Alexander v The Public Prosecutor's Office, Marseille District Court of First Instance, France

This is the judgment of the Court to which both members have contributed. These conjoined appeals are heard together because they raise the same point of principle, namely whether and to what extent further information from an Issuing Judicial Authority [“IJA”] can validate or cure a defect in an accusation European Arrest Warrant [“EAW”] in circumstances where the EAW in question is said to lack some of the particulars required by Section 2 of the Extradition Act 2003 [“the Act”]. These cases fall to be considered in the light of the decision of the Supreme Court in Goluchowski v District Court in Elblag, Poland [2016] 1 WLR 2665, following the decision of the Court of Justice of the European Union [“CJEU”] in criminal proceedings against Bob-Dogi [2016] 1 WLR 4583 (Case C-241/15).

The first EAW [“EAW1”] in respect of this Appellant [“SA”] was issued by the Public Prosecutor’s Office of the Marseilles District Court of First Instance on 10 April 2016. It was certified by the National Crime Agency [“NCA”] on the following day. EAW1 sought extradition of SA in order to prosecute him for ten offences. SA had been arrested under a provisional arrest warrant on 10 April. He was remanded into custody on 12 April and has remained there since. On 28 June 2016, a second European Arrest Warrant [“EAW2”] was issued and it was certified on 7 July. EAW2 relates to the same offending as the tenth offence on EAW1. SA was arrested on EAW2 at Westminster Magistrates’ Court on 8 July.

The extradition hearing took place on 8 July. It seems to be the case that further information in the form of an untranslated letter in French, dated 12 May 2016 but apparently first seen by SA on 8 July, was placed before the Court in the extradition hearing. This gave further particulars of the offences on EAW1. This Court was told that a translated copy of the 12 May document was first served with the Respondent’s Notice in this appeal.

In the course of the extradition hearing, DJ Goldspring was invited by the Respondent to order SA’s discharge in relation to offence 10 in EAW1, to order extradition on offences 1-9 inclusive in EAW1 and to order extradition on EAW2. On 1 August DJ Goldspring handed down a judgment ordering SA’s extradition on all ten offences in EAW1, and not addressing EAW2 at all. Those errors were corrected, following further argument, in an amended judgment handed down on 3 August 2016 in which SA’s extradition was ordered on EAW1 offences 1-9 and EAW2. SA was discharged in relation to offence 10 in EAW1. No issue is taken on the promulgation of two judgments and the appeal is directed to the second judgment.

EAW1, based on a domestic arrest warrant issued on 10 April 2016, specified one course of conduct set out in box E) as follows:

“E)

OFFENCES:

[M083] This warrant relates to, in total, 10 offences

[A042, A043, A044 & A045] 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:

Sean ALEXANDER is suspected of having organised, in the course of 2015 and until April 2016, the purchase of weapons, weapon components and ammunition in the south of France (counties of Var and Alpes-Maritimes) with a view to transferring them, with the assistance of accomplices, to the London region in Britain, where they were to be sold to drug dealing groups and other delinquents. Investigations undertaken in France allowed seizure of handguns hidden in a vehicle travelling towards Britain. Sean Alexander had organised the arrival of this vehicle in France.”

This conduct was the foundation of ten offences, the particulars in EAW1 being given as follows:

“[A040 & A041] Nature and legal classification of the offence(s) and applicable statutory provision/code:

Offences 1 to 6

Unlawfully acquiring, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully acquiring, as part of an organised gang, weapons, ammunition or weapon components classified within category B; Unlawfully possessing, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully possessing, as part of an organised gang, weapons, ammunition or weapon components classified within category B; Unlawfully transferring, as part of an organised gang, weapons, ammunition or weapon components classified within category A; Unlawfully transferring, as part of an organised gang, weapons, ammunition or weapon components classified within category B to persons without a licence to possess firearms.

Offences described and punishable under articles L.311-2, L.312-2, L.314-2, L.314-3 and L.317-12 of the French Homeland Security Code, 132-71 of the French Penal Code and in pursuance of decree no 2013-700 dated 30^th July 2013

Offences 7 and 8

Unlawful transport, by at least two persons, of military hardware, weapons ammunition or weapon components classified within category A; Unlawful transport, by at least two persons, of military hardware, weapons, ammunition or weapon components, classified within category B.

Offences described and punishable under articles L.311-2, L.315-1, L.317-9, L.317-10 and L.317-12 of the French Homeland Security Code and in pursuance of articles 2 and 121 of decree no. 2013-700 dated 30^th July 2013

Offence 9

Participation in a criminal conspiracy with a view to preparing an offence punishable with up to 10 years of imprisonment

Offence described and punishable under articles 450-1, 450-3 and 450-5 of the French Penal Code

Offence 10

Maintaining an unlawful arms depot as part of an organised gang

Offence described and punishable under articles -2, L.317-7 and L.317-10 of the French Homeland Security Code, L.2339-12 of the French Defence Code and 132-9 and 132-71 of the French Penal Code”

The framework offences of participation in a criminal organisation and illicit trafficking in weapons were ticked, and in box (C) it was indicated that the maximum sentence for each of offences 1-9 was 10 years’ imprisonment.

EAW2 was issued to address an acknowledged paucity of particulars in relation to offence 10 (maintaining an unlawful arms depot as part of an organised gang) in EAW1. EAW2, based on the same domestic warrant, and specifying a maximum sentence of 10 years’ imprisonment, gave particulars of the alleged conduct as follows:

“[A042, A043, A044 & A045] 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:

Through physical and technical surveillance, it has been established that the weapons ordered by Sean Alexander, on behalf of criminal groups located in London and its suburbs, were stored in the home of Philippe Alexander, who then handed them over either directly to Sean ALEXANDER or to third parties entrusted with deliveries to Britain (this was the case with Florian MARCONI and Didier LANCELL). The weapons were also stored in the home of a person (in the process of being identified) living in the Paris region, entrusted with concealing them in the vehicle of Marek BARBER. Philippe Alexander has admitted that he served as a weapons depot for Sean Alexander. A Sten submachine gun, two rifles, a pump-action shotgun and a considerable stock of 12-gauge, .22LR and 9mm ammunition were seized in the latter’s home. He confessed that the weapons seized in Barber’s vehicle (handguns – a .357 Magnum, a calibre 6.35, a .45 ACP and a Model 1892 – and a large quantity of ammunition) had been stored in his home.

Storage of weapons and ammunition in the homes of third parties or in secured premises belonging to third parties, on behalf of an arms trafficker, constitutes, for the person in question here, the offence of maintaining an arms depot, this depot being created within the scope of concerted action which called for a distribution of roles.”

It is to be noted that, in contrast to offence 10 in EAW1, EAW2 specified no time or date for the conduct alleged.

The letter from the IJA to the Crown Prosecution Service dated 12 May 2016 was supplied during the proceedings. This letter gave further details of the alleged role and activities of SA relating to the “offence of maintaining an arms depot” – indicating that the home of Philippe Alexander was at Montauroux in the Var. In addition it stated that the vehicle used by Marek Barber was a Fiat Doblo van; gave some further details of the weapons, ammunition etc found in the Fiat Doblo van and of items “found in the course of searches carried out in the county of the Var”; and asserted that SA had organised the arrival of the Fiat Doblo van in France, had himself (in St Maurice in Paris) hidden the weapons and ammunition in the van that were later found in it, and had also (in a Parisian station between 5 & 6 April 2016) taken possession from one of his accomplices of a batch of weapons that had previously been stored at Philippe Alexander’s home.

At the extradition hearing, SA raised arguments based on Sections 21 and 21(A) of the Act. An issue was taken on Section 2, and DJ Goldspring found that both EAWs complied. Nor did the initial Notice of Appeal raise any issue under Section 2. However, when his Grounds were perfected on 23 August 2016, SA formulated the Grounds now relied on.

Following refusal of permission to appeal on paper, permission was granted by Singh J on 7 December 2016, and these two cases were directed to be heard together.

