Lynda Thyer v Public Prosecutor at the High Instance Court of Paris, France

Hearing dates: 12 & 28 March 2019

Approved Judgment

Introduction

The Appellant appeals against the decision of District Judge Crane (“the DJ”) made on 4 May 2018 to order her extradition pursuant to a European Arrest Warrant (“EAW”) issued by the judicial authority, the Public Prosecutor of the High Instance Court of Paris on 9 March 2017 and certified by the National Crime Agency on 19 April 2017.

Box E of the EAW refers to nine offences alleged to have taken placed between 1 June 2015 and 20 February 2017 in Cherbourg, Octeville, Digosville and Saint-Pierre l'Eglise. It seeks the Appellant's extradition for offences concerning the manufacture and sale, through the internet, without proper marketing authorisation, of two products, “GcMAF” and “GOleic” (“the products”). These products, presented as medicine, were advertised as having “preventive or curative effects on human pathologies such as cancer, autism, AIDS, Lyme disease, herpes, multiple sclerosis, psoriasis, Alzheimer disease or Parkinson disease”.

The Appellant is jointly charged with her former partner, Mr David Noakes. He resided in the Channel Islands and had a network manufacturing, conditioning and selling the products which he did through various companies, including some located in the Netherlands, which processed the orders and collected payment. A site in France was used where conditioning, storage and shipping of the products was carried out. Over an 18-month period prior to the issue of the EAW more than 5,400 boxes of the products were sold from France to 50 different countries. They were declared as cosmetics to customs. The proceeds of sale have been estimated at between €2–9million. The EAW states that the Appellant received over €11million in her account from two named Dutch companies, Health Supplements and Duurzaam Gezond Production. [The further information dated 4 April 2018 confirmed that the amount put into the Appellant's bank account was not €11million, but €11,411.05].

The details of the offences in summary are (1) swindles as a gang; (2) illegal exercise of the profession of pharmacist; (3) marketing or distribution without authorisation of products defined as medicine; (4) advertising products defined as medicine; (5) fraud over the nature and substantial qualities of a product; (6) fraudulent possession of products defined as medicine without previous marketing authorisation as a gang, facts considered as importation and exportation as smuggling; (7) concealed work by dissimulation of activity; (8) illegal operation of a pharmaceutical establishment; and (9) biomedical research without obtaining a favourable opinion from the Committee for the Protection of Persons and the authorisation of the competent administrative authority.

The framework list is ticked for swindle.

The maximum sentence for the offences is 10 years' imprisonment.

Mr Noakes is the subject of an EAW relating to the same offences. However, he, together with others, but not the Appellant, has been charged with offences in the UK relating to the selling of the same products over a period prior to the French offences. On 27 November 2018 Mr Noakes was sentenced by HHJ Loraine-Smith at Southwark Crown Court to a total of 15 months' imprisonment following his guilty plea in respect of those offences.

The Appellant applied for permission to appeal against the decision of the DJ on 8 grounds: (1) the EAW provided insufficient particulars of the alleged conduct pursuant to s.2 of the Extradition Act 2003 (“the Act”); (2) the DJ erred in holding that the Appellant's absence from France was the sole reason that there had been no decision to try her (s.12A of the Act); (3) the DJ wrongly rejected an argument that s.19B of the Act would be breached by the Appellant's extradition (“the forum ground”); (4) the DJ erred in holding that her extradition would not breach Article 3ECHR; (5) the DJ erred in deciding that her extradition would not be oppressive (on the grounds of her mental and physical health) (s.25 of the Act); (6) the DJ erred in holding that the Appellant's extradition would not be disproportionate (s.21A of the Act); (7) the DJ erred in holding that her extradition would not breach Article 8ECHR; and (8) the DJ erred in deciding that the Appellant's extradition would not be an abuse of process.

On 28 September 2018 Elisabeth Laing J granted permission to appeal on the Article 3 ground only; permission to appeal on all other grounds was refused.

