Criminal Court At The National High Court 1st Division v Murua

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSir Anthony May P
Judgment Date08 October 2010
Neutral Citation[2010] EWHC 2609 (Admin)
Docket NumberCO/8732/2010
Date08 October 2010

[2010] EWHC 2609 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Sir Anthony May (President of the Queen's Bench Division)

CO/8732/2010

Between
The Criminal Court at the National High Court, 1st Division (a Spanish Judicial Authority)
Appellant
and
Garikoitz Ibarlucea Murua
Respondent

Ms Melanie Cumberland (instructed by the Crown Prosecution Service) appeared on behalf of the Appellant

Mr Mark Summers (instructed by Messrs Birnberg Peirce & Partners) appeared on behalf of the Respondent

SIR ANTHONY MAY
1

: This is an extradition appeal where the extradition of the respondent, Mr Murua, has been requested by the 1st Section of the National High Court of Madrid, Spain, Spain being a designated Category 1 territory under section 1 of the Extradition Act 2003. Part 1 of the 2003 Act applies.

2

The European Arrest Warrant in this case asserts that the respondent stands accused of three offences of “terrorist havoc”, contrary to Articles 346 and 577 of the Spanish Criminal Code, each punishable with 16 years' imprisonment consecutive, thus totalling 48 years in all.

3

Conduct is alleged in the European Arrest Warrant which I shall come to later in this judgment, and it is further significantly alleged that, whilst carrying out the alleged conduct, those concerned (which included seven other defendants in addition to the respondent) had their faces concealed with balaclavas.

4

On 8 May 2006 a committal order was issued by the 1st Section of the National High Court in Madrid. On 18 February 2010 a European Arrest Warrant was issued by the 1st Section of the National High Court in Madrid under the Council of the European Union Framework Decision on the European Arrest Warrant and surrender procedures between member states of the European Union 2002/584/JHE (“the Framework Decision”).

5

The European Arrest Warrant was submitted to and received by the Serious Organised Crime Agency, an authority designated by the Secretary of State for the purposes of Part 1, and it was certified by that Agency under sections 2(7) and (8) of the 2003 Act.

6

The respondent was arrested in this jurisdiction on 15 March 2010. The extradition hearing in his case was heard by Senior District Judge Wickham at Westminster Magistrates' Court on 21 July 2010. She reserved her judgment and gave it on 12 August 2010. In and by virtue of that judgment, the respondent's discharge was ordered under section 21(2) of the 2003 Act.

7

In very short summary, the District Judge held that the European Arrest Warrant misstated the true factual and legal position. She applied the case of Castillo v The Kingdom of Spain [2005] 1 WLR 1043, and held that the warrant did not comply with the validity requirements of section 2 of the 2003 Act. She further held that, properly stated, the respondent's prosecution was time-barred under Spanish law such that his extradition would constitute a violation of Article 5 of the European Convention on Human Rights, applying the decision of Atilla v Government of Turkey [2006] EWHC 1203 (Admin).

8

Following the decision of the District Judge, the appellant filed in time and served a notice of appeal and detailed grounds. The respondent then filed and served a respondent's notice seeking to uphold the decision to discharge on alternative grounds to which I shall come in due course.

9

There are five grounds of appeal, and the respondent has two further grounds by the respondent's notice for upholding the District Judge's decision. The two grounds in the respondent's notice, which assert a likely breach of specialty and a violation of Article 8 of the European Convention on Human Rights by reason of a manifestly excessive sentence of 48 years, do not arise for decision if the respondent successfully resists the main grounds of appeal.

10

The heart of the matter is that the respondent contends, and the District Judge in substance held, that the description of the conduct alleged in the European Arrest Warrant was not a proper, accurate and fair description of the charges which the respondent would, or perhaps ought, to face if he were extradited. In reality, he could only be charged, it is said, with lesser offences, and those lesser offences are statute-barred, which would provide an additional reason why the warrant should be discharged. But the essential case for the respondent, which the District Judge accepted, was and is that the description of the conduct given in the warrant does not comprise particulars which comply with section 2(4)(c) of the Extradition Act 2003, and that accordingly the warrant is not a valid warrant.

