Spanish Judicial Authority v Antonio Troitino Arranz (No 3)
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWHC 2305 (Admin) |
| Docket Number | Case No: CO/1724/2015 & CO/1815/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2015 |
[2015] EWHC 2305 (Admin)
The Lord Chief Justice of England and Wales
and
Mr Justice Cranston
Case No: CO/1724/2015 & CO/1815/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mark Summers QC and Laura Dubinsky (instructed by Birnberg Peirce Solicitors) for the
Appellant Ben Lloyd (instructed by CPS) for the Respondent
Hearing dates: 23 & 24 June 2015
Approved Judgment
Between 2011 and the present time, the Spanish Judicial Authority have issued three European Arrest Warrants (EAW) against the appellant. In 2013, the appellant was eventually discharged by this court under the first EAW (EAW 1), a conviction warrant. He was discharged under the second EAW (EAW2), an accusation warrant by the Westminster Magistrates' Court. His extradition to Spain was ordered under the third EAW (EAW3). The current appeal is from that decision. As the issues in this appeal involve matters relating to EAW1 and EAW2, it is necessary to outline the background and the proceedings in respect of EAW1 and 2.
The background
(a) EAW1: the original conviction of the appellant, his release from prison and his arrival in England and Wales
In 1986 the appellant was a member of a terrorist cell which sought to further the aims of the Basque separatist group, ETA. On 14 July 1986, with others, he placed an explosive device in central Madrid which was detonated as a convoy of civil guards approached. Eleven members of the civil guard were killed in the explosion, 43 members of the civil guard and 17 civilians were injured and there was substantial damage to property. In 1989 the appellant was convicted of 91 offences including terrorism, murder and attempted murder and was sentenced to 2,232 years imprisonment for his part in the attack.
In 2000 the Audiencia Nacional, the highest trial court in Spain, fixed the combined time to be served and capped it at 30 years without remission. On this basis, his sentence would have been completed in January 2017. At the time that the sentence was fixed, Spanish law provided that a defendant was entitled to remission for good conduct against the 30 year term at which his sentence had been capped. Applying that law, it was determined that the appellant had earned 2,164 days remission and his release date was fixed for February 2011.
However, in a case involving another ETA defendant, the Spanish Supreme Court had, by a judgment of 28 February 2006, amended the law so that remission was to be applied to each sentence individually, namely the 2,232 years and not to the maximum 30 year term. This change to the law was known as the Parot doctrine.
On 1 February 2011 the Third Section of the Audiencia Nacional applied the Parot doctrine to the appellant's case so that instead of being released in 2011 he was to be released in 2017. Nonetheless, the appellant was released from prison on 13 April 2011, as it appears that effect had been given to the earlier decision.
It was appreciated by the Audiencia Nacional shortly thereafter that his release had taken place. On 19 April 2011 the Audiencia Nacional reversed the ruling permitting his release and issued a Spanish domestic warrant for the appellant's arrest.
The appellant left Spain and came to the United Kingdom. We refer to the case of the Spanish Judicial Authority in relation to the way in which he left Spain at paragraph 29 below, as that case forms the basis of the accusation under EAW3 with which this appeal is concerned. EAW1, a conviction warrant, was issued on 26 April 2011 to enforce the Spanish domestic arrest warrant. Over a year later, on 29 June 2012, the appellant was arrested under EAW1 in the UK. False identity documents were seized from him.
(b) The decisions of the Strasbourg Court in Del Rio Prada
Shortly after his arrest in the UK, the Third Section of the Strasbourg Court held that the retroactive application of the Parot doctrine to the sentence of another ETA member violated Article 7 of the European Convention on Human Rights. Insofar as it purported to justify the detention, it was in breach of Article 5: see Del Rio Prada v Spain (2012 App 42750/09, July 2012). The Government of Spain appealed to the Grand Chamber.
Whilst that appeal was pending before the Strasbourg court the extradition proceedings under EAW1 continued. On 1 February 2013, the District Judge at Westminster Magistrates' Court ordered the appellant's extradition under EAW1. That decision was upheld by this court on 14 June 2013 in a judgment reported at [2013] EWHC 1662 (Admin). This court upheld the decision on the basis of an express undertaking by the Spanish Judicial Authority that it would scrupulously abide by the judgment of the Grand Chamber.
