Ohoumadi v French Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 23 May 2017 |
| Neutral Citation | [2017] EWHC 1540 (Admin) |
| Date | 23 May 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/6492/2016 |
[2017] EWHC 1540 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Stephen Silber
(Sitting as a Judge of the High Court)
CO/6492/2016
Mr D Williams (instructed by Sonn Macmillan Walker) appeared on behalf of the Appellant
Mr N Hearn (instructed by the Crown Prosecution Service.) appeared on behalf of the Respondent
Introduction
Omar Ohoumadi, the appellant, appeals against the decision of District Judge Devas sitting at the Westminster Magistrates' Court made on 20 December 2016 to order his extradition to France pursuant to two European Arrest Warrants.
The first warrant, EAW 1, was issued on 28 July 2016, and was certified by the National Crime Agency on 5 August 2016. It requests the extradition of the appellant for two offences.
The first was participation in a criminal conspiracy with a view to preparing murder as part of an organized gang, and the second was unlawful possession as part of a criminal gang of weapons, ammunitions or essential components classified in paragraph B. The appellant was arrested on this European Arrest Warrant on 3 November 2016.
The second European Arrest Warrant, EAW 2, was issued on 7 October 2016, and was certified by the National Crime Agency on 24 October 2016. It requested the extradition of the appellant for the following 5 offences:
Unlawful dealing in narcotics; unlawful possession of weapons or ammunition with two counts; conspiracy in the preparation of the offence; and handling stolen property.
Box C provided the maximum sentence which might be imposed for the offence was for 10 years.
The appellant was arrested on this European Arrest Warrant on 4 November 2016 and an order for his extradition was made on 20 December 2016
The Grounds of Appeal
The Appellant was granted leave to appeal by Langstaff J on 6 March 2017, on the sole ground that the District Judge erred in finding that EAW 2 was a valid warrant within the meaning of section 2 of the Extradition Act 2003 ("the Act").
The judge refused the application for permission on two other grounds, which are renewed in front of me today and they are that the judge erred in finding:
(i) in respect of EAW 1 that there were no reasonable grounds for believing a decision or a charge to charge or to try the appellant had been made out pursuant to section 12(a) of the Act; and that
(ii) that there was no risk that the appellant's Article 3 rights would be violated through a failure to provide him with reasonable protection and third party actors in prison in France.
The renewed application for permission to appeal-Decision to try or charge ground
The appellant's case is that the evidence that was before the judge was sufficient to show that a decision to try or charge had not been made. The statement of the Applicant's French lawyer was quite clear and explicit that no decision as to whether to prosecute the applicant had been made, which is a matter that would clearly be within his knowledge.
In the alternative, it is contended that the matter was in doubt and the Court ought to make the enquiry of the Respondent that the District Judge declined to make, in relation to whether the relevant decisions had been made.
The case for the appellant is that, in front of the District Judge, reliance was placed on statements in the European Arrest Warrant that indicated that the case was at the investigation stage in France. Reliance was also placed on a statement for the appellant's French lawyer, Mr Pascale Roubaud, who said that no decision on whether to prosecute the appellant had been made in respect of EAW 1, and that his absence from the jurisdiction was not a reason for this.
The approach of the District Judge was to refer to the decision of this court in the case of Kandola & Ors v Generalstaatwaltschaft Frankfurt, Germany & Ors [2015] EWHC 619 (Admin) and the more recent case, in which that decision was reconsidered, namely the case of Puceviciene v Lithuanian Judicial Authority [2016] EWHC 1862 (Admin). It was explained there, at paragraph 50:
(50) In determining the best approach to ascertaining whether a decision to charge and a decision to try has been made, we must have regard to:
….
II) The use of the terms "decision to charge" and "decision to try" plainly does not imply that the case must be trial ready.
(A) … the position in England and Wales, where a decision to charge and the decision to try (by, for example, the fixing of a trial date within a few days of an arrest in an indictable only case) can be taken at a very early stage of the proceedings whilst the investigation is still underway and it is known that the trial might be at some considerable time away. This is common in complex cases where the court needs to set a timetable to trial.
B) It is necessary to respect, under the principle of mutual confidence which underpins the Framework Decision, the responsibilities of the judiciaries in Member States of the EU to bring cases as expeditiously as possible to trial after the decision to charge and try has been made. It is not for the courts of England and Wales to supervise under the guise of s.12A the way in which such courts progress the cases before them.
III) The term used in the section is "a decision to charge", not "charged". This plainly implies that the focus should be on the word "decision", not any formal step.
IV) It is often the case that in England and Wales a decision is made to charge a person and to try that person at a very early stage, where that person is a terrorist, leader of a gang or a danger to the public. It is therefore necessary to approach the meaning of s.12A on the basis that Parliament must have had this factor in mind and been appreciative of the fact that the consequences of finding that there has been no decision to charge and no decision to try in the Member State where the crime was committed will be that the persons detained or on bail under an EAW must be discharged.
…
VI) It is also important to emphasize that the real focus of s.12A is always on whether there has been a decision to try. If there has been no decision to try, the question of whether there has been a decision to charge is irrelevant. If there has been a decision to try, a decision to charge will inevitably have been taken either earlier or at the same time as the decision to try. The words "decision to charge" in reality add nothing to the achievement of the purpose, actual or supposed, of the Act or to its effect. They add nothing at either the "reasonable grounds" stage or at the second stage where the burden lies on those representing the competent authority of the requesting state to prove that the decisions have been taken.
The District Judge explained that after Puceviciene (supra), it was not the function of this court to examine in detail the legal procedures of the fellow European Union State as long as it was clear from the European Arrest Warrant that a decision to charge and try had been made.
He explained that it was accepted that both European Arrest Warrants contained a statement that the warrants had been issued for:
"The purpose of conducting a criminal prosecution or executing a custodial sentence or detention order."
The District Judge said there was nothing on either warrant which suggested that the appellant was wanted merely for questioning and accepted that the words "judicial investigation" were used in Box B, which referred to the arrest warrant issued by the examining magistrate. That would have been that the whole process is equivalent to the investigation state in this country.
He considered the particulars in Box E in both warrants indicated a completed investigation and therefore the process of bringing the appellant to trial had stopped because had he left the jurisdiction.
Both warrants were signed by a Deputy Public Prosecutor and the District Judge thought there were no reasonable grounds for believing the decision to try had not been made and that the absence of the application was not the sole reason for her failure. He also said that a statement put in by the French lawyer contained little, if much, detail, namely an assertion which fell short of persuading him that there was no decision to try the appellant.
This approach was criticized in his very helpful submissions by Mr Williams, Counsel for the Appellant, who explained that Puceviciene (supra) and Kandola (supra) required the court to approach section 12(a) in stages. The first stage was to consider whether the European Union warrant "read as a whole" might be clear that a relevant decision had been taken, and it was said that in this case it was at the stage of judicial investigation.
The warrant then also went on to state that following his arrest the appellant was released on bail with a condition that he remained in France and, significantly, it is admitted, that the European Arrest Warrant did not indicate that a decision to charge or try the appellant was taken prior to his being released on bail or any subsequent date.
In addition, Mr. Williams criticized the District Judge for suggesting that there had been a completed investigation which he says was pure speculation, and it was also pointed out that the appellant's French lawyer had made it clear that no decision had been made whether to prosecute the appellant in relation to it. Not surprisingly, he does not accept what the District Judge said which...
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