A v Deputy General Public Prosecutor of the Lyon Court of Appeal
| Jurisdiction | England & Wales |
| Judge | Stuart-Smith LJ |
| Judgment Date | 22 September 2021 |
| Neutral Citation | [2021] EWHC 2543 (Admin) |
| Docket Number | Case Nos: CO/3078/2019; CO/756/2020 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 2543 (Admin)
Lord Justice Stuart-Smith
Mr Justice Jay
Case Nos: CO/3078/2019; CO/756/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugo Keith QC and Rachel Barnes (instructed by Sternberg Reed) for the Appellant
Mr A Hugo Keith QC and John Crawford (instructed by MW Solicitors) for the Appellant
Mr Esmaili Helen Malcolm QC and Richard Evans (instructed by CPS) for the Respondents
Hearing dates: 14 and 15 June 2021
Approved Judgment
This is the judgment of the Court to which we have both contributed.
Pursuant to the inherent jurisdiction of the Court, the Court has directed and implemented the anonymisation of the appellant referred to in this judgment as Mr A, his partner, his daughter or the police officers referred to as Mr X and Superintendent Y and directs that no information reasonably capable of identifying them shall be reported without further order of the Court. This step is necessary and proportionate to protect the safety of those persons so far as is reasonably practicable.
Introduction
The Appellants appeal pursuant to section 26 of the Extradition Act 2003 (“the 2003 Act”) against orders for their extradition made respectively by Deputy Senior District Judge Tan Ikram on 30 July 2019 and District Judge Sam Goozée on 20 February 2020. The extradition of the Appellants is requested pursuant to European Arrest Warrants (“EAWs”) issued by two French Judicial Authorities (“the Respondents”). The two appeals were joined by way of an order made by Julian Knowles J on 1 February 2021 as both cases raised the issue of prison conditions in France.
There is no reason to anonymise the participants in the Esmaili appeal from the order of DJ Goozée. But in the other appeal we refer to the appellant as Mr A and to various other participants by letter to protect their identity and safety so far as is possible.
In briefest outline, there are four grounds of appeal for determination:
i) Ground 1: Each Appellant submits that the Judges ought to have decided differently the question whether their extradition would amount to a violation of Article 3 of the European Convention on Human Rights (“ECHR”) due to prison conditions in France;
ii) Ground 2: The Appellant Mr A submits that the Judge ought to have decided differently the question whether extradition was an abuse of process;
iii) Ground 3: The Appellant Mr A submits that the Judge ought to have decided differently the question whether there are substantial grounds for believing that extradition would give rise to a real risk of the execution of an arbitrary and disproportionate sentence contrary to Articles 5 and 3 of the ECHR;
iv) Ground 4: The Appellant Mr A submits that the Judge ought to have decided differently the question whether extradition pursuant to the EAW would be in breach of Article 5 as there is no mechanism under French law to challenge the proportionality of the EAW.
The Respondents submit that the decisions of the Judges below were correct. In summary:
i) Ground 1: the Respondents submit that the Appellants have provided no objective, reliable, specific and properly updated evidence to demonstrate that conditions in the prisons of Fresnes, Villepinte, Rennes Vezin, Lyon Corbas and Villefrance-sur-Saone are such as to breach Article 3;
ii) Ground 2: In relation to the Appellant Mr A, extradition would not amount to an abuse of process. There is no suggestion that the extradition proceedings are being usurped. The Respondent Judicial Authority has requested the Appellant's extradition for him to serve a lawfully imposed sentence of imprisonment. The circumstances as alleged by the Appellant do not amount to an abuse of process. In any event, the Appellant can provide no objective evidence to demonstrate that he was assured he would not be prosecuted for offences committed abroad. Quite the contrary. The grounds on which litigation was settled in Ireland do not disclose that such an assurance was made;
iii) Ground 3: In relation to the Appellant Mr A, extradition would not amount to a real risk of violation of Articles 3 and 5. The Appellant has been lawfully convicted. The Respondent has confirmed by a letter dated 12 October 2018 that should new evidence arise, the Appellant will have the opportunity make an exceptional application to appeal.
