Tristan Haynes v The Court of Magistrates, Malta
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE GIBBS,MR JUSTICE TEARE |
| Judgment Date | 26 March 2009 |
| Neutral Citation | [2009] EWHC 880 (Admin),[2007] EWHC 2651 (Admin) |
| Docket Number | CO/5902/2007,CO/12382/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2009 |
[2007] EWHC 2651 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Richards
Mr Justice Gibbs
CO/5902/2007
Mr M Butt (instructed by Hallinan, Blackburn) appeared on behalf of the Claimant
Miss G Lindfield (instructed by CPS (Special Crime Division)) appeared on behalf of the Defendant
This is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court, to order the appellant's extradition to Malta, to continue his trial, as the judge held, for three offences of causing grievous bodily injury. The trial itself commenced on 12th May 2003 and extended over a number of hearings, the last of which was in July 2005. It appears that at that time the prosecution case was coming to a close. The appellant left Malta and travelled to England. He is sought under a European arrest warrant, issued in January 2007 by the Court of Magistrates of Malta, the respondent in this appeal.
The warrant is stated to relate to a total of six offences. The description of the circumstances in which the offences were committed shows that this was an alleged incident of road rage. The appellant is said to have been the driver of a vehicle that bumped into and overtook on the inside, another vehicle. The vehicles stopped and everyone got out. The description continues:
"An argument broke out and Haynes physically attacked Joseph and Maryanne Attard and David Shepherd, punching and kicking them around the head and body. Each suffered various injuries, including cuts and bruises which required medical attention. David Shepherd who was struck to the head, groin, chest and abdomen received life threatening injuries and was hospitalised for internal bleeding."
Reference is also made to minor matters such as damage to the motor car.
The nature and legal classification of the offences and the applicable statutory provisions are stated in the warrant to be as follows:
"(3 counts) Wilful Offences Against the Person: Art 214, 216, 218, 221 Criminal Code [CC]; (1 count) Crimes Against Public Safety and Injury to Property: Art 328CC; (1 count) Contravention Affecting Public Order: Art 338(dd)CC …; (1 count) Violations of the Motor Vehicle Regulations; obstruction to traffic Section 55(3) second schedule… NB Of above in Relation to Framework List below ONLY: (3 counts) Wilful Offences Against the Person: Art 214, 216, 218, CC."
The reference to the framework list is to the list corresponding to that in paragraph 2 of Article 2 of the Council Framework Decision of 13th June 2002 on the European arrest warrant and surrender procedures between Member States ("the framework decision"). As Lord Bingham of Cornhill stated in Office of the King's Prosecutor v Cando Armas [2006] 1 AC 2006 1, at paragraph 5:
"It sets out a list of offences which have been conveniently labelled 'framework offences'. These are not so much specific offences as kinds of criminal conduct, described in very general terms."
The warrant itself describes them as "offences punishable in the issuing member state by custodial sentence or detention of a maximum of three years as defined by the laws of the issuing member State." The warrant contains a pro forma list of such offences. The category said to be applicable in this case is identified by a tick or a mark in the box next to "murder, grievous bodily injury".
The form used for the warrant also calls for a full description of offences that are not framework offences. The warrant in this case includes such a description in the following terms:
"Slight bodily harm; Art 221 CC (A bodily harm which does not produce permanent disability of the health, …of a body organ, or permanent defect or mental infirmity or serious disfigurement of the face, neck, or hands. Involuntary damage: Art 328(d)CC (Causing involuntary damage to property through imprudence, negligence or non-observance of any regulation). Wilfully disturbing the public good order or the publicpeace; Art 338(dd)CC. Causing an obstruction to traffic: Sec 55 Second Schedule."
The other feature of the warrant that I need to mention is the section relating to the maximum length of custodial sentence or detention which may be imposed for the offences to which the warrant relates. That reads:
"Nine years for bodily harm (3 counts); six months for involuntary damage to property (1 count); three months for disturbing the public peace; fine… for traffic violation obstruction of traffic (1 count)."
It is common ground that the particulars given in the warrant include particulars of offences that are not extradition offences or in respect of which the requesting state has now made clear that it is not requesting the appellant's extradition. His extradition is sought in respect of three offences alone, each of which is said to be a framework offence of grievous bodily injury. I have referred to the other offences because they are relevant to the arguments in the case and the overall construction of the warrant.
Following the appellant's arrest on the warrant, extradition hearings took place in the Magistrates' Court. At the first hearing the judge expressed a provisional view that only one of the three offences in which extradition was then sought was an extradition offence, that being the assault on Mr Shepherd. The hearing was adjourned part heard.
At the next hearing the requesting authority relied on supplementary material in the form of a letter from the office of the Attorney-General in Malta. That letter was signed by a Dr Dimech, who described herself as "Senior Counsel for the Republic". It is stated that the requesting state had taken note of questions and allegations raised by the defence. The author said she had viewed the court file and consulted with the presiding Magistrate. One of the matters addressed in the letter was the offences for which extradition was being sought. As to that the letter stated:
" The offences for which his return is being requested are for three counts of grievous bodily harm against three persons (David Shepherd, Joseph Attard and Maryanne Attard).
In relation to the Attards, Haynes is also accused of causing different injuries of a slight nature. In terms of Maltese law, the causing of slight body harm is punishable by maximum penalty of 3 months' imprisonment and the reason mention was made of this fact is in order to present a complete picture to the esteemed United Kingdom judicial authorities, as one is obliged to do so in terms of the Framework Decision on the EAW."
At the hearing the judge concluded that the warrant was valid and held that extradition was being sought for three offences that amounted to extradition offences of grievous bodily injury. He also made a finding that the requesting authority had acted in good faith. In addition he heard evidence from the appellant on issues which he decided against the appellant and do not arise on this appeal. In the event he ordered, as I have said, the appellant's extradition.
The appeal to this Court is brought on three grounds. The first concerns the formal validity of the warrant under section 2(4) of the 2003 Act. The second relates to whether the appellant's conduct is shown to have constituted an extradition offence within section 64(2) of the Act. The third is an allegation of abuse of process by the requesting authority which it is said ought to lead in any event to the appellant's discharge.
I will deal with the first two grounds together because they both depend heavily, albeit in different ways, on the terms of the warrant. As to the first ground, section 2(4)(d) of the 2003 Act states that the Part 1 warrant must contain "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". The information so required corresponds to that set out in Article 8(1)(f) of the framework decision. It is clear from what was said by Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] 2 WLR 254, [2007] UKHL 6, at paragraph 50, that the particulars of sentence must be contained in the warrant itself and it is not permissible to have regard to information supplied outside the warrant. There is a possible exception in a case of ambiguity (see Kuprevicius v Vice Minister of Justice, Ministry of Lithuania [2006] EWHC 1518 per Toulson LJ).
The submission made by Mr Butt, on behalf of the appellant, is that the warrant does not comply with the requirements as to the particulars of the sentence which may be imposed. In describing the sentence it refers to "bodily harm" and mentions three counts, but that is not good enough since the warrant refers to various "wilful offences against the person", including at least one offence of slight bodily harm as well as three framework offences of grievous bodily injury. Moreover, the warrant refers to four different articles of the criminal code, including three different articles which are said to apply to the three framework offences. So there is, on the face of the warrant, a range of different offences of bodily harm, yet only one maximum sentence is specified. Nor is it clear whether the maximum sentence is nine years for each of the counts referred to, whichever ones they may be, or a total sentence for all of those counts. The judge thought it was the latter. It is submitted that the warrant is therefore...
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