A second letter dated 21 September 2016 containing further information in SA’s case was submitted after SA lodged Grounds of Appeal based on Section 2 of the Act. This letter is the subject of an opposed application by the Respondent IJA to introduce the evidence into the appeal. We admitted this letter de bene esse. The letter gave further details about the offence of maintaining an unlawful arms depot the subject of EAW2, specifying the year 2015 through to April 2016 and indicating that activity took place in several “counties of France, notably in the Var and Alpes-Martimes, and that the last delivery was in the Paris region”. The letter also explained that the categorisation of weapons within offences 1-9 in EAW1 referred to the European classification and definition of categories of weapons established in the Council Directive 91/477/EEC of June 1991 as amended by a further Directive 2008/51/EC – with the acquisition and possession of Category A weapons being prohibited, and the acquisition and possession of Category B weapons being subject to licence. The letter went on to repeat the list of weapons and ammunition seized from the Fiat Doblo van (“driven by Marek Barber on behalf of SA”) and to re-iterate the list of weapons, ammunition etc seized in the course of searches carried out in the county of the Var (indicating that they were found in the homes of Philippe Alexander and Florian Marconi).

The letter continued:

“All these weapons and this ammunition are evidence of offences 1 to 6 and offences 7 and 8, Their acquisition, possession, transfer and transport is prohibited by law and neither SA nor his accomplices held any authorisation provided by law. None of these weapons was registered with the Prefectorial authorities covering their place of residence.

The same applies for the offence of possessing or maintaining an arms depot.

As concerns the transfer of these weapons – for those which were transferred on French territory – none of the above-mentioned persons had any licence to possess weapons and none of them registered any such weapons with the Prefecture covering their place of residence.”

The basis of the application to admit this material, pursuant to the approach laid down in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin), is that since no Section 2 issue was raised before the District Judge, this material should be received in the appeal. Mr Knowles QC for the Respondent submits that:

“Fairness between the parties dictates that the Respondent IJA should be permitted to rely upon evidence in order to meet an argument on appeal which was not raised at first instance and which, had it been raised, would have been resisted on the basis of the evidence now sought to be admitted”.

For reasons which are made clear below, we consider this adjectival argument alongside the principal substantive point raised in the appeal.

The EAW in the appeal of Gianfranco Di Benedetto [“GDB”] is based on an order imposing pre-trial custody issued from the Pre-trial Investigation Judge Division of the Court of Palermo on 9 May 2016. GDB is accused of two offences “committed in Italy since 2014 and … still ongoing”.

The first offence is alleged to be contrary to Articles 110, 416 of the Criminal Code. He is said to be a conspirator with other persons:

“to commit handling, unlawful use of credit cards and money laundering on various occasions, including those mentioned in the counts below. An aggravating circumstance applies because offences are transnational in nature and they have been committed with the contribution of an organised criminal group”

and names are specified. The particulars of offence continue:

“… in particular Mr DI BENEDETTO, in his capacity as a member of the association, took steps to obtain POS terminals necessary to use codes and cloned credit cards in his role as owner of a business called “Mobile Laboratory di Di Benedetto Gianfranco”, and he participated in a number of meetings between members of the association, made his bank account with BNL available for them to let the money go through which money derived from fraudulent transactions obtained from a POS Monte dei Paschi di Siena of a sham car rental company called Noleggiando srl, and he gave his contribution in the commission of the association’s target offences.”

The second offence is alleged to be contrary to Articles 648 bis, 81, paragraph 2 of the Criminal Code:

“….because by several actions in furtherance of the same criminal plan and in a way intended to conceal the origin of the money, he received a sum of €13,135.00 from bank account no. 4242749 opened with a branch of Monte dei Paschi di Siena located in via Galletti no. 41, held in the name of car rental company called “Noleggiando srls” owned by Raffaele VOLPE, and specifically by a bank transfer to a bank account opened with BNL, IBAN IT43X0100504609000000000486, held in the name of Mr DI BENEDETTO himself. These sums of money derive from the offences described in counts 27 and 28 above.

The offences were committed in Palermo on 5, 6, 11, 12, 18 and 28 August 2014.”

The EAW goes on to address legal classification of the offence which is particularised as:

“Participation in a criminal organisation aimed at computer fraud and money laundering.”

Four framework offences are ticked - in that GDB is said to have engaged in “laundering of the proceeds of crime”, “computer-related crime”, “swindling” and “forgery of means of payment”.

The maximum sentence is particularised at box (c) of the EAW as “a term of imprisonment of 12 years”.

GDB was arrested pursuant to the EAW on 22 May 2016 and brought before the Westminster Magistrates’ Court. The extradition hearing took place on 5 August. GDB raised two issues at the extradition hearing: Section 2(4)(d) and Section 12A Extradition Act 2003. The EAW was said to be deficient in that it provided the maximum sentence for one of the offences (albeit that it did not specify which) but not the other. On that day, the Respondent served the further information which made clear that the maximum sentence indicated in box (c) related to the alleged Article 648 bis offence, and that the maximum sentence for the Article 416 cloning offence was five years’ imprisonment.

In the course of argument before DJ Ikram, the Appellant took the point that the maximum sentence for the card cloning offence was absent from the EAW and raised the argument as to whether deficiencies in an EAW may be supplemented with further information. Thus in this case the central issue which is before us was argued below. DJ Ikram concluded that it was permissible to correct deficiencies in an EAW on the basis of further information. On that basis the requirements of Section 2(4)(d) of the Act had been complied with and extradition was ordered.

The Respondent IJA accepts that the maximum sentence for each and every offence outlined in an EAW must be specified: see Taylor v Germany [2012] EWHC 476 (Admin) and Polczynski v Regional Court of Piotrkow, Poland [2013] EWHC 4490 (Admin). Hence, in the absence of acceptance of the further information in GDB’s case contained in the letter of 5 August, it is agreed that EAW would remain deficient, at least in relation to the Article 416 offence.

Ms Malcolm QC for the Appellants concedes that if the further information of 5 August was properly accepted in the case of GDB, then that information filled the lacuna in the otherwise invalid EAW. In the case of SA, Ms Malcolm concedes that if the further information of 21 September 2016 is properly admitted, that is sufficient to fill the lacuna in EAW2 and that the additional particulars provide “sufficient details of offences 1-6 in EAW1”. She does not concede that the further information provides sufficient particulars of the role SA is said to have played in the unlawful transport of weapons, nor as to the identity of the two persons who are said to have transported the weapons. For those reasons, she says offences 7 and 8 are not sufficiently particularised and therefore the appeal should succeed in any event in relation to those offences. Ms Malcolm also submits that the further information of 21 September provides no assistance in relation to offence 9, the charge of conspiracy.

Three Grounds are advanced:

The principal issue concerning further information arises from Grounds 1 and 2.

A single Ground is advanced:

We have attached the relevant passages in the Act and the Framework Decision of 2002 as an Annex to this judgment.

Ms Malcolm QC for the Appellants makes three broad points, which she develops in detail. First, she submits that if further information is generally available to supplement information in EAWs in the way advanced by the IJAs, this runs directly counter to Section 2 of the Act, which defines a “Part 1 Warrant” as a document containing the necessary information. Without the information, the document is not a Part 1 Warrant.

Secondly, she says the Respondent’s position runs contrary to decisions of the House of Lords and the Supreme Court. There was no developed argument in the CJEU when they decided Bob-Dogi. In Goluchowski, when addressing a conviction warrant the Supreme Court followed Bob-Dogi, but did not disapprove of the decision of the House of Lords in Dabas v High Court of Justice, Madrid [2007] 2 AC 31. A narrow interpretation of Goluchowski is appropriate and would be consistent with Dabas, appropriately so since different considerations apply in conviction cases (Goluchowski) as opposed to accusation cases (as here). In this vein she further submits that the amendment of Section 204 of the Act to enable Article 26 alerts to be used supports the Appellants’ stance as, by comparison, did scrutiny of domestic law in relation to the drafting and content of search warrants.

