Harmatos v King's Prosecutor in Dendermond, Belgium

MR JUSTICE LLOYD JONES: This is an appeal by Mr Lazlo Harmatos pursuant to section 26 of the Extradition Act 2003 against the order of District Judge Nicholas Evans ordering his extradition to Belgium.

His extradition is sought by the public prosecution office in Dendermonde, Belgium in order that he may serve a sentence of three years' imprisonment imposed in his absence. The European Arrest Warrant was issued by Deputy Public Prosecutor Ann Soenens on 8th October 2010 and it was certified by the Serious Organised Crime Agency on 13th January 2011.

The appellant was convicted before the Belgian court of six offences that were dealt with in the warrant under different headings. FACT A deals with the offence of belonging to a gang since 16th March 2009. The district judge found that this offence did not qualify as an extradition offence. FACT B states that the appellant entered a property in Zingem on 19th March 2009 and stole a sum of money. FACT D states that the appellant stole a sum of money in Zele on 27th March 2009 and furthermore he was convicted of stealing a number of items on 1st May 2009. FACT E states that the appellant attempted to steal property on 29th April and 3rd May respectively. It is common ground between the parties that the conduct alleged in respect of FACTS B, D and E would constitute an offence had it been committed in England and Wales.

The appellant was arrested on the European Arrest Warrant on 13th January 2011. He was produced before District Judge Grant at the City of the Westminster Magistrates' Court on the same day, when the matter was adjourned. The following day he was brought before District Judge Evans. No issues were taken under sections 4 and 7 of the Act. The appellant did not consent to his extradition and the hearing ended in the appellant being remanded into custody.

On 8th February, the substantive extradition hearing was heard by District Judge Evans and at the end of the hearing the judge reserved his judgment. On 17th February, District Judge Evans handed down his judgment and ordered the appellant's extradition to Belgium in relation to all the offences save that set out in FACT A. The District Judge found that this offence did not qualify as an extradition offence on the ground that it did not satisfy the requirement of double criminality.

The respondent does not appeal District Judge Evans' decision to discharge the appellant in relation to FACT A.

The appellant submits that the respondent is the King's Prosecutor in Dendermonde. On the face of the warrant, he submits, it has not been issued by the judicial authority but by a prosecution authority. On behalf of the appellant, Mr Atlee submits that the Framework Decision permits the prosecution authority to assist the competent judicial authority but not to assume the role of the judicial authority. He says that a prosecution authority is not competent to issue an European Arrest Warrant within the provisions of the Framework Decision.

Preamble 5 to the Framework Decision states that the intention is to abolish extradition between Member States and to replace it by a system of surrender between judicial authorities. It also states that traditional co-operation relations between Member States should be replaced by a free movement of judicial decisions in criminal matters.

Article 1(1) of the Decision states that the European Arrest Warrant is a judicial decision. Article 1(2) states that the Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision.

Article 6 provides in relevant part:

Section 2(2) of the Extradition Act 2003 provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory. Section 2 then sets out the required contents of a valid Part 1 warrant. Section 2 also makes provision for the issue of a certificate and provides:

The authority designated by the Secretary of State for the purposes of Part 1 of the Act is the Serious Organised Crime Agency. It has the power of certifying warrants under section 2 (see the Extradition Act (Part 1 Designated Authorities Order) 2003 SI 2003/3190. On 13th January 2011, the designated authority issued a certificate under section 2 of the Act which certified that the warrant with which we are concerned was issued by the judicial authority of the Category 1 territory which has the function of issuing arrest warrants.

On this first ground of appeal, the appellant submits that the European Arrest Warrant is a judicial decision and the issuing authority must therefore be a judicial authority. While non-judicial authorities may be separately appointed to assist the competent judicial authorities as central authorities, they may not assume the role of a competent judicial authority.

Mr Atlee submits that the Framework Decision has the same binding effect as a directive made under Article 249 of the Treaty on the European Union and he submits that the recognition by the Serious Organised Crime Agency of the respondent prosecution authority as a judicial authority competent to issue this European Arrest Warrant is inconsistent with the implementation of the objectives of the Framework Decision. In particular, he puts his case on the basis of an abuse of process. He points to Tollman (R (on the application of the United States of America) v Senior District Judge Bow Street Magistrates' Court [2006] EWHC 2256 (Admin)) paragraph 84 in the judgment of Lord Phillips. He says that this case satisfies all of the requirements for showing an abuse of process, in that the conduct, that is the recognition of the prosecution agency as a judicial authority contrary to the objectives of the Framework Decision, can be identified with particularity; it is capable of amounting to an abuse of process; there are reasonable grounds for believing that that conduct may have taken place; and the court cannot be satisfied that an abuse has not occurred.

