QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWEENEY
| SEAN ALEXANDER
|- v -
|THE PUBLIC PROSECUTOR'S OFFICE, MARSEILLE DISTRICT COURT OF FIRST INSTANCE, FRANCE
|GIANFRANCO DI BENEDETTO
|COURT OF PALERMO, ITALY
Helen Malcom QC and Joel Smith (instructed by Hayes Law) for Gianfranco Di Benedetto
Julian B Knowles QC and Saoirse Townshend (instructed by The Crown Prosecution Service) for the Respondents
Hearing dates: 14 February 2017
Crown Copyright ©
Sean Alexander: The Facts and Procedural History
[M083] This warrant relates to, in total, 10 offences
[A042, A043, A044 & A045] Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person:
Sean ALEXANDER is suspected of having organised, in the course of 2015 and until April 2016, the purchase of weapons, weapon components and ammunition in the south of France (counties of Var and Alpes-Maritimes) with a view to transferring them, with the assistance of accomplices, to the London region in Britain, where they were to be sold to drug dealing groups and other delinquents. Investigations undertaken in France allowed seizure of handguns hidden in a vehicle travelling towards Britain. Sean Alexander had organised the arrival of this vehicle in France."
"[A040 & A041] Nature and legal classification of the offence(s) and applicable statutory provision/code:
Offences 1 to 6
Unlawfully acquiring, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully acquiring, as part of an organised gang, weapons, ammunition or weapon components classified within category B; Unlawfully possessing, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully possessing, as part of an organised gang, weapons, ammunition or weapon components classified within category B; Unlawfully transferring, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully transferring, as part of an organised gang, weapons, ammunition or weapon components classified within category B to persons without a licence to possess firearms.
Offences described and punishable under articles L.311-2, L.312-2, L.314-2, L.314-3 and L.317-12 of the French Homeland Security Code, 132-71 of the French Penal Code and in pursuance of decree no 2013-700 dated 30th July 2013
Offences 7 and 8
Unlawful transport, by at least two persons, of military hardware, weapons ammunition or weapon components classified within category A; Unlawful transport, by at least two persons, of military hardware, weapons, ammunition or weapon components, classified within category B.
Offences described and punishable under articles L.311-2, L.315-1, L.317-9, L.317-10 and L.317-12 of the French Homeland Security Code and in pursuance of articles 2 and 121 of decree no. 2013-700 dated 30th July 2013
Participation in a criminal conspiracy with a view to preparing an offence punishable with up to 10 years of imprisonment
Offence described and punishable under articles 450-1, 450-3 and 450-5 of the French Penal Code
Maintaining an unlawful arms depot as part of an organised gang
Offence described and punishable under articles -2, L.317-7 and L.317-10 of the French Homeland Security Code, L.2339-12 of the French Defence Code and 132-9 and 132-71 of the French Penal Code"
"[A042, A043, A044 & A045] Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person:
Through physical and technical surveillance, it has been established that the weapons ordered by Sean Alexander, on behalf of criminal groups located in London and its suburbs, were stored in the home of Philippe Alexander, who then handed them over either directly to Sean ALEXANDER or to third parties entrusted with deliveries to Britain (this was the case with Florian MARCONI and Didier LANCELL). The weapons were also stored in the home of a person (in the process of being identified) living in the Paris region, entrusted with concealing them in the vehicle of Marek BARBER. Philippe Alexander has admitted that he served as a weapons depot for Sean Alexander. A Sten submachine gun, two rifles, a pump-action shotgun and a considerable stock of 12-gauge, .22LR and 9mm ammunition were seized in the latter's home. He confessed that the weapons seized in Barber's vehicle (handguns – a .357 Magnum, a calibre 6.35, a .45 ACP and a Model 1892 – and a large quantity of ammunition) had been stored in his home.
Storage of weapons and ammunition in the homes of third parties or in secured premises belonging to third parties, on behalf of an arms trafficker, constitutes, for the person in question here, the offence of maintaining an arms depot, this depot being created within the scope of concerted action which called for a distribution of roles."
"All these weapons and this ammunition are evidence of offences 1 to 6 and offences 7 and 8, Their acquisition, possession, transfer and transport is prohibited by law and neither SA nor his accomplices held any authorisation provided by law. None of these weapons was registered with the Prefectorial authorities covering their place of residence.
