Louca v Public Prosecutor, Bielefeld, Germany
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 27 November 2008 |
| Neutral Citation | [2008] EWHC 2907 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2008 |
| Docket Number | Case No: CO/8780/2008, CO/9709/2008 & CO/6133/2008 |
[2008] EWHC 2907 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Lord Justice Dyson
Mr Justice Pitchford
Mr Justice Gross
Case No: CO/8780/2008, CO/9709/2008 & CO/6133/2008
John Jones (instructed by Cartwright King Solicitors) for Anastasis Andrea Louca
Daniel Jones (instructed by CPS) for The Office of Public Prosecutor in Bielefel Germany
Joanne Clement (instructed by TSols) for SOCA
Rosemary Davidson (instructed by Lawrence & Co) for Sekou Kaba
Amy Mannion (instructed by CPS) for the Cretail Court of First Instance France
Hearing dates: Friday 7th November 2008
this is the judgment of the court.
Introduction
Section 2 of the Extradition Act 2003 (“the 2003 Act”) prescribes the contents of a Part 1 warrant issued by a judicial authority of a category 1 territory. We shall refer to such a warrant as a European Arrest Warrant (“EAW”). It must contain the information referred to in subsection (4) or subsection (6) as the case may be. That information includes: “particulars of any other warrant issued in a category 1 territory for the person's arrest in respect of the offence”. The issue which is common to the two appeals that are before us (which are both cases to which subsection (4) applies) is whether the reference to “any other warrant” is a reference to any other EAW that may previously have been issued against the person in respect of the offence, or whether it is a reference to any other arrest warrant issued in the requesting state on which the EAW is based (a “domestic arrest warrant”). The former interpretation was favoured in some obiter dicta expressed by Dyson LJ (with which Collins J agreed) in Jaso and others v Central Criminal Court No2 Madrid [2007] EWHC 2983 (Admin) at [26] which were followed by this court (Maurice Kay LJ and Penry-Davey J) in Zakowski v Regional Court in Szczecin, Poland [2008] EWHC 1389 (Admin) at [25]. In the two appeals before us, it is submitted on behalf of the respondents that this is wrong and that the latter interpretation is correct.
This issue of statutory interpretation arises in both cases. It is the only issue that arises in the case of Kaba. The case of Louca raises other issues as well.
Louca: the facts
Mr Louca is a Cypriot national resident in the United Kingdom. His extradition is sought by Germany for 6 offences of smuggling large quantities of cigarettes into Germany thereby evading liability for duty. The German judicial authority issued 3 EAWs against him. Each EAW was in respect of the same 6 offences. There are slight differences between the EAWs, but essentially they are in the same terms. The first was issued on 14 September 2006 and certified by the Serious Organised Crime Agency (“SOCA”) on 4 December 2007. The second was issued on 23 April 2008 and certified by SOCA on 24 April 2008. This was withdrawn at the City of Westminster Magistrates' Court on 14 July 2008, shortly after Mr Louca had been arrested at court on the third EAW. The third EAW was issued on 14 July 2008 and certified by SOCA on the same day. Each EAW was plainly intended to replace the one before and must have been so understood.
The initial hearing on the third EAW was held on 14 July and 29 July was set for the extradition hearing. The hearing took place before Senior District Judge Workman on 29 July and 19 August. He gave his reserved judgment on 11 September ordering the extradition of Mr Louca to Germany.
The 3 rd EAW stated that it was based on the “arrest warrant for imprisonment on remand” which had been issued on 27 July 2006 by the County Court in Bielefeld (Amtsgericht Bielefeld). It made no reference to either the first or the second EAW. Under the heading “Full description of offences(s)”, the warrant gave a good deal of information. There is an issue whether the information was sufficient to meet the requirements of particularity stated in section 2(4)(c) of the 2003 Act. We shall return to this later in this judgment.
On 17 September, Mr Louca appealed against the extradition order pursuant to section 26 of the 2003 Act. On 13 October, he applied for judicial review against the decision of SOCA to issue a Part 1 warrant in respect of the 3 rd EAW. This application was dismissed by consent during these appeals. We propose to say no more about it.
