Oliver v Secretary of State for the Home Department [2006] EWHC 1847 (Admin)

Case No CO/3092/2006[2006] EWHC 1847 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday 31 st July 2006
Before
LORD JUSTICE LAWSMR JUSTICE WALKER
Between
OLIVERClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Mark Summers (instructed by TNT) for ClaimantMr Khawar Qureshi (instructed by The Treasury Solicitor) for Secretary of State for the Home DepartmentMr Mark Weekes (instructed by the CPS) for Interested Party
JudgmentLord Justice Laws :INTRODUCTORY
[1]On 18 July 2005 in a case concerned with the proposed extradition to Spain of a man called Darkanzali, the Second Senate of the German Federal Constitutional Court (“the FCC”) declared the German European Arrest Warrant Act (Europäisches Haftbefehlgesetz) unconstitutional and void in its entirety.[2]This judicial review case is about the effect of that decision on the designation of Germany as a category 1 territory under the terms of Part I of the Extradition Act 2003 (“the 2003 Act”). The claimant says that the decision of the FCC gave rise to an obligation upon the Secretary of State to de-designate Germany as a category 1 territory, and re-designate Germany as a category 2 territory, under sections 1 & 69 of the 2003 Act. I will explain the statutory scheme in due course.[3]The claimant is a British national. His extradition to Germany was sought by means of a European Arrest Warrant (“EAW”) issued on 22 December 2005 by the Public Prosecutor of Munich. The allegation against the claimant was of an attempt to pass three forged cheques in Munich on 28 April 2003, apparently to a value of about $60 million. The EAW named sections of the German Criminal Code said to have been violated. The EAW was certified by the National Criminal Intelligence Service (being the designated authority under section 2(7) of the 2003 Act), and on 3 February 2006 the claimant was arrested at Birmingham airport under section 5. He was brought before the Bow Street Magistrates Court the same day. An extradition hearing, in accordance with Part 1 of the 2003 Act, was fixed for 20 February 2006. That hearing was adjourned to 22 March 2006. On 27 February 2006 the claimant’s solicitors made written representations to the Secretary of State. They submitted that the result of the Darkanzali decisionby the FCC was that Germany could no longer, and would not, entertain EAWs from other EU Member States including the United Kingdom. Yet the United Kingdom was continuing to maintain EAWs issued by Germany, including the EAW issued against the claimant. This want of reciprocity could be cured by de-designating Germany as a category 1 territory and re-designating Germany as a category 2 territory; and the solicitors urged the Secretary of State to take immediate steps to do so. The Secretary of State replied on 17 March 2006. He declined to accept that invitation and gave short reasons. This is the decision under challenge and I shall return to it.[4]The judicial review claim form was issued on 7 April 2006. A further hearing of the extradition proceedings against the claimant had been listed at Bow Street for 13 April 2006, but on 11 April 2006 Sullivan J granted a stay of that hearing pending determination of the claimant’s application for permission to seek judicial review. Permission was granted by Collins J on 11 May 2006. As I understand it the extradition proceedings remain stayed pending resolution of the substantive judicial review which was heard by my Lord and myself on 6 July 2006.

THE FRAMEWORK DECISION

[5]In order to understand the issues in the case it is convenient to start with the Framework Decision of 7 June 2002 on the European Arrest Warrant and Surrender Procedures between Member States of the European Union (adopted by the Council of the EU on 13 June 2002) (“the Framework Decision”). The Framework Decision provided for the institution of the EAW. It required by Article 34 that Member States should take the necessary measures to comply with its provisions by 31 December 2003. Article 2.2 lifted the pre-existing requirement in extradition cases of double or dual criminality, that is, that the extradition offence should be a crime under the laws both of the requesting and the sending States. Instead Article 2.2 provided a list of offences (“the European Framework list”) which might properly be the subject of an EAW provided that they were punishable by custody or detention for at least three years by the law of the issuing or requesting State. Of particular importance for the purpose of the argument are the references in the Framework Decision to mutual recognition or cooperation, as follows. First, from the preamble:
“(2) The programme of measures to implement the principle of mutual recognition of criminal decisions envisaged in point 37 of the Tampere European Council Conclusions and adopted by the Council on 30 November 2000, addresses the matter of mutual enforcement of arrest warrants… (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. (7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community… (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.” 6. Then, under the heading “General Principles”, Article 1.2 provides: “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”
Then Article 31.2:
“Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. Member States may conclude bilateral or multilateral agreements by arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of the European arrest warrants…. ”
I have already referred to Article 34.1:
“Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003.”
Article 34.2 provides in part:
“Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. When doing so, each Member State may indicate that it will apply immediately this Framework Decision in its relations with those Member States which have given the same notification.”