In the event that the Appellant's appeal on Article 3 does not succeed she renews her application for permission to appeal on all the grounds in respect of which permission was refused (save for the forum ground which is not pursued).

On 28 November 2018 Dove J adjourned the hearing of the appeal after the Respondent had served evidence in accordance with the decision of the Divisional Court of 16 November 2018 in Shumba and others v Public Prosecutor in Nanterre County Court, France[2018] EWHC 1762 (Admin) on the Article 3 issue.

On 5 March 2019 Mr Ben Cooper, for the Appellant, served written submissions in support of an application to amend the grounds of appeal to submit that the EAW fails to satisfy the dual criminality test (s.10 of the Act).

The Article 3 appeal

The DJ found that the Appellant had failed to show that there is a real risk that she will suffer inhuman or degrading treatment from French prison conditions (Decision, para 59).

In Shumba the Divisional Court (Singh LJ and Carr J) summarised the principles relating to Article 3 in the context of extradition:

“34.Article 3 can in principle apply where a Contracting State proposes to extradite a person to another state, whether or not that other state is itself a party to the ECHR. As it happens France is, like the United Kingdom, a party to the ECHR.

35. There must be substantial grounds for believing that, if extradited, the Appellant faces a real risk of being subjected to inhuman or degrading treatment.

36. Once such evidence has been adduced by the Appellant it is for the requesting state to dispel any doubts about it: see Saadi v Italy (2009) 49 EHRR 30, at paras 129 and 140.

37. There is a presumption that parties to the ECHR, such as France, are willing and able to fulfil their obligations, in the absence of, “clear, cogent and compelling” evidence to the contrary. However, that presumption can be rebutted where that evidence comes from an internationally recognised source or is specific to an individual.

38. There may also be a duty on the Court in this jurisdiction to request further information from the state concerned where this is necessary to dispel any doubts.

39. In the context of prison overcrowding, there will be a strong presumption of a breach of Article 3 if any of the following criteria are absent:

(1) a private sleeping place within a prison cell;

(2) at least 3m ² of floor space per prisoner; and

(3) an overall surface area of the cell which is such as to allow the detainees to move freely between the furniture items.

40. Where a detainee is allocated between 3 and 4m ² of personal space, a violation of Article 3 will be found if there are other aspects of inappropriate physical conditions: in particular, regard will be had to access to outdoor exercise; natural light or air; availability of ventilation; adequacy of room temperature; access to private toilet facilities; and compliance with basic sanitary and hygiene requirements.”

In Re Criminal Proceedings against Aranyosi and Caldararu [2016] 3 CMLR 13, the Court of Justice of the European Union (“CJEU”) considered the approach to be adopted where it is argued that prison conditions in the requesting EU Member state would infringe Article 4 of the Charter of Fundamental Rights of the European Union, which is in the same terms as Article 3ECHR. The effect of this decision was summarised by Beatson LJ in Mohammed v Comarca De Lisboa Oeste, Instancia Central De Sintra, la Seccão Criminal, Portugal[2017] EWHC 3237 (Admin), at para 15:

“In Aranyosi the CJEU decided that the consequence of the execution of an EAW must not be that the requested person will, if returned, suffer inhuman or degrading treatment. At [88]–[89], [91]–[92], [95] and [98] the CJEU set out the procedure that must be followed where the judicial authority of a member state is in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the state that has issued the EAW.

Stage 1 of the procedure involves determining whether there is such a risk by assessing objective, reliable, specific, and properly updated evidence. … A finding of such a risk cannot lead, in itself, to a refusal to execute the EAW. Where such a risk is identified, the court is required to proceed to stage 2.

Stage 2 requires the executing judicial authority to make a specific assessment of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk. To that end it must request the issuing authority to provide as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained.

Stage 3 deals with the position after the information is provided. If in the light of that, and of any other available information, the...