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

HOUSE OF LORDS

SESSION 2006-07

[2007] UKHL 6

on appeal from: [2006] EWHC 971 (Admin)

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Dabas (Appellant)

v.

High Court of Justice, Madrid (Respondent) (Criminal Appeal from Her Majesty's High Court of Justice)

 

 

 

Appellate Committee

 

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

Lord Mance

 

Counsel

Appellants:

Clare Montgomery QC

Mark Summers

(Instructed by Ahmed & Co)

Respondents:

David Perry QC

John Hardy

(Instructed by Crown Prosecution Service)

 

Hearing dates:

24 and 25 January 2007

 

 

 

on

WEDNESDAY 28 FEBRUARY 2007

 


HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

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

[2007] UKHL 6

LORD BINGHAM OF CORNHILL

My Lords,

    1.  The High Court of Justice of Madrid seeks the surrender of the appellant, Mr Dabas, to face a criminal charge of complicity in Islamic terrorism in connection with the Madrid train bombings of 11 March 2004. It has issued a European arrest warrant, pursuant to which District Judge Anthony Evans, sitting in the Bow Street Magistrates' Court, ordered the surrender of the appellant. The Queen's Bench Divisional Court (Latham LJ and Jack J) affirmed that decision: [2006] EWHC 971 (Admin); [2007] 1 WLR 145.

    2.  The appellant resists surrender on three grounds. For reasons given by my noble and learned friend Lord Hope of Craighead, whose summary of the relevant materials and provisions I gratefully adopt, I would reject the appellant's arguments based on the second and third grounds. On those I have nothing to add. I have felt more doubt about the first issue raised by the appellant, which is whether the certificate referred to in section 64(2)(b) and (c) of the Extradition Act 2003 can be the European arrest warrant itself.

    3.  Interpreting section 64(2)(b) and (c) in isolation, I would understand the section to require the issue by "an appropriate authority of the category 1 territory" of something amounting to a certification that the conduct described in the warrant falls within the European framework list (paragraph (b)) and that the conduct is punishable under the law of the category 1 territory with imprisonment or detention for 3 years or more (paragraph (c)). Whether or not the language "I hereby certify" were used, I would understand the subsection to require a statement to such effect: that is the ordinary meaning of "certificate", and that is the sense in which I understand the expression to be used elsewhere in the Act (see sections 2(7), 17(7), 40(1), 54(3), 56(3), 58(3) and 70(8)). If the authority designated by the Secretary of State under section 2(9) has certified that the foreign authority which issued the Part 1 warrant has the function of issuing warrants in the category 1 territory, and the certificate required by section 64(2)(b) and (c) is contained within the warrant itself, it is difficult to see how the appropriate judge in this country, performing his duty under section 66(2), could do other than believe that the certificate had been issued by a judicial authority of the category 1 territory which had the function of issuing arrest warrants in that territory. The inference that section 64(2)(b) and (c) envisages a separate certificate is strengthened by the reference in section 142(3), not found in section 64(2)(b) and (c), to an arrest warrant "which contains" a certificate. The appellant's argument on the construction of this domestic statute, skilfully advanced by Miss Montgomery QC, has considerable force.

    4.  But Part 1 of the 2003 Act must be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA; OJ 2002 L190, p 1). This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial cooperation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions.

    5.  By article 34(2)(b) of the Treaty on European Union, reflecting the law on directives in article 249 of the EC Treaty, framework decisions are binding on member states as to the result to be achieved but leave to national authorities the choice of form and methods. In its choice of form and methods a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of cooperation binding on member states under article 10 of the EC Treaty. Thus while a national court may not interpret a national law contra legem, 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" (Criminal proceedings against Pupino (Case C - 105/03) [2006] QB 83, paras 43, 47).

    6.  The wording of the Framework Decision makes no reference to a "certificate" as to the matters specified in section 64(2)(b) and (c) of the 2003 Act. But it does in article 8 require a European arrest warrant to contain "(d) the nature and legal classification of the offence, particularly in respect of Article 2", and it is article 2 which lists the offences for which no verification of double criminality is required ("the framework list"). Article 8 also requires a European arrest warrant to contain "(f) 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". This information must be set out in accordance with the form contained in the annex to the decision. The annex sets out the framework list, with provision for identification of any offence relied on which is punishable by imprisonment or detention for at least 3 years. The warrant is to be signed by or on behalf of the issuing judicial authority.

    7.  The arrest warrant issued in the present case met the formal requirements of the Framework Decision. It identified terrorism in the framework list as the offence, punishable by imprisonment or detention for at least 3 years, to be charged against the appellant. It was issued by a competent judicial authority in Spain, and signed by a judge acting as such. The issuing authority has been certified by the National Criminal Intelligence Service, then the authority designated by the Secretary of State for purposes of Part 1 of the 2003 Act under section 2(9) of the Act, to be a judicial authority which has the function of issuing arrest warrants in Spain.

    8.  The short question is whether this arrest warrant, complying with the formal requirements of the Framework Decision, is invalid under the 2003 Act because there is no separate certificate, and no express certification, to the effect specified in section 64(2)(b) and (c). If it is, the effect of the Act would be to introduce a requirement not found in the Framework Decision and thereby to impede, to some extent, achievement of the purpose of the Framework Decision, by reintroducing an element of technicality which the Framework Decision is intended to banish and by frustrating the intention that a warrant in common form should be uniformly acceptable in all member states. Happily, as I think, the House is not driven to that conclusion, since I consider that the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certification by the judge. It would be inconsistent with the trust and respect assumed to exist between judicial authorities to insist on any additional verification, which would impede the process of surrender but do nothing to protect the rights of the appellant.