THE EXTRADITION ACT 2003

[6]The German legislature gave effect belatedly to the Framework Decision: the European Arrest Warrant Act was not passed until 23 August 2004. Meanwhile the United Kingdom Parliament had passed the 2003 Act, Part 1 of which gave statutory effect to the principles and provisions of the Framework Decision. Section 1 in part provides:
“(1) This part deals with extradition from the United Kingdom to the territories designated for the purposes of this Part by order made by the Secretary of State. (2) In this Act references to category 1 territories are to the territories designated for the purposes of this Part.”
Then section 2:
“(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person. (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 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. … (7) The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.”
[7]The statement referred to in section 2(5) is analogous to that in section 2(3) but deals with the case of persons at large after conviction in the category 1 territory. The information referred to in sections 2(4) and 2(6) includes the fugitive’s identity and particulars of the sentence which may be imposed in the category 1 territory for the offence in question. The provisions which identify the offences for which a person may be extradited to a category 1 territory, following the issue of an EWA, are contained in sections 64 - 66. Their detail is complicated but they include (section 64(2)(b) and 65(2)(b)) cross-references to the European Framework list, which is further referred to in section 215. It is clear that in case of any of the listed offences and subject to other requirements of the statute which I need not enumerate, a person may be extradited to a category 1 territory following the issue there of an EWA without any requirement of dual or double criminality being satisfied.[8]Section 69 of the 2003 Act, which is the first provision in Part 2, provides for extradition to category 2 territories. By section 69(2) these are territories designated for the purposes of that Part of the Act. Leaving all other requirements aside extradition to a category 2 territory may only be effected if the requirement of dual criminality is satisfied.

CANDO ARMAS [2005] 3 WLR 1079

[9]In this case their Lordships’ House examined the background and context of the 2003 Act. The case concerned an EAW issued in Belgium in respect of a person convicted in Brussels in his absence. He was subsequently arrested in the United Kingdom. In the ensuing extradition proceedings the district judge held that the defendant’s conduct did not constitute an extradition offence. That decision was overturned in this court, whose judgment was upheld in the House of Lords. It is enough to cite the following passages:
“2…. There has accordingly been a movement among the member states of the European Union, gaining strength in recent years, to establish, as between themselves, a simpler, quicker, more effective procedure, founded on member states’ confidence in the integrity of each other’s legal and judicial systems. [per Lord Bingham] 5. Paragraph (2) of article 2 of the Framework Decision is central to the main issue in this appeal. It sets out a list of offences which have been conveniently labelled ‘framework offences’. These are not so much specific offences as kinds of criminal conduct, described in very general terms. Some of these, such as murder and armed robbery, are likely to feature, expressed in rather similar terms in any developed criminal code… Underlying the list is an unstated assumption that offences of this character will feature in the criminal codes of all member states. Article 2(2) accordingly provides that these framework offences, if punishable in the member state issuing the European arrest warrant by a custodial sentence or detention order for a maximum period of at least three years, and as defined by the law of that state, shall give rise to surrender pursuant to the warrant ‘without verification of the double criminality of the act’. This dispensation with the requirement of double criminality is the feature that distinguishes these framework offences from others. The assumption is that double criminality need not be established in relation to the offences because it can, in effect, be taken for granted… [per Lord Bingham] 8. Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. [per Lord Bingham] 22. Recital (6) of the preamble states that the European arrest warrant is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which was referred to at Tampere as the cornerstone of judicial cooperation… What Part 1 of the 2003 Act provides for, in its simplest form (where the conduct occurs in the territory of the requesting state, no part of it occurs in the United Kingdom and it falls within the European framework list of offences set out in Schedule 2: sections 64(2) and 65(2) of the 2003 Act), is really just a system of backing of warrants. It is designed to enable the persons against whom they are directed to be handed over in the shortest possible time to the requesting authorities. [per Lord Hope] 52. The principle underlying these changes is that each member state is expected to accord due respect and recognition to the judicial decisions of other member states. Any enquiry by a member state into the merits of a proposed prosecution in another member state or into the soundness of a conviction in another member state becomes, therefore, inappropriate and unwarranted. It would be inconsistent with the principle of mutual respect for and recognition of the judicial decisions of that member state. [per Lord Scott].”

