Dabas (Appellant) v. High Court of Justice, Madrid (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)
47. It is not obvious from the narrative of the circumstances set out in the arrest warrant, however, that the date when the relevant conspiracy is alleged to have begun was as early as "before the year 2000". The essence of the allegation is that the appellant was involved in a conspiracy which led up to the train bombings in Madrid on 11 March 2004. Mention is made of the appellant's activities during an earlier period, but this part of the narrative appears to have been included simply as background. This impression is reinforced by the statement of facts, in which it is recorded that the appellant had previously been investigated in Spain because of his supposed relations with a separate cell of Al-Qa'eda which was dismantled in November 2001. While he is said to have been responsible for collecting voluntary donations to favour the activities of radical jihadist islamists, the principal activity which is alleged against him is that he and others continued to maintain contact with such persons after November 2001 and established a new terrorist group which was linked to the Madrid bombings. In the Divisional Court Latham LJ said that all the material before the court postdates February 2001, and that he was unclear why the notional conspiracy count sought to backdate the commencement of the conspiracy to before 2000:  1 WLR 145, para 32.
48. In the light of this narrative I would have been willing to hold, had it been necessary to do so, that throughout the period of the conduct which is said to constitute the offence in this case the requirement of double criminality was satisfied. A narrative of events prior in date to the conduct relied on will not be objectionable if it is included merely in order to set the scene - to identify the people with whom the person concerned was associating, for example, and their backgrounds and associates. Information of that kind is relevant and admissible to enable inferences to be drawn as to the nature of the offence constituted by the conduct for which extradition is sought. But it is the conduct for which extradition is sought, not any narrative that may be included in the Part 1 warrant simply by way of background, that must satisfy the test of double criminality.
49. I would add two further observations in response to this question. First, a judge conducting an extradition hearing under section 10 of the 2003 Act may find that the information presented to him is insufficient to enable him to decide whether or not the offence specified in the Part 1 warrant is an extradition offence within the meaning of section 64(2) or section 64(3). If so, he will be at liberty to request further information from the appropriate authority of the category 1 territory, and to adjourn the hearing to enable it to be obtained. He has not been given power to do this expressly by the statute. But articles 10.5 and 15.2 of the Framework Decision show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial cooperation on which it is based encourages this approach.
50. I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Part 1 warrant within the meaning of section 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of section 2(2) are mandatory. If they are not met, the warrant is not a Part 1 warrant and the remaining provisions of that Part of the Act will not apply to it.
51. The second observation, which I make with reference to the test of double criminality in section 64(3), is this. A judge may conclude that this test is not satisfied because part of the conduct which is said to constitute the offence mentioned in the Part 1 warrant occurred before it constituted an offence under the law of the relevant part of the United Kingdom if it occurred there. The question is whether in that situation he has no alternative other than to order the person's discharge under section 10(3). In my opinion it would be open to the judge in such circumstances to ask that the scope of the warrant be limited to a period that would enable the test of double criminality to be satisfied. If this is not practicable, it would be open to him to make this clear in the order that he issues when answering the question in section 10(2) in the affirmative. The exercise that was undertaken by your Lordships in Pinochet Ugarte (No 3), pp 229-240, shows how far it was possible to go under the pre-existing procedure to avoid the result of having to order the person's discharge in a case where part of the conduct relied on took place during a period when the double criminality test was not satisfied. It can be assumed that the Part 1 procedure was intended to be at least as adaptable in that respect as that which it has replaced.
The "foreign law" issue
52. Section 64(3) does not in terms require the judge to examine the details of the foreign law in order to determine whether the conduct constitutes an extradition offence within the meaning of that subsection. Nevertheless Miss Montgomery submitted that the person whose extradition is being sought had the right to be informed about the foreign law and to obtain legal advice on it so that he could, if so advised, dispute the legality of his detention. She said that articles 5 and 6 of the European Convention on Human Rights gave him this right, even although it was not spelled out in so many terms in the statute. It was consistent with those articles that he should be given the fullest and most detailed information that was possible to enable him to dispute this point. She said that this information ought to be included in the Part 1 warrant, as part of the particulars referred to in section 2(4)(c), to enable the judge to determine whether the conduct constituted an extradition offence within section 64(3).
