Joe Anthony Chappell v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Mr Justice Choudhury |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3281 (Admin) |
| Docket Number | Case No: CO/288/2022 CO/357/2022 |
| Court | King's Bench Division (Administrative Court) |
The King, on the application of:
and
[2022] EWHC 3281 (Admin)
Lady Justice Nicola Davies DBE
Mr Justice Choudhury
Case No: CO/288/2022
CO/317/2022
CO/357/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers KC and George Hepburne-Scott (instructed by Foxes Solicitors) for the The First Claimant
Jonathan Hall KC and Alex Tinsley (instructed by Foxes Solicitors) for the The Second Claimant
Edward Fitzgerald KC and Sam Blom-Cooper (instructed by Carson Kaye Solicitors) for the The Third Claimant
Clair Dobbin KC and Rebecca Hill (instructed by Government Legal Department) for the Defendant
Ben Keith and Georgia Beatty (instructed by CPS Extradition Unit) for the Interested Party
Hearing date: 22 November 2022
Lady Justice Nicola Davies,
Introduction
The Claimants challenge the Secretary of State's (“SSHD's”) certification, under s.70 of the Extradition Act 2003 (“the 2003 Act”), of the first ever extradition request to the UK from Japan. There is no extradition treaty between the UK and Japan. The extradition proceedings in respect of each of the three Claimants arise under ‘special extradition arrangements’ within the meaning of s.194 of the 2003 Act as set out in a Memorandum of Cooperation between the two nations dated 6 July 2021 (“the MoC”). The Claimants' challenge, in essence, is that the SSHD's certification was unlawful as the request emanated not from the Government of Japan (“GoJ”) as required by the MoC, but from the National Police Agency of Japan (“the Police”). The SSHD's response (supported by the GoJ) is that the request for extradition quite plainly has been made by the GoJ.
Factual Background
The extradition request is made in respect of the three Claimants, who were allegedly involved in a violent robbery of a jewellery store in Tokyo in 2015. The specific crimes alleged are “intrusion upon building” and “robbery resulting in injury”. It is alleged that the three Claimants posed as customers to gain entry to the jewellery store, whereupon one of them punched a security guard causing injury to his face. The Claimants are alleged to have then smashed display cases in order to make off with jewellery to the value of 106,272,000 yen (approximately £630,000 at current exchange rates).
The investigations in Japan led to the identification of the Claimants as suspects. On 28 March 2018, the Police addressed a letter directly ‘To the competent authorities of the United Kingdom (…)’. The letter states: ‘The National Police Agency of Japan, respectfully requests the competent authorities of the United Kingdom (…) to extradite the above-mentioned suspects to Japan’. The Police's letter enclosed correspondence from the Tokyo Metropolitan Police Department, documents setting out the offences in question and the supporting evidence. We refer to this letter and the supporting documents and evidence as “the Police Documents”.
On 3 April 2018, the UK Central Authority (“UKCA”), part of the International Criminality Directorate of the Home Office, received a ‘Note Verbale’ (a form of communication used by a Head of Mission: see Satow's Diplomatic Practice at paragraph 6.7) from the Embassy of Japan in the following terms:
“1. The Embassy of Japan in the United Kingdom of Great Britain and Northern Ireland presents its compliments to the Home Office of the United Kingdom of Great Britain and Northern Ireland and has the honour to request the extradition to Japan of Daniel Lee KELLY, Kaine Lee WRIGHT, and Joe Anthony CHAPPELL for the offences of “intrusion upon building” and “robbery resulting in injury” that occurred in Japan.
2. Please find enclosed the request for Extradition from the National Police Agency of Japan to the competent authorities of the United Kingdom of Great Britain and Northern Ireland (Japanese/English). Please note that the English translations were produced by the National Police Agency of Japan.
3. The Embassy of Japan in the United Kingdom of Great Britain and Northern Ireland avails itself of this opportunity to require to the Home Office of the United Kingdom of Great Britain and Northern Ireland its assurance that this serious matter will be given its highest consideration.”
