QUEEN'S BENCH DIVISION
DIVISIONAL COURT
IN THE MATTER OF AN APPEAL UNDER SECTION 26 OF THE EXTRADITION ACT 2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE TOULSON
And
MR JUSTICE GRIFFITH WILLIAMS
Between:
THE JUDICAIL AUTHORITY OF THE COURT OF FIRST INSTANCE, HASSELT, BELGIUM | Claimant/ Respondent |
- and - | |
WARREN BARTLETT | Defendant/ Appellant |
Ms C Montgomery QC and Mr J Hines (instructed by Stokoe Partnership) for the Claimant/Respondent
Mr N Yeo (instructed by CPS HQ) for the Defendant/Appellant
Hearing date: 15 March 2010
- - - - - - - - - - - - - - - - - - - - -
JUDGMENT
Lord Justice Toulson:
Introduction
This appeal is brought under s26 of the Extradition Act 2003 against an order made on 26 November 2009 by Senior District Judge Workman for the extradition of the appellant to Belgium under a European Arrest Warrant ("EAW") issued by Judge Jordens of the Court of First Instance in Hasselt ("the judicial authority").
The appellant's extradition was requested in connection with three offences, namely drug trafficking, being part of a criminal organisation and money laundering.
Judge Workman found that the EAW was a valid accusation warrant in respect of the first and second of these offences, but that it was invalid in relation to the third offence because it lacked sufficient particulars to meet the requirements of s2(4)(c) of the Extradition Act 2003.
The appeal against the extradition order is brought on two grounds. The first is that the appellant has not yet been accused of the offences specified in the warrant and that it has not been issued for the purpose of him being prosecuted for those offences. It is his case that at this stage he is merely wanted by the judicial authority for questioning.
In relation to this ground an issue has arisen as to whether the English court should look behind the language of the warrant and admit extrinsic evidence. The argument on that issue was wide ranging. We were referred to a large number of authorities and to English and other European background material.
The second ground of appeal is that the EAW lacked sufficient particulars in relation to the first and second offences as well as in relation to the third offence.
The judicial authority cross appeals against the district judge's refusal to order the appellant's extradition in relation to the third offence.
The warrant
The EAW is in the form annexed to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States ("the Framework Decision"), which has been transposed into the law of the United Kingdom in part 1 of the 2003 Act.
The EAW begins with the standard statement:
"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
The words "or executing a custodial sentence or detention order" were not applicable in the present case, but it is established on the authorities that the judicial authority's omission to delete the irrelevant alternative does not invalidate the warrant.
Under the heading "Decision on which the warrant is based" and sub-heading "Arrest warrant or judicial decision having the same effect" the EAW stated:
"arrest warrant by default, issued by investigating judge D. JORDENS, court of first instance in Hasselt (Belgium), the 4th of May 2009."
Under the heading "Maximum length of the custodial sentence or detention order which may be imposed for the offence(s)" it stated:
"Illegal possession, importation, exportation and sale of drugs and psychotropic substances, with the aggravating circumstances that the offences constitute actions of participation in the principal or additional activity of an association: imprisonment of 10 to 15 years…
Having been part of a criminal organisation: imprisonment of 5 to 10 years…
Money laundering: imprisonment of 15 days to 5 years…"
The warrant also identified in each case the relevant statutory provision or part of the Belgian penal code. The same information was repeated under the heading "the offences". Under the heading "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", it stated:
"A Belgian criminal investigation has produced serious indications a criminal organisation surrounding [VW, VV] and other persons surrounding them is committing serious and large scale international drug trafficking and money laundering the profits which result from these activities.
The Belgian criminal investigation has produced serious indications, since October 2008, the organisation surrounding [VW] has performed at least 12 large scale narcotics transports to Great Britain. May 6 2009, based on designations from the Belgium police force, the German customs services managed to intercept one of these transports in Germany. It proofed (sic) to be a British lorry having a cargo of 400 kg of amphetamines and 130 kg of cannabis on board. There are indications March 25 2009 and April 15 2009 similar cargoes have been transported to Great Britain.