53. In Office of the King's Prosecutor, Brussels v Cando Armas  2 AC 1, para 30, I said that the judge need not concern himself with the criminal law of the requesting state when he is asked to decide under section 10(2) whether the offence specified in the Part 1 warrant is an extradition offence. Miss Montgomery said that this was not so, but I believe that what I said there was accurate. The system on which the European arrest warrant is based depends on cooperation between the judicial authorities of member states. Any scheme which retained scrutiny of the text of the foreign law as a requirement would be bound to give rise to delay and complexity - the very things that in dealings between Member States the Framework Decision was designed to eliminate. In my opinion section 2(4)(c) does not require the text of the foreign law to be set out in the Part 1 warrant. Article 8.1(d) of the Framework Decision states that among the information that the European arrest warrant must contain is "the nature and legal classification of the offence". Section 2(4)(c) requires no more than that.
54. Consistent with the Framework Decision, the judge need not examine the text of the foreign law in order to decide whether the conditions set out in section 64(3) are satisfied. Section 2(4)(c) is not to be read as requiring material to be included in a Part 1 warrant, not mentioned in the Framework Decision, that the judge does not need when he is conducting that exercise. A warrant which contains the statements referred to in section 2(2) is a Part 1 warrant for all purposes. So I do not think that it is possible to spell out of the language of the statute the requirement for which Miss Montgomery contends.
55. Moreover, none of the conditions set out in section 64(3) require an analysis of the foreign law for the judge to decide under section 10(2) whether they are satisfied. Section 64(3)(c) directs attention to the question of punishment. All the judge needs to examine this question are 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. Those are among the particulars which the warrant must contain if it is to be dealt with as a Part 1 warrant: see section 2(4)(d). This consistent with article 8.1(f) of the Framework Decision which requires only that information be given as to the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State. There is no requirement here that the text of the law which gives rise to that punishment must be made available. The requested person's article 5 and article 6 Convention rights are sufficiently protected by the procedures that are laid down in Part 1 of the 2003 Act.
56. I would answer the third certified question in the affirmative. In the light of the answer that I would give to that question, I would dismiss the appeal.
LORD SCOTT OF FOSCOTE
57. I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood and have the misfortune to disagree with their conclusion, concurred in by my noble and learned friend Lord Mance, that the content of the European Arrest Warrant issued against the appellant can be treated as the certificate required by section 64(2) of the 2003 Act. On all other points I am in full agreement with my noble and learned friends and, accordingly, since I agree that each of the conditions referred to in section 64(3) of the Act is satisfied, I agree that this appeal must be dismissed. In the circumstances I proposed to deal only with my one point of dissent.
58. The Extradition Act 2003 was enacted in order, among other purposes, to implement the Framework Decision of 13 June 2002 (2002/584/JHA). The intention of the Framework Decision was to speed up extradition procedures as between member states of the European Union (see para (1) of the preamble). It was premised on the principle that there should be "mutual recognition" by each member state of the validity of judicial orders and decisions of other member states (para (6) of the preamble) and it proposed, accordingly, that as between member states the traditional extradition procedures should be replaced by a system of surrender between judical authorities. If the judicial authorities of one member state wanted to prosecute a person located in another member state, the judicial authorities of the latter member state should surrender the person to the requesting member state speedily and without investigating the merits of the proposed prosecution.
59. A very important, and novel, feature of the Framework Decision was that, in relation to certain offences that under the law of the requesting member state were punishable by a sentence of at least three years imprisonment, the requirement of double criminality was removed, that is to say, it would not be a condition of extradition that the alleged conduct of the person whose extradition was sought was not only a criminal offence in the requesting member state but would also have been a criminal offence if done in the requested member state. The offences in respect of which the requirement of double criminality were to be removed were those falling within one or other of the categories specified in article 2.2 of the Framework Decision. These categories were expressed in very general terms e.g. "terrorism", "corruption", "racism and xenophobia", "swindling" etc. Whether the conduct in question fell within a specified category was for the law of the requesting state to define. Thus, for example, various forms of undesirable conduct might constitute "corruption" under the law of one member state that would not constitute a criminal offence at all under the law of another. The same could be said in respect of many of the categories specified in article 2.2. There has been no harmonisation of the criminal laws of the European Union member states and, I believe, no widespread enthusiasm for any such harmonisation. So the possibility of surrender for prosecution in relation to conduct that would not be criminal in the requested state is a very live one.
60. Article 8 of the Framework Decision says that
The article then, in a number of sub-paragraphs, sets out the types of information to be contained in the warrant. These include "The nature and legal classification of the offence, particularly in respect of article 2." The Annex contains a form with boxes for the requisite information, and certain other information, to be included.