Thirdly, if the Respondents are correct, then the effect will be to encourage many cases where RPs spend considerable periods in custody on the basis of invalid warrants, which may or may not be “validated” by subsequent additional information.

Ms Malcolm begins with the terms of the Act, and from the straightforward submission that a failure to specify in the warrant the particulars of the sentence which may be imposed (GDB), the particulars of the “circumstances in which the person is alleged to have committed the offence” (SA, EAW1) or the date upon which he is alleged to have committed the offence (SA, EAW2) means that all three EAWs here did not satisfy the requirements of the Act, and therefore each did not constitute a “Part 1 warrant” within Section 2 of the 2003 Act. This is precisely the logic of Lord Hope in Cando Armas, as Ms Malcolm acknowledges. If an EAW lacks such particulars, it simply does not exist as a Part 1 Warrant.

The provisions of Section 202 mean that for a warrant to be received in evidence in proceedings under the Act, it must be a valid “Part 1 warrant: in the absence of such a warrant, there are no proceedings under the Act”, and thus the conditions under which further information (“Any other document … if … duly authenticated: Section 202(2)”) may be received do not exist.

Ms Malcolm points out that this line of argument has been applied by the Divisional Court in Vice Prosecutor, France v Charbit [2015] 1 WLR 2359, and earlier by Ouseley J in Pinnick v Court of First Instance, Spain [2013] EWHC 1034 (Admin), both cases relating to Annexes to an EAW. If an Annex cannot make good deficiencies in a warrant then further information could not do so.

Ms Malcolm acknowledges that Goluchowski appeared to overturn this established statutory construction. However, she goes on to submit that, when read as a whole, Goluchowski is confined in its effect. Firstly, the power to receive further information to supplement a warrant exists only where the original failing is one of form not substance. Here she relies upon the passage from paragraph 45 of the judgment of Lord Mance, set out below, where he spoke of the regularisation of a formal, rather than substantive, defect appearing in an EAW.

Ms Malcolm submits that “the boundaries of that distinction were not made clear”. She goes on to question how far such a process may be taken. If all defects in a warrant could be corrected by further information then validity would be a “transient state”, because an invalid warrant could be validated by the provision of further information later in the proceedings. Taken to its logical extreme, any scrap of paper entitled “European Arrest Warrant” would be validated by the provision of further information. Alternatively, formal defects which she presumes might be “inaccuracies or omissions which relate to the underlying antecedent process” may be permissibly clarified, whereas substantive defects may not. Clarification of any kind might be permissible, but not the supply of missing information required for a valid warrant. As a final alternative, Ms Malcolm submits that since the requirements of the Framework Decision and the requirements of the Act are somewhat different, the law might have to recognise that a warrant may properly fulfil the requirements of an EAW but not fulfil the requirements of the 2003 Act, and thus an EAW and a Part 1 warrant should be regarded as “different animals”.

Ms Malcolm further argues that the requirements of an accusation warrant and a conviction warrant are different, and Goluchowski should be taken to affect conviction warrants only.

The requirements of an EAW should not be difficult to fulfil. The system depends on mutual trust between the participating jurisdictions. If “anything will do”, then in short order that may lead to a breakdown in trust between the participating jurisdictions. What if a warrant is left intentionally incomplete? That might not be a malicious step. It might merely be that the requesting judicial authority does not yet know all of the details necessary fully to complete the warrant, but at the same time be anxious for the early arrest of the requested person.

Article 1(3) of the Framework Directive provides that the Framework Decision is expressly subject to Article 6 of the Treaty on the European Union, which in turn enshrines the ECHR and the Charter of Fundamental Rights. Compliance with the Charter is binding on member states when implementing EU law, including when the national court is applying the provisions of national law, adopted to transpose the Framework Decision (see Bob-Dogi, paragraph 34, and Aranyosi and Caldararu [2016] QB 921 paragraph 84). Article 5 of the ECHR and the Directive 2012/13/EU enforcing the Right to Information in Criminal Proceedings (Articles 1, 3, 6) all confirm that the legality of an arrest in the case of an accusation warrant requires the arrested person to know what he is accused of, in sufficient detail for him to take a variety of decisions (including challenging the legality of his arrest; answering questions in interview; applying for bail; tendering an early guilty plea; and in the case of extradition whether to consent to extradition or to seek to prevent extradition by reference to any relevant bar).

Ms Malcolm places reliance upon the observations of Advocate General Bot in the case of Mantello, Case C-261/09:21. In his opinion at paragraph 87, AG Bot emphasised that the implementation of EU law must be carried out in a manner consistent with fundamental rights. At paragraph 21 he noted that:

“Article 8 of the Framework Decision lists the mandatory pieces of information that must be contained in the European Arrest Warrant.”

and at paragraph 90 he stated:

“… the execution of the European Arrest Warrant results in the arrest of the requested person [and] where appropriate his placing in custody for a period of up to 60 days in the executing member state… and finally his forced transfer to the issuing Judicial Authority in another member state.

…

92.

… From the moment that a requested person is the subject of a European Arrest Warrant, his situation is covered by EU law and the execution of that warrant must be consistent with the general principles of law governing the action of the European Union and that of the member states when they implement that law.”

In his opinion in Bob-Dogi at paragraph 50, AG Bot stated:

“The expression “European Arrest Warrant” in my view designates the original instrument … by which the issuing Judicial Authority requests execution of the national decision … and which by means of the mandatory information which it contains, enables the executing Judicial Authority to verify that the warrant actually exists and that it complies with the formal requirements of the framework decision.”

Ms Malcolm submits that the views of AG Bot are worthy of particular respect on such a subject, in that he is the only judge in the CJEU with significant experience in criminal law in his home state prior to his appointment to Luxembourg. Against that background Ms Malcolm relies upon the dicta of AG Bot in paragraph 109 of his opinion in Bob-Dogi, a statement which she submits chimes with the “orthodox” approach laid down by Lord Hope in Dabas:

“109.

The absence of a national legal basis does not constitute a formal irregularity that may be regularised by the use of the cooperation framework provided for in Article 15(2) of the Framework Decision, but a substantive irregularity which disqualified the Act [i.e. the warrant] from being a European Arrest Warrant.”

In drawing her conclusions on this line of argument, Ms Malcolm relies on the answer from the CJEU to the second question in Bob-Dogi, set down in paragraph 67 of the judgment quoted in paragraph 64 below. The question before the Court was whether, where a European Arrest Warrant is “based on the existence of an ‘arrest warrant’”, the executing judicial authority must refuse to give effect to the EAW if there was no pre-existing national warrant: such a defect means that the EAW was “not valid”.

Ms Malcolm submits the practical effect of the interpretation contended for by the Respondents would be extended periods in custody for many Requested Persons, some of whom would in due course prove to have been detained on EAWs which could not be validated. The English process does not in practice adhere to the timetable laid down in the Framework Decision. Requested Persons may wait for long periods before a definitive extradition hearing. If the Courts permit extensions of that time whilst further information is sought, and only possibly obtained, a real evil will have ensued.

Ms Malcolm’s arguments on this principal issue can be summarised as follows. It remains European law that an EAW must contain the necessary information if it is to be a valid warrant. That is consistent with the requirements of the 2003 Act, subject to some variation of detail. As AG Bot made clear in the extracts quoted, European law requires minimum levels of information to be given to an individual before arrest and potential detention. While Bob-Dogi is authority for the proposition that further information may be supplied to support the execution of an EAW, properly understood, Bob-Dogi does not permit further information to supply critical omissions necessary for a valid warrant, but only to resolve ambiguity. The ambiguity should be resolved prior to arrest and should lead to an amendment of the warrant so as to conform with Article 11 of the Framework Decision (and thus the 2003 Act).

We deal below with the specific arguments relating to the individual cases of each Appellant.

Mr Knowles QC begins by emphasising his submission that the existing particulars are sufficient. Again, we address that below.

