Donal Mccormack v The Judicial Authority Saint Malo High Court France
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker,Lord Justice Moses |
| Judgment Date | 20 February 2013 |
| Neutral Citation | [2013] EWHC 666 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/374/2013 |
| Date | 20 February 2013 |
[2013] EWHC 666 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moses
Mr Justice Kenneth Parker
CO/374/2013
Mr M Henley (instructed by Freemans) appeared on behalf of the Claimant
Mr D Sternberg appeared on behalf of the Defendant
By European Arrest Warrant issued on 17 March 2011, the Vice Public Prosecutor of the Saint Malo High Court in France, the judicial authority and the respondent in the present appeal sought the extradition of Donal McCormack, the requested person.
The requesting judicial authority seeks the requested person's extradition to serve the entirety of a sentence of 18 months' imprisonment imposed in 2009 for smuggling cigarettes in France committed in 2005.
Box E of the European Arrest Warrant records that this alleged conspiracy came to light during a check carried out by French customs authorities on a lorry on 21 February 2005, which contained a consignment of smuggled cigarettes. This investigation, it is said, revealed that Donal McCormack was part of the organised group involved in smuggling cigarettes; specifically, he was in charge of orienting the loads from Spain to the warehouse in France.
The framework list of offence at E2 of the arrest warrant has been marked for offences of fraud, including fraud affecting the financial interest of the EU.
Box B of the warrant relating to the decision on which the warrant is based refers to a judgment of the Magistrates' Court of Saint Malo dated 26 November 2009, pronounced by default.
Box C records that a sentence of 18 months' imprisonment was imposed and 18 months is left to be served.
Box D of the warrant records that the appellant was convicted and sentenced in his absence but is entitled to a retrial on return to France.
The appellant was arrested on the warrant on 9 May 2012 after contested extradition hearings. The Senior District Judge Riddle ordered the appellant's extradition in a written judgment delivered on 8 January 2013.
The grounds of appeal
The first ground appears to be that the District Judge wrongly categorised the warrant as a conviction warrant when on closer analysis it was a warrant in respect of an accused person. The short answer to this ground is that even if the District Judge has made the error alleged, such an error would not found a successful appeal.
Section 27(3) of the Extradition Act 2003 ["the Act"] provides that an appeal may be allowed only if the District Judge ought to have decided a question before him at the extradition hearing differently and, if he decided the question in the way that he ought to have done, he would have been required to order the person's discharge. Even if, as Mr Henley on behalf of the appellant argues, the District Judge ought to have found this warrant to be a warrant in respect of an accused person and, had he so found, such a conclusion quite plainly would not have led to the appellant's discharge.
Lurking beneath this ground of appeal is perhaps this further contention. Because section 2(3) of the Act requires the EAW to state, if such is the case, that the warrant is in respect of an accused person, a warrant that states that it is a conviction warrant when in fact is in respect of an accused person is simply invalid. However, that particular territory has been transversed now on numerous occasions and the District Judge at pages 3 to 4 of his judgment quite rightly gave this argument short shrift indeed.
I do likewise, referring only to Moulai v Deputy Public Prosecutor of Creteil [2009] EWHC 1030 (Admin) at paragraphs 25 to 26, 28 to 29 and to Istanek v District Court of Prerov [2011] EWHC 1498 (Admin) at paragraph 20, in particular the propositions 1 to 3 in the judgment of Laws LJ.
The correctness of those decisions, if I may respectfully add, has simply been reinforced by the observations of Lord Sumption in giving the judgment of the Supreme Court in Zarkrzewski v Regional Court in Lodz, Poland [2013] UK Supreme Court 2 [2013] 1 WLR 324 at paragraph 8.
For the sake of completeness, I might add that it appears to me that the District Judge did in any event categorise the warrant correctly for the reasons that he gave at page 4 of his judgment when he said:
"This warrant has not deleted, in its opening preamble, the words 'of conducting a criminal prosecution or'. As has been remarked elsewhere, these warrants never do. However, in box c it is stated that an 18-month sentence has been imposed and remains to be served. In box d it states, 'the convicted person shall have the possibility of being judged again by the same court if he appeals against the ruling.' The person signing the warrant is stated to be the public prosecutor in charge of the sentencing. The phrase 'the convicted person' has been translated [into] the French 'La personne condemnée.'"
The cases recognise a distinction between systems of law which regard a conviction as final and those which treat it as a continuing process where a right of retrial is provided.
In Caldarelli v Court of Naples [2008] UKHL 51 Italy was held to fall into the latter category. However, as Laws LJ stated in Istanek as his fifth proposition:
"The existence of a right of retrial cannot be treated, as a matter of law, as systematically inconsistent with the fugitive being a convicted person [an approach which, among other things] cannot sit with section 20 of the 2003 Act."
In my view, in the light of the way in which the case generally has been presented, it is not necessary to reach any definitive conclusion on this particular issue. If forced to do so, I would have accepted the conclusion for the reason given by the learned judge. But in my view nothing turns on it, having regard to the nature of the grounds of appeal in any event.
The second ground is that the particulars of the conviction required by section 2(6)(b) of the Act or if it were a warrant in respect of an accused person, particulars of the circumstances of the alleged conduct required by section 2(4)(c) of the Act were inadequate. In Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 Cranston J said the following:
"A balance must be struck between in this case the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
In my judgment, in this case the appellant can be under no misapprehension as to why he is sought. The place and time at which the...
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