Louca v Public Prosecutor In Bielefel, Germany

Section 2 of the Extradition Act 2003 (“the 2003 Act”) prescribes the contents of a Part 1 warrant issued by a judicial authority of a category 1 territory. We shall refer to such a warrant as a European Arrest Warrant (“EAW”). It must contain the information referred to in subsection (4) or subsection (6) as the case may be. That information includes: “particulars of any other warrant issued in a category 1 territory for the person’s arrest in respect of the offence”. The issue which is common to the two appeals that are before us (which are both cases to which subsection (4) applies) is whether the reference to “any other warrant” is a reference to any other EAW that may previously have been issued against the person in respect of the offence, or whether it is a reference to any other arrest warrant issued in the requesting state on which the EAW is based (a “domestic arrest warrant”). The former interpretation was favoured in some obiter dicta expressed by Dyson LJ (with which Collins J agreed) in Jaso and others v Central Criminal Court No2 Madrid [2007] EWHC 2983 (Admin) at [26] which were followed by this court (Maurice Kay LJ and Penry-Davey J) in Zakowski v Regional Court in Szczecin, Poland [2008] EWHC 1389 (Admin) at [25]. In the two appeals before us, it is submitted on behalf of the respondents that this is wrong and that the latter interpretation is correct.

This issue of statutory interpretation arises in both cases. It is the only issue that arises in the case of Kaba. The case of Louca raises other issues as well.

Mr Louca is a Cypriot national resident in the United Kingdom. His extradition is sought by Germany for 6 offences of smuggling large quantities of cigarettes into Germany thereby evading liability for duty. The German judicial authority issued 3 EAWs against him. Each EAW was in respect of the same 6 offences. There are slight differences between the EAWs, but essentially they are in the same terms. The first was issued on 14 September 2006 and certified by the Serious Organised Crime Agency (“SOCA”) on 4 December 2007. The second was issued on 23 April 2008 and certified by SOCA on 24 April 2008. This was withdrawn at the City of Westminster Magistrates’ Court on 14 July 2008, shortly after Mr Louca had been arrested at court on the third EAW. The third EAW was issued on 14 July 2008 and certified by SOCA on the same day. Each EAW was plainly intended to replace the one before and must have been so understood.

The initial hearing on the third EAW was held on 14 July and 29 July was set for the extradition hearing. The hearing took place before Senior District Judge Workman on 29 July and 19 August. He gave his reserved judgment on 11 September ordering the extradition of Mr Louca to Germany.

The 3^rd EAW stated that it was based on the “arrest warrant for imprisonment on remand” which had been issued on 27 July 2006 by the County Court in Bielefeld (Amtsgericht Bielefeld). It made no reference to either the first or the second EAW. Under the heading “Full description of offences(s)”, the warrant gave a good deal of information. There is an issue whether the information was sufficient to meet the requirements of particularity stated in section 2(4)(c) of the 2003 Act. We shall return to this later in this judgment.

On 17 September, Mr Louca appealed against the extradition order pursuant to section 26 of the 2003 Act. On 13 October, he applied for judicial review against the decision of SOCA to issue a Part 1 warrant in respect of the 3^rd EAW. This application was dismissed by consent during these appeals. We propose to say no more about it.

Extradition was resisted by Mr Louca on the grounds that (i) the EAW did not comply with section 2(4)(b) in that it did not contain the particulars of the two earlier EAWs issued and certified in respect of the same offences; (ii) the particulars of the circumstances in which the offences were alleged to have been committed were insufficient to meet the requirements of section 2(4)(c); (iii) the offences were not extradition offences within the meaning of section 64(3); (iv) extradition was barred by reason of the passage of time (section 14); and (v) extradition would not be compatible with Mr Louca’s rights under article 8 of the European Convention on Human Rights (“the Convention”).

