Office of the King's Prosecutor, Brussels v Cando Armas and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stanley Burnton |
| Judgment Date | 20 August 2004 |
| Neutral Citation | [2004] EWHC 2019 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 August 2004 |
| Docket Number | Case No: CO/3656/2004 |
[2004] EWHC 2019 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Henriques and Mr Justice Stanley Burnton
Case No: CO/3656/2004
John Hardy (instructed by the Crown Prosecution Service) for the Appellant
Steven Powles (instructed by Bindman & Partners) for the First Respondent
Introduction
This is the judgment of the Court.
This is an appeal by the Office of the King's Prosecutor, Brussels, under section 28 of the Extradition Act 2003, against the decision of Deputy Senior District Judge Wickham made on 26 July 2004 to discharge the First Respondent, Eddison Rodrigo Cando Armas, whose extradition was sought by the Appellant. We were told that this is the first appeal against an order of a person's discharge at an extradition hearing under the 2003 Act. It raises procedural issues under sections 28 to 31 of the Act and an important substantive issue as to the relationship between section 65(2) of the Act and subsequent subsections. Precisely the same substantive issue arises under section 64.
The facts
Mr Cando Armas is a citizen of Ecuador. He has been living in this country for some time. On 28 May 2004 he was arrested on the authority of a European Arrest Warrant dated 25 May 2004. The warrant was translated into English; it contained the statements and information required by section 2 of the Act and was certified by the NCIS, the designated authority, in accordance with section 2(7) and (8). The territory to which extradition was sought, namely Belgium, is designated as a category 1 territory under section 1. The warrant was accordingly a certified Part 1 warrant.
The warrant stated that Mr Cando Armas had been summoned for his trial and convicted and sentenced in his absence on 6 May 2003 to 5 years' imprisonment for 3 offences, described as follows:
"Cando Armas is a member of an organised gang which is responsible for the systematic illegal immigration of Ecuadorean citizens towards Europe. This organisation was directed from London by Cando Armas. Once arrived in Belgium, Cando Armas took care of accommodation and fake passports for the illegal Ecuadorean immigrants. If necessary, the illegal immigrants were escorted to Great Britain.
The above-mentioned facts took place between 1/9/2001 and 12/10/2001, within the district of Brussels.
Nature and legal classification of the offence(s) and the applicable statutory provision/code:
Art. 77 al 1–80 Law if 15.12.1980 (foreigner – assistance) Art. 322–323 al 2 SWB (penal code) (criminal conspiracy – commit criminal offences as instigator or leader)
Art. 193–198–213–214 SWB (Forgery – fake up of a passport and use of a false passport)."
European Arrest Warrants are in a standard form, which is annexed to the Framework Decision of the Council of the European Union of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). The form includes a list of offences identical to that contained in Schedule 2 to the Act, known as the European Framework List, with a tick box against each. The list is headed by the instruction:
"If applicable, tick one or more of the following offences punishable in the issuing Member State by a custodial sentence or detention order of a maximum of at least 3 years as defined by the laws of the issuing Member State: …".
The original warrant was in Flemish, and 3 of the boxes had been ticked. None had been ticked in the English translation.
Mr Cando Armas was brought before Bow Street Magistrates' Court on 28 May 2004 when the initial hearing required by section 7 of the Act took place. The District Judge fixed the date for the extradition hearing as 15 June, but it was on that date adjourned to 2 July and then on 2 July to 26 July 2004, as we understand it to enable those acting for Mr Cando Armas to enquire as to the circumstances of an earlier unsuccessful attempt to extradite him on the same charges. The effective hearing took place on 26 July 2004 before Deputy Senior District Judge Wickham. As appears below, she decided that the alleged conduct of Mr Cando Armas did not constitute an extradition offence within the meaning of section 65 of the Act, and she therefore ordered his discharge.
The requirement of an extradition offence
It is a precondition of extradition under Part 1 of the Act that the defendant is either (in broad terms):
(a) accused in a category 1 territory, or is alleged to be unlawfully at large after having been convicted (but not sentenced) by a court in a category 1 territory, of an extradition offence; or
(b) alleged to be unlawfully at large after having been convicted by a court in a category 1 territory of an extradition offence and sentenced for the offence.
If (a) applies, Section 64 of the Act determines whether the conduct of which the defendant is accused or of which he was convicted (but not sentenced) constitutes an extradition offence; if (b) applies, section 65 determines whether he was convicted of and sentenced for an extradition offence. Although different sections apply, the requirements of an extradition offence are identical under both sections.
Section 65 is as follows:
"Extradition offences: person sentenced for offence
(1) This section applies in relation to conduct of a person if—
(a) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct, and
(b) he has been sentenced for the offence.
(2) The conduct 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 and no part of it occurs in the United Kingdom;
(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
(c) the certificate shows that a sentence of imprisonment or another form of detention for a term of 12 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.
(3) 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 the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.
(4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs outside the category 1 territory;
(b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct;
(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial
offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment.
(5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom;
(c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct.
(6) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
(a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom;
(b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct;
(c) the conduct constitutes or if committed in the United Kingdom would constitute an offence mentioned in subsection (7).
(7) The offences are—
(a) an offence under section 51 or 58 of the International Criminal Court Act 2001 (c. 17) (genocide, crimes against humanity and war crimes);
(b) an offence under section 52 or 59 of that Act (conduct ancillary to genocide etc. committed outside the jurisdiction);
(c) an ancillary offence, as defined in section 55 or 62 of that Act, in relation to an offence falling within paragraph (a) or (b);
(d) an offence under section 1 of the International Criminal Court (Scotland) Act 2001 (asp 13) (genocide, crimes against humanity and war crimes);
(e) an offence under section 2 of that Act (conduct ancillary to genocide etc. committed outside the jurisdiction);
(f) an ancillary offence, as defined in section 7 of that Act, in relation to an offence falling within paragraph (d) or (e).
(8) For the purposes of subsections (3)(b), (4)(c) and (5)(b)—
(a) if the conduct relates to a tax or duty, it is immaterial that the law of the relevant part of the United Kingdom does not impose the same kind of tax or...
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