Louca: summary of the district judge's decision
Extradition was resisted by Mr Louca on the grounds that (i) the EAW did not comply with section 2(4)(b) in that it did not contain the particulars of the two earlier EAWs issued and certified in respect of the same offences; (ii) the particulars of the circumstances in which the offences were alleged to have been committed were insufficient to meet the requirements of section 2(4)(c); (iii) the offences were not extradition offences within the meaning of section 64(3); (iv) extradition was barred by reason of the passage of time (section 14); and (v) extradition would not be compatible with Mr Louca's rights under article 8 of the European Convention on Human Rights (“the Convention”).
On 11 September 2008, Senior District Judge Workman sitting at the Westminster Magistrates' Court rejected all of these grounds. At this stage, it is sufficient to refer to what he said about the section 2(4)(b) issue. He noted that the EAW did not contain any reference to the two previous EAWs. He said that he did not find that “the inclusion of domestic warrants in a European Arrest Warrant is essential”. He followed the guidance given in Jaso and Zakowski and said that he was satisfied that section 2(4)(b) required reference to be made to “extant European Arrest Warrants”. He continued:
“At the point at which the warrant of the 14 th July was executed, the warrant of the 23 rd April 2008 was withdrawn and was no longer valid. As such, following the guidance in Jaso, there was no need to include the reference to that warrant which was no longer enforceable. Neither the defendant nor the court could have been in any way misled and I conclude the warrant is therefore valid”.
Kaba: the facts
Mr Kaba's surrender is sought for 4 offences: organised fraud, facilitation of unauthorised residence, undue obtaining of administrative documents and the use of forged administrative documents. Two EAWs have been issued against him. The first was issued on 13 February 2008 and certified by SOCA on 13 April. The second (relating to the same offences) was issued on 19 May and certified on 21 May. It did not refer to the earlier EAW. It did, however, state that the decision on which it was based was the “arrest warrant issued on 12 th October 2007 by Jean Marc TOUBLANC, Investigating Magistrate of the French Court of First Instance in Creteil”. The adjourned extradition hearing in respect of the first EAW was held on 22 May. On that date, he was arrested in the cells in respect of the second EAW. He was brought into court where the first EAW was discharged. Senior District Judge Workman ordered extradition on 24 June.
Kaba: summary of the district judge's decision
The district judge referred to Jaso and Zakowski and said that the absence of any reference to the earlier EAW had not caused any prejudice and had not been misleading. For this reason, he dismissed the objection to the validity of the EAW.
The correct interpretation of “any other warrant” in section 2(4)(b)
Where an EAW is issued with a view to the arrest and extradition of a person for the purpose of being prosecuted for an offence (an “accusation case”), section 2(4)(b) provides, as we have said, that the EAW must contain: “particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence”. Where an EAW is issued with a view to the arrest and extradition of a person for the purpose of being sentenced or serving a sentence of imprisonment or other form of detention imposed in respect of the offence (a “conviction case”), section 2(6)(c) provides that the EAW must contain the like particulars. Section 2(7) provides: “the designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.” SOCA is designated as an authority with the power of certifying warrants under section 2: see The Extradition Act 2003 (Part 1 Designated Authorities) Order 2003, SI 2003/3190.
In interpreting Part 1 of the 2003 Act, it is necessary to have regard to the Framework Decision of 13 June 2002 on the European arrest warrant and surrender procedures between Member States 2002/584/JHA (“the Framework Decision”). The 2003 Act must be interpreted in conformity with the Framework Decision: see Jaso at [9] and the authorities referred to in that paragraph.
The aims and objectives of the Framework Decision are stated in recitals (5)(6)(10) and (11). These are set out at para [7] of Jaso. It is unnecessary to set them out in this judgment. Article 1 of the Framework Decision is headed “Definition of the European arrest warrant and obligation to execute it” and provides:
“1. The 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...
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