Stedman v French Judicial Authority

The appellant, Mr David Stedman, was arrested on 22^nd September 2016 pursuant to a European arrest warrant issued on 21^st July 2016 by the Court of Appeal in Rennes, France and certified in this country by the National Crime Agency on 1^st August 2016.

On 15^th March 2017, following a trial in the Westminster Magistrates' Court, District Judge (Magistrates' Courts) Ashworth concluded that there were no bars to extradition and that extradition was proportionate and necessary. He therefore ordered the appellant's extradition to France in respect of eight offences.

The appellant now appeals against that decision by leave. His appeal is brought pursuant to s.26 of the Extradition Act 2003. By s.27 of that Act, this court's powers are as follows:

The European arrest warrant was a conviction warrant which sought the return of the appellant to serve the remaining four years, one month and twelve days of a total sentence of five years for drug trafficking offences. The European arrest warrant - which was, of course, in the French language in its original - was in the usual form. It gave the appellant's name, date and place of birth. It stated that his address was unknown.

In a section headed "Decision on which the warrant is based", it referred to:

The warrant went on to identify the maximum sentence for the offences as one of ten years' imprisonment, the length of the sentence imposed as five years' imprisonment and the remaining sentence to be served as I have indicated. The warrant further recorded that the appellant had been summoned to his trial. He had chosen not to attend, but had been represented by his French lawyer.

In section E of the English translation of the European arrest warrant, the following appears:

Section E of the warrant contained a further heading "Nature and legal classification of the offences and the applicable statutory provisions/code". That section of the form had been left blank.

The warrant then went on to set out the list of categories of offence recognised by the Framework Decision. The entries for participation in a criminal organisation and illicit trafficking in narcotic drugs and psychotropic substances were ticked. In addition, the following appeared at the end of the list:

The remainder of the European arrest warrant contained further particulars which I need not read.

In the French original of the European arrest warrant, section E similarly referred to nine offences. It contained a similar summary of the conduct relied on. In contrast to the English translation, however, the nature and classification of the offences was set out. This listed the nine offences by their French language descriptions and set out the relevant provisions of the French penal code. The framework list was then completed in the same way as in the English translation.

In supplementary information recorded in form A in the English language, a similar description of the circumstances was given and the legal description of the nine offences was also given. This latter description is an English translation of the nine offences described in the French European arrest warrant, as follows:

Before the hearing in the Magistrates' Court, the judicial authority provided further information in the form of a number of certified translations of documents from the files of the relevant French courts.

From these it can be seen that on 25^th January 2012 the appellant was convicted and sentenced by the Criminal Division of the High Court in Rennes for eight offences. He was not convicted of the ninth of the offences mentioned in the European arrest warrant, that being the unauthorised purchase of narcotic drugs. The appellant appealed to the Court of Appeal in Rennes. That appeal was dismissed on 14^th May 2013. He exercised his right of a final appeal to the Court of Cassation in Paris, but on 30^th October 2013 that appeal was also dismissed.

As the District Judge noted early in his judgment, the requesting judicial authority, represented before the court by counsel instructed by the Crown Prosecution Service, only sought extradition in relation to eight offences. It did not seek extradition on a charge of unauthorised purchase of narcotic drugs.

A number of issues were argued before the District Judge. The District Judge refused an application on behalf of the appellant to adduce expert evidence. He rejected a challenge to extradition based on the appellant's Article 8 rights. Those decisions are not challenged in this appeal and I need say no more about them.

The three issues which are raised on appeal are stated as follows in the amended grounds of appeal:

As to the requirements of s.2, the District Judge referred in his judgment to a dictum of Collins J in King v Public Prosecutors of Villefranche sur Saone [2015] EWHC 3670 (Admin), to which I will return. He noted that the English version of the EAW gave no breakdown of the nine offences, but that the French original did set out the nature and classification of those offences in a section which had not been translated into the English.

He summarised the submissions made on each side. On the first issue, he expressed his conclusion in the following terms:

As to the second issue relating to abuse of process, the District Judge summarised the decision of the Supreme Court in Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324, to which also I will return. He summarised the submissions of the parties and expressed his conclusion as follows. Having declined to admit the expert evidence on which the defence had sought to rely, he had no evidence before him upon which the abuse argument could be established. He added, however:

As to the third issue, the District Judge held that he was satisfied so as to be sure that the eight offences identified in the papers all related to different aspects of criminality in the conduct described in the warrant, namely the trafficking of 327 kilograms of cannabis from Spain to France. He continued:

Before coming to the submissions on appeal, it is relevant to set out the legislative framework and to cite some passages from the relevant case law.

Council Framework Decision of 13^th June 2002 states as follows in Art.1:

Article 8 contains the following provisions as to the content and form of the European arrest warrant:

Article 15 relating to the surrender decision is in the following terms:

The requirements of the Framework Decision have been embodied in the law of England and Wales by the Extradition Act 2003. France is a category 1 territory and so Part 1 of the Act is relevant to the present case.

Section 2 of the 2003 Act, so far as material for present purposes, reads as follows:

I need not read ss.(3) and (4), which relate to accusation warrants.

The section continues:

Where the EAW relates to more than one offence, the provisions of the Act are modified by Statutory Instrument 2003/3150. The effect of the modification is that in case where a warrant is issued and extradition is requested in respect of more than one offence, any reference in the Act to "an offence" is to be construed as a reference to "offences".

Section 10(2) of the 2003 Act, as modified in relation to a case concerning multiple offences, requires the extradition judge to decide whether each of the offences specified in a Part 1 warrant is an extradition offence. In the case of a person who has been convicted and sentenced in a category 1 territory, an offence is an extradition offence if the conditions specified in s.65 of the Act are satisfied. I do not think I need read the provisions of that section.

Finally, I should refer to s.202 of the 2003 Act, which reads as follows:

Recent case law has brought about a change in the approach to the question of whether the details required by s.2 of the Act must all be contained in the EAW itself or may in part be contained in further information provided by the requesting judicial authority. In Criminal Proceedings against Bob-Dogi [2016] 1 WLR 4583 the Court of Justice of the European Union said this:

In Goluchowski v District Court in Elblag, Poland [2016] UKSC 36 the Supreme Court affirmed that the effect of the decision in Bob-Dogi was that a deficient EAW may be rendered valid by the provision by the requesting judicial authority of further information. In a speech with which the other Justices of the Supreme Court agreed, Lord Mance said at para.40:

Then at para.47 Lord Mance, referring again to Bob-Dogi, said:

Most recently in Alexander v The Public Prosecutor's Office, Marseille District Court of First Instance, France and Di Benedetto v Court of Palermo, Italy [2017] EWCA 1392 (Admin) a Divisional Court held that the new approach required by those cases is as follows. 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: see para.61 of the judgment of Irwin LJ.

At para.73, the court concluded:

It is necessary for me to refer also, as did the District Judge, to the decision of the Divisional Court in King. At para.22 of his judgment, Collins J said:

I must also refer to the decision of Burnett J, as he then was, in Patraucean v Romania [2013] EWHC 2799 (Admin), in particular in the following passage at paras.18 to 20:

As to abuse of process, I must refer, as did the District Judge, to the decision of the Supreme Court in Zakrzewski. In a speech with which the other Justices agreed, Lord Sumption identified the circumstances in which a particular form of abuse may arise. He did so with reference to the principle that the validity of an EAW depends on whether the prescribed particulars are to be found in it and not on whether they are correct. He emphasised, however, that that did not mean that nothing could be done if the prescribed particulars in a warrant either were or became incorrect. He referred to two important safeguards, one of which was the inherent right of an English court as the executing court to ensure that its process is not abused. One form of abuse, fortunately rare, involved manipulation by the prosecutor of the process of the executing court for a collateral or improper purpose. Another category, rather less rare, related to cases in which the prescribed particulars are given in the warrant but are incorrect.

Lord Sumption at para.12 quoted from an earlier decision from Sir Anthony May, President, in which Sir Anthony had said:

In an important passage at para.13 of his speech, Lord Mance agreed with that statement subject to four observations:

Finally, I must refer briefly to Tappin v Government of United States of America [2012] EWHC 22 (Admin), which makes clear that when considering the dual criminality test it is necessary for the court to look at the conduct alleged against the appellant and then to analyse whether it constitutes an offence in the United Kingdom. If it does, the fact that the conduct might give rise to more criminal charges in the requesting state than it would in this jurisdiction is nothing to the point.

I turn now to consider the grounds of appeal in the light of those principles. I am grateful to Mr Lloyd on behalf of the appellant and Mr Stansfeld on behalf of the respondent for the clarity of their written and oral submissions.

Mr Lloyd in his oral submissions began with and focused upon the second ground of appeal, namely that relating to abuse of process. Accordingly, I too will start with that second ground.

Mr Lloyd begins with the proposition that it was accepted by the respondent before the District Judge that the EAW was incorrect because both in the French original and the English translation it referred to convictions of nine offences when the respondent accepts that the appellant was only convicted of eight offences. Mr Lloyd acknowledges that the respondent sought to rectify that error by reference to the further information contained in the additional documents, some of which were notices of appeal filed by the appellant's French advocate and others of which were English translations of court documents.

As to the latter documents, the English translation records the fact that the original bore the seal and signature of the relevant French court, but the English translation was not accompanied by a copy of the French original on which those seals and signatures were visible. Mr Lloyd submits that those documents cannot be relied upon for the purpose for which the respondent seeks to use them. His reasons are that they are not documents provided by the court and they are not sufficiently authenticated as required by s.202 of the 2003 Act.

That being the position before the District Judge, submits Mr Lloyd, it was incumbent upon him to seek yet further information from the requesting judicial authority, but he did not do so. Mr Lloyd submits that it was not open to the Crown Prosecution Service unilaterally to choose to treat an EAW referring to nine offences as if it referred only to eight offences. Moreover, argues Mr Lloyd, the documents which were provided by the judicial authority, in any event insufficient in themselves, both identify the error and are relied upon as correcting it.

In support of his argument, Mr Lloyd relied on a passage at para.76 of Alexander & Di Benedetto in which Irwin LJ said:

Mr Lloyd also relied upon the principle that it is for the state requesting extradition to provide the necessary information. That responsibility should not be transferred to the English court.

The error in the EAW, submits Mr Lloyd, is a highly material one because the number of offences for which extradition is sought is plainly very important. Thus, he argues, the requirements identified by Lord Sumption in Zakrzewski have been met in this case.

Mr Stansfeld in response points out the limited powers of this court on this appeal. Either the decision of the District Judge must be upheld and the appeal dismissed or the appeal must be allowed and the appellant discharged. The latter course would involve the court in discharging the appellant in relation to eight offences in respect of which his convictions and sentence are clearly shown by the EAW and the further information, and would do so in circumstances in which it has not been suggested on the appellant's behalf that he was not convicted of and sentenced for those eight offences.

Mr Stansfeld submits that the certified translations of the documents from the files of the French courts provided as further information are admissible and sufficient. They were supplied by the judicial authority, albeit without a covering letter. Overall, submits Mr Stansfeld, the undoubted error in the EAW was identified. The correct course, which was properly taken, was to excise from it the erroneous reference to a ninth offence. In such circumstances, it would have been wrong for the District Judge to discharge the other eight matters.

My conclusion on this first ground of appeal is as follows. As Lord Sumption said in Zakrzewski, the jurisdiction to stay proceedings as an abuse is exceptional. I accept that the EAW was wrong and misleading because it referred to nine offences, not eight. I therefore accept Mr Lloyd's submission that the first of the requirements mentioned by Lord Sumption has been met.

However, the second requirement is that the true facts required to correct the error must be clear. Here, Mr Lloyd's submissions begin to run into difficulty. The true facts, in my judgment, are clear. The documents provided by the judicial authority as further information from the records of the relevant courts were before the District Judge. In relation to each of those documents, the translation had been given under oath by an expert translator appointed by the French court. That certified translation showed that the documents bear the relevant seals and signatures of the courts concerned. In my judgment, those documents do comply with the requirements of s.202(4) of the 2003 Act without a need for the requesting judicial authority also to provide copies of the French originals. Taken together and with the EAW, those documents make it clear that the appellant was convicted of eight offences which can readily be identified and was not convicted of a ninth offence, which can also readily be identified.

The appellant's submissions on this point involve the paradox that in attempting to meet Lord Sumption's second requirement, he positively relies on the very documents which he contends were inadmissible, unclear and insufficient.

It is important to note that no suggestion has been made that the convictions of and sentence for the eight offences has been wrongly recorded in the documents. Insofar as the appellant argues against those documents, he argues against his own assertion that the second requirement has been fulfilled. But given that the facts, in my judgment, are clear, that puts the appellant in an impossible position in seeking to meet the third requirement.

The third requirement, as I have said, is that the error must be material to the operation of the statutory scheme for extradition. But by the time of the hearing before the District Judge, the mistaken reference in the EAW to nine offences had ceased to be material because it had been corrected.

I have no doubt that the Crown Prosecution Service, as representative in this jurisdiction of the requesting judicial authority, was entitled and indeed bound to identify that error to the District Judge and to correct it by making clear that extradition on a supposed ninth offence was not sought. No further information needed to be sought or obtained at that stage.

The passage on which Mr Lloyd relies from the judgment of Irwin LJ in Alexander & Di Benedetto does not, in my view, assist him. It is important to note that at para.76 of that judgment Irwin LJ spoke of an obligation on the court to consider before ordering extradition "whether the necessary information is present". Here, the necessary information was present. The judicial authority had supplied the information which identified and corrected the error and had provided a proper basis for extradition in respect of the other eight offences.

For those reasons, the appellant, in my view, is unable to bring himself within the requirements which Lord Sumption has indicated before an abuse of process argument can succeed.

This conclusion comes as no surprise. The category of abuse with which Zakrzewski is concerned relates to a situation in which the court in this jurisdiction is presented with an EAW which is on its face regular and which cannot be challenged, but which would lead to extradition on facts which are known to be clearly wrong. That is far removed from what happened here. This appellant was extradited in respect of eight convictions clearly established by the documents and not said to be incorrect. He was not extradited on a ninth charge which had erroneously been included in the EAW. That error had rightly been corrected to his advantage. He suffered no unfairness and no prejudice.

The District Judge would, in my view, have been wrong to discharge the appellant on the eight offences merely because his extradition was no longer sought in relation to a ninth. It was not an abuse for the court to rely on corrected information which was to the appellant's advantage and was not in itself said to be wrong. The second ground of appeal must, in my view, therefore fail.

Turning to the first ground of appeal, my view is as follows. The summary of the conduct which I have quoted from the EAW is succinct, but clear. No great detail is necessary and no further detail was needed in the circumstances of this case. No one reading the summary in the EAW could be in any doubt that the appellant was found by the French court to have played a leading role in a criminal conspiracy to import cannabis resin from Spain into France and then to export it from France to England. The conspiracy was well advanced by the time the collision occurred which led to the discovery of the concealed drugs. The summary in the EAW makes clear what the appellant did, when and where.

It is true, of course, that the English version of the EAW lacks the information as to the nature and classification of the offences which appears in the French original, but that, in my judgment, is not fatal to the validity of the EAW for at least three reasons.