The same applies for the offence of possessing or maintaining an arms depot.
As concerns the transfer of these weapons – for those which were transferred on French territory – none of the above-mentioned persons had any licence to possess weapons and none of them registered any such weapons with the Prefecture covering their place of residence."
"Fairness between the parties dictates that the Respondent IJA should be permitted to rely upon evidence in order to meet an argument on appeal which was not raised at first instance and which, had it been raised, would have been resisted on the basis of the evidence now sought to be admitted".
For reasons which are made clear below, we consider this adjectival argument alongside the principal substantive point raised in the appeal.
Gianfranco Di Benedetto: Facts and Procedural History
"to commit handling, unlawful use of credit cards and money laundering on various occasions, including those mentioned in the counts below. An aggravating circumstance applies because offences are transnational in nature and they have been committed with the contribution of an organised criminal group"
and names are specified. The particulars of offence continue:
"… in particular Mr DI BENEDETTO, in his capacity as a member of the association, took steps to obtain POS terminals necessary to use codes and cloned credit cards in his role as owner of a business called "Mobile Laboratory di Di Benedetto Gianfranco", and he participated in a number of meetings between members of the association, made his bank account with BNL available for them to let the money go through which money derived from fraudulent transactions obtained from a POS Monte dei Paschi di Siena of a sham car rental company called Noleggiando srl, and he gave his contribution in the commission of the association's target offences."
"….because by several actions in furtherance of the same criminal plan and in a way intended to conceal the origin of the money, he received a sum of €13,135.00 from bank account no. 4242749 opened with a branch of Monte dei Paschi di Siena located in via Galletti no. 41, held in the name of car rental company called "Noleggiando srls" owned by Raffaele VOLPE, and specifically by a bank transfer to a bank account opened with BNL, IBAN IT43X0100504609000000000486, held in the name of Mr DI BENEDETTO himself. These sums of money derive from the offences described in counts 27 and 28 above.
The offences were committed in Palermo on 5, 6, 11, 12, 18 and 28 August 2014."
"Participation in a criminal organisation aimed at computer fraud and money laundering."
Four framework offences are ticked - in that GDB is said to have engaged in "laundering of the proceeds of crime", "computer-related crime", "swindling" and "forgery of means of payment".
Helpful Mutual Concessions
Grounds of Appeal: SA
1) DJ Goldspring erred in finding that the offences 1-9 in EAW1 were sufficiently particularised as required by Section 2(4)(c) of the Act;
2) DJ Goldspring erred in finding that EAW2 complies with Section 2(4)(c) of the Act, and;
3) DJ Goldspring erred in finding that offences 1-5 and 7-9 are extradition offences pursuant to Section 10 and Section 64 of the Act.
Grounds of Appeal: GDB
1) The District Judge should have concluded that the EAW was invalid in respect of the offending pursuant to article 416 of the Italian penal code, as no maximum sentence was set out for this offence (section 2(4)(d) of the Act). The District Judge further erred in concluding that this error could be "cured" through the provision of extraneous material.
The Legislation and the Framework Decision
The Appellants' Submissions
"Article 8 of the Framework Decision lists the mandatory pieces of information that must be contained in the European Arrest Warrant."
and at paragraph 90 he stated:
"… the execution of the European Arrest Warrant results in the arrest of the requested person [and] where appropriate his placing in custody for a period of up to 60 days in the executing member state… and finally his forced transfer to the issuing Judicial Authority in another member state.
92. … From the moment that a requested person is the subject of a European Arrest Warrant, his situation is covered by EU law and the execution of that warrant must be consistent with the general principles of law governing the action of the European Union and that of the member states when they implement that law."
"The expression "European Arrest Warrant" in my view designates the original instrument … by which the issuing Judicial Authority requests execution of the national decision … and which by means of the mandatory information which it contains, enables the executing Judicial Authority to verify that the warrant actually exists and that it complies with the formal requirements of the framework decision."
"109. The absence of a national legal basis does not constitute a formal irregularity that may be regularised by the use of the cooperation framework provided for in Article 15(2) of the Framework Decision, but a substantive irregularity which disqualified the Act [i.e. the warrant] from being a European Arrest Warrant."
