Felix v Comarca De Lisboa Portugal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] EWHC 3518 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2960/2016 |
| Date | 06 December 2016 |
[2016] EWHC 3518 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/2960/2016
Mr B Seifreid (instructed by Wainwright & Cummins) appeared on behalf of the Appellant
Ms E Pottle (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Crane, given on 9 June this year, whereby she directed the extradition of the appellant to face an accusation warrant alleging, putting it for the moment very broadly, a number of crimes of forgery and of swindling, those crimes having been committed, it is said, between 2001 and October 2004.
The appellant came to this country, he said, in 2002, albeit there is no record, perhaps unsurprisingly, of his entry here. He is a Portuguese citizen, having been born in Angola. That evidence from him was accepted by the district judge. It follows that, as I have said, the dates of 2001 and 2004 cannot on their face involve him after he arrived in this country in 2002. He does not, I think, give the precise date in 2002, other than it was in June that he arrived in this country.
A number of grounds have been relied on to challenge the district judge's decision. The first two grounds allege that there has been a failure to comply with both section 2(4)(b) and section 2(4)(c) of the Extradition Act. I shall deal first with 2(4)(b). Section 2 provides for what must be contained in a European arrest warrant and (b) states that it should contain the following information:
"Particulars of any other warrant issued in the category one territory for the person's arrest in respect of the offence."
Obviously, the singular there includes the plural.
There has been recent authority in the European Court of Justice which deals with section 2(4)(b) and that is Criminal Proceeding against Bob-Dogi [2016] 1 WLR 4583, which was a request for a preliminary ruling from Romania.
The issue in that case was whether there was a need for an independent warrant or whether the arrest warrant itself, if the law of the country in question permitted it, to include both domestic and European. The court decided that it was necessary that there be an independent domestic warrant and the reasoning behind that decision was, essentially, that it was part of the procedural protection for the individual which was involved in the arrest warrant system, because it was necessary for the individual to know that there had been in the requesting state an independent process. It may be a warrant; it may be a charge; it may be a requirement to attend court but there must be a pre-existing document of one sort or another which has the necessary effect in domestic law and upon which the European arrest warrant can be based.
Article 8 (1)(c) of the Framework Decision provides that there needs to be:
"Evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect."
That is translated in this jurisdiction to require particulars of any other warrant and it is apparent, when one reads the two together, that the particulars in 2(4)(b) do not descend to the particulars of the warrant itself, beyond the fact that it exists and that it was in existence at the time of and so before, or it could even be simultaneous with the issue of the arrest warrant.
What is set out in the European arrest warrant in this case in box b), which is headed "Decision on which the warrant arrest is based", and is this:-
"1. Arrest warrant or any judicial decision having the same affect:
Type: Notice and bill of criminal indictment, and order for the accused to appear in this court for first interrogatory."
Mr Seifreid submits that this is far too vague to qualify as particulars of the necessary document but it seems to me that it clearly does indicate that there is such a document. Indeed, it seems there was more than one, because there was a notice and bill, as it is put, a criminal indictment and in addition, an order to appear in court. True, it might have been more helpful had they been dated. One of the main reasons for this requirement is that it may go to whether the requested person in question has any rights based upon time having elapsed, to see whether perhaps it can be said there has been any culpable delay in dealing with the matter.
However, there has been further information which covers to an extent those issues. That information states, so far as material, that the appellant had never been arrested or interrogated for the crimes of which he was accused because it was not known where he was and it took until the end of March 2008 before the appellant was charged, and the accusation was received by the judge on 1 September 2008. That on its face suggests the existence of the necessary documentation at that date, although it is true it does not specifically indicate that those documents were referred to in the EAW.
The information goes on:
"The time elapsed between the facts and the charge was due to the complexity of the facts to investigate which involves the collection and analysis of abundant testimonial evidence, documentary and expert, having been accused another eight defendants."
Essentially, any further delay was caused by ignorance of where the appellant was. It is not in this case suggested that he should be regarded as a fugitive, because the further information makes clear that the authorities had not been able to contact him because they did not know where he was and therefore he was unaware that he was charged with any offence.
Reliance is placed by Miss Pottle in relation to this particular ground on Artola v the 6th Section of the National High Court of Madrid, Spain [2013] EWHC 524 (Admin). That was a decision of the Divisional Court consisting of Toulson LJ and Underhill J.
The warrant in that case in relation to the 2(4)(b) requirements contained the following information, "25 October 2001, writ for an international arrest warrant." The question was whether that was sufficient.
The approach, which the court inevitably accepted, was whether the totality of the information contained in the warrant satisfied the requirements of section 2(4). It was, Toulson LJ, said a fact-specific question, as indeed it clearly is, but what was submitted in that case and so was sufficient, was that the appellant knew the identity of the judicial authority which issued the EAW; he knew about the issue of the process against him in order to meet the objectives of Article 8.
It is true that in the case of Artola there was a degree of wrapping up the requirements of 2(4)(b) and 2(4)(c) together, but it seems to me to be quite apparent that provided it is made clear that there exists the necessary document which complies with what is required by Article 8 of the framework decision in section 2(4)(b) of our statute, then the procedural question, which is what this really amounts to, is satisfied.
It seems to me in the circumstances of this case that there was sufficient compliance in that the necessary particulars of the relevant document or documents was set out. It is suggested that the date upon which they or any of them were issued is material because it could go to questions of culpability and delay, but the further information, as it seems to me, covers that issue, even if it were a defect, and in my view it is not, in the original EAW.
Accordingly, I do not accept that that ground is made out.
The second ground depends upon section 2(4)(c) which puts into effect Article 8(1)(e) of the Framework Decision, and thus, should be read in conformity with that, albeit of course it is open to an individual State to impose greater protection for the individual than the Framework Decision indicates to be what is, as it were, basic.
Article 8(1)(e) requires that there be:
"A description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;"
That is translated into domestic law by section 2(4)(c), which provides:
"Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute...
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Harry Meadows v Examining Court, Malaga, Spain
...of extradition under Article 8 ECHR; King v France [2015] EWHC 3670 (Admin). Collins J, in Felix v Comarca de Lisboa, Portugal [2016] EWHC 3518 (Admin), at [44], pointed out that the degree of participation in the offending had to be set out, which he treated as the nature and extent of p......