Magistrates Court No.5 (Spain) v Warne

This is an appeal by the judicial authority ("JA") which in this case is the Magistrates' Court No 5, in Figueres, Spain, from the order of District Judge Rose ("the DJ") on 15 December 2014 in which she discharged Andrew Warne ("the respondent") from a European Arrest Warrant ("EAW") issued by the JA. The ostensible date of the EAW is 7 June 2010 but it is quite clear on the evidence that the DJ accepted that the EAW that was issued on 7 June 2010 was subsequently rejected by the UK authorities. At some stage in about October 2013 the EAW was satisfactorily amended and it was in that form that the EAW was certified by the National Crime Agency ("NCA").

Spain is a category 1 territory for the purposes of the Extradition Act 2003 ("the EA"). Therefore the provisions of Part 1 of that Act apply to the extradition process, including the proceedings before the DJ and this appeal.

The EAW is an "accusation" warrant. For the purposes of the hearing before the DJ it was accepted by the respondent that the requisite formalities of the EAW had eventually been satisfied. Moreover, it was accepted that the offence for which the respondent's extradition was sought, viz. that he was party to a conspiracy to import 2880 kilograms into Spain, is an extradition offence.

The allegation is that the respondent, together with six others, had arranged to purchase, distribute and sell 2880 kilograms of cannabis that were imported to Spain by sea in the summer of 2007 and then transhipped at Malaga into a vessel said to have been owned by the respondent. The vessel sailed northwards to the region of Gerona and moored alongside a property said to have been rented by one of the respondent's co-conspirators. It is said that the drugs were unloaded from the vessel and taken to another house, which was rented by one of the co-conspirators. The vessel was also carrying a VW car said to have been used to hide some at least of the drugs and that the car was found at a house rented by the respondent. I understand that the co-conspirators have all been tried and convicted.

The DJ discharged the respondent on the basis that it would be oppressive to extradite him by reason of the passage of time so that his extradition was barred by virtue of section 14 of the EA. The respondent had also alleged that his extradition would amount to an abuse of the process of the English courts. That argument was rejected by the DJ. Before the DJ the respondent had also raised two further arguments which, it was said, should also bar his extradition. First, it was argued that extradition would not be compatible with the respondent's rights in respect of his private and family life, as safeguarded by Article 8 of the European convention on Human Rights, ("the ECHR"), so that his extradition would be contrary to section 21(A)(1)(a) of the EA as amended by the Anti-social Behaviour, Crime and Policing Act 2014 part 12-section 157(2), which came into force on 21 July 2014. Secondly, it was argued on behalf of the respondent that his extradition would be disproportionate as set out in section 21A(1)(b) and (3) of the EA as amended by the same 2014 Act.

The DJ did not rule on either the Article 8 or the section 21A(1)(b) points, although she did make some findings of fact which would be relevant to them if they should hereafter be so.

The DJ should have decided those issues so that all issues would have been before the court. That is clear from the remarks of Sir John Thomas, President of the Queen's Bench Division (as he then was) in the case of the Ministry of Justice (Romanian Judicial Authority) v Ernest-Francis Bohm [2013] EWHC 1171 (Admin) at paragraphs 21 and 23.

Before the DJ at the extradition hearing there was oral evidence from two witnesses of the NCA, which evidence was given on behalf of the JA. The respondent gave evidence and so did his sister. There was a great deal of written evidence from various individuals who had been concerned with the history of this case since the alleged offence in 2007. We were told that the hearing before the DJ lasted two days. As I understand it, the JA does not challenge any of the primary findings of fact of the DJ, but only the conclusions that have been drawn from those findings.

The case has a very long history but the relevant facts can be stated reasonably shortly for the purposes of this appeal. They are taken from the DJ's findings.

The first attempt at issuing an EAW was made by the Spanish authorities on 7 November 2007. It was rejected by the UK Serious Organised Crime Agency ("SOCA") as not providing sufficient particulars of the alleged offence. Further attempts at providing an amended EAW were rejected by SOCA. A second attempt was made, on 7 March 2008, and there were then further attempts in October 2008 and August 2009. In February 2010, an attempt to resubmit the EAW issued in 2009 was rejected by SOCA for the same reasons of lack of particularity. A further EAW was rejected as being insufficiently particularised in April 2010. A further EAW was issued by the Spanish authorities on 7 June 2010.