Whilst this court was considering whether to certify a question of law for the Supreme Court of the United Kingdom, the Grand Chamber delivered a judgment upholding the decision of the Third Section on 21 October 2013.
(c) The failure by the Spanish Judicial Authority to abide by their undertaking to this court in respect of EAW1
The appellant immediately applied to reopen his extradition appeal and to be admitted to bail. On 22 October 2013, the Spanish Judicial Authority requested time to consider its position; the appellant was admitted to bail.
In fact the appellant was not released on bail. He was detained in immigration detention as a result of a decision made by the Secretary of State to deport him to Spain. It was not until 27 November 2013 that the appellant was released.
The circumstances in which EAW1 was concluded were as follows.
(1) The position taken by the Spanish Judicial Authority was:
"Considering the previous writ of the British liaison magistrate, this court orders it has to be joined to the executory and in response to the issues raised that this Third Section maintains its request for surrender extradition by EAW and says it is up to the British courts to resolve about its execution and, where appropriate, to apply the ECHR doctrine in its 2013/10/21 judgment."
(2) As explained to us, this was intended to convey the refusal of the Spanish Judicial Authority to withdraw the EAW, let alone the underlying proceedings in Spain to enforce the sentence imposed on the appellant under the Parot doctrine. It was contended by the appellant that the pursuit of the appellant's removal under the EAW in these circumstances was an abuse of process.
(3) The Crown Prosecution Service, who act in such proceedings for each European Judicial Authority, did not dispute that position. This court decided that the appeal be allowed on the basis that:
"Following the Grand Chamber's decision, the pursuance of the European Arrest Warrant, when there is no further period of detention in Spain that the appellant could be required to serve, amounts to abuse of this court's process."
(4) This court therefore ordered the appellant's discharge under s.27 of the Extradition Act 2003 (the 2003 Act) and quashed the order for removal.
That, however, left the original arrest warrant and EAW1 in place. If the appellant had left the United Kingdom, he would have been immediately subject to arrest under EAW1 in the territory of another Member State which these days can more easily be done under the Schengen II Information System.
As we set out below at paragraphs 38 and 39, it was only in the course of this appeal that the Spanish Judicial Authority withdrew the proceedings in Spain and the extant warrants for his arrest and finally complied with its undertaking to this court.
(d) The second European Arrest Warrant
On 10 January 2014 the Spanish Judicial Authority issued a second EAW (EAW2) in respect of the appellant. This was an accusation EAW alleging two offences, namely membership of a terrorist organisation and forgery of official documents. It will be necessary to return to the substance of the first of those offences in due course. Suffice to say that in a judgment delivered on 17 October 2014 the Westminster Magistrates' Court held that EAW2 was invalid under s.2 of the 2003 Act. The appellant was discharged.
(e) The third European Arrest Warrant
On 17 November 2014 the Spanish Judicial Authority issued a replacement EAW (EAW3) for the same two offences, curing the defect identified in the judgment of 17 October 2014. The appellant was rearrested on 11 December 2014 and released on bail.
There was an extradition hearing before the Senior District Judge on 6 February, 20 and 23 March 2015 at which evidence was heard. On 14 April 2015 the District Judge, for reasons carefully and clearly set out in a written judgment, ordered the appellant's extradition in respect of the first offence, namely membership of a terrorist organisation, but discharged him in respect of the forgery offence. The appellant appealed against his extradition. The Spanish Judicial Authority initially sought leave to appeal in respect of the forgery offence, but that appeal has been abandoned.
All the issues raised by the appellant before the District Judge are pursued on the appeal. These are:
(1) "Judicial engineering" by the Spanish Judicial Authority;
(2) Abuse of process on the basis that it was clear that the conduct set out in EAW3 did not give rise to the offence alleged;
(3) Specialty in respect of the extant proceedings which formed the basis of EAW1;
(4) Articles 6/5 of the European Convention on Human Rights;
(5) The bar under S.12A of the 2003 Act; and
(6) Article 31 of the Refugee Convention.
We will consider each of these in turn.
(1) "Judicial engineering" by the Spanish Judicial Authority
The first submission of the appellant was that the...
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