iv) Ground 4: In relation to the Appellant Mr A, extradition would not amount to a breach of Article 5. This issue was addressed in Parquet Général du Grand-Duché de Luxembourg and Tours C-566/19 PPU where the CJEU found that national procedural rules allow for the proportionality of the decision of the Respondent to issue an EAW to be judicially reviewed, where an individual has not been convicted. Additionally, the Updated Questionnaire and Compilation on the Requirements for Issuing and Executing Judicial Authorities in EAW Proceedings pursuant to the CJEU's Case-law identifies the mechanism in place for the proportionality of EAWs to be challenged where a sentence has been imposed.
The Background Facts – Mr Esmaili
The background facts in Mr Esmaili's case are unremarkable. Mr Esmaili was convicted in his absence of people smuggling after eight Iraqi nationals, including two who were underage, were found concealed in the back of a truck which he was driving to England in January 2016. He was sentenced to 15 months' imprisonment (of which 14 months and 27 days are left to serve) and permanent exclusion from French territory. He advances Ground 1 as the sole objection to his extradition.
The Background Facts – Mr A
The background facts in Mr A's case are complex and unusual. It is necessary to address them in detail in order to provide a framework for the discussion and application of the principles raised by Grounds 2 to 4. We do so in the knowledge that the court below declined to consider the factual basis for Mr A's submission because “the analysis of evidence and scope of the availabilityof any defence was, and is, a matter for the French courts applying their law and not one this court is able to reflect upon.” In response to the submission that there was now new evidence that had not been available to the French courts, the court below took the view that the French courts provided a mechanism for revision hearings on fresh evidence.
Mr A's case arises from his arrest near Lyon on 7 August 2000 when he was returning to Ireland driving a lorry that carried a load of furniture in which was hidden 187 kgs of cannabis resin. From the outset he maintained that he was acting as an informer and under the supervision of the Irish Police, An Garda Síochána (“the Garda”), and that he had been assured that he would be protected from criminal process both in Ireland and abroad (including France). As a matter of fact, the Garda had not notified the French authorities about what was happening and Mr A was not immune from French criminal process. Furthermore, the information that was subsequently provided by the Garda was not sufficient to persuade the French prosecuting authorities not to prosecute or the French Courts not to convict and sentence Mr A to a substantial sentence. Mr A appealed to the Court of Appeal in Lyon and thence to the Cour de Cassation, France's highest court of appeal, which rejected his appeal on 3 October 2007. His conviction was upheld and he was sentenced to four years' imprisonment and permanent exclusion from French territory, along with forfeiture of his lorry and a fine.
There can be and is no criticism of the French proceedings or outcome on the basis of the information that was available to the French courts at the time. Mr A's appeal to this Court is founded on the submission that the French courts were not given full and proper information by the Irish authorities and that, if they had been, there is at least the prospect that the outcome would have been different. Specifically, had the true extent of his involvement and cooperation with the Garda been made known to the French prosecuting authorities they may have exercised a discretion not to prosecute or, if they did, the French courts may have declined to convict Mr A or may have imposed a lesser sentence that did not require him to serve a sentence of imprisonment.
In order to examine this factual submission, it is convenient to start with the information that was provided to the French prosecuting authorities and courts and the impact that appears to have had on those proceedings, and then to examine the evidence which Mr A relies upon to found his submission that the information provided by the Irish authorities was incomplete and inadequate.
The Court has extracts and core documents from the French investigation file. These documents were available to the court below but, as we have indicated, the Judge declined to make even a limited enquiry into what happened between Mr A and the Garda. We look at them solely to see whether the factual basis underlying Mr A's submissions are well founded – not with a view to criticising or commenting on the French internal procedures.
Mr A was interviewed by the French police on 8 and 9 August 2000. He said that he had entered into an agreement with the Garda, identifying his two contacts as Mr X and Superintendent Y. He said he had previously trafficked tobacco but contacted the police after being approached to import drugs. He said that “they proposed that I inform them during my various deliveries. They promised me that if they were able to seize drugs as well as the traffickers they would keep me out of it.” He described previous runs where he had provided...
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