Dibden v Tribunal De Grande Instance De Lille France
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon,Lord Justice Pitchford |
| Judgment Date | 18 July 2014 |
| Neutral Citation | [2014] EWHC 3074 (Admin) |
| Docket Number | CO/899/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2014 |
[2014] EWHC 3074 (Admin)
Lord Justice Pitchford
Mr Justice Simon
CO/899/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr B Cooper (instructed by Sternberg Reed) appeared on behalf of the Appellant
Mr P Caldwell (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is the appeal of the appellant, Daniel Dibden, from a decision of District Judge Snow, made on 24 February 2014, ordering his extradition to France.
The request for his extradition came from the respondent in relation to a European Arrest Warrant, ("EAW"), issued on 14 November 2013 in relation to drug trafficking offences. The EAW was certified by SOCA on the same day it was issued.
France is designated as a Category 1 territory for the purposes of the Extradition Act 2003, and accordingly part 1 of the Act as amended applies to the proceedings.
Two provisions of the Act are in issue on this appeal: section 2(4)(c) which concerns the particularity of the circumstances in which the requested person is alleged to have committed the offence; and section 19B-D, which reflect recent changes in the law, requiring the court to consider whether the extradition would not be in the interests of justice. There is a further ground of appeal in relation to the appellant's Article 8 rights.
The conduct set out in the EAW concerns four transportations of drugs: cocaine, amphetamines and Cannabis, which were made between the Netherlands and the United Kingdom, on each occasion via France, between March and May 2012.
On 12 May 2012, two British nationals, Lee Powell and Jan Hajduga were detained at the airport in Marck, where they were in the process of loading 63.35 kilograms of amphetamines and 6.25 kilograms of cocaine into a microlight aircraft.
Police investigations showed that Hajduga had travelled by car to collect the drugs in the Netherlands before bringing them to Powell in France, so that he could then transport them to England in the microlight aircraft.
Further police investigations in France identified a third courier, a man named "Ross Mac" or Ross MacIver. He and Hajduga were questioned and identified two men as being the principals in the four drug transportations: a man known to them as "Joe Toe", Joseph Harrison, and another man known as "Dan Dib", the appellant. A joint police investigation was carried out, involving both the French and English police, and the appellant was arrested in this country in connection with the offences, and was then interviewed.
The first issue, the validity of the EAW
This is an accusation warrant and the relevant sections of the Act are sections 2(a) and section 2(4). Section 2(2) of the Act provides:
"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 sub-section 3 and the information referred to in sub-section 4."
Section 2(4) is in these terms:
"The information is
(a) particulars of the person's identity.
(b) particulars of any other warrant issued in the Category 1 territory for the 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 of which he is alleged to have committed the offence and any provisions 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."
Section 2(4)(c) reflects the terms of Article 8 of the Framework Decision which requires:
"(d) The nature and legal classification of the offence […]
"(e) A description of the circumstances in which the offence was committed including the time, place and degree of participation in the events by the requested persons."
It is common ground that:
1) A European Arrest Warrant must conform with the requirements of section 2(4) and that if it does not, the document will not be regarded as an EAW.
2) The burden of proving conformity is on the Requesting Party and that the standard is beyond reasonable doubt.
3) Strict adherence with the statutory requirements as necessary: see, for example, King's Prosecutor, Brussels v Armas & Anor [2004] EWHC 2019 (Admin). Lord Hope at paragraphs 23 to 24.
In the present case, the warrant set out at e, the circumstances in which Lee Powell and Jan Hajduga were caught loading the drugs into the microlight aircraft, the investigations which led to the arrest of Ross Mack in France, the descriptions of four transportations of drugs, including that of 12 May 2012, and the identification of Joseph Harrison and the appellant:
"Both these men are accused of being at the head of this criminal organisation and of having, in the United Kingdom, hired the three drug smugglers, given them instructions prior to and during their trips, provided them with money in order for the above drug runs to be carried out, then paid them before finally recovering the drugs for further dealing."
The nature and legal classification of the offences were:
1) The importation of narcotic drugs as part of an organised gang.
2) Aquisition, possession, transportation of narcotic drugs.
3) Smuggling prohibited goods classed as dangerous for public health, morality and safety committed under organised crime.
4) Conspiracy in view of the preparation of crimes punishable by 10 years' imprisonment.
There then followed the words: "Offences covered and sanctioned by", and a number of articles of the French Penal Code are set out.
Mr Cooper submitted that the EAW fails to make clear either the conduct alleged or the applicable legal provisions, fails to provide sufficient particulars so as to enable the appellant to understand the nature and extent of the allegations against him, and that the precise conduct alleged against the appellant is unclear.
He argued that it is not clear from the warrant precisely what charges the appellant faces in France, and the conduct giving rise to each charge is not clear. The number of charges in the warrant results in the four alleged offences overlapping and illustrates, he submits, the failure to comply with the section 2 requirements.
In his decision, the District Judge referred to the statutory provisions and the importance of establishing that the warrant provided sufficient detail of the conduct alleged to the criminal standard,(see paragraph 16 of the decision). He concluded that he could be sure that there was proper compliance with the provisions of section 2(4)(c).
In my view, the judge adopted the right approach and came to the right conclusion. There is no requirement for the warrant to be expressly cross-referenced to an article in a penal code. The four charges can properly be characterised as overlapping but that is not uncommon in this jurisdiction.
The important point is that there were proper particulars of the circumstances in which the appellant was alleged to have committed the offences, including the conduct alleged to constitute the offences and the time and place at which the offences were said to have been committed.
The Second Issue: The Forum Issue
The appellant submits that his extradition is barred by reason of section 19(b) of the Act as amended by the Crime and Courts Act 2013. Although the provision has been in force since 14 October 2013, its operation has not yet been the subject of a decision by the High Court.
Section 19B provides as follows:
" 19B Forum
(1) The extradition of a person("D") to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.
(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge —
(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and
(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.
(3) These are the specified matters relating to the interests of justice —
(a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;
(b) the interests of any victims of the extradition offence;
(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;
(d) were D to be prosecuted in a part of the. United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;
(e) any delay that might result from proceeding in one jurisdiction rather than another;
(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to —
(i) the jurisdictions in which witnesses, co—defendants and other suspects are located, and
(ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;
(g) D's connections with the United Kingdom.
(4) In deciding whether the...
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