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

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    11.  It is evident that section 65 specifies five categories of case in which extradition may be requested or surrender sought. The list is cumulative, as shown by "also" in subsections (3), (4), (5) and (6). The categories are different, but a condition applicable to one category may also be applicable to another: for example, the condition that no part of the conduct should occur in the United Kingdom is applicable to each of the categories in subsection (2), (5) and (6). Only in subsection (2) is express reference made to the European framework list, but there is nothing to suggest that the conduct referred to in subsections (3), (4), (5) and (6) may not constitute an offence within that list. Section 215(1) provides that the European framework list is the list of conduct set out in Schedule 2 to the Act, where the offences specified in article 2(2) of the Framework Decision are repeated verbatim.

The facts

    12.  On 6 May 2003 the appellant was convicted and sentenced to five years' imprisonment in his absence by the magistrate's court in Brussels. A year later the appropriate Belgian authority issued a European arrest warrant for him. The warrant was in Flemish with an English translation, which stated:

    "Cando Armas is a member of an organized gang which is responsible for the systematic illegal immigration of Ecuadorean citizens towards Europe. This organization was directed from London by Cando Armas. Once arrived in Belgium, Cando Armas took care of accommodation and fake passports for the illegal Ecuadorean immigrants. If necessary, the illegal immigrants were escorted to Great Britain.

    The above-mentioned facts took place between 1/9/2001 and 12/10/2001, within the district of Brussels.

    Nature and legal classification of the offence(s) and the applicable statutory provision/code: Art 77 al 1-80 Law of 15.12.1980 (foreigner-assistance) Art 322-323 al 2 SWB*

    (criminal conspiracy - commit criminal offences as instigator or leader)

    Art 193-198-213-214 SWB* (Forgery - fake up of a passport and use of a false passport)

    *penal code."

The warrant was in the form prescribed in the annex to the Framework Decision, and in its Flemish version identified people trafficking, facilitation of unauthorised entry and residence and forgery of administrative documents as the framework list offences for which the appellant's surrender was sought. The warrant recorded that a custodial sentence of five years had been imposed on the appellant, of which the whole term remained to be served. It was a judgment by default, and the appellant would be granted a new trial before the same court if he appealed against it.

    13.  The appellant was arrested and in due course appeared before the Deputy Senior District Judge at Bow Street on 26 July 2004. She held that the offences charged against the appellant fell within the European framework list, that section 65(2) of the Act did not apply because some of the appellant's conduct was said to have occurred in the United Kingdom and that section 65(3) did not apply because, if that subsection had been intended to apply in a case of this nature, it would have stipulated that the conduct constituted an extradition offence under the subsection if some of the conduct had occurred in the category 1 territory. She accordingly ordered the discharge of the appellant.

    14.  The Divisional Court allowed the prosecutor's appeal against this decision. In a judgment delivered by Stanley Burnton J the court held that section 65(2) to (6) formed a list, that conduct constituted an extradition offence if it fell within any of these subsections, which were not mutually exclusive, and that there was no reason to confine subsections (3) to (6) to non-framework list offences. The court construed "the conduct" in section 65(2) to (6) to mean "such of the conduct as constitutes a criminal offence (under the law of the category 1 territory)", and held that the present case fell within both (2) and (3) of section 65.

The legal issue

    15.  The argument of Mr Edward Fitzgerald QC for the appellant was admirably clear and simple. He submitted, correctly, that the offences charged against the appellant appear in the European framework list (and in Schedule 2 to the 2003 Act), and that section 65(2) is specifically directed to framework list offences. But some of the conduct alleged against the appellant is said in the warrant to have taken place in the United Kingdom, so subsection (2)(a) is not satisfied and that precludes the application of subsection (2). That is, however, the only subsection applicable to framework list offences, so subsections (3) to (6) cannot be relied on. In any event, the conduct charged did not occur wholly within Belgium, the category 1 territory, so the condition in subsection (3)(a) is not satisfied, and on the facts stated in the warrant it is plain that the condition in subsections (4)(a), (5)(a) and (6)(a) is not satisfied. Therefore the conduct alleged against the appellant does not constitute an extradition offence within section 65 and his discharge was rightly ordered.

    16.  I would accept the submission of Mr James Lewis QC for the prosecutor that "the conduct" in section 65 means the conduct complained of or relied on in the warrant. Such a reading is consistent with the language and purpose of the Framework Decision, obviates the need for an undesirable enquiry into the niceties of a foreign law and is consistent, so far as that is relevant, with the earlier decision of the House in In re Nielsen [1984] AC 606, 614-615. I would accordingly agree with the Deputy Senior District Judge and differ from the Divisional Court in holding that, since some of the conduct complained of or relied on in the warrant occurred in the United Kingdom, the condition in subsection (2)(a) is not satisfied and subsection (2) is accordingly inapplicable.