Mr Knowles submits that, for present purposes, the effect of Goluchowski is to reverse Dabas, although the Supreme Court may have preferred to express it more indirectly. Since Dabas was decided, on 1 December 2014 the United Kingdom has opted back into the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). Both for that reason, and for the reasons set out in Assange v Swedish Prosecution Authorities (Nos 1 and 2) [2012] 2 AC 471, the English Court must, if possible, interpret the 2003 Act consistently with the Framework Decision. It was thus that Lord Mance came to his view in Goluchowski. That case is unequivocal in its reasoning and conclusions. There is no proper basis for distinguishing conviction and accusation cases: moreover Bob-Dogi was itself an accusation case.

Since Bob-Dogi was itself an accusation case, applied by the Supreme Court in Goluchowski, which was a conviction case, there is simply no room for the submission that the change in approach is to be confined to conviction cases. Any consequences in terms of time in custody cannot alter the legal analysis, and may in any event be addressed by other means.

The decision of the CJEU in Bob-Dogi and its application by the UK Supreme Court in Goluchowski represent a sea-change. However gently expressed by Lord Mance, the formerly orthodox approach laid down by Lord Hope in Dabas no longer applies.

The purpose of requiring the Particulars of Conduct pursuant to Section 2(4)(c) of the Act is to inform the Requested Person of the offences he is alleged to have committed, and the nature and extent of the allegations. There must be sufficient information to alert the Requested Person to possible statutory bars to extradition: see Warren Hewitt and Anr v First Instance and Magistrates’ Court No 1, Denia, Spain [2009] EWHC 2158 (Admin) and King v Public Prosecutors of Villefranche sur Saone [2015] EWHC 3670 (Admin). In the latter case, Collins J put the matter as follows:

“18.

…I do not think it is compliant with the approach which Article 8 of the Framework Decision requires. The obligation in section 2(4)(c) to give "particulars of the circumstances in which the person is alleged to have committed the offences" is tautologous and adds nothing to the requirement to give a description of "the circumstances in which the offence was committed" (Article 8(1)(e)). The only distinction between accusation and conviction is that the circumstances are alleged in an accusation case but established in a conviction case. 'Particulars of the conviction' are not necessarily limited since time, place and degree of participation are needed in order for there to be compliance with Article 8. I do not believe that the use of the word 'particulars' in s.2(4)(c) adds anything to the Article 8(1)(e) test and in s.2(6)(b) 'particulars' must extend beyond a mere recital of the conviction. What is needed in all cases is sufficient information to enable any mandatory or optional bar contained in Article 3 and 4 of the Framework Decision to be considered whether by the authority in the executing state or the requested person.”

Thus the purpose of the particulars is functional, and again there is no justification for a different approach as between accusation and conviction warrants.

In the case of conspiracy charges, the requirements of particularity may be less exacting in any event: see Pelka v Poland [2012] EWHC 3989 (Admin).

There is no question that “any old bit of paper” will suffice as an EAW, provided relevant further particulars are furnished in further information. That is to adopt an extreme position. The submission is that where there is a lacuna in the particulars set out in the EAW that may be filled by further information. Any other approach represents an unnecessary formality and is not consistent with Goluchowski.

Indeed the meaning of paragraphs 64 and 65 of Bob-Dogi is that an executing judicial authority must make further enquiries before declining to execute a warrant on the grounds of a lacuna:

“64.

Given that Article 8(1)(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant.

65.

That being so, before adopting such a decision, which, by its very nature, must remain the exception in the application of the surrender system established by the Framework Decision, as that system is based on the principles of mutual recognition and confidence, the executing judicial authority must, pursuant to Article 15(2) of the Framework Decision, request the judicial authority of the issuing Member State to furnish all necessary supplementary information as a matter of urgency to enable it to examine whether the fact that the European arrest warrant does not state whether there is a national arrest warrant may be explained either by the fact that no separate national warrant was issued prior to the issue of the European arrest warrant or that such a warrant exists but was not mentioned.”

The suggestion that Lord Mance in Goluchowski (paragraph 45, see [69] below) intended that further particulars given under Article 15(2) were admissible only to address merely formal defects in an EAW was a misunderstanding. The omission of the prior domestic warrant in Bob-Dogi was fundamental to the validity of the warrant. The CJEU in that case introduced no such qualification, and the Supreme Court should not be understood to have done so, given that they were bringing English law into conformity with European law and with the Framework Decision. In any event, there is no reliable distinction between formal and substantive defects. The failure to specify the date of the offence or the location of the offence might be regarded as formal, since both will be known to the prosecution, and if omitted, will be omitted by oversight. Yet there is no doubt that those particulars are required, and unless supplied, will be fatal to the extradition.

Mr Knowles submits that further information supplied after the extradition hearing should be admitted and should be permitted to cure any defect. We deal below with the importance of this submission in relation to SA. However, this argument is broader in its implications than this case. Mr Knowles argues that there was an obligation on the Requested Person to raise any alleged deficiency in the EAW at least by the time of the extradition hearing. This had not been done here. The point having been raised later, the requesting judicial authority should have leave to rely on further information post-dating the hearing to address the argument now raised, by establishing the validity of the warrant by after-coming evidence.

There are some differences between the Framework Decision and the Act. Article 8 specifies that an EAW shall contain specific information, some of which is not required by the Act (the nationality of the RP, Article 8(a); contact details of the IJA, Article 8(b)). At the same time, the Directive does not contain the formulation in the Act which proved central to the reasoning of Lord Hope in Dabas: that an arrest warrant under Section 2 “is an arrest warrant … which contains” the information specified. It may well be, as Ms Malcolm submitted, that the differences fall to be explained by the fact that the 2003 Act was not crafted with the EAW alone in mind: it was anticipated that the list of category 1 territories would be extended beyond the area of the EAW.

The differences between the Framework Decision and the Act were noted as a source of “difficulty” by the House of Lords in King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1.

It was the specific wording of Section 2 of the Act which grounded the opinion of Lord Hope in Dabas:

“49.

I would add two further observations in response to this question. First, a judge conducting an extradition hearing under section 10 of the 2003 Act may find that 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 1 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.

50.

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 to 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.”

A considerable line of English authority has followed that analysis. A good example is Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324, where Lord Sumption stated:

“8.

It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value. The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct. It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong. If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events. Validity is not a transient state. A warrant is either valid or not. It cannot change from one to the other over time.

9.

It does not, however, follow from this that there is nothing to be done about it if the prescribed particulars in the warrant are or have become incorrect. It only means that the remedy must be found at the stage when the court is considering whether to extradite.”

However, we agree with the Respondents there has been a sea-change since then. The opting back into the Council Framework Decision in 2014 meant that the doctrine laid down by the CJEU in Criminal Proceedings againstPupino [2006] QB 83 applied henceforth in relation to extradition. The principle of interpretation of national law in conformity with Community Law is binding. When applying national law, national courts must interpret that law –

“as far as possible in the light of the wording and purpose of the framework decisions in order to attain the result pursued by [the framework decision]”

Into that altered legal environment fell the two decisions of Bob-Dogi and Goluchowski. The hearing in Goluchowski took place in March 2016, three months prior to the handing down of the decision of the CJEU in Bob-Dogi, on 1 June 2016. Ms Malcolm is therefore correct to say that the meaning and implications of Bob-Dogi were never the subject of oral argument before the UK Supreme Court in Goluchowski. Nevertheless, the latter Court made arrangements for the parties to make written submissions following the judgment of the CJEU, and then proceeded themselves to judgment, without calling for further argument. There is, in our view, no basis for according Goluchowski less than full weight as authority.

The case of Bob-Dogi arose from a procedure under Hungarian law, which provided for the issue of an EAW directly, without the need for a prior national arrest warrant. The case involved an accusation of assault against a Romanian national. He was arrested in Romania. The Romanian Court referred the question of the validity of the EAW, given the particular provision in Hungarian law, to the CJEU. In his erudite opinion, Advocate General Bot advised that an EAW “is not to be confused with the request for arrest for the enforcement of which it is issued” (paragraphs 51 and 72). The absence of a national legal writ “does not constitute a formal irregularity that may be legalised by the use of the cooperation framework … in Article 15(2)”.

