Prosecutor at the Tribunal Judiciaire De Rennes, France v Hasem Saleh Bazlah
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 08 June 2021 |
| Neutral Citation | [2021] EWHC 1507 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3768/2020 |
| Date | 08 June 2021 |
[2021] EWHC 1507 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/3768/2020
Peter Caldwell (instructed by the Crown Prosecution Service) for the Appellant
Graeme Hall (instructed by Eshaghian Solicitors) for the Respondent
Hearing dates: 18 May 2021
Approved Judgment
Introduction
The respondent, Hashem Saleh Bazlah, is sought by the Prosecutor at the Tribunal Judiciaire at Rennes, France, pursuant to a European arrest warrant (“EAW”) issued on 21 January 2020 and certified on 25 February 2020. The warrant alleged four offences, which are translated as follows:
(a) aid to entry, movement or irregular residence of a foreigner on the territory of a state member of the protocol against the illicit trafficking of migrants (offence 1);
(b) human trafficking in organised gang (transport, transfer, accommodation or reception in conditions contrary to dignity) (offence 2);
(c) money laundering: participation in organised gang in an operation of investment, dissimulation or conversion of products of crime (offence 3);
(d) criminal association in order to prepare crimes and offences (offence 4).
After an extradition hearing at Westminster Magistrates' Court, District Judge Ezzat handed down a judgment on 9 October 2020 in which he gave his reasons for discharging the respondent, holding that:
(a) the warrant did not give adequate particulars of any of the offences as required by s. 2(4)(c) of the Extradition Act 2003 (“the 2003 Act”);
(b) the warrant did not give adequate particulars of the sentence for offence 3 as required by s. 2(4)(d) of the 2003 Act; and
(c) prison conditions in France were not such as to give rise to a real risk of treatment contrary to Article 3 ECHR.
The French judicial authority appeals pursuant to s. 28 of the 2003 Act with the permission of Saini J, challenging conclusion (a), but not (b). It therefore accepts that the respondent cannot be extradited for offence 3. The respondent does not challenge (c).
The EAW
The description of the offences given in box e of the EAW is translated as follows:
“The investigation led by the services of the border police since summer 2018, allowed to bring out a network of alien immigration, led by Iraqis, who assured, against cost, the transport to various regions of FRANCE then transport in hidden trucks, heading to GREAT BRITAIN, migrants who do not have papers in order to access the British territory. This network appeals to numerous smugglers who take in charge the migrants, against remuneration, their transport and their dissimulation in these vehicles mainly on highway rest areas. The substantial income brought by this activity to the network, considering the individual cost of this service for every illegal alien, sum for the period of the facts several dozens of million Euro. A organisational logistics particularly elaborated has been brought into light during the surveillances, using several vehicles, to numerous smugglers using discrete ways of communication and to illegal money laundering financial schemes. Hashem Saleh BAZLAH appears to have a central role as well on the national territory as in other European countries. The offenses continued from August 1, 2018 to January 21, 2020 in Le Mans, in Chatellerault, on the French national territory as well as within the European Union.”
The following offences were identified in the framework list: participation in a criminal organisation; trafficking in human beings; laundering of the proceeds of crime; facilitation of unauthorised entry and residence.
A request for further information was sent on 15 May 2020. Under the heading “Particulars of offending”, the French judicial authority was asked to provide “a description of the personal acts of the requested person's constituting his participation in the four offences mentioned” and to “specify the relevant conduct for each offence”.