Resulting several telephone interceptions, the Belgian criminal investigation has produced serious indications that BARTLETT Warren is responsible for passing orders of narcotics to [VV] and is also involved in the transportation of these narcotics.
It also seems he is responsible for the financial handling of the narcotics which are delivered in Great Britain, since the multiple mobile text messages appear to relate to the price that has to be paid and the manor (sic) in which the price has to be paid. He also seems to have close connections to a person nicknamed "Jack", who is responsible for managing the financial interest of the organisation surrounding [VW].
Hence, there are serious indications BARTLETT Warren is part of the British branch of the organisation surrounding [VW and VV] which occupies itself with drug trafficking and money laundering."
Under the heading "other circumstances relevant to the case" the warrant stated:
"Since there are serious indications BARTLETT Warren is part of a criminal organisation which is established and residing in Belgium, and since he has performed actions of participation in the criminal acts which took place in Belgium, by Belgian law the facts of which he is charged can be considered to be committed as a whole on Belgian soil."
Framework Decision
The general scheme of the Framework Decision and the Act is now well travelled ground, but the arguments that have been advanced make it necessary to set out a number of the provisions The preamble to the Framework Decision states:
The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice.
....
The mechanism of the European Arrest Warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in article 6(1) of the Treaty on European Union, determined by the council pursuant to article 7(1) of the said treaty with the consequence set out in article 7(2) thereof."
Article 1 is headed "Definition of the European Arrest Warrant and obligation to execute it". It provides:
The European Arrest Warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this framework decision.
This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union."
Article 2 is headed "Scope of the European Arrest Warrant". It requires the relevant offence to be of a certain level of gravity measured by the maximum possible sentence or the actual sentence in cases where sentence has been passed. Articles 3 and 4 contain mandatory and optional grounds on which the judicial authority of a Member State (the executing judicial authority) shall or may refuse to execute a warrant issued by a judicial authority of another member state.
Article 8 requires the EAW to be in accordance with the form annexed to the Framework Decision. It must contain among other things:
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;
the nature and legal classification of the offence, particularly in respect of article 2;
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."
Extradition Act 2003
Part 1 of the Act provides the scheme by which the Framework Decision is implemented. Section 2 provides:
A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category one territory and which contains –
the statement referred to in subsection (3) and the information referred to in subsection (4), or…
This statement is one that –
the person in respect of whom the part 1 warrant is issued is accused in the category one territory of the commission of an offence specified in the warrant, and
the Part 1 warrant is issued with a view to his arrest and extradition to the category one territory for the purpose of being prosecuted for the offence.
The information is –
particulars of the person's identity;
....
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 the place at which he is alleged to have committed the offence and any provision of the law of the category one territory under which the conduct is alleged to constitute an offence;
Particulars of the sentence which may be imposed under the law of the category one territory in respect of the offence if the person is convicted of it."
Belgium is a category one territory.
Sections 3 to 6 make provision for a person who is the subject of an EAW to be arrested and brought before a court.
Sections 10 and following provide for what is to happen where a person in respect of whom a part 1 warrant is issued is brought before the appropriate judge for the extradition hearing.
As Lord Hope observed in Cando Armas [2005] UKHL 67, [2006] 2 AC 1 at 28, if the EAW does not conform to the requirements set out in s2, it will not be a Part 1 warrant within the meaning of the section and so Part 1 of the Act will not apply to it. At the extradition hearing it is open to the person concerned to argue that the warrant is not a Part 1 warrant, and, if the argument succeeds, he will be discharged.
