Convery v High Court of Rotterdam [2005] EWHC 566 (Admin)

Case No CO/6314/2004[2005] EWHC 566 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Tuesday, 22nd February 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE NEWMAN
Between
MARK THOMAS FREDERICK CONVERYAppellant-v-
Between
HIGH COURT OF ROTTERDAMRespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR E ELLIS (Solicitor) & the appellant in person appeared for APPELLANTMR P CALDWELL (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©

LORD JUSTICE MAURICE KAY:

We

[1]have before us an appeal under section 26 of the Extradition Act 2003. The person sought to be extradited is Mark Thomas Frederick Convery.[2]It is necessary to give a brief outline of recent history. On 8th July last year Mr Convery was arrested by the investigating authorities in this country. On 9th July he was charged with one or more offences related to the importation or supply of drugs. On 10th July he was remanded in custody in relation to those charges. That remained the position until 16th September, when the prosecution offered no evidence against him in the magistrates' court at the time when his committal for trial was to be considered. That ended the domestic proceedings. Five days later, on 21st September, a European arrest warrant was issued by the Dutch authorities in Rotterdam. It itemises four alleged offences in these terms:
"1. Export from the Netherlands of approximately 124 kilos of MDMA and/or amphetamine on or about 7 July 2004, committed in Rotterdam and/or Venlo and/or Vierlingsbeek, or at least (elsewhere) in the Netherlands and/or United Kingdom, or at least the commission of preparatory acts for this offence. 2. Export from the Netherlands of (several) quantities (for trafficking purposes) of MDMA and/or amphetamine in the period from 19 March 2004 to 1 July 2004, committed in Rotterdam and/or Venlo and/or Vierlingsbeek, or at least (elsewhere) in the Netherlands and/or United Kingdom or at least the commission of preparatory acts for this offence/these offences. 3. Export from the Netherlands of approximately 348 kilos of hemp on or about 7 July 2004, committed in Rotterdam and/or Venlo and/or Vierlingsbeek, or at least (elsewhere) in the Netherlands and/or United Kingdom. 4. Export from the Netherlands of (several) quantities (for trafficking purposes) of hemp in the period from 19 March 2004 to 1 July 2004, committed in Rotterdam and/or Venlo and/or Vierlingsbeek, or at least (elsewhere) in the Netherlands and/or United Kingdom."
That arrest warrant ultimately led to the arrest of Mr Convery in this country on 21st October. He appeared before a district judge in Bow Street Magistrates' Court on the following day, 22nd October, and his identity was established as being that of the person named in the warrant.[3]On 2nd November the matter resumed in the magistrates' court and the case formally began. The district judge considered certain matters and was satisfied that the offences specified in the warrant were extradition offences. The hearing was not completed, it was adjourned, and Mr Convery was granted conditional bail for the first time. Unfortunately, there were some problems concerning one of the conditions of his bail and he was not finally bailed until 16th November after a variation of conditions.[4]There was a further hearing on 23rd November. The matter remained incomplete in the magistrates' court and it was directed that the adjourned hearing should take place on 6th December.[5]On 6th December the matter resumed before a district judge. It was concluded on that occasion with an order that Mr Convery be extradited to the Netherlands pursuant to the Extradition Act 2003. On 10th December he issued an appeal to this court under section 26 of the 2003 Act. The appeal was first listed on 21st December before Tuckey LJ and Field J. They ordered that the appeal had formally commenced on that occasion, but adjourned the hearing until today, when adequate time could first be found for it. They gave some other directions.[6]On 21st December Mr Convery was not represented by counsel. His solicitor, Mr Ellis, was in attendance. Mr Ellis does not have a right of audience in this court. We have read what Mr Ellis says about what transpired on that occasion. It seems that he was not accorded a right of audience, although of course he was heard on some matters, if only to decide whether he should be accorded such a right.[7]The directions included an order that the appellant file and serve a skeleton argument by 12th February 2005, and indeed that direction was formally observed in that Mr Ellis submitted a skeleton argument and other documents. He has since that date submitted a further skeleton argument and further documents. In these documents he purports to describe the history of events since July and to raise a number of issues.[8]I regret to say that Mr Ellis' documents are as partisan and immoderate as can ever have emanated from a legal practitioner for use in these courts. They are in part incoherent and they contain a great deal that is irrelevant. It is plain from any reading of them that what excites Mr Ellis is the Extradition Act 2003 itself, which he describes in his latest skeleton argument as "a total abdication of responsibility for the individual by all authority. It amounts to a policy of 'hand over the body to a foreign power with no questions asked'". There and elsewhere, and for the brief time for which we allowed him to seek a right to make submissions today, he repeatedly attacks the Act, the Government and Parliament for having enacted it, and, on a wholesale basis, the judiciary. It is his opinion that there is called into question the fitness to sit of every single judge in this jurisdiction for as long as this Act remains on the statute book. In addressing us briefly, he used expressions such as "across the country we are outraged" and "it brings into question the integrity of the judiciary as a whole" -- the "it" there referred to, as I understand it, is the willingness of courts to operate the 2003 Act.