England and Wales High Court (Queen's Bench Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/03/2007

Lord Justice Scott Baker:

1. The court has before it an appeal by Cuneyit Akaroglu ("the appellant") under s 103 of the Extradition Act 2003 ("the 2003 Act") against the decision of District Judge Evans, who on 2 October 2006 sent the case to the Secretary of State for his decision whether the appellant should be extradited to Romania. The Secretary of State ordered his extradition on 7 November 2003.
2. There is a concurrent application for permission to apply for judicial review against the Secretary of State's decision of 3 August 2006 to certify the extradition request in respect of the appellant under s 70 of the 2003 Act. This was adjourned by Collins J. on 3 January 2007 to be heard at the same time as the extradition appeal with the substantive hearing to follow if leave was granted. Collins J. expressed the view that appeal, rather than judicial review, was the correct route.

Facts.

3. During the period 2000–2004 the appellant is alleged to have formed an association in Romania with others for the purpose of carrying on fictional commercial transactions through bogus companies. He is said to have been the manager of one of the companies involved, SC Teco Petrol SRL.
4. On 26 June 2006 the appellant was arrested and taken to Fulford Road Police Station under a provisional arrest warrant. The following day he appeared before District Judge Workman and admitted his identity. The hearing was adjourned pending service of s 70 papers. These were served on 8 August 2006 and the case listed for an extradition hearing before District Judge Evans on 28 September 2006. He found against the appellant and sent the case to the Secretary of State under s 92 for the Secretary of State to decide whether he should be extradited. The Secretary of State, as he was required to, considered the case under s 93 and decided that he should. There is no complaint about that aspect of the Secretary of State's decision.
5. This was a case to which Part 2 of the 2003 Act applied because Romania was, at the material time, a category 2 territory.
6. The extradition process began against the appellant with a request to the Secretary of State for the appellant's extradition to Romania. By s 70 of the 2003 Act the Secretary of State must issue a certificate under that section if he receives a valid request for extradition to a category 2 territory of a person who is in the United Kingdom. A request is valid if (a) it contains the statement referred to in s 70(4) and (b) it is made in the approved way. Subsection (4) provides:

"The statement is one that the person –

a) is accused in the category 2 territory of the commission of an offence specified in the request, or

b) is alleged to be unlawfully at large after conviction by a court in the category 2 territory of an offence specified in the request."

7. By s 70(8) the certificate must certify that the request is made in the approved way. S 70(9) provides that if a certificate is issued under s 70 the Secretary of State must send (a) the request, (b) the certificate and (c) a copy of any relevant Order in Council to the appropriate judge.
8. The main focus of the appeal and the judicial review application has been on the contention that Romania, in making the request for extradition, never made it clear whether the appellant was an accused person or was unlawfully at large after conviction, and thus whether he fell within s 70(4)(a) or s 70(4)(b). At the heart of the submission of Mr Joel Smith for the appellant lies the contention that the request documents must make it clear whether the person whose extradition is sought is accused or convicted.
9. The appellant was arrested under a provisional arrest warrant granted pursuant to s 73 rather than a warrant under s 71 which is an arrest warrant following an extradition request. Nothing, however, turns on the fact that the warrant was a provisional warrant and pre-dated the extradition request.
10. The request to the Secretary of State was dated 21 July 2006, although it appears to have been transmitted to the Home Office on 31 July 2006. The Romanian Embassy, in its covering note, referred to an enclosed letter from the relevant Romanian authorities and a number of attached documents. The enclosed letter, which was the request for extradition, said that the extradition of the appellant was being requested:

"in view of criminal prosecution on the file….with the Prosecutor's Office attached to the High Court of Cassation and Justice, Directorate for Investigation of Offences of Organised Crime and Terrorism, for having committed the offence of tax evasion…. the offence of association in view of committing offences… and the offence of money laundering…"

11. The attached documents included:

• A report of the facts, drawn up by the First Criminal Section of the Tribunal of Bucharest.

• A certified copy of the session order of 22 February 2005 by the First Criminal Section of the Tribunal of Bucharest ("the session order").

• A certified copy of the preventive arrest warrant of 22 February 2005 issued by the Tribunal of Bucharest ("the warrant").

• The legal provisions that applied in the appellant's case.

• The report of the Criminal Enforcement Office of the Tribunal of Bucharest stating that the appellant had not appealed on points of law.

