R v Seddon
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 10 March 2009 |
| Neutral Citation | [2009] EWCA Crim 483 |
| Docket Number | No: 2008/2972/D1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 March 2009 |
[2009] EWCA Crim 483
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Vice President
(Lord Justice Hughes)
Mr Justice King
His Honour Judge Gordon
(Sitting as a Judge of the CACD)
No: 2008/2972/D1
Mr C Nicholls QC and Mr C Daw appeared on behalf of the Appellant
Mr J Lewis QC and Mr n Booth appeared on behalf of the Crown
Mr D Perry QC appeared on behalf of the Secretary of State
: The issue in this appeal is the extent of the rule of specialty which is preserved by the Extradition Act 2003 in relation to inward extraditions from category 1, that is to say European Union territories. What is in question principally is the construction of section 146(3)(b) of the 2003 Act.
Some time ago in October 2001 this defendant pleaded guilty in the Crown Court at Minshull Street in Manchester to the offence of blackmail. Sentence was postponed pending the trial of one or more co-accused. During that interval the defendant absconded to Spain and thus failed to appear for sentence when he should have done. In due course he was located in Spain where by then he was serving a sentence of imprisonment for Spanish offences. A warrant was issued in the United Kingdom under Part 3 of the Extradition Act 2003. That had the effect under European rules for co-operation, to which we shall need to come, of seeking his extradition back to the United Kingdom from Spain so that he could be sentenced here. In due course, as we understand it after the completion of his Spanish sentence, he was duly surrendered.
On his return to Manchester the judge in the Crown Court ruled that he was able to deal with the defendant not only for the blackmail but also for the statutory offence, contrary to section 6 of the Bail Act 1976, of failing to answer to his bail. The judge accordingly passed a sentence of 18 months for the blackmail and he added four months consecutive for the bail offence. The issue in this appeal is whether the judge had any power to deal with the Bail Act offence or whether he was confined to the blackmail. There could be no complaint about the sentence for the Bail Act offence if there was power to deal with it. The argument that there was no power to deal with the Bail Act offence is founded upon the contention that the defendant had not been extradited for that offence but only for the blackmail.
Extradition is a process involving agreement between Sovereign States. The requesting State has no power to send its policemen into the requested State to arrest a prisoner who has run away there. That would be a direct infringement of the sovereignty of the requested State. So the requesting State depends upon the voluntary co-operation of the State where the fugitive is now to be found. Unsurprisingly States found that they generally had a common interest in A surrendering prisoners to B if B asked, providing that B entered into a reciprocal agreement to surrender those whom A wanted when the boot was on the other foot. On the other hand, States generally wished to retain the power to refuse to surrender in some circumstances. To take simple but non-exhaustive examples, they might wish to refuse if the conduct complained of was not a crime in the requested State, or if it was, for example, a crime of a political character where the interests of the two States diverged.
Historically, extradition was generally achieved through separate bilateral treaties between States. Commonly the power of the requested State to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted, so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering state's power to refuse would be circumvented. That principle is called specialty. It has been recognised in this country by successive statutes dealing with our local rules for extradition both inward and outward. The rationale for it may owe something to the protection of the individual, but it plainly lies principally in the international obligation between States.
Within the area of the European Union, the old profusion of bilateral treaties is now replaced by what is in effect a general agreement between Member States. It takes the form of a European Council Framework Decision dated 13th June 2002. Within the limits set by the Framework Decision the process of extradition between Member States is greatly simplified. The request for surrender now takes the form of the issue of a common form European arrest warrant. Member States undertake to give effect to it by surrender subject to defined exceptions. Moreover, there is a list in Article 2 of core criminal behaviour which all States recognise as justifying surrender without the necessity for individual proof of double criminality.
The Framework Decision is binding upon Member States through Article 34(2)(b) of the Treaty on the European Union. That means in effect that the Framework Decision amounts to a multi-lateral treaty creating international obligations binding upon each of the Member States. It is not however directly effective as part of the law of individual Member States. Under Article 34(2)(b) it is left to the national authorities to decide the form and methods by which effect shall be given internally to the international obligation created by the Framework Decision. In the language of the English law, it is left to Parliament to decide how to transpose the Framework Decision into English law.
Parliament's response in this country is to be found in the Extradition Act 2003. That Act now makes separate provision for extradition as between the United Kingdom and other members of the European Union, which are known in the Act as category 1 territories. Outward extradition to European category 1 territories is dealt with by Part 1 of the Act, sections 1 to 68. Inward extradition to the United Kingdom from category 1 European territories is dealt with by sections 142 to 149 contained within the general inward provisions of part 3 of the Act. We perhaps ought to say in passing for the sake of completeness that the 2003 Act deals also with extradition in relation to other non-European territories. We are not here concerned with them. They are dealt with as to outward cases in Part 2 of the Act and as to inward cases in sections 150 to 151 and the remainder of Part 3.
The Council Framework Decision contains among its recitals the following as (5):
“The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between member states and replacing it by a system of surrender between judicial authorities…”
However, the Decision preserves the principle of specialty and it does so by explicit provision in Article 27. Article 27(1) provides that individual Member States may in effect waive the principle of specialty generally. That, however, is not a course which has been adopted by more than two of the European Union members and it is not a course which has been adopted by either the United Kingdom or Spain.
Leaving that possibility therefore aside, the remainder of the relevant parts of Article 27 provide as follows:
“(2) Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered.
(3) Paragraph 2 does not apply in the following cases:
(a) when the person having had an opportunities to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it;
(b) the offence is not punishable by a custodial sentence or detention order;
(c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty;
(d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty;
(e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13;
(f) when the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences proceeding his/her surrender.”
There follow provisions for the manner of renunciation which we need not recite. Lastly:
“(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4.”
We should add paragraph (4) which provides as follows:
“A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused [upon defined grounds set out in Article 3 or 4 in other ge,5]]cases].”
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