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||Neutral Citation Number:  EWHC 237 (Admin)
||Case No: CO/10007/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
MR JUSTICE OPENSHAW
Mr James Lewis QC and Mr Daniel Jones (instructed by Central Law Practice, Wembley Park, Middlesex) for the Appellant
Miss Gemma Lindfield (instructed by the CPS Extradition Section) for the Respondent
Hearing dates: 28th January 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Aikens :
- This is the judgment of the court to which each of us has contributed.
- This is a statutory appeal pursuant to section 26 of the Extradition Act 2003 ("the Act"), against the decision of District Judge Evans, given on 2 September 2009, by which he ordered the extradition of the appellant Balazs Asztaslos ("the appellant") to Hungary to face trial for one alleged offence of sexual assault on a child under the age of 12 and two alleged offences of abuse of a minor. The alleged offences concern the appellant's daughters.
- Shortly after the notice of appeal was lodged, seemingly as the result of a most regrettable administrative error on the part of the British authorities, the appellant was sent back to Hungary. He remains in Hungary where he is held on remand in relation to the criminal proceedings for which his extradition was requested. On the appellant's behalf it is argued that the erroneous removal of the appellant did not extinguish his statutory right of appeal and that the Court should hear the appeal in the normal way. Certainly it would be most unjust if he were to be deprived of his right of appeal by an error on the part of the British authorities when an appeal was pending. Miss Lindfield, on behalf of the Respondent, without conceding the point of principle, has agreed that we should first hear the case on its merits, because she agrees that if the appeal is dismissed on its merits, there is no need to rule upon the point of jurisdiction. That is what we shall do.
- On behalf of the appellant, Mr James Lewis QC takes two points. First, he submits that the European Arrest Warrant ("EAW") that was issued on 26 May 2008 by the Szekszard City Court in Hungary, was not issued for the purposes of Mr Asztaslos being prosecuted within the meaning of section 2(3)(b) of the Act. Secondly, Mr Lewis submits that some of the offences under Hungarian law for which the appellant is sought are not "extradition offences" within section 64(3) of the Act. Mr Lewis had originally proposed to argue further points but we understood during argument that those are not now to be pursued.
Issue One: The validity of the EAW - was it issued for the purpose of the appellant being prosecuted?
- Mr Lewis QC argues that the EAW was not issued for the purpose of conducting a prosecution but for the purpose of conducting an investigation. He submits that EAW therefore failed to comply with the requirements section 2(3)(b) of the Act and consequently it is not a valid EAW within Part 1 of the Act. For the Respondent Miss Lindfield argues that it is clear that the EAW was issued of the purpose of the appellant being prosecuted and not simply to enable him to be questioned further with a view to his possible prosecution.
- Section 2(2) and (3) of the Act provide:
"(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant 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 is also necessary to refer to section 202 of the Act, which is headed "Receivable documents". That section provides:
202 Receivable documents "
(1) A Part 1 warrant may be received in evidence in proceedings under this Act.
(2) Any other document issued in a category 1 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(3) A document issued in a category 2 territory may be received in evidence in proceedings under this Act if it is duly authenticated.
(4) A document issued in a category 1 or category 2 territory is duly authenticated if (and only if) one of these applies—
(a) it purports to be signed by a judge, magistrate or other judicial authority of the territory;
(b) it purports to be authenticated by the oath or affirmation of a witness.
(5) Subsections (2) and (3) do not prevent a document that is not duly authenticated from being received in evidence in proceedings under this Act.
- As is now well known, Part 1 of the Act was passed to discharge the United Kingdom's duty to transpose into national law the obligations imposed on it by the Council Framework Decision on the European Arrest Warrant and surrender Procedures between member states of the European Union dated 13 June 2002 ("the Framework Decision"). The history of its genesis is set out in paragraphs 2 – 4 of the speech of Lord Bingham of Cornhill in Office of the King's Prosecutor, Brussels v Armas and others  UKHL 67,  2 AC 1 "the Armas case"). Recital (5) of the Framework Decision states:
"The objective set for the [European] 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 purpose of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures".
