Judgments - Dabas (Appellant) v. High Court of Justice, Madrid (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

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    21.  The provisions of article 8 are reproduced in the form in the Annex. Box (c) is headed "Indications on the length of the sentence". In cases where there is as yet no sentence, the information to be given is the maximum length of the custodial sentence or detention order which may be imposed for the offence. Box (e) is headed "Offence". The information to be given here falls into four parts. First, the total number of offences to which the warrant relates is to be stated. There then follows a description of the circumstances in which the offences were committed, including time, place and degree of participation. Then there is the "nature and legal classification of the offence(s) and the applicable statutory provision/code." Finally, a tick is to be placed against one or more of the 32 offences listed in article 2.2 which is punishable by a custodial sentence or detention order of a maximum of at least 3 years, if applicable, failing which a full description of the offence is to be given.

    22.  Article 10.5 provides that all difficulties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved. Article 15.2 builds on the principle of cooperation between the judicial authorities. It contemplates that cases may arise where the information entered on the form may not be sufficient to satisfy the executing judicial authority in the requested Member State. It provides that, if the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information be furnished to it as a matter of urgency. Article 15.3 provides that the issuing judicial authority may at any time forward any additional useful information to the executing judicial authority.

The 2003 Act

    23.  Part 1 of the 2003 Act was enacted to give effect to the Framework Decision in national law. Article 34(2)(b) EU leaves the choice of form and methods to achieve the result at which the Framework Decision aims to Member States. The United Kingdom has taken full advantage of that method of implementation. The provisions of the 2003 Act which deal with extradition from the United Kingdom are divided into two parts. Part 1 of the Act deals with surrender to category 1 territories. These are territories which have been designated for the purposes of that Part by order made by the Secretary of State under section 1(1) of the Act. In the first instance these are expected to be territories to which the Framework Decision is applicable. Part 2 of the Act provides for a separate system of extradition to territories which have been designated as category 2 territories: see the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 2003/3334). These include some territories to which the Framework Decision is applicable such as Austria, Greece and Hungary. But many of those in this category, such as Argentina, Fiji and Singapore, are territories to which it is not. Extradition to the United Kingdom is dealt with in Part 3.

    24.  This case is concerned only with provisions which are set out in Part 1 of the Act. The seven territories which were designated as category 1 territories by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333) are all Member States of the EU. Other Member States have taken their place in the list of category 1 territories under subsequent Orders. The power to designate territories as category 1 territories under section 1(1) of the Act is not restricted to such territories. The only restriction on designation that is set out in the statute is in section 1(3), which provides that a territory may not be designated for the purposes of Part 1 if a person found guilty in the territory of a criminal offence may be sentenced to death for the offence under the general criminal law of the territory. All Member States are, of course, parties to the European Convention on Human Rights, and a restriction in such terms is unnecessary in their case. It appears that a territory may be designated for the purposes of Part 1 which is not a Member State of the EU. This impression is reinforced by the fact that the system of extradition that is set out in Part 1 of the Act, although closely modelled on the Framework Decision, uses its own language to describe what a warrant for the purposes of Part 1 of the Act must contain. It is not a prerequisite for designation as a category 1 territory that the Framework Decision applies to it.

    25.  As the case of Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 has demonstrated, the fact that Part 1 of the 2003 Act does not match the requirements of the Framework Decision has given rise to difficulty. This case is a further demonstration of this point. Part 1 is perhaps open to the criticism that it tries to do too much. But it is important not to lose sight of the fact that this is where one must go to find the provisions that give effect to the United Kingdom's obligation under article 34(2)(b) EU as to the result to be achieved. The wording of the provisions of the Act that are under scrutiny must be construed in that context.

    26.  Part 1 of the Act, so far as is relevant to this appeal, provides that the procedure that it lays down must be initiated by what it refers to as a Part 1 warrant: section 2(1). Where the person in respect of whom the warrant is issued is accused in the category 1 territory of the commission of an offence and it is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence, it must contain the information set out in section 2(4). This includes particulars of the circumstances in which the person is alleged to have committed the offence. It also includes particulars of any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence. Miss Montgomery QC for the appellant suggested that the requirements of section 2(4) as to particulars of the law of the category 1 territory were not fulfilled in this case. But the main thrust of her argument, as her three grounds of appeal indicate, was directed to the requirements of section 64(2) and 64(3).

