Jemma Killoran v Investigative Judge, Antwerp Court of First Instance, Belgium
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mrs Justice Cheema-Grubb |
| Judgment Date | 12 August 2021 |
| Neutral Citation | [2021] EWHC 2290 (Admin) |
| Docket Number | Case No: CO/3401/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2290 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
and
Mrs Justice Cheema-Grubb DBE
Case No: CO/3401/2020
Ben Watson QC and Graeme Hall (instructed by Sonn Macmillan Walker) for the Appellant
John Hardy QC and David Ball (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 28 July 2021
Approved Judgment
Introduction
This is an appeal against an order for the extradition of the appellant, Jemma Killoran, made by District Judge Jabbitt (“the judge”) dated 17 September 2020. The issue on the appeal is whether a decision to try Ms Killoran in Belgium had been made, as required by sections 11(1)(aa) and 12A of the Extradition Act 2003 (“the 2003 Act”).
The European Arrest Warrant (“EAW”) was issued by the Respondent, the Investigative Judge, Antwerp Court of First Instance, Belgium on 16 January 2000 and it was certified on 19 January 2020. The Investigative Judge is also referred to in the evidence as an examining magistrate or investigating magistrate. It is an accusation warrant relating to offences of people smuggling said to have been committed by Ms Killoran with Saman Ahmed Taha. The appellant appealed pursuant to section 26 of the 2003 Act. Mr Taha had also appealed but he has now withdrawn his appeal and has been extradited.
The European Arrest Warrant and further information
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”.
The description of the circumstances in which the offences were committed is set out below:
“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 Jemma, 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 Turnhout 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.” (emphasis added).
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 was provided by the Antwerp Public Prosecutor's Office. This stated that the police investigation in the case began on 28 September 2018. Since then, the examining magistrate had 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” (emphasis added).
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” (emphasis added).
It is added that “ she has smuggled victims/migrants from France to the UK by ferry” (emphasis added). The appellant's role is said to include “ purchasing cars in the UK used for smuggling activities” (emphasis added). These cars were 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 have been informed about the financial aspects of the activities of Mr Taha. She knew what price victims had to pay to be smuggled to the UK. She was responsible for transferring money on behalf of Mr Taha. She knew how the financial arrangements were 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 change phones, and knew 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” (emphasis added).
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 evidence from the authorised telephone intercept.
It is only right to record that as these are extradition proceedings, Ms Killoran has not set out her defence to the allegations made against her.
Sections 11(1)(aa) and 12A of the 2003 Act
Sections 11(1)(aa) and 12A of the 2003 Act were inserted into the 2003 Act by section 156 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). The legislative background is set out in the decision of the Divisional Court (Aikens LJ and Nicol J) in Kandola v Generalstaatwaltschaft Frankfurt [2015] EWHC 619 (Admin); [2015] 1 WLR 5097 at paragraphs 20 to 24. This analysis of the mischief to which section 12A was directed was adopted by the Divisional Court (Lord Thomas CJ, Burnett LJ and Ouseley J) in Puceviciene v Prosecutor General's Office of the Republic of Lithuania [2016] EWHC 1862 (Admin); [2016] 1 WLR 4937 at paragraphs 10 and 11. The Divisional Court (Beatson LJ and Ouseley J) revisited section 12A of the 2003 Act in Doci v The Court of Brescia, Italy [2016] EWHC 2100 (Admin).
Although section 12A did not form part of the Council Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures (“the Framework Decision”) to which domestic effect was given in the 2003 Act, other jurisdictions including THE Republic of Ireland and Gibraltar have adopted similar provisions to section 12A. Puceviciene confirmed that section 12A was inserted in Part 1 of the 2003 Act with the aim of ensuring that those extradited under “accusation” EAW's should not be subject to long periods in detention while investigations were carried out in the requesting state.
Section 11(1)(aa) of the 2003 Act provides: “(1) If the judge is required to proceed under this section he must decide whether the person's extradition to the category 1 territory is barred by reason of- … (aa)...
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