which the proper interpretation of section 12A was re-examined in depth. The court concluded that the decision in Kandola is clearly wrong about the role of MLA in section 12A and should no longer be followed in this respect.
21. The court reached this conclusion for four reasons. First, the decision in Kandola is inconsistent with the wording of section 12A which identifies the questions to be addressed and does not include among those questions whether there were other measures which could or should have been adopted which might have avoided absence from the territory preventing a decision to charge or a decision to try from being taken (paras 69-70). Second, requiring consideration of whether MLA could be used is contrary to the purpose of section 12A (paras 73-74). In the Court's words (para 73):

"[Section 12A] was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction."

Third, if Parliament had intended that extradition should not take place unless MLA has been considered and rejected for sound reasons, it would have said so explicitly (para 75). Fourth, Parliament made explicit provision for the use of MLA in section 21B of the 2003 Act, which is a strong indication that failure to contemplate the use of MLA was not intended to provide a bar to extradition (paras 76-81).

(1) Is extradition still barred by section 12A?

22. Against this (now complicated) background, we come to the issues raised on this appeal. We take first the question whether Mr Troitiño's extradition to Spain under the current fourth European arrest warrant is barred under section 12A of the 2003 Act. We address this question before the issue of abuse of process which counsel for Mr Troitiño put at the forefront of their submissions because the abuse of process jurisdiction in extradition cases is "a residual, implied jurisdiction" which the court will not consider using if another bar to extradition is available: see Belbin v The Regional Court of Lille, France [2015] EWHC 149 (Admin) at para 59.
23. It remains common ground that a decision to try Mr Troitiño has not been taken and cannot be taken before the instrucción phase of the proceedings in Spain has been completed. Matters have, however, moved on since the third European arrest warrant was discharged, in two ways that we have indicated. First, in an attempt to break the impasse which had arisen, the Spanish judicial authority made a request for MLA to interview Mr Troitiño by video conferencing which was refused after Mr Troitiño's solicitors objected that it was unlawful. Second, this court has held in Puceviciene that it is not in any case relevant in applying section 12A to ask whether MLA could have been used to get around the absence of the requested person.
24. On the latter point, Mr Summers QC did not dispute that Puceviciene was correctly decided and that Kandola is no longer good law. But he pointed out that in Puceviciene the court expressly contemplated that there could be exceptional cases where it is appropriate to inquire into whether MLA has been considered and expressly identified the present case as an example. Thus, at para 72 of the judgment in Puceviciene the court said:

"There may be, in what we would anticipate would be very rare cases, circumstances in which mutual trust and confidence has broken down, or where there is cogent evidence of bad faith or of abuse. In those circumstances, it may well be appropriate to go behind the answers and seek more information. [Troitiño Arranz (No 3)] provides a rare example of the problems, there described as 'judicial engineering' which justify that different approach, and what it says should be read in the context of the very special circumstances of that unusual case."

See also para 76, where it was said that MLA should be considered only in the context of section 21B, "absent the sort of breakdown of trust in answer to questions and requests which occurred in [Troitiño Arranz (No 3)]."