If the warrant is a Part 1 warrant, i.e. it conforms with the requirements of s2, the judge is required by s10(2) to decide whether the offence specified in the warrant is "an extradition offence". If he decides that it is not, he must order the person's discharge: s10(3). If he decides that the offence specified in the warrant is an extradition offence, he must consider in turn a number of matters set out in the Act, including whether there are any statutory bars to extradition and whether the person's extradition would be compatible with his rights under the European Convention.
Sections 64 to 68 contain interpretation provisions. Because one of the factors which determines the scope of the framework decision is the length of the maximum or actual sentence, the Act provides separate definitions of an extradition offence according to whether or not the person concerned has been sentenced.
Section 64 is headed "Extradition offences: persons not sentenced for offence". Section 65 is headed "Extradition offences: person sentenced for offence". The difference is reflected in the first subsection of the each section. Section 64(1) states:
"This section applies in relation to conduct of a person if –
he is accused in a category one territory of the commission of an offence constituted by the conduct, or
he is alleged to be unlawfully at large after conviction by a court in a category one territory of an offence constituted by the conduct and he has not been sentenced for the offence."
Section 65(1) states:
"This section applies to conduct of a person if-
he is alleged to be unlawfully at large after conviction by a court in a category one territory of an offence constituted by the conduct, and
he has been sentenced for the offence."
The extradition hearing
The district judge in his judgment set out the issues raised by the appellant at the extradition hearing as follows:
"3 Mr Hines on behalf of the defendant challenges the validity of the warrant on two grounds. The first is that the conduct alleged is not sufficiently particularised to meet the requirements of section 2 of the Extradition Act 2003. His second submission is that the defendant is merely a suspect in the Belgian proceedings, and, as he is not an accused, the warrant is not issued for the purpose of conducting a prosecution."
On the second point the judge admitted extrinsic evidence without objection from either party. The appellant called expert evidence, which the judge described as follows:
"The defence called expert evidence and Jorg Burnyndonckx an advocate of the bar of Antwerp specialising in criminal law gave evidence before me. He told me that the warrant for the arrest of the defendant was issued by the Examining Magistrate within the framework of a judicial investigation. He described this as a preliminary phase prior to proceedings on the merits of the case. It was an initial enquiry and not part of a criminal trial. Once that phase has been completed the matter is referred to enquiry court known as Raadkamer. It is at the Raadkamer stage that the defendant would either be discharged or referred to a trial court at which point he would be regarded as an accused. It was the witness's evidence that the investigation stage was still "pre Raadkamer" and that therefore Mr Bartlett was a suspect and not an accused. The Belgian advocate's evidence was very helpful, entirely honest and professionally objective."
The judge said that he had to set that evidence against the evidence that could be deduced from the warrant and from other information contained in a letter dated 12 August 2009 from the Federal Prosecutor's Office and in a letter dated 1 October 2009 from the investigating judge who issued the EAW.
The letter from the Federal Prosecutor's Office, as translated into English, included statements that:
"Mr Bartlett's claim that he is being extradited only to be asked questions, and not because a criminal investigation has been initiated against him, is completely untrue…Mr Bartlett has been charged by means of an arrest warrant by default, which may only be issued if there are serious indication of guilt."
and
"Herewith I can expressly confirm that Mr Bartlett's extradition has been demanded for the purpose of bringing criminal prosecution against him and not only for the purpose of having him interrogated by the Examining Magistrate."
The letter also referred to the interchangeability in practice of various different terms which appear in the English translation as "accused", "suspect" and "defendant".
The district judge described the letter from the investigating judge as "not entirely helpful". The letter concluded:
"The fact that my office issued an EAW against this suspect in itself is already an indication my office feels it to be absolutely necessary to have Mr Warren Bartlett detained, this way achieving this suspect to appear in front of the court who in a later stadium will have to judge the case.
Should Mr Warren Bartlett be extradited to Belgium, as soon as he is on Belgian soil, my office has 24 hours to interview him and to place him under arrest. During this interview, my office is obligated to confront him with the charges made against him and the evidence the investigation has revealed so far."
