Thompson v France
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCOTT BAKER,MR JUSTICE AIKENS |
| Judgment Date | 17 October 2008 |
| Neutral Citation | [2008] EWHC 2787 (Admin) |
| Docket Number | CO/4781/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 October 2008 |
[2008] EWHC 2787 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Scott Baker
Mr Justice Aikens
CO/4781/2008
Nick Yeo and Helen Lyle (instructed by Hallinan Blackburn Gittings & Nott) appeared on behalf of the Claimant
Rebecca Hill (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
(Approved by the court)
This is an extradition appeal under Part 1 of the Extradition Act 2003. It concerns a European arrest warrant. The Appellant, Robert Thompson, is a 42-your-old British man sought by the French Judicial Authority (“the Respondent”) for conduct said to have occurred in 2001.
It is said that in France, in late 2001, a British gang was involved in smuggling tobacco through France into England. The tobacco was bought using fake credit cards. The gang made use of stolen cards, which were then cloned. It is said that the Appellant was part of that gang. The case was originally argued before the District Judge in November 2005.
It was contended that the Appellant's extradition was barred by reason of the passage of time. The conduct was by then 4 years old and the French had unsuccessfully sought his extradition from the Netherlands in the meantime, where he had spent 8 months in custody. This argument was rejected by the District Judge, who found that the Appellant had fled from the Netherlands. There was also an argument in relation to the appropriateness of the charges, which was successful in part. Judgment was delayed until 15th May 2008, because the Appellant did not attend the original hearing date and could not be found.
The present appeal was originally due to be heard in July. The grounds being advanced by the Appellant were that the arrest warrant was defective in a number of respects. None of those points had been taken before the District Judge, but the contention was that the case law had developed since the hearing in November 2005 and these points were open to the Appellant on appeal. The time point was no longer being pursued.
On 24th July the following information was received from the public prosecutor in Boulogne in unauthenticated e-mail form:
“a) Mr THOMPSON was sentenced in absentia to 4 years imprisonment on 23 rd November 2006.
B) The judgment was made in absentia under the terms of section 489 and subsequent sections of the French code on criminal prosecutions. An appeal may be lodged within 10 days of the date that the subject is notified of the arrest… or made aware of the conviction. If an appeal is lodged, he will be given a new trial date, a new decision will be passed and the first declared nul and void.
C) Mr THOMPSON was convicted of:
—the offence of using counterfeit bank cards and complicity in counterfeiting and using false bank cards. The maximum sentence for this offence is 7 years imprisonment as under the terms of French law, an accomplice incurs the same sentence which is likely to be imposed upon the chief perpetrator. (section 121-6 of the Penal Code).
—the offence of handling stolen vehicles, for which the maximum sentence is 5 years imprisonment.”
Up until then, everyone had been under the impression that the Appellant was wanted as an accused person. That appeared to be the basis on which he was sought in the European arrest warrant, and it was on that basis that the District Judge considered the case.
The state of the law when the appeal came before the Divisional Court in July was that the fact that the Appellant, so it appeared, had been convicted did not avail him because of the fact that he had a right of appeal against the conviction in France. Put simply, the French proceedings had not been concluded and so it remained appropriate to be seeking his return as an accused person rather than as a convicted person. But the point was under appeal to the House of Lords in Caldarelli v Court of Naples [2008] UKHL 51 and speeches were due to be handed down on 30th July. Accordingly, at the respondent's request, the Divisional Court adjourned the Appellant's appeal. In the event, the House's decision in Caldarelli does nothing to assist either side.
It is said that the warrant is defective in three respects, which are summarised as follows:
1. Lack of section 2 statement. It does not state whether the person is sought for the purpose of being prosecuted for the offence or with a view to his extradition to serve a sentence, as required by sections 2(3) and 2(5) of the Act. Nor is it apparent from the warrant as a whole what stage the proceedings in his case have reached and whether he is sought for prosecution or as part of the investigation for questioning.
2. Lack of particulars of sentence. It does not specify particulars of sentence in respect of each offence which may be imposed under French law, as required by section 2(4)(d).
3. Lack of particulars of the handling offence. In respect of the allegation of handling stolen cars, it does not specify the particulars of the circumstances of the offence, as required by section 2(4)(c).
It is submitted that these defects are fatal to the warrant.
The relevant provisions of the Extradition Act 2003 are:
“2. Part one warrant and certificate…
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains——
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that——
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is——
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(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 an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
5. The statement is one that——
(a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, and
(b) the… warrant is issued with a view to his… extradition [to serve sentence].”
So it can be seen that there are two alternative routes: either he is sought because he is accused or because he has been convicted. The respondent contends that the warrant in the present case fell into the former category. Accordingly, if this is correct, the warrant had to contain the statement required by section 2(3) and the information required in section 2(4).
Section 2(4) requires particulars of the person's identity. There is no problem about that. It also requires particulars of any other warrant. Again there is no difficulty about that. There are, however, issues about the third requirement, which are particulars of the circumstances of the offence and particulars of the sentence which may be imposed.
The first question is whether the warrant is an accusation warrant or a conviction warrant. It is necessary to establish this in order to see whether the provisions of subsections (3) and ( 4) or (5) and (6) of section 2 are applicable. Unfortunately, the warrant, in its opening words, does not make the position clear. Immediately under the words “European arrest warrant” in bold type, it says:
“The present warrant was issued by a judicial competent authority. I request the arrest and delivery of the hereabove mentioned person to the judicial authorities for legal proceedings or execution of a sentence or as a custody provision.”
The cause of the problem appears to have been the use of standard wording without eliminating one of the two alternatives so as to indicate whether it was an accusation warrant or a conviction warrant.
There is another problem with these opening words. Section 2(3)(b) requires the warrant to contain a statement that the warrant is issued with a view to the person's arrest and extradition for the purpose of being prosecuted (my emphasis) for the offence. The words on the warrant refer to the object as being “legal proceedings” rather than “the purpose of being prosecuted”. The authorities make clear that the court should look at the whole of the warrant when an issue of lawfulness arises. That is common ground. In my view, it is clear from looking at the whole warrant that it is an accusation warrant rather than a conviction warrant.
Mr Yeo for the Appellant submits that section (b) will often provide clarification, where the standard form “introduction” has left the position ambiguous, but, he says, not in this case, because there is reference to a judgment reference number which implies concluded proceedings. Closer examination, however, reveals that the number is no more than the prosecution's department number (see...
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