25. Mr Summers further submitted that, although a request to interview Mr Troitiño by video conference has been tried and failed, MLA is still available in this case. In particular, arrangements could be made for a British judge to interview Mr Troitiño pursuant to a letter of request. That possibility was raised by the Spanish judicial authority with the UK authorities. But in its letter to Spain dated 8 October 2015 mentioned earlier, the Home Office advised that such a procedure, like video conferencing, is restricted in UK law to the taking of evidence from witnesses and does not extend to accused persons. Mr Summers submitted that this advice was wrong and that the wrong advice which Spain received (or Spain's failure to pursue a request for MLA nonetheless) is at least a contributing reason for the failure to take a decision to try Mr Troitiño.
26. We cannot accept these arguments. In the first place, we have great difficulty in seeing how the allegation of "judicial engineering" could justify the approach followed in Troitiño Arranz (No 3) of refusing to accept the statement of the Spanish judicial authority that no decision to try Mr Troitiño could be taken in his absence. That is because, as noted earlier, the allegation of "judicial engineering" was rejected on the evidence by the Senior District Judge who found that there was no real risk that the Spanish judicial authority would treat Mr Troitiño on his return other than properly and fairly or would make any decisions on the basis of political pressure. That finding was upheld by this court on the appeal (see para 28 of the judgment).
27. More fundamentally, even if this were to be regarded as a case in which mutual trust and confidence had broken down, with the result that statements made by the Spanish judicial authority could not be accepted without further explanation, it does not seem to us that the inadequacy of the statement made in this case any longer matters now that the question it was addressing (about whether the Spanish judicial authority had considered the use of MLA to examine Mr Troitiño) has been shown to be irrelevant. The clear conclusion of the cogent legal analysis in Puceviciene is that consideration of whether MLA could be used to reach a decision to try in the defendant's absence has no role to play in answering the questions set out in section 12A and that "the introduction of concerns about MLA at this stage is inconsistent with the statutory scheme" (see para 28). We are therefore not persuaded that the failure of the Spanish judicial authority to give an adequate explanation of why MLA had not been used is a ground on which Troitiño Arranz (No 3) can be distinguished.
28. Even if, exceptionally, it remains relevant to consider the possibility of using MLA in the present case, we are satisfied that this possibility has now been properly considered and good reason shown for not pursuing it further. We see no reason to reject the explanation given by the Spanish judicial authority that under Spanish law the instrucción phase of the proceedings cannot be completed and a decision to try cannot be taken unless the defendant is physically present. Nor is it right to suggest, as Mr Summers did, that Spain's request for MLA contradicted this explanation, since Spain has consistently maintained that, even if Mr Troitiño is interviewed in this country – for example by video link, a decision to try cannot be taken in his absence. Indeed, this was reiterated in the request for MLA itself.
29. Moreover, even if interviewing Mr Troitiño by video link would have been an adequate alternative under Spanish law to examining him in person, as the defence expert maintained, it is now clear that it is not an available option under UK law. Mr Lloyd for Spain did not take issue with Mr Summers' submission that UK law permits evidence to be taken from an accused person by a British judge pursuant to a request for MLA, contrary to the advice given by the Home Office. But we do not think it arguable that the wrong advice given by the Home Office to Spain or the failure of Spain to pursue such a request notwithstanding the receipt of that advice is, as a matter of fact or law, a concurrent reason for the failure to make a decision to try. As this court pointed out in Puceviciene (see para 21 above), section 12A was not designed to enable a requested person to remain in the United Kingdom for as long as possible by forcing the requesting judicial authority to carry out part of its processes in this jurisdiction. That applies with all the more force where undertaking the process in question is not straightforward and, even if undertaken, would not even enable a decision to try to be taken in the defendant's absence, as we are satisfied is the position here.
30. We therefore reject this ground of appeal and hold that Mr Troitiño's extradition to Spain is not barred under section 12A of the 2003 Act.

(2) Abuse of process

31. On behalf of Mr Troitiño, it was argued that it is nevertheless an abuse of the extradition process for Spain to assert in the present proceedings that Mr Troitiño's absence from its territory is the sole reason for the failure to try him because this involves attempting to re-litigate an issue which was decided against Spain in Troitiño Arranz (No 3). Mr Summers relied on the principle originally formulated in Henderson v Henderson (1843) 3 Hare 100 at 115, and affirmed by the House of Lords in Johnson v Gore Wood [2002] 2 AC 1, that a party should generally bring forward the whole of its case and will not be permitted to raise in later proceedings matters which could, and should, have been raised in earlier proceedings. That principle has been applied in extradition cases: see Hamburg Public Prosecutor's Office v Altun [2011] EWHC 397 (Admin); Auzins v Latvia [2016] EWHC 802 (Admin), [2016] 4 WLR 75. Mr Summers emphasised that Spain was expressly invited at the hearing in Troitiño Arranz (No 3) to adduce further evidence to show that Mr Troitiño's absence was the sole reason for the failure to try him, and declined to do so. He submitted that, having deliberately eschewed that opportunity, it is an abuse of process for Spain now to be permitted to give such reasons in order to justify a further attempt to extradite Mr Troitiño.
32. In Johnson v Gore Wood [2002] 2 AC 1 at 31 Lord Bingham made it clear that the fact that a matter could have been raised in earlier proceedings does not make raising it in later proceedings necessarily abusive and that "there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party." He said that the application of the Henderson principle requires:

"a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."

See also Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14, para 49(iv)-(vi), approved in Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748, para 6.