The answer, given on 10 September 2020, was that the respondent was “implicated in” the following facts:
“— Assistance to unauthorised entry, transit or residence of a foreigner on the territory of a state party to the protocol against the smuggling of migrants, with an organised gang, committed in LE MANS and on the French national territory and also within the European Union between the 1 st of August 2018 and the 21 st of January 2020
…
— human slave with an organised gang (transport, transfer, accommodation or hosting in housing conditions contrary to human dignity) committed in LE MANS and on French territory and also within the European Union between the 1 st of August 2018 and the 21 st of January 2020
…
— criminal association for the preparation of crime and offences by 10 years imprisonment committed in LE MANS and on French national territory and also within the European Union between the 1 st of August 2018 and the 21 st of January 2020”
Under each of these was a heading “Facts likely to characterize his implication in the commission of the offence”. In each case the same description appeared:
“During the numerous observations carried out during the investigation, Hashem BAZLAH was regularly seen on the camp of the rue du chemin aux boeufs in Le Mans, a place for grouping together of migrants and for accommodation in unhealthy and precarious conditions. Among these migrants, there are also children. This area is to keep them waiting before they are taken to the motorway service areas located nearby.
On 6 January 2020 at 22h39, Hashem BAZLAH was seen coming out the squat located at Passage aux Boeufs in the city of LE MANS. This squat is used as a waiting area for illegal migrants who want to get on to the lorries.
He takes the driver's seat in the Audi A6 vehicle registered HK 56 DWZ. Abdallah REKAN, appearing among the most implicated persons in the smuggling network, gets on the vehicle along with two other persons likely to be smugglers. They are heading to the A 28 motorway. A few minutes before, the observations make it possible to see the boarding of eight migrants on a vehicle which came back empty two hours later, suggesting that they have been put on to lorries.
On 8 January 2020 Hashem BAZLAH was seen driving the same Audi A6 vehicle registered HK 56 DWZ with REBEN on the motorway service area of Bosgouët when they were driving between the locality «Le Chemin aux Boeufs» (illegal waiting area of migrants waiting to get on a lorry) and the Netherlands.
On 9 January 2020, the Audi A6 registered HK 56 DWZ mentioned above was spotted in a hotel «Bastion Hotel» of the town Vlaardingen (Netherlands). The vehicle was previously equipped with a geo-location system (marker) by the French investigation services. A second vehicle BMW RX 14 VHJ belonging to the same group of persons was also present.
Hashlem BAZLAH was controlled driving this vehicle Audi A6 registered HK 56 DWZ in Vlaardingen (Netherlands).
The driver of this second vehicle BMW RX 14 VHJ is Mohammed Ahmed QARAMAN. Two persons went on board, these persons had occupied hotel bedrooms where were found forged Romanian ID documents, a residence permit issued by the air and border police of Dunkerque (France) and an Iraqi passport.”
The judgment below
The material parts of the judgment dealing with the respondent's argument that the EAW was insufficiently particularised were as follows:
“20. The RP's primary submission is that the EAW is entirely deficient in relation to section 2(4)(c). There is no conduct attributable to the RP on the face of the EAW relating to any of the offences that the RP is sought for. The JA do not concede the point but do not argue that the particulars in the EAW are sufficient.
21. Considered in isolation the EAW is insufficient to satisfy section 2(4)(c). There is no information on the RP's purported role within the enterprise. The EAW is wholly deficient. …
24. The actions attributed to the RP in the FI do not amount to any criminal activity unless viewed in the context of further incriminating evidence. Without such evidence, the RP's actions amount to nothing of significance.
…
26. I do not find on the information contained in the EAW or FI that any criminal activity is described. I accept that it is not for this court to decide on whether the charges are likely to succeed in the requesting state, however, there must be some evidential basis for making the assertions that the RP's actions amount to some criminal activity. In my view, on the evidence before me, no such evidential basis exists.
27. The particulars of what is alleged are not sufficiently clear and there is ample ambiguity such that the RP would not be able to properly invoke the principle of specialty on his surrender.”
The law
Section 2(4) prescribes the information that an accusation warrant must contain. This includes, in para. (c):
“particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute the offence”
In von der Pahlen v Austria [2006] EWHC 1672 (Admin), Dyson LJ noted that information is required on four separate matters: “(1) the conduct alleged to constitute the offence; (2) the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence”. There, as here, the dispute centred on (1). As to that, “[t]he use of the introductory word ‘particulars’ indicates that a broad omnibus description of the...
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