We shall refer to this Note Verbale as “the April 2018 Note”. At that stage there were no established means by which either country could make an extradition request to the other, there being no extradition treaty between them. However, it is open to the SSHD, pursuant to s.194 of the 2003 Act, to enter into special extradition relations with countries with which no treaty exists, the effect of which would be to allow requests to be certified by the SSHD as if the request had been made by a country under Part 2 of the 2003 Act. Accordingly, negotiations commenced between the UK and Japan on agreeing the terms of the special arrangements. The resulting MoC (the full title of which is the “Memorandum of Cooperation between the Government of the United Kingdom and Northern Ireland and the Government of Japan concerning the extradition of the persons sought”) was agreed on 6 July 2021. It is notable that the MoC is concerned only with the extradition of the three Claimants, who are expressly named in the recitals to, and in the body of, the MoC; it does not authorise extradition requests in respect of any other persons. Indeed, it is stated under the ‘Definitions’ section of the MoC that:
“For the purposes of this Memorandum:
(a) “ Extradition” means the surrender to the jurisdiction of Japan of [the Claimants] who are wanted by the competent authorities in that jurisdiction for the purposes of prosecution;
(b) “Judicial Authority” means the judicial authority which is charged under the law of the United Kingdom with the duty of considering requests for extradition;
(c) “Requested Participant” means the Government of the United Kingdom of Great Britain and Northern Ireland;
“(d) “ Requesting Participant” means the Government of Japan; and
“(e) “the persons sought” means [the Claimants]…” (Emphasis added)
Paragraph 2 of the MoC provides that the UK “will extradite the persons sought to the Requesting Participant in accordance with the measures outlined in this Memorandum”.
Paragraph 6 of the MoC sets out the ‘Extradition Procedures’ and provides:
“1. The request for extradition of any of the persons sought will be made in writing to the Secretary of State for the Home Department through the diplomatic channel”.
On 2 August 2021, the SSHD issued a certificate pursuant to s.194 of the 2003 Act certifying that special arrangements had been made between the countries. On the very next day, 3 August 2021, the UKCA received a further Note Verbale HO/P/01/2021 from the Embassy of Japan (“the August 2021 Note”) in the following terms:
“1. The Embassy of Japan … presents its compliments to the Home Office … and, with reference to Note Verbale HO/P/001/2018 dated 03/04/2018, has the honour to request the extradition of [the Claimants] from the UK to Japan to proceed.”
As with the April 2018 Note, this one was sealed with the official seal of the Embassy of Japan. We refer to the April 2018 Note and the August 2021 Note together as “the Embassy Notes”.
On 4 August 2021, the then head of extradition at the UKCA, Mr Julian Gibbs, issued a certificate pursuant to s.70 of the 2003 Act in respect of each Claimant in the following terms:
“… the Secretary of State hereby certifies that the request from Japan for [the relevant Claimant], which is the subject of special arrangements made pursuant to section 194 of the Act and a certificate issued under that section, is valid and has been made in the approved way.”
It is these s.70 certificates that are the subject of challenge in this application. On the same date, UKCA sent an email to Westminster Magistrates' Court International Jurisdiction Office enclosing: the August 2021 Note, the certificate issued under s.194 of the 2003 Act, the certificates issued under s.70 of the 2003 Act in respect of each Claimant, and the Police Documents (the latter being referred to in the email as “a copy of the extradition request”).
On 17 August 2021, District Judge Zani issued arrest warrants under s.71 of the 2003 Act (“the domestic warrants”) in respect of the Claimants. In each case, the District Judge found that ‘the offence in respect of which extradition is requested’ is an extradition offence.
On 22 September 2021, the First Claimant (Mr Chappell) was arrested under the domestic warrant in his name. Upon arrest, he was provided with the relevant s.70 certificate, the s.194 certificate and the Police Documents. He was not provided with either of the Embassy Notes. On 23 September 2021, Mr Chappell was produced before Westminster Magistrates' Court and was remanded into custody. The matter was adjourned to 14 October 2021 for a case management hearing intended to be before the Senior District Judge.
On 27 September 2021, the Second Claimant (Mr Kelly) was served with the same documents (the s.70 certificate in his case being the one relevant to him) and subsequently arrested on 28 September 2021 at HMP Pentonville, where he was in custody serving a sentence of imprisonment on other matters. As Mr Kelly was a serving prisoner, and then stood charged with a domestic offence, his case was adjourned and he was remanded in custody. His case was also adjourned to 14 October 2021.
Those representing Mr Chappell and Mr Kelly wrote to the CPS seeking sight of the MoC, which was the subject of the s.194 certificate. On 6 October 2021, the CPS...
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