Ali Mohamud v Royal Prosecutor of Antwerp (Belgium)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie |
| Judgment Date | 20 November 2015 |
| Neutral Citation | [2015] EWHC 3794 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3772/2015 |
| Date | 20 November 2015 |
[2015] EWHC 3794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Wilkie
CO/3772/2015
Mr M Henley (instructed by Imran Khan) appeared on behalf of the Appellant
Ms N Draycott (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
Ali Mohamud appeals with permission against an extradition order made on 4 August 2015 by District Judge Bayne to extradite him to Belgium pursuant to a European Arrest Warrant which sought to have him extradited by virtue of an enforceable judgment of the Court of First Instance in Antwerp on 30 January 2012 as a result of which it imposed a sentence of 30 months' imprisonment to be served with immediate effect.
It is apparent from the terms of that warrant that the trigger for the 30-month sentence was that it was said that the requested person had committed 85 offences of fraud of various types between 13 and 20 November 2010 in company with three others, 84 of which were substantive offences and one of which was an offence, effectively, of conspiracy. The European Arrest Warrant was issued on 24 October 2012 and certified on 11 March 2013. The requested person, although Somalia born, has been a UK national since 2005, having come to this country when he was 8 years old.
The issues with which the District Judge was faced were that the requested person contended that the warrant was not compliant with section 2 of the Act, in particular that it was an accusation warrant rather than a conviction warrant and that the particulars provided were insufficient to comply with section 2(4) of the Extradition Act 2003. Furthermore, on the basis that the warrant was an accusation warrant then it was said that a bar to extradition arose pursuant to section 12A of the 2003 Act (as amended) in that there had been no decision to prosecute. Independent of the issue of whether or not the warrant was an accusation warrant or a conviction warrant it was also said that extradition would not be compatible with Article 8 of the European Convention on Human Rights and so, pursuant to section 21 of the 2003 Act, he should be discharged.
The District Judge, having concluded that the warrant was a conviction warrant, then considered the compliance of the warrant with section 2 by reference to section 2(6)(b) and in particular cited in support of her conclusion the case of Sandi v Craiova Court, Romania [2009] EWHC 3079, in particular paragraph 34 in the judgment given by Hickinbottom J. She concluded in relation to the section 12A argument that even if she were wrong in characterising the warrant as a conviction warrant rather than an accusation warrant, then in any event she was satisfied that it was clear that a decision to charge and try the requested person had been made by reason of the fact that the court in Belgium had proceeded against him to the point of making findings sufficient under their law to proceed to sentence him in his absence to a sentence of 30 months in respect of those offences.
In respect of the Article 8 argument, having reminded herself of the relevant appellate authorities of Norris v Government of the United States of America [2010] UKSC 9, HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 and Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), she carried out a balancing exercise and concluded that it would not be disproportionate for him to be extradited. In the course of so doing, she expressed herself on more than one occasion in the following terms:
"The negative consequences of extradition must be exceptionally severe for the balance to be tipped in favour of the RP."
She also said that she had regard to what the requested person had said about his involvement with the schooling of his 5-year old child and in so doing referred to a letter from a social worker, Esra Ashman, who dealt with the extent of his involvement with his children.
At the forefront of the extensive written submissions by both appellant and respondent has been the issue whether the District Judge was right to conclude that the warrant was a conviction warrant, having done so in terms which indicated that she was sure of that. Many cases have been referred to in those skeleton arguments. However, there are a relatively small number of crucial cases in which the decision as a matter of principle has been considered and identified. The judge referred in her judgment to having had regard particularly to Istanek v District Court of Prerov, Czech Republic [2011] EWHC 1498, in particular the passage in the judgment of Laws LJ running from paragraph 21 to 29, in the course of which he also cited the speech of Lord Bingham in Calderelli v Court of Naples, Italy [2008] UKHL 51 at paragraph 24.
In my judgment, those passages authoritatively identify a number of principles which apply in this case and they may be summarised. In a case where a person is dealt with and, in particular, sentenced in his absence but has a right of retrial at which the question of guilt and/or sentence can be and will be reconsidered, him being present and participating in that rehearing, there is no uniformity of practice or legal characterisation throughout the Member States of the European Union as to whether such a person is treated by each domestic system as a person who is accused or who is convicted of a particular crime. Where the courts of this country are considering the case of extradition of such a person to a Member State, the question whether the person is an accused or a conviction person is always a matter for the decision of Member State to which extradition is requested. The courts in this country must endeavour, as best they can, to identify whether, under the law of that Member State, the person is an accused or a convicted person. If it comes to a conclusion on that, then the court in this country must recognise that with all due respect and treat the person as either an accused or convicted person, depending on how the Member State would categorise him or her and regardless of how under the domestic law in England and Wales that person would be regarded. It is also common ground that where a decision is made against the interests of the requested person that he is a convicted person, then that is a decision which the courts in this country must reach to the criminal standard.
It is therefore incumbent on me to consider the evidence and, in particular, the evidence of the European Arrest Warrant so as to identify how a person in the appellant's position is regarded by the Belgian courts. The fact that in respect of other jurisdictions different conclusions have been reached by the courts in this country as to how those jurisdictions characterise such a person is, in my judgment, of no relevance as none of the cases cited are cases concerning the criminal justice system of Belgium.
Mr Henley has commented that the preamble to the European Arrest Warrant is in a common form and does not provide any pointer on that issue, though he does point out the fact that the competent judicial authority in question is the Royal Prosecutor's Office of Antwerp rather than the court itself and that this may be a pointer towards the person being regarded as an accused rather than a convicted person, although the enforceable judgment, being a judgment of the Court of First Instance in Antwerp, he accepts, tends to point to it being a conviction warrant.
Box (d) in the warrant sets out the position where a person has been dealt with in their absence. Under the Belgian system there is a right known as "an opposition", if an application is made by the person timeously, and in this case within 15 days of being extradited, to seek to have the matter reopened. The terms in which the Belgian authorities have expressed themselves in box (d), translated from the Flemish, are, in my judgment, crucial to this issue. The preliminary point is that it is in respect of a party who has not been summonsed in person, or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia. In this case the appellant has never been summonsed or, indeed, arrested or questioned as he returned to the UK, having admittedly been in Belgium during the period of the offending, before any arrest or questioning arose. Box~(d) then provides:
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