The district judge noted the contrast between the reference to the defendant as the "suspect" and the reference to "charges made against him". He concluded that the EAW validly sought the extradition of the appellant for the conduct of criminal proceedings, because he was satisfied that the investigating judge only issues a warrant for the arrest and detention of a person once he has resolved that charges are to be preferred, and he was therefore satisfied that charges had been made against the defendant although his prosecution could be discontinued at any stage.
The appeal
The main paragraph of the grounds of appeal reads as follows:
"The warrant is invalid as it does not meet the requirements of section 2 of the Extradition Act 2003 in two respects.
The warrant has not been issued for the purpose of Mr Bartlett being prosecuted for the offence and Mr Bartlett is not accused in the category one territory of the commission of the offence specified in the warrant. The requirements of section 2(3) are not met. On the evidence particularly of Mr Burnyndonckx…but also from the Issuing Judicial Authority itself…it was clear that the appellant was the subject of an ongoing investigation, a suspect who was wanted for questioning by the requesting State. The issue of a European arrest warrant in such circumstances is improper and an abuse of the courts processes.
The warrant sets out insufficient detail of the alleged conduct of the appellant to meet the requirements of section 2(4)(c). In particular it sets out insufficient particulars of the circumstances in which the person is alleged to have committed the offences, including where and when the offence was allegedly committed."
During the period between the judgment of the district judge and the hearing of the appeal, the Divisional Court (Aikens LJ and Openshaw J) gave judgment in Asztaslos v Szekszard City Court Hungary [2010] EWHC 237 (Admin). After an extensive review of the authorities, the court stated at para 38:
The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal.
In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act.
Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.
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.
If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.
Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.
Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
The admissibility of expert evidence
Mr Yeo on behalf of the judicial authority submitted that in the light of Asztaslos the court ought not to look at extrinsic evidence in the present case. He also contrasted the provisions of the 2003 Act with the previous law under the Extradition Act 1989.
Section 1(1) of the 1989 Act provided:
"Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who –
is accused in that state of the commission of an extradition crime…
may be arrested and returned to that state in accordance with those procedures."
The requirement under that Act of showing that the person concerned "is accused…of an extradition crime" was replaced in the 2003 Act by a requirement that the EAW should contain a statement that the person concerned "is accused in the category one territory of the commission of an offence specified in the warrant" and that the warrant is issued with the view to his arrest and extradition "for the purpose of being prosecuted for the offence".
Under the 1989 Act the leading guidance on the meaning of the word "accused" was given by Lord Steyn in Re Ismail [1999] 1 AC 320 at 326-327:
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their enquires". Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state an outline the approach to be adopted. The starting point is that the "accused" in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits it in order to facilitate extradition: R v Governor of Ashford Remand Centre, ex parte Postlethwaite [1988] AC 924, 946-947…
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 of interpretation of an "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…For my part I am satisfied that the divisional court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is "accused" within the meaning of section 1 of Act of 1989 will require an intense focus on the particular facts of each case."
Mr Yeo submitted that the task of the court in the United Kingdom has been simplified under the 2003 Act because it has merely to see whether the EAW contains a statement which complies with s2(3). If so, the court is spared the potentially difficult task of conducting an analysis of the underlying criminal law and procedure of the requesting state in order to determine at what point a person becomes an "accused". Instead it may rely on the statement of the requesting judicial authority.
Ms Montgomery QC submitted on behalf of the appellant that the decision in Asztaslos was per incuriam and wrong, because the court had failed to appreciate the significance of the combined effect of s10(2) and s64(1)(a). A warrant which includes the statements required in s2 is formally valid, i.e. it will constitute a Part 1 warrant, but that in her submission is not the end of the matter. Under s10 the judge has to decide at the extradition hearing whether the offence specified in the warrant is "an extradition offence". In order to determine that question, the judge has to apply the provisions of s64. In the case of a person who has not been convicted, it is a precondition that the court should be satisfied that "he is accused in a category one territory of the commission of an offence constituted by the conduct which constitutes an extradition offence." This requires an understanding of the criminal law and procedure of the requesting state, for which purpose extrinsic evidence is admissible.
