Mr A v Deputy General Public Prosecutor of the Lyon Court of Appeal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith |
| Judgment Date | 20 December 2022 |
| Neutral Citation | [2022] EWHC 3214 (Admin) |
| Docket Number | Case No: CO/3078/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3214 (Admin)
Lord Justice Stuart-Smith
Mr Justice Jay
Case No: CO/3078/2019
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugo Keith KC and Rachel Barnes KC (instructed by Sternberg Reed) for the Appellant
Richard Evans (instructed by CPS) for the Respondent
Hearing date: 6 December 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 20 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is the judgment of the Court to which we have both contributed. It arises from Mr A's application to re-open his appeal against the order of District Judge Tan Ikram dated 30 July 2019 for his extradition to France. This court had dismissed Mr A's appeal against the order of the District Judge for reasons that were set out successively in two judgments: [2021] EWHC 2543 (Admin) and [2022] EWHC 841 (Admin). The first of these two judgments was dated 20 September 2021; the second was dated 8 April 2022. The judgments dealt with the appeal of Mr A and also of Mr Esmaili, whose case had been thought to raise similar issues. An anonymity order preventing the identification of Mr A is in place.
On 6 December 2022, at the end of the rolled-up hearing of Mr A's application to re-open his appeal, we announced our decision that the appeal should be re-opened and the appeal allowed for reasons to be set out in writing at a later date. We now set out our reasons and shall refer to Mr A as the Appellant.
The factual and procedural background
Our two earlier judgments set out the protracted and complicated history both before and since 7 August 2000, when the Appellant was arrested by the French Authorities near Lyon upon discovery of a substantial amount of cannabis resin in the lorry that he was driving. It is not necessary for us to repeat any of that history again here: we assume that anyone who is interested in the case will have access to the two judgments. The second judgment included consideration of the Appellant's medical history at [72] ff and concluded, on the basis of the information that was then available to the Court, that any real risk of a violation of the Appellant's Article 3 rights could be discounted.
The present application
By an application notice dated 26 July 2022, the Appellant applied for (a) an order prohibiting the NCA from effecting extradition until further order and (b) directions to fix a rolled up hearing of an application to reopen the appeal and, if the application to reopen were granted, to hear the reopened appeal. The application was supported by a witness statement from his solicitor, Mr Cooper, signed on 25 July 2022.
The Court had previously been provided with updated information about the Appellant's health, including information from a work colleague. The information had provided apparently compelling evidence of a serious deterioration in the Appellant's mental health leading to the formation of plans to end his life by drowning at Morecombe Bay on 13 June 2022 (from which he was dissuaded by the intervention of the police). As an immediate result of this information the Court adjourned its pronouncement of the result of the appeal until 1 July 2022. In the interim, the Appellant was admitted to hospital as a voluntary patient due to his presentation of suicidal ideation and deterioration in his mood. Various other professional interventions added to a worrying picture of mental instability in the face of the imminent pronouncement. We can summarise the current position shortly. Although his condition is currently stable, he is extremely fragile. He has struggled, and continues to struggle, with moderate to severe depression and is under the care of his specialised secondary local mental health team. Earlier in the year his GP was “extremely worried” about him committing suicide. Although this risk has decreased “to a degree”, a lot of the precipitants are “still in play and this is a big concern.”
On 12 July 2022 Mr Cooper was informed by the solicitor for Mr Esmaili that the Rouen Court of Appeal Prosecutor had withdrawn the warrant in that case because Mr Esmaili was deemed to have served the entirety of his sentence. By dint of him being subject to bail with an electronically monitored curfew of between 4–6 hrs for a period in excess of the sentence for which extradition was sought under the EAW, the sentence was deemed by the Prosecutor to be served.