The Second Chamber agreed, considering there are fundamental differences between an EAW and a national arrest warrant (judgment paragraphs 51/54). A national arrest warrant was necessary. However, for present purposes, the important point is the process in which the Court engaged, and recommended that an executing judicial authority might engage, in deciding such a point:

“ 67. In the light of the foregoing considerations, the answer to Question 2 is that Article 8(1)(c) of the Framework Decision is to be interpreted as meaning that, where a European arrest warrant based on the existence of an ‘arrest warrant’ within the meaning of that provision does not contain any reference to the existence of a national arrest warrant, the executing judicial authority must refuse to give effect to it if, in the light of the information provided pursuant to Article 15(2) of the Framework Decision and any other information available to it, that authority concludes that the European arrest warrant is not valid because it was in fact issued in the absence of any national warrant separate from the European arrest warrant.”

The Court thus confirmed that further information provided pursuant to Article 15(2) might determine the “fundamental” question of the validity of an EAW. Here too we agree with the submissions of the Respondents.

In Goluchowski, the Supreme Court considered the case of an RP whose return was sought following conviction, sentencing, and the aggregation of sentences. The principal judgment was given by Lord Mance, with whom the others agreed. The Court did distinguish between accusation and conviction EAWs, but did so principally on the basis (important for that case) that in a conviction case, there was no requirement to demonstrate a domestic arrest warrant. The case certified for the Court focussed on that issue:

“… Does the term ‘any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence’ in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski[2014] EWHC 4162 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large?” [see paragraph 2]

Counsel for the Appellants argued that the EAW must contain particulars of a domestic warrant, and of a judicial decision activating a suspended sentence (paragraph 4(1)). It was submitted that the Act “may [have] introduced conditions for surrender more specific or protective than those contained in the Framework Decision” (paragraph 4(iv)).

The Court noted that despite the different requirement in the 2003 Act for the two classes of EAW, the Framework Decision dealt with them together, in Article 8(1). The normal basis of an accusation warrant will be a domestic warrant (paragraphs 24/25), whereas in a conviction case, it will normally be “an enforceable judgment … or judicial decision” (paragraph 26).

In the context of this discussion, considering carefully the two discrete categories of warrant, Lord Mance considered how the requisite requirements might be established:

“38.

I consider that it is clear in the light of the very recent decision in Bob-Dogi that the Court of Justice would not take so austere a view. In that case, box (b) of the EAW was completed in terms indicating on their face that the EAW was relied on as being itself also the national arrest warrant referred to in article 8.1(c). The Court of Justice, having held that an EAW must, in that case (an accusation case) be based on a prior separate national arrest warrant, said at para 64:

“Given that article 8.1(c) of the Framework Decision lays down a requirement as to lawfulness which must be observed if the European arrest warrant is to be valid, failure to comply with that requirement must, in principle, result in the executing judicial authority refusing to give effect to that warrant.”

39.

The better interpretation of para 64 appears to be that article 8.1(c) requires an EAW to evidence on its face a prior separate national arrest warrant in order to comply with article 8.1(c), and that it is not sufficient that such a prior separate arrest warrant actually exists. However, despite the words “shall contain” used by article 8.1 and the language of “requirement” used by the Court of Justice, it is also clear that the Court was not treating the identification on the face of the EAW of a prior separate national arrest warrant as an absolute condition of an EAW’s validity. On the contrary, the executing court was obliged to investigate the underlying factual position further, by requesting further information under article 15. Whether the EAW was to be treated as valid and enforceable would depend not on how it was expressed, but on the underlying factual question whether or not it proved actually to be based on a prior separate national arrest warrant.”

Lord Mance went on to address the argument that “evidence of an enforceable judgment” must encompass “all judicial judgments or decisions by virtue of which the sentence has become enforceable”. He rejected this view, partly because, in cases of concern “it would always be open to an executing state to request further information under Article 15” (paragraph 43). In the instant case, “the bases on which the judgments became enforceable are made clear by the subsequently obtained information” (paragraph 43).

In a passage to which both parties before us have drawn attention, Lord Mance went on to observe:

“45.

Accordingly, even if a reference to the activating decisions should strictly have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot as a matter of European law mean that the EAWs should be treated as invalid or incapable of being executed. That being so, I consider that the same position must once again carry through into section 2(6) of the 2003 Act. Section 202 must be understood as enabling the same sort of cooperation and regularisation of formal, rather than substantive, defects appearing in an EAW that article 15 of the Framework Decision contemplates.”

In considering the decision in Dabas, Lord Mance concluded that the “clear decision” in Bob-Dogi meant that:

“47.

… a requirement for information in an EAW should not be read as a condition, non-compliance with which is by itself fatal to the validity of the EAW, and that the EAW may be enforced if and when separately supplied information establishes a sound factual basis for surrender. In the context of a request for surrender under an EAW and in the light of section 202, I consider that the requirements of section 2(2)(b) read with section 2(6)(b) and (e) can and should be read in a like sense. Lord Hope’s words must be qualified to enable the process of investigation, involving where deemed appropriate a request for and examination of further information, to be undertaken and taken into account, in determining whether an EAW should be given effect under the 2003 Act, in a manner paralleling that indicated by the Court of Justice to be appropriate under the Framework Decision.”

In his short concurring judgment, Lord Neuberger addressed the implications of the decision for the earlier decision of the Court in Zakrzewski. In that case, it will be recalled that Lord Sumption stated that:

“as a general rule the Court of the executing state is bound to take the statements and information in the warrant at face value.” (Zakrzewski paragraph 8)

Lord Neuberger agreed with Lord Mance that those remarks by Lord Sumption:

“… should not be taken as representing some sort of absolute rule that the facts in an EAW must be assumed to be correct … in every case, irrespective of the evidence. Nor were they intended to be so read…” (paragraph 52).

In the event, we conclude that the previous approach to the requirements of an EAW and the role of further information must be taken no longer to apply. The formality of Lord Hope’s approach in Cando Armas, based on the wording of the Act, has not survived. It is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant.

We do not see an easy distinction, in practice, between “formal” and “substantive” requirements of an EAW, despite the remarks of Lord Mance in paragraph 45 of Goluchowski. An EAW requires certain specified information. If that information is not forthcoming, then extradition cannot lawfully be ordered. Are the date, place and nature of the offence, and the question of maximum sentence, to be regarded as “formal” or “substantive” matters? They are required matters. The effect of the two key recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition.

None of this means that extradition can properly be achieved on the basis of a “bit of paper”. In our view, there must be a document in the prescribed form, presented as an EAW, and setting out to address the information required by the Act. An otherwise blank document containing the name of a Requested Person, even if in the form of an EAW, will properly be dismissed as insufficient without more ado. The system of mutual respect and cooperation between states does not mean that the English Court should set about requesting all the required information in the face of a wholly deficient warrant. Article 15(2) expressly concerns itself with “supplementary” information, and can properly be implemented with that description in mind. That will of course include resolution of any ambiguity in the information provided. It will include filling “lacunae”. The question in a given case whether the Court is faced with lacunae or a wholesale failure to provide the necessary particulars can only be decided on the specific facts.

We note the indication in Bob-Dogi, paragraph 65, that a Court has a duty to make further enquiries as to further information before declining to execute a warrant. We accept that there is an obligation on a Court to consider in each case, before ordering extradition, whether the necessary information is present. We accept that, subject to any exception which may arise, an English Court may enquire as to further information, before concluding against extradition. However, a number of other points should be stressed in this context.

At all stages, the principal responsibility for the provision of information required by an EAW lies on the state requesting extradition. That responsibility is not transferred to the English Court considering extradition. Nothing in the Framework Decision or the Act carries any different implication. Nor is the requesting judicial authority relieved of that responsibility because the RP fails to raise the point.

