Enander v Governor of Brixton Prison & Anor [2005] EWHC 3036 (Admin)

Case No CO/3821/2005

[2005] EWHC 3036 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 16 November 2005

Strand

London WC2

B E F O R E:

LORD JUSTICE GAGE

MR JUSTICE OPENSHAW

Between

IN THE MATTER OFApplicant

An Application for a writ of habeas corpus ad subjiciendumApplicant

And in the matter of the Extradition Act 2003Applicant

JOHN ENANDERApplicant

-v-

Between

THE GOVERNOR OF HER MAJESTY'S PRISON BRIXTONRespondent

THE SWEDISH NATIONAL POLICE BOARDRespondent

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MR JOHN HARDY (instructed by Bankside Commercial) appeared for CLAIMANT

MR PETER CALDWELL AND MR BRIAN GIBBINS (instructed by Crown Prosecution Service) appeared for DEFENDANT

J U D G M E N T

LORD JUSTICE GAGE:

The

[1]applicant in this case applies for a writ of habeas corpus in the following circumstances. The applicant is the subject of a European Arrest Warrant ("an EAW"), issued by the second respondent, the Swedish National Police Board. The contents of that warrant assert that the applicant was, on 23 December 2003, convicted by a court at Svea in Sweden of a variety of offences in respect of which he was sentenced to imprisonment for one year and three months. The warrant makes clear that six weeks of that term was to be deducted, a period to reflect time served on remand.

[2]The EAW also asserts that the applicant is unlawfully at large from his sentence since he did not report to serve it when he was required to do so. The first respondent is the governor of Her Majesty's prison at Brixton. The first respondent does not appear and has played no part in these proceedings.

[3]The history of the matter is as follows. The EAW was issued on 1 June 2005 by Per-Uno Johannson, who is described as the Superintendent/Head of Sirene, Sweden. This is apparently the Swedish National Police Board.

[4]The applicant was arrested in London on the authority of the warrant on the same day on which it was issued, namely 1 June 2005. He was produced at Bow Street Magistrates' Court and remanded on conditional bail to attend an extradition hearing set down for 13 June 2005. However, an application to extend the permitted period within which the extradition hearing must start was made, and time extended so that the hearing in this matter was scheduled to take place before the extradition hearing. An undertaking has been given to the Magistrates' Court to notify it of the result of these proceedings so that, if the applicant is unsuccessful in this application, the date of the outstanding extradition hearing can be brought forward.

[5]The EAW was certified on 1 June 2005 pursuant to section 2(7) of the Extradition Act 2003 by the National Criminal Intelligence Service ("NCIS") as having been issued by a judicial authority of a category 1 territory, which has the function of issuing arrest warrants. The issue in these proceedings is one of jurisdiction. It is contended by the applicant that the second respondent is not a judicial authority and that therefore the EAW is invalid.

[6]It is first necessary for me to set out some of the statutory provisions. Throughout I shall refer to the Extradition Act 2003 as the 2003 Act. Section 2 defines a Part 1 warrant. Section 2(2) of the 2003 Act provides, so far as is material, as follows:

"A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains... (a) ... (b) the statement referred to in subsection (5) and the information referred to in subsection (6)."

[7]Sub-section 2(5) of the 2003 Act provides as follows:

"The statement is one that- (a) the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction of an offence specified in the warrant by a court in the category 1 territory, 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 sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence."

It is unnecessary in this judgment to set out the provisions of sub-section 2(6) of the 2003 Act.

[8]It is common ground between the parties, and is conceded by Mr Hardy on behalf of the applicant, that it is abundantly obvious that this part of the 2003 Act was to give effect to the Framework Decision of member states of the European community. That Framework Decision was made in June 2002. It is therefore necessary, because each party relies on provisions in the Framework Decision, for me to refer to some of them.

[9]First, I refer to the preamble to the Framework Decision. Paragraph 5 states:

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the 'cornerstone' of judicial cooperation."