12. The letter of request says the warrant for preventive arrest of 22 February 2005 "….. could not be enforced because the defendant eluded criminal prosecution by leaving our country. Hence he was sought internationally and located within the territory of the United Kingdom."
13. The warrant itself refers to the appellant as "the convict" and mentions his association with "other convicts" forming an infractional group with the purpose of carrying on fictitious commercial transactions through the mediation of bogus companies. There is reference to the offences for which the appellant is wanted being "punished with imprisonment from 6 months to 15 years and the forbidding of some rights" and that he is liable to imprisonment for more than 4 years having "eluded from the penal pursuit and punishment provided by law." The order in the warrant is for: "the preventive arrest of the convict" and asks that: "the administration of the detention place will receive and keep the convict on a period of 30 days, from the date of imprisonment."
14. The session order also refers to the appellant and others as "convicts" but at the same time speaks of "the preparation of the defence". A little later it mentions "solid indications that the convicts committed the deeds for which they are investigated." It also draws a distinction between three defendants, one of whom is the appellant, and two others in respect of whom it rejects the issue of arrest warrants, albeit all five are referred to as "convicts". There is nothing in the other enclosed documents that gives any further indication whether the appellant is accused or convicted.
15. Mr Smith, relies strongly on the repeated references to convict arguing that this can only mean a convicted person. But, as I have observed, even those against whom arrest warrants were not issued are referred to as "convicts".
16. For my part, I have little difficulty in concluding that the request itself makes clear that the appellant is accused rather than convicted. I regard the statement that the warrant for arrest could not be enforced because the appellant "eluded criminal prosecution by leaving our country" as virtually determinative. I am conscious, however, that one must be astute to possible defects or ambiguities in translation. The standard of translation leaves a good deal to be desired. It seems to me therefore necessary to look not only at the request but also at all the accompanying documents that were sent to the Secretary of State. Having done so, I have no difficulty at all in accepting the submission of Mr Hardy, who has appeared for the Government of Romania, that it is overwhelmingly obvious that the accused was being sought as an accused rather than a convicted person. Quite apart from anything else the Romanian authorities enclosed a warrant for the appellant's arrest but no certificate of conviction. The high water mark of Mr Smith's argument, and the only matter that really gives rise to any question at all, is the persistent reference to the appellant and his co-defendants as convicts. It may well be that the use of that word is a product of erroneous translation, but it is perfectly plain from looking at the whole of the documents before the Secretary of State that the appellant's extradition was not being sought as a convicted person.
17. That this approach to the documentation is correct is in my view supported by the observations of Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas and another [2006] 2 AC 1 at para 48 where he said:

"It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied."

Lord Hope, whilst not there speaking specifically of certification by the Secretary of State, was referring to the 2003 Act. It is true he went on to say that if there is a gap in the information it ought not to be filled by mere guesswork. But that is not this case.

18. There is no question in the present case of guesswork. The documents as a whole point unerringly towards the appellant being wanted as an accused rather than a convicted person. Crane J was faced with a comparable situation in R (Bleta) v Secretary of State for the Home Department [2005] 1 WLR 3194, where the requesting state, Albania had not expressly said the defendant was unlawfully at large. His approach was this:

"My conclusion is that it is only in a clear case that the Secretary of State should conclude, in the absence of a statement by the requesting state, that the relevant defendant is not only at large but unlawfully at large."

19. The ultimate question is whether the requirements of s 70 are satisfied. This is not a matter of technicality but of practical reality. Does the request, which includes the accompanying documents, contain the relevant information? In my judgment, the Secretary of State was fully entitled to infer that the appellant's extradition was requested as an accused person. Having so concluded, the conditions in s 70(1) of the 2003 Act were met. He had received a valid request for extradition to a category 2 territory and the appellant was in the United Kingdom. The request was valid because it contained the statement specified in s 70(4)(a) i.e. that he was accused of an offence specified in the request. The request was made in the approved way, because it was made by or on behalf of the person administering the relevant category 2 territory, namely Romania (s 70(5)). In those circumstances it was incumbent on the Secretary of State to issue a certificate.
20. The certificate in the present case was issued on 3 August 2006. It was in these terms:

"Under section 70 of the Extradition Act 2003, the Secretary of State hereby certifies that the request from Romania, being a territory designated for the purposes of Part 2 of that Act, for the extradition of Cuneyit Akaroglu (also known as Alex Martin) is valid and has been made in the approved way."

