Appellant: Govier; Ludgate Dunne

Respondent: Sheldon for the Lord Advocate

5 December 2012

[1] The point which is raised in this appeal is a relatively short and focussed one. The argument on behalf of the appellant was that in summary the European Arrest Warrant in this case does not comply with the requirements of section 2 of the Extradition Act 2003, in respect particularly that it does not contain a statement in terms of sub‑section 3 of that section that 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.

[2] The position adopted by Mr Govier on behalf of the appellant was periled on the use of the words in part E on page 2 of the European Arrest Warrant, the words being "is suspected of" rather than "is accused of" and, as Mr Govier accepted, if "accused" had been substituted for "suspected" then this appeal would not be maintained on this point.

[3] It has been repeatedly and authoritatively observed that extradition statutes require to be given a broad and generous construction and there was no dispute between the parties in that regard. We were referred to the speech of Lord Steyn in In re Ismail [1998] UKHL 32, [1999] 1 AC 320 where he observed that:

"Extradition treaties, and extradition statutes, ought therefore to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition. That approach has been applied by the Privy Council to the meaning of 'accused' in an extradition treaty: Rey v The Government of Switzerland. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment."

He went on to observe:

"It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an 'accused' person. All one can say with confidence is that a purposive interpretation of 'accused' ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an 'accused' person is satisfied."

The same observations, or similar observations to the same effect, were made more recently in the case of Asztaslos v Hungary [2010] EWHC 237, where at paragraph 38 it was observed that:

"The court must construe the words in section 2(3)(a) and (b) in a 'cosmopolitan' sense and not just in terms of the stages of English criminal procedure.

The observations are of course of equal relevance with regard to Scottish criminal procedure.

[4] In the present case the European Arrest Warrant begins with the opening words which are subscribed by a judge of a regional court in Poznan in Poland :

"I hereby petition for the arrest of the above mentioned individual and for handing him/her over to the court authorities in order to enable penal proceedings against him/her to start."

The warrant in part B refers to a decision being

"an enforceable ruling ordering to remand the requested person in custody on the strength of the decision of the district court in Peelar dated 23 September 2010 on the subject of applying a preventive measure in the form of preliminary custody for a period of 14 days from his apprehension."

Part E of the warrant contains the following provision under the heading Offence:

This warrant relates to a total of one offence. The circumstances in which the offence was perpetrated: the appellant is suspected of the following: on 20^th September 2009 in Pila at an identified street number 35 in front of the entrance to a named restaurant acting together and in collaboration with unidentified persons the appellant participated in beating up a named man by hitting him on the head with a bottle thereby causing injury to his head and in consequence exposing him to at least moderate detriment to his health.

[5] In section F of the warrant it is stated under the heading "other relevant circumstances relating to the case" that the appellant is a fugitive from justice. On the strength of the decision dated 23 September 2010 the district court in Pila issued a wanted notice for him, and he has been repeatedly detained by the Berlin police in connection with stealing goods from shops - last time on 31 December 2009.

[6] The sheriff in her report to us drew attention to these features in the European Arrest Warrant particularly at paragraph 10 of her report and in the concluding paragraph, paragraph 12 of her report, under reference to the various authorities quoted there, she reached the conclusion that it was clear that the requirements of section 2(3) are satisfied.

[7] The EAW begins with a clear statement to the effect that that the requested person's surrender is sought for the purpose of conducting a criminal prosecution. There is nothing in the EAW to justify disregarding or going behind that clear statement. In the description of the offence, it is clearly stated that the requested person beat up or assaulted a particular individual. The use of the word "suspected" in a phrase identifying the particular provision of the Polish penal code, does not raise a doubt the requested person might not be an accused person, wanted for the purpose of being prosecuted.

[8] In all the circumstances of this case and applying the broad and generous construction, the cosmopolitan construction, which we are obliged to apply and having regard to the terms of the arrest warrant as a whole we are satisfied that it complies with the requirements of section 2 of the Extradition Act 2003. We accordingly refuse this appeal.