61. The terms of a Framework Decision, in order to become enforceable in a member state, require implementation into domestic law by that member state. Article 34(2)(b) of the EU Treaty says that:
The United Kingdom implemented the Framework Decision by enacting the Extradition Act 2003. The relevant provisions, so far as extradition by the United Kingdom is concerned, are to be found in Part 1 of the Act which deals with extradition to "Category 1 Territories". Every member state of the European Union, and therefore Spain, is a category 1 territory. Section 2 of the Act describes a "Part 1" arrest warrant and the requisite contents of such a warrant. A European arrest warrant, as defined and described in articles 1 and 2 of the Framework Decision and containing the information specified in article 8, would be a Part 1 warrant.
62. Section 10 of the Act requires that the person in respect of whom a Part 1 warrant has been issued be brought before a judge for an extradition hearing and (as amended by the Extradition Act 2003 (Multiple Offences) Order 2003) that
If the judge decides the question in the negative he must order the person's discharge (in relation to that offence) (subsection (3)).
63. The expression "an extradition offence" is defined in and limited by section 64 of the Act. The section applies "in relation to conduct of a person if - (a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct " The appellant is so accused and the section therefore applies. Subsection (2) provides as follows:
Each of these three conditions must be satisfied. Otherwise the conduct would not constitute an "extradition offence" and the person whose extradition is being sought must be discharged.
64. A European arrest warrant that has adopted the form set out in the Annex to the Framework Decision will have included a description of the "Nature and legal classification of the offence(s) and the applicable statutory provision/code" and, if it is an offence said to fall within one or other of the article 2(2) categories, the relevant category will have been identified with a tick (see box (e) in the Annex Form). In the present case the warrant did substantially follow the Annex form: box (e) contained details of the conduct of the appellant alleged to constitute the offence and, under the "Nature and legal classification of the offence(s)" heading, was typed
A tick was placed against the category "terrorism" in the article 2.2 list (set out in box (e)). In box (c) of the warrant "Indications of the length of the sentence", was typed "punish from 5 up to 10 years imprisonment". The warrant was signed by Magistrate-Judge Gálvez, the issuing judicial authority.
65. It may be said, therefore, that, for section 64(2)(b) purposes, box (e) of the warrant asserts that the appellant's conduct as described in the warrant falls within the European Framework list and that, for section 64(2)(c) purposes, box (c) asserts that the conduct is punishable under article 576 of Spain's Penal Code with imprisonment for at least five years. The warrant has certainly been signed by "an appropriate authority" (see section 66(2) and section 67(1)(a) of the Act).
66. The question is whether section 64(2)(b) and (c) requires anything more. In my opinion, a normal construction of section 64, in the context of the Act as a whole, would require the answer that it does. The section certainly reads as though a separate and express certification signed by a judicial authority and additional to the arrest warrant itself is required. And there is good reason to suppose that the normal construction reflects Parliament's intention. The implementation of the Framework Directive by the 2003 Act raised a good deal of concern in both Houses of Parliament. The imprecision of the Framework List categories coupled with the removal of the requirement of double criminality was the basis of much of that concern. The main answer to the concern was that every member state owes to its fellow member states due respect for their judicial systems and procedures and for the orders and decisions emanating from their courts, in short, 'mutual recognition' should apply. The presence in section 64 of the requirement of a "certificate" by a judicial authority showing, first, that the conduct on which the proposed prosecution was to be based did fall within one or other of the article 2.2 categories and, second, that such conduct would be punishable by a sentence of three years imprisonment or more, i.e. showing that double criminality was not a condition of extradition, is consistent with a Parliamentary intention to alleviate that concern. The requirement of the certificate would, at least, make certain that in every case where double criminality was not a requisite a judicial mind had been brought to bear on the two points and that the judge was prepared to certify accordingly.
67. Your Lordships, however, notwithstanding agreement that a natural reading of section 64(2)(b) and (c) would be that a separate and express certification was indeed required, are prepared to read down the section so as to allow the arrest warrant itself without any express certification to constitute the section 64 certificate. This reading down is said to be required in order to give proper effect to the Framework Decision and comply with article 34(2)(b) of the Treaty (see paragraph 61). It is said to be required also by the decision of the Court of Justice of the European Communities in the Pupino case  QB 83. In my respectful opinion neither of these grounds justifies the reading down of a clear statutory provision.