In support of her argument Ms Montgomery referred to the speech of Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 at 49-50:
"…a judge conducting an extradition hearing under section 10 of the 2003 Act may find 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 one 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.
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 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."
Ms Montgomery also referred to the European Commission's proposal which led to the Framework Decision, and to other developments in European law relating to the gathering of evidence for criminal proceedings (in particular, the Council Framework Decision of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters), in support of her submission that it was never intended that an EAW should be issued in an accusation case before there was a formal accusation against the person concerned.
I do not consider that the judgment in Asztaslos can properly be dismissed as per incuriam and wrong. Although counsel for the appellant in that case did not advance the argument put forward by Ms Montgomery based on the interplay of s10(2) and s64(1)(a), the court did address the question in para 17:
"How does an English court decide, in the international context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "purposes of being prosecuted" (in the language of section 2(3)(a) and (b)), as opposed to a warrant which requests surrender of the requested person only for an investigation?"
More importantly, I do not consider Ms Montgomery's argument based on s10(2) and s64(1)(a) to be sound.
The issue at which s10(2) is directed is whether the offence specified in the warrant comes within the scope of the Act, not whether the person concerned is an accused person whose surrender is requested for the purposes of prosecution. It is only because the scope of the Act (following the Framework Decision) differs according to whether or not the person concerned has been sentenced that ss64 and 65 contain different definitions of what constitutes an extradition offence. Sections s64(1) and 65(1) provide signposts or introductions to the different definitions which apply according to whether the person concerned has or has not been sentenced.
Sections 7 to 21 set out in sequence a series of decisions which the court must make when dealing with an EAW. Sections 64 and 65 are merely definition sections relevant to the categorisation of offences as extradition offences. I do not read s64(1) as requiring the judge to decide whether a person who is stated in the warrant to be accused of the commission of an offence specified in the warrant is in truth so accused. If that were the intention of the Act, I would expect it to be set out in the sequential list of decisions to be made, rather than being left to be teased out from a definition section.
It is also noticeable that whereas s2(3) requires the EAW to state both that the person concerned is accused of the commission of an offence and that the warrant is issued with a view to his extradition for the purpose of being prosecuted for the offence, s64(1)(a) refers only to him being accused of the commission of an offence. In other words, s64(1)(a) repeats the language of s2(3)(a) but not s2(3)(b). If Ms Montgomery's argument were right, one would logically expect s64(1)(a) to repeat the language of s2(3)(a) and (b). The fact that s64(1)(a) refers only to the person being accused supports the view that the language is simply shorthand for a person who is the subject of the type of EAW commonly called an accusation warrant as distinct from a conviction warrant.
The matter also has to be considered in the context of the Framework Decision and its purpose. Lord Hope said in Cando Armas at 22-23:
"What Part 1 of the 2003 Act provides for, in its simplest form…, is really just a system of backing of warrants. It is designed to enable the persons against whom they are directed to be handed over in the shortest possible time to the requesting authorities. The grounds on which a member state can decline to give effect to the European arrest warrant are…very limited.
But a system of mutual recognition of this kind, such as that which in their relations with each other the three jurisdictions within the United Kingdom have long been used to, is ultimately built upon trust. Trust in its turn is built upon confidence. As recital 10 of the preamble puts it, the mechanism of the European arrest warrant is based on a high level of confidence between member states."
Article 1 of the Framework Decision defines an arrest warrant as including a warrant issued with a view to the arrest and surrender of a requested person for the purposes of conducting a criminal prosecution; and it requires member states to execute an EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. Article 8 requires that the EAW should contain evidence of an arrest warrant within the scope of articles 1 and 2. Whether the person's surrender is being sought for the purposes of conducting a criminal prosecution is a matter peculiarly within the knowledge of the requesting authority. The Act requires the EAW to contain a statement to that effect. If the EAW contains a statement to that effect, it would be inconsistent with the terms of the Framework Decision and the principle of mutual confidence that the United Kingdom court should investigate the matter further.