Recital (10) states:
"The mechanism of the European arrest warrant is based on a high level of confidence between member States…"
- By Article 34(2)(b) of the Framework Decision, member states were left the choice of form and methods to achieve the results at which the Framework Decision aims between member states. The United Kingdom has taken full advantage of this liberty. Part 1 of the Act did not use the drafting technique of simply transposing the relevant provisions of the Framework Decision into an Act of Parliament; nor did it put them in a schedule to a short Act. Instead, Part 1 uses its own words and this has given rise to case law as a result. However, it is well established that the wording of the provisions of Part 1 of the Act in general and section 2 in particular must be construed on the assumptions that, first, Parliament did not intend the provisions of Part 1 of the Act to be inconsistent with the Framework Decision and, secondly, that whilst Parliament might properly provide for a greater measure of cooperation by the UK than the Framework Decision required, it did not intend to provide for less. See: the Armas case at para 8, per Lord Bingham of Cornhill.
- Article 1 of the Framework Decision states:
"1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
2. 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.
3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union."
- Article 2 of the Framework Decision sets out the scope of the EAW. Article 8 of the Framework Decision sets out the content and form of the EAW. It provides:
"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;
the nature and legal classification of the offence, particularly in respect of Article 2;
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".
- The Annex to the Framework Decision sets out the form of the EAW referred to in Article 8. In the English language version of the Annex, the front page of the EAW is as follows:
"EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order"
- We note two points here. First, there is no provision in the 2003 Act that dictates that the form of EAW to be used in connection with an application for extradition (or in the Framework Decision terms, surrender) to a category 1 territory must be that set out in the Annex to the Framework Decision. However, it is plainly the intention of the Framework Decision that this form should be used as a standard and uniform template for requests for surrender under the Framework Decision's provisions.
- Secondly, neither the Framework Decision, the Annex to it, nor the 2003 Act stipulate that when an EAW is issued, the alternative on the front page that is not applicable (ie. either "for the purposes of conducting a criminal prosecution" or "for the purpose of executing a custodial sentence or detention order") has to be deleted, depending on the purpose for which the EAW was issued. In the Armas case (supra), at paragraph 54, Lord Scott of Foscote notes the wording set out in the Annex that we have reproduced above and suggests that it would be intended that the inapplicable alternative be deleted, because the person in question "is surely entitled to know which of the alternatives apply to him". However, in the same case, at paragraph 26, Lord Hope of Craighead noted that Article 8 of the Framework Decision makes no distinction as to the contents of the EAW between what he there calls "accusation warrants" (ie. those issued for the purposes of conducting a criminal prosecution) as opposed to "conviction warrants" (ie. those issued for the purposes of executing a custodial sentence or detention order").
- In this case the District Judge recorded (at paragraph 9 of his judgment) that wording relating to the inappropriate option on the front page of this EAW had not been deleted. He commented that it never is. That is also our experience and we suspect that this is because there is no requirement in the Framework Decision that the inappropriate option be deleted and perhaps, also, because the official at the requesting court may not be sufficiently confident of the English language to know precisely which words ought to be deleted. In our view the fact that the inappropriate option has not been deleted cannot, by itself, make the EAW invalid because it does not comply with section 2(2). Section 2(2) of the Act does not say that if an EAW is an "accusation case" warrant then all references to sentence or detention must be deleted. Nevertheless, it is imperative that, upon examination of the EAW as a whole, it is clear that it is a request for surrender of the requested person either for the purposes of conducting a prosecution or for the purpose of executing a sentence or detention order. In short, it must be clear from an examination of the EAW as a whole that is a warrant in an "accusation case" or a "conviction case", to use the shorthand wording of Lord Hope of Craighead in the Armas case at paragraph 26.
- In a number of cases since the Act was passed, the courts have had to consider the issue of whether the request for extradition (or more correctly in the language of the Framework Decision, the request for "arrest and surrender") is made for the purpose of the requested person being prosecuted for an offence as an accused person, or for the purpose only of conducting an investigation to see whether that person will be prosecuted. If an EAW has been issued by a requesting state as an "accusation case" warrant, but its purpose is, in fact, the surrender of the requested person for the purpose of conducting an investigation to see whether that person should be prosecuted, it is not a legitimate purpose and so the warrant is not an EAW within the meaning of section 2(2) and (3). Accordingly, Part 1 of the Act will not apply to it: see the Armas case, paragraph 28 per Lord Hope of Craighead and paragraph 54 per Lord Scott of Foscote.