First, the District Judge was entitled to look at the French original because that is the warrant issued by a judicial authority to which the provisions of the 2003 Act apply: see the passage quoted from Patraucean. The English translation of that EAW, though required and of course convenient to those practising in the English courts, does not replace the original. To take a simple example which I mentioned in the course of submissions, if a requested person's date of birth was recorded in the original warrant, but by clerical error had been omitted from the English translation, it would, to my mind, to be absurd to suggest that the EAW must be discharged because the English translation failed sufficiently to identify the requested person.

Mr Lloyd was disposed to accept that that was so, but only because no translation would be needed in such a situation. He submits that a District Judge cannot make his or her own translation of an original EAW. I do not accept that submission in the comprehensive form in which it was made. It all depends, in my view, on the circumstances. If it were the case that the District Judge or one of the advocates was the only person in the court who professed any knowledge of the language in which the EAW was drawn, and it was therefore not possible for any translation to be agreed, then a formal translation would no doubt be obtained. But here the District Judge referred to the French EAW simply to see the categorisation of the offences. No great command of the French language was necessary to understand section E of the French EAW, and the references to the relevant provisions of the penal code needed no translation at all. Importantly, no one seems to have doubted that the French list of categorisations of the offences was correctly expressed in English in the terms which I have quoted above.

Secondly, as Goluchowski and Alexander & Di Benedetto show, any deficiency in an EAW can be supplied by further information, provided, of course, that it does not involve wholesale replacement.

Here it is accepted that the supplementary information in form A was before the District Judge, albeit that he did not specifically refer to that document in his judgment. It supplies the necessary information. There is no difficulty in ascribing the individual charges to the relevant aspects of the overall conduct set out in the summary which I have quoted.

Thirdly, the requirements of s.2(6)(b) were, in my view, satisfied by the information contained in the EAW and the further information. The EAW was issued pursuant to the judgment on the final appeal in the appellant's case in October 2013. I do not accept that it was necessary for the EAW also to identify the date and location of the convicting court from which that appeal was brought.

For those reasons, the first ground of appeal must, in my view, also fail.

I come finally and briefly to the third ground, which Mr Lloyd recognised was, to an extent, dependent upon the success or otherwise of his other two grounds.

The submission which he makes on the appellant's behalf is again based on the reference in the EAW to nine offences rather than eight and to the alleged lack of particularisation of each of those offences. On that basis, it is said that it is not possible for the court to be satisfied to the criminal standard that each of the offences on which extradition was ordered is an extradition offence. Mr Lloyd again submits that the court was not entitled to take into account the documents provided by way of further information.

Mr Stansfeld for the respondent relies on the decision in Tappin and submits that the conduct alleged against the appellant would in this country have constituted an offence of conspiracy to import and an offence of conspiracy to export cannabis resin.

Mr Stansfeld in his written submissions had added a further submission based on s.55(5) of the 2003 Act. In oral argument, however, he acknowledged that in the circumstances of this case he would face difficulty in establishing that no part of the relevant conduct occurred in the UK. He, therefore, did not pursue this alternative point.

I can deal with this third ground briefly because, in my judgment, it is quite hopeless. The summary of conduct alleged in the EAW makes it perfectly clear that in this jurisdiction the appellant could be charged with a number of offences relating to drug trafficking. As I have indicated earlier, the precise number of charges to which that conduct would have given rise in this jurisdiction is irrelevant.

I am grateful, as I have said, to counsel on both sides. I would particularly recognise the diligence with which Mr Lloyd has presented his arguments on the appellant's behalf as effectively as could be done. But for the reasons which I have given, this appeal must fail. The appellant has been convicted of serious crimes in France. In my judgment, the District Judge was entirely correct to order his extradition.

I would, therefore, dismiss this appeal. If my Lord agrees, I would order accordingly, with the result that the extradition of the appellant would proceed.

I agree.