33. In evaluating whether Spain in this case is abusing the extradition process by seeking to raise matters which could and should have been raised before, we think that the following considerations are relevant.
34. First, the Senior District Judge was satisfied that the decision to decline the court's invitation to put in evidence on the appeal in Troitiño Arranz (No 3) to explain why the use of MLA would not enable a decision to try to be made in Mr Troitiño's absence was not a result of bad faith. He described it as "a tactical error, albeit a catastrophic one". We see no reason to dissent from that assessment. Spain could not reasonably have hoped to gain some advantage by declining to put in evidence on the appeal with the aim of then doing so in support of a new European arrest warrant if it lost. The only sensible explanation of its conduct is that it believed (erroneously as it was held at the time, though correctly as it now transpires in the light of Puceviciene) that it was unnecessary to adduce further evidence. There is no justification for imputing bad faith.
35. If Spain had simply issued a fresh warrant and returned to court without taking any step in the meantime apart from adducing evidence of the kind which it had passed up the opportunity to provide before, there might have been force in a complaint that its conduct was oppressive. However, this is not the course which Spain has adopted. Before issuing the fourth arrest warrant, Spain first sought to interview Mr Troitiño by video link. It was only after that attempt failed because Mr Troitiño successfully argued that such a procedure is not in fact available in law that a new European arrest warrant was issued.
36. Mr Troitiño could never legitimately have expected that a finding that his extradition was barred under section 12A of the 2003 Act because Spain had not proved that it had reasonably considered and rejected the use of MLA would preclude a subsequent attempt. Such a finding could only ever establish that the request for extradition was premature. On any view, it was open to Spain to pursue a fresh request after trying to progress the Spanish proceedings as far as it reasonably could through the use of MLA. In these circumstances the only question now is whether it is abusive for Spain to request Mr Troitiño's extradition without having exhausted every possible form of MLA, and in particular without having pursued further than it did the possibility of attempting to have Mr Troitiño examined in a UK court. We are satisfied that it is not. We do not consider that Spain's conduct can be characterised as an abuse of the court's process when, as we have found:

i) Spain did explore the possibility of making a request for Mr Troitiño to be examined in a UK court but was advised by the Home Office (albeit incorrectly) that this was not possible;

ii) Spain's evidence shows that such an examination, even if conducted, would not enable Spain to proceed to a decision to try in Mr Troitiño's absence; and

iii) It has now in any event been established that the use of MLA is legally irrelevant to the question whether extradition is barred under section 12A.

37. In these circumstances requiring Spain to pursue a request to have Mr Troitiño examined by a British judge before again requesting his extradition would serve no legitimate public or private interest, and permitting Spain to renew its request without taking such a step cannot in our view be regarded as an abuse of the extradition process. We therefore reject this second ground of appeal.

(3) Article 31 of the Refugee Convention

38. Mr Troitiño's third ground of appeal based on article 31 of the Refugee Convention was raised in Troitiño Arranz (No 3) but did not then need to be decided. As we have rejected his other grounds for this appeal, however, it now does.
39. Article 31 of the 1951 Refugee Convention recognises the reality that refugees fleeing persecution are often constrained to use false documents and other forms of subterfuge to reach a country of refuge, and provides immunity from the imposition of criminal penalties for such acts. Article 31(1) provides:

"The contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

40. Mr Troitiño seeks to rely on this provision to resist extradition. On his behalf, Mr Summers has argued that: (i) when he came to the UK, Mr Troitiño was a refugee fleeing from an unlawful threat to his freedom; (ii) Mr Troitiño also fulfilled the other conditions of article 31; (iii) the terrorism offence of which he is accused is attributable to his flight from persecution and, as such, is within article 31; and (iv) the effect of article 31 in these circumstances is to confer an immunity which prevents his extradition to Spain.
41. We should say at once that, even if the premises of this argument are sound, we do not consider that article 31 is capable providing a defence to extradition. The short reason why not is that article 31, where it applies to an individual present in the UK, provides only for immunity from the imposition of penalties by the UK for criminal offences under UK law; it has no application to a criminal prosecution in the foreign territory from which the individual has fled. The only way of relying on the Refugee Convention to resist extradition for the purpose of such a prosecution is by making a claim for asylum.
42. Although we think that the argument based on article 31 is misconceived for this reason, we will consider each step of the argument.