Before the DJ the JA asserted that the final date of the EAW was that of 7 June 2010, and that was the EAW that was before the court. In fact, as the DJ found, there were further versions of the EAW and the relevant one was the one received on 15 October 2013, which contained all of the relevant necessary information. That is the EAW that was certified by the NCA that same day. In all, therefore, there were at least seven and possibly ten attempts at providing a satisfactory EAW before that was achieved.

The respondent was arrested on the basis of the certified EAW on 17 December 2013.

What had happened during all of this time from 2007 to 2013? The DJ set out the facts in some detail in a ruling. On 5 August 2009 the respondent applied to the Australian High Commission for a visitor's visa for himself and his seven year old son in order to visit members of his family who had gone to live in Australia. The High Commission for Australia told the NCA that the respondent had applied for a Visa and the UK authorities said that Spain was informed of this. On 20 August 2010 the respondent and his son flew to Australia. Both the NCA and Spain were aware that the respondent was in Australia. The Australian authorities were aware that the respondent was the subject of on Interpol "red notice", however he was not arrested either on his departure from the UK or upon arrival in Australia. Nor was he arrested at any time whilst he was there.

The respondent and his son departed from Australia and intended to return to the UK via Dubai. They arrived in Dubai on 28 August 2009. There the respondent was arrested, apparently in respect of the extradition offence. The son had to fly back to the UK on his own. Since his arrival he has been in the care of his mother. The respondent's son is now aged 11 or 12.

The respondent was kept in detention in Dubai in what appear to have been difficult circumstances. The respondent's evidence at the extradition hearing was that it was the worst thing that had ever happened to him. He was released from custody on bail on about 8 October 2009. There were attempts by the Spanish authorities to have the respondent extradited from Dubai to Spain. However, as the DJ records, a request for his extradition was never made in a form acceptable to the Dubai authorities so that eventually the respondent was freed in February 2010. He could not afford to return to the UK immediately but he did so in May 2010. Upon arrival in the UK he was asked for his address, but was not otherwise detained.

Between the respondent's arrival in the UK in May 2010 and October 2013 there was no communication with him by either the UK or the Spanish authorities. The respondent now has a partner and they have a daughter of two years of age. His partner has an older child. The partner of the respondent works and is not financially dependent upon the respondent. The partner has close family support. The respondent sees his son regularly.

The DJ dealt first with the argument that there had been an abuse of the process of the court by virtue of the issuing of the last, that is either the 7th or 10th, EAW. The judge should not have dealt with that matter first. The structure of Part 1 of the EA is very clear. The court has to consider the bars to extradition in the order as set out in section 11(1). Abuse of process arguments can only be deployed if all other bars to extradition have failed. That is because, as this court has reiterated in the recent decision of Belbin v France [2015] EWHC 149 (Admin), the court's implied jurisdiction to refuse to extradite a requested person under Part 1 of the EA is only a residual jurisdiction which will not be exercised if other bars to extradition are available: see paragraph 51 of Belbin.

Having rejected the abuse of process argument, the DJ went on to consider the argument that the respondent's extradition was barred by virtue of the passage of time. Section 14 of the EA provides:

The DJ recognised that "unjust" in that section is directed primarily to the risk of prejudice to the requested person in the conduct of the proposed trial itself as a result of the passage of time, whereas the word "oppressive" in that section is directed primarily towards the hardship that the requested person will suffer as a result of the passage of time. Because of changes of circumstance that have occurred during that passage of time. However, it is settled law that there is an overlap between the two concepts.

The DJ accepted, as do I, that the respondent has at no time been a fugitive and so can therefore rely upon section 14. The DJ found that there is no evidence to suggest that the respondent could not have a fair trial if extradited to Spain. In fact that possibility is very rarely a realistic one in a Part 1 case, because, as Lord Brown of Eaton-under-Heywood accepted in Gomes v the Government of Trinidad and Tobago [2009] 1 WLR 1038, where extradition to a Council of Europe country or EU country is sought, the trial will be subject to Article 6 of the ECHR and it should be readily assumed that the judicial system of such a state is capable of protecting the accused from an unjust trial, whether by an abuse of process jurisdiction or otherwise; see paragraph 55 of the Gomes case. Therefore in the case of Spain, which is both a Council of Europe and an EU state, that must be the case.

In the same decision Lord Brown emphasised (in the context of section 82 of the EA, which uses the same language as section 14) that "oppression" means more than just hardship which is not enough. Further, Lord Brown emphasised that the test of "oppression" is one not easily satisfied.

The DJ's conclusion was that the passage of time from the date of the alleged offence in 2007 until the certification of the last EAW in October 2013 did cause "oppression". As I understand her judgment, the principal factors that led her to that conclusion were the following: (1) the respondent did not know he was wanted until his arrest in Dubai in 2009; (2) the respondent had a "dreadful experience" in Dubai in terms of his detention, the delays and uncertainty in dealing with his case and in having to leave his young son to make his own way home to the UK; (3) the fact that nothing had happened since his return from Dubai and the respondent "got on with his life" leading him to hope, but not to have a firm belief in fact, that it was "all over"; (4) the establishment of his new family life with a partner and a daughter and his renewed regular contact with his son and (5) the culpable delay of the Spanish JA during the whole period of 2007 to 2013. Despite the fact that a serious offence was alleged, the judge found that there was "oppression" within the terms of section 14.

In making his submissions on the appeal on behalf of the JA, Mr Seifert has referred in his written submissions to a number of authorities on "oppression" in the context of section 14 or section 82. They are, with respect, not much help to us in this case. The leading case is the Gomes case to which I have referred. The key principle is that there must be a passage of time which is such that "by reason" of that passage of time the requested person would suffer either injustice or oppression if extradited. Mr Seifert submits that the DJ did not properly apply the correct test to the facts in this case, or that she did not properly weigh the relevant factors.

Miss Lindfield argues, first, that this court is a court of review in a section 14 case, not one which will rehear and reassess the primary facts. Therefore, she submits, there is only a limited basis on which the DJ's conclusions on section 14 can be challenged. I would, broadly speaking, accept that submission. Thus, in a section 14 case a successful challenge on appeal can in practice generally only be on the basis of (1) an error of law of the judge; (2) a finding of fact which is not one a reasonable judge could make; (3) the judge failed to take into account relevant factors; (4) the judge took into account irrelevant factors or (5) the result was irrational, unreasonable, or perverse or one which was plainly wrong.

Ms Lindfield emphasises what she characterises as the incompetence of the Spanish judicial authority at every turn. She emphasises this incompetence in dealing with the inadequacies of the draft EAWs, in failing to cooperate fully with the UK and Australian authorities and in failing to provide the file of necessary papers to the Dubai authorities when the respondent had been detained there, with the result of such failure being that no extradition from Dubai was possible. Ms Lindfield acknowledges the seriousness of the alleged offence, but submits that the judge took that clearly into account and that the findings of judge were reasonable ones to make and that this court therefore cannot on the facts of this case substitute its own view for the conclusions made by the judge.

I am prepared to accept all of the findings of fact that the DJ made and which she set out very concisely in her judgment. However, for my part I cannot accept her conclusion on section 14. To my mind the key to the judge's error is in the penultimate sentence in her judgment, where it is stated that:

It seems to me that this summary fails to appreciate that an extradition will be only barred under section 14 if there is oppression which is itself "by reason of" the passage of time since the commission of the extradition offence. In other words, the requested person has to satisfy the appropriate judge that there is a proper causal link between that passage of time and the oppression that the requested person claims has resulted from that very passage of time.

Has the passage of time, admittedly long in this case, caused "oppression", which must itself mean a great deal more than just hardship for this respondent? The extradition offence is a serious one, as the respondent acknowledged and as the DJ acknowledged. But there is no question that there would be an unfair trial, as the DJ correctly found. The respondent suffered whilst in Dubai, but none of that was caused by any delay or passage of time itself.

The JA has been guilty of culpable delay over the whole period from 2007 to 2013. However, there is no finding of bad faith on the part of the Spanish authorities and Ms Lindfield expressly accepted that she does not allege any bad faith on their part. Instead, she emphasised that they have shown continued inefficiency and incompetence. Whilst there may be cases in which inefficiency or incompetence could cause "oppression" by reason of the delay that results from such inefficiency or incompetence, it is most unlikely that inefficiency and incompetence will alone create "oppression" unless the requested person was lulled into a false sense of security by those delays so caused. The DJ found that the respondent hoped that the matter was "all over" but she expressly found that he did not and could not assert that he had ordered his life upon some kind of express or implicit understanding that there would be no prosecution for the extradition offence.

