Jemma Killoran v Investigative Judge, Antwerp Court of First Instance, Belgium
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 13 May 2021 |
| Neutral Citation | [2021] EWHC 1257 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3401/2020 |
| Date | 13 May 2021 |
[2021] EWHC 1257 (Admin)
Mr Justice Chamberlain
Case No: CO/3401/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Graeme Hall (instructed by Sonn Macmillan Walker) for the Applicant
David Ball (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 29 April 2021
Approved Judgment
Introduction
The appellant, Jemma Killoran, is sought by the Court of First Instance of Antwerp, Belgium, pursuant to a European arrest warrant (“EAW”) issued on 16 January 2020 and certified on 19 January 2020. This is an accusation warrant relating to offences of people smuggling, said to have been committed jointly with a Saman Ahmed Taha. The extradition hearing took place at Westminster Magistrates' Court on 13 and 17 July 2020 before District Judge Jabbitt. For reasons contained in a judgment handed down on 17 September 2020, he ordered the appellant's and Mr Taha's extradition.
The appellant appealed pursuant to s. 26 of the Extradition Act 2003 (“the 2003 Act”). Mr Taha also appealed but has now withdrawn his appeal and was extradited. In the appellant's case, permission to appeal was refused by Johnson J on the papers. The application for permission was renewed before me at a hearing on 29 April 2021. I indicated that I would reserve judgment.
Graeme Hall, for the appellant, advanced six grounds of appeal:
Ground 1 – s. 2(4)(c) of the 2003 Act – inadequate particulars
(a) The EAW fails adequately to particularise each offence.
(b) This was a “wholesale failure” to comply with s. 2(4)(c) of the 2003 Act, which could not be cured by further information.
(c) In any event, even read with the further information provided by the Belgian authorities, the EAW does not provide adequate particulars of the offence.
Ground 2 – s. 2(4)(d) of the 2003 Act
The EAW does not adequately particularise the maximum sentence for each offence and the sentencing range provided was inaccurate.
Ground 3 – Zakrzewski abuse
The EAW was fundamentally misleading in that it gave the wrong information about the sentence that could be imposed. In this respect to proceed on this warrant would be an abuse of process: Zakrzewski v Poland [2013] 1 WLR 324.
Ground 4 – s. 10 of the 2003 Act
This is said to be “parasitic on ground 1”.
Ground 5 – s. 12A of the 2003 Act
Extradition is barred by s. 12A of the 2003 Act because no decision to try has yet been taken.
Ground 6 – s. 21A of the 2003 Act and Article 8 ECHR
Extradition would be a disproportionate interference with the appellant's private and family life.
The EAWs
In box c of the EAW, next to the words “Maximum length of the custodial sentence or detention order which may be imposed for the offence(s)” was “prison sentence of 15 to 20 years”.
In box e of the EAW, it was said that:
“This warrant relates to in total several offences committed probably between August 2018 and the present date.” (Emphasis in original.)
The description of the circumstances in which the offences were committed was as follows:
“The investigation has revealed that a criminal organisation presumably led by TAHA AHMED Saman (born in Iraq on 10 June 1990), also known as SARDAR SLEMAN Sarmand, has been using motorway parking areas along the E34 in Oud-Turnhout and Vosselaar, along the E313 Maasmechelen and along the E40 Aire de Crisnée for smuggling victims to the United Kingdom against the payment. The victims of the organisation either need to travel from Brussels to the motorway parking areas on foot and with public transport (railway and bus), where they receive further instructions from the members of the organisation, or are picked by the members of the organisation at the railway station and are then taken to the motorway parking area in the vehicle. After their arrival at the parking area, the smugglers lead the victims into the loading spaces heavy goods vehicles that are parked there, which include refrigerator trucks.
Several facts of human smuggling that can be attributed to the criminal organisation and the motorway parking areas have now been added to the investigation. These events took place on 28 September 2018, 30 November 2018, 30 October 2019 and 7 November 2019.
Within the framework of his human smuggling operations, TAHA AHMED Saman is assisted by several individuals, including his girlfriend KILLORAN Jamma [sic], the individual named ASSAD (possibly identified as the individual named KOLUNI Assad), individual named SORAN, the individual named ALI and the individual named IBRAHIM. Up to now, it has been impossible to identify all suspects.