Was Mr Troitiño a refugee?

43. Article 1A(2) of the Refugee Convention, as applied by the 1967 Protocol, defines a refugee as a person who:

"… owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …"

44. Mr Troitiño has not been recognised as a refugee by the UK but, as Mr Summers observed, that does not determine whether at the time when he fled Spain and came to the UK Mr Troitiño was a refugee within the meaning of the Refugee Convention. As stated in the guidelines issued by the United Nations High Commissioner for Refugees:^[2]

"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee."

45. It is clear that, when Mr Troitiño was released from prison on 13 April 2011, he fled from Spain because he feared that, if he stayed there, he would be imprisoned again. His fear was plainly well-founded, as a Spanish court had already ruled on 1 February 2011 that the Parot doctrine should be applied to his case and on 19 April 2011, only a few days after a court had ordered his release, the order was revoked and a domestic warrant for Mr Troitiño's arrest was issued with the aim of returning him to prison to serve the remainder of the 30 year maximum term of his sentence. On 26 April 2011 Spain issued a European arrest warrant to the same end and, following his arrest in London on 29 June 2012, sought his extradition from the UK to serve the rest of the 30 year maximum term. It was only after the Grand Chamber of the European Court of Human Rights held on 21 October 2013 that the Parot doctrine violated articles 5 and 7 of the Convention that the basis for this fear of imprisonment was removed.
46. The Senior District Judge thought that article 31 is not applicable as he did not accept that, on the facts, Mr Troitiño was fleeing persecution. Mr Summers submitted that this finding is untenable and that the judgment of the Grand Chamber demonstrates that Mr Troitiño's well-founded fear of re-imprisonment was, objectively, fear of persecution. Article 9(1) of the Qualification Directive,^[3] which lays down minimum standards for the qualification and status of third country nationals or stateless persons as refugees, states that acts of persecution within the meaning of article 1A of the Refugee Convention must:

"(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under article 15(2) of the European Convention …"

Article 9(2)(c) gives as one example of an act of persecution, punishment which is disproportionate or discriminatory.

47. Although the Qualification Directive does not apply to persons who are nationals of another EU member state, the Refugee Convention is not subject to this limitation and must be interpreted in the same way whatever the nationality of the person to whom it is applied. Moreover, the Qualification Directive has been transposed into UK law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, SI 2006/2525, which apply to "any application for asylum": see reg 1(2).
48. Article 7 of the Convention, which prohibits the imposition of a heavier penalty for a criminal offence than the one that was applicable at the time the offence was committed, is a right from which no derogation can be made under article 15(2). The violation of this non-derogable right which resulted in the imposition on Mr Troitiño of an additional 2,164 days of imprisonment through the operation of the Parot doctrine can only be regarded as severe. We accept that, in the light of the Grand Chamber decision, the fear of receiving such punishment amounted to a fear of persecution.
49. For a person fleeing from persecution to fall within article 1 of the Refugee Convention, the persecution must be for one of the reasons specified in article 1. Those reasons include "membership of a particular social group". In R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629 a majority of the House of Lords, in holding that women in Pakistan constituted a particular social group, approved the following interpretation of the phrase stated by the US Board of Immigration Appeals in In Re Acosta, 19 I & N 211 (1985):

"… we interpret the phrase … to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, colour or kinship ties, or in some circumstances it might be a shared experience such as former military leadership or land ownership."

50. In this case the Parot doctrine applied to all prisoners who were serving very long sentences of imprisonment which had been capped at the 30 year maximum term. Membership of this group depended on acts which were historical and therefore could not be changed. It can, we think, properly be regarded as "a particular social group" for the purposes of article 1 of the Refugee Convention.
51. We accordingly accept that the elements of the definition in article 1 were satisfied in this case and that, from the time when he left Spain until the Parot doctrine was revoked following the decision of the Grand Chamber in Del Rio Prada, Mr Troitiño can be considered to have been a refugee.

Did Mr Troitiño fulfil the other conditions of article 31?