This point was taken below before District Judge Nicholas Evans. He considered that the Serious Organised Crime Agency certificate provided conclusive evidence for the purposes of an extradition hearing that the judicial authority that had issued the warrant before him was indeed the judicial authority of a Category 1 territory which has the function of issuing warrants. He observed:

The respondent submits first that this court has no power under section 27 to deal with this submission of the appellant. Such a challenge, it is submitted by Mr Grandison on behalf of the respondent, can be brought only by way of judicial review or an application for habeas corpus.

Mr Atlee for the appellant accepts that this ground cannot be advanced within the close structure of the Act but invites this court to reconstitute itself as an Administrative Court for the purpose of hearing this ground of challenge. We do so for the purpose of hearing an application for permission to apply for judicial review of the decision of the designated authority to grant this certificate.

We note that a similar argument to that advanced on behalf of this appellant was considered in Enander v Governor of Her Majesty's Prison Brixton, the Swedish National Police Board [2005] EWHC 3036 (Admin). There an objection was taken on behalf of Mr Enander that the Swedish National Police Board was not a judicial authority. The court rejected that submission. At paragraphs 23 to 25, Gage LJ said this:

The approach of the appellant in the present case differs somewhat from that of the appellant in Enander in that here it is submitted that there has been an abuse of process. Mr Atlee has, as I have already indicated, referred to the well-known principles laid down in Tollman. However, this does not seem to us to alter the substance of the application in any way. Furthermore, Mr Atlee seeks to distinguish Enander on the basis that Enander fails to distinguish between the different roles indicated in articles 6 and 7 of the Framework Decision. However, it seems to us that this is not a material distinction and that the passages which I have just cited are expressed in very general terms clearly wide enough to apply to this case.

For the reasons given by the Divisional Court in Enander, I consider that it is not appropriate for this court to embark on an investigation of the status of the requesting authority in its legal system and in particular to consider whether it meets criteria which we, in our domestic legal system, would normally associate with a judicial body. But, in any event, in this case the appellant has produced no evidence whatsoever to support his argument that the respondent is not a judicial authority and that it is not competent to issue European Arrest Warrants under the scheme of the Framework Decision. Mr Atlee asks us to infer from the title of the respondent that it is not a judicial authority. It does not seem to us that this is a legitimate approach. Accordingly, for these reasons, I would refuse permission to apply for judicial review and would dismiss ground 1.

The appellant submits that the European Arrest Warrant is invalid by reason of the insufficiency of its particularisation of the sentence or sentences imposed for the extradition offences.

The warrant in box (c) under the heading "Length of the custodial sentence or detention period order imposed" simply refers to an aggregate sentence of three years' imprisonment. On behalf of the appellant, Mr Atlee points to the fact that the District Judge ordered the appellant's extradition to Belgium in relation to all of the offences of the warrant with the exception of FACT A. On that matter, he was discharged on the ground that it could not be classified as an extradition offence. Mr Atlee submits that the aggregate sentence stated in the warrant therefore no longer meets the requirements of section 2(6)(e) of the Act. He says that the information contained in the warrant does not permit the court to identify with particularity the terms of imprisonment imposed in respect of the offences capable of being extradition offences.

He also submits that, as a result of the discharge of the appellant on FACT A, the conduct alleged in the remaining matters does not constitute an extradition offence or offences within section 65(3)(c).

Section 2(6)(e) provides:

In addition, the Extradition Act 2003 (Multiple Offences) Order 2003 provided for certain modifications to the Act. These modifications include, in paragraph 1(1) of the schedule, a provision in the following terms:

This point was taken before the District Judge on a contingent basis. The District Judge did order the discharge of the appellant on FACT A and then went on to deal with this point. He referred to the decision of the House of Lords in Pilecki v Circuit Court of Legnica, Poland [2008] UKHL 7 and to the judgment of Swift J in Kucera v District Court of Karvina, Czech Republic [2008] EWHC 414 (Admin). He concluded that the aggregate sentence of three years' imprisonment was sufficiently particularised for the purposes of section 2(6) of the 2003 Act.

In Pilecki the question for consideration was whether for the purposes of Part 1 of the Act it has to be shown that the sentence that was imposed in respect of each offence, taken on its own, was at least four months or whether it is sufficient, where the person has been convicted of several offences and an aggregated sentence has been imposed on him, that the aggregated sentence was for four months or a greater period. In that case, further information supplied to the court showed that the appellant had received a variety of sentences for each of the offences of which he had been convicted and that some of the sentences were for periods of less than four months and some were for longer periods.

Lord Hope, with whom the other members of the Committee agreed, referred at paragraph 32 to the decision of the European Court of Justice in Case C-105/03 Criminal proceedings against Pupino [2006] QB 83, where the Court at paragraph 42 laid down the principle that, when applying national law, national courts called on to interpret it must do so far as possible in the light of the wording and purpose of the Framework Decision. He then said at paragraphs 33 and 34:

What then is the position if, as occurred in the present case, one of the offences fails to meet the requirements of section 65(3)(b)? In particular, what is the significance of Lord Hope's words in paragraph 34 "If the other requirements of section 65(3) are satisfied ..."?