Lord Hope noted in Cando Armas at 24 that the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision and that the task of statutory construction has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty. There is a linguistic difference between s2(3) and the Framework Decision. As already noted, preamble (5) refers to the surrender of "…suspected persons for the purposes of…prosecution" and article 1.1 refers to "the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution…". The term "accused" does not appear in the Framework Decision. The 1989 Act section 1 referred to a person being "accused", but the Act made no reference to the extradition being for the purposes of conducting a criminal prosecution.
In the 2003 Act the requirement in s2(3)(a) that the person is "accused" of the offence specified in the warrant and the requirement in s2(3)(b) that the warrant is issued for the purpose of prosecution, when read together, emphasise that it is not enough that the criminal investigation has reached a stage where the person concerned merely faces suspicion of having committed an office and that the authorities in the requesting state wish to be able to question him with a view to determining whether there is a sufficient case to put him on trial. The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial. This has to be made clear by the language of the EAW, however it is expressed.
I do not consider that the extracts from paragraphs 49-50 of Lord Hope's speech in Dabas assist Ms Montgomery's argument. Lord Hope made his observations in the context of considering a highly technical question as to the applicability of the "double criminality" provisions of s64(3) in founding jurisdiction to make an extradition order. The point which Lord Hope was making was that an EAW might be valid, in that it complied with the requirements of s2(2), but might contain insufficient information for the court to be able to determine whether the offence specified in the warrant fell within the scope of the Act. I cannot see that it provides a basis for arguing that if the EAW contains a statement complying with the requirements of s2(3), the court has a separate duty to determine by other evidence whether the statement is correct.
Compliance of the warrant with s2(3)
Having rejected Ms Montgomery's argument based on s10(2) and s64(1)(a), I return to consider the issue of the validity of the warrant. Following the judgment in Asztaslos, the first step is to examine the EAW without reference to extrinsic evidence. In my judgment it complies with the requirements of s2(3). It is true that the document does not use the word "accused", but I agree with the observation of Jack J in the High Court in Dabas [2006] EWHC 971 (Admin), [2007] 1WLR 145 at 45:
"If [a person] is wanted for prosecution, and the warrant later describes the offence and sets out its circumstances and gives the statutory provision which he is alleged to have infringed, it is very difficult to see how he can be described other than as "accused" even if there is there no statement using that word. The subject of such a European arrest warrant is clearly more than a suspect or someone who is wanted for questioning."
Those words are apt in the present case. The EAW begins with the pro forma request that the appellant be surrendered for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order, the latter alternative being plainly irrelevant. It proceeds to identify the offences and to state that the Belgian criminal investigation has produced "serious indications" that the appellant is guilty of those offences. It further states that since he has performed actions of participation in criminal acts which took place in Belgium, by Belgian law "the facts of which he is charged" can be considered to have been committed on Belgian soil. We were told on the hearing of the appeal that the word "charged" might equally be translated as "put under suspicion" but, reading the document as a whole, it seems to me to convey unambiguously that it was issued for the purpose of prosecuting the appellant on charges that he has committed three offences and not merely for questioning.