52. For Mr Troitiño to come within article 31, it is not sufficient to show that at the relevant time he was a refugee. Article 31 only protects refugees who (a) have come directly from a territory where their life or freedom was threatened, (b) present themselves without delay to the authorities, and (c) show good cause for their illegal entry or presence.
53. To explain his presence in the UK, Mr Troitiño has made a witness statement dated 1 May 2014 in which he says that, when he was released from prison on 13 April 2011, he went straight to France where his daughter lives. However, when he learnt that a new order had been issued authorising his arrest and return to prison, he did not believe that he would be safe at his daughter's address. As he had no valid identity document and could not in the circumstances apply for a new one, he paid someone he knew in France to get false Spanish documents for him. He says he did not believe either that this person was a member of ETA or that ETA had anything to do with supplying the documentation to him. Mr Troitiño states that, as soon as he got the documents, he left his daughter's house and went into hiding in France "until eventually coming to the UK". He says that he came to the UK as he thought he would be safer here than in France "where there is a closer collaboration between the Spanish and the French police". In the UK he stayed with another Basque person who was himself "on the run" in London. His intention was to stay in hiding pending the decision of the European Court of Human Rights Del Rio Prada.
54. As mentioned earlier, Mr Troitiño was arrested on 29 June 2012. He did not make a formal claim for asylum until 27 November 2013 but the substance of his claim was articulated in a skeleton argument dated 13 September 2012 in the first set of extradition proceedings.
55. For Spain, Mr Lloyd submitted that, even on his own evidence, Mr Troitiño plainly did not satisfy the requirements of article 31. In particular, he argued that Mr Troitiño did not at any stage present himself to the authorities in the UK, let alone do so without delay.
56. In contending that Mr Troitiño is entitled to the protection of article 31, Mr Summers relied on two authorities which indicate that article 31 is to be given a broad, purposive interpretation consistent with its humanitarian aims: R v Uxbridge Magistrates' Court, Ex p Adimi [2001] QB 667, 677; and R v Asfaw (United Nations High Commissioner for Refugees Intervening) [2008] 1 AC 1061, para 11. In Adimi Simon Brown LJ (at 677G) identified the broad purpose of article 31 as being "to provide immunity for genuine refugees whose quest for asylum reasonably involved them in breaching the law." To similar effect, in Asfaw Lord Bingham identified the humanitarian purpose of article 31 as being "to protect refugees from the imposition of criminal penalties for breaches of the law reasonably or necessarily committed in the course of flight from persecution or threatened persecution" (para 9).
57. The three applicants in Adimi came to the UK at different times as asylum seekers. They were each prosecuted for an offence involving the possession or use of a false passport. Each applicant applied for judicial review of the decision to prosecute him, relying on article 31 of the Refugee Convention. A Divisional Court granted the applications.
58. Two of the applicants had come to the UK via a third country. In holding that they should nevertheless be regarded as "coming directly" from their country of origin, Simon Brown LJ, with whom Newman J agreed on the interpretation of article 31, concluded (at 678E-F) that the main touchstones by which this exclusion from protection should be judged are:

"the length of stay in the intermediate country, the reasons for delaying there (even a substantial delay in an unsafe third country would be reasonable were the time spent trying to acquire the means of travelling on), and whether or not the refugee sought or found there protection de jure or de facto from the persecution they were fleeing."

Simon Brown LJ also quoted in this regard (at 678F-H) the following passage from guidelines issued by the UNHCR:^[4]

"The expression 'coming directly' in article 31(1) covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept 'coming directly' and each case must be judged on its merits."

59. On the question whether the applicants had "presented themselves without delay to the authorities", Simon Brown LJ again quoted the UNHCR's guidelines for the proposition that, given the special situation of asylum seekers and the fact that their circumstances may vary enormously, "there is no time limit which can be mechanistically applied or associated with the expression 'without delay'."^[5] One of the applicants (Mr Adimi) was arrested for trying to enter the UK using a false passport. The court rejected an argument that this attempt to deceive the UK authorities when he entered the country took Mr Adimi outside the protection of article 31, regarding it as sufficient that he had intended to claim asylum within a short time of his arrival after securing entry on his false documents (see 697H and 687A-B).
60. On the question of good cause, it was common ground that this had only a limited role in article 31 and would be satisfied by a genuine refugee showing that he was reasonably travelling on false papers (see 679H).
61. Mr Troitiño has not divulged exactly how much time he spent in hiding in France before "eventually coming to the UK." Even if it is assumed in his favour, however, that he is to be regarded as "coming directly" to the UK, he did not, after entering the UK, present himself to the authorities. Moreover, it is clear that he had no intention of doing so. His evidence indicates that his intention was to lie low and hide from the authorities in order to avoid being returned to Spain until the case of Del Rio Prada had been decided. (Whether he remained in hiding after that time would, we infer, depend on the outcome.) However broad and purposive an interpretation is given to article 31, we do not think it can be construed as covering someone in Mr Troitiño's position who enters and is present in the territory of the contracting state, not with the intention of claiming asylum there (nor of travelling on to claim asylum somewhere else), but in order to lodge with someone who is also "on the run" at an address where they hope to stay hidden.
62. We therefore consider that, on Mr Troitiño's own evidence, he is not entitled to the protection of article 31.