[9]Having heard Mr Ellis for a short time on the question whether he should be permitted to make submissions on behalf of Mr Convery, we decided that he should not be so permitted because of his obvious partiality and unreliability so far as the real issues in this case are concerned. His skeleton argument, as I have said, was an attack, something of an intemperate rant, against the Extradition Act. It is not for us to consider such submissions. It is an Act which we can interpret and apply. We have no power to do otherwise. Accordingly, from there on Mr Convery represented himself. He did so with obvious passion and courtesy. Having been put in that difficult position, he did the best that he could possibly could.[10]He is very critical of both the British and Dutch investigations. He accuses them of bad faith and malice. He passionately protests his innocence. However, as we have pointed out to him on several occasions in the course of submissions, we have no power to investigate the quality of either investigation or the strength of the evidence here or in Holland. Under the 2003 Act the powers of the court in relation to a request from a Category 1 country are limited so as to provide a form of fast-track extradition, provided of course that the requirements of the Act are satisfied.[11]The first such requirement was that of identification under section 7, and, as I have indicated, that was achieved at the hearing on 22nd October. There are procedural requirements under the Act, to which I shall return. In addition, it is necessary for the district judge to decide whether the offence or offences specified in the warrant amount to an extradition offence or offences pursuant to section 10. There are certain statutory bars to extradition set out in section 11 and amplified in sections 12 to 20. By section 21, the district judge is required to decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. If he decides the question in the negative, he must order the person's discharge. If at that stage he decides the question in the affirmative, he must order the person to be extradited to the Category 1 territory in which the warrant was issued.[12]So far as the present case is concerned, once the tendentious points about the policy of the Act, the conduct of the investigation and the quality of the evidence are put aside as irrelevant, as they must be, there are just two points made by Mr Convery which require consideration. The first relates to the procedure, and in particular to time limits.[13]I have already outlined the chronology of the proceedings. In the magistrates' court temporal requirements are to be found in section 8 of the 2003 Act. One of those requirements is that the date fixed for the substantive hearing must not be later than the end of the permitted period, which is 21 days starting with the date of the arrest. However, it is provided by section 8(5) that if, before the date fixed under subsection (1), a party to the proceedings applies to the judge for a later date to be fixed and the judge believes it to be in the interests of justice to do so, he may fix a later date, and this subsection may apply more than once.[14]The material before us does not enable me to say that these requirements were not satisfied. We have not been shown copies of any orders or rulings made by the district judge on any occasion, but it is plain from what we have been told that the formal hearing in the magistrates' court began on 2nd November, was then twice adjourned and was completed on 6th December. If there had been an irregularity, it would be for the appellant to establish it. On 6th December Mr Convery was represented by solicitor and counsel. We are not aware of any point having been taken as to time limits on that occasion. It is not for us to speculate. Suffice it to say that there has not been established any failure to comply with the procedural and temporal requirements which apply in the magistrates' court.[15]The position regarding the appeal to the High Court is that the appellant's notice was issued within the appropriate time. By the practice direction 52PD22.6A(3) the appeal in the High Court should begin within 40 days after the arrest. Plainly, it did not. Moreover, it could not because at a point 40 days after the arrest there was nothing to appeal against. However, as with the procedure in the magistrates' court, there is a subparagraph in the practice direction which permits the High Court to extend time in the interests of justice. We apprehend that that is what occurred on 21st December. It is implicit in the order that the appeal had formally commenced and was being adjourned. Even if there had been an oversight in that regard on 21st December, and that is an over-generous interpretation of the order of that date, in my judgment it would be wholly appropriate for this court to extend time now. The appeal came on expeditiously on 21st December. For a variety of reasons, it could not be completed on that day. The delay from then until now is not excessive and so I conclude that there has been no failure to comply with the temporal demands of the Extradition Act or the practice direction.[16]The second legal point which Mr Convery takes is in relation to the extradition offences and the finding under section 10 by the district judge that such offences were listed. This is a technical point and one of some complexity.[17]The key to whether an offence is an extradition offence for the purposes of section 10 is to be found in section 64, which provides as follows:
