Seddon, R. v [2009] EWCA Crim 483

Case No 2008/2972/D1[2009] EWCA Crim 483
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 10 March 2009
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE KING
HIS HONOUR JUDGE GORDON
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
NEIL SEDDONAPPEAL UNDER S.13 ADMINISTRATION OF JUSTICE ACT 1960
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr C Nicholls QC and Mr C Daw appeared for AppellantMr J Lewis QC and Mr n Booth appeared for CrownMr D Perry QC appeared for Secretary of State
J U D G M E N T
[1]THE VICE PRESIDENT: The issue in this appeal is the extent of the rule of specialty which is preserved by the Extradition Act 2003 in relation to inward extraditions from category 1, that is to say European Union territories. What is in question principally is the construction of section 146(3)(b) of the 2003 Act.[2]Some time ago in October 2001 this defendant pleaded guilty in the Crown Court at Minshull Street in Manchester to the offence of blackmail. Sentence was postponed pending the trial of one or more co-accused. During that interval the defendant absconded to Spain and thus failed to appear for sentence when he should have done. In due course he was located in Spain where by then he was serving a sentence of imprisonment for Spanish offences. A warrant was issued in the United Kingdom under Part 3 of the Extradition Act 2003. That had the effect under European rules for co-operation, to which we shall need to come, of seeking his extradition back to the United Kingdom from Spain so that he could be sentenced here. In due course, as we understand it after the completion of his Spanish sentence, he was duly surrendered.[3]On his return to Manchester the judge in the Crown Court ruled that he was able to deal with the defendant not only for the blackmail but also for the statutory offence, contrary to section 6 of the Bail Act 1976, of failing to answer to his bail. The judge accordingly passed a sentence of 18 months for the blackmail and he added four months consecutive for the bail offence. The issue in this appeal is whether the judge had any power to deal with the Bail Act offence or whether he was confined to the blackmail. There could be no complaint about the sentence for the Bail Act offence if there was power to deal with it. The argument that there was no power to deal with the Bail Act offence is founded upon the contention that the defendant had not been extradited for that offence but only for the blackmail.[4]Extradition is a process involving agreement between Sovereign States. The requesting State has no power to send its policemen into the requested State to arrest a prisoner who has run away there. That would be a direct infringement of the sovereignty of the requested State. So the requesting State depends upon the voluntary co-operation of the State where the fugitive is now to be found. Unsurprisingly States found that they generally had a common interest in A surrendering prisoners to B if B asked, providing that B entered into a reciprocal agreement to surrender those whom A wanted when the boot was on the other foot. On the other hand, States generally wished to retain the power to refuse to surrender in some circumstances. To take simple but non-exhaustive examples, they might wish to refuse if the conduct complained of was not a crime in the requested State, or if it was, for example, a crime of a political character where the interests of the two States diverged.[5]Historically, extradition was generally achieved through separate bilateral treaties between States. Commonly the power of the requested State to refuse extradition in some circumstances was preserved by the terms of such treaties. To give effect to that practice, the principle evolved that if A requested a prisoner from B, A would identify the offence for which the prisoner was wanted, so that B could decide whether there was a sufficient reason to refuse to surrender him. With that went the practice that if surrendered the prisoner could only be dealt with for the offence for which he had been sought, otherwise plainly the surrendering state's power to refuse would be circumvented. That principle is called specialty. It has been recognised in this country by successive statutes dealing with our local rules for extradition both inward and outward. The rationale for it may owe something to the protection of the individual, but it plainly lies principally in the international obligation between States.[6]Within the area of the European Union, the old profusion of bilateral treaties is now replaced by what is in effect a general agreement between Member States. It takes the form of a European Council Framework Decision dated 13th June 2002. Within the limits set by the Framework Decision the process of extradition between Member States is greatly simplified. The request for surrender now takes the form of the issue of a common form European arrest warrant. Member States undertake to give effect to it by surrender subject to defined exceptions. Moreover, there is a list in Article 2 of core criminal behaviour which all States recognise as justifying surrender without the necessity for individual proof of double criminality.[7]The Framework Decision is binding upon Member States through Article 34(2)(b) of the Treaty on the European Union. That means in effect that the Framework Decision amounts to a multi-lateral treaty creating international obligations binding upon each of the Member States. It is not however directly effective as part of the law of individual Member States. Under Article 34(2)(b) it is left to the national authorities to decide the form and methods by which effect shall be given internally to the international obligation created by the Framework Decision. In the language of the English law, it is left to Parliament to decide how to transpose the Framework Decision into English law.[8]Parliament's response in this country is to be found in the Extradition Act 2003. That Act now makes separate provision for extradition as between the United Kingdom and other members of the European Union, which are known in the Act as category 1 territories. Outward extradition to European category 1 territories is dealt with by Part 1 of the Act, sections 1 to 68. Inward extradition to the United Kingdom from category 1 European territories is dealt with by sections 142 to 149 contained within the general inward provisions of part 3 of the Act. We perhaps ought to say in passing for the sake of completeness that the 2003 Act deals also with extradition in relation to other non-European territories. We are not here concerned with them. They are dealt with as to outward cases in Part 2 of the Act and as to inward cases in sections 150 to 151 and the remainder of Part 3.[9]The Council Framework Decision contains among its recitals the following as (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..."