    17.  I cannot, however, accept that subsection (3) is to be read as requiring that all the conduct complained of should have occurred in the category 1 territory. The subsection does not so provide, and the qualification that no part of the conduct should have occurred in the United Kingdom, expressly stipulated in subsections (2)(a), (5)(a) and (6)(a), is not found in (3)(a). It must be inferred that that qualification was not intended. It is enough, under subsection (3)(a), if some of the conduct complained of or relied on occurred in the category 1 territory. More fundamentally, I cannot accept that, because subsection (2)(a) is specifically directed to framework list offences, subsections (3) to (6) should be understood to exclude such offences. It is only if a case falls within subsection (2) that the double criminality requirement is dispensed with, as subsections (3)(b), (4)(c), (5)(b) and (6)(c) make clear. This reflects the thrust of the Framework Decision. But there is nothing in the section to suggest that subsections (3), (4), (5) and (6) cannot apply to framework list offences where the relevant requirement of double criminality is met. No reason of logic or justice was suggested to support such a rule, and it is plain from hypothetical examples suggested in argument that it would lead to results which neither the European Council nor Parliament could ever have intended. I am accordingly of opinion that there is nothing in the language of subsection (3) which would preclude its application to this case. I would accordingly, for these reasons and those given by my noble and learned friend Lord Hope of Craighead, dismiss the appeal and uphold, for slightly different reasons, the Divisional Court's order that the matter be remitted to the Deputy Senior District Judge to continue the hearing.

    18.  At that hearing points properly open to the appellant may be pursued. I would wish to reserve my opinion on the matters to which my noble and learned friend alludes in paras 42- 48 of his judgment, save to say that I share his doubts and would for my part be slow to read into Part 1 of the 2003 Act a condition not found in the Framework Decision.

LORD HOPE OF CRAIGHEAD

My Lords,

    19.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. For the reasons that he has given I too would dismiss the appeal and make the order that he proposes.

    20.  The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190) ("the Framework Decision") is an instrument about which, as Dr Alastair Brown has observed in his helpful annotations to the Extradition Act 2003 in Current Law Statutes, p 41-8, there has been much heat but little light. The system that it introduced, which has now been incorporated into domestic law by Part 1 of the Extradition Act 2003 ("the 2003 Act"), was highly controversial. The controversy has not been confined to our own country. On 18 July 2005 the German Constitutional Court upheld a constitutional complaint against the German European Arrest Warrant Act (Europäisches Haftbefehlsgesetz) and declared it void because, when implementing the Framework Decision, the legislature had failed to take account of the special protection against extradition that article 16.2 of the Basic Law affords to German citizens: 2 BvR 2236/04, 18 July 2005.

    21.  The Tampere European Council of 15 and 16 October 1999 which laid the foundations for this system was the highlight of Finland's first Presidency of the European Union. Its theme was the creation of an area of freedom, security and justice within the EU, based on a shared commitment to freedom based on human rights, democratic institutions and the rule of law. In para 35 of the Presidency conclusions Member States were asked to abolish extradition in the case of persons who were fleeing from justice after having been finally sentenced and to replace it by a simple transfer of such persons. There was to be a new approach to judicial co-operation between Member States. The essence of that approach is described in recital 5 of the preamble to the Framework Decision in these words:

    "The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice."

    22.  Recital 6 of the preamble states that the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which was referred to at Tampere as the cornerstone of judicial cooperation. The use of the word "extradition" to describe the system which is then laid down is only possible, as Dr Brown points out in his commentary at p 41-9, if one subscribes to the Through the Looking Glass school of legislative drafting. What Part 1 of the 2003 Act provides for, in its simplest form (where the conduct occurs in the territory of the requesting state, no part of it occurs in the United Kingdom and it falls within the European framework list of offences set out in Schedule 2: sections 64(2) and 65(2) of the 2003 Act), is really just a system of backing of warrants. It is designed to enable the persons against whom they are directed to be handed over in the shortest possible time to the requesting authorities. The grounds on which a Member State can decline to give effect to the European arrest warrant are, as my noble and learned friend Lord Scott of Foscote points out, very limited.

    23.  But a system of mutual recognition of this kind, such as that which in their relations with each other the three jurisdictions within the United Kingdom have long been used to, is ultimately built upon trust. Trust in its turn is built upon confidence. As recital 10 of the preamble puts it, the mechanism of the European arrest warrant is based on a high level of confidence between Member States. The reason why discussions about the introduction of the European arrest warrant generated so much heat in the United Kingdom was a lack of confidence in the ability of the criminal justice arrangements of other Member States to measure up to the standards of our own, and a corresponding lack of trust in the ability of the new system to protect those against whom it might be used. Now that the argument is over and the new system is in force it has to earn that trust by the way it is put into practice. The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down.