Is the alleged terrorism offence covered by article 31?

63. In seeking to argue that the terrorism offence of which Mr Troitiño is accused is within the scope of article 31, Mr Summers again emphasised the need to interpret article 31 in the light of its humanitarian purpose and relied on the decision of the House of Lords in R v Asfaw (United Nations High Commissioner for Refugees Intervening) [2008] 1 AC 1061.
64. In Asfaw, the appellant, who had fled from Ethiopia, was arrested in the UK when about to board a flight to the United States. She was charged with offences of using a false passport and attempting to obtain air transportation services by deception. In the House of Lords the Crown argued that the offences fell outside the scope of article 31 because they were committed in the course of trying to leave the country and hence did not involve the imposition of any penalty "on account of [the appellant's] illegal entry or presence" in the UK. A majority of the appellate committee rejected that argument. They did so on the basis that article 31 should be given a purposive construction consistent with its humanitarian aims and, construed in this way, encompasses offences committed in the course of a flight from persecution, even if when committing the offence the refugee was still in transit and was attempting to leave the country to seek asylum elsewhere (see paras 9, 11, 15, 22, 54-59, 118).
65. It is Mr Troitiño's case that the alleged terrorism offence, as well as the forgery offence, was reasonably committed in the course of fleeing from persecution in order to avoid being wrongfully sent back to prison. In support of this contention, Mr Summers relied on the terms of the current European arrest warrant itself. Its description of the circumstances of the offences alleges that, following his release, Mr Troitiño "contacted the terrorist organisation ETA again so they would help him flee from Spain, thus making the search and arrest warrant against him ineffective." It is said that the false identity documents found in Mr Troitiño's possession were of the same origin as other forged documents which have been seized from members of ETA. It is further alleged that the flat in London where Mr Troitiño was staying when he was arrested belonged to ETA and was occupied by another member of that organisation. The warrant alleges that the entire process by which Mr Troitiño went underground involved a "reintegration into the terrorist organisation when he was released from prison."
66. Even if it is assumed in Mr Troitiño's favour, however, that the conduct on which the alleged terrorism offence is based was reasonably committed in the course of his flight from threatened persecution in order to obtain documents to assist his flight, this does not in our opinion answer the objection that the alleged offence is not within the scope of article 31. That is because the alleged offence does not involve the imposition of any penalty by the UK on account of acts done in the course of flight from threatened persecution in Spain to seek refuge in the UK (or anywhere else); rather, it involves the imposition of such a penalty by Spain. We will return to this point shortly.