- How does an English court decide, in the international context, whether an EAW is a warrant that requests the surrender of an "accused" person for the "purposes of being prosecuted" (in the language of section 2(3)(a) and (b)), as opposed to a warrant which requests surrender of the requested person only for an investigation? The starting point for a consideration of this issue must be the decision of the House of Lords in Re Ismail  1 AC 320, a decision under the Extradition Act 1989. The case concerned the meaning of the words "..a person in the United Kingdom who (a) is accused in [the requesting state] of the commission of an extradition crime…" in section 1(1) of the Extradition Act 1989. In dealing with the correct construction of "accused" in that section, Lord Steyn said at pages 326-7:
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their enquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is however, possible to state in outline the approach to be adopted. The stating point is that the term "accused" … is not a term of art. It is a question of fact in each case whether the person passes the threshold of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes … it follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure and in particular from the point of view of formal acts of the laying of an information or the preferring of an indictment. Moreover, it is important to note that in England the prosecution may also be commenced if a Custody Officer decides that there is sufficient evidence to charge and arrest a person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence 1984 … Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an 'accused' person. And that is so even if the police continue to investigate afterwards.
In other words it is necessary for our courts to adopt a cosmopolitan approach to the question of whether as a matter of substance rather than form of requirement of there being an "accused" person is satisfied….
But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question of whether a person is "accused" within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case."
- This "cosmopolitan approach" to construction has been approved in relation to Part 1 of the Act by Lord Hope of Craighead in the Armas case at paragraph 24. Lord Hope also emphasised, however, that the liberty of the subject (and indeed, we might add, that of foreign nationals) is at stake and so generosity must be balanced against the rights of persons who are sought to be surrendered under the procedures laid down by the Framework Decision and the Act. The other law lords agreed with Lord Hope.
- The effect of Lord Steyn's analysis, as applied to section 2(3)(a) and (b) must be as follows: first, the phrases "…is accused…of the commission of an offence" in paragraph (a), and "for the purpose of being prosecuted" in paragraph (b), are not to be treated as terms of art. Secondly, it is a question of fact whether the surrender sought is of an accused person and for the purpose of the requested person being prosecuted. Thirdly, it would be wrong to approach the construction of the phrases "accused" etc and "for the purposes of being prosecuted" solely from the perspective of English (or Scottish or Northern Irish) criminal procedure; in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment. Fourthly, it is necessary to adopt a purposive construction of the words "accused…of the commission of an offence" and "for the purpose of being prosecuted" to accommodate the differences between legal systems. Lastly, the question of whether a person is "accused" and is to be surrendered "for the purpose of being prosecuted" will require an intense focus on the facts in each case.
- In a number of cases heard in the Administrative Court in the last four years there has been a challenge to an EAW on the ground that the purpose of the requested surrender is not for the prosecution of the requested person as an accused person, but for the conduct of investigations after which the person requested may be prosecuted, but it is not certain. Sometimes evidence, both factual and expert, is sought to be adduced to demonstrate that the criminal proceedings in the requested state have not got to the stage of a prosecution. The question that arises is: in what circumstances (if any) should the court consider extrinsic evidence when it appears to the court that it is an "accusation case" (as opposed to a "conviction case"), but there is an issue between the parties on whether the purpose of the surrender sought by the EAW is, in fact, for the purpose of the requested person being prosecuted as an accused person, as opposed to being for the purpose of that person being questioned with a view to possible prosecution thereafter.
- We start with the proposition, stated by Lord Hope of Craighead in Dabas v High Court of Justice, Madrid  UKHL 6,  2 AC 31 at paragraph 50. He said:
"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".
- That suggests that, at least in the first place, the questions of whether the person is accused of offences and purpose of the surrender of the requested person is for the conduct of prosecution or for the purpose of investigation should be answered by the terms of the warrant itself and the court should not have regard to extrinsic evidence to determine the matter. However, that has not been the approach of the courts in all cases.
- In Harvey v Judicial Authority of Portugal-Tribunal Judicial de Albufeira  EWHC 3282 (Admin), the warrant requested the surrender of Mr Harvey in respect of an offence concerning "the issue of a cheque without funds". The warrant requested Mr Harvey be detained and committed "to the judicial authorities for purposes of legal proceedings". The Divisional Court had to consider two issues, the first of which was whether Mr Harvey was required for the purposes of being prosecuted or for the purposes of investigation. At paragraph 11 of the judgment of Maurice Kay LJ, he noted that it was common ground that (a) the court could draw proper inferences from the contents of the warrant, and (b) as Lord Hope had stated in paragraph 50 of his speech Dabas, quoted above, "the court may not go outside the warrant and fill gaps by resort to extraneous material". Maurice Kay LJ concluded, considering just the wording of the warrant alone, that neither Mr Harvey nor anyone else would be misled by the face of the warrant into believing that the purpose for seeking his return to Portugal was to further an investigation as opposed to prosecuting him for the offence referred to in the warrant. There was no extrinsic evidence on the purpose of the surrender in that case.
