Sabah Zeka v The Court of First Instance, West Flanders Division, Bruges (Belgium)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 20 August 2020 |
| Neutral Citation | [2020] EWHC 2304 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4864/2018 |
| Date | 20 August 2020 |
[2020] EWHC 2304 (Admin)
Mr Justice Fordham
Case No: CO/4864/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Florence Iveson (instructed by McMillan Williams Solicitors) for the appellant
The respondent did not appear and was not represented
Hearing date: 20 August 2020
Judgment as delivered in open court at the hearing
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Note: This judgment was produced for the parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.
Introduction
This is an application for permission to appeal in an extradition case. The mode of hearing was BT conference call. The Administrative Court had provided an opportunity for the appellant's representatives to state any preference or provide any reasons why remote hearing was considered inappropriate. Like them, I was satisfied that a telephone hearing was appropriate. I heard oral submissions in exactly the way I would have done had we all been physically present in a court room. In relation to open justice, the hearing and its start time – together with an email address which could be used by any person wishing to observe the hearing – were published in the cause list. The hearing was recorded. This judgment will be released into the public domain. By having a remote hearing we eliminated any risk to any person from having to travel to, or be present in, a court. I am satisfied that no right or interest was compromised, and that if there was any interference with or qualification of any right or interest, it was justified as necessary and proportionate.
The old s.2 point (species/number)
The situation which I face today involves two sets of arguments being before the Court. The first set of arguments stem from the Grounds of Appeal that were originally pursued in this case when an appellant's notice was filed back in December 2018. What had happened was that the District Judge on 30 November 2018 had ordered extradition after an oral hearing on 15 November 2018. Extradition was ordered on a European Arrest Warrant (EAW) which was an accusation warrant. At that time and by way of a proposed appeal it was intended to pursue two points. One was an article 3 point which has been abandoned but which was in fact the reason why this case was stayed. The other point was a section 2 Extradition Act 2003 point which was all about whether the accusation EAW was section 2-compliant in the way in which it communicated the alleged offending. That point had stayed in the case through to today. Goose J on 2 July 2020 refused permission to appeal on the basis that this point was not reasonably arguable. I agree with him. In my judgment, this is not a reasonably arguable ground of appeal.
As it seems to me the point, in this case, really comes to this. Although it is accepted that the EAW communicated the substance of what I will call the ‘species’ of the offence, the unidentified ‘number’ of incidents of that species of offence put the warrant in breach of section 2, because the UK court was not in a position to perform its duty of testing for compatibility, in particular, with the requirement of ‘dual criminality’. It is right that the EAW in this case states that ‘the total number of offences were yet to be determined’; and that the further information refers to ‘at least a total of 25 facts committed’; and so Ms Iveson can therefore say that there is, on the face of it at least, a lack of clarity as to number of incidents. But, in my judgment, that does not give her a reasonably arguable ground of appeal. She has accepted, in my judgment rightly, in her skeleton argument for today that the EAW read with the further information contained enough information (or as she put it “just enough” information) to comply with section 2 insofar as summarising the conduct complained of. Nor, in my judgment, was there any deficiency in this case so far as the ‘species’ of offence is concerned. That was the point that Goose J was making on the papers when he referred to ‘the offence’ being clear. If the ‘species’ of offence is clear, then ‘dual criminality’ compatibility testing can be undertaken. If the species of bird is known, the precise number within the flock does not change the fact that the species can be tested as to the requirement of dual criminality.
Ms Iveson showed me as her ‘best shot’ in relation to this point Taylor 2012 EWHC 475 (Admin). That was certainly a case about multiple offences and section 2 compatibility. But, in my judgment, that case does not support her proposition that the ‘number’ of occasions when it is being alleged that a ‘species’ of offence was committed has to be spelled out in an EAW. Indeed, I note that Counsel's submission in that case did not even go that far. The submission was (see paragraph 10) that the EAW should have given “some indication of the number of occasions that each sort of offending was committed”. Nor did Collins J, as I read his judgment, accept that formulation, put in even that way. His concern (at paragraph 12) was to do with the need, in that particular case, to identify “the place” at which offences had been committed, in the context of understanding the substance of what was being alleged. I think the respondent are right in the respondent's notice, and Goose J was right in his decision on the papers, this is not a reasonably arguable ground of appeal and I refuse permission on it.
The new points
That is not, however, the end of the case. I said there were ‘two sets of arguments’. By an application dated 12 August 2020 Ms Iveson has sought to introduce fresh evidence and 3 new grounds of appeal. They are closely interlinked, as I see them. Ordinarily, such an attempt would be peremptorily dismissed on the basis that it is far too late to be introducing new grounds of appeal. On one view all 3 points are points which could, and should, squarely have been raised in this case in the light of a letter dated 15 January 2019. To explain what happened, subsequent to the District Judge ordering extradition on the accusation EAW, and subsequent to the filing of the notice of appeal, the Belgian authorities proceeded to convict the appellant in his absence on the matters for which he was accused. That conviction was described, in a letter constituting further information, dated 15 January 2019. That change, says Ms Iveson had the consequence in substance of ‘transforming’ what previously had been an accusation warrant, and extradition based on an accusation warrant, into what was in now in substance extradition on a conviction warrant. All 3 of her linked new grounds arise out of that and the subsequent events.
I am not prepared to deal with permission to appeal without having given the respondent squarely an opportunity, directed by me, to respond to the substance of the 3 new points. In fairness, Ms Iveson's instructing solicitor recognised as a possible course, in an email to the court prior to this hearing, that I might ‘wish to hear from the CPS before deciding on permission to appeal’. If I were satisfied that there is absolutely no justification for the delay in raising these points, or if I were satisfied that there is absolutely nothing in the points without hearing from the respondent, then I would simply refuse permission to introduce them. That, however, is not the position. Having said that, I am not prepared to grant permission to appeal either. One option would be for me to adjourn this case part-heard, to allow the respondent to file a response, and then deal with permission to appeal having done so. I am persuaded, in all the circumstances, including the fact that in fairness the respondent was served with the application of 12 August 2020 and has not specifically responded to it, that the better...
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...the decision of Fordham J refusing permission to appeal in Zeka v Court of First Instance, West Flanders Division, Bruges (Belgium) [2020] EWHC 2304 (Admin), at [3]: “If the ‘species’ of the offence is clear, then ‘dual criminality’ compatibility testing can be undertaken. If the species o......
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