The investigation has revealed that, during several nights, KILLORAN Jemma, the girlfriend of TAHA AHMED Saman and a British national, was registered in the surroundings of the motorway parking areas along the E34 in Oud-Tunrhout and along the E313 in Maasmechelen, and that she transported victims from the Turnhout railway station to the motorway parking area along the E34 in Oud-Turnhout during several nights.”
As to the nature and legal classification of the offences and applicable statutory provisions, the EAW said this:
“A. Smuggling of human beings, committed against minors, during which the victim's life was exposed to serious danger, as a habit, and within the framework of a criminal organisation.
B. Smuggling of human beings, during which the victim's life was exposed to serious danger, as a habit, and within the framework of a criminal organisation.
Offences punishable in accordance with Section 66 of the Criminal Code and Sections 77, 77quater, 77quinquies and 77sexies of the Law of 15 December 1980 on the access to the territory, stay, establishment and return of the foreigners.”
Further information has been given by the Antwerp Public Prosecutor's Office, which establishes that the police investigation in the appellant's case began on 28 September 2018. Since then, the examining magistrate started an “instruction” against Mr Taha for offences of smuggling human beings; the public prosecutor asked the examining magistrate to expand his instruction by adding additional facts; warrants were issued for phone tapping; requests were made for mutual legal assistance and the EAWs for Mr Taha and the appellant were issued. The examining magistrate will refer the case back to the public prosecutor when he or she considers sufficient evidence has been gathered. The public prosecutor then added as follows:
“In light of the existing evidence in this case, I have already decided that once the Examining Magistrate refers the case back to me, I will refer it to the Council Chamber so that the case may go to a full criminal trial.”
Further information received in July 2019 indicates that the appellant “can be placed on highway parkings E34 Oud Turnhout and E313 Maasmechelen, and this during several smuggling nights in period August 2018 until April 2019”. The appellant is described as being “responsible for transporting victims/migrants from the train station in Turnhout to highway parking E34 Oud Turnhout, this while making use of a car registered to her name” and “responsible for transporting TAHA AHMED Saman and other members of the organization to the parking and picking them back up after completing the smuggling activities”. It is added that “she has smuggled victims/migrants from France to the UK by ferry”.
The appellant's role is said to include “purchasing cars in the UK used for smuggling activities”. These are said to have been transported by the appellant by ferry from Dover to the mainland and handed over to Mr Taha or used herself to provide assistance during smuggling activities. The Appellant is said to be informed of the financial aspects of the activities of Mr Taha. She knows what price victims have to pay to be smuggled to the UK. She is responsible for transferring money on behalf of Mr Taha. She knows how the financial arrangements are made. She knows what Mr Taha has earned with regards to his smuggling activities. She is said to have given advice to Mr Taha as to how he should execute his smuggling activities, for example advising him to changes phones, and knows the other members of the organisation. The further information ends with this: “She's alleged to have committed human trafficking in period 01/08/2018 until 20/01/2020, with a maximum sentence of 15 years, which up until present time 15 offences can be identified”.
This prompted further questions, the answers to which clarified that the maximum sentence provided for law was 20 years, but that this was reduced to a maximum of 15 years “as a result of the (mandatory) acceptance of mitigating circumstances in case of referral of the matter to the correctional court”. Further detail was given as to the appellant's involvement in the offences, including the dates of the occasions when she was present at the parking areas on the E34 and E313 and what was shown by the telephone intercept authorised.
Ground 1
The judgment below
The judge started from the general proposition that there should be a substantial measure of mutual trust and confidence between states that are signatories to the Framework Decision. The focus of the court should be on the alleged conduct, rather than a rigid requirement of specificity in respect of each alleged offence. The judge relied on the decision of Fordham J refusing permission to appeal in Zeka v Court of First Instance, West Flanders Division, Bruges (Belgium) [2020] EWHC 2304 (Admin), at [3]: “If the ‘species’ of the offence is clear, then ‘dual criminality’ compatibility testing can be undertaken. If the species of bird is known, the precise number within the flock does not change the fact that...
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