[10]Next, in chapter 1, there are general principles set out. We have been referred by Mr Hardy to Article 1.1 and Article 1.2. They read:

"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."

[11]Mr Hardy referred the court to various other parts of the Framework Decision, but, in my judgment, it is only necessary to refer further to Article 6, headed "Determination of Competent Judicial Authorities":

"(1) The issuing judicial authority shall be the judicial authority of the issuing member state which is competent to issue a European arrest warrant by virtue of the law of that state. (2) The executing judicial authority shall be the judicial authority of the executing member state which is competent to execute the European arrest warrant by virtue of the law of that state. (3) Each member state shall inform the General Secretariat of the Council of the competent judicial authority under its law."

[12]As I have already said, the issue in this application is whether the second respondent is a judicial authority for the purposes of section 2 of the 2003 Act. It is submitted on behalf of the applicant that a police officer cannot possibly be a judicial authority. It is submitted on behalf of the respondent that it is a matter for each individual member state to designate what body is the judicial authority. Once that has been done and notified under 6(3) to the General Secretariat of the competent Council, then the executing authority of a member state must give effect to a request from another member state's judicial authority.

[13]There is one other piece of evidence to which I must refer, and that is evidence put in on behalf of the first respondent in the form of a fax attached to a statement made by Mr Ian Dawson, a solicitor employed by the Crown Prosecution service. He exhibits a fax from Kenneth Mandergrehn, Head of the International Liaison Office at the Swedish National Criminal Investigation Department, dated 28 June 2005. That fax, in the material part, reads:

"As to question of the competent judicial authority to issue a European Arrest Warrant. With reference to the Framework Decision on the European Arrest Warrant Article 1(2) a 'member State shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision'. According to Article 6(1) 'the issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue European Arrest Warrant by virtue of the law of that state'. According to Swedish Ordinance on the Surrender to Sweden according to a European Arrest Warrant issued on 18 December 2003, the sole Issuing Judicial Authority for the enforcement of a custodial sentence or other form of detention is the Swedish National Police Board. This was communicated on 19 December 2003 to the Council of the European Union in the Swedish Cover Note ... According to the rules of procedure of the National Police Board, the issuing judicial authority is delegated to the Head of the International Liaison Office (Nationella sambandskontoret) or any 'Kommissarie' (ie Superintendent/Chief Inspector/Inspector) acting as Head of the Schengen or Interpol co-operation. Mr Per-Uno Johansson is the Head of Sirene Sweden, and as such legally competent to issue a European arrest warrant in the name of the National Police Board. Put simply, the National Police Board is the issuing judicial authority, Mr Per-Uno Johansson being its representative, exactly as point i) in the EAW in question indicates."

[14]I return to section 22 of the Act of 2003 and repeat the material part of sub-section (2), which reads. "A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory."

[15]I have already referred to the fact that it is common ground that Part 1 of the 2003 Act was enacted to give effect to the Framework Decision. The following three factors are also common ground. First, it is common ground that the statute should be construed purposively. Secondly, the Framework Decision can be used as an aid to construing the Act. Thirdly, Article 6 clearly enables each member state to appoint its own judicial authority.

[16]The submissions on behalf of the applicant are as follows. The principal submission is that the term "judicial authority" must be construed as meaning an authority which would be recognised as judicial in terms of domestic law. It is submitted by Mr Hardy that, in the ordinary case, this country, as any other member state receiving such a request, will accept the request from a judicial authority which is designated by the requesting state. But, submits Mr Hardy, that does not mean that this country must accept a request by a requesting state's judicial authority, when on the face of the EAW, the judicial authority cannot possibly be a judicial authority. So, it is submitted, in this case a police inspector cannot possibly be a judicial authority, therefore the warrant cannot be a valid EAW under the terms of section 2 of the Act of 2003.