The Respondents' Reply
"18. …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."
Thus the purpose of the particulars is functional, and again there is no justification for a different approach as between accusation and conviction warrants.
"64. Given that Article 8(1)(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant.
65. That being so, before adopting such a decision, which, by its very nature, must remain the exception in the application of the surrender system established by the Framework Decision, as that system is based on the principles of mutual recognition and confidence, the executing judicial authority must, pursuant to Article 15(2) of the Framework Decision, request the judicial authority of the issuing Member State to furnish all necessary supplementary information as a matter of urgency to enable it to examine whether the fact that the European arrest warrant does not state whether there is a national arrest warrant may be explained either by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned."
"49. I would add two further observations in response to this question. First, a judge conducting an extradition hearing under section 10 of the 2003 Act may find that the information presented to him is insufficient to enable him to decide whether or not the offence specified in the Part 1 warrant is an extradition offence within the meaning of section 64(2) or section 64(3). If so, he will be at liberty to request further information from the appropriate authority of the category 1 territory, and to adjourn the hearing to enable it to be obtained. He has not been given power to do this expressly by the statute. But articles 10.5 and 15.2 of the Framework Decision show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial cooperation on which it is based encourages this approach.
50. I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it."
"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, and not on 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. If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events. Validity is not a transient state. A warrant is either valid or not. It cannot change from one to the other over time.
9. It does not, however, follow from this 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."
"as far as possible in the light of the wording and purpose of the framework decisions in order to attain the result pursued by [the framework decision]"
" 67. In the light of the foregoing considerations, the answer to Question 2 is that Article 8(1)(c) of the Framework Decision is to be interpreted as meaning that, where a European arrest warrant based on the existence of an 'arrest warrant' within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to Article 15(2) of the Framework Decision and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant."
The Court thus confirmed that further information provided pursuant to Article 15(2) might determine the "fundamental" question of the validity of an EAW. Here too we agree with the submissions of the Respondents.
"… Does the term 'any other warrant issued in the category 1 territory for the person's arrest in respect of the offence' in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski  EWHC 4162 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large?" [see paragraph 2]
Counsel for the Appellants argued that the EAW must contain particulars of a domestic warrant, and of a judicial decision activating a suspended sentence (paragraph 4(1)). It was submitted that the Act "may [have] introduced conditions for surrender more specific or protective than those contained in the Framework Decision" (paragraph 4(iv)).
"38. I consider that it is clear in the light of the very recent decision in Bob-Dogi that the Court of Justice would not take so austere a view. In that case, box (b) of the EAW was completed in terms indicating on their face that the EAW was relied on as being itself also the national arrest warrant referred to in article 8.1(c). The Court of Justice, having held that an EAW must, in that case (an accusation case) be based on a prior separate national arrest warrant, said at para 64:
"Given that article 8.1(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant."
39. The better interpretation of para 64 appears to be that article 8.1(c) requires an EAW to evidence on its face a prior separate national arrest warrant in order to comply with article 8.1(c), and that it is not sufficient that such a prior separate arrest warrant actually exists. However, despite the words "shall contain" used by article 8.1 and the language of "requirement" used by the Court of Justice, it is also clear that the Court was not treating the identification on the face of the EAW of a prior separate national arrest warrant as an absolute condition of an EAW's validity. On the contrary, the executing court was obliged to investigate the underlying factual position further, by requesting further information under article 15. Whether the EAW was to be treated as valid and enforceable would depend not on how it was expressed, but on the underlying factual question whether or not it proved actually to be based on a prior separate national arrest warrant."
"45. Accordingly, even if a reference to the activating decisions should strictly have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot as a matter of European law mean that the EAWs should be treated as invalid or incapable of being executed. That being so, I consider that the same position must once again carry through into section 2(6) of the 2003 Act. Section 202 must be understood as enabling the same sort of cooperation and regularisation of formal, rather than substantive, defects appearing in an EAW that article 15 of the Framework Decision contemplates."
