Mitchell v High Court of Boulogne sur mer
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS,Lord Justice Auld,LORD JUSTICE AULD |
| Judgment Date | 17 July 2007 |
| Neutral Citation | [2007] EWHC 2006 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4748/2006 |
| Date | 17 July 2007 |
[2007] EWHC 2006 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Auld
Mr Justice Collins
CO/4748/2006
Mr A Newman QC and Mr Seth Levine (instructed by Mordi & Co) appeared on behalf of the Claimant
Miss R Scott (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
This is an appeal against a decision of District Judge Evans, sitting at the City and Westminster Magistrates' Court, whereby, on 4 June 2007, he ordered the extradition of the appellant to appear at the High Court, Boulogne sur Mer.
The appeal is based upon three grounds. There was a preliminary point, namely whether the appeal notice had been served upon the Crown Prosecution Service (CPS). There are strict rules that are contained in the statutory provisions applying the relevant rules of court which require service within a very short time. Fortunately we have not had to deal with that matter because it has been accepted by the CPS that the notice was properly put into the post, and albeit the CPS now have no record of its receipt they accept that the appellant's advisers complied with the rules. We, therefore, only have to consider the merits of the appeal itself.
The case against the appellant arises out of his involvement in an enterprise involving the smuggling of cigarettes from the Continent, probably obtained in Luxembourg, into this country. He was prosecuted in this country, there being alleged against him a conspiracy to import the tobacco between January 2002 and 10 May, the date he was arrested. There was also a charge relating to an importation on that day. He was, in due course, acquitted of the charge of conspiracy but convicted on the substantive offence. That indictment arose as a result of observations that were kept by officers of Customs and Excise upon the movement of lorries and other vehicles and the presence of the appellant when the smuggling of the cigarettes took place and they were eventually distributed. That is material because the offences against him in Boulogne arose out of a similar enterprise but dealt with it at the French end, as it were, because the French were not directly concerned with the smuggling into the United Kingdom as that was an offence against the United Kingdom revenue authorities and not against the French revenue authorities.
What concerned the French was that in the course of obtaining the cigarettes and recruiting individuals in France to obtain them, there were supplied by the organisation in this country - headed, it was said, by the appellant - stolen motor cars and stolen credit cards which were then used in France and possibly elsewhere on the Continent. It was the charges relating to the stolen cars and their use and the stolen credit cards and their use that were before the court in Boulogne.
The offence in this country was committed on 10 May 2002, the conspiracy was alleged to have existed between 1 January and 11 May 2002. The appellant was arrested and, it would appear, remanded in custody. He was convicted on 5 June 2003 of the single offence. He was then sentenced to 4 years' imprisonment. He appealed against that sentence and it was varied on appeal on 16 July 2003 to one of two-and-a-half years' imprisonment.
The offences in France for which the extradition is sought were committed between September 2001 and December 2001. A warrant for the appellant's arrest was issued on 30 May 2002. He was committed for trial at the Boulogne court in November 2002. The trial took place in his absence in Boulogne at almost the same time as the trial was taking place in this country. He was convicted on 12 June 2003 and sentenced to 6 years' imprisonment and a fine of €75,000. He was thereafter unlawfully at large so far as the Boulogne court was concerned.
On 27 July 2004 the European arrest warrant system came into force between France and the United Kingdom. On 21 August 2004 a European arrest warrant was issued by the Public Prosecutor of Boulogne. It appears - although we do not have any details - that that warrant was defective. Certainly it was not accepted by the authorities here. A subsequent warrant, which was accepted, was issued on 30 September 2005. It then took the relevant body in this country, that is to say the Serious Organised Crime Agency, until 26 January 2007 to issue the necessary certificate in accordance with Section 2 (7) of the Extradition Act 2003 which enabled the appellant to be arrested and taken before the Magistrates' Court for the purpose of extradition.
We have had no explanation for the delay by the Serious Organised Crime Agency. For my part, I am concerned that there should be such a delay which, on the face of it, is entirely inexcusable. I hope that whoever was responsible for dealing with these matters takes note of that and there is, in future, speedy action taken on these arrest warrants. After all, it is not as if this was a particularly complicated case so far as the warrant was concerned.
Before I go into the facts of the matter in any more detail so far as necessary, it is convenient to refer to the relevant statutory provisions which are contained in the Extradition Act 2003. We are concerned in this case with Part I which is extradition to category 1 territories, France being one such. Putting it very broadly, the purpose of this Part of the Act dealing with category 1 territories which cover the European Union is that there should be speedy extradition from one state to another without the need for the state seeking extradition to produce the necessary evidence to show that there is a reasonable prospect of conviction. All that is necessary is for it to show that the conduct which should be specified in the warrant is conduct which would amount to an offence if it took place in the United Kingdom. That is a very broad indication of what lies behind Part I. I do not think it necessary to go into further detail.
Section 7 deals with the initial hearing and requires the judge before whom the person whose extradition is sought is brought to decide, among other things, whether he is the person in respect of whom the warrant was issued and then, if so, the procedure starts. Section 9 deals with the hearing itself. We come to Section 10 which is headed The Initial Stage of Extradition Hearing. That requires the judge to decide whether the offence specified in the Part I warrant is an extradition offence. Section 65 sets out how it should be decided whether an offence is an extradition offence. There are a number of different situations which are covered in Section 65. The relevant one for our purposes is Section 65 (3) which provides:
"The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied -
(a) the conduct occurs in the category 1 territory;
(b) the conduct would constitute an offence under the law of a relevant part of the United Kingdom if it occurred in that part of the United Kingdom; and
(c) it carries a sentence of imprisonment of at least four months."
It is clear from the decision of the House of Lords in Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67 that it suffices that part of the conduct took place in the category 1 territory. It is not necessary that the whole of the conduct occurred in that territory.
One goes back to Section 11 which sets out various bars to extradition. So far as material, Section 11 (1) provides:
"If the judge is required to proceed under this section he must decide whether the person's extradition to a category 1 territory is barred by reason of -
(a) the rule against double jeopardy;
…..
(c) the passage of time."
In deciding whether the extradition would offend the rule against double jeopardy, Section 12 provides:
"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if, and only if, it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption -
(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;
(b) that the person was charged with the extradition offence in that part of the United Kingdom."
Finally so far as the statutory provisions are concerned, Section 14 deals with passage of time and provides:
"A person's extradition to a category 1 territory is barred by reason of the passage of time if, and only if, it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large, as the case may be."
The warrant in this case shows that the appellant was convicted at Boulogne of two offences contrary to French law. The first offence was aiding and abetting the forgery of credit cards, using forged credit cards for payment and withdrawal of cash. The second offence was the receiving of stolen cars, stolen in Great Britain, and each is contrary to the provisions of the French penal code set out in the warrant.
The conduct set out in the warrant is as follows, so far as material. I am reading from a translation of the French. I am not sure who was responsible for the translation, but it will explain any infelicities in the language:
"By the end of the year 2001,...
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