- In Vey v The Office of the Public Prosecutor of the County Court of Montluçon  EWHC 760 (Admin), there were two warrants. The first warrant failed to assert that the surrender of the requested person was sought for the purpose of her being prosecuted. It was argued that the second warrant also was sought for the purpose of questioning the requested person. It was said that this was demonstrated by the fact that the warrant failed to provide information as to the circumstances in which Mme Vey had committed the relevant alleged offence, the murder of a paraplegic boy. Three points were argued on the appeal to the Divisional Court from the Senior District Judge. First, that the second warrant did not provide all the information as required by section 2(4) of the Act. Secondly, that Mme Vey was not a "person accused" within section 2(3)(a) of the Act. Thirdly, that Mme Vey was sought by the French court for the purpose of an investigation, not for being prosecuted, so that the warrant did not come within section 2(3)(b).
- Moses LJ gave the principal judgment. He decided the case on the issue of lack of information as required by section 2(4) of the Act. However, he then went on to comment, obiter, on whether the warrant was for the purpose of Mme Vey being prosecuted. He noted that the requesting court had provided information. He received it pursuant to section 202 of the Act. Further, expert evidence on French procedural criminal law had been obtained by the appellant and on behalf of the respondent on the question of the stage reached in the proceedings against the appellant. Moses LJ examined that expert evidence in some detail in the course of his judgment. He concluded that the arguments and the evidence on the French procedural criminal law left him in a state of grave uncertainty as to the stage reached in the proceedings against Mme Vey: see paragraph 56.
- At paragraph 59- 61, Moses LJ pointed out that it was important for the English court, as the requested court, to know the stage reached in the proceedings, to ensure that the EAW was within the terms of section 2(3)(b) of the Act. He also pointed out that if this had to be determined by expert evidence, it placed a considerable burden on District Judges hearing these cases. Therefore, the requesting authorities (in that case the relevant French prosecution authorities) ought to explain the stage reached in the proceedings for the benefit of the English court, as the requested court.
- The next case, chronologically, is Arturo Paschayan v Government of Switzerland  EWHC 388 (Admin), another Divisional Court case. It was a Part 2 case. The issue was whether the appellant was an accused person in Switzerland or merely a suspect. The Swiss authorities had provided the English court with four tranches of explanatory material. At paragraph 24 of his judgment, Maurice Kay LJ referred to his own decision in Harvey. He noted that Harvey was a Part 1 case, "…where consideration was confined to the face of the warrant".
- Maurice Kay LJ also gave the principal judgment in the next case where the Divisional Court considered this issue: Richard McCormack v Tribunal de Grande Instance, Quimper, France  EWHC 1453 (Admin). Two EAWs had been issued by the French authorities; one related to allegations of rape and attempted rape, the other to alleged tax frauds. The question was whether the requested person was an "accused" within section 2(3)(a) of the Act and whether his surrender was for the purpose of being prosecuted for the alleged offences, within section 2(3)(b), or was for the purpose of investigation or interrogation. At paragraph 1 of his judgment, Maurice Kay LJ said that it would be necessary to consider French criminal procedure to resolve this issue. The court considered expert evidence from Professor Jacqueline Hodgson and the Public Prosecutor upon whose application the examining magistrate had issued the EAWs in France.
- Having considered the expert evidence, Maurice Kay LJ concluded, at paragraph 14, that Mr McCormack was an accused person wanted for the purpose of prosecution. At paragraph 15 Maurice Kay LJ also noted that the experts agreed that the circumstances were such that, in terms of the French language version of the words in the Framework Decision in Article 1 ("for the purposes of conducting a criminal prosecution"), "l'exercise de poursuites pénales" had begun against Mr McCormack. Therefore section 2(3)(a) and (b) of the Act were satisfied.
