Kemen Uranga Artola v The 6th Section of the National High Court of Madrid, Spain
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Mr Justice Underhill |
| Judgment Date | 06 March 2013 |
| Neutral Citation | [2013] EWHC 524 (Admin) |
| Docket Number | CO/13682/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 March 2013 |
[2013] EWHC 524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London
WC2A 2LL
Lord Justice Toulson
and
Mr Justice Underhill
CO/13682/2012
Mr Mark Summers (instructed by Birnberg Peirce & Partners, London NW1 7HJ) appeared on behalf of the Appellant
Mr Ben Lloyd (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
On 13 December 2012 at Westminster Magistrates' Court, District Judge Zani ordered the extradition of the appellant to Spain under a European Arrest Warrant ("EAW") issued by Judge Galvez of the 6th Section of the Central Investigative Court of the National High Court in Madrid on an accusation that he was guilty of a terrorist offence. The EAW was issued on 18 February 2004 and certified by the Serious Organised Crime Agency ("SOCA") on 3 August 2012. The appellant was arrested on 8 August 2012.
Spain has been designated under section 1 of the Extradition Act 2003 as a category 1 territory, so that the relevant statutory provisions are those in Part 1 of the Act. In box (b) of the EAW the particulars inserted after the words on the form "Arrest warrant or judicial decision having the same effect" and "Type" were:
"25 October 2001
WRIT FOR AN INTERNATIONAL ARREST WARRANT"
In box (c) the maximum sentence was stated to be "FROM 5 TO 10 YEARS' IMPRISONMENT". Box (e) contained a fairly detailed description of the alleged offence. In summary, it was alleged that in October 2000 members of ETA were in contact with the appellant in Bilbao. At their behest he rented a flat in Basauri as a safe house for members of ETA. On 15 October 2000 police searched the flat under a court order. They found explosives, detonators, timing devices, false vehicle licence plates, ammunition and documents and instructions for preparing explosives. The nature and legal classification of the offence was stated to be "CO-OPERATION WITH A TERRORIST GROUP AS STIPULATED IN ARTICLE 576 OF THE SPANISH CRIMINAL CODE". That was followed on the original Spanish version of the EAW by a cross against "terrorism" in the list of Framework offences, but no cross appeared on the English translation. The judicial authority which issued the warrant was stated to be Examining Central Court number 6, Audiencia Nacional.
The validity of the EAW is challenged by the appellant on different grounds. At the outset of his submissions, Mr Summers reminded the court of the following principles, which are not disputed:
(1) The validity of an EAW is a jurisdictional requirement.
(2) Strict compliance is required.
(3) No extraneous material may be used for the purpose.
(4) The burden of proof rests on a requesting judicial authority to the criminal standard.
(5) The time for assessment of validity is when SOCA certified the EAW (in this case 3 August 2012).
(6) It may in some circumstances be open to a respondent to rely on extraneous material not for the purpose of challenging the validity of an EAW which is valid on its face, but in support of an abuse of process argument.
It is submitted first that the EAW did not comply with the formal requirements of section 2(4)(b) of the Act for two reasons. One reason is that the judicial decision dated 25 October 2001 was described as a "writ for an international arrest warrant" and therefore did not satisfy the statutory requirement for an EAW. The other ground of alleged non-compliance is that the document did not identify who issued the writ for an international arrest warrant. If those challenges fail on the face of the EAW, it is alleged that extrinsic material shows that the proceedings are an abuse of process. If the challenges in relation to section 2 fail, it is alleged that the requesting state has not shown that the appellant was guilty of an extradition offence, because the EAW does not establish that his extradition is sought for a framework offence, namely terrorism, nor is the requesting state able to demonstrate to the requisite degree of certainty that the offence for which is extradition is sought satisfies the dual criminality test under section 64(3).
The challenges under section 2
It is well established that this provision has to be read in harmony with the Framework Decision. Article 8.1 of the Framework Decision provides:
"The European Arrest Warrant shall contain the following information set out in accordance with the form contained in the Annex:
(a) the identity and nationality of the requested person;
(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;
(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable decision having the same effect, coming within the scope of Articles 1 and 2;
(d) the nature and legal classification of the offence, particularly in respect of Article 2;
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member state;
(g) if possible, other consequences of the offence."
Article 1, to which Article 8(c) makes reference, defines an EAW in this way:
"A European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
Section 2 of the Act provides, so far as material, as follows:
"(1) This section applies if a designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains ——
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that ——
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is ——
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence ….
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) The statement is one that ——
(a) the person in respect of whom the Part 1 warrant is issued [has been convicted] of an offence specified in the warrant by a court in the category 1 territory; and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence.
(6) The information is ——
(a) particulars of the person's identity;
(b) particulars of the conviction;
(c) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence;
(e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence."
Subsections (5) and (6) are not directly in point in this case, but I have included them because they have featured in the argument, as will become clear.
Mr Summers' argument for contending that the description in box (b) "writ for an international arrest warrant" was defective is founded on the judgment of the Supreme Court in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4, [2009] 1 WLR 2250. The attack on the validity of the EAW in that case was based on the fact that it had been preceded by two earlier versions, which were no longer relied upon by the prosecution but which were not mentioned in the EAW. The Supreme Court held that the absence of any reference to those earlier EAWs did not render the EAW invalid. Mr Summers submits that the reasoning process demonstrates that the statement in the present EAW about an international arrest warrant was irrelevant and that what was critical was the omission of any identification of a warrant for the appellant's arrest in Spain. The sole judgment of the Supreme Court in Louca was given by Lord Mance. It is not a long judgment, and it upheld the reasoning of Dyson LJ in the Divisional Court, in particular in making the following four points:
"9. …. (i) the Framework Decision does not in Article 8(1)(c) use the phrase 'European arrest warrant', as it does consistently elsewhere when referring to such a warrant; (ii) the concepts of 'an enforceable judgment, an arrest warrant or any other enforceable judicial decision' cannot easily be understood as limited to a European arrest warrant; (iii) the phrase 'coming within the scope of Articles 1 and 2'...
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