"47. … a requirement for information in an EAW should not be read as a condition, non-compliance with which is by itself fatal to the validity of the EAW, and that the EAW may be enforced if and when separately supplied information establishes a sound factual basis for surrender. In the context of a request for surrender under an EAW and in the light of section 202, I consider that the requirements of section 2(2)(b) read with section 2(6)(b) and (e) can and should be read in a like sense. Lord Hope's words must be qualified to enable the process of investigation, involving where deemed appropriate a request for and examination of further information, to be undertaken and taken into account, in determining whether an EAW should be given effect under the 2003 Act, in a manner paralleling that indicated by the Court of Justice to be appropriate under the Framework Decision."
"as a general rule the Court of the executing state is bound to take the statements and information in the warrant at face value." (Zakrzewski paragraph 8)
"… should not be taken as representing some sort of absolute rule that the facts in an EAW must be assumed to be correct … in every case, irrespective of the evidence. Nor were they intended to be so read…" (paragraph 52).
SA Ground 1 (Offences 1-9 in EAW1 insufficiently particularised): Submissions
1) The introductory particulars made no distinction between Category A and Category B weapons; SA's role as part of the gang was not particularised; and it was not even known if, as appeared possible, he was in this country at the time.
2) The nature and extent of the allegations made against SA were not clear – in particular, it was not clear if there was one (attempted) transfer to this country or whether there had been previous trips; it was not possible to conclude that SA was personally in possession or control of weapons; and nor, except in relation to offence 6, was it clear if any person may have had a licence to possess firearms.
1) SA's role as part of the gang was expressly specified in box E) as having been the organiser of the purchase of the weapons, and having organised the arrival in France of the vehicle which was used to endeavour to transport the weapons back to this country.
2) Box E) also specified that SA was in France, in Var and Alpes-Maritime when the weapons were purchased.
3) Box E) made clear the modus operandi of the gang and what SA's role within it was – including where, when, and how it operated.
4) There is no merit in the other criticisms made. For example, whether or not there was more than one trip was nothing to the point. No doubt further details could always be given, but they need not be so in order for the warrant to be sufficiently particularised.
1) The combination of boxes C) and E) makes clear that the conspiracy was to commit all the substantive offences set out in the EAW which clearly specified the criminal activities alleged and was thus sufficient to meet the requirements identified by the Divisional Court in King (above).
2) The suggestion, made in the written submissions on behalf of SA, that it was possible that offence 9 involved a different conspiracy altogether was far-fetched. Again, the EAW needed to be read with a sense of realism.
SA Ground 1: The merits
SA Ground 2 (EAW2 non-compliance with Section 2(4)(c)): Submissions
SA Ground 2: The merits
SA Ground 3 (Offences 1-5, 7-9 in EAW1 not extradition offences): Submissions
"… I have also considered whether the EAW's discloses extradition offences as required by s.10 EA 2003. I am satisfied that the offences disclosed would amount to offences with this jurisdiction by virtue of the conduct described and would satisfy the relevant statutory sentence requirement and thus are extradition offences."
SA Ground 3: The merits
GDB (Failure to comply with Section 2(4)(d) etc.): Submissions
GDB: The merits
A. The Extradition Act 2003
"2 Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is—
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
202 Receivable documents
(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
204 Warrant issued by category 1 territory: transmission by other electronic means
(1) This section applies if—
(a) an arrest warrant is issued by an authority of a category 1 territory in a case in which an article 26 alert is issued,
(b) the information contained in the warrant and the alert are transmitted to the designated authority by electronic means, and
(c) that information is received by the designated authority in [a form in which it is intelligible and which is capable of being used for subsequent reference].
(2) This section also applies if—
(a) an arrest warrant is issued by an authority of a category 1 territory in a case in which no article 26 alert is issued,
(b) the information contained in the warrant is transmitted to the designated authority by electronic means, and
(c) that information is received by the designated authority in [a form in which it is intelligible and which is capable of being used for subsequent reference].
(3) The reference in section 2(2) to an arrest warrant issued by a judicial authority of a category 1 territory is to be read as if it were a reference to the information received by the designated authority."
B. The Framework Decision 2002
The Act represents the implementation by the UK of the Framework Decision of 2002, which in its material parts, reads as follows:
Content and form of the European arrest warrant
1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of Article 2;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;
(g) if possible, other consequences of the offence.
Rights of a requested person
1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority.
1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered.
2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.
3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.
Time limits and procedures for the decision to execute the European arrest warrant
1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days."