Osunta v Public Prosecutor's Office, Düsseldorf

JurisdictionEngland & Wales
Judgment Date03 July 2007
Neutral Citation[2007] EWHC 1562 (Admin)
Date03 July 2007
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/4194/2007

[2007] EWHC 1562 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION (Divisional Court)

Before:

The Rt Hon. Lord Justice Hughes

The Hon Mr Justice Treacy

Case No: CO/4194/2007

Between
Edwin Osunta
Appellant
and
The Public Prosecutor's Office in Dusseldorf
Respondent

Mr Martin Huseyin (instructed by Polpitiya & Co, Sols ) for the Appellant

Miss Melanie Cumberland (instructed by the Crown Prosecution Service ) for the Respondent

Hearing dates: Monday 25.06.2007

The Honourable Mr Justice Treacy:

1

This is an Appeal by Edwin Osunta under Section 26 of the Extradition Act 2003 against an order made for his extradition by District Judge Nicholas Evans on 16 May 2007. On 21 December 2006 a European Arrest Warrant was issued in Dusseldorf Germany. The warrant requests the return of the Applicant to Germany to stand trial for two offences of drug trafficking. The Appellant was arrested in this country on 2 April 2007. He has nationality of both Nigeria and Germany. Germany is a designated territory for the purposes of Part 1 of the 2003 Act.

2

The first Ground of Appeal related to an alleged offence said to have been committed in March 2004. At the hearing, Mr Martin Huseyin expressly abandoned this Ground, acknowledging that there was no merit in it. Accordingly we dismiss the Appeal on this Ground in relation to this offence and the District Judge's order therefore remains in force.

3

The second Ground relates to the second alleged offence said to have been committed on 14 February 2004. The assertion is that the District Judge wrongly excised United Kingdom conduct from the warrant and consequently was in error in holding that the conduct constituted an extradition offence pursuant to section 64(5) of the 2003 Act. The Respondents submit that the District Judge was permitted in law to excise UK conduct from the warrant in order that the conduct should constitute an extradition offence.

4

In respect of this second offence, the Appellant's extradition was ordered in respect of only some of the conduct alleged. The full description of the conduct relating to this offence is set out in the warrant as follows:

"On February 14 2004, the accused person together with the witness Kalinowski, who has been convicted separately, brought 2,260 grams of cocaine with a cleanness of 100% from Abuger (sic) Nigeria [to London Heathrow] for the purpose of reselling it profitably in Europe. For that purpose, before the departure in the morning of February 14 2004, he forced the witness Kalinowski in a Hotel in Abuger, Nigeria to put on a belt with the drugs threatening her she would not leave the country alive otherwise and in this way made her carry the drugs to the plane. On the way to the airport and during the flight the accused kept close to the witness. [The scheduled handover of the drugs in a toilet in Heathrow did not take place since the witness was detected by a British customs dog when she left the plane and was arrested by the British authorities]."

5

It is apparent from the face of the warrant that this conduct was committed outside Germany and has no factual connection with that country. The basis upon which the German Judicial Authority claims jurisdiction is that the Appellant has German nationality.

6

It was common ground here and below that the only possible provision applicable to this offence for the purpose of deciding whether the offence is an extradition offence is section 64(5) of the Extradition Act 2003. In order to conform to the requirements of section 64(5) the District Judge limited the conduct alleging the offence to that which took place in Nigeria and on the airplane, and excised from the warrant reference to any conduct which took place in the United Kingdom. The words which I have put in square brackets in reciting the description of the conduct set out in the warrant, (see paragraph 4 above), are the words which the District Judge excised.

7

The Judge accepted that the non UK conduct would have constituted the following offences in this jurisdiction if committed here.

i) An offence of making threats to kill, contrary to section 16 of the Offences Against the Persons Act 1861;

ii) An offence of possession of a controlled drug (namely cocaine) with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971;

iii) An offence of evasion of the prohibition on the exportation of controlled drugs, contrary to section 170 of the Customs and Excise Management Act 1979.

8

The Judge also created a document entitled 'Supplemental Order' in which he clarified the process of excision which he had undertaken, deleting references to conduct which had taken place in the United Kingdom, and he identified the three specific offences I have just referred to, stating that the basis upon which extradition was ordered was represented by those three charges. He created another document entitled 'Charges' which again set out the three charges as they would be framed in English law.

9

He set out his brief reasoning. He adopted the reasoning of Lord Hope at paragraph 51 of Dabas v High Court of Justice, Madrid [2007] 2WLR 254. He concluded that although in Dabas the House of Lords approved excision so as to limit a period of time, it was similarly acceptable to limit a geographical area. He observed that the excision exercise did not affect the substance of the offence alleged against Mr Osunta. The reality of the case was that if he were concerned in the exportation he would also be concerned in the importation into the UK. Whichever charge he faced, if proved, would result in the same penalty. He concluded that there was no injustice caused to the Appellant by this course and found that, having excised the UK related conduct, the remaining conduct amounted to an extradition offence.

10

Section 64(5) of the 2003 Act is in the following terms:

"(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) the conduct is so punishable under the law of the category 1 territory (however it is described in that law)."

11

The key words in this case appear at the end of subsection (a) "and no part of it occurs in the United Kingdom". Mr Huseyin argues that the conditions of section 64(5) cannot be satisfied because part of the conduct referred to in the warrant occurred in the United Kingdom. He submitted that the process of excision carried out by the District Judge should not be permitted. The excision which was countenanced in the case of Dabas was one which related to time rather than geography. What was being sanctioned was a process of excision to affirm or define the limits of dual criminality which had been established. Here it was said that the purpose of the excision exercise was to confer a jurisdiction which would not otherwise exist.

12

He further submits that the phrase at the end of section 64(5)(a) should operate as a bar to classification as an extradition offence, if any part of the conduct occurred in the United Kingdom. He referred to Ex parte Pinochet Ugarte [2000] 1 AC 147. This well known case again involved temporal excision. That is excision of material relating to a period before the crimes alleged became criminal offences in this country. He also referred to Hilali v Governor HMP Whitemoor [2007] EWHC 939. In that case the court was prepared to excise references to material which was plainly inadmissible under Spanish Law. The Court observed that those matters were superfluous recitals of evidence which were unnecessary to the warrant. Neither of those cases gave consideration to the issues before this Court. Mr Huseyin submitted that these cases were of a different nature to the current case and so did not add weight to the Respondent's case.

13

Mr Huseyin relied on the decision of the House of Lords in Cando Armas [2006] 2 AC 1. That case involved an illegal immigration racket impacting on Belgium but which had been directed from London. The Belgian Judicial Authority was seeking extradition. The relevant section of the Act was section 65 which deals with persons who have been sentenced as opposed to section 64 which deals with those who have not been convicted It is common ground that the...

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  • Besaran Husin Zada v The Deputy Public Prosecutor of the Court of Trento, Italy
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 16 March 2017
    ...one state to carry out investigations into activities in another state. 67 Similarly, it is instructive to consider Osunta v Germany [2007] EWHC 1562 (Admin), in which a District Judge excised from the EAW conduct which did not amount to an extradition offence. Here, the written submission ......

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