Artola v The 6th Section of the National High Court of Madrid, Spain

On 13 December 2012 at Westminster Magistrates' Court, District Judge Zani ordered the extradition of the appellant to Spain under a European Arrest Warrant ("EAW") issued by Judge Galvez of the 6th Section of the Central Investigative Court of the National High Court in Madrid on an accusation that he was guilty of a terrorist offence. The EAW was issued on 18 February 2004 and certified by the Serious Organised Crime Agency ("SOCA") on 3 August 2012. The appellant was arrested on 8 August 2012.

Spain has been designated under section 1 of the Extradition Act 2003 as a category 1 territory, so that the relevant statutory provisions are those in Part 1 of the Act. In box (b) of the EAW the particulars inserted after the words on the form "Arrest warrant or judicial decision having the same effect" and "Type" were:

The validity of the EAW is challenged by the appellant on different grounds. At the outset of his submissions, Mr Summers reminded the court of the following principles, which are not disputed:

It is submitted first that the EAW did not comply with the formal requirements of section 2(4)(b) of the Act for two reasons. One reason is that the judicial decision dated 25 October 2001 was described as a "writ for an international arrest warrant" and therefore did not satisfy the statutory requirement for an EAW. The other ground of alleged non-compliance is that the document did not identify who issued the writ for an international arrest warrant. If those challenges fail on the face of the EAW, it is alleged that extrinsic material shows that the proceedings are an abuse of process. If the challenges in relation to section 2 fail, it is alleged that the requesting state has not shown that the appellant was guilty of an extradition offence, because the EAW does not establish that his extradition is sought for a framework offence, namely terrorism, nor is the requesting state able to demonstrate to the requisite degree of certainty that the offence for which is extradition is sought satisfies the dual criminality test under section 64(3).

It is well established that this provision has to be read in harmony with the Framework Decision. Article 8.1 of the Framework Decision provides:

Section 2 of the Act provides, so far as material, as follows:

Mr Summers' argument for contending that the description in box (b) "writ for an international arrest warrant" was defective is founded on the judgment of the Supreme Court in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2250. The attack on the validity of the EAW in that case was based on the fact that it had been preceded by two earlier versions, which were no longer relied upon by the prosecution but which were not mentioned in the EAW. The Supreme Court held that the absence of any reference to those earlier EAWs did not render the EAW invalid. Mr Summers submits that the reasoning process demonstrates that the statement in the present EAW about an international arrest warrant was irrelevant and that what was critical was the omission of any identification of a warrant for the appellant's arrest in Spain. The sole judgment of the Supreme Court in Louca was given by Lord Mance. It is not a long judgment, and it upheld the reasoning of Dyson LJ in the Divisional Court, in particular in making the following four points:

The effect, therefore, of section 2(4)(b) is that the EAW must identify the jurisdictional fact which, under the law of the issuing state, provides a legal basis for issuing an EAW within the scope of Articles 1 and 2. By "jurisdictional fact" I mean the legal process which domestic law recognises as a proper foundation for the issue of the EAW. To take a simple building analogy, the EAW must identify the foundation brickwork on which the EAW stands.

I have referred to the words "within the scope of Articles 1 and 2" which appear in Article 8. In his judgment in the Divisional Court in Louca [2008] EWHC 2907 (Admin), [2009] All ER 719, Dyson LJ addressed the significance of the words "within the scope of Articles 1 and 2" which qualify Article 8(1)(c). He said at [24]:

That brings me to the EAW in the present case and the words "writ for an international arrest warrant". The "writ" was issued on 25 October 2001 and so predated the Framework Decision which introduced the international arrest warrant. The word "writ" is clearly not to be construed by reference to English legal process, with which it can hardly be supposed that the issuing judicial authority would have been particularly familiar. In its context I take the reference to a "writ" to be the issue of a document recognised under Spanish law as providing authority for legal process to be taken with a view to obtaining the appellant's arrest abroad for the purposes of extradition to face trial in Spain for terrorism. I cannot see what less it could be. On its face that appears to me to satisfy the requirement of Article 8 which is given effect by Article 2(4). It provided evidence of what I have described as a jurisdictional fact or, in terms of Article 8, 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". It met the fundamental requirement identified by Lord Mance in Louca at [10].

I do not see it as a fatal flaw that the document did not say "international arrest and thereafter his production before the Spanish Court". I accept that the requirements of the Act are to be strictly construed, but that does not require the document to be read in an unrealistically narrow fashion. It would be bizarre to interpret the writ as a document authorising legal process to obtain the arrest of the appellant abroad with a view to his instant release on reaching Spanish soil, rather than the obvious purpose of his production before the Spanish Court to respond to the accusation against him.

If prior authorisation for a person's arrest in his home state is a sufficient foundation for a process to secure his arrest abroad, as is accepted, I see no logic for saying that an authorisation recognised in domestic law as valid for the purpose of taking legal process to secure his arrest abroad cannot be a sufficient foundation under domestic law for an EAW to be valid.

The next part of the appellant's argument is based upon a communiqué sent by the requesting judicial authority to the District Judge dated 14 November 2012. It gave the following additional information about the order made on 25 October 2001:

Mr Summers submitted that this additional information demonstrated that the court on 25 October 2001 made two separate orders: one for the appellant's arrest and detention in Spain, and the other for international process to be taken with a view to securing his arrest abroad. It is clear from the face of the communiqué that the court ordered both matters. (Whether it was in one order or two orders; and, if in one order, whether in one paragraph or two paragraphs, cannot be a decisive matter.) Mr Summers' argument was that, conceptually, there is a critical difference between authorisation of the appellant's arrest in Spain and authorisation of proceedings to obtain his arrest abroad. The first could provide a lawful foundation for the issue of an EAW, but the second could not.

I am unpersuaded that that submission has any underlying principle or justice to commend it. For reasons already given, if process taken under domestic law to obtain the appellant's detention on Spanish soil is a good foundation for the issue of an EAW, it is hard to see why lawful domestic process, which has a wider reach, should not provide the necessary domestic legal foundation for an EAW.

However, Mr Summers faces a further difficulty. He accepts that if he is wrong on his primary position, namely that the EAW was deficient on its face, he cannot rely on the additional material to invalidate the warrant. What he might be able to do is to rely on the extraneous material to support an abuse of process argument, and that is what he seeks to do. The foundation for this approach is identified in the decision of the Supreme Court in Zakrzewski v Regional Court in Lodz, Poland [2013] UKSC 2, [2013] 1 WLR 324. Lord Sumption, in giving the judgment of the Court, recognised that the English Court, as the court asked to execute an EAW, has an inherent right to ensure that its process is not abused. That might encompass a case in which it is demonstrated that the particulars provided in the warrant were wrong. Lord Sumption went on to make the following observations at [13] about the jurisdiction to decline to give effect to an EAW which is valid on its face:

In my judgment, the appellant would in any event fail to clear the first hurdle. The facts as they now appear from the communiqué are that, in October 2001, the court ordered the appellant's arrest and further directed that steps be taken to secure his international arrest. Accordingly, if those full facts had been set out in the EAW, the order for his extradition would indubitably be correct. The court was therefore not misled into making an order which was wrong upon the full facts now known. There would therefore be nothing resembling abuse of process in proceeding to execute the warrant on the full facts as now known.

I turn to the other limb of the argument about the validity of the warrant, namely the absence of an identification of the body which issued the writ for an International Arrest Warrant. Mr Summers submitted that that information was necessary for compliance with section 2(4)(b), which requires "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence". The identity of whoever issued that process is, in his submission, so fundamental that its omission means that there is a fatal defect in the particulars supplied.

There is a sparsity of authority in relation to that topic where accusation warrants are concerned. Mr Summers cited two cases relating to conviction warrants: Sandi v Craiova Court, Romania [2009] EWHC 3079 (Admin) and R(Dennis) v Regional Court in Warsaw (A Polish Judicial Authority) [2010] EWHC 3507 (Admin). In Sandi Hickinbottom J explained how the different purposes of an accusation warrant and a conviction warrant affect the particulars required to be given. He said:

In Dennis Wilkie J quoted parts of the judgment in Sandi in holding that a conviction warrant needed to identify the date of conviction. He also said at [20]:

In his written submissions Mr Summers also referred to Dhar v National Office of the Public Prosecution Service, the Netherlands [2012] EWHC 697 (Admin). In that case the EAW as originally issued contained no details in box (b). It was amended after it was first signed, but before steps were taken to enforce it, by inserting the words "issued by Public Prosecutor GC Bos on 9 June 2011", and the amendment was signed and dated. It was held that the EAW in its amended form was valid. There was no discussion of the question whether it would have been valid without the identification of the Public Prosecutor.

I agree with Hickinbottom J that one cannot simply read across from the requirements of section 2(4) to section 2(6) or vice versa. Mr Summers submitted that if the identity of a convicting court was a fundamental particular, without which a conviction warrant would be fatally flawed, the same must apply, a fortiori, in an accusation case. Mr Lloyd submitted to the contrary. He observed that the proper starting point is the requirements of Article 8, to which section 2 is intended to give effect. He observed that, whereas Article 8(1)(b) requires the name, address, telephone and fax numbers, and e-mail address of the issuing judicial authority, it does not require similar particulars of the body which issued any enforceable judgment or arrest warrant. Article 8(1)(c) uses the more general expression:

Mr Lloyd submitted that the question is whether the totality of the information contained in the EAW satisfied the requirements of section 2(4). I agree with that general approach. As to the facts of this case, he submitted that the EAW told the appellant sufficient to know of the identity of the judicial authority which issued the EAW, the charge which he was facing, the circumstances of the alleged offence, and the issue of the process against him in Spain in order to meet the objectives of Article 8. It is a fact-specific question. I agree with Mr Lloyd's submission. It follows that I would reject the argument that the EAW failed to provide the information required by Article 2 and accordingly was invalid on that ground.

There remains the question whether the EAW properly disclosed an extradition offence. Section 64 of the 2003 Act, so far as material, provides as follows:

In the present case is there a certificate issued by an appropriate authority to show that the conduct falls within the European Framework List? The EAW does so if, as a matter of law, it is capable of operating as such a certificate. I say that it does so, because the original Spanish version had a cross marked against "terrorism" in the list of Framework offences. Before the District Judge it was argued that he should not take account of that fact, but rather should find that there was no adequate certificate because the English translation did not have a cross against the appropriate offence. Before this court Mr Summers has not sought to pursue that point. In my judgment he was plainly right not to do so.

The question which Mr Summers seeks to raise is whether the EAW can itself serve the purpose of being a certificate within the meaning of section 64(2)(b). That question was decided by the House of Lords in Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31. It held that the EAW can itself serve that function. Mr Summers advanced the bold submission that Dabas is no longer the law and that this court should not follow it. He submits that it is inconsistent with the recent decision of the Supreme Court in Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 WLR 1275. Before coming to Assange, and in order to do justice to Mr Summers' argument, it is necessary to say more about the decision in Dabas.

In Dabas the House of Lords held that if the question were being determined simply on the language of the statute and without regard to its international context, the proper answer to the question would be that the EAW could not serve the purpose of being a certificate within the meaning of section 62(2)(b), and that the subsection required a separate certificate. However, a majority was persuaded that the international context required the section to be construed as allowing the EAW itself to operate as the necessary certificate. In so doing, the majority were strongly influenced by the decision of the Court of Justice in Pupino [2006] QB 83, which in their view compelled the UK Court to construe the subsection in such a way as conformed with the objectives of the Framework Decision.

Mr Summers submits that that reasoning can no longer stand in the light of the decision in Assange, where it was recognised by the Supreme Court that the decision of the Court of Justice in Pupino did not have the compulsive effect to which I have referred. Therefore, he says, this court should look at the matter afresh, mindful of the principle stated by Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67, [2006] 2 AC 1 at [24]:

However, it is necessary to observe how the majority of the Supreme Court in Assange approached the earlier reasoning in Dabas. Lord Phillips at [10] said that while the decision in Pupino did not bind the court to interpret Part 1 of the 2003 Act insofar as possible in a manner which accorded with the Framework Decision, he considered that it was plain that the court should do so. Similar observations were made by Lord Brown at 98, Lord Kerr at 112 and following, and Lord Dyson at 122 to 123. I recognise that the context in which those observations were made was different from the context in the present case in that the Supreme Court was concerned with the meaning of the words "judicial authority"; it was not concerned with the issue which confronted the House of Lords in Dabas. Nevertheless, it indicates that, while the Supreme Court has recognised that the House of Lords overstated the effect of the decision of the Court of Justice in Pupino, it does not follow that the contextual considerations are not still highly significant.

In Assange the Supreme Court was not concerned with the question whether the decision in Dabas itself was right. There is no foundation, in my judgment, for saying that it can be inferred that the Supreme Court intended to depart from that decision. This point is reinforced by an observation of Lord Sumption in Zakrzewski at [6], where he said:

If the Court of Appeal finds itself faced with two decisions of the House of Lords or the Supreme Court which are inconsistent, it may be in the unfortunate position of having to choose between them. But that situation only arises when the decisions themselves, as distinct from some of the argument contained in them, are inconsistent. The limitations on a lower court's authority to question decisions of the House of Lords has been considered on a number of occasions, including Broome v Cassell & Co Ltd [1972] AC 1027.

I am quite clear that it cannot be said that the decisions in Assange and Dabas are incapable of standing together and therefore this court is bound by the decision in Dabas. By those remarks I do not mean to imply that I would respectfully consider the decision in Dabas to be wrong. It does not properly arise for the decision of this court, and therefore we did not invite argument from counsel for the requesting state on that issue.

It follows that I would reject the challenge to the District Judge's finding that the EAW validly certified that the appellant is accused of a Framework offence. It is therefore unnecessary to consider the alternative arguments about section 64(3).

I would therefore dismiss this appeal.