However, the Decision preserves the principle of specialty and it does so by explicit provision in Article 27. Article 27(1) provides that individual Member States may in effect waive the principle of specialty generally. That, however, is not a course which has been adopted by more than two of the European Union members and it is not a course which has been adopted by either the United Kingdom or Spain.[10]Leaving that possibility therefore aside, the remainder of the relevant parts of Article 27 provide as follows:
"(2) Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. (3) Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunities to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) the offence is not punishable by a custodial sentence or detention order; (c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty; (e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the specialty rule, in accordance with Article 13; (f) when the person, after his/her surrender, has expressly renounced entitlement to the specialty rule with regard to specific offences proceeding his/her surrender."
There follow provisions for the manner of renunciation which we need not recite. Lastly:
"(g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4."
We should add paragraph (4) which provides as follows:
"A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused [upon defined grounds set out in Article 3 or 4 in other cases]."
[11]When, however, one comes to English law and the transposition of the Framework Decision, the position is as set out in section 146 of the 2003 Act:
"(1) This section applies if a person is extradited to the United Kingdom from a category 1 territory in pursuance of a Part 3 warrant. (2) The person may be dealt with in the United Kingdom for an offence committed before his extradition only if— (a) the offence is one falling within subsection (3), or (b) the condition in subsection (4) is satisfied. (3) The offences are— (a) the offence in respect of which the person is extradited; (b) an offence disclosed by the information provided to the category 1 territory in respect of that offence; (c) an extradition offence in respect of which consent to the person being dealt with is given on behalf of the territory; (d) an offence which is not punishable with imprisonment or another form of detention; (e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal; (f) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence. (4) The condition is that the person has been given an opportunity to leave the United Kingdom and— (a) he has not done so before the end of the permitted period, or (b) he has done so before the end of the permitted period and has returned to the United Kingdom. (5) The permitted period is 45 days starting with the day on which the person arrives in the United Kingdom."
[12]The difficulty in the present case arises from the fact that the language of section 146(3) of the Extradition Act 2003 is different from that of Article 27(3) of the Framework Decision. In particular there is no direct equivalent in the Framework Decision of section 146(3)(b). The specialty principle is, however, plainly recognised not only within section 146 but also elsewhere throughout the Extradition Act and both in relation to category 1 European territories and also to others. In relation to European category 1 territories, for example, specialty is made by section 11(1)(f) and 17, a potential bar to outward extradition from the United Kingdom to a category 1 territory. We need not set out other provisions of the Act which also recognise the principle.[13]Next, the Framework Decision contains in Article 8 specific requirements as to the contents of the extradition request, constituted as it now is in the form of the European Arrest Warrant. Article 8 provides that the European Arrest Warrant shall contain the following information:
"(a) the identity and nationality of the requested person; (b) the [contact details] of the issuing judicial authority; (c) 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; (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; (g) if possible, other consequences of the offence."
In the present case, as a matter of record, the defendant Mr Seddon was not only sought in relation to his conviction in Manchester for blackmail, but was also sought in consequence of allegations made against him in Derbyshire of causing death by dangerous driving and conspiracy to pervert the course of justice, for which offences he had not yet been tried.[14]The European Arrest Warrant in this case, as one would expect, faithfully follows the general form required by Article 8 of the Framework Decision which we have just set out. It contains separate boxes of information broadly corresponding to the sub-paragraphs (a) to (g) of Article 8. Therefore in section B of the Warrant the document identifies the domestic English warrants on which the request for extradition is based. In relation to the Manchester proceedings what it says is:
"Warrant of arrest dated 7 May 2002 Issued at Manchester Minshull Street Crown Court for failing to answer bail in respect of the offence of blackmail."