We equally stress that the RP should consider this problem early, and raise any point as soon as possible. Extradition cases are criminal cases to which the Criminal Procedure Rules apply. Requested Persons are participants and must act in accordance with the overriding objective (Crim PR 1.2(1)(a)). They must inform the Court and other parties of any significant failure, whether the fault of the Requested Person or not (Crim PR 1.2(1)(c)). The Requested Person has a duty to inform all other parties of what will be in dispute and any further information which is required (Crim PR 3.3(2)(c)(ii) and (iii)). These obligations should ensure such an issue as this does not arise late.

The Framework Decision sets out time limits for the operation of the system. Article 15(2) provides that a request for supplementary information should be furnished “as a matter of urgency” and by a fixed time limit. Section 204 of the Act provides for the transmission of an arrest warrant, and of information to a designated authority, by electronic means. Good case management, and the Criminal Procedure Rules, should lead to early consideration of whether the requirements of information are met, and where they are not met, for an early request for the necessary further information from the judicial authority seeking extradition, with appropriate, tight time limits. We understand that the practice at Westminster Magistrates’ Court is, when practicable, that compliance with the necessary details will be checked at the initial hearing. This may not always be practicable, so far as the Bench is concerned, if there are many different warrants and/or offences, or if the list is particularly heavy. However, the parties should focus on these questions before and at this hearing, and at the very least consider this question urgently thereafter. In our view this approach is the proper answer to the legitimate concern voiced by Ms Malcolm about time spent in custody by Requested Persons where a failure to provide information leads in due course to discharge.

Information supplied by the Senior District Judge indicates that extradition hearings are now being listed much more speedily than was possible hitherto. There should generally be a lesser risk of long periods in custody before such issues as these can be resolved.

Against that background, we now turn to the specific circumstances in these appeals.

Ms Malcolm underlines that, by reason of the Extradition Act 2003 (Multiple Offences) Order 2003 (SI 2003 No.3150), DJ Goldspring had to consider whether each offence in EAW1 complied with Section 2 of the Act.

Ms Malcolm submits, by reference to the judgment of Cranston J (with whom Richards LJ agreed) in Gilbert Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin) at [7], and the judgments of King J and Moore-Bick LJ in Dhar v The Netherlands [2012] EWHC 697 (Admin) at [81] and [117], that, whilst a balance must be struck between the need for an adequate description to inform the requested person and the object of simplifying extradition procedures, and whilst the amount of detail required may turn on the nature of the offence, the warrant must contain enough information to enable the requested person to understand, with a reasonable degree of certainty, the substance of the allegations against him, in particular when and where the offence is said to have been committed, what he is said to have done and (when dual criminality is involved) the detail must also be sufficient to enable the transposition exercise to take place.

Hence, Ms Malcolm argues, the brief description in Box E) of the circumstances in which the offences were alleged to have been committed (see [5] above) and the particulars of the alleged offences (see [6] above) amounted to no more than the assertion that offences were committed between 2015 and April 2016 in the counties of Var and Alpes-Maritime in France and in London; that SA was suspected of having organised the purchase of weapons, components and ammunition in France with a view to transferring them to London to be sold to drug dealers and others; and that he had organised the arrival of a vehicle into France which had been stopped and in which hidden handguns had been found.

It was not possible from that brief description, Ms Malcolm submits, to discern the conduct representing the first nine offences (the tenth having been discharged for its admitted lack of particularity) and there were insufficient particulars to enable SA to know the nature of the allegations made against him and, with a reasonable amount of certainty, the substance of them. Rather, the particulars of the offences amounted to no more than an impermissible broad omnibus description – see the judgment of Dyson LJ (as he then was) in Peter Van der Phalen v The Government of Austria [2006] EWHC 1672 at [21]. Whilst the point on Section 2(4)(c) was not taken in the court below it was nevertheless incumbent upon the Respondent to satisfy the court that a valid warrant was in existence.

As to offences 1-6, Ms Malcolm submitted that:

As to offences 7 and 8 Ms Malcolm highlights that it was alleged that at least two persons had transported the relevant items, and submitted that therefore it seemed that the offences were outside the actions of the ‘organised gang’ referred to in the particulars in relation to offences 1-6 and that, in any event, there was no clear link to the particulars in the introduction, and therefore no identification of SA’s role in these two offences.

As to offence 9, Ms Malcolm submits that it was notable that it was alleged to be a conspiracy to commit ‘an offence punishable with up to ten years of imprisonment’ but did not identify which, if any, of the nine substantive offences in the warrant (each of which carried a maximum sentence of ten years’ imprisonment) it was concerned with, and nor did it identify the alleged role of SA. In reality, she submits, the particulars were non-existent and / or wholly insufficient.

As already touched on in [24] above, Ms Malcolm concedes that if the further information of 21 September 2016 was properly admitted, it provided sufficient details of offences 1-6. However, she submits that offences 7 and 8 were still not properly particularised, and that the further information provided no assistance at all in relation to offence 9 and that therefore, at the least of it, the appeal should succeed in relation to offences 7-9.

Mr Knowles submits that EAW1 contained the necessary detail to satisfy Section 2(4)(c) of the Act in relation to each of offences 1-9. SA, he argues, clearly knew what he was accused of doing; when he was accused of doing it; where he was accused to doing it; why it was said to breach French law; and what the penalty was for each offence. Thus, in accordance with the authorities (e.g. Hewitt and King – see [51] above) SA had all the information that he needed to raise any of the applicable bars under the Act.

As to offences 1-6, Mr Knowles submits that:

As to offences 7 and 8 Mr Knowles reiterated that SA’s role was expressly specified in box E) as having been the organiser of both the purchase of the weapons and the arrival in France of the vehicle which was used to endeavour to transport them back to the UK – thereby directly linking him to the transport of the weapons. The suggestion that the offences were outside of the actions of the ‘organised gang’ was completely far-fetched and the EAW needed to be read with a sense of realism.

As to offence 9, Mr Knowles submits by reference to [6] of the judgment of Collins J in Pelka (see [52] above) that it was arguable that, in relation to an alleged conspiracy, the requirement of particularity was less exacting. In any event, he further argues that:

In any event, Mr Knowles submits, the District Judge was obliged (or, at least, entitled) to take into account the further information dated 12 May 2016 which (in addition to further details about offence 10) gave details of the guns, ammunition and other items seized from the van driven by Marek Barber and during searches carried out in the county of Var; and further details of SA’s alleged role including his receipt in Paris between 5-6 June 2016 of a batch of weapons previously stored at his uncle’s home in the Var; and that he had both organised the arrival in France of the van driven by Barber; and had himself (in St Maurice in the suburbs of Paris) hidden the weapons and ammunition later found in that van.

As already touched on in [15] above, Mr Knowles further submits that as SA had not raised any Section 2 issue before the District Judge, and by reference to Fenyvesi, the court should receive the further information dated 21 September 2016 – which had been sent in response to the late raising of the Section 2 issue. Unlike Fenyvesi, he submits, this is not an attempt to “have another go”. Had the issue been raised at the proper time the information would have been obtained in order to fill any lacunae that were said to exist – albeit that it was not accepted that any did exist. Hence, he submits, it is only fair to permit the Respondent to rely on it in the appeal.

If the court is not persuaded that the content of the EAW satisfies Section 2(4)(c) then the further information dated 21 September 2016 (which includes a list of the weapons referred to in offences 1-8; confirms that neither SA nor his accomplices held any authorisation provided by law; indicates that the weapons were not registered; and confirms that, in accordance with the classifications established by Council Directive 91/477/EEC as amended, Category A weapons are those whose possession is prohibited and Category B weapons require a licence) can, by reference to Fenyvesi, be considered to be “decisive”.

Ms Malcolm submits that the principles in Fenyvesi (above) apply equally to Respondents seeking to adduce fresh evidence to uphold an appeal – see Elahsmawy v Court of Bressica, Italy [2015] EWHC 28 (Admin) at [82] & [83]. In the court below, the Respondent had borne the burden of establishing to the criminal standard the validity of the warrant and must have been satisfied that the burden was discharged by the information that it chose to put before the District Judge. Hence there is no good reason for the court to exercise its discretion in favour of admitting the further information.