Mr Cooper first obtained confirmation from the Electronic Monitoring Service about the electronic monitoring of the Appellant's curfew. The terms, as recounted in his witness statement, were as follows:
“The Applicant was admitted to bail pursuant to these extradition proceedings on 30th January 2018; his bail conditions included to live and sleep each night at his home address, an electronically monitored curfew between the hours of 10:30pm and 4am, reporting to Swinton police station every Monday, Wednesday and Friday, to be in possession of mobile phone 07826780627 24 hours a day and said phone must be charged and switched on, surrender of passport and identity card, not to obtain or be in possession of travel documents, not to go to any international travel hub, including international train station, and the deposit of a £10,000 pre-release security.”
These conditions have been subject to brief periods of temporary relaxation (e.g. when he has been in hospital) until (on an unspecified date) the hours of curfew were reduced to 00.00 – 04.00 am and reporting to the police station was reduced to twice a week. Mr Cooper calculated that, as at the time he made his statement on 25 July 2022, the Appellant had been subject of the electronically monitored curfew for 1,521 days. He also calculated that the remaining sentence as set out in the EAW (3 years, 8 months and 22 days) would be approximately 1,360 days.
Urgent enquiries were made of M. Thibaut Kempf, the French lawyer who had provided expert evidence at an earlier stage in the proceedings during which his expertise to provide relevant evidence was not challenged. On 25 July 2022 M. Kempf provided a statement to Mr Cooper. Although framed as a formal statement of his opinion, it did not comply with the formalities for a conventional expert's report in English proceedings. However, his advice was unequivocal:
“My understanding is that [the Appellant] has been on bail in the English extradition proceedings with an electronically monitored curfew, for approximately 5.5hrs per night, for 1,512 days.
As a matter of French law, each of these days is to be treated as a whole day served of his French sentence. The Cour de Cassation Criminal Division made clear in its published decision of 17 March 2021 that this is the case even where the duration of curfew was less than 9 hours and would not, as a matter of English law, count as time served of a custodial sentence … .
Accordingly, under French law, [the Appellant] has already served under ‘house arrest’ (the equivalent of an Assignation à residence sous surveillance électronique) a period greater than that of his remaining custodial sentence in France and so would be required to serve no more time.
Nonetheless, if returned to France, [the Appellant] would be taken straight into custody on the basis of the EAW and on return there is no automatic hearing before a judge, ….”
M. Kempf advised that a specific application for his release would have to be made to a Judge following the Appellant's return to France and that there was no procedural guarantee that the hearing would take place shortly after his imprisonment. In his experience, it was likely that such an application would not take place before September, after the judicial vacations had passed.
M. Kempf also provided a copy of the decision of the Cour de Cassation. We set out the relevant parts in more detail at [32] below. For the purposes of the present summary, it is sufficient to say that the decision on its face provides broad support for the proposition that days spent under a measure of restricted liberty in the United Kingdom should be treated as detention that count towards a sentence imposed by the French courts.
M. Kempf wrote to the Lyon Court of Appeal Prosecutor's office via email on 15, 19, 21 and 22 July 2022 inviting them to withdraw the EAW in the Appellant's case. He also attempted to contact them by telephone. In his email to the Prosecutor's office on 22 July 2022 M. Kempf expressly drew attention to the Appellant having served his sentence and that “the surrender of Mr [A] to the French authorities under these conditions would necessarily constitute a serious and disproportionate infringement of his rights, in particular with regard to article 8 of the European Convention on Human Rights”. By 26 July 2022, the prosecutor had not responded either by email or otherwise.
Mr Cooper asked the CPS for assistance (i) in contacting the NCA to ask whether surrender could be put to the end of the permitted period to enable the Prosecutor to respond and (ii) in contacting the French Prosecutor to encourage them to respond. On 21 July 2022 the CPS agreed to the former request but not the latter, on the basis that the matter was out of their hands.
In the light of this evidence, this Court made an order on 26 July 2022 (a) prohibiting the NCA from effecting the Appellant's extradition until further order; (b) requiring the Appellant to file an serve a skeleton argument and any further evidence in support of his application to renew the appeal by 4.30 pm on Friday 29 July 2022; (c) requiring the Respondent to file and...
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