Sean Alexander v The Public Prosecutor's Office, Marseille District Court of First Instance, France
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Mr Justice Sweeney |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] EWHC 1392 (Admin) |
| Docket Number | Case Nos: CO/4006/2016 and CO/4166/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 June 2017 |
[2017] EWHC 1392 (Admin)
Lord Justice Irwin
Mr Justice Sweeney
Case Nos: CO/4006/2016 and CO/4166/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Malcolm QC and James Stansfeld (instructed by Powell Spencer & Partners) for Sean Alexander
Helen Malcom QC and Joel Smith (instructed by Hayes Law) for Gianfranco Di Benedetto
Julian B Knowles QC and Saoirse Townshend (instructed by The Crown Prosecution Service) for the Respondents
Hearing dates: 14 February 2017
Approved Judgment
Introduction
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).
Sean Alexander: The Facts and Procedural History
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...
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