Dean Dixon v Kingdom of Spain
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mance |
| Judgment Date | 10 November 2014 |
| Neutral Citation | [2014] UKPC 38 |
| Docket Number | Appeal No 0077 of 2014 |
| Date | 10 November 2014 |
| Court | Privy Council |
[2014] UKPC 38
Privy Council
From the Supreme Court of Gibraltar
Lord Mance
Lord Wilson
Lord Carnwath
Lord Toulson
Lord Hodge
Appeal No 0077 of 2014
Appellant
John Restano QC Rowan Pennington-Benton Charles Bonfante
(Instructed by M.A. Law)
Respondent
Reginald R Rhoda QC Johann Fernandez
(Instructed by Penningtons Manches LLP)
Heard on 16 October 2014
By a European arrest warrant dated 11 December 2013, the respondent seeks the appellant's surrender to face criminal proceedings under article 149 of the Spanish Penal Code, Organic Law 10 of 1995 as amended in 2004 ("the Penal Code 1995"). In the warrant the box ticked to identify an offence punishable in Spain with a maximum sentence of at least three years is that referring to "assault with grievous injury". Various challenges by the appellant to the validity of the warrant were rejected both by the Additional Stipendiary Magistrate in a ruling dated 22 May 2014 and on appeal by the Supreme Court (Butler J) in a judgment dated 18 June 2014. The appellant now appeals to the Board with leave granted by Butler J, but limited to "the question whether the intended charge against the appellant is the correct charge under Spanish law and whether the appellant's surrender violates section 8(4) of the Constitution".
The facts on which the charge is based occurred as long ago as 7 August 1992. They involved an alleged assault on Malcolm Stephen Peel with a stick in La Linea de la Concepcion, causing him very severe head injuries. The appellant is reported to have admitted the assault, but explained that he was under the influence of LSD, which might bear on his state of mind. He spent 11 months in Spanish custody immediately after the incident and a further 22 months in custody in Gibraltar during the period between the issue in 2006 and setting aside (on grounds presently irrelevant) of a previous European arrest warrant ( Dixon v Government of Spain 2007–09 Gib LR 244). These matters formed part of the subject matter of challenges mounted below, where the delays w ere discounted as being largely due to the appellant absconding from the Spanish equivalent of bail or being a fugitive. They are no longer relied on or relevant. The limited questions now before the Board arise from the fact that the appellant is being charged under the 1995 Penal Code in respect of an offence allegedly committed in 1992.
The Spanish Constitution (article 9.3) permits the retroactivity of penal provisions favourable to the accused, and the First Transitional Provision of the Penal Code 1995 provides that "Once this Code enters into force, if its provisions prove more favourable to the accused, they are to be applied". Article 149 of the Penal Code 1995 provides (in the translation with which the Board was provided):
"1, — He who causes another, through any means or procedure, the loss or inability of an organ or main limb, or any of the senses, impotency, sterility, or serious deformity, somatic or psychological is punishable with imprisonment from six to twelve years."
The basic penalty applicable under article 149 is a sentence of 6 to 12 years. But article 152.1 (set out in evidence given by a lawyer, Mr Jorge Tenorio, obtained by the appellant) provides:
"1. He who through serious imprudence inflicts some of the injuries contemplated in the previous article[s] will be punished:
….
(ii) with a sentence of imprisonment of one to three years, in the case of the injuries in article 149.
(iii) a prison sentence of six months to two years, in the case of the injuries in article 150."
The bracketed letter "s" indicates a plural obviously omitted in the translation put before the Board.
The previous penal code contained in Decree 3096 of 14 September 1973 as amended by L.O. 30 of 21 June 1989 provided (again in the translation provided):
"Article 418. He who purposely mutilates or inhabilitates another of an organ or main limb, deprives him of sight or hearing, or partial or total inability to work, a serious somatic or physical disease or an incurable mental incapacity will be punished with a lesser sentence of imprisonment.
Article 420. He who through any means or procedure, causes the other, injuries that impairs his bodily integrity or his physical or mental health, shall be punished by a lesser sentence of imprisonment, so long as the injuries require for his well-being medical assistance and medical treatment or surgery. …"
The sentence applicable under article 418 was until 1995 from 12 to 20 years, which was reduced in 1995 to from 8 to 15 years. Under article 420 the sentence applicable was and is from 6 months 1 day to 6 years.
The European Arrest Warrant Act 2004 was enacted to give effect in Gibraltar to the United Kingdom's international obligations under Framework Decision of 13 June 2002 (2002/584/JHA), article 33(2) of which provides that "This Framework Decision shall apply to Gibraltar". The Framework Decision operates currently in the United Kingdom in general, and Gibraltar in particular, only at the international level: see Assange v Swedish Prosecution Authority [2012] UKSC 22. [2012] 2 AC471. The 2004 Act provides:
" Exceptions to duty to surrender.
26. A person shall not be surrendered under this Act if —
(a) his surrender would be incompatible with Gibraltar's obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4 th day of November, 1950, as amended by Protocol No. 11 done at Strasbourg on the 11th day of May 1994; or
(b) his surrender would constitute a contravention of any provision of the Constitution (other than for the reason that the offence specified in the European arrest warrant is an offence to which section 27(1)(b) applies); …"
Although Mr Restano QC for the appellant suggested that section 26(a) might be meaningless, since Gibraltar did not as such have any obligations under the Human Rights Convention, the Board considers it to be clear that section 26(a) must be understood as referring to the United Kingdom's obligations under the Convention in respect of Gibraltar.
Article 7(1) of the Human Rights Convention provides:
" No punishment without law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
The Constitution provides:
"8.—(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
….
(12) In this section —
'criminal offence' means a crime, misdemeanour or contravention punishable under the law of Gibraltar; …."
Before the courts below, the legal positions under article 7 of the Convention and under section 8(4) of the Constitution appear to have been equated in...
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