[17]In support of this main and principal submission, Mr Hardy relies on a number of subsidiary submissions. First, he points to the contrast between the expression "judicial authority" and the term "officer of the foreign state", which was previously used in section 26 of the Extradition Act of 1989. He submits that "judicial authority" in the circumstances of 2003 Act must be construed in a different way.

[18]Next, although it has not been in the forefront of his oral argument, in his skeleton argument Mr Hardy makes reference to the term "judicial authority" which appears in the Backing of Warrants (Republic of Ireland) Act 1965. In that Act judicial authority is defined as a court, a judge or a justice of a court or peace commissioner. Again, it is submitted that that is a guide to the construction that ought to be put upon the term judicial authority in section 2 of the Act of 2003.

[19]Next, and importantly, Mr Hardy submits that the Framework Decision itself, and in particular Article 6(1) and 6(2)actually refer to the words "judicial authority", and therefore the term used as it is in the 2003 Act (section 2) must be a body or person which has the characteristics of a judicial authority.

[20]The final submission made by Mr Hardy is to compare section 202 of the Extradition Act, where in sub-section (4), the following appears:

"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."

Mr Hardy submits that it would be very odd if the use of the words "judge, magistrate or other judicial authority" in that sub-section, which applies to the Part 1 and Part 2 categories, were to be construed in a different fashion from the term judicial authority in section 2 of the Act of 2003.

[21]For the respondents, Mr Caldwell's submissions are essentially short and simple. He relies upon Article 6 of the Framework Decision. His submission is that that Article makes it clear that it is for the requesting state to designate its own judicial authority. Once it has designated its judicial authority, then that is determinative of the matter so far as any member state is concerned when executing an EAW. Submits Mr Caldwell, to construe it in the way in which is contended for by Mr Hardy is to ignore the very words of Article 6(1) and (2) which contain the expression "by virtue of the law of that state". It is to avoid the sort of inquiry that is being made in this case that that was inserted. To do otherwise would mean that the purpose behind the Framework Decision would be defeated.

[22]Mr Caldwell has referred this court to a decision in R v Bow Street Magistrates' Court ex parte Van der Holst

[1986] 83 Cr App R 114

. But for my part, I have not found that decision of any great assistance in construing section 2(2) of the Act of 2003.

[23]For my part, attractively as Mr Hardy, for the applicant, has deployed his arguments, I am not persuaded by them. It seems to me that the clear purpose of the sections in the legislation was to put in place the provisions of the Framework Decision. It is common ground, as I have said, that that was the case, and I accept Mr Caldwell's submission that the object was to harmonise the arrest warrants throughout the member states of the European community. That part of the general principles, to which I have referred, seems to me to demonstrate that that was so.

[24]In my judgment, in all the circumstances, the expression "judicial authority" in section 2(2) must be read against the background of the Framework Decision and what it was intended to put in place. The Framework Decision leaves to the individual member state the right to designate its own judicial authority.

[25]Mr Hardy points out that the 2003 Act does not define the term "judicial authority". But, in my judgment, whilst that is not determinative of the proper interpretation, it points towards an acknowledgment that it is left to the member states to use their own discretion as to what will or will not be designated the appropriate judicial authority. In my opinion, any other interpretation of the term judicial authority would, as is submitted on behalf of the respondent, undermine the whole purpose of mutual trust and co-operation between member states, which is expressed in the Framework Decision.

[26]I should add that, in reaching this conclusion, I do not glean very much assistance from the use of the term "or other judicial authority" in section 202(4) of the 2003 Act. It does not seem to me that that carries the argument very much further forward one way or the other.

[27]I have already said that I do not derive a great deal of assistance from Ex parte Van der Holst. However, that decision does not in any way support Mr Hardy's arguments. Nor do I find any real assistance in the provisions of the Backing of Warrants (Republic of Ireland) Act 1965. In that statute it was felt necessary to define the term "judicial authority". It was not felt necessary to do so in the 2003 Act.

[28]As I have indicated, the factor which I have found most helpful in reaching my conclusion is the provisions of the Framework decision itself, and in particular Articles 6(1), (2) and (3). Having reached that conclusion, the evidence demonstrates that the respondent is the relevant judicial authority and that, for these purposes, that authority was delegated to one of its officers, Per-Uno Johansson. For these reasons, in my judgment, the application must be rejected.

[29]MR JUSTICE OPENSHAW: I agree. The essential flaw in the applicant's argument, to my mind, is in seeking to define the expression "judicial authority" in section 2(2) of the Extradition Act 2003 as if it stood in isolation; whereas, in my judgment, plainly it is to be interpreted in the light of the Framework Decision of the European Union passed on 13 June 2002, which Part 1 of the Act sought to implement. By Article 6(3) it is for the requesting state to designate who is the competent judicial authority within that state. That concept underpins entirely the co-operation and trust between member states on which the whole scheme of the European Arrest Warrant is based.

[30]Sweden having validly appointed the Swedish National Police Board as the judicial authority to issue warrants in respect of persons already convicted of crime after judicial trial, this court, it seems to me, is bound to recognise the validity of that warrant. Any other interpretation of section 2(2) of the 2003 Act would require each executing state to investigate whether the function of issuing the warrant in the requesting state was undertaken by someone who would in this country be recognised as a person exercising a judicial function. Such an inquiry would be attended with considerable practical difficulty, it would be fraught with uncertainty, and would deprive the Act of its efficacy and cannot, in my judgment, have been intended by Parliament.

[31]Accordingly, the challenge to this warrant, in my judgment, is bound to fail.

[32]MR HARDY: My Lords, this is, if I may call it this, an old fashion habeas corpus application. It follows that no certificate of a point of law of general public importance is required to take the matter to their Lordships. However, if I were to receive instructions to apply to take the matter to their Lordships I would need first of all the leave or the refusal of leave by this court to enable me either to appear before their Lordships or at least petition them for leave. Under the 1960 Administration of Justice Act I have 14 days in which to make such an application to this court. I am conscious that this court may not be sitting for the rest --

LORD JUSTICE GAGE: As presently constituted, it will not be sitting beyond Friday.

[34]MR HARDY: May I, in those circumstances, seek your Lordship's leave to make a written application, if I am instructed to do so, which can be dealt with on papers.

LORD JUSTICE GAGE: I cannot see any reason why you should not be given leave to make a written application.

[36]MR HARDY: I am very grateful. I do not make the application now because I need to take instructions, I need to give advice and I need to digest the relatively pithy judgments that your Lordships have given. If then within 14 days I may make an application on the papers for leave.

LORD JUSTICE GAGE: Yes, certainly.

[38]MR HARDY: I am grateful.

[39]MR CALDWELL: My Lord, I make no observation in relation to that, which is a matter within the provenance of the applicant. However, there is an application on behalf of the respondent. This is effectively an appellate challenge within proceedings brought under the Act. It is not an appeal by way of the statutory mechanism within the Act.

LORD JUSTICE GAGE: No, it is not.

[41]MR CALDWELL: Therefore, I feel bound, so far as I am able, to make an application for costs on behalf of the respondent, who has met the appeal, or the application at least, before your Lordships today.

[42]MR HARDY: My Lord, I cannot resist that application. I would only make this observation, that when the matter was previously before this court, on 29 June, Kennedy LJ made an order that the respondent pay the costs of the applicant for that day. So there should be some set-off involved.

LORD JUSTICE GAGE: There should be a set-off, not some set-off.

[44]MR CALDWELL: That may be a matter about which if taxation is allowed, both parties can notify the administration of and apportionment can be determined.

[45]MR HARDY: I do not invite your Lordships formally to make an order of set-off. Both parties will give effect to the respective orders of each court.

LORD JUSTICE GAGE: I am sure that can be dealt with sensibly and administratively between the two of you. There is no reason why we should not make an order for costs -- that you pay the respondent's costs. Thank you both very much.