"(1) This section applies in relation to conduct of a person if - (a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct, or (b) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct and he has not been sentenced for the offence. (2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied - (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) 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 - (a) the conduct occurs in the category 1 territory; (b) 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; (c) 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). (4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied - (a) the conduct occurs outside the category 1 territory; (b) 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); (c) in corresponding circumstances equivalent conduct would constitute an extraterritorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment."
I do not need to refer to subsections (5) and (6), which define conduct which might also constitute an extradition offence, but on any basis not in the circumstances of the present case.[18]The point which Mr Convery raises for our consideration is derived from the fact that the offences set out in the warrant in each case refer to the location of the offence either as named places in the Netherlands "and/or United Kingdom". His point is that the inclusion of the United Kingdom as the venue for the commission or part of the commission of the alleged offences takes it out of subsections (2) and (3). Moreover, it would not sit comfortably with the ensuing subsections.[19]If Mr Convery is correct, then of course the district judge would have been in error in finding extradition offences under section 10 and we would be bound to allow the appeal under section 27. However, the question is whether or not Mr Convery is correct.[20]On behalf of the respondent, Mr Caldwell has referred us to the case of Cando Armas [2004] EWHC 2019 Admin, which was heard by a Divisional Court comprising Henriques J and Stanley Burnton J on 20th August last year. It was a case that required consideration of section 65 rather than section 64 in that the person sought to be extradited had already been convicted and sentenced in the Category 1 territory. The court on that occasion was concerned to analyse section 65, which is structurally the same as section 64 for present purposes. It expressed the opinion that sections 64 and 65 "have not been drafted with the need to deal with trans-frontier offences taken expressly or clearly into account". The court appears to have taken the view that, read literally and strictly, sections 64 and 65 would not enable offences such as those particularised in the warrant in the present case to be extradition offences for the purposes of the Act. Accordingly, considering that to be at variance with what must have been the intention of Parliament, they took a broader view of the language and concluded that in the circumstances of that case extradition offences were established under both subsection (2) and subsection (3).[21]For my part, I readily agree with what were identified by the court on that occasion as difficulties in some of the drafting. I have a particular difficulty in the circumstances of the present case with section 64(2). To the extent that it is particularised that the exports were committed in locations in the Netherlands "and/or the United Kingdom", I cannot accommodate that particularisation within section 64(2); it simply does not relate to conduct which occurs in the Category 1 territory "and no part of it occurs in the United Kingdom". However, I do not consider that the same difficulty arises in relation to section 64(3). There the first requirement is that "the conduct occurs in the Category 1 territory". In Cando Armas the court took the view that the ordinary meaning of "the conduct" in that context is "all the conduct". However, the context is important. It seems to me that in section 64(2)(a), "the conduct" does not mean "all the conduct" because the subsection specifically goes on to say "and no part of it occurs in the United Kingdom". It would not have been necessary to add those words if "the conduct" without more meant "all the conduct". When one moves on to section 64(3), I do not feel constrained to interpret "the conduct" as meaning "all the conduct". It seems to me that the words "the conduct" can bear a wider meaning or a narrower meaning, not least because of the different linguistic structure as between section 64(2)(a) and section 64(3)(a). If it be the case, as the particularisation of the warrant suggests in this case, that the allegation is of conduct in the Category 1 territory with at least the possibility of some conduct having taken place in the United Kingdom, I do not consider that that prevents the allegations from being extradition offences under section 64(3).[22]When the matter was before the district judge, the case was put on the basis that subsections (2) and (3) were both satisfied. We are told no reference was made to Cando Armas, but that submission is at least consistent with Cando Armas. All we know is that the district judge found that the particularised offences were extradition offences. We do not know whether he based his decision on subsection (2), subsection (3) or both.[23]In my judgment, his conclusion that they were extradition offences was and is correct because, for the reasons I have given, they fall within section 64(3). I do not take the view that any conduct which may be said to have occurred in the United Kingdom has the effect of preventing that conclusion. If it did, then I would agree with at least the sentiment of the Divisional Court in Cando Armas that the Act would be unworkable in relation to what the court there described as "trans-frontier offences".[24]It follows from what I have said that, in my judgment, the district judge was correct to find, as he must have done, that the temporal and procedural requirements had been satisfied and was also correct to find that the particularised offences are indeed extradition offences. No other arguable suggestion of legal error having been advanced, I conclude that this appeal must fail.

