Public Prosecutor of Hamburg v Hughes
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 2009 |
| Neutral Citation | [2009] EWHC 279 (Admin) |
| Date | 26 February 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9327/2008 |
[2009] EWHC 279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sir Anthony May President of the Queen's Bench Division
The Honourable Mr Justice Silber
Case No: CO/9327/2008
Daniel Jones (instructed by CPS Solicitors) for the Claimant
Mark Summers (instructed by Shaw, Graham, Kersch, Solicitors) for the Defendant
Hearing dates: 27/01/2009
Sir Anthony May, President of Queen's Bench Division:
This is the Judgment of the Court.
It is regrettable if inconsequential technical failures to comply with mechanical requirements of Part I of the Extradition Act 2003 have the effect of impeding the underlying parliamentary intention that European Arrest Warrants should be dealt with and executed as a matter of urgency – see Article 17 of the European Framework Decision on Extradition whose provisions Part I of the 2003 Act implemented. Strict compliance with some such requirement may be necessary – see for example Mucelli v Government of Albania [2009] UKHL 2. But the court is generally disinclined from enforcing strict compliance where the legislation permits the exercise of discretion and prejudice to a defendant is slight or not apparent.
Two technical failures have arisen in these proceedings and are relied on in support of the submission that Leonard Hughes, the respondent, should be discharged from arrest under a European Arrest Warrant issued on 19 December 2006 by the appellant Public Prosecutor in Hamburg for alleged offences relating to tax in 1998 and 1999.
The prosecutor first issued a European Arrest Warrant for the arrest of Mr Hughes on 28 November 2006. This was, for some reason, revoked on 19 December 2006, on which day a second European Arrest Warrant was issued for the same offences. The first warrant had, however, been transmitted to the Serious Organised Crime Agency in this jurisdiction who were not at first aware that it had been revoked. Mr Hughes was arrested pursuant to this first (revoked) warrant on 7 August 2008. But he was released from this arrest on 18 August 2008, having spent 11 days in custody, when the authorities learned that the warrant had been revoked. He was arrested again on 8 September 2008 pursuant to the second warrant of 19 December 2006.
On 26 September 2008, at an extradition hearing in the City of Westminster Magistrates Court, District Judge Purdy discharged Mr Hughes upon a finding that the European Arrest Warrant of 19 December 2006 was not valid because it did not contain particulars of the European Arrest Warrant of 28 November 2006. This is the first technicality relied on. The prosecutor appeals against this decision. Subject to matters discussed later in this judgment, it is agreed that in this court DJ Purdy's decision is now seen to be wrong because, since his decision, dicta which he applied have been authoritatively determined to be wrong.
Section 2(4) of the 2003 Act requires a Part I warrant to contain “particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence”. There was an issue whether “any other warrant” included any other European Arrest Warrant, or whether it referred only to a domestic warrant within the category 1 territory. DJ Purdy decided that it included any other European Arrest Warrant with reference to dicta of Dyson LJ in Jaso v Central Criminal Court No 2, Madrid [2007] EWHC 2983 (Admin) at paragraph 26; and of Maurice Kay LJ in Zakowski v Regional Court of Szczecin, Poland [2008] All ER(D) 228 at paragraph 25. But subsequently a three judge Divisional Court presided over by Dyson LJ decided in Louca v The Office of Public Prosecutor in Bielefil [2008] EWHC 2907 (Admin) that these dicta were wrong; that there was no obligation on the part of the requesting state to include particulars of a previous European Arrest Warrant; and that the requirement in s.2(4)(b) to include particulars of any other warrant was satisfied by including particulars of the domestic decision on which the European Arrest Warrant was based – see paragraph 28. Mr Summers, for Mr Hughes, did not submit that it was open to this court to decide that Louca was wrongly decided in this respect. If this were the only point, the appeal should therefore succeed.
The Divisional Court in Louca certified a relevant point of law of general public importance, and we indicated at the hearing of this appeal that we would certify an equivalent point in this case to preserve for Mr Hughes the possibility that the House of Lords might give leave to appeal in Louca and subsequently allow the appeal. In that event, we would not expect those involved in this case to participate actively in a Louca appeal.
On the face of it, therefore, the appeal should be allowed, but Mr Summers has three submissions, two of them related, why it should not. The two related submissions are variants of the proposition that Mr Hughes should have the benefit of the law as it was wrongly understood to be at the time of the District Judge's decision.
The first version of this submission is hopeless, and Mr Summers sensibly did not persist in it orally in the face of at least six difficulties put to him by the court. The submission was that the decision in Louca should be treated as having prospective effect only. It was accepted that judicial decisions which reverse or correct earlier decisions normally take effect so that the reversal or correction is treated as having been the law for the past as well as the present and future. But reliance was placed on the House of Lords decision in In re Spectrum Plus Ltd [2005] 2AC 680, in which it was held that there could be cases where a decision on a point of law was unavoidable, but the decision would have such gravely unfair and disruptive consequences for past transactions or happenings that the House of Lords would be compelled to depart from the normal principles relating to the retrospective and prospective effect of court decisions; and that, altogether exceptionally, it was not always beyond the competence of the House of Lords ever to limit the temporal effect of its rulings.
Reliance on In re Spectrum Plus Ltd in the present appeal is hopeless for one or more of the following summary reasons:
(1) the case would have to be altogether exceptional such that a ruling having retrospective effect would have gravely unfair and disruptive consequences. This case comes nowhere near that.
(2) declaring quite exceptionally that a ruling should have prospective effect only is probably only within the competence of the House of Lords. This is our reading of the effect of the opinions in In re Spectrum Plus Ltd, and in any event decisions of lower courts are seldom beyond appeal. Mr Summers expressly conceded this point orally when the court put it to him.
(3) Dyson LJ did not consider making the ruling in Louca prospective only, let alone did he say that it...
To continue reading
Request your trial
-
Lukaszewski and Others v The District Court in Torun, Poland and Others (No 3)
...errors. 16 Cases in which some leeway has been allowed as to the form of the notice include the following. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), this court (Sir Anthony May President and Silber J) deployed rule 3.10 to correct the omission of ......
-
Lukaszewski and Others v The District Court in Torun, Poland and Others (No 2)
...of authority has taken a relaxed view of the statutory requirements. In Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), the court, rightly in my view, treated as a mere procedural error, which could be corrected, the endorsement in a notice of appeal of a ......
-
Regional Court in Konin, Poland v Walerianczyk
...A notice of appeal may be deficient in minor ways that are capable of being condoned under CPR r.3.10. Thus in Office of Public Prosecution Hamburg, Germany v Hughes [2009] EWHC 279 (Admin) the Appellant's notice had failed to include the date on which the appellant had been arrested, cont......
-
Arunthavaraja v Administrative Court Office Paphos District Court, Cyprus (Interested Party)
...been drawn by Miss Nice on behalf of the judicial authority to the case of Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), at paragraph 21 of which the court expressed the view that the court has power under rule 3.10 to make an order to remedy an error in ......