- In Robert Thompson v Public Prosecutor of Boulogne sur mer  EWHC 2787 (Admin), the EAW was challenged on a number of points. The first was the lack of a statement in the EAW on whether Mr Thompson was sought for the purpose of being prosecuted for a fraud charge or for questioning in an investigation. The warrant stated on its face that it requested the arrest and delivery of Mr Thompson "…to the judicial authorities for legal proceedings or execution of a sentence or as a custody provision". There was no expert evidence before the court. Scott Baker LJ, giving the first judgment, concluded (at paragraph 21) that the wording of the warrant, taken as a whole, did not satisfy him that the point had been reached where Mr Thompson was wanted for the purpose of being prosecuted, within section 2(3)(b) of the Act. He was not convinced that the appearance of the words "poursuites pénales" in the original French version of the warrant was sufficient to cure this deficiency.
- Scott Baker LJ made the following statement at paragraph 23 of his judgment:
"The European arrest warrant procedure is designed to provide a summary and speedy process for securing the extradition of accused and convicted persons between Member States. Where the warrant contains the required information, it is unnecessary and indeed inappropriate to go behind the warrant. The last thing the court wants, save in most exceptional circumstances, is for the proceedings to become bogged down by contested expert evidence. If the warrant provides that the person is required for the purpose of being prosecuted for the offence, or in this case offences, that is sufficient to comply with section 2(3)(b). Whilst I appreciate that warrants are often directed to more than one Member State, and it may not be easy to provide a form of words that meets the requirements of each recipient state's national legislation, it should surely be possible, on receipt of a warrant in the United Kingdom, for it to be carefully checked to ensure that it complies with the requirements of the Extradition Act 2003. Then any defect can be remedied before time is wasted on what are likely to be costly and abortive proceedings."
- I gave a concurring judgment in that case. At paragraph 39 I stated:
"This court and, a fortiori, District Judges who have to deal with applications for European arrest warrants on an almost daily basis, must not be put in the position where the court may have to consider detailed evidence about criminal procedures in other European countries for the purpose of the deciding whether or not the statutory requirements in section 2(3)(b) of the Act are fulfilled. If the objectives of speed and simplicity in the procedure of cross-border arrest and surrender within the EU are to be achieved, the solution, in my view, is clear. When a requesting authority issues a European arrest warrant with a request to the United Kingdom, the precise English-language wording in the head of the pro forma warrant annexed to the Framework Decision should be used. Furthermore, care should be taken to ensure that there is nothing in the body of warrant that detracts from that unequivocal statement. The liaison magistrate in the requesting state and the liaison authority in the United Kingdom can ensure that this is done. In that way, the objective of paragraph 5 of the recitals to the Framework Decision and Part 1 of the Act, viz the introduction of a new simplified system of arrest and surrender between judicial authorities, can be fulfilled."
- There are two further decisions to which we wish to refer. The first case actually involved two appellants. It is Paul Johnson v State Prosecutor at the Tribunal de Grande Instance de Lille and Martin Christopher Joseph Stevens v Judicial Authority of the Government of France  EWHC 2830 (Admin). The appeals before the Divisional Court from the extradition order of the District Judge turned on whether the warrants were defective because they did not contain an unequivocal statement that the appellants were wanted for the purpose of being prosecuted in France and so were not in compliance with section 2(3)(b) of the Act. The appellants relied, first, on the use, in the French language original of the warrants, of the words "poursuites pénales" which had troubled the court in Thompson. Secondly, the appellants relied on a letter which had sent by the French authorities to solicitors for the appellants indicating that when the appellants were returned to France they would be questioned at an initial court hearing. It was submitted that this indicated that prosecution thereafter was only a possibility.
- Cranston J concluded, at paragraph 18, that there was nothing in the warrants to suggest that the appellants were wanted only for questioning. He distinguished Thompson on the ground that there were other indications in the warrant which threw doubt on the purpose for which the surrender was sought.
- Scott Baker LJ added this important comment:
"Where a warrant clearly states that the person is sought for the purpose of being prosecuted, there is no problem. Problems only arise where consideration of the whole warrant leaves it unclear whether the person sought is wanted for the purpose of prosecution or merely questioning".