On 11 September 2008, Senior District Judge Workman sitting at the Westminster Magistrates’ Court rejected all of these grounds. At this stage, it is sufficient to refer to what he said about the section 2(4)(b) issue. He noted that the EAW did not contain any reference to the two previous EAWs. He said that he did not find that “the inclusion of domestic warrants in a European Arrest Warrant is essential”. He followed the guidance given in Jaso and Zakowski and said that he was satisfied that section 2(4)(b) required reference to be made to “extant European Arrest Warrants”. He continued:

Mr Kaba’s surrender is sought for 4 offences: organised fraud, facilitation of unauthorised residence, undue obtaining of administrative documents and the use of forged administrative documents. Two EAWs have been issued against him. The first was issued on 13 February 2008 and certified by SOCA on 13 April. The second (relating to the same offences) was issued on 19 May and certified on 21 May. It did not refer to the earlier EAW. It did, however, state that the decision on which it was based was the “arrest warrant issued on 12^th October 2007 by Jean Marc TOUBLANC, Investigating Magistrate of the French Court of First Instance in Creteil”. The adjourned extradition hearing in respect of the first EAW was held on 22 May. On that date, he was arrested in the cells in respect of the second EAW. He was brought into court where the first EAW was discharged. Senior District Judge Workman ordered extradition on 24 June.

The district judge referred to Jaso and Zakowski and said that the absence of any reference to the earlier EAW had not caused any prejudice and had not been misleading. For this reason, he dismissed the objection to the validity of the EAW.

Where an EAW is issued with a view to the arrest and extradition of a person for the purpose of being prosecuted for an offence (an “accusation case”), section 2(4)(b) provides, as we have said, that the EAW must contain: “particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence”. Where an EAW is issued with a view to the arrest and extradition of a person for the purpose of being sentenced or serving a sentence of imprisonment or other form of detention imposed in respect of the offence (a “conviction case”), section 2(6)(c) provides that the EAW must contain the like particulars. Section 2(7) provides: “the designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.” SOCA is designated as an authority with the power of certifying warrants under section 2: see The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003, SI 2003/3190.

In interpreting Part 1 of the 2003 Act, it is necessary to have regard to the Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States 2002/584/JHA (“the Framework Decision”). The 2003 Act must be interpreted in conformity with the Framework Decision: see Jaso at [9] and the authorities referred to in that paragraph.

The aims and objectives of the Framework Decision are stated in recitals (5)(6)(10) and (11). These are set out at para [7] of Jaso. It is unnecessary to set them out in this judgment. Article 1 of the Framework Decision is headed “Definition of the European arrest warrant and obligation to execute it” and provides:

Article 2 is headed “Scope of the European arrest warrant” and provides:

Article 8 is headed “Content and form of the European arrest warrant”. So far as material, it provides:

In Jaso, it was argued on behalf of the person to be extradited that there was a breach of section 2(4)(b) because there had been a previous EAW which was not mentioned in any of the warrants which were the subject of the appeal. The appeal proceeded on the basis that the earlier warrant had been formally issued, but had not been proceeded with on account of some defect.

At [16] to [25] of Jaso, Dyson LJ explained why he considered that the reference in article 8(c) of the Framework Decision to “an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect” was a reference to a currently enforceable judgment etc and not one which may have been enforceable at some time in the past, but which was no longer enforceable; and that the enforceable judgment etc had to be one on which the index EAW was based. It is necessary to set out the reasoning in full:

Dyson LJ then added this:

Jaso was an accusation case and Zakowski was a conviction case. But in view of the identity of language in section 2(4)(b) and 2(6)(c), the differences between the two cases are not material for present purposes. In Zakowski, it was argued that the EAW did not contain particulars of “any other warrant issued in the Category 1 territory” in that it stated that after the requested person had failed to serve his sentence, a “warrant was sent after him” but gave no further details of that warrant.. Maurice Kay LJ gave three reasons for rejecting this argument. Of the third reason, he said this:

Having had the benefit of full argument on the issue, we are satisfied that the interpretation of section 2(4)(b) of the 2003 Act expressed in Jaso and the interpretation of section 2(6)(c) expressed in Zakowski is wrong. It is necessary to have in mind the reasoning at [16] to [25] of Jaso. This has not been criticised before us. In summary, it is to this effect. The 2003 Act must be interpreted in conformity with the Framework Decision and in particular with article 8(1)(c). On its true construction, article 8(1)(c) requires the EAW to contain evidence of an enforceable judgment etc on which the EAW is based. This is demonstrated by the form contained in the Annex which shows that the intention of the Framework Decision is to confine the evidence that is required to be contained in the EAW to the enforceable judgment etc on which the EAW is based. The rationale for requiring the EAW to contain evidence of the judicial decision on which it is based is that “such evidence enables the authorities of the requested state to be satisfied that there is some judicial basis for the EAW”: see [22] in Jaso.

