Akhtar Mohammed v The Court of Appeal, Paris
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 21 June 2013 |
| Neutral Citation | [2013] EWHC 1768 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 June 2013 |
| Docket Number | CO/4439/2013,Case No: CO/4439/2013 |
[2013] EWHC 1768 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: CO/4439/2013
Daniel Jones (instructed by EBR Attridge Solicitors) for the Appellant
Nicholas Hearn (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 5 June 2013
Approved Judgment
The appellant seeks to appeal against the decision of the Senior District Judge on 11 April 2013 that he be extradited to France to serve a sentence of three years imprisonment that was imposed by the Paris Court of Appeal in respect of three offences of tax fraud. The hearing before the Senior District Judge had taken place on 28 March.
The European Arrest Warrant was issued on 23 January 2008 and the appellant was arrested in August 2012. His first appearance before the Westminster Magistrates' Court was on 10 August 2012. The warrant related to offences committed some considerable time ago. The sentence was imposed following the appellant's conviction on 17 February 2005. What appears to be an arrest warrant that would be valid in France was issued that day because the appellant had failed to appear in court. The following paragraph appears in the European Arrest Warrant:
"The accused deliberately failed to appear at his trial, despite having been personally informed of the date and place of the hearing of the case by the Court of Appeal. His Attorney, personally chosen by the accused, was present and pleaded in defence of his client, by both written submittals and oral pleading. After being convicted and sentenced, the accused deliberately absconded. This warrant is issued for the purpose of having the accused serve the sentence handed down after conviction of the offences charged."
The sole ground of appeal is that the extradition sought is an abuse of the process of the court in that the service of the sentence is time-barred under French law. This submission is advanced on the basis of the evidence of a French lawyer, Mlle Dominique Tricaud, whose report of 23 May 2013 was not before the Senior District Judge but is sought to be adduced before me. Objection is taken to its submission by Mr Nicholas Hearn for the Judicial Authority on what I will for short call Fenyvesi grounds. I have considered it de bene esse. Mr Daniel Jones, who now appears for the appellant, says that it is potentially decisive evidence and should be admitted.
Mr Jones encapsulated the two points of importance, if the evidence is admissible at this stage, as follows:
i) Whether it is ever an abuse of process for an extradition request to be made when there is clear evidence that the activation of a sentence is time barred.
ii) If it may be, whether this court is sufficiently concerned that there may be an improper request for extradition in this case to require a full response from the French judicial authority.
The District Judge had refused an application for an adjournment to obtain a report from a French lawyer on the issue identified above. I will return to that later if necessary, but he did say this in response to the general submission made:
"I must consider whether this conduct, if established, is capable of amounting to an abuse of process. In my view this would not amount to an abuse of process. This would be a matter for the domestic court in France."
It appears to be common ground between Mr Hearn and Mr Jones that there is no previous authority precisely on this issue.
The first issue
That there may be no previous authority directly on the point may well evidence the proposition that no-one has seen fit to take it before. I do not say that critically of Mr Jones: if a previously unargued point may support his client's case, he is perfectly entitled to take it and indeed obliged to do so if his client insists. That being said, I am bound to say that, in my judgment, every judicial instinct would support the view of the Senior District Judge. Whilst it is not impossible for the English courts, with suitable expert evidence, to evaluate the position in law of a legal situation in another country, the question surely arises in the kind of situation with which this case is concerned as to why it should be necessary. The French courts are pre-eminently qualified to adjudicate on the issue that the appellant seeks to raise in this case and, if the point raised by the appellant is a good one, it can confidently be assumed that it will succeed before the French courts where it can be taken and considered properly.
The nearest authority on the approach of the English court is Elpidio Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin). In that case the appellant (an Italian national) appealed against a decision to order his extradition to Italy to stand trial for offences of tobacco smuggling, handling stolen goods, counterfeiting bank notes and forging identity documents. The offences were alleged to have been committed eight years earlier in 2001. The appellant contended that the district judge had been wrong to find that extradition would not be unjust or oppressive by reason of the passage of time and, in a new ground of appeal, sought to adduce evidence at the appeal that the extradition proceedings were an abuse of process because the offences would probably be statute-barred and he would be entitled to a statutory pardon in the event of a conviction. In relation to this ground of appeal Maurice Kay LJ (with whom Lloyd-Jones J, as he then was, agreed) said this:
"12. This ground of appeal, as now formulated in the appellant's skeleton argument, is expressed in this way:
"The probability that the extradition offences would be statute-barred in the course of the pre-trial proceedings, coupled with the available evidence of the absence of the requisite preliminary authority of the Minister of Justice for the prosecution of all counts other than A and F, and...
To continue reading
Request your trial
-
Minister for Justice and Equality v Dariusz Stalkowski and Another
...2 AER 93 2013 2 CMLR 33 2013 UKSC 2 MIN FOR JUSTICE v GHERINE UNREP EDWARDS 30.11.2012 2012/26/7684 2012 IEHC 535 MOHAMMED v FRANCE 2013 EWHC 1768 (ADMIN) 2013 AER (D) 201 (JUN) STATE (O'CALLAGHAN) v O HUADHAIGH 1977 IR 42 R v HORSEFERRY ROAD MAGISTRATES COURT EX PARTE BENNETT (NO 1) 1994 ......
-
Raul Angel Fuentes Villota v The 2nd Section of the National High Court of Madrid, Spain
...Battistini v The Court of Naples, Italy [2009] EWHC 3536 (Admin), Bendik v Judicial Authority of Slovakia [2010] EWHC 1821, Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin) and Konuksever v The Government of Turkey [2012] EWHC 2166 (Admin). He says, however, that discharge was......
-
Gezim Troka v Government of Albania
...cases are: Battistini v Italy [2009] EWHC 3536 (Admin); then Bendik v Slovakia [2010] EWHC 1821 (Admin); and Mohammed v France [2013] EWHC 1768 (Admin). What those cases emphasise is that the Court will not become embroiled with disputed questions as to the application, under the request......
-
Andrius Grazulis v Circuit Court in Klaipeda, Lithuania
...for the Lithuanian courts. I am reinforced in this view by the observations of Foskett J at paragraph 12 in his judgment in Mohammed v The Court of Appeal, Paris [2013] EWHC 1768 (Admin) and in the observations of Pitchford LJ at paragraph 7 in Bendik v Judicial Authority of Slovakia [2010]......