- The last case in the series is a decision of Davis J in The Queen on the application of Trenk v District Court in Plzen-Mesto, Czech Republic  EWHC 1132 (Admin). It was a Part 1 case in which the EAW, issued by the Czech authorities, sought the return of Mr Trenk in relation to an alleged offence of swindling. The face of the warrant stated: "I request that the person mentioned below be arrested and surrendered for the purposes of conduction a criminal prosecution for the offences(s)". In box (b) of the warrant, under the heading "Decision on which the warrant is based", it said: "1. Arrest warrant or judicial decision having the same effect: warrant of arrest. Type: preliminary procedure". Box (e) specified the offence, with "some degree of particularity" as Davis J put it at paragraph 4 of his judgment.
- The issue in the case was whether "this case has crossed the boundary from investigation into prosecution". It was not disputed that Mr Trenk may be described as an "accused", although Mr Trenk had not been charged: paragraph 5. The Czech authorities had been asked to provide further information about the state of the proceedings against Mr Trenk. The judge regarded the first answers given by the Czech authorities as indicating "how vague and unclear the position is on the face of it": paragraph 8. Further explanations were sought. The judge referred to the cases of Ismail, Vey, and McCormack. He concluded that it was not established that the case had "crossed the boundary from investigation into prosecution".
- We will attempt to summarise what we believe is the effect of all these authorities. (1) The court will look at the warrant as a whole to see whether it is an "accusation case" warrant or a "conviction case" warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal. (2) In the case of an "accusation case" warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an "accused" within section 2(3)(a) of the Act. (3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified. (4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure. (5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant. (6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself. (7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases.
- In the present case, there was no expert evidence before the District Judge. Mr Lewis invited us to admit expert evidence on the appeal. We did not do so. In our view extrinsic factual or expert evidence on this topic should not be permitted on appeal unless there are exceptional reasons to do so and where there is good reason why it was not produced before the District Judge.
- We must now apply these principles to the EAW issued in this case. The frontispiece bears this declaration "This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order". In the light of our comments above, the regard the failure to delete the inapplicable option as without significance.
- The warrant identifies the requested person by name and date of birth; at Box (e) it describes the offences for which his return is requested in these terms:
"Balazs Asztalos in December 2005 with his daughters [A] born on 20 April 2001 and [B] born on 2 June 2003 moved to his mother [whose name and address were then given]. The accused because of his debauchery entrusted systematically the guidance [of] the children to his mother, he did not discharge his obligations arising from the education, care and guidance of the children, neglected them, make them drink alcoholic beverages, physically and sexually assaulted them several times. Prior [to the] summer of 2007, in a date indefinable more punctually, he forced his daughter [B] to fornication [in] such a way that he licked her sexual organ, reached into that, placed his own sex organ into the mouth of the child and ejaculated into it. Her sister [A] was forced to see these acts. Both children witnessed [their] fathers live sexual life with his then existing girlfriend".
- The warrant then identifies the relevant sections of the Hungarian criminal code which it is alleged he has offended against. It then identifies the "sexual exploitation of children" as being of the relevant framework offence.
- In our judgment it is quite clear upon the face of the warrant that the appellant is an accused. It says so in Box (e). Moreover, we are quite satisfied that from the wording of the EAW that his extradition is requested not for the investigation of an offence but for the purpose of the appellant being prosecuted. There is no need to go any further.
- However, Miss Lindfield, counsel for the requesting state, has asked us to consider such further information as has been supplied by the Prosecutor General's Office in Hungary by documents, dated 16 June and 30 July 2009, which are available to us in translation.
- These documents are quite lengthy and it would not be appropriate to reproduce them in full in this judgment. It is clear from reading those documents that the police have already taken statements from the children, from their adoptive parents and relatives, from the head of the children's home where they now reside and from other people and that they also have expert opinion from child psychologists. Furthermore, criminal proceedings have already been commenced against other members of his family for these and for similar with offences upon the same evidence. It is also clear from those documents that pursuant to Hungarian law after the police investigation has taken place, the accused person must be given an opportunity to answer the allegations and only after he has done so, will a decision will be taken whether or not to continue with the prosecution. This is quite a common procedure in civil law jurisdictions. Of course, as is pointed out in the prosecutor's document of 16 June, during the investigation there was no way to interrogate this accused, as he was in the UK.