11

Section 2 of the 2003 Act provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory and which contains:

“(4)(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 …”

Particulars of the sentence which may be imposed are also required.

12

On the face of it, the European Arrest Warrant in this case, taken in isolation, gives particulars which, again taken in isolation, appear to comply with the section, and it is argued by Ms Cumberland, on behalf of the appellant judicial authority, that these particulars are to be accepted in good faith and without inquiry as being sufficient. She points to authority to the effect that a warrant which is deficient in particular may not be supplemented by external evidence, although there is of course a well-worn course in an appropriate case for further information requested from a judicial authority by the District Judge to be provided.

13

There is no question in this case of external evidence being relied on to supplement an otherwise defective warrant. There is, however, evidence, receivable in my view under section 202 of the 2003 Act, which explains the strange circumstances in which this arrest warrant comes to be considered and which forms the foundation of the case that the particulars given in it do not comply with section 2(4)(c).

14

In summary, the conduct alleged in the European Arrest Warrant against the respondent is as follows. There are three offences alleged. The first is that on 11 November 2001 at around 2am, the respondent, with others, threw incendiary devices at a Volkswagen Passat motor car. The car was parked in Euska Herria Street in Ibarra Guipuzcoa. The car was owned by a Miguel Munariz Goita, who worked for the General Resource Department, which is linked to the Basque Regional Government. The explosion of the incendiary devices caused damage to the car and to objects inside the car to the value of approximately 2,000 euros. Damage was also caused to other vehicles in the vicinity. The explosion and fire caused by the incendiary devices endangered lives because the vehicle the subject of the attack was parked on the street.

15

The second alleged offence was that on 4 January 2002, the respondent, with others, threw incendiary devices at a Post Office on No 26 San Jan Street in Alegria, Guipuzcoa. Damage was caused to the Post Office itself and to the belongings of employees in the sum of approximately 4,000 euros. The actions of the respondent and his accomplices endangered lives, owing to the location of the Post Office, the fire caused by the incendiary devices and the fact that people were working inside the Post Office.

16

The third alleged offence was that on 3 May 2002, the respondent, with others, threw incendiary devices at a bus on the Spanish N1 highway on a bus route from San Sebastian to Tolosa. The lives of the bus driver and passengers were placed at risk in the attack. The assailants doused the bus with petrol and set it on fire without waiting for the bus to be evacuated. Indeed, it appears that the bus driver was still on the bus when the attack occurred. The bus was destroyed causing losses of 79,515 euros.

17

Those were three alleged offences on an original Spanish indictment containing particulars of eight offences, five of which the respondent was not concerned with. The indictment charged him and seven other defendants variously for various of those eight pieces of conduct.

18

The respondent contends that evidence before this court establishes the following. The European Arrest Warrant, it is said, has been issued on a misleading basis. It is premised upon a preliminary indictment issued by the prosecutor in the case. In accordance with that indictment, it alleges offences which carry allegations of endangering life and concealment of identity. In fact, evidential materials obtained demonstrate that the prosecution has accepted, and the Spanish court has itself ruled, that those charges are not made out as a matter of fact. In accordance with that ruling, the case in Spain has been the subject of a definitive (or final) indictment containing revised charges punishable; not by 48 years' imprisonment, but by up to three years' imprisonment in the cases of the seven other co-defendants. These seven other co-defendants pleaded guilty to the revised reduced charges and were sentenced to a variety of terms of imprisonment for two years or less, six out of seven of which were suspended.

19

It is not in dispute that, if the true position is as contended for by the respondent, the prosecution of the respondent is subject to a two-year limitation period from the date of...

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