The effect of article 31

67. A difficulty for the argument that article 31 provides Mr Troitiño with an immunity which we have not considered so far is that article 31 is a provision of an international treaty which forms part of international law, and not of UK law. It is a basic principle of UK constitutional law that a treaty to which the UK is a party does not and cannot change domestic law or confer rights on individuals without the intervention of Parliament: see JH Rayner v Department of Trade and Industry [1990] 2 AC 418, 476-7, 500; R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin), paras 32-33.
68. Mr Summers sought to overcome this difficulty in two ways. The first was to argue that ratification of an international treaty may create a legitimate expectation of compliance with it. In support of this argument, he cited a dictum of Lord Woolf MR in R v Secretary of State for the Home Department, Ex p Ahmed [1998] INLR 570, 583 and the decision in Adimi. At the time when the applicants in Adimi entered the UK and were prosecuted, article 31 had not been incorporated into UK domestic law. The court nevertheless held that the UK's ratification of the Refugee Convention created a legitimate expectation that its provisions would be followed which should be recognised in domestic law (albeit that Simon Brown LJ and Newman J differed as to the applicable mechanism^[6]).
69. Despite this authority, we are not able to accept that an unincorporated treaty provision is capable, without more, of founding a legitimate expectation which is enforceable in English law. If that were the case, it is hard to see why, for example, the European Convention on Human Rights did not give rise to directly enforceable rights in UK law without the need to enact the Human Rights Act. Yet an argument that the Convention, as an international treaty, could have any effect in domestic law otherwise than through its incorporation through the mechanism of the Human Rights Act was given short shrift by the House of Lords in R v Lyons [2003] 1 AC 976, where Lord Hoffmann described it as "a fallacy" (para 40).
70. The point that a treaty cannot, without more, give rise to an enforceable legitimate expectation was made in relation to the Refugee Convention in R (European Roma Rights) v Prague Immigration Officer [2004] QB 811 (a case not cited to us in argument) by Laws LJ at paras 100-101. In the same case Simon Brown LJ (at para 51) expressly recognised that the views he expressed in Adimi, in reliance on the dictum of Lord Woolf in Ahmed, "are to be regarded as at best superficial," and that "the conclusion I reached there, with regard to the legitimate expectations of asylum seekers to the benefits of article 31, is suspect."
71. Since Adimi was decided, article 31 has been incorporated into UK domestic law by section 31 of the Immigration and Asylum Act 1999. This creates a defence for a refugee charged with an offence to which the section applies to show that:

"having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he –

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom."

The offences to which section 31 applies in England and Wales are specified in subsection (3) and comprise offences under Part 1 of the Forgery and Counterfeiting Act 1981 and offences of deception and falsification of documents under the Immigration Act 1971.

72. In Asfaw the appellant was charged with two offences: one of using a false passport, which was specified in section 31(3) of the 1999 Act, and another of attempting to obtain air transportation services by deception, which was not. At her trial she relied on section 31 of the 1999 Act as a defence to the first charge, and was acquitted. After the judge ruled that the second offence was not within the scope of section 31, she pleaded guilty to that offence. On the appeal against her conviction the House of Lords rejected an argument that the appellant had a legitimate expectation that she would be afforded the protection of article 31 on the basis that she could not, at the relevant time, have had any legitimate expectation of being treated otherwise than in accordance with the 1999 Act (see paras 30 and 69). The House nevertheless held that, after the appellant had been acquitted of the first offence, it was an abuse of process to proceed with her prosecution for the second offence.
73. In the present case the terrorism offence of which Mr Troitiño is accused by Spain is obviously not within the scope of section 31 of the 1999 Act, which applies only to specified offences under UK law. In these circumstances the decision of the House of Lords in Asfaw, as we see it, puts paid to the attempt to invoke the doctrine of legitimate expectations. As an alternative to the doctrine of legitimate expectations, however, Mr Summers relied on Asfaw to argue that the doctrine of abuse of process operates to prevent Mr Troitiño's exposure to a prosecution which would violate the immunity conferred by article 31.