The respondent has built a new family life, but in this case that in itself cannot be an oppression by reason of the passage of time in the circumstances of allegations of a serious offence such as this one. Moreover, I agree with the DJ's findings that the family circumstances of the respondent are not unusual in the context of extradition cases. They cannot, therefore, give rise to "oppression" by reason of passage of time. As the judge pointed out, the respondent is not the sole carer for his children, nor the sole financial provider for his family. Extradition might cause hardship by being separated from his family, but that is no more than is the case in many extraditions.

Taking all of these factors together, I have reached the firm conclusion that the judge's decision that extradition would be oppressive "and" is barred by the passage of time was wrong. The DJ should have decided that question differently. It was her decision on that question that resulted in the respondent's discharge. I would therefore allow the appeal on that question, pursuant to section 28 and section 29(1) and (3) of the EA.

The next question is what is to be done about the remainder of the issues that were debated before the DJ: viz. the argument that there were bars to extradition in the form of Article 8 and "proportionality" under section 21A(1)(b) and by virtue of the alleged abuse of process. The judge did not deal with the first two, as I have said, but she found against the respondent on the last.

The respondent has issued a respondent's notice to the appeal by the JA in which the respondent seeks to support the decision of the judge on the issue of section 14, and also asserts that the judge should have concluded that on the facts of this case the incompetence and inefficiency of the JA was such that it would be an abuse of process to permit the respondent to be extradited under the UK process of extradition.

The new Criminal Procedure Rules ("the CPR") which came into force in October 2014 do not specifically deal with respondents' notices or what should or should not be contained in them. The new rules only deal with the issue of permission to amend respondents' notices; see CPR and CPD 17B.19. I respectfully urge that the Criminal Rule Committee considers amending the relevant part of the CPR 2014 to provide a passage dealing with respondents' notices and what they should contain.

The argument of Ms Lindfield on the abuse of process point goes as follows: first, she accepts that there is no question of bad faith in this case. Secondly, she submits that the English court has to ensure that its process is not subject to abuse by a JA that seeks extradition. Thirdly, Miss Lindfield submits that there must come a stage where the actions or inactions of the judicial authority seeking extradition are such that it is an abuse of the English process to allow the matter to proceed. Fourthly, she submits that if there is a complete failure on the part of the requesting JA to follow the advice of the requested authority, ie the English authority in this case, as to what is needed for a valid EAW, then to continue the process once the valid EAW has been produced would constitute an abuse. Her final submission is that an inability or an unwillingness to follow the advice and guidance of the UK authorities that goes on long enough will be such, even if there is eventually a valid EAW, to amount to an abuse of the English court's process if extradition was then to be permitted to continue.

For my part I find it difficult to accept that if the passage of time does not cause oppression or injustice under section 14, then there is an alternative means, as asserted by Ms Lindfield, by which it can be said that there is an abuse of process by the JA of the English court's procedure. Ms Lindfield relied upon two judicial statements in support of her proposition that incompetence or inefficiency could amount to an abuse of process. The first of these were statements by Lord Sumption JSC in the Supreme Court decision of Zakrzewski v the Regional Court in Lodz, Poland [2013] 1 WLR 324 at 9 to 13; the second is the statement of Collins J in Jackowski v the Regional Court in Ostroeka [2012] EWHC 3935 (Admin) at paragraph 14.

In that latter case, Collins J made the following observation:

In the Zakrzewski case, a "conviction" warrant was challenged on the ground that it was invalid because one of the particulars about the sentence had become incorrect since the issue of the EAW as a result of a change in the sentence by the Polish court. Lord Sumption, giving the judgment of the Supreme Court, held that the validity of the EAW could not be challenged by extraneous evidence that showed that although the particulars of the sentence were correct at the time of the issuing of the EAW, they had subsequently become incorrect as a result of the change in the sentence. Lord Sumption went on to remark, however (at paragraph 9 of the judgment) that there were "safeguards against unjustified extradition" in circumstances such as those as had occurred in that case. He described the "first and main" safeguard as being the mutual trust between issuing and executing judicial authorities so that the second could rely upon the first to provide extra information that would correct anything in the EAW that was incorrect; see paragraph 10. The second safeguard, Lord Sumption said, lay in the inherent jurisdiction of the English court as the executing court to ensure that its process was not abused in the context of extradition.

Lord Sumption continued at paragraph 11:

Lord Sumption then stated that "the clearest statement of the principle" was to be found in the judgment of Sir Anthony May, then President of the Queen's Bench Division, at paragraphs 58 and 59 of the case of Criminal Court at the National High Court First Division v Murua [2010] EWHC 2609 (Admin) which had been followed in the High court on a number of occasions subsequently. That case was also concerned with inaccuracies in the particulars of an EAW. Lord Sumption agreed with the remarks of Sir Anthony May but said that was subject to four observations, all of which relate to a case where there is said to have been an inaccuracy in the particulars of an EAW which are both misleading and are material to the warrant.