- Mr Lewis argues that the Hungarian request to question the appellant demonstrates that he is only wanted for questioning and not wanted for the purpose of criminal proceedings. In our judgment, this argument is flawed for several reasons. First, Mr Lewis has looked outside the face of the warrant in an attempt to introduce an ambiguity into its purpose. We regard that as wrong in principle. It is contrary to the letter and spirit of the Framework Decision and Part 1 of the 2003 Act. Secondly, this argument is predicated upon the English practice of questioning a suspect during the process of police investigation and usually before charging and therefore before the commencement of the criminal proceedings. But we must not approach this issue as if all criminal procedures are modelled on our own. Quite clearly the Hungarian criminal procedure is different. We should recall the famous statement of Cardozo J in Loucks v Standard Oil Co of New York (1918) 224 NY 99: "We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home". Each country has its own procedures for prosecuting offences and the mere fact that the appellant will be – or in this case has been – interviewed upon his return is no indication whatever that this done in the course of a criminal investigation rather than a criminal prosecution.
- Mr Lewis makes other points; he stresses the reference in the documents to "a well grounded suspicion" that the accused person had committed the sexual assault, which he suggests is more appropriate to an ongoing investigation rather than a prosecution. He points out that the document translated as "the indictment" has not yet been signed. We are, however, alert to the danger of mistranslation, particularly of technical words, or of ascribing an inappropriate technical meaning to words which were not used in a technical sense in the original. Moreover, it seems reasonably clear that what is called the "indictment" would not be issued in proceedings in Hungary until after the interrogation of the accused which, as we have already said, had to await his return to Hungary.
- We note that the document of 30 July 2009 ends "the extradition of Balazs Asztaslos was requested to conduct the criminal proceedings pending against him for criminal actions". Although we do not want to take a single sentence out of context, this does seem to us to be a very clear statement that he was being sought for criminal proceedings and not only for investigation.
- We have considered the warrant, together with these other documents, and we are quite satisfied with that the appellant's extradition is sought for the purpose of being prosecuted for these offences and not just for questioning. We therefore reject Mr Lewis's first argument.
Issue Two: Are the offences of "abuse of a minor" extradition offences within section 64 of the Act?
- Mr Lewis had intended to submit that the warrant does not give sufficient particulars of the conduct alleged against him; he has not sought to pursue that matter as a separate point, so we move onto his second point, which is that with the two offences of abuse of a minor are not extradition offences within the meaning of the Act. Section 64 of the Act provides that an offence will be an extradition offence only if it comes within section 64(2) or (3). These provides:
"(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—
the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
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
the conduct occurs in the category 1 territory;
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;
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)."
- The requesting state has here certified that the conduct complained of amounts to the framework offence of 'sexual exploitation of children'. Mr Lewis concedes that this establishes that the alleged sexual assaults are framework list offences. However, he submits that the conduct described in the warrant as 'abuse of a minor' may not involve sexual abuse and therefore cannot be a framework list offence within section 62(2)(b).
- Mr Lewis submits that the offence of "abuse of a minor" identified in the warrant is not an extradition offence within section 64(3) either. It is clear from the statements of Lord Hope of Craighead in the Dabas case, at paragraph 53, that section 2(4)(c) of the Act does not require that the text of the foreign law be set out in the EAW. Nor need the judge examine the text of the foreign law to see if the conditions of section 64(3) are satisfied: see paragraphs 54 and 55 of Dabas. Therefore the answer to the question of whether the offence of "abuse of a minor" is an extradition offence depends on whether the conduct identified would amount to an offence under the law of England.
- Miss Lindfield submits that even if the conduct identified is non-sexual abuse, it would inevitably amount to cruelty of a child, pursuant to section 1 of the Children and Young Persons Act 1933 ('CPYA'). She submits it could also amount to a common assault, pursuant to section 39 of the Criminal Justice Act 1988 as well. The offence of cruelty to a child is made out against anyone who wilfully assaults, ill-treats or neglects a child in a manner likely to cause her unnecessary suffering or injury to health. In our view the abuse of the kind here alleged against the appellant would, if proved, amount to an offence contrary to section 1 of the CYPA. So we are satisfied that even if there is non-sexual abuse, the conduct alleged would amount to the English offence of cruelty to a child.
- Therefore the requirements of co-criminality set out in section 64(3)(b) of the Act is demonstrated. We are therefore satisfied that the other two offences are thus extradition offences. Accordingly, Mr Lewis must fail on his second issue.
Conclusion and Disposal
- The result is that in our judgment both issues raised by Mr Lewis must fail. The appeal against the decision of the District Judge is dismissed.
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