Three weeks before the decision in Pilecki, a Divisional Court (comprising Latham LJ and Cooke J) decided Wiercinski v Second Division of the Criminal Circuit in Olsztyn, Poland [2008] EWHC 200 (Admin). There the warrant related to three offences: theft, possession of heroin and failure to maintain a child. The third was not an extraditable offence because it did not satisfy the requirement of double criminality in section 64(3)(b). Latham LJ, with whom Cooke J agreed, said at paragraph 14 of his judgment:

Mr Atlee has drawn to our attention two decisions of the Irish courts which take the same line on this issue as did this court in Wiercinski. Those decisions are of course concerned with the Irish legislation implementing the Framework Decision. In Minister for Justice, Equality and Law Reform v Ferenca [2008] IESC 52, a decision of the Supreme Court on 31st July 2008, Murray CJ concluded that, because it was not possible to disaggregate the sentences in circumstances where one of the offences was not an extradition offence, the offender could not be surrendered for the purpose of serving his sentence. That decision was followed by Denham J in Minister for Justice, Equality and Law Reform v Kizelavicius [2009] IESC 74.

In March 2008, in Kucera v District Court of Karvina, Czech Republic, this court considered the impact of Pilecki in a case where one of the offences which had given rise to the aggregate sentence did not meet the requirements of section 65(3). Swift J, with whom Richards LJ agreed, dealt with the matter in the following way:

The approach adopted in Kucera was also followed by Jackson LJ in Zboinski v Circuit Law Court in Swidnica Poland [2010] EWHC 558 (Admin). This, again, was a case of multiple offences, one of which did not satisfy the double criminality test. Having been referred to Pilecki, Wiercinski and Kucera, Jackson LJ considered first whether this was a Part 1 warrant within section 2(5) and (6). He then turned to consider whether the requirements of section 10 were satisfied and concluded that they were:

In approaching these issues, it is necessary to proceed through the Act in the methodical order indicated by its provisions. As Scott Baker LJ observed in Sonea v Mehedinti District Court [2009] EWHC 89 (Admin) at paragraph 16:

Thus it is necessary to consider first the issue of the validity of the warrant. The court is not at this stage concerned with the question of whether or not the conditions specified in section 65, including double criminality, have been met (see Pilecki at paragraph 33 and Kucera at paragraph 54).

Under section 2(6)(e), the warrant must contain "particulars of the sentence which has been imposed under the law of the Category 1 territory in respect of the offence, if the person has been sentenced for the offence". That provision is modified by the Extradition Act 2003 (Multiple Offences) Order 2003, as I have already indicated.

As modified, section 2(6)(e) requires information to be given of particulars "of the sentence which has been imposed under the law of the Category 1 territory in respect of the offences". The sentence that was imposed under the law of the Category 1 territory in respect of the offences was a sentence of three years' imprisonment. Accordingly, the requirements of section 2(6)(e) are satisfied. The fact that a single sentence was passed in respect of six different offences did not invalidate the warrant (in this regard see Pilecki at paragraph 3).

It is then necessary to move on to consider section 10, which in turns refers to the definition of an extradition offence in section 65(3). Because more than one offence is specified, it is necessary to apply section 10 as modified by the order. The District Judge was required to ascertain whether any of the offences specified in the Part 1 warrant is an extradition offence as defined in section 65(3).

With the exception of FACT A, all of the conduct specified in the warrant would constitute an offence or offences if committed in England and Wales. They satisfy the double criminality test in section 65(3)(b).

However, when one turns to section 65(3)(c), it is not possible to say what specific sentence has been imposed in respect of any specific offence. To my mind this does not lead to the conclusion that the offences are not extradition offences within section 10. I find myself in total agreement with the reasoning of Swift J in Kucera and that of Jackson LJ in Zboinski. In particular, it follows from the reasoning of the House of Lords in Pilecki that it is not necessary to disaggregate the total sentence imposed and to apply it to each specific offence in order to determine whether the sentence imposed in respect of each offence satisfies the test in section 65(3)(c). If the court in Wiercinski had had the advantage of the analysis in Lord Hope's speech in Pilecki, it may not have come to the conclusion that it did. In any event, matters have now moved on and in relation to the specific point which arises for consideration here, I would follow Kucera and Zboinski in preference to Wiercinski.

Accordingly, ground 2 also fails.

For these reasons, I would dismiss the appeal against the order of District Judge Evans made on 17th February 2011.

MRS JUSTICE DOBBS: I agree.

MR ATLEE: I have no applications.

MRS JUSTICE DOBBS: Thank you very much.

MR JUSTICE LLOYD JONES: Thank you.