DESIGNATIONS UNDER THE 2003 ACT

[10]The 2003 Act came into force on 1 January 2004. As I have indicated, Germany had not by then complied with Article 34 of the Framework Decision so as to give effect to the new regime there set out. Only seven other Member States had: Belgium, Denmark, Finland, Ireland, Portugal, Spain and Sweden. So it was that only these seven were designated by the Secretary of State as category 1 territories pursuant to section 1 of the Act. That was effected by the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 2003 No 3333).[11]Extradition between the remaining Member States and the United Kingdom continued to be governed by the pre-existing regime which was provided for by the European Convention on Extradition of 1957. The requirement of double criminality continued to operate in respect of such extraditions. These remaining Member States were designated by the Secretary of State as category 2 territories pursuant to section 69 of the 2003 Act. That was effected by the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 (SI 2003 No 3334). There were likewise designated, by the same Order, all those States not members of the European Union with which the United Kingdom had extradition relations. This was because the 2003 Act was by no means limited to intra-Europe arrangements; it is a comprehensive measure which provides generally for the United Kingdom’s law on extradition.[12]As and when those remaining European Union Member States implemented the Framework Decision in their own domestic laws, the Secretary of State proceeded to re-designate them as category 1 territories under section 1: see the Extradition Act 2003 (Amendment to Designations) Order 2004 (SI 2004 No 1898) for Austria, Cyprus, France, Hungary, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovenia; the Extradition Act 2003 (Amendment to Designations) Order 2005 (SI 2005 No 365) for the Czech Republic, Estonia, Germany, Greece and Slovakia – this Order came into force on 1 March 2005, a little over six months after the German legislature had enacted the European Arrest Warrant Act; and lastly the Extradition Act 2003 (Amendment to Designations) Order 2005 (SI 2005 No 2036) for Italy.

HANSARD

[13]The claimant draws attention to certain statements made by Lord Filkin in the House of Lords presenting what was then the Extradition Bill to Parliament. First on 3 June 2003 in the Grand Committee (Hansard 648 column GC167): “It is the Government’s intention, as we have indicated, that the only countries that should be subject to Part 1 procedures are precisely the ones covered by the official Opposition amendment – the member states of the European Union plus Norway and Iceland. However I do not think that it would be wise to limit the future quite as tightly as that amendment would indicate. It would limit the room for manoeuvre of our successors if they decided that there were good reasons to bring before Parliament the case for putting a non-European country into Part 1. My noble and learned friend Lord Bassam trailed that point by referring to Australia, New Zealand and Canada. Although we currently have no intention of doing that, it is not outside the bounds of possibility… ”.[14]It is right to say, however, that there was no suggestion in the course of the Parliamentary debates that Australia, New Zealand or Canada (or any other State not party to the Framework Decision) might be designated as a category 1 territory in the absence of new treaty arrangements whose applicability would be compatible with the scheme of Part 1 of the Act: arrangements, that is to say, not requiring double criminality to be demonstrated. Lord Filkin said (ibid column GC168):
“…[W]e have not really given much thought to criteria because there is no current intention to add to designation. That does not mean to say that we believe that there should be a rigid set of criteria, but one might at least have to reflect on possible principles.”
[15]The claimant also relies on what had earlier been said by Lord Filkin at the second reading of the Bill (Hansard 1 May 2003, vol 647, columns 915-918):
“…If candidates demonstrate serious flaws in their ability to implement the EAW… it would be possible to prevent them using the EAW. As I have also signalled, it would be possible to de-designate…”
.

