Judgments - Office of the King's Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others

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    37.  The same approach is taken in Scotland. In Clements v HM Advocate, 1991 JC 62, one of the offences charged was a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. Observing that the criminal enterprise with which the appellants were concerned was the whole network or chain of supply, right up to the end of the chain where the harmful effects were to be felt, the Lord Justice General (Hope) said at p 71:

    "The underlying mischief at which these provisions are directed is the supply or offer to supply of a controlled drug to another, and to look to the place of the mischief as the place where jurisdiction can be established against all those involved would be consistent with the idea that the courts of the place where the harmful acts occur may exercise jurisdiction over those whose acts elsewhere have those consequences: see Lord Diplock's discussion of this point in R v Treacy [1971] AC 537, 562. This is not to say that the courts in other parts of the United Kingdom might not also have jurisdiction in an appropriate case. But, as Lord Diplock pointed out, the risk of double jeopardy is avoided by the common law doctrines in bar of trial, in England, of autrefois convict and, in Scotland, that the accused has tholed his assize"

    38.  The gravest of all such crimes which have occurred so far in the United Kingdom was the explosion of a civilian airliner as it was passing over the Scottish Borders, killing its 259 occupants and 11 residents of the crash site in Lockerbie. The two men who were eventually brought to trial in the High Court of Justiciary at a special hearing convened at Kamp van Zeist in the Netherlands were charged, among other things, with conspiracy to cause the explosion. The charge alleged that they did or caused to be done various things in pursuance of the conspiracy in countries outside the United Kingdom which culminated in the placing of an explosive device on an aircraft in Malta from where the device was transported to Frankfurt and thereafter to London where it was loaded onto an aircraft on PanAm flight 103 which it destroyed when it was in the air over Scotland: Megrahi v HM Advocate, 2002 JC 99.

    39.  A preliminary objection was taken to this charge on the ground that it was not subject to the jurisdiction of a Scottish court: HM Advocate v Megrahi, 2000 JC 555. Rejecting the objection, Lord Sutherland recognised at p 560, para 18, that there might have been force in it if the conspiracy had not reached fruition and if there had been no overt act in Scotland to carry on the conspiracy. At para 19 he added these comments:

    "Where however, a crime of the utmost gravity has been in fact committed in a particular country and it can be shown that that crime is the culmination of a long drawn out and complex conspiracy, it appears to me quite illogical to say that that country has no interest in putting the conspirators on trial for their part in what has happened, even though their activities were all carried out abroad. Defence counsel recognise that this is undoubtedly so in relation to the charge of murder in Scotland. I see no logical reason why the same principle should not apply to the charge of conspiring to commit the final criminal act, which is alleged to be the culmination and the whole purpose of the conspiracy."

Referring to what was said to same effect in R v Doot [1973] AC 807 and Liangsiriprasert (Somchai) v Government of the United States [1991] 1 AC 225, he observed that the way English law dealt with what was needed to complete the crime of conspiracy appeared to be entirely consistent with the law in Scotland.

    40.  I would construe the word "conduct" in sections 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur "in" the category 1 territory if the condition which is set out in these paragraphs to be satisfied. But a purposive meaning must be given to the word "conduct" in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory. It would be immaterial to a request for extradition to Belgium, for example, that the actings which had a harmful effect were all in France or in Germany. The situation would be different, of course, if some part of those actings occurred in the United Kingdom. But that is because of the qualification that section 65(2)(a) has introduced, which prevents cases where some of the conduct occurs in the United Kingdom from being treated as an extradition offence under that subsection. The fact that it was thought necessary to insert this qualification is consistent with the existence of a general rule of the kind that I have described.

The section 2(5) statement

    41.  Mr Fitzgerald QC drew your Lordships' attention to a number of arguments that he wished to present to the effect that the warrant issued by the Belgian prosecutor fell short of the requirements of section 2 of the 2003 Act and that it did not, in any event, provide sufficient information for a determination of the question whether the offences referred to were extradition offences. The certified question does not mention any of them, and they were touched on only briefly in the course of the hearing of the appeal. There will be an opportunity for these points to be addressed by the Deputy Senior District Judge when the case returns to the Magistrates' Court, and I think that they should be reserved for decision at that stage. But the question whether the warrant contains either of the two statements which section 2(2) requires raises a question of statutory interpretation. So it may be helpful, as Lord Bingham has mentioned, to indicate how this requirement should be applied in practice.