MR JUSTICE NEWMAN: I agree.

[26]I only wish to add one or two short points on the section 64 argument. The Extradition Act 2003 is prescriptive in the requirements for the terms of the warrant. Section 2(2) of the Act requires a warrant to contain a statement and information. The information which the warrant must contain is in subsection (4) of section 2.

(c) (4)(c) provides that the information is:

"particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence"
.

(c) provision was as follows:

"Description of the circumstances in which the offence(s) was(were) committed, including the time, place and degree of participation in the offence(s) by the requested person"
. Thus, it is to be noted that instead of the heading following precisely the words of section 2(4)(c), for "including the conduct alleged to constitute the offence" it had "the ... degree of participation in the offences by the requested person".[27]The description and the conduct are then described and include:
"On 7 July 2004 from the Netherlands to England ... the drugs were hidden in a legal load of books and carried by a legal transport undertaking to a company in Hawkings, United Kingdom. The address of the company is the same as the suspect's address. The suspect was also the addressee of the load of narcotic drugs intercepted by the Dutch police on 7 July 2004."
As to offences 2 and 4, it states:
"The suspect is presumed to have been involved more often as (co-)organiser/receiver in transports of drugs, as described above. For this purpose, different legal transport undertakings were (possibly) used which (possibly) transported their load(s) to different delivery addresses in the United Kingdom. For example, the suspect might (possibly) have been seen at a delivery address in West Bromwich. Furthermore, at the suspect's work address in Hawkings, the legal load(s) of books were supposedly picked up by one or more legal transport undertakings and transported back to the dispatch address in the Netherlands."
[28]Turning back to the statutory scheme, if one follows the prescriptive requirements for the content of the warrant through to section 64, as my Lord has done, one can see that the section is concerned to identify what amounts to an extradition offence by reference to categories of conduct which are specified in section 64. The conduct in section 64(2), as my Lord has pointed out, in order to be an extradition offence falling within that category, must, in accordance with the subsection, be conduct constituting an extradition offence in relation to Category 1 territory if these conditions are satisfied: "(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom".[29]Like my Lord, I find it very difficult to see how the conduct which is described in this warrant, in the terms which I have endeavoured to summarise, can be other than conduct which did not exclusively occur in the Category 1 territory because it is plain that a part of it is said to have occurred in the United Kingdom, in particular at the delivery points, and it may be that that will be a significant part of the case against the requested person, Mr Convery.[30]The question then arises, as my Lord has indicated, and as addressed in the case of Cando Armas, as to whether, when facts such as these occur and the conduct is specified as conduct not only within a Category 1 territory but also within the United Kingdom, is the court powerless or can it in fact find an extradition offence created by the 2003 Act? In my judgment, the answer is "yes". Section 64(3), as my Lord again has pointed out, is significant because in (3)(a) the condition which is required is that the conduct occurs in the Category 1 territory without any requirement that no part of it should occur in the United Kingdom, but, in my judgment significantly, what section 64(3) also requires, viz the condition in 3(b), is that 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.[31]In my judgment, what has occurred, although it is a point which is not entirely clear, is that the provision in section 64(2) is expressly concerned, as one can see from condition (b), to deal with conduct falling within the European framework list. The distinction, as I see it, between the approach which is taken to the framework offences as opposed to the approach which is taken to offences which are not to be regarded as falling within the framework offences or the 64(2) category is that there is no requirement in respect of a framework offence for the rule as to double criminality to be satisfied. Thus it is that as a quid pro quo for the rule of double criminality not being required to be satisfied, the requesting state must put before the United Kingdom court a request in respect of conduct which has occurred exclusively in its territory. If the requesting state is putting forward a case of conduct which has occurred partly in the Category 1 territory but partly also in the United Kingdom, then the interests of the United Kingdom and the interests of the requested person are met by there being a double criminality requirement.[32]In my judgment, for the reasons my Lord has indicated, there is a clear distinction between section 64(3)(a), the conduct occurring in the Category 1 territory, which in my judgment does not require that all the conduct must occur within that territory otherwise there would be no distinction between section 64(2) and section 64(3).[33]For those reasons, I am satisfied that there is no point of law which has been made to undermine the legal validity of this request for extradition and I too would dismiss the appeal.[34]THE APPELLANT: Is it possible to have leave for appeal?

LORD JUSTICE MAURICE KAY: That would require us to certify a point of law of general public importance which ought to be considered by the House of Lords. It has been considered now by two divisional courts, four judges in all, on section 64(3), which is the one upon which you have lost, if I may put it that way. All four judges came to the same conclusion, and so we think not.

[36]Thank you very much.

Cited in 1 later judgment