It says nothing about any allegation of a Bail Act offence, save for the words "for failing to answer bail" in the recital which we have just set out. Similarly, in the box lettered (C) as to length of sentence, the warrant sets out that blackmail carries imprisonment not exceeding 14 years and goes on to set out the relevant penalties for the Derby offences. There is no reference to any potential penalty for the Bail Act offence. Under (E), which by Article 8(1)(e) requires a description of the circumstances in which the offence was committed, the warrant begins by a statement of the offences for which surrender is sought:
"Offences. (i) Blackmail contrary to section 21(1) of the Theft Act 1968; (ii) Causing death by dangerous driving, contrary to section 1 of the Road Traffic Act 1988; and (iii) Conspiracy to pervert the course of justice contrary to common law. This warrant relates to in total: 3 offences. The person in respect of whom this warrant is issued is unlawfully at large after conviction by a court in the United Kingdom, for the extradition offence of blackmail. The warrant is issued with a view to his arrest and extradition to the United Kingdom, for the purpose of being sentenced for the offence - this statement is made pursuant to section 142(5) of the Extradition Act 2003."
There follows other statutory material but none of it contains any assertion that he is required for surrender in relation to any offence contrary to the Bail Act.[15]There then follow two pages or so describing the facts of the blackmail offence. That quite lengthy description concludes with this sentence:
"On 7 May 2002, Seddon failed to answer his bail at Minshull Street Crown Court and a bench warrant was issued for his arrest."
It follows that the request for extradition in the form of the European Arrest Warrant contains no indication whatever that the defendant is required in relation to any Bail Act offence. Indeed, it does not contain any assertion that such an offence exists. What it does do is to refer in passing, in section B and in the concluding statement of the facts, to the assertion that he has failed to answer his bail and it also contains in section E the assertion that the defendant is "unlawfully at large after conviction".[16]It is common ground before us that in this country a statute of the United Kingdom Parliament governs our law and must be given effect. If it has departed from international obligation as set out in the Framework Decision that does not relieve the court of the duty to give effect to it. However, as is also common ground, the duty of the court is, if construction be in doubt, so to construe the statute as best to comply with the international obligations which this country has undertaken. Little authority need be cited for those propositions but they are plainly and conveniently set out, amongst many others, in two extradition cases: Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 and Dabas v High Court of Justice in Madrid [2007] 2 AC 31.[17]It follows that the question in the case resolves itself into this. Looking at the terms of section 146(3)(b), was the Bail Act offence committed by Mr Seddon "an offence disclosed by the information provided to [Spain] in respect of the extradition offence?" That in turn means asking how the words of section 146(3)(b) are to be construed. Do they include any piece of factual information contained in the warrant, or must they be given a more limited construction restraining them to a category of information which has been provided as part of the information relating to the conduct complained of as constituting the extradition offence?[18]Because the case raised possible questions of policy, we directed that notice be given to the Secretary of State for the Home Department and in consequence she has been represented here by Mr Perry QC. He and Mr Nicholls QC on behalf of the defendant below combine in the assertion that the effect of this warrant was not to give the judge power to deal with the Bail Act offence. Both the defendant and the Secretary of State contend that section 146(3)(b) should be construed as permitting the surrendered person to be dealt with in addition to the extradition offence itself under 3A, two groups of offences only. They are, it is contended:- one, lesser offences included within the extradition offence for which surrender had been sought, for example manslaughter where the extradition offence for which surrender is sought is murder or similar examples; and two, an incidental offence disclosed within the conduct complained of as constituting the extradition offence for which surrender is sought. An example, it is submitted, might be a European Arrest Warrant which seeks surrender for an offence of robbery where the facts of the robbery disclosed in the warrant reveal that the robber was armed at the time. In such a case it is submitted section 146(3)(b) would permit the prosecution after return for the firearms offence.[19]Mr Perry and Mr Nicholls combine in submitting that thus construed there is in fact no conflict whatever between section 146(3)(b) and Article 27(3). In support of that they point to the undoubted fact that in extradition generally the focus is not upon the juristic ingredients of any particular offence in the law of any individual State, but rather is upon the conduct complained of. That is a necessary approach to extradition because every State may define its offences differently and its legal frameworks may well differ significantly. It is necessary to focus upon conduct rather than the juristic ingredients of an offence even where there are only two party States in a bilateral treaty. It is plainly even more essential in a multi-lateral treaty were 20 or more different systems of law are co-operating.[20]We agree that conduct rather than the legal ingredients of an individual offence constitutes the test in extradition in England and indeed generally. A comprehensive explanation of the reasons for that is to be found in the judgment of the House of Lords in Norris v Government of the United States of America [2008] 1 AC 920. Although that was of course a category 2 rather than a European case, it is a helpful explanation of the manner in which conduct is the focus of extradition generally. Moreover, Article 2 of the Framework Decision plainly supports that general approach. Article 2 lists the core criminal conduct, in very broad generic terms, which can found a request for surrender as between European States without any investigation of double criminality. It does so in terms which begin:
"The following offences..."