The sole reason given in Jaso and Zakowski for interpreting article 8(1)(c) as referring to previous EAWs is that the concluding words “within the scope of articles 1 and 2” show that the enforceable judgment etc must refer to an EAW. In our judgment, these words do not justify that interpretation.

First, we make the obvious point that, if it had been intended that the EAW should contain evidence of any previous EAW in respect of the same offence(s), it would have been simple to say so. The term “European arrest warrant” is used throughout the Framework Decision. It would have been sufficient simply to say that the EAW should contain evidence of any previous EAW. Instead, the Framework Decision states that the EAW should contain evidence in accordance with the form contained in the Annex of an enforceable judgment etc coming with the scope of Articles 1 and 2.

Secondly, the use of the alternatives “enforceable judgment, an arrest warrant or any other enforceable judgment having the same effect” is significant. This reflects the different nature of the domestic warrant or other judicial decision which creates the justification under articles 1 and 2 for the issue of an EAW: for example, a domestic warrant of arrest, an authorisation to prosecute, an order for surrender to custody, a sentencing decision or a detention order. Whilst an EAW may properly be described as an arrest warrant or a judicial decision, it is unnecessary to describe an EAW as both in the same sentence, especially in the light of the definition of an EAW in article 1(1) as a “judicial decision issued by a Member State etc”. Since an EAW has already been defined in these terms, there is no point in introducing a different definition in article 8 and it is unlikely that this is what was intended. Furthermore, it is a strained use of language to describe an EAW as a “judgment”.

Thirdly, it is necessary to consider why the enforceable judgment etc is qualified in article 8(1)(c) by the words “within the scope of articles 1 and 2”. In our judgment, these words indicate that the enforcement judgment etc of which evidence is required to be given in the EAW must be of a certain type. To come within the scope of articles 1 and 2, it must satisfy two conditions. First, it must be “for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order” in the issuing Member State (article 1(1)). Secondly, it must be issued in respect of acts which “are punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months…” or be in respect of one of the offences specified in article 2(2) punishable in the issuing Member State by a custodial sentence or detention order for a maximum of at least 3 years. In other words, the scope of articles 1 and 2 is concerned with the purpose for which the enforceable judgment etc was issued (article 1(1)) and the content of the law of the issuing Member State (article 2). It is only an enforceable judgment etc which satisfies the two conditions specified in articles 1 and 2 that can provide a basis for the issue of an EAW. It follows that the words “within the scope of articles 1 and 2” provide no support for the view that the enforceable judgment etc is a previous EAW. On the contrary, they indicate that the enforceable judgment etc must satisfy the two specified conditions of the domestic law of the state of the issuing judicial authority.

Fourthly, as was stated in Jaso, the enforceable judgment etc referred to in article 8(1)(c) must be the judgment etc on which the EAW is based. We repeat that this reasoning has not been challenged. In the paradigm case, an EAW is not based on a previous EAW. As the facts of the two cases that are before us and the facts of Jaso show, in the typical case where successive EAWs are issued in respect of the same offences(s), each EAW replaces the one before. It is difficult to think of a reason why an EAW would be issued where an earlier EAW has been issued in respect of the same offence(s), unless the earlier EAW is defective or for some other reason the issuing state no longer wishes to rely on it. As was stated in Jaso, there is no purpose to be served in requiring an EAW to contain evidence of an earlier EAW which is no longer relied on and on which the later EAW is not based.

On the other hand, there is a good reason why the EAW should contain evidence of the enforceable judgment etc on which it is based: see Jaso at [22]. It enables the executing authority to ascertain that there are criminal proceedings in the requesting state: for example, a warrant for arrest in an accusation case or a judgment in a conviction case. It assists the court in establishing that the preconditions in article 1(1) for the issue of an EAW are satisfied and that the minimum sentence requirements in article 2 are also met. Indeed, the domestic extradition laws of some EU Member States may require an extradition request to be underpinned by a domestic warrant. For example, by section 142(2)(b) of the 2003 Act a judge of the United Kingdom can only issue an EAW if a domestic warrant has already been issued in respect of the offence. The decision on which an EAW is based will only be an EAW in jurisdictions where the EAW can be treated as the enforceable judgment etc. We understand that this is the case in Hungary. But that is not inconsistent with the interpretation that we have adopted, because even in that case the EAW is not based on a previous EAW.

In our judgment, there is no warrant for holding that article 8(1)(c) requires an EAW to contain evidence of an earlier EAW on which it is not based or for holding that it does not require an EAW to contain evidence of the enforceable judgment etc on which the EAW is based.

For these reasons, the challenges to the EAWs in both cases on the grounds that they failed to refer to previous EAWs fail. There was no obligation on the part of the requesting state to included evidence of previous EAWs in either case. They correctly included evidence of the domestic decisions on which the EAW was based. It follows the appeal of Mr Kaba must be dismissed. We now turn to Mr Louca’s other grounds of appeal.

Section 2(4)(c) of the 2003 Act provides that the EAW must contain:

The EAW states the period during which the offences were committed as being “from a few days before the 23^rd of April 2003 till the 8^th of April 2004”. The places at which the offences were committed are described as “Minden, Sekenhausen and other places in the Federal Republic of Germany, including the borders of Germany”.

The circumstances of the case are then described in considerable detail in these terms:

Before the district judge, it was submitted that the warrant failed to give adequate particulars of the place where the offences were committed. Of this complaint, the district judge said:

Mr John Jones makes three submissions. First, the phrase “other places in the Federal Republic of Germany, including the borders of Germany” potentially includes the whole of the Federal Republic of Germany. This provides insufficient particularity of the place or places where the offence or offences were committed.

Secondly, he submits that the district judge erred by, on the one hand interpreting the phrase “and other places in the Federal Republic of Germany” by reference to “the facts of this case”, while at the same time failing to take into account that the “facts of this case” included the fact that in the earlier EAWs, different descriptions of where the offence had been committed had been given. Thus, the first EAW stated that the offence had been committed in Minden, Seckenhausen and other places in the Federal Republic of Germany as well as in Italy, Great Britain and France” (emphasis added). The second EAW stated that the offence had been committed in “Minden, Seckenhausen and other places in the Federal Republic of Germany” (no reference was made to the borders of Germany). In these circumstances, Mr John Jones submits that the district judge should not have considered that the facts of the case could establish with any degree of certainty the meaning of the vague reference to “other places in the Federal Republic of Germany”.

Thirdly, he submits that the district judge failed to deal with the submission in relation to the third offence that the description of it was merely a narrative, lacking any allegation about the participation or conduct of Mr Louca.

For the reasons given by Mr Daniel Jones, we cannot accept these submissions. First, the phrase “Minden, Seckenhausen and other places in the Federal Republic of Germany, including the borders of Germany” should not be read in isolation from the rest of the text of the EAW. It is clear from the description of the circumstances of the case that cigarettes were smuggled into Germany, stored in warehouses in Minden and Seckenhausen and then smuggled out of Germany into the United Kingdom. The offences occurred within Germany. The fact that the EAW does not describe the route by which the cigarettes are alleged to have been smuggled out of Germany does not mean that it does not contain particulars of the place where the offences are alleged to have been committed. In such a case, the requesting authority will often be unable to specify the precise route by which the goods are smuggled out of the country. The district judge reached the right conclusion on this point.

Secondly, the submission that the district judge should have taken account of the differences in the drafting of the earlier EAWs is misconceived. The earlier EAWs had been withdrawn. They cannot assist in determining whether the extant EAW complies with section 2(4)(c) of the 2003 Act. The phrase “the facts of this case” used by the district judge clearly refers to the facts as disclosed by the extant EAW.

Thirdly, the submission that insufficient particulars of the third offence have been provided depends on reading the particulars of the third offence in isolation. It is necessary to read the information contained in the EAW as a whole. The particulars of the third offence are contained in the main body of part E where a description of the way in which all the offences were committed is set out. The difference between this charge and the other 5 charges in that, whilst they relate to consignments of cigarettes which were transported to the United Kingdom, this charge relates to cigarettes that did not leave the warehouse. For that reason, the details of this particular offence are different from the details of the other 5 offences. The offence was, in our judgment, sufficiently particularised.

It was argued before the district judge that the offences were not “extradition offences” within the meaning of section 64 of the 2003 Act. In particular, it was said that the condition in section 64(3)(c) that the conduct was punishable in the requesting state was not satisfied. Reliance was placed on the expert opinion of Professor Dr Joachim Vogel dated 23 July 2008. In his conclusion, Professor Vogel said that, since it was not clear whether the cigarettes reached German territory directly from an EU Member State or a Third State, the German prosecution was not in conformity with various EU instruments. He said that the district judge should “seriously consider” making a reference to the ECJ for a preliminary ruling on these points. At para 15 of the body of his opinion, Professor Vogel said that it was “doubtful whether the German stance is in conformity with European tax, customs and excise duty law in its binding interpretation by the [European Court of Justice]”.

The district judge said that he was satisfied that it was unnecessary and inappropriate for him it seek a preliminary ruling from the ECJ. He was satisfied that the matters raised by Professor Vogel could be properly examined and tested in the course of a trial in the German courts and, if necessary, on appeal. He said that nothing had been advanced by Professor Vogel that was sufficient to rebut the “very strong presumption that the warrant was issued in good faith and on a correct interpretation of the law in Germany”.

In our judgment, the district judge was right to decide as he did. In Dabas v High Court of Justice, Madrid [2007] UKHL 6, [2007] 2 AC 31, Lord Hope said:

Applying those observations, we feel bound to conclude that there was no basis for the district judge to examine the relevant German law to see whether the conditions of section 64(3) of the 2003 Act were satisfied, still less to make a reference to the ECJ with all the delay that would be involved if that were done. As Mr Daniel Jones points out, there is no evidence to show whether rulings of the ECJ are regarded as part of German law or the extent to which German courts regard themselves as bound by rulings of the ECJ. Without such evidence, there is no basis for suggesting that a reference would be capable of resolving an issue of German law. If a reference is required, then it should be made by the German courts. It is not a reason for refusing to extradite.

Section 14 of the 2003 Act provides that:

The passage of time relied on by Mr Loucas is the period of approximately 4 years from the date of the alleged commission of the last offence on 8 April 2004 and the date of his arrest on the first EAW on 9 April 2008. It is said that it was inevitable that it would be oppressive to extradite him by reason of the passage of time. Given his health condition and the potentially lengthy sentence of imprisonment that he would face, he might not see his young children again; the businesses that he ran with his wife would collapse and his family would be reduced to penury. Furthermore, Mr Loucas had already been sentenced in 2005 for a different offence of cigarette smuggling.

The district judge dealt with this issue briefly. He said:

It is submitted that the district judge reached the wrong conclusion on this issue since it was inevitable that it would be oppressive to extradite Mr Loucas. It is also submitted that the district judge failed to take into account the fact that Mr Loucas had been sentenced in 2005. Finally, it is said that the district judge failed to give adequate reasons for his conclusion.

We reject these submissions. The burden was on Mr Loucas to prove, on the balance of probabilities, that it would be oppressive to extradite him, having regard to the passage of approximately 4 years. He had to prove that any oppression resulting from the extradition was causally connected to that passage of time. In our judgment, he failed to do this. If the extradition separates Mr Loucas from his wife and children and/or causes his businesses to collapse, it would have done so had the extradition taken place 4 years earlier. We should add that no evidence was adduced before the district judge to show that, if he were extradited, his businesses would collapse and his family would be reduced to penury. The causal link between the hardship and the passage of time has not been proved. Finally, the fact that Mr Loucas was sentenced in 2005 for a different offence of cigarette smuggling is not evidence that it would be oppressive to extradite Mr Loucas by reason of the passage of time. The district judge dealt with this point briefly. Perhaps he should have given more detailed reasons. But in our view, the case based on section 14 was hopeless for the reasons that we have given.

Mr John Jones relies on the same facts in support of this ground of appeal as he relies on in support of the third ground. It was submitted to the district judge that extradition would constitute a disproportionate interference with Mr Loucas’s right to respect for his family life under article 8 of the Convention. It was said that the request for extradition in this case was the exercise of “exorbitant jurisdiction” on the grounds that the request had such a tenuous connection with the requesting state, Germany. Reliance was placed on the observations of Smith LJ in Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (admin) at [44].

The district judge said:

In our judgment, this ground of challenge is hopeless. There was an obvious and direct connection between the alleged offences and Germany: there was no exercise of “exorbitant jurisdiction” here. As Dyson LJ said in Jaso at [57]: “in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights”. That must also apply in the case of alleged interference with the article 8 rights of an extraditee’s family. The facts of this case are far from striking or unusual. If article 8 could be invoked to prevent extradition in a case such as this, there would be a real danger that the Framework Decision would become a dead letter.

For the reasons that we have given, we reject each of the grounds of challenge and dismiss both appeals.