It was for the Respondent to prove that EAW1 complied with Section 2(4)(c) of the Act. No issue was raised in that regard in the court below. DJ Goldspring was satisfied that it did so comply.

The relevant material before DJ Goldspring consisted of EAW1 and the further information dated 12 May 2016 which, although apparently untranslated, was acted upon by both sides without complaint.

The first question that arises is whether, taken in isolation, EAW1 (the relevant content of which is set out in [5] – [7] above) complied with Section 2(4)(c) in relation to alleged offences 1-9.

As to alleged offences 1-8, and applying the principles identified in the combination of Ektor, Dhar, Hewitt and King (all above), we agree with the submissions of Mr Knowles (summarised in [91] – [94] above) that it did. In our view, in relation to those offences, SA had all the information that he needed to raise any applicable bars under the Act. Such exercises must be undertaken with realism, and the EAW made clear (amongst other things) that SA was alleged to be the organiser of a criminal gang engaged in France in the unlawful acquiring, possessing, transferring and transporting of weapons and ammunition (broad details of which were provided – including a submachine gun) with a view to their sale in England to drug dealing groups and other delinquents. This was not, in relation to offences 1-8, an impermissibly broad omnibus description.

Against the background of our analysis (in [57] – [79] above) of the law as it now is, and if we are wrong thus far about alleged offences 1-8, EAW1 nevertheless consisted of a document in the prescribed form, which was presented as an EAW, which set out to address the information required by the Act, and which did not involve a wholesale failure to provide the necessary particulars.

DJ Goldspring was entitled to take the further information dated 12 May 2016 into account. As to offences 1-8, it provided some more detail as to the weapons and ammunition involved, and further detail of SA’s own role – sufficient, if we are wrong in our view as to the EAW viewed in isolation and in combination with it, to comply with Section 2(4) in relation to alleged offences 1-8.

If we are wrong about that, and had the issue about compliance with Section 2(4)(c) been raised before the District Judge (as, in the future, we would expect it to be at an early stage), the Respondent would have been entitled to provide yet further information to fill any lacuna. In all the circumstances, we conclude, applying the principles identified in Fenyvesi and Elashmawy (both above), that this is an appropriate case in which to exercise our discretion to admit the relevant parts of the further information dated 21 September 2016.

It is conceded that, in that event, there are sufficient details of alleged offences 1-6. Even if we have been wrong thus far about alleged offences 7 & 8, we have no doubt that the combination of EAW1 and the two letters providing further information demonstrates compliance with Section 2(4) in relation to them as well.

That leaves alleged offence 9. In our view, when EAW1 and the two letters are combined it becomes clear, as argued by Mr Knowles (see [93] above) that alleged offence 9 asserts a conspiracy to commit all the substantive offences in EAW1, and thus (given that the particulars in relation to alleged offences 1-8 are all sufficient) also complies with Section 2(4).

Therefore, this Ground fails.

Ms Malcolm submits that, self-evidently, EAW2 (which alleges an offence of maintaining an unlawful arms depot and was issued on 28 June 2016 to replace offence 10 in EAW1) fails to provide the date of the offence alleged – as required by Section 2(4)(c). As before, she submits that, while the point was not taken in the court below, it was incumbent upon the Respondent to satisfy the court that a valid warrant was in existence.

That said, as indicated in [24] above, Ms Malcolm concedes that if the further information dated 21 September 2016 is received in evidence, then Section 2(4)(c) is complied with, but again argues that there is no good reason for the court to exercise its discretion in favour of admitting it.

Mr Knowles submits that it is wholly unreal to complain about the absence of the date in EAW2 given that it was expressly issued as a replacement for offence 10 in EAW1, and was known by all parties to be related to the same offending the date of which was specified in EAW1 as being “in the course of 2015 and until April 2016”. Hence EAW2 needs to be read in the light of EAW1, in which event there was no omission of the date of the alleged offending.

In the alternative, Mr Knowles submits that it is appropriate, again by reference to Fenyvesi (above) and his submissions in relation to the first Ground, for the court to exercise its discretion to admit the further information dated 21 September 2016, which would put the matter beyond doubt.

It was for the Respondent to prove that EAW2 complied with Section 2(4) of the Act, and the date of the alleged offence in EAW2 was a required matter under Section 2(4)(c). The date was specified when the same allegation was offence 10 in EAW1, but it was not specified in EAW2. That may explain why no point was taken as to its absence in EAW2, and why DJ Goldspring found that EAW2 complied with Section 2.

That said, and against the background of our analysis of the law as it now is in [57] - [79] above, EAW2 consisted of a document in the prescribed form, which was presented as an EAW, and which set out to address the information required by the Act. It clearly did not involve a wholesale failure to provide the necessary particulars.

Had the issue about the date of the alleged offence been raised before the District Judge (as, in the future, we would expect it to be at an early stage) the Respondent may have sought to argue (albeit whilst inviting the District Judge to order the discharge of offence 10 in EAW1) that the combination of EAW1 and EAW2 meant that there was no lacuna. Equally, in accordance with our analysis, the Respondent may have sought to provide further information to fill the lacuna.

It is not disputed that the further information dated 21 September 2016 does fill the lacuna. It must also be underlined that the date has, in fact, been known to SA since the service on him of EAW1.

In our view, it is not necessary to decide whether the combination of the two warrants could have been relied on because, in all the circumstances, we conclude, applying the principles identified in Fenyvesi and Elashmawy (both above), that this is an appropriate case in which to exercise our discretion to admit the relevant part of the further information dated 21 September 2016 to fill the lacuna – which means, as is conceded, that this Ground fails.

At [6] of his judgment the District Judge said:

“… I have also considered whether the EAW’s discloses extradition offences as required by s.10 EA 2003. I am satisfied that the offences disclosed would amount to offences with this jurisdiction by virtue of the conduct described and would satisfy the relevant statutory sentence requirement and thus are extradition offences.”

At [25] the District Judge recorded that the Respondent had provided further information which set out the weapons involved “sufficient to show that the weapons allegedly trafficked would be firearms as defined by the Firearms Act 1968.”

Against that background, Ms Malcolm submits that it appears that, even though framework offences were ticked in the EAW, the DJ relied on Section 64(3) of the Act to satisfy himself that the offences were extradition offences. He was right to do so, she submits, since some of the conduct appears to have taken place (or the effect was intended to be felt) in this country. The burden is thus on the Respondent to prove, to the criminal standard, that the conduct in the warrant would amount to an offence or offences in this jurisdiction.

Ms Malcolm accepts that the judge was able to look to the further information dated 12 May 2016 to determine whether the conduct in the warrant would have constituted a criminal offence in this country at the material time. She submits, however, that even with that information the DJ could not have been sure, to the criminal standard, that the conduct amounted to extradition offences.

As to offences 1-5 Ms Malcolm underlines that the acquisition of firearms is prohibited under Sections 1 & 5 of the Firearms Act 1968 and, in particular, that Section 5 makes it an offence to possess, purchase or acquire any of the types of firearms listed in Section 5(1) and Section 5(1A). Thus, she submits, offences 1-5 would be criminal offences in this country if the particulars detailed either that the weapons fell within the prohibited list in Section 5(1) and Section 5(1A), or if no-one had certificates for their possession, acquisition or transfer.

Against that background, Ms Malcolm argues that while the further information dated 12 May 2016 provides details of weapons found in Var and in the Fiat Doblo, it is not clear that those weapons were the subject of offences 1-5. Nor is there any information as to the weapons said to have been delivered in Paris. Hence the further information dated 12 May 2016 does not enable the court to be satisfied that the weapons in charges 1-5 fall within the prohibited lists in Section 5 of the 1968 Act.

Nor, Ms Malcolm argues, does the use of the word “unlawful” in the EAW impel the inference that firearms certificates were not in existence – it simply reflects the French offence, whereas the certificate requirement is a requirement of our law. By way of contrast, she points out, offence 6 does specify transfer to a person not holding a licence and is thus an extradition offence.