I have referred to Lord Sumption's remarks at some length because as I read them they are applying to the particular circumstances of Zakrzewski the well established principles laid down in the High Court in the cases of R(Bermingham) v the Director of the Serious Fraud Office [2007] QB 7272; R(Government of the USA) v Bow Street Magistrates' Court [2007] 1 WLR 1157; and Symeou v the Public Prosecutors Office of the Court of Appeal, Patras Greece [2009] 1 WLR 2384. In short, as Lord Sumption states in the Zakrzewski case, the "abuse of process" jurisdiction in the context of extradition is exceptional and the key reason for its exercise is to safeguard the integrity of the English court's process to ensure that it is not "usurped" by the actions of the judicial authority of the issuing state. There appears to me to be nothing in Lord Sumption's remarks that suggest that inefficiency or incompetence on the part of the judicial authority of the issuing state can, of itself, necessarily amount to an abuse of process. However, I do accept that in a very strong case it might be possible to conclude that as a result of incompetence the English court's process was being subverted or abused by the issuing court's authority.

In my judgment the DJ was entitled to conclude that the incompetence of the Spanish authority (and it is only their actions or inactions that can be taken into account, not that of other agencies) did not result in the extradition proceedings being an abuse of process. Moreover in my judgment Ms Lindfield is wrong to suggest that the mere passage of time could itself amount to an abuse of process. The passage of time has to have consequences in the form of injustice or oppression for there to be any legal effect. As already explained, that did not happen in this case.

The Conclusions.

The consequence of my conclusions is that I will allow this appeal. If my Lord Agrees, then pursuant to section 29(5) this case has to be remitted to the judge and she must proceed as she was required to do if she had decided the question under section 14 as I have set out above. The judge will not reconsider the "abuse of process" argument. However, she will have to consider both the Article 8 argument under section 21A(1)(a) and the argument on "disproportionality" under the new section 21A(1)(b). In considering the Article 8 arguments the judge will have to have regard to the principles laid down by the Supreme Court in both Norris and HH, in the light of the facts of this case. When considering the section 21(1)(b) "proportionality" argument, the judge will have to bear in mind the principles set out in the judgment of this court in Miraszewski and Others v the District Court in Torun Poland and another [2014] EWHC 4261 (Admin).

MR JUSTICE POPPLEWELL: I agree.

LORD JUSTICE AIKENS: Mr Seifert.

MR SEIFERT: My Lord, looking at section 29 of the Act it does say at sub-section 8 that -- this is a mere technicality -- if the court allows the appeal --

LORD JUSTICE AIKENS: Sorry, which tab again?

MR SEIFERT: This is tab 28-page 448.

LORD JUSTICE AIKENS: Yes. Did I say 28(5)? I should have said 29(5), shouldn't I?

MR SEIFERT: Yes. So the allowing of the appeal is sub-section 5. Sub-section 7 states that:

And I would clearly invite the court to invite Mr Warne on bail.

LORD JUSTICE AIKENS: Yes. What is the position now? He has not been on any terms at all?

MR SEIFERT: There are conditions of bail. I will have to refresh my memory but I know on previous occasions his bail conditions were relaxed somewhat.

LORD JUSTICE AIKENS: Yes.

MR SEIFERT: My learned friend might have the information more readily at hand but I can assist the court with reminding everybody about his current bail conditions.

LORD JUSTICE AIKENS: Would there be any dispute about the conditions.

MS LINDFIELD: I doubt there will be, Mr Warne has attended today although he doesn't strictly need to and has had his bail condition since his arrest in 2013.

LORD JUSTICE AIKENS: Well, if there is no dispute about them it would be very helpful if counsel can agree on what the form of the order should be and could prepare it and give it to the associate, pass it on, and we will initial it. I think the sensible thing to do is to include in the order what the bail conditions should be.

MS LINDFIELD: Yes.

LORD JUSTICE AIKENS: Good. Anything else?

MR SEIFERT: No, my Lord.

LORD JUSTICE AIKENS: Anything else?

MS LINDFIELD: No.

LORD JUSTICE AIKENS: Thank you both very much indeed for your helpful and concise submissions.