Gary Fenton v Court of Palma De Mallorca (Spain)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave,Lord Justice Irwin |
| Judgment Date | 18 May 2017 |
| Neutral Citation | [2017] EWHC 1161 (Admin) |
| Docket Number | Case No: CO/4973/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 May 2017 |
[2017] EWHC 1161 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Irwin
Mr Justice Haddon-Cave
Case No: CO/4973/2016
Mr Graeme Hall (instructed by Kaim Todner Solicitors) for the Appellant
Mr Ben Lloyd (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 4 May 2017
Approved Judgment
The Appellant appeals against the decision of District Judge Zani dated 29th September 2016 ordering the Appellant's extradition to Spain pursuant to a European Arrest Warrant ("EAW") issued by the Respondent on 28th March 2016. The Appellant was granted permission to appeal on a single ground, namely that his extradition is barred by reason of section 12A of the Extradition Act 2003.
At the extradition hearing, District Judge Zani heard live evidence from the Appellant and evidence by video-link from an expert on Spanish law.
EAW
The EAW was issued on 28th March 2016 and certified by the National Crime Agency on 21st April 2016. The Framework List of Offences indicated was "illicit trafficking in narcotic drugs and psychotropic substances".
The EAW set out the following description of the circumstances in which the offence was committed and the participation of the Requested Person ("RP") in section (e) (underlining in original):
" The investigated individual GARY SCOT FENTON is one of the leading members of an organised criminal band just as Marlon Hibbert, Roy Shepherd and Derrick Lee Rushton are. The organizations was dedicated to trafficking and supplying narchotics….. to others, mostly to British tourists in Magaluf (Calvia County – Majorca Island). These findings took place at least during July and September 2014. From Britain Mr Fenton, was in charge for the delivery of the drugs parcels to Majorca, giving orders to his subordinates and controlling the activity of his deputy Marlon Hibbert who was in charge of the storage and distribution of the drugs to the lower ranks of the organisation to sell it. Mr Hibbert also sent Mr. Fenton the money from dealing with drugs and kept him informed about the gainings of the business. It has been confirmed that Mr. Fenton was living in Majorca in the House of the defendant Marlon Hibbert at least from August 27 until an uncertain date before September 10, 2014. …. There is further evidence that prove the tight relationship between both investigated individuals Mr. Hibbert and Mr. Fenton. When the law enforcement officers conducted a search of that dwelling took place Mr. Fenton and Mr. Hibbert had already disappeared and left Majorca island.
On October 14, 2014 the Crown Court equivalent Audiencia Provincial (Nr. 2) of the Balearics issued a final judgment ruling after convicting a total of 14 individuals who plead bargain to the Prosecution Service's deal after accepting their responsibility with regard to the findings. Derrick Lee Rushton, Roy Shepherd and Mathew James Dendle were some of these culprits, and their convictions was 3 years and 9 months imprisonment and further EUR 35,639.41 each. That ruling established, after the defendant plead guilty, that Rushton and Shepherd's function within the criminal organization was to be in charge of receiving and to store the narcotics to enable the subsequent distribution and trade with the final customer. Mr. Rushton and Mr. Shepherd admitted that they worked under command of the escaped investigated individuals Mr. Hibbert and Mr. Fenton, towards whom they were accountable for their commissions and of the earnings obtained from drug trafficking." [sic]
The EAW set out the following other circumstances relevant to the case in section (f):
" As Mr Fenton fled from Spain it was not possible to initiate formally speaking proceedings against him as in accordance with Spanish Process Legislation every alleged offender is entitled to the following rights: to be informed what he is alledgely accountable for, to make a statement and, in general, a right to defence from the earliest stage of instalment of proceedings. Without a preliminary hearing in the matter he can't officially be charged. For this reason, as there is sufficient ground to suspect he might have fled to Great Britain the EAW was issued. The search conducted of the dwelling pointed out that the absence of the occupants had been precipitated and since then they are missing. He can't however not know the offences he is investigated for, as a few of his main collaborators had previously been taken on remand and subsequently judged and convicted for this same manner. The European Arresnt Warrant and Surrender to the Spanish Authorities need to be maintained legitimate, as there is no other way to charge him and conduct proceedings, as the individual in question has proved unwaveringly unwilling to attend and is therefore in contempt with court. In addition to this, Mr. Gary Fenton, unlike the other investigated individual James Turner, is in the high rank within the criminal organization and his criminal responsibility is therefore undoubtedly the same or higher than the ones the other culprits underwent. Benchmark is six year imprisonment. The investigation is currently regarded as concluded at the expense of the examination of Mr. Fenton and the evidence of his defence wants to put across. After that procedure the next step is granting the Prosecution Service the change to submit the bill of indictment." [sic]
Further information
On 24th August 2016, the Liaison Magistrate for Spain to the United Kingdom, Miguel Carmona Ruano, filed a statement of Further Information which stated inter alia:
" The instruccion (judicial investigation and preparatory stage) is finished as there is not any further activity is needed and the case is pending of knowing the results of the request for extradition, as the RP is still formally "absent". The next steps to be taken are the decision on the continuity of the case (auto de continuacion del procedimiento) and the presentation by the Public Prosecutor of a formal indictment (escrito de acusacion)." [sic]
On 25th August 2016, Senor Ruano filed a statement of Further Information commenting in detail on the report of the Appellant's expert, Professor Gomez-Jara (who had filed an extensive report on Spanish criminal law and procedure). Senor Ruano stated in his conclusions as to Professor Gomez-Jara's report as follows:
" 4. The so called "transformation ruling" in this case.…[T]he only reason why RP Gary Scott FENTON was not included in this ruling, consequently was not included by the indictment lodged by the public prosecutor and was not tried, differently from the other suspects, is his absence."
" 7. CONCLUSIONS. … As said, the other people having had intervention in the facts have already been accused, tried, convicted and sentenced after having pleaded guilty. The only reason why the RP Gary Scott FENTON has not been tried so far is his absconding and not submission to the Spanish court." [sic]
The Requested Person
The Appellant was born in the UK on 1st May 1978 and holds a British passport. He lives in Chorley in Lancashire with his partner, the mother of his two children. He has previous convictions, including a conviction on 3rd November 2003 at Liverpool Crown Court for conspiracy to import Class A drugs into the UK for which he received a sentence of 10 years.
On 19th November 2014, the Appellant was informed that the Spanish authorities had issued an EAW against him, Marlon Hibbert, Dale Cook, Thomas Toczek and Michael Turner. The Appellant admitted in his statement knowing Marlon Hibbert with whom he had stayed at his villa in Spain.
Section 12A
Section 12A of the Extradition Act 2003 provides:
(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if) —
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person's absence from the category 1 territory is not the sole reason for that failure,
and
(b) those representing the category 1 territory do not prove that —
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.
(2) In this section "to charge" and "to try", in relation to a person and an extradition offence, mean—
(a) to charge the person with the offence in the category 1 territory, and
(b) to try the person for the offence in the category 1 territory.
Decision of District Judge Zani
The Appellant objected to the EAW on three grounds: section 12A, Article 8 and proportionality. These grounds were each dismissed by District Judge Zani. As stated above, the Appellant has only been granted permission on the section 12A ground. Judge Zani's ruling on section 12A was as follows:
" 44. s.12 A Ruling:
Having considered the contents of the EAW as well as the Further Information supplied by the Spanish authorities I am satisfied that a decision to charge has been made. I am aware that this is a concession made by Mr Hanratty on Mr Fenton's behalf. I am satisfied that the 1 st stage of proceedings in Spain, (the Investigation Stage), has concluded.
45. I will therefore now turn my mind to the challenge in respect of the decision to try. Prof G-J states that, in his opinion, no decision to try has been taken. In the...
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