21. It is to be noted that the certificate is required to certify no more than that the request is made in the approved way (s 70(8)). It does not require the Secretary of State to state whether the individual is being sought as an accused or a convicted person.
22. Mr Smith's argument is first that the Secretary of State was wrong to certify, as he could not have known whether the appellant was accused or convicted. In my view, for the reasons I have explained, this argument fails on the facts. Consideration of the whole of the documentation (which may be particularly important where problems can arise over translation) can have left the Secretary of State in no doubt that the appellant was accused rather than convicted.
23. Alternatively, submits Mr Smith, the District Judge had to embark on the same exercise because of the obligations he had to undertake under ss 78, 84 and 85. S 78(2) provides:

"The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) –

a) the documents referred to in s 70(9);

b) particulars of the person whose extradition is requested;

c) particulars of the offence specified in the request;

d) in the case of a person accused of an offence, a warrant for his arrest issued in the category 2 territory;

e) in the case of a person alleged to be unlawfully at large after conviction of an offence, a certificate issued in the category 2 territory of the conviction and (if he has been sentenced) of the sentence."

24. If the judge decides the question in s 78(2) in the negative, he is required by subsection (3) to order the person's discharge. On the other hand, if he decides the question in the affirmative the documents will, of necessity, include either the warrant under s 78(2)(d) or the certificate under s 78(2)(e).
25. Ss 84 and 85 set out the steps required to be taken by the District Judge, depending on whether or not the appellant has been convicted.
26. Before the District Judge the appellant took two points. The first was that the request was not valid and the second that the papers did not make out an extradition offence. Only the first of these points has been pursued before us.
27. We have only hand written notes made by the District Judge and he gave no detailed reasoned decision. He records at the end of the notes:

"I suspect translation which is poor in many respects, convict is wrong. I can't form view. But I agree with CPS and reject D's submissions accused/convicted."

28. The Secretary of State's certificate, which the District Judge rightly was not prepared to go behind, certified only that the Romanian request was valid. It said nothing about whether the appellant was accused or convicted. On the other hand the supporting documentation including the arrest warrant and the absence of a certificate of conviction fully entitled the District Judge, just as it had the Secretary of State, to conclude that the appellant was accused rather than convicted and make the necessary decisions under ss 78(2) and 84.
29. I accept the submission of Mr Hardy that the District Judge was not entitled to review the Secretary of State's decision to certify. On the other hand he was required to go through the exercise spelt out in s 78(2). As the Secretary of State's certificate does not tell him whether the appellant is accused or convicted he must make up his own mind. That was not difficult in the present case because he did have an arrest warrant and he did not have any certificate of conviction. S 78(2) envisages the District Judge having to ensure he has the correct paper work.
30. Mr Hardy helpfully took the court through the four sequential stages in Part 2 of 2003 Act. The first stage comprises ss 69–76. These sections, which include certification by the Secretary of State, cover the procedure up to and including fixing a date for the extradition hearing. They are all preliminary to the extradition hearing. The extradition hearing itself does not begin until the second stage which is covered by ss 77–92. This group of sections ends with s 92 under which, if appropriate, the case is sent to the Secretary of State. The third stage is covered by ss 93–102 which set out the Secretary of State's functions. These are curtailed under the 2003 Act; previously his powers were wider. Now he must extradite except for the three statutory bars (see s 93(2)). The fourth and final stage comprises ss 103–116 which provide for appeals. The right of appeal relates to events in stages two and three but not stage one. An appeal lies not against any preparatory or preliminary decision but against the District Judge's decision to send the case to the Secretary of State (s 103) and the Secretary of State's order for extradition (s 108).
31. The obligation on the District Judge is not to decide as such whether the appellant is accused or convicted. The obligation on him, spelt out by s 78(2), is to decide whether he has the correct documents. Among those he will be looking for are an arrest warrant (s 78(2)(d)) or a certificate of conviction (s 78(2)(e)). If neither has been sent to him by the Secretary of State he cannot proceed and must discharge the appellant. In the present case he was sent an arrest warrant which would seem to me, on the face of it, to be sufficient to tell him that the appellant was a person accused of an offence. This subsection is focused on the documents the District Judge is required to have. Notably it makes no reference to any document other than an arrest warrant or a certificate of conviction to tell him whether the person before him is accused or convicted. Nor does any other provision in the Act require the judge to look beyond the warrant or, as the case may be certification of conviction. And, as I have already mentioned, all the certificate has to certify is that the request was made in the required manner.
32. Mr Smith's argument is that the documents accompanying the arrest warrant were so confusing as to make it unclear, despite the arrest warrant, whether the appellant was accused or convicted. As I have already made clear, this argument fails on the facts. If the argument did not fail on the facts then, assuming the District Judge was entitled to go behind the warrant, (on which I would not wish to express a concluded view) the correct process for reviewing his decision would in my judgment be an appeal under s 103 against his decision to send the case to the Secretary of State.

Remedy.