    9.  For these reasons, as well as those given by Lord Hope, I would dismiss this appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    10.  On 17 March 2005 a European arrest warrant was issued by the Central Court of Committal Proceedings, No 6, High Court of Justice, Madrid, for the extradition of the appellant, Moutaz Almallah Dabas, to Spain. The decision on which the warrant was based was an order by Judge Juan del Olmo Galvez that the appellant should be subject to unconditional temporary imprisonment to await his trial for the offence of collaboration with an Islamist terrorist organisation in connection with explosions that took place in four trains in Madrid, with much loss of life, on 11 March 2004.

    11.  The validity of the warrant falls to be determined under Part 1 of the Extradition Act 2003. This is the measure by which the United Kingdom has transposed into national law the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/548/JHA; OJ 2002 L 190, p1). Spain was designated as a Category 1 territory pursuant to section 1 of the 2003 Act by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003/3333).

    12.  The warrant was in the form which the Framework Decision provides for a European arrest warrant. It was signed by Judge Galvez himself as the issuing judicial authority. It was accompanied by a translation into English. As translated, it contains a statement that the maximum length of the custodial sentence which may be imposed for the offence is from 5 to 10 years imprisonment. It describes the circumstances in which the offence was committed. Under the heading "Nature and legal classification of the offence and the applicable statutory provision/code" these words appear:

    "Penal Type would be collaboration with islamist terrorist organization foreseen in article 576 of Penal Code."

In the list of offences punishable in the issuing Member State by a custodial sentence or detention order of a maximum of at least 3 years which the form contains, a cross appears against the word "terrorism".

    13.  On 17 November 2005 District Judge Anthony Evans ordered that the appellant should be extradited to Spain to await his trial. The appellant disputed the validity of the warrant, so he appealed against the order for his extradition under section 26 of the 2003 Act. On 4 May 2006 the Queen's Bench Divisional Court (Latham LJ and Jack J) dismissed his appeal: [2006] EWHC 971 (Admin); [2007] 1 WLR 145. The appellant now appeals to your Lordships' House on the following three grounds:

    (1)  that the warrant did not comply with section 64(2) of the 2003 Act because it was not accompanied by a certificate of the kind referred to in section 64(2)(b) and (c);

    (2)   that the conduct which was alleged against him did not satisfy the dual criminality requirements of section 64(3) of the 2003 Act because part of it occurred at a time when such conduct did not constitute an offence under English law; and

    (3)  that the warrant did not satisfy the requirements of section 64(3) of the 2003 Act because it did not set out or otherwise make available the text of the relevant law showing that the conduct constituted an offence under the law of the requesting state.

    14.  These grounds of challenge to the warrant's validity raise issues as to the proper interpretation of the relevant provisions of the 2003 Act. The exercise of interpretation must be conducted in the light of the obligations which the Framework Decision imposed on the United Kingdom under article 34(2)(b) of the Treaty on European Union. So it is necessary at the outset to see what these obligations are.

The obligations under the Treaty

    15.  Article 34(2) EU is included in Part VI of the Treaty on European Union, which contains provisions on police and judicial cooperation in criminal matters. It provides that the Council may:

    "(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect."

Framework decisions thus have the same binding effect on Member States as directives under article 249 EC, the third paragraph of which uses the same formula.

    16.  The Framework Decision on the European arrest warrant is one of the products of the Tampere European Council of 15 and 16 October 1999 in which the concept of an area of freedom, security and justice within the EU was first formulated: see Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 21. Among the various statements in the preamble which explain the purpose and objectives of the Decision are the following:

    "(5)  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 procedure. 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.

    (8)  Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.

    (12) This Framework Decision respects fundamental rights and observes the principles recognised by article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof…

    This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media."

    17.  Article 1.2 provides:

    "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."

Article 17.1 provides:

    "A European arrest warrant shall be dealt with and executed as a matter of urgency."

Time limits are set out in that article within which the final decision must be taken, failing which the issuing judicial authority must be informed, giving the reasons for the delay.

    18.  These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures. They were to be replaced by a much simpler system of surrender between judicial authorities. This system was to be subject to sufficient controls to enable the judicial authorities of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down. But care had to be taken not to make them unnecessarily elaborate. Complexity and delay are inimical to its objectives.

    19.  The scope of the European arrest warrant is described in article 2. It may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months: article 2.1. Verification of the double criminality of the act is dispensed with in the case of a European arrest warrant which is issued for any one or more of the 32 offences listed in article 2.2, provided that the act is punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years. Acts which constitute offences other than those on the list may be subject to the condition that they constitute an offence under the law of the executing Member State - that is, subject to verification of their double criminality: article 2.4.

    20.  The content and form of the European arrest warrant is provided for in article 8. Paragraph 1 of that article describes the information that it is to contain, set out in accordance with a form in the Annex to the Decision. It includes the following:

    "(d)  the nature and legal classification of the offence, particularly in respect of Article 2;

    (e)  a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person.

    (f)  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."

 
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