Asad Al-Jaban v Court of First Instance in Antwerp (Belgium)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 16 September 2022 |
| Neutral Citation | [2022] EWHC 2354 (Admin) |
| Docket Number | Case No: CO/2492/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2354 (Admin)
Mr Justice Fordham
Case No: CO/2492/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rebecca Hill (instructed by Freemans Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 13.9.22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This in-person renewed application for permission to appeal came before the Court in consequence of the Divisional Court's judgment [2022] EWHC 1906 (Admin). The background and context can be seen from that judgment (§§3 and 28 to 34), where the essence of the renewal grounds was also encapsulated (§33). There is a section 2 Extradition Act 2003 ground raising the inadequacy of particulars. There is also a section 10 ground alleging the absence of an “extradition offence” by reference to “dual criminality” but Ms Hill accepts that this section 10 ground is parasitic on the section 2 ground (as, I note, was also the position in Killoran v Belgium [2021] EWHC 1257 (Admin) at §39). I will be focusing on section 2 particularisation.
The Appellant's extradition to Belgium was ordered by a judgment of DJ Rimmer (the Judge) dated 13 July 2021. The EAW of 30 July 2020 on which the Appellant was arrested on 4 September 2020 is an accusation warrant. Further Information is dated 6 January 2021 (FI1) and 26 April 2021 (FI2). The Appellant is a refugee whose country of origin is Syria. He came to the United Kingdom on 22 June 2019 in a lorry and claimed asylum, which was granted in December 2019. The alleged offences for which he is wanted to stand trial in Belgium relate to “people trafficking” as an active member of a criminal gang concerned with smuggling people from Belgium to the United Kingdom hidden in lorries. The Appellant denies that alleged offending and says he became caught up with the gang and in the people trafficking, but only as a victim. The Judge heard submissions about a refugee's shield under Article 31 of the Refugee Convention but the Respondent convincingly explained that a refugee has no blanket immunity insofar as they are directly implicated in smuggling others.
I would normally have given a judgment ex tempore. But Ms Hill had been instructed at short notice. Without setting any precedent, I acceded to her invitation to read and consider – after the hearing – two authorities which she emphasised but which had not been supplied in her authorities bundle, then giving a brief ruling in writing. In doing so, I came across Killoran and asked her to address that case in urgent brief written submissions, as she helpfully did. In subsequent reading for another case, I have also now come across Osu v Spain [2020] EWHC 3856 (Admin), to which I will interpose two footnote references. I was and am satisfied that it is not necessary or appropriate to reconvene the hearing or put any further aspect for argument by either party.
Law
The essential law on particularisation derives from section 2(4)(c)(d) of the 2003 Act and Article 8(1)(e)(f) of the Framework Decision compatibly with which it is interpreted and applied (in the present case); and the Multiple Offences Order SI 2003/3150. As to authorities, the Judge referred to Belgium v Cando-Armas [2006] 2 AC 1; Dabas v Spain [2007] 2 AC 31; Ektor v Holland [2007] EWHC 3106 (Admin); Taylor v Germany [2012] EWHC 475 (Admin); Poland v Sabramowicz [2012] EWHC 3878 (Admin); Alexander & Di Benedetto v France & Italy [2017] EWHC 1392 (Admin); FK v Germany [2017] EWHC 2160 (Admin); M & B v Italy [2018] EWHC 1808 (Admin); Avadanei v France [2019] EWHC 2534 (Admin); Zeka v Belgium [2020] EWHC 2304 (Admin). Ms Hill's bundle supplied me with Taylor, M & B and King v France [2015] EWHC 3670 (Admin). At the end of the hearing she asked me to receive and read Avadanei and Zeka. I then drew her attention to Killoran.
Legal Principles
The following summary of applicable legal principles suffices for the present case. They can all be found reflected in the Judge's judgment. (1) Legally adequate particularisation is required for an EAW to be valid ( M & B §46i). (2) Further Information can add missing information to a deficient EAW to establish its validity ( Alexander §73). (3) However, a “wholesale failure” in the EAW cannot be cured by Further Information ( Alexander §75). (4) The onus in establishing legally adequate particulars is on the requesting judicial authority and the standard is the criminal standard ( M & B §46ii, iii). (5) “Each offence” must be adequately particularised (FK §54vi; 2003 Order). (6) Required information includes “particulars of the circumstances in which the person is alleged to have committed the offence”, including “the conduct” alleged to constitute the offence, “the time and place at which” they are alleged to have done so, “any provision of the law” under which the conduct is alleged to “constitute an offence” (s.2(4)(c)), their “degree of participation” (Article 8(1)(e)), and “particulars of the sentence which may be imposed” (s.2(4)(d)). (7) The purposes of particularisation are twofold. (i) First, so that the requested person knows with reasonable certainty the substance of the allegations against them, in particular when and where the offence is said to have been committed and what they are said to have done ( FK §54ii). (ii) Secondly, so that the requested person can raise – and the extradition courts apply – extradition bars and safeguards ( FK §54iii-iv), including (a) the dual criminality “transposition exercise” regarding each “offence” (2003 Act ss.10, 64; FK §54iii; M & B §47) and (b) being able to invoke specialty protection (2003 Act s.17; M & B §47). (8) Adequate particularisation arises in the context of the object of simplifying extradition procedures with a high level of mutual trust, so that a “balance must be struck” and “great detail” is unnecessary (Taylor §11), there being “no requirement for full and exhaustive particularisation”, and “the appropriate level of particularisation” being “dependent upon the circumstances of the specific case” ( FK §54), and whether there is a “wholesale failure” is a judgment “on the specific facts” ( Alexander §75). I have applied those principles in assessing arguability in this case.
Killoran's case
In Killoran, permission to appeal was refused after an oral hearing with relatively extensive oral argument, such that Chamberlain J gave permission for the judgment to be cited (§61). Ms Killoran was wanted for extradition to Belgium. The EAW identified two “offences” of “people smuggling” (§7) and gave the maximum as “15–20 years” (§4). The ringleader was identified as Saman Ahmed Taha. The alleged “people smuggling” involved receiving payments and guiding people from Oud-Turnhout train station to Belgian pickup points (on the E34, E313 and E40) where they would join lorries for the UK. Ms Killoran was said to have transported people to the pickup points and the Further Information gave “the dates of the occasions when she was present at the parking areas on the E34 and E313” (§11). She argued that the EAW failed adequately to particularise each offence, which was a “wholesale failure” uncurable by Further Information; that even with the Further Information there were inadequate particulars; and that the maximum sentence was not adequately particularised (§3). These were held to be unarguable (§§12–33). As will be seen, there are obvious parallels with the present case. As Ms Hill has accepted, it is “the same wider conspiracy to traffic people” and the ss.2 and 10 challenges in the present case “exactly echo” those in Killoran. Where I refer below to Killoran, I am not saying it is identical, nor that the judgment is legally binding on me. Rather, it will be where – in assessing arguability in the present case — I find the analysis in Killoran helpful and agree with it.
The present case
I start with the EAW. The EAW in this case identifies the same two “offences” as did the EAW in Killoran (§7): (a) “smuggling of human beings, committed against minors, during which the victim's life was exposed to serious danger, as a habit, and within the framework of a criminal organisation”; and (b) “smuggling of human beings, during which the victim's life with exposed to serious danger, as a habit, and within the framework of a criminal organisation”. The difference is that (a) would apply when any smuggled individual was a minor. The EAW refers to the applicable statutory provisions as in Killoran (§7): section 66 of the Belgian Criminal Code and section 77 of a December 1980 Immigration Law. The EAW records under “indications on the length of the sentence” as the “maximum length of the custodial sentence” imprisonment of “15 to 20 years”, as in Killoran (§4). The EAW identifies the same ringleader: Saman Ahmed Taha. The alleged “people smuggling” involves receiving payments and guiding people from Brussels North railway station to the same pickup points (E34, E313 and E40) to join lorries for the UK (explaining that the Appellant himself joined a lorry to the UK on 20 June 2019). The EAW describes the mode of operation of the gang in guiding individuals from the Brussels North railway station to the pick up location, in return for...
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