    27.  Section 10(2) of the Act provides that if a person in respect of whom a Part 1 warrant is issued appears or is brought before the appropriate judge for the extradition hearing, the judge must decide whether any of the offences specified in the Part 1 warrant is an extradition offence. In order to conduct this exercise the judge must address himself to section 64 which applies where the person has not been brought to trial and sentenced for the offence, or to section 65 which applies where the person has been sentenced for the offence. As the appellant has not been brought to trial and sentenced for the offence that is alleged against him, the section which applies to his case is section 64. Miss Montgomery submitted that, for the various reasons already mentioned, the District Judge was not entitled to hold that the offence that was specified in the Part 1 warrant in his case was an extradition offence as defined in either section 64(2) or section 64(3).

    28.  Section 64(2) and section 64(3) provide as follows:

    "(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied -

    (a)  the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;

    (b)  a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;

    (c)  the certificate shows that the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment.

    (3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied -

    (a)  the conduct occurs in the category 1 territory;

    (b)  the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

    (c)  the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment ( however it is described in that law)."

    29.  The European framework list of conduct to which section 64(2)(b) refers is set out in Schedule 2 to the Act. It reproduces the list of offences which the Framework Decision sets out in article 2.2. Terrorism, which is the offence which the appellant is alleged to have committed, is one of the offences on the European Framework list.

    30.  The Divisional Court certified that the following points of law of general public importance were involved in its decision:

    "1. Whether section 64(3) of the Extradition Act 2003 requires that the court be satisfied that the conduct relied on constitutes an offence under the law of the requesting state and whether, for that purpose, the text of the relevant law must be set out in the European arrest warrant or otherwise made available to the court?

    2. Whether, in a case where section 64(3) of the Extradition Act 2003 applies, and where part of the conduct complained of did not constitute an offence under English law at the time it occurred, the court may nonetheless order extradition based upon the part of the conduct which would have constituted an offence under English law?

    3. Whether the 'certificate' referred to in section 64(2)(b) and (c) of the Extradition Act 2003 can be the European arrest warrant itself?"

    31.  Counsel were agreed that it was preferable to deal with these questions in reverse order. An affirmative answer to the third question will determine the appeal in favour of the respondent, regardless of the answers to the two remaining questions. This is because it would follow that the judge was entitled, in that event, to find that the conduct complained of constituted an extradition offence as defined by section 64(2) and accordingly that the requirement set out in section 10(2) was satisfied. If the appeal is to be determined in his favour the appellant must show that the judge was not entitled to find that the conduct constituted an extradition offence under either section 64(2) or section 64(3). So he can only succeed if the third question is answered in the negative and an answer in his favour is given to at least one of the two remaining questions also.

The "certificate" issue

    32.  The question is whether the "certificate" referred to in section 64(2)(b) and (c) can be the Part 1 warrant itself or whether, as Miss Montgomery contended, a separate document must be produced in the form of a certificate showing the matters referred to in these paragraphs. The word "certificate" is not defined anywhere in the 2003 Act. But section 202(3) of the 2003 Act provides that a document issued in a category 1 territory may be received in evidence if it is duly authenticated. Section 202(4), as amended by Schedule 13, para 26 of the Police and Justice Act 2006, provides that a document issued in a category 1 territory is duly authenticated if it purports to be signed by a judge, magistrate or officer.

    33.  The statutory language indicates that the word "certificate" in section 64(2)(b) and (c) was used deliberately by Parliament to ensure the accuracy of the statements referred to in these paragraphs. This is not surprising, as the effect of a finding that the conduct constitutes an extradition offence under section 64(2) is to exempt it from the requirement of double criminality. The "certificate" must "show" that the conduct falls within the European framework list: section 64(2)(b). It must also "show" that it is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment: section 64(2)(c). Section 64(3), which retains double criminality, does not require the production of a "certificate" which "shows" that the conduct satisfies the conditions that it sets out for the offence to be an extradition offence within the meaning of that subsection. The requirement for a certificate as to the matters referred to in section 64(2)(b) and (c) cannot be dismissed as unimportant. It must be taken to have been included in this subsection as an additional safeguard.

    34.  The language of these provisions may be contrasted with that of section 2(2) which sets out what an arrest warrant must contain if it is to qualify as a Part 1 warrant. Section 2(2) provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains one or other of the "statements" referred to in paragraphs (a) or (b) of that subsection. The only reference to a "certificate" in section 2 is to the certificate which the designated authority referred to in section 2(9) may issue under section 2(7) if it believes that the authority which has issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory. A further indication that a "certificate" is something more than a "statement" appears in section 142. This section sets out the contents of a Part 3 warrant for the extradition of a person from category 1 territories. A Part 3 warrant has to contain a "statement" of the matters set out in subsections (4) or (5) and a certificate "certifying" the matters referred to in subsection (6).

    35.  Persons who are sought to be removed under the procedures that Part 1 of the 2003 Act lays down are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute: Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 24. The fact that no reference is made to a separate "certificate" in article 8 or the Annex to the Framework Decision which sets out the content and form of the European arrest warrant is not determinative of the issue. Parliament has chosen not to follow in the same words what the Framework Decision says about this. It has chosen instead to set out its own requirements as to the form and method of giving effect to it, as article 34(b) EU permits. They must be approached on the assumption that, where there are differences from what the Framework Decision lays down, they were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty. It was with this point in mind that Miss Montgomery submitted that a separate certificate was required in order to ensure that the matters referred to in section 64(2)(b) and (c) were not simply the subject of a mechanical, and potentially fallible, rubber-stamping or box-ticking exercise.

    36.  On further examination, however, it became apparent that this argument was much more about form than it was about substance. Miss Montgomery accepted that the matters referred to in section 64(2)(b) and (c) were sufficiently dealt with by the information which a Part 1 warrant must contain to satisfy the requirements of section 2(4). The purpose of the certificate, then, is not to provide any further information than that which in a Part 1 warrant is already available. Its purpose is to vouch for, or affirm, its accuracy. She accepted, too, that it was not an essential requirement, for a document to qualify as a certificate within the meaning of section 64(2)(b) and (c), that it should contain the word "certify". The 2003 Act does not say that the use of this word is mandatory. Any form of words will do, so long as they indicate that the person who authenticates the document accepts responsibility for its accuracy.

    37.  What, then, if the Part 1 warrant itself purports to have been issued by a judge, magistrate or officer who, by signing it, can be taken to have accepted responsibility for its accuracy? Why should it not be held to constitute a "certificate" for the purposes of section 64(2)(b) and (c)? Section 2 does not say that an arrest warrant must be signed by a judge, magistrate or officer. It refers to an arrest warrant which has been "issued" by a judicial authority of the category 1 territory. The annex to the Framework Decision, on the other hand, requires the document to be signed. The signature may be that of the issuing judicial authority "and/or its representative." The requirement for a "certificate" which "shows" that the conduct is of the kind described in section 64(2)(b) and (c) adds something to the requirements that a Part 1 warrant must satisfy. But it does not follow that there must be a separate document.

    38.  The search for the meaning and effect of the reference to a "certificate" does not consist only of an examination of the words of the statute. The Framework Decision, to which Part 1 of the 2003 Act gives effect in national law, must be interpreted in conformity with Community law. This is in fulfilment of the state's obligations under European Union law and the general duty of cooperation referred to in article 10 EC. Two recent cases in the Court of Justice in which framework decisions were under scrutiny illustrate this point.

    39.  In Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83, 91, para 23, Mrs Advocate General Kokott said that the object of creating an ever closer union among the people of Europe to which article 1 EU refers will not be achieved unless the member states and institutions of the Union co-operate sincerely and in compliance with the law. She then explained how framework decisions must be given effect in accordance with article 34(2)(b) EU:

    "28.  Framework decisions in Union law are also largely identical in their structure to directives in Community law. Under article 34(2)(b) EU, they are binding on the member states as to the result to be achieved but leave the choice of form and methods to the national authorities. Although direct effect is expressly excluded, at least the wording concerning their binding character as to the result to be achieved corresponds to that of the third paragraph of article 249 EC, on the basis of which - together with other reasons - the Court of Justice has developed the doctrine of the application of national law in conformity with Community directives.

    36.  In summary, it follows from article 34(2)(b) EU and from the principle of loyalty to the Union that every framework decision obliges national courts to bring their interpretation of national laws as far as possible into conformity with the wording and purpose of the framework decision, regardless of whether those laws were adopted before or after the framework decision, so as to achieve the result envisaged by the framework decision."

    40.  In its judgment in the Pupino case the Court of Justice said:

    "34.  The binding character of framework decisions, formulated in terms identical to those of the third paragraph of article 249EC, places on national authorities, and particularly national courts, an obligation to interpret national law in conformity with Community law.

    42.  It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that member states take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between the member states and the institutions, as the Advocate-General has rightly pointed out in para 26 of her opinion.

    43.  In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU."

    41.  In Advocaten voor de Wereld VZW v Leden van de Ministerraad (Case C-303/05) the Belgian Constitutional Court has asked the Court of Justice, pursuant to article 35 EU, to rule on the Framework Decision's validity. In an opinion which was delivered on 12 September 2006 Advocate General Colomer proposed that the Court should hold that the Framework Decision does not infringe article 34(2)(b) EU and that, by abolishing the requirement of double criminality for the offences listed therein, it is compatible with article 6(2) EU. The appellant has not raised these issues in the present case. The judgment of the Court of Justice is not yet available. But it is worth noting the following observations in the opinion of the Advocate General:

    "25.  The order must contain the information necessary for its execution, in particular the details of the identity of the person sought and the nature and classification of the offence (article 8(1)). Any difficulties which may arise during the procedure must be dealt with by direct contact between the courts involved, and, where appropriate, with the involvement of the supporting administrative authorities.

    49.  The European arrest warrant, a measure which is vital to the creation of an area of freedom, security and justice (articles 2 EU and 29 EU), is an embodiment of judicial cooperation…It is, therefore, a decision governed by the procedural law of the issuing Member State which, in accordance with the principle of mutual recognition, is treated in the other Member States in the same way as a decision of a national court, from which it follows that legislative harmonisation is essential…."

    42.  The result that the Framework Decision is designed to achieve is to remove the complexity and potential for delay that was inherent in the previous extradition procedures. It seeks to introduce in place of these procedures a system of free movement of judicial decisions in criminal matters within an area of freedom, security and justice: para (5) of the preamble. The principle on which this new system is based is the mutual recognition of criminal decisions between the Member States. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender. It must be borne in mind too that, for obvious practical reasons, a large number of European arrest warrants are not directed at only one Member State: see the House of Lords European Union Committee Report, "European Arrest Warrant - Recent Developments" (HL Paper 156), para 21. The form in the annex to the Framework Decision has been designed on this assumption. The person who issues a European arrest warrant is not required to address it to any particular Member State. Once issued, it is available to be used wherever the requested person happens to be when it is executed.

    43.  There is no doubt that the imposition of additional formalities, not to be found in the Framework Decision itself, by one Member State to suit its own purposes would tend to frustrate these objectives. As my noble and learned friend Lord Bingham of Cornhill said in Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 8, the interpretation of Part 1 of the 2003 Act must be approached on the assumption that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision or to provide for a lesser degree of cooperation by the United Kingdom than the Framework Decision requires. I can find nothing in the wording of section 64(2), read as a whole and in the light of the other provisions of Part 1, to indicate that it was the intention of Parliament that a Part 1 warrant which clearly set out all the relevant information had to be accompanied by a separate document certifying the matters referred to in section 64(2)(b) and (c). It is to be noted, as Latham LJ pointed out in the Divisional Court [2007] 1 WLR 145, para 26, that section 142(3) as to the form of the Part 3 warrant supports the proposition that a warrant can contain a certificate and that it is not a necessary requirement that it be contained in a separate document.

    44.  For these reasons, and for those given by my noble and learned friends Lord Bingham of Cornhill and Lord Brown of Eaton-under-Heywood with which I agree, I would answer this question in the affirmative. In my opinion a European arrest warrant can itself be the "certificate" referred to in section 64(2)(b) and (c). The European arrest warrant that was issued in this case contains all the information that was needed for it to be a Part 1 warrant. Its authentication by the issuing judicial officer was sufficient for it to satisfy the formality expected of a certificate that vouches the information contained in it. It follows that the District Judge was entitled to hold that the appellant's alleged conduct constituted an extradition offence in relation to Spain within the meaning of section 64(2).

    45.  On this view the two remaining questions do not arise for decision. The test of double criminality which section 64(3) preserves in cases to which it applies, consistently with article 2.2 of the Framework Decision, does not require to be satisfied. The issues which these two questions raise are of general public importance, however. So I think that it is appropriate that your Lordships should answer them.

The "divided conduct" issue

    46.  One of the conditions that conduct must satisfy if it is to constitute an extradition offence under section 64(3) is that it would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom. For the purposes of enabling the judge to determine under section 10(2) whether this condition was satisfied, the respondent's opening note identified the offence in United Kingdom law as the offence of conspiracy to support terrorism contrary to section 12 of the Terrorism Act 2000. The period of the conspiracy is stated to be "between a date unknown before the year 2000 and the 12th day of March 2004". Section 12 of the 2000 Act came into force on 19 February 2001: Terrorism Act (Commencement No 3) Order 2001 (SI 2001/421). It is well settled that, where double criminality is required for an offence to constitute an extradition offence, the conduct must have been criminal in the United Kingdom at the time when the alleged offence was committed: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 196E-G per Lord Browne-Wilkinson. If the statement in the opening note is accurate, the test of double criminality throughout the period referred to was not satisfied.

 
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