Bader v Penal Division of The Veszprem County Court Hungary
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS |
| Judgment Date | 11 February 2011 |
| Neutral Citation | [2011] EWHC 436 (Admin) |
| Date | 11 February 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9765/2010 |
[2011] EWHC 436 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr Justice Davis
CO/9765/2010
MS R HILL appeared on behalf of the Claimant
MR P CALDWELL (for the proceedings) and MR S LEVINE (for the judgment) appeared on behalf of the Defendant
MR JUSTICE DAVIS: To the extent that it is necessary to do so, I confirm an extension of time until today for the hearing of this matter, because I consider that to be in the interests of justice.
This is an appeal against the decision of the District Judge, given in the City of Westminster Magistrates' Court, of 10 September 2010, whereby he ordered the extradition of the appellant to Hungary. The extradition was ordered pursuant to two European Arrest Warrants which had been issued. The first was what may be described as an accusation warrant, issued on 10 July 2009 for an offence which may be described as obtaining property by deception. The second, which is in the form of a conviction warrant, issued on 25 November 2009, is related to four offences committed between 1999 and 2002 whereby the appellant was sentenced to a term of 4 and a half years' imprisonment.
No dispute has been raised with regard to the first European Arrest Warrant. The whole dispute, and this appeal, is concerned with the validity of the second arrest warrant.
The issue arising is a short one and is this. The second European Arrest Warrant, as the district judge found and is clearly the case, nowhere specifies the date on which the appellant was convicted. The question raised is whether the failure to specify the date of conviction in the warrant causes that warrant not to comply with the mandatory requirements for section 2(6)(b) of the Extradition Act 2003 as amended, and in consequence is an invalid warrant. It is the submission of Miss Hill, on behalf of the appellant, that this is indeed so, and such failure causes the warrant not to be a part 1 warrant by reference to which the appellant may be extradited to Hungary. She submits the district judge should have so decided and was wrong not to do so.
Section 2 of the Extradition Act 2003 , as amended, reads as follows:
" Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is—
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) 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 he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is—
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
(7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(8) A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.
(9) The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.
(10) An order made under subsection (9) may—
(a) designate more than one authority;
(b) designate different authorities for different parts of the United Kingdom."
It is elementary that in this particular context one looks at the content of the European Arrest Warrant itself, read as a whole, to see if it meets the requirements of Part 1 of the 2003 Act. Deficiencies in content ordinarily cannot be overcome by an appeal to extraneous facts or circumstances.
So far as the 2003 Act itself is concerned, clearly the court must apply the language which Parliament has chosen to use. Nevertheless, it has frequently been held that a purposive approach to construction of provisions of the 2003 Act are appropriate, both with a view to giving effect to the underlying Council framework decision of 2002, and with a view to having regard to the fact that procedures which obtain in the United Kingdom with regard to criminal justice do not necessarily obtain elsewhere: see for example, amongst other authorities, the remarks of Lord Bingham in the case of Caldarelli v the Court of Naples [2009] 1 AER 1, [2008] UKHL 51.
So far as the content and form of a European Arrest Warrant is concerned, that is addressed by Article 8 of the Framework Decision. Of course, regard must be had to recitals to that Decision, and regard should also be had to Article 1. But Article 8 is the Article of particular relevance here, in view of its addressing the form and content of a European Arrest Warrant, which it does in the following terms:
" Content and form of the European Arrest Warrant
1. The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
(c) evidene of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of Article 2;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offenec by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offenec under the law of the issuing Member State;
(g) if possible, other consequences of the offence."
In the present case, the second European Arrest Warrant, which was certified on 3 May 2010, is filled in in a detailed and lengthy way. It is necessary for the purposes of this judgment to make a reference to some particular aspects of it. In box (a), information is given regarding the identity of the requested person in wholly unexceptionable terms. In box (b), which gives details on which the warrant is based, this is said:
"Enforceable judgment; The consolidated sentence number 8.Beu.180/2008/2 of the Szekesfehervar Municipal Court, dated 14 May 2008, became final and absolute on 19 June 2008, which includes the sentence number 8.B.1991/2004/92 of the Szekesfehervar Municipal Court and the sentence number 12.B.319/2000/52 of the Veszprem Municipal Court.
Reference: No.SZV.664/2008 of the Penal Division of the Veszprem County Court".
In box (c), which relates to indications of the length of sentence, it is specified that the length of the custodial sentence or detention order imposed was one of 4 years 6-months' imprisonment, of which 4 years, 5 months and 27 days remain to be served.
Box (d) relates to decisions rendered in absentia. No details are added there, which connotes that the actual trial and conviction took place in the appellant's presence. Indeed, the contrary has not been asserted in the course of these proceedings.
Box (e) relates to offences. This is said:
"This warrant relates to in total: 4 (four) offences".
There is then set out a description of the circumstances in which the offences were committed, including the time, place and degree of participation in the offences by the requested person. This is said at the outset of Part I:
"Statement of facts of the sentence No.8....
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