    42.  The requirement is unequivocal. Section 2(2) states that a Part 1 warrant is an arrest warrant which contains the statement referred to in subsection (3) or the statement referred to in subsection (5). If it does not do so it is not a Part 1 warrant and the provisions of that Part cannot apply to it. The statement referred to in subsection (3) which applies to accusation cases is that the person in respect of whom the warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and that the warrant is issued with a view to his arrest and extradition to that country for the purpose of being prosecuted for the offence. The statement referred to in subsection (5) which applies to conviction cases is that the person in respect of whom the 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 that the warrant is issued with a view to his arrest and extradition to that country for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or any other form of detention imposed in respect of it.

    43.  There is no corresponding requirement in article 8 of the Framework Decision which sets out the content and form of the European arrest warrant. That is the source of the problem that appears to have arisen in this case. The warrant states that a decision was rendered against the appellant in absentia which resulted in a custodial sentence for five years being imposed on him. At first sight this is a conviction case which requires the warrant to contain the statement referred to in section 2(5) and the information referred to in section 2(6) if section 2 of the 2003 Act is to apply to it. But there is no mention in article 8 of the Framework Decision of the need to state that the requested person is unlawfully at large, nor has provision been made in the form for the making of a statement to this effect. The Belgian prosecutor used the form which the Annex to the Framework Decision prescribes, as he was directed to by article 8.1. So the warrant which he prepared does not state that the appellant is unlawfully at large.

    44.  It would be unduly strict in these circumstances to insist that a statement must appear in the actual words used in section 2(5) if a European arrest warrant is to qualify as a Part 1 warrant. The purpose of the requirement is to provide protection against an unlawful infringement of the right to liberty, so it is an important part of the procedure provided for by Parliament. But the court should be slow to construe those words in a way that would make it impossible to give effect to a warrant which is in the terms which the Framework Decision has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities.

    45.  Crane J had to consider this point in R (Bleta) v Secretary of State for the Home Department [2004] EWHC 2034 (Admin), [2005] 1 WLR 3194. In that case extradition was sought to a category 2 territory under Part 2 of the 2003 Act. It was a conviction case, and the extradition was sought for the purpose of requiring the claimant to serve a sentence that had been imposed on him. The system which Part 2 lays down is a different system from that in Part 1, and the request was not made by way of a European arrest warrant. But the problem was, in essence, the same problem as that which has been raised in this case, as the warrant did not contain a statement that the claimant was unlawfully at large as required by section 70(4)(b) of the Act. At p 3198, para 11, Crane J said that counsel for the claimant had been correct to concede at an early stage that the actual words of the Act were not required. He accepted the respondent's argument that the Secretary of State was entitled to look at the request together with the documents incorporated in it by reference, in order to determine whether the request was in effect stating that the claimant is unlawfully at large following a conviction.

    46.  Crane J summed the matter up in Bleta in this way, at p 3198, para 14:

    "Even if the actual words of the Act are not incorporated in the request, and even if there is no equivalent wording, in my view, at least in a clear case, it is permissible for the Secretary of State to look at the request itself and its supporting documents to see whether the matter is clear. Adopting a purposive interpretation of the 2003 Act, it seems to me that this is, in effect, an examination of whether the request contains the necessary statement."

But at p 3202, para 28 he restated this proposition more narrowly in these terms:

    "My conclusion is that it is only in a clear case that the Secretary of State should conclude, in the absence of a statement by the requesting state, that the relevant defendant is not only at large but unlawfully at large."

    47.  As to the facts in that case, the information made it clear that the claimant had been convicted. There was no dispute that the inference was that he had never been in custody in connection with that conviction. But there was no evidence that he ever became aware of his conviction or of its terms. The judge noted that there were possible situations where, although he was at large in the United Kingdom, he was not unlawfully so in the sense that he was liable to immediate arrest in the requesting country. At p 3203, para 32 he said that the court should hesitate before filling a gap which could so easily have been filled. He quashed the Secretary of State's certificate.