The geographical scope of article 31

74. There is, in our view, a flaw in this argument, which is the flaw that we identified at the start of this discussion. Although in Asfaw it was found that article 31 applied to an offence which had not been specified in the 1999 Act, there was no suggestion that article 31, any more than section 31 of the 1999 Act, could apply to a foreign prosecution. We think it plain that it cannot and that, in its application to the UK as a contracting state, article 31 prohibits only the imposition of penalties by the UK on refugees within its scope for acts which are illegal under UK law. Any penalty imposed on Mr Troitiño, if he is tried and convicted of the alleged terrorist offence, would be imposed by Spain, not by the UK. The imposition of such a penalty therefore would not constitute a violation of article 31 by the UK.
75. It also would not constitute a violation of article 31 by Spain, since article 31 could not apply to Mr Troitiño in Spanish territory. As Mr Summers himself emphasised, article 31 applies to refugees who are, by definition, persons outside their country of nationality. Furthermore, if he returns to Spain, Mr Troitiño will not enter or be present in its territory illegally or without authorisation. For these reasons, he would not be covered by article 31.
76. Mr Summers sought to draw an analogy with the principle accepted by the House of Lords in R (Ullah) v Special Adjudicator [2004] 2 AC 323 that it is a defence to extradition to show substantial grounds for believing that the requested person, if returned, faces a real risk of a breach of article 3 or a flagrant violation of one of certain other Convention rights (in particular, those guaranteed by articles 2, 5 and 6). Mr Summers submitted that, in a similar way, it is a defence to extradition to show substantial grounds for believing that, if extradited, the requested person would face a real risk of a flagrant violation of article 31.
77. In our view, there is no such analogy to be drawn. The implication in certain articles of the European Convention on Human Rights, principally article 3, of a secondary right not to be to be transferred to a country where there is a real risk of suffering a violation of the primary right depends upon the fundamental nature of the right concerned: see e.g. Soering v United Kingdom (1989) 11 EHRR 439, para 88. Article 31 of the Refugee Convention does not protect a fundamental human right, and we see no basis for reading into it a right not to be transferred to a state where there is a real risk of exposure to a breach of article 31 (whether "flagrant" or otherwise). But in any event sending Mr Troitiño to Spain would not expose him to any risk of a breach of article 31 since, as we have indicated, article 31 would not apply to him in Spain.
78. An alternative way in which Mr Summers sought to argue that article 31 provides a basis for resisting extradition was by attempting to draw an analogy with diplomatic immunity. He cited Khurts Bat v Federal Court of Germany [2013] QB 349, where two kinds of diplomatic and state immunity were considered. The defendant in that case sought to resist his extradition to Germany with a view to his prosecution there for criminal offences. He contended, first, that under customary international law he had personal immunity from both civil and criminal jurisdiction in other states because he was on a special mission to the UK on behalf of the Mongolian government at the time of his arrest or alternatively because he held a high-ranking government office. That contention, had it been made good, would have meant that the defendant was immune both from prosecution in Germany and from extradition proceedings in the UK. No immunity of this kind, however, can be said to apply in this case. There is no possible basis for suggesting that article 31 of the Refugee Convention gives rise to any personal immunity either from criminal jurisdiction in Spain or from the jurisdiction of the UK to order extradition.
79. In Khurts Bat the defendant also argued that he was entitled to immunity from criminal prosecution in Germany ratione materiae, that is, by virtue of his actions on behalf of the Mongolian state as opposed to his status, i.e. ratione personae. It was not disputed that such immunity, if established, would have entitled the defendant to immunity from extradition (see para 63). Again, however, there is no analogy with the present case. We do not think it correct to analyse article 31, where it applies, as conferring an immunity from prosecution.^[7] But even if the view were taken that it does, that would not assist Mr Troitiño for the same reason already discussed that article 31 would not apply to him in Spain and therefore could not afford him any immunity from prosecution in Spain which would render him immune from extradition.
80. At root, the argument based on article 31 seems to us to amount to an attempt to treat a provision which affords a local protection to asylum-seekers as if it created a right of non-refoulement equivalent to that which flows from the recognition of refugee status itself. For the reasons given, we consider this attempt to be misconceived. To rely on rights derived from the Refugee Convention to prevent his extradition to Spain, Mr Troitiño would have to establish that he is (now) a refugee by making a successful claim for asylum. Article 31 has no relevance in this regard.

Conclusion

81. We conclude that the Senior District Judge was right, albeit for reasons different from those he gave, to decide that article 31 of the Refugee Convention does not provide a ground on which Mr Troitiño is entitled to resist extradition. It follows from our earlier conclusions that the Senior District Judge was also right to decide that extradition is not barred under section 12A of the 2003 Act and that these proceedings are not an abuse of the court's process. Accordingly, we dismiss the appeal.

Note 1    See the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention of the European Union on Mutual Assistance in Criminal Matters of 29 May 2000.    [Back]

Note 2    See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1992) at para 28.    [Back]

Note 3    Council Directive 2004/83/EC of 29 April 2004.    [Back]

Note 4    See UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4.    [Back]

Note 5    See Adimi at 679B and UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers (1999) at para 4.    [Back]

Note 6    Simon Brown LJ appeared to consider that article 31, through the doctrine of legitimate expectations, gave rise to a right in domestic law not be prosecuted (see 686D-E), whereas Newman J considered that it gave rise only to a right to have the executive consider whether to accord protection (see 696C-H).    [Back]

Note 7    It was not suggested in Asfaw that the manner in which the UK has implemented article 31, by creating a statutory defence to a criminal charge, is inconsistent with the Refugee Convention.     [Back]