Whilst the admission of the further information dated 21 September 2016 is again opposed, Ms Malcolm accepts that, if that information is received in evidence, it provides sufficient information about Category A and B weapons, and the lack of any licences or the equivalent, such as to prove that the offences 1-5 would have amounted to criminal offences in this country.

As to offences 7 and 8, Ms Malcolm submits that, as there is no current Order in force under Section 6 of the Firearms Act 1968, there is no equivalent offence of “transporting” military hardware, weapons, ammunition or weapon components. Equally, she argues, to any extent that the conduct alleged could amount to possession of the items, the arguments in relation to offences 1-5 apply with equal force. Further, if anyone was in possession and transporting, it appeared to be Marek Barber, and the particulars of conduct by SA in the EAW were insufficient (if committed in this country) to establish a criminal offence by him.

Ms Malcolm further submits that if it is asserted that one of the offences related to what was found in the Fiat Doblo van, then the EAW did no more than assert that SA had organised the arrival of the van into France which is not, in itself, a criminal offence.

Whilst the information dated 12 May 2016 indicates that SA himself had hidden the weapons in the van, and it is accepted that that could amount to an offence under Section 5(1) of the 1968 Act, it is not, Ms Malcolm submits, clear as to which offence in the EAW that related. Given the insufficiency of the particulars the judge had not been in a position to make findings that the offences were extradition offences.

Further Ms Malcolm argues that even if the further information dated 21 September 2016 is taken into account, it does not alter the position in relation to offences 7 and 8.

As to offence 9, Ms Malcolm submits that it is arguable that, in this country, there is no offence of “conspiracy with a view to preparing an offence”. The particular conspiracy must be identified, and the substantive conduct to which the alleged conspiracy related is not particularised in this case. Hence the District Judge could not have been sure that the conduct in relation to offence 9 would have been an offence in this country. Nor, even if admitted in evidence, did the further information dated 21 September 2016 assist as to this offence.

Mr Knowles submits that this ground is misconceived. The offences are framework list offences and thus fall within Section 64(5) of the Act as constituting extradition offences, and therefore dual criminality does not need to be satisfied. Nor did the fact that the weapons were to be transported to England disapply the framework list via Section 64(5)(a) of the Act. In CandoArmas (above) at [34] – [40] Lord Hope had re-stated the principle that conduct could occur “in” a Category 1 state claiming jurisdiction on a territorial basis if the effect of the “actings” were felt there. He did not say that “actings” committed outside the UK, but in respect of which the effects were intended to be felt here, meant that the “actings” themselves were to be regarded as having been committed in the UK.

In any event, Mr Knowles argues that dual criminality was plainly satisfied under Section 64(3). The alleged conduct in box E) would, if committed here, amount to a number of offences in our law – including possession of prohibited weapons contrary to Section 5 of the Firearms Act 1968 (and conspiracy to do so); and an offence of illegal export contrary to Article 34 of the Export Control Order 2008 (SI 2008/3231) (and conspiracy to commit that offence). Equally, it could readily be inferred that the weapons involved were prohibited, or that possession of them was otherwise unlawful. It is far-fetched to suggest that those involved in smuggling weapons for drug gangs obtained firearms certificates.

It has to be remembered, Mr Knowles argues, that in order to determine whether dual criminality exists the court is concerned with the conduct alleged against the defendant, and not with the elements of the foreign offence. Section 10(2) of the Act does not require consideration of the foreign offences – as made clear by Lord Hope in Cando Armas (above) at [30] and in Dabas (above) at [53].

This Ground can be dealt with shortly. Consideration of Section 10 issues, which were not raised in the court below, must also be approached with realism.

Although DJ Goldspring did not base his finding of compliance on Section 64(5) of the Act, we have no doubt that the offences were framework list offences and thus, under Section 64(5), were extradition offences. We agree with Mr Knowles (see [130] above) that the fact that it was intended to transport the weapons to this country did not disapply the framework list via Section 64(5)(a).

In any event, as to offences 1-5, 7 & 8, the conduct described in EAW1 (which included broad details of the weapons and ammunition involved), if carried out in this country, would clearly amount to serious offences in our law (see e.g. the offences argued for by Mr Knowles in [131] above) such as to satisfy Section 64(3).

If we are wrong about that, it is not disputed that the further information dated 12 May 2016 could be taken into account. In any event, in all the circumstances, we conclude (again applying the principles identified in Fenyvesi and Elashmawy) that this is an appropriate case in which to exercise our discretion to admit the relevant parts of the further information dated 21 September 2016.

In that event, combining the EAW and both sets of further information, it is conceded that the Section 10 issue can no longer be pursued in relation to alleged offences 1-5. However, against the background of our conclusions in relation to Ground 1, we have no doubt, combining all the information and applying the test in Section 64(3) of the Act, that alleged offences 7-9 are also extradition offences, and that therefore (by whichever of the routes that we have identified) DJ Goldspring was right to rule that Section 10 of the Act was complied with.

Hence this Ground of Appeal also fails.

As indicated in [23] above, the Respondent accepts that the maximum sentence for each and every offence outlined in an EAW must be specified.

As also indicated above, the EAW in GDB’s case outlined two offences, but specified only one maximum sentence. The further information dated 5 August 2016 clarified that the specified maximum sentence related to the alleged Article 648 bis offence, and stated the maximum sentence for the alleged Article 416 offence. DJ Ikram held that the further information could be relied on as to the maximum sentence for the latter offence, and that therefore the EAW was a valid Part 1 warrant.

Against that background, Ms Malcolm submits that the District Judge should have concluded that the EAW was invalid in respect of the alleged Article 416 offence, and that he further erred in concluding that the error could be “cured” by the provision of extraneous material.

Ms Malcolm relies on what she submits is the almost identical case of Polczynski v Poland [2013] EWHC 4490 (Admin) - in which (against the background that it was accepted that there could be no return of the Requested Person on the offence for which no maximum sentence was specified in the warrant) it was held that the further information could nevertheless remedy the “ambiguity” as to which of the offences the specified sentence related to.

Thus, Ms Malcolm submits, while the further information permissibly clarified that it is the Article 416 maximum sentence that was not specified, it could not also be used to supplement the EAW so as to comply with Section 2(4)(d) in relation to that offence. Rather, GDB should have been discharged in relation to that offence. However, as indicated in [24] above, Ms Malcolm accepts that, if the further information could be so used, its content filled the lacuna in relation to the Article 416 offence.

Mr Knowles submits that the position in GDB’s case is stark. The maximum sentence for the Article 416 offence could readily be ascertained by a simple reference to the Italian Penal Code. In all the circumstances, it would be “perverse” not to give effect to the EAW via the further information dated 5 August 2016.

It was for the Respondent to prove that the EAW complied with Section 2(4) of the Act. The maximum sentence for each alleged offence was a required matter under Section 2(4)(d) of the Act. The EAW specified only one maximum sentence, but the further information dated 5 August 2016 both clarified that that related to the alleged Article 648 bis offence, and stated what the maximum sentence for the alleged Article 416 offence was.

Polczynski (above), which is relied on by Ms Malcolm, has clearly been overtaken by the developments in the law that we have analysed in [57] – [79] above.

Applying that analysis, this EAW consisted of a document in the prescribed form, which was presented as an EAW, and which set out to address the information required by the Act. It clearly did not amount to a wholesale failure to provide the necessary particulars - but there was a lacuna.

Whilst, in the future, we would expect such a lacuna to have been identified, and (if appropriate) sought to be remedied at an earlier stage, we have no doubt that the Respondent was entitled to rely on the further information dated 5 August 2016 - both to clarify the position as to which of the alleged offences the specified maximum sentence related, and to fill the lacuna as to the maximum sentence for the Article 416 offence. DJ Ikram was thus right to hold both that the further information could be relied on as to the maximum sentence for the alleged Article 416 offence, and that therefore the EAW was a valid Part 1 warrant.

It follows that GDB’s sole Ground of Appeal fails.

For the reasons set out above, these appeals are dismissed.