Thereafter it sets out what are not, strictly, offences but generic forms of criminal conduct.[21]Whether the general principle that the focus in extradition is upon conduct rather than the legal ingredients of any particular offence completely solves the problem of the ambit of section 146(3)(b) may remain open to a degree of doubt. There is, we suspect, bound always to be scope for cases at the margins. As explained in the context of category 2 cases in Norris, it may well be that the line is likely to run between the broad conduct approach on the one hand to what is contained in the warrant, but ignoring on the other mere narrative background contained in it. That, however, it is not, as it seems to us, necessary for us to decide. Nor, as it seems to us, does it necessarily follow from the principle which we have set out that there is perfect symmetry between Article 27 and section 146(3)(b). It may be that section 146(3)(b) represents a modest but useful relaxation in the specialty rule to embrace the kinds of lesser included or incidental offences which Mr Nicholls and Mr Perry say it includes. Alternatively, it may be that such would be within Article 27 in any event on the basis that they fall within the concept of the conduct for which the defendant is sought. Whichever of those analyses be correct, what we are quite sure it is impossible to do is to adopt the argument of Mr Lewis QC for the prosecution. That is an argument that because section 146(3)(b) departs to such extent as it does from Article 27, it follows that proceedings for any offence to which there is any reference at all in the European Arrest Warrant become permitted. That, we are quite satisfied, is not what section 146(3)(b) means. Indeed, in its own terms it requires that the exception be limited to an offence disclosed by the information provided in respect of the extradition offence. The form of the warrant makes it perfectly clear in this case what the defendant was sought for. He was sought for the three offences which were specifically there listed and those did not include any Bail Act offence. To the extent that there was a reference in the course of the warrant to Mr Seddon being "unlawfully at large", that we have no doubt was because of the terms of section 142(5)(a) as it then existed prior to its amendment by the Police and Justice Act 2006. As it then existed, section 142(5)(a) required the warrant to contain a statement that the person in respect of whom it was issued was alleged to be "unlawfully at large after conviction of an extradition offence." In other words, the reference to Seddon being unlawfully at large did not amount to an assertion that he had committed the independent Bail Act offence which is in question before us.[22]We are quite satisfied that section 146(3)(b) does enable an English court to proceed after surrender against the surrendered person for a lesser included offence. As to the possibility that it enables a court to proceed in relation to what we have described as an ancillary offence, described as part of the conduct complained of in relation to the extradition offence, the position is less clear. The contrast between section 146(3)(b) on the one hand and section 150(3(b) in relation to commonwealth countries is, as it seems to us, principally the result of the historically separate development of extradition rules relating on the one hand to commonwealth countries with a system assumed to be similar to our own and, on the other, extradition relating to other foreign countries. The contrast might suggest that in European cases a rather wider freedom to proceed in relation to other offences exists than simply lesser included offences - that might embrace the robbery and firearms offence example. It is not necessary for us to decide it and what is perfectly clear is that much the better practice is for the extradition request, namely the European Arrest Warrant, to state specifically where prosecution for such an offence is contemplated.[23]We certainly agree that the object of the Framework Decision was to simplify European extradition and to relieve it of the excessive technicalities which often characterised extradition based upon bilateral treaties in former times. We agree also that it may very well be that there would in fact be no possible basis for objection on the part of Spain to this defendant being dealt with for this Bail Act offence in addition to the blackmail. But the whole basis of extradition is international co-operation between Sovereign States and that is based upon reciprocity. Whilst the Framework Decision plainly set out to simplify, it did not go so far as to make all requests for surrender automatically executable. On the contrary, it preserved the concept of specialty. Even if in this instance there could be little likelihood of objection, it is important in extradition cases that the requested State knows for which offences the defendant is wanted and is to be surrendered. Otherwise the requested State would be in the position of doubt as to what it ought to read into the lengthy narrative commonly contained in what is frequently a very discursive document, that is to say the European Arrest Warrant. It is of interest to note that Spain, in legislating internally to give effect to the Framework Decision, has reproduced Article 27 verbatim and without any expansion whatever. Exactly what that means in Spanish domestic law is not in evidence before us.