33. Since the Secretary of State was in my judgment fully entitled, indeed obliged, to issue a certificate under s 70 no question of remedy arises. There was, however, debate before us about the appropriate remedy were the Secretary of State to issue a certificate in circumstances in which he should not have done.
34. Ms Dobbin, for the Secretary of State, submits that any defect in certification by the Secretary of State would fall to be considered in the appeal against the decision to extradite under s 108. Mr Smith and Mr Hardy on the other hand submit that the appropriate remedy would be judicial review of the Secretary of State's decision to certify, there being no right of appeal under the Act. This explains why the appellant has brought separate proceedings for judicial review,
35. S 116 provides that a decision under Part 2 of the Act of the judge or the Secretary of State may be questioned in legal proceedings only by means of appeal under Part 2. Ms Dobbin submits that certification by the Secretary of State under s 70 is " a decision under Part 2." The appeal provisions in Part 2 are, however, are quite specific.
36. The rights of appeal provided under the Part 2 of the Act to an individual are, as I have said, to be found in ss 103 and 108. S 103 provides for appeal against the District Judge's decision, s 108 from the decision of the Secretary of State. An appeal under s 103 cannot be heard until the Secretary of State has made his decision (s 103(3)). An appeal from the decision of the District Judge to send the case to the Secretary of State can only be against "the relevant decision" (s 103(1)). That is the decision that resulted in the case being sent to the Secretary of State (s 103(3)). An appeal therefore bites on the final step taken by the District Judge rather than on any steps taken on the way. S 104 provides for the High Court's powers on an appeal under s 103. It is clear that the High Court would have power to allow an appeal in the event that the District Judge erroneously decided that all the necessary documents had been sent to him by the Secretary of State so as to comply with s 78(2). Thus if the District Judge made the error alleged in the present case the correct course would plainly be to appeal under s 103. But the appeal lies only against the decision that resulted in the case being sent to the Secretary of State and one can therefore focus only on any relevant error made by the District Judge. In my view s 103 is not so widely drawn as to encompass an appeal against any defect in the Secretary of State's certification.
37. S 108 envisages an appeal against the extradition order itself, which is made by the Secretary of State. S 109 sets out the court's power under s 109. S 109(2) provides that the court may allow the appeal if the conditions in subsection (3) or (4) or satisfied. These conditions are:

"(3)

(a) the Secretary of State ought to have decided a question before him differently;

(b) if he had decided the question in the way he ought to have done, he would not have ordered the person's extradition."

(4)

(a) an issue is raised that was not raised when the case was being considered by the Secretary of State or information is available that was not available at the time;

(b) the issue or information would have resulted in the Secretary of State deciding a question before him differently;

(c) if he had decided the question in that way, he would not have ordered the person's extradition."

38. On the question of remedy I prefer the argument of Mr Smith and Mr Hardy. S 108 gives a right of appeal against the Secretary of State's order to extradite, not against his decision to certify, which comes much earlier in the process. S 109 is quite specific about the circumstances in which the High Court may allow an appeal against the extradition order. These include, under s 109(3)(a) that he ought to have decided a question before him differently. The questions before him are in my judgment those limited questions he is required to consider under s 93 after the case is sent to him by the District Judge i.e. death penalty specialty and earlier extradition to the United Kingdom from another territory. I cannot read 'a question before him' as including his decision to certify before the case ever went to the District Judge. If Ms Dobbin's submission is correct a defective certificate could not be challenged until the whole extradition process has been completed and the Secretary of State had made his decision to extradite. The proceedings before the District Judge would have been a waste of time. I agree with Mr Hardy that ss 69-76, covering the preliminary stages of the extradition process, do not engage the statutory appeal mechanism at all. Judicial review was the route chosen in Bleta without apparent complaint and in my view it is the correct route to follow in the event of unlawful certification by the Secretary of State, there being no right of appeal under the Act. I accept Ms Dobbin's submission that the intention of the Act is to provide a right of appeal at the end of the process rather than multiple challenges. However, where an act, such as certification by the Secretary of State, is not amenable to appeal at all, the correct route of challenges to its lawfulness is judicial review see also R (Nikonovs) v Governor of Brixton Prison and another [2006] 1 WLR 1518. I would however refuse permission to apply for judicial review as I am completely satisfied that the Secretary of State acted lawfully in certification.

Conclusion.

1. A challenge to the Secretary of State's certificate under s 70 must be by judicial review as no right of appeal is provided by the Act.

2. The Secretary of State's certification in the present case was lawful and I would refuse permission to apply for judicial review.

3. The District Judge had no power to go behind the Secretary of State's certification but had to make his own decision about the documentation under s 78(2). He was correct in the decision he made.

4. Accordingly, District Judge was fully entitled to send the case to the Secretary of State and I would dismiss the appeal against his decision.

Mr Justice David Clarke:

39. I agree.