    24.  In R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 947 Lord Bridge of Harwich said that the court should not apply the strict canons appropriate to the construction of domestic legislation to extradition treaties. In In re Ismail [1999] 1 AC 320, 327 Lord Steyn, noting that there was a transnational interest in bringing those accused of serious crime to justice, said:

    "Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition."

These passages describe the approach to the issues of statutory construction that have been raised in this appeal. But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute. Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law. But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty.

Part 1 of the 2003 Act

    25.  Belgium is one of the territories, referred to in section 1(2) of the 2003 Act as category 1 territories, which have been designated for the purposes of Part 1 of the Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333). Part 2 provides for a separate system of extradition to category 2 countries. Those which have been designated as category 1 countries must make use of the procedure laid down in Part 1. The extradition procedure in that Part of the Act is initiated by what section 2(2) describes as a Part 1 warrant. This is an arrest warrant which is issued by a judicial authority of a category 1 territory. Its contents are prescribed by the statute.

    26.  One might have expected the draftsman, when he was prescribing its contents, simply to have followed what the Framework Decision says about this. The content and form of the European arrest warrant is laid down in article 8, in accordance with a form contained in an Annex to the instrument. But the 2003 Act has not adopted that approach. Section 2(2) provides that a Part 1 warrant must contain a statement which is not expressly provided for in the article, and it provides that it must contain information which lacks some of the details which the article requires. These details vary according to whether the person in respect of whom the warrant is issued is unconvicted ("accusation cases") and is being sought for the purpose of being prosecuted for the offence which it specifies, or has been convicted and is being sought for the purpose of being sentenced for that offence or for the serving of a custodial sentence that has been imposed in respect of it ("conviction cases"). Here too section 2(2) departs from the article, which makes no distinction as to the contents of the warrant between accusation and conviction cases. The same form is prescribed for them both.

    27.  The contents of the warrant are crucial to the operation of the system which has been laid down in Part 1. Section 10(2) states that the judge must decide whether the offence specified in the warrant is an extradition offence. That expression is defined in sections 64 and 65 of the Act. Section 64 applies to accusation cases. Section 65 applies to conviction cases. These definitions are almost identical, except that where the test of double criminality must be satisfied in accusation cases the conduct must be punishable by a custodial sentence of 12 months or more (see section 64(3)(c)), whereas in conviction cases the minimum sentence is 4 months (see section 65(3)(c)). Nothing turns on that distinction in the present case. What does matter is that the Part 1 warrant is the initiating document in all cases, irrespective of whether the offence is within the Framework list and irrespective of whether the double criminality requirement which is dispensed with in the cases referred to in sections 64(2) and 65(2) applies to it.

    28.  The issue in the certified question is directed to the definition in sections 64 and 65 of the offences which are to be treated as extradition offences. But it is not possible to address this issue without having in mind the requirements which a Part 1 warrant must satisfy. Both points lie at the heart of the procedure that has been laid down by Part 1 of the 2003 Act. If the warrant does not conform to the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section and Part 1 of the Act will not apply to it. And if the offence that it describes is not an extradition offence within the meaning of section 64 or 65, as the case may be, the judge must order the person's discharge: section 10(3). In either of these two situations there is no way back for the judicial authority of a category 1 territory. The procedure in Part 2 of the Act applies only to the territories that have been designated for the purposes of that Part: section 69(2).

Sections 64(3) and 65(3)

    29.  My noble and learned friend has set out the facts, and I gratefully adopt his description of the legislation and of the legal issue that has to be addressed under this heading. I respectfully agree with the conclusions that he has reached for the reasons which he has given. But I should like to add some comments of my own on the meaning that is to be given to the word "conduct" in this context. For convenience I shall concentrate on the wording of section 65 bearing in mind that, for present purposes, the wording of the two sections is identical.

    30.  The definitions of what constitute an extradition offence for the purposes of Part 1 are based on the principle, recognised in international law, that States claim criminal jurisdiction over conduct which takes place within their territory. The judge need not concern himself with the criminal law of the requesting state when he is addressing the question whether the offence specified in the Part 1 warrant is an extradition offence. But he does have to consider where the conduct which is alleged to constitute the offence took place.

    31.  Section 2(4) requires particulars to be given in accusation cases of the circumstances in which the person is alleged to have committed the offence, including the time and place at which he is alleged to have committed it. This requirement is absent from the list of particulars in section 2(6) which must be given in conviction cases. Its omission from this list in section 2(6) is hard to understand, as the question where the conduct is alleged to have taken place is just as relevant in that context. As I have already noted, article 8 of the Framework Decision which sets out the information which it "shall contain" makes no distinction between accusation and conviction cases as to the content and form of a European arrest warrant. Moreover the offence will not be an extradition offence in domestic law unless the territorial requirements laid down in section 64 or section 65, as the case may be, are satisfied.

