French v Public Prosecutor of the Central Department of Investigation and Prosecution in Lisbon, Portugal
| Jurisdiction | UK Non-devolved |
| Judge | Lord Wilson |
| Judgment Date | 13 June 2013 |
| Neutral Citation | [2013] UKPC 16 |
| Docket Number | Appeal No 0042 of 2012 |
| Court | Privy Council |
[2013] UKPC 16
Privy Council
Lord Hope
Lady Hale
Lord Kerr
Lord Wilson
Lord Hughes
Appeal No 0042 of 2012
Appellant
Christopher Marsh-Finch
(Instructed by Creed Lane Law Group)
Respondent
Lewis Baglietto
(Instructed by Clyde & Co)
Heard on 25 April 2013
The judgment of the Board is delivered by Lord Wilson.
Mr French ("the appellant") appeals against an order of the Supreme Court of Gibraltar (The Hon Mr Justice Black) dated 16 April 2012, by which it dismissed the appellant's appeal against an order of the Magistrates' Court of Gibraltar (Mr Charles Pitto, Stipendiary Magistrate) dated 23 March 2012. The order of the Magistrates' Court was that the appellant should be surrendered to the State of Portugal pursuant to a European arrest warrant which on 9 December 2011 had been issued by the respondent, the Public Prosecutor of the Central Department of Investigation and Prosecution in Lisbon.
The basis of the warrant was that the State of Portugal proposed to interrogate and, subject thereto, to prosecute the appellant for an offence of being involved in the trafficking of narcotic drugs, namely 6082 kilos of hashish, from Morocco into Portugal.
Various grounds of opposition to execution of the warrant were raised on behalf of the appellant in the Magistrates' Court and on the appeal to the Supreme Court. The latter permitted one, but only one, of the grounds to be raised in a further appeal to the Board. The other grounds have been the subject of an unsuccessful application to the Board for permission to appeal, the result of which has been some delay in the despatch of the appeal.
The ground of the appeal to the Board surrounds the period of time which elapsed between the date of the appellant's arrest in Gibraltar (18 January 2012) and the date of the order for his surrender to the State of Portugal (23 March 2012). That is a period of 65 days. The appellant argues that, in that the period exceeded 60 days, the order for his surrender was unlawful and that therefore he was and is entitled to be released from custody in Gibraltar in which, to date, he has remained.
The period became extended to 65 days in the following circumstances:
-
(a) On 20 January 2012 the appellant first appeared in the Magistrates' Court. The court acceded to his application for an adjournment so that he could obtain legal advice. No date was then fixed for the hearing of the respondent's application.
-
(b) On 26 January and 2 February 2012 there were further hearings in the Magistrates' Court. At the earlier hearing the appellant indicated his intention to contest the application. On both occasions the matter was adjourned but, again, no date was fixed for the hearing.
-
(c) On 10 February 2012 the court informed the parties that it had fixed a date for the hearing, namely 27 February. The court told them that the fixture was provisional in that it depended upon the expected vacation of another fixture on that date.
-
(d) On 17 February 2012 the court informed the parties that the expected vacation of the other fixture on 27 February had not occurred and it indicated that, instead, the hearing would take place on 22 March 2012.
-
(e) On 20 March 2012 the appellant, by counsel, filed supplemental written submissions in which, for the first time, he alerted the court to the alleged requirement that the hearing should be completed within 60 days of his arrest, being a period which by then had elapsed.
-
(f) On 22 March 2012 the Magistrate duly conducted the hearing and on the following day he gave judgment and made the order for surrender.
Subject to certain exceptions which are not in point in this case, the law of the European Union as a whole applies to Gibraltar: section 3, European Communities Act. Article 355(3) of the Treaty on the Functioning of the European Union, which replicates in almost identical terms Article 299(4) of the Treaty establishing the European Community, states that "The provisions of the Treaties [i.e. also including the Treaty on the European Union] shall apply to the European territories for whose external relations a Member State is responsible". Gibraltar is a European territory for whose external relations the U.K. is responsible. In that the treaty recognises Gibraltar as being a jurisdiction separate from the U.K., to which EU law applies, it is for the Parliament of Gibraltar to transpose EU law into local law when required to do so.
The genesis of the arrangements between members of the EU for mutual implementation of European arrest warrants was the Council Framework Decision of 13 June 2002 (2002/584/JHA). The Decision (as the Board will call it) was adopted by the Council pursuant to Article 34(2) of the Treaty on the European Union in the form which that treaty took prior to the Treaty of Lisbon. Article 34(2), within Title VI, which was headed "Provisions on police and judicial cooperation in criminal matters", provided:
"The Council shall take measures and promote cooperation…contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:
b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;"
…
In that there has been no repeal, annulment or amendment of the Decision since the entry into force of the Treaty of Lisbon on 1 December 2009, its legal effects continue: Article 9 of Protocol No 36 to that treaty. But its effects are limited. As a matter of international obligation, Member States are required to legislate in such a way as to achieve the result which the Decision aims to achieve. But the law derives from the consequential domestic legislation rather than from the Decision. The residual legal significance of the Decision was addressed by Lord Mance in Assange v The Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22, [2012] 2 AC 471, at paras 201 to 218. His was a dissenting judgment but there was no disagreement with his exposition in those paragraphs; and in her dissenting judgment Baroness Hale offered a similar analysis at paras 173 to 176. It is enough, by way of bald summary, to say that Lord Mance recognised the presumption at common law that domestic legislation should be read consistently with the Decision as an expression of international obligation but that he did not accept the application of the more muscular "principle of conforming interpretation" of the domestic legislation in accordance with the Decision which had been propounded by the Grand Chamber of the European Court of Justice in Criminal Proceedings against Pupino, Case C-105/03, [2006] QB 83. Nothing in the present appeal turns on this difference of interpretative approach.
Paragraph 5 of the recitals to the Decision provides:
"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures."…
Article 15 of the Decision, entitled "Surrender decision", provides:
"1. The executing judicial authority shall decide, within the time-limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered."
Paragraph 2 of Article 15 entitles the requested judicial authority to ask the issuing state to furnish further information "as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17".
Article 17, entitled "Time limits and procedures for the decision to execute the European arrest warrant", warrants quotation almost in full:
"1. A European arrest warrant shall be dealt with and executed as a matter of urgency.
2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given.
3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person.
4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days.
5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled.
…
7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level."
Article 23, entitled "Time limits for...
To continue reading
Request your trial