    48.  I would wish to hear further argument on this issue before concluding that the approach which Crane J took to the facts in R (Bleta) v Secretary of State for the Home Department [2005] 1 WLR 3194 was the correct one, especially as your Lordships were not referred to his decision during the hearing of this appeal. It is sufficient for present purposes to say that it is open to the court to draw inferences from the material available to it to determine whether the requirements of the statute have been satisfied. But those against whom the system for extradition is invoked are entitled to protection against its use in circumstances which have not been provided for by Parliament. So I think that Crane J was right to indicate that, if there is a gap in the information, it ought not to be filled by mere guesswork. The fact that Part 1 of the 2003 Act does not match the requirements of the Framework Directive is confusing to the unwary, and it appears likely that it will be a source of continuing difficulty. Steps should be taken to remind the authorities in the category 1 territories that the statements referred to in section 2(2) of the Act are a necessary part of the procedure that has been laid down in Part 1 of the Act.

LORD SCOTT OF FOSCOTE

My Lords,

    49.  I have had the advantage of reading in advance the opinions of my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead and am in agreement with their conclusions, first, that the request by Belgium for the extradition of the appellant cannot be brought under section 65(2) of the 2003 Act - because part of the conduct of the appellant specified in the arrest warrant took place in the United Kingdom (see section 65(2)(a)) - and, secondly, that the request can, in principle at least, be brought under section 65(3) of the Act - because it does not matter for the purposes of that subsection that the conduct took place not only in Belgium but also in the United Kingdom. I cannot add anything of value to the reasons my noble and learned friends have given for coming to those conclusions, with all of which I agree, but I want to add a word or two about the contents of this arrest warrant under which the extradition of the appellant to Belgium is being sought. May I say at once that I am in full agreement with what Lord Hope has said about this.

    50.  Lord Hope has referred to the background to the European Council Framework Decision of 13 June 2002. The Framework Decision was intended to simplify the procedures for extradition of individuals from one Member State to another either for the purpose of being prosecuted for alleged criminal conduct or for the purpose of serving a sentence imposed after conviction. There were two particular features of the Framework Decision extradition scheme that, having regard to the issues raised by this appeal, deserve mention. First, in relation to offences falling within the so-called Framework List the requirement of double criminality was removed, that is to say, it would not be necessary to show that the conduct of the accused for which he was to be prosecuted in the requesting State, or which had constituted the offence of which he had been convicted in the requesting State, would have been criminal conduct for which he could have been prosecuted or convicted in this country.

    51.  Secondly, the Framework Decision was intended to make it unnecessary, whether in relation to Framework List offences or any other offences, for the requesting State to have to show that the individual had a case to answer under the law of that State. The merits of the extradition request were to be taken on trust and not investigated by the Member State from which extradition was sought. Article 1(2) says that:

    "Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision."

And recital (5) of the Framework Decision speaks of "abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities."

    52.  The principle underlying these changes is that each Member State is expected to accord due respect and recognition to the judicial decisions of other Member States. Any enquiry by a Member State into the merits of a proposed prosecution in another Member State or into the soundness of a conviction in another Member State becomes, therefore, inappropriate and unwarranted. It would be inconsistent with the principle of mutual respect for and recognition of the judicial decisions in that Member State.

    53.  Accordingly, the grounds on which a Member State can decline to execute a European arrest warrant issued by another Member State are very limited. Article 3 sets out grounds on which execution must be refused. Article 4 sets out grounds on which execution may be refused. None of these grounds enable the merits of the proposed prosecution or the soundness of the conviction or the effect of the sentence to be challenged. There is one qualification that should, perhaps, be mentioned. The execution of an arrest warrant can be refused if, broadly speaking, there is reason to believe that its execution could lead to breaches of the human rights of the person whose extradition is sought (see recitals (12) and (13)).

    54.  These features of the Framework Decision explain, I think, the inclusion in the 2003 Act of the requirement that if an arrest warrant is issued for the purpose of prosecuting the person named in the warrant, the arrest warrant must so state (see section 2(3)(b)). Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant. But the judicial authority in the requested State cannot inquire into the purpose of the extradition. It is therefore necessary for there to be an unequivocal statement of that purpose in the arrest warrant itself. Hence the requirement in section 2(3)(b). It is to be noted that the opening words of the form of arrest warrant set out in the Annex to the Framework Decision refer to a request that

    "the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."

It is presumably intended that the inapplicable alternative be deleted. The person in question is surely entitled to know which of the alternatives apply to him.

    55.  Where extradition is sought for the purpose of executing a custodial sentence, the form in the Annex to the Framework Decision does not provide for any information to be given as to the legal effect of the sentence on the right of the person sentenced to remain at large or as to whether any supervening events have altered its effect. In the present case, for example, it appears that the appellant was sentenced following a judgment in default given in his absence. It may be the case, but cannot, in my opinion, simply be assumed, that such a sentence takes immediate effect. It may be that notice of the sentence has to be served on or given to the person sentenced before he can be described as being unlawfully at large. In other cases, similar uncertainties might arise. An individual might have been released on licence on conditions that are alleged to have been broken. Or he might have been given bail pending appeal and the conditions of bail then broken. Would he then be unlawfully at large? It appears to me that it would be quite contrary to an important principle underlying European arrest warrants for the judicial authority in the requested State to have to inquire into the question whether under the law of the requesting State the individual who had been sentenced was unlawfully at large.

    56.  These potential problems explain, I think, why section 2(5)(a) of the 2003 Act requires an arrest warrant issued for the purpose of executing a custodial sentence to state that the person whose extradition is sought is unlawfully at large. An arrest warrant which contains neither the section 2(3) statement nor the section 2(5) statement does not, it appears to me, comply with the requirements of the Act and, if that is right, would not constitute a warrant on which an extradition under Part 1 of the Act could be ordered.

    57.  The requirement that an arrest warrant must contain one or other of these statements seems to me to be a natural and desirable feature of an extradition system that does not permit the merits of the extradition request to be investigated by the judge who is asked to order the execution of the arrest warrant. At the least, the State seeking extradition can be, and under section 2 of the Act is, asked to commit itself to the propriety of the extradition. These statements are not, in my opinion, formalities. They form an important part of the new extradition procedure.

    58.  Since this is a case where the appellant appears to have been convicted and sentenced under a default judgment given in his absence, it is the "unlawfully at large" statement that needed to be included in the warrant. It is nowhere expressly included. It would be possible for the Deputy Senior District Judge to whom the case is to be remitted to enquire into the question whether under Belgian law the default judgment took effect automatically, or whether it first had to be served on the absent defendant or otherwise drawn to his attention, or whether any other procedure was necessary before it could be said that the appellant was "unlawfully at large". But such an enquiry would, it seems to me, be inconsistent with the principle on which the new extradition procedure is based. We have not heard argument on the issue but my present, necessarily provisional, view is that if the "unlawfully at large" statement is included in a warrant to which sub-section (5) applies the judge cannot go behind it, but that if it is not included, and cannot be unequivocally implied from what is included, the warrant is bad.

    59.  There are several other points on the content of this arrest warrant that might be raised but that must be left, if they are raised, to be considered by the judge. I agree with the order Lord Bingham has proposed.

BARONESS HALE OF RICHMOND

My Lords,

    60.  I agree with the conclusions reached by my noble and learned friends, Lord Bingham of Cornhill and Lord Hope of Craighead, and for the reasons they give, would dismiss this appeal. I also share their concerns about the problem posed by section 2(5) of the Act. It would be most unfortunate if the judicial authorities in our European partner states, using the form of warrant prescribed by the Framework Decision, were to find that the English judicial authorities were unable to implement it. Whether the solution should be legislative, or administrative, for example by way of routine requests to include such a statement where none appears on the face of the warrant initially presented, or whether it is possible for the judiciary to find a practical solution which is true to the spirit and the requirements of the Framework Decision, while properly safeguarding the liberty of the individual, it is not at present possible to say.

LORD CARSWELL

My Lords,

    

 
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