    32.  The background to section 65 is to be found in two instruments. One of these, of course, is the Framework Decision itself, which provides in article 1.2 that Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and sets out in article 2.2 a list of the offences ("the Framework offences") which give rise to an obligation on the executing Member State to surrender without verification of double criminality. But article 4.7(a) of the Framework Decision provides that the judicial authority of the executing Member State may refuse to execute a European arrest warrant where it relates to offences which:

    "are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such."

This provision appears to have left it open to the United Kingdom to disapply the procedure provided for in the Framework Decision to cases of that kind. In such cases, although the European arrest warrant continues to be the relevant initiating instrument (see articles 1.1 and 2.4), the system for extradition continues to be governed by the rules in the European Convention on Extradition which was entered into on 13 December 1957 (Cm 1762). Article 2.1 of the Convention applies the test of double criminality. It defines extraditable offences as those which are punishable under the laws of the requesting party and of the requested party by deprivation of liberty or under a detention order for a maximum period, in accusation cases, of at least one year or by a more severe penalty or, in conviction cases, for a period of at least four months.

    33.  Section 65(2)(a) applies where the conduct falls within the Framework list: see para (b) of that subsection. It sets out two conditions about the place where the offence took place that must be satisfied if it is to be exempted from the requirement of double criminality. These are, first, that the conduct occurred in the territory of the requesting State - the category 1 territory; and, secondly, that no part of it occurred in the United Kingdom. Section 65(3)(a) is not restricted to Framework offences. It is capable of applying to any offence which satisfies the requirements of article 2.1 of the European Convention, including those on the Framework list. It sets out only the first of the conditions about the place of the conduct which are to be found in section 65(2). The second is absent, reflecting the fact that in the case of offences falling within this subsection the test of double criminality has not been dispensed with.

    34.  Common to the first condition about the place of the conduct, irrespective of the subsection under which it has to be satisfied, are two questions: (1) whether the person must be within the territory of the requesting State at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory. In many cases, of course, these will not be live issues as it will be plain that the conduct occurred exclusively in the territory of the requesting State. But many of the offences in the Framework list such as trafficking in human beings are commonly committed across borders. The appellant is alleged to have engaged in conduct of that kind, so these questions must be addressed in his case.

    35.  The answers are to be found in the first place in the language which has been used by the legislature which Lord Bingham has analysed. The context in which that language has been used is, of course, provided by the common law. It is provided in particular by the rules which apply when jurisdiction is claimed on the basis of territoriality. It is now well established that the physical presence of the defendant in the territory is not required so long as the effects of his actions were intentionally felt there. That rule is matched by its corollary which is that, if the effects of those actions were intentionally felt here, criminal jurisdiction can be exercised in respect of their effect irrespective of where the actions took place that gave rise to them. Section 65(2) modifies these rules in the case of Framework offences where the test of double criminality is dispensed with, as it requires that no part of the conduct took place in the United Kingdom. But the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there, irrespective of where the person was when he did the acts which constituted such conduct.

    36.  A few examples will suffice to illustrate this point. In Director of Public Prosecutions v Stonehouse [1978] AC 55 the defendant was charged with attempting to obtain property by deception by fabricating his death by drowning in the sea off Miami in Florida. The final act alleged to constitute the offence occurred outside the jurisdiction of the English courts, but it was held that the charge was justiciable in England. Applying what Professor Glanville Williams in his article "Venue and the Ambit of Criminal Law" (1965) 81 LQR 518 called the terminatory theory of jurisdiction, Lord Diplock said at p 66:

    "The basis of the jurisdiction under the terminatory theory is not that the accused has done some physical act in England, but that his physical acts, wherever they were done, have caused the obtaining of the property in England from the person to whom it belonged."

Lord Keith of Kinkel at p 93 based his decision on the principle that an offence is committed within the jurisdiction if the effects of the act intentionally operate there or exist within it:

    "This would be the situation if a bomb or a letter sent from abroad were found anywhere within the jurisdiction. Its presence at that spot would be an intended effect of the act of despatching it. In my opinion it is not the present law of England that an offence is committed if no effect of an act done abroad is felt there, even though it was the intention that it should be. Thus if a person on the Scottish bank of the Tweed, where it forms the border between Scotland and England, were to fire a rifle at someone on the English bank, with intent to kill him, and actually did so, he would be guilty of murder under English law. If he fired with similar intent but missed his intended victim, he would be guilty of attempted murder under English law, because the presence of the bullet in England would be an intended effect of his act. But if he pressed the trigger and his weapon misfired, he would be guilty of no offence under the law of England, provided at least that the intended victim was unaware of the attempt, since no effect would have been felt there."

 
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