68. Article 34(2)(b) requires no more that that the result of the member state's implementation be consistent with and give proper effect to the Framework Decision in question. Article 2.2 of the Framework Decision removes the requirement of double criminality from offences that, as defined by the law of the requesting state, fall within one or other of the Framework List categories and can be punished by a sentence of at least 3 years imprisonment. The first of these requirements, in particular, requires a legal analysis of the conduct on which the prosecution will be based. In some cases the analysis and consequent classification of the conduct may not be straightforward and the requirement for a certificate ensures that a judge will have directed his mind to the issue and is prepared to commit himself to the requisite classification and consequent possible punishment. It does not follow that the judge who has signed the arrest warrant, the contents of which may or may not have received his personal attention, will necessarily have done so. The certificate constitutes an assurance from a judicial authority in the requesting country that the express Framework Decision requirements for the loss of double criminality have been met. There is nothing in article 8 of the Framework Decision that is inconsistent with a member state's implementing measure requiring, in effect, an express judicial assurance that the details given in compliance with paragraphs (d) and (f) of article 8 are correct. This express assurance assists in ensuring that, as to the conditions for the removal of double criminality, the "result" intended by the Framework Decision is achieved. For these reasons I do not agree that the requirement for the certificate can be represented as constituting an infringement of article 34(2)(b) of the Treaty.
69. As to the Pupino case, the Court of Justice of the European Communities said, in paragraph 36 (p.93), that
The requirement in section 64(2)(b) and (c) for a certificate by a judicial authority of the requesting state, showing that, in effect, the requirement of double criminality does not apply to the extradition request, is not inconsistent with any wording to be found in the Framework Decision. One of the main purposes of the Framework Decision was to speed up and facilitate extradition requests between member states and the requirement of the section 64 certificate is, I agree, a requirement additional to those expressly required by the Framework Decision for a warrant under article 2.2. But it is not a requirement that is in the least inconsistent with the important principle of mutual recognition that informs the Framework Decision. If the Framework Decision is read as a whole, it does not seem to me that the requirement of the section 64 certificate from a judicial authority of the requesting state can be represented as being inconsistent with the purposes of the Framework Decision.
70. In any event, however, the requirement by section 64(2)(b) and (c) for an express certification from the requesting state that the conditions for the removal of double criminality are met was a clear requirement incorporated by Parliament into the implementation provisions of the 2003 Act. The likely purpose for this inclusion in the Act was to meet the concerns to which I have referred. It is not, in my opinion, for the judiciary to remove from the Act provision that Parliament thought it right to include for the greater protection of those who are for the time being in this country and therefore entitled to the protection of our laws.
71. Nonetheless since, for the reasons given by Lord Hope, the conduct of the appellant as alleged in the arrest warrant constitutes an extradition offence under section 64(3) his appeal must be dismissed. My dissent is limited to my disagreement that his conduct constituted an extradition offence under section 64(2).
LORD BROWN OF EATON-UNDER-HEYWOOD
72. I have had the advantage of reading in draft the opinions of my noble and learned friends, Lord Bingham of Cornhill and Lord Hope of Craighead. I agree with them and I too would dismiss the appeal. It is, of course, an appeal which, to be effective for defeating the appellant's surrender to Spain, must succeed both as to issue one (to prevent surrender under section 64(2) of the Extradition Act 2003 on the ground that the conduct falls within the framework list and is on that basis an extradition offence), and as to one or other (or both) of issues two and three (to prevent surrender under section 64(3) on the ground that the conduct in any event satisfies the dual criminality test and is on that alternative basis an extradition offence).
73. The first issue is obviously one of great importance and it is upon this issue that I wish to add a short judgment of my own. If the appellant's argument upon it is correct, it seems inevitable that many European arrest warrants which satisfy the requirements of article 8 of the framework decision will nonetheless fail to qualify as a sufficient basis for surrendering the person arrested: to satisfy the judge that the offence specified in the warrant is, within the meaning of section 64(2) "an extradition offence" it would be necessary in addition to produce a separate "certificate". Failing that, (unless, of course, section 64(3) were satisfied) the judge would be bound under section 10(3) of the 2003 Act to order the person's discharge.
74. For the reasons given by Lord Bingham, the appellant's argument on the construction of section 64(2), if addressed simply in the context of the 2003 Act itself, is a powerful one. Although section 142 of the Act demonstrates that an arrest warrant may indeed "contain" a certificate (the very contention which the respondent advances in respect of section 64(2)), it is striking, first, that such a certificate under section 142 is one which actually "certifies" the relevant facts (as opposed to a "statement", which is also to be contained in the section 142 warrant but which is merely thata statement to the given effect); and, secondly, that section 142's description of the warrant as a document containing the specified certificate is notably absent from section 64(2) itself. As Lord Bingham explains, moreover, section 64(2) plainly appears to require something more than the basic form of article 8 warrant such as was issued by Spain in the present case.
75. That being so, the recent decision of the Court of Justice of the European Communities in Criminal proceedings against Pupino (Case C-105/03)  QB 83, obviously assumes considerable importance and it is that decision upon which the respondent principally relies. It is worth setting out paragraphs 43 and 47 of the court's judgment in Pupino in full: