Gilbert Ektor v National Public Prosecutor of Holland

This is another appeal to this court involving an European arrest warrant. In broad terms, the warrant in this case alleges cross-border people trafficking. The appellant contends that the warrant does not comply with the requirements of the Extradition Act 2003 and that consequently the District Judge had no jurisdiction to make the order for extradition. In particular, it is said that the warrant is defective because it does not set out adequately the particulars of the conduct relating to the offences alleged against the appellant.

The Facts

Let me start with the facts. On 17th October 2007, a Public Prosecutor of the National Public Prosecutor's Office of the Netherlands issued an European arrest warrant for Robby Reinholt Hallatu for serious offences associated with people trafficking. Despite the name on the warrant, there is no issue before this court that the appellant, who travels under various aliases, is not the person named in the warrant. The following day, 18th October, an officer of the Serious Organised Crime Agency, which is the agency designated in this country for these purposes, issued a certificate under section 2(7) of the Act. In effect, this recognised the Netherlands as a country to which the provisions of Part 1 of the Act apply. After details about the appellant, the European arrest warrant in this case set out the five offences for which the Dutch authority sought him: human trafficking, contrary to Article 273 of the Dutch Penal Code; people smuggling, Article 197 of that Code; falsification or forgery of travel documents, Article 231; abduction of minors from custody, Article 275; and participation in a criminal organisation, Article 140.

The offences are explained in outline terms in the warrant. The warrant then contained the following under the heading "Description of the facts":

"The person named above is suspected among other things of carrying out human trafficking together with others (including the exploitation of others, which among other things includes enforced prostitution), people smuggling (including aiding and abetting the bringing of illegal persons into the Netherlands), the removal of underage children from the lawful authorities, falsifying or forging of travel documents and/or participation in a criminal organisation, which organisation is alleged to have been participating in said offences in the Netherlands during the period from 1 January 2006 up to and including 24 October 2007. At the time when the offences were being committed Hallatu ('Gilbert'/'Gilbert Solomon') was (mostly) in England. Gilbert CONSPIRED to commit the offences detailed.

The organisation, of which the suspect is a member, is involved among other things in recruiting minors in Nigeria. These are then brought to Western Europe, especially the Netherlands. These minors then register as asylum seekers with the Dutch government which then in accordance with Dutch law proceeds to place them in refuges for underage people.

Then, by using threats of violence against those minors or members of their family with threats of Voodoo, the organisation forces these minors to leave the refuge for minors after which they generally end up in Spain or Italy as illegal prostitutes. The suspect played an important role and directing role in the transport of minors, arranging false documents, maintaining contact between the various members of the organisation and directing one or more of them, including in the Netherlands. The criminal organisation is suspected of being a wide-reaching criminal network, operating at a national and international level."

It is these details which are at issue before us today.

The warrant having been issued, the appellant was arrested on 24th October. There was an initial hearing the following day and the extradition hearing was conducted by District Judge Wickham at the City of Westminster Magistrates' Court on 2nd November 2007. No issue about what happened at that hearing is raised before us today. The District Judge ordered extradition and the appellant now exercises his right of appeal to this court under section 26 of the Extradition Act 2003. In law, he argues that the warrant, not complying with the Act, is a nullity and the District Judge lacked jurisdiction: Boudhiba v Spain[2006] EWHC 167 (Admin).

The Law

Let me set out the law. The European arrest warrant is a measure of the European Union introduced by Council Framework Decision 2002/584/JHA of 13th June 2002. In brief, it is a measure, as reflected in its pre-amble, to simplify extradition procedures between member states of the European Union. It is based on the principle of mutual recognition by the member states of decisions in other member states and, in broader terms, of the mutual trust which member states have in the justice systems of each other. One aspect of the Council Framework Directive is to remove the requirements of double criminality in relation to certain offences set out in Article 2(2) if punishable in the issuing member state by imprisonment or detention for at least three years. It is fair to say that the measure was not uncontroversial, not only here but in other European member states. That is no surprise because, as Lord Hope put it in a passage to which we were taken, the right to liberty is at issue: King's Prosecutor, Brussels v Armas [2006] 2 AC 1 at paragraph 24.

As it is obliged to under the Treaty on European Union, the United Kingdom gave effect to the European arrest warrant. It did this in the Extradition Act 2003Part I, which covers extradition to so-called category 1 territories. That the Act derives from the Council Framework Decision is relevant to the approach we must adopt to its interpretation. We must do so, as the Grand Chamber of the European Court of Justice has held, in the light of the wording and purpose of that Council Framework Decision: Case 105/03, Criminal Proceedings against Pupino[2005] ECR 1-5285. That approach was treated as authoritative by the House of Lords earlier this year in Dabas v Spain [2007] 2 AC 31. Dabas involved a different aspect of Part I of the Extradition Act from that before the court today, the requirement for a certificate in section 64. In his speech, Lord Bingham or Cornhill invoked Pupino, as did Lords Hope and Brown of Eaton-under-Heywood, paragraphs 5, 39 and 76. Lord Mance agreed with their opinions. As Lord Hope put it, the...