[24]Exercising our duty to construe section 146(3)(b) so far as possible consistently with the international obligations which this country has undertaken through the Framework Decision, it is quite clear to us that the section did not extend to permit Mr Seddon to be dealt with in Manchester for the Bail Act offence which was wholly extraneous to and additional to the extradition offence of blackmail and to which there was the merest passing reference in the warrant. All of that follows, as it seems to us, from the essentially reciprocal nature of extradition to which we have already referred.[25]We are unable to agree with Mr Lewis that section 146(3)(b) is so clear that it can only be construed to include any offence to which there is reference, however tangential, in the European Arrest Warrant. The section does, we are satisfied, beg the question which we are asked in this case and it must therefore be construed, and it must be construed so far as possible consistently with the Framework Decision.[26]We ought to advert briefly to a supplemental argument which Mr Lewis helpfully developed. It was that it is difficult in practice to see how there can easily be any European Arrest Warrant extradition request in relation to a bail offence. The argument runs as follows: 1. The Bail Act offence created by section 6 of the Bail Act is punishable as if it were a contempt of court. It is only when it is thus punishable that it carries a sufficient sentence of imprisonment to make it an extradition offence. 2. It follows that the decision as to whether to proceed is one for the court rather than principally for whichever prosecuting authority has prosecuted the substantive offence. 3. The issue of a bench warrant by a Crown Court directing the arrest of a defendant who is absent without leave does not by itself constitute a decision to accuse him of the Bail Act offence. 4. Therefore there is no warrant sufficient to meet the requirements of section 142(4)(a), nor is there any accusation sufficient to meet the requirements of section 142 (4)(a).[27]We agree with propositions 1 to 3 but not with proposition 4. A European Arrest Warrant is applied for in this country initially by the prosecution. That may be the Crown Prosecution Service or it could of course be some other prosecuting agency. The application has to be made within this country to a District Judge (Magistrates' Court), that is because the Framework Decision requires that the process be a communication from judicial authority to judicial authority. If it is granted by the District Judge the warrant is then transmitted through the offices of the Serious and Organised Crime Agency. As it seems to us, when an application is made by the prosecution in a case where a bench warrant has been issued, which will no doubt be the ordinary case, it is perfectly open to the applicant prosecuting authority to seek to include in the European Arrest Warrant a request for surrender for the Bail Act offence also. That by itself sufficiently amounts to an accusation. That a broad construction should be given to the expression "accusation" appears clearly from the speech of Lord Steyn in re Ismail [1999] 1 AC 320 in particular at 326F to 327G. To take that course does not in any sense mean that the prosecuting authority is preempting the decision of the court. The court remains able to make up its own mind how to proceed if and when the defendant is surrendered. Nor, as it seems to us, does the fact that the process is, as provided for by section 6 of the Bail Act, as for contempt of court make any difference to that conclusion. We are supported in that conclusion by the terms of the Practice Direction (Bail: Failure to Surrender) [2004] 1 WLR 589, which contains the reminder at paragraph 1.13.9 that whilst the court itself initiates proceedings by its own motion the court will be invited to take proceedings by the prosecutor if the prosecutor considers proceedings are appropriate.[28]That course, of including in the EAW a request for surrender in relation to the Bail Act offence is the course which should be taken wherever there is a realistic possibility that the court should have open to it upon surrender process not only for the substantive offence but also for the bail offence. We draw attention to the existence of the alternative procedure referred to in section 146(3)(c) of the 2003 Act. It remains open to any appropriate judge to seek specific consent from the requested State to proceedings for any specific offence and even after surrender. Section 149(1) makes clear that any judge of the Crown Court is included within the definition of "appropriate judge". It follows that any judge of the Crown Court can initiate a request to the requested State for specific consent to process for an additional Bail Act or for that matter any other offence. If he or she were to do so, he should do so ordinarily through counsel for the Crown who will, via the prosecuting authority, transmit the request through the Serious and Organised Crime Agency. That however is not, as it seems to us, by any means the preferred route because it will inevitably lead to undesirable delay. Much the best course is to include the reference to the Bail Act offence specifically as one of the extradition offences for which surrender is sought and so to say plainly from the beginning in the European Arrest Warrant.[29]For all those reasons it follows that since this European Arrest Warrant did not seek surrender for the Bail Act offence and since section 146(3)(b) on its proper construction does not extend in Mr Seddon's case to the Bail Act offence, the conviction and sentence in the court below were without jurisdiction and must be quashed. We make no further order beyond that.[30]Is there any consequential order which anybody needs?[31]MR NICHOLLS: My Lord, no.

Cited in 9 later judgments