If I am wrong, and the EAW should be considered ambiguous, it was not argued on behalf of the appellant that it should therefore be regarded as invalid. It is the appellant's case that the district judge was right to admit extrinsic evidence but wrong in the conclusion which he drew from the evidence. I consider that the most important piece of extrinsic evidence was the statement of the investigating judge (although the district judge described it as not helpful), because the investigating judge was the author of the EAW. The task of the court is not to carry out an academic comparative law exercise involving an attempt to transpose Belgian criminal procedures into a form which can be correlated with the meaning of "accused" in domestic law. The task is fact specific. In the light of the statements in the investigating judge's letter that his office considers it to be absolutely necessary for the appellant to be detained so that he can appear in front of the court "who in a later stadium will have to judge the case", and that on his extradition the appellant will be arrested and confronted with "the charges made against him and the evidence the investigation has revealed so far", I would conclude that he is not merely a suspect wanted for questioning, but that he is someone who faces an accusation of criminal offences for which his extradition is requested in order for him to be prosecuted.
Compliance of the warrant with s2(4)
As to the adequacy of the information contained in the EAW regarding the particulars of the appellant's alleged offending, the provisions of s2(4) have been considered by the courts on a number of occasions. They have refrained from attempting to lay down a prescriptive formula for determining the degree of detail required. (See, for example, Dyson LJ's observations in Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin) at 21-22, that the language of s2(4)(c) is not obscure and should be given its plain and ordinary meaning, and that it would be unwise to attempt a prescriptive answer to the question how far does the warrant have to go.) The purpose is that the person concerned should know the essence of the offence which he is alleged to have committed, which will include some description of his conduct, where it occurred and over what period. The amount of detail required to achieve this purpose is a matter of degree.
In the present case the district judge said as follows:
I am satisfied that the warrant clearly describes the conduct giving rise to the allegation of drug trafficking. The nature of the conspiracy is described, at least two of the co-conspirators are named, the dates over which the drug trafficking took place are defined, as is the degree of involvement by the defendant. I am satisfied that the description provides the defendant with information as to the offence he [is] said to have committed and the nature and extent of those allegations.
In respect of the allegation of being part of a criminal organisation, Mr Hines submits that is insufficient to rely upon the defendant's association with his alleged co-conspirators and that there is nothing beyond that conspiracy which could define membership of a criminal organisation. It is not appropriate for me to enquire into the meaning within Belgian criminal law of membership of a criminal organisation. I am however satisfied that the Framework List has been ticked and that on the face of the warrant those involved in the conspiracy itself could properly be described as being part of a criminal organisation. The detail contained within the warrant is in my view sufficient to describe that conduct.
The warrant also seeks the return of the defendant in relation to conduct which amounts to money laundering. The relevant part of the description states "It also seems he is responsible for the financial handling of the narcotics which are delivered in Great Britain, since the multiple mobile text messages appear to relate to the price that has to be paid and the manner in which the price has to be paid…" Other than a reference to the term "money laundering" there is no other information as to the conduct which could give rise to that allegation. I do not consider that text messages as to the price of the drugs or how payment is to be made can, without elaboration, describe the offence of money laundering."
I agree with the district judge's conclusion in relation to all three alleged offences. The particulars of his alleged involvement in drug trafficking were succinct but clear. They described the nature of the conspiracy, identified the period of time (including the dates of certain importations) and said that the appellant was involved in passing on orders, in arranging transportation and in passing mobile text messages relating to the price and manner of payment. This was adequate to inform the appellant of the essential nature of the allegations made against him.
The allegation of membership of a criminal organisation was more problematic because, as the district judge correctly observed, it was not for him to enquire into the meaning of that offence in Belgian law. The warrant identified the relevant paragraphs of the penal code. The judge was entitled to conclude that the details which were sufficient to convey to the appellant the essential nature of his involvement in drug trafficking were equally sufficient to convey the essential nature of his involvement in a criminal organisation.
Money laundering is often associated with drug trafficking, but it was necessary for the warrant to state the essential nature of the appellant's involvement in money laundering. About this the warrant was vague. I agree with the district judge that merely being involved in text messages about the price of the drugs and method of payment cannot be said to be a description of money laundering without further information. There was no further information about his involvement in the conduct giving rise to the allegation.
Conclusion
I would dismiss the appeal and cross appeal.
Mr Justice Griffith Williams:
I agree.