DARKANZALIAND THE SECRETARY OF STATE’S DECISION

[16]The last amending Order, relating to Italy, came into force on 28 July 2005, just ten days after the decision of the FCC in Darkanzali. It is important to see what Darkanzali decided. It is clear that the court held (by a majority) that the European Arrest Warrant Act was invalid and void in its entirety. However the Secretary of State has provided evidence to demonstrate that, since that Act applied only to the treatment of EAWs received by Germany, the authority to issue EAWs in Germany with a view to seeking the subject’s extradition to that country continued unaffected. The essence of the court’s majority decision was to the effect that the European Arrest Warrant Act authorised a disproportionate and unjustified interference in the rights of German nationals whose extradition from Germany was sought under the EAW procedure. There is a later decision of the FCC delivered on 28 November 2005 (case 1667/05) which I understand confirms that an EAW issued in Germany to secure the return there of a fugitive in another Member State is valid in the eye of German law.[17]In his letter of 17 March 2006 the Secretary of State said:
“The Constitutional Court ruling of 18 July only affected Germany’s execution of European Arrest Warrants (EAWs). It has no impact on Germany’s ability to issue EAWs. We understand that the legislation governing Germany’s ability to issue EAWs is unaffected by the ruling… [T]he German Authorities have informed us that, until their amended legislation is in force, they will continue to process the UK’s part 3 requests, but dependent on which regional German court is dealing with the request, may ask for additional information. Since the Constitutional Court ruling, we understand that three people have been arrested in Germany as a result of part 3 requests issued by the UK, while 16 people have been arrested in the UK pursuant to EAWs issued by Germany. Germany’s amended legislation We are in contact with the German Ministry of Justice, and the latest information we have is that the amended legislation is currently making its way through the German Parliamentary process. In view of this, and given the way the interim procedures are working, the Government currently sees no merit in de-designating Germany as a Category 1 territory and re-designating as a Category 2. During the passage of the Extradition Bill through Parliament, the Government indicated that Part 1 designation might not be limited to EU States. There is no reason that a territory not operating the EAW cannot be designated as a Category 1 territory.”

Germany’s amended legislation

[18]The Secretary of State’s observation that the Darkanzali case has no impact on Germany’s ability to issue EAWs seems to me to be right. It therefore appears that a concern expressed by Collins J granting judicial review permission was misplaced. He said:
“The German Constitutional Court’s decision struck down the whole of the Act bringing the Framework Directive [sic]into effect and so the contention that the issue of EAWs is unaffected is arguably wrong. If the EAW from Germany was not authorised by law, these proceedings are arguably invalid.”
But Darkanzali had no impact on EAWs issued in Germany. Accordingly the point raised by Collins J is, rightly, not relied on by the claimant. THE CLAIMANT’S CASE SUMMARISED[19]The essence of the claimant’s argument is that for the United Kingdom to continue to permit Germany to submit EAWs relying on the Framework list when Germany itself refuses to accommodate the same procedure in relation to EAWs submitted to it, is to validate a want of reciprocity and mutual recognition wholly contrary to the principles of the Framework Decision and Part 1 of the 2003 Act: and contrary also to the plain practice of the Secretary of State exemplified in successive Orders designating and re-designating Member States as category 1 or category 2 territories.[20]There are here two distinct submissions. The first is in essence one of construction of the 2003 Act. It is to the effect that the scope of Part I of the Act is critically dependent on its European context, which is supplied by the terms of the Framework Decision. Accordingly (leaving aside the possible designation of territories outside Europe in unknown future circumstances) the power to designate other EU Member States given in Part I must, if it is to be lawfully exercised, track such States’ compliance with or loyalty to the EAW system. They are to be designated if they comply; and de-designated if they withdraw compliance.[21]The second submission accepts that the scope of the power to designate under Part I cannot on the Act’s true construction be so tightly drawn. However it has been the Secretary of State’s plain policy only to designate EU Member States in category 1 if in fact they accept the mutuality requirements of the EAW regime; so much is demonstrated by the history of designations and re-designations. Germany has withdrawn from that commitment. The Secretary of State’s policy would on the face of it lead him to de-designate Germany accordingly. But he has declined to do so, has not explained why, and has not elaborated any new or different policy. Whether the case is put in terms of rationality, legitimate expectation, or simply in terms of the virtues of transparency and consistency as a legal standard on which the public law court will now insist, no coherent basis is put forward to explain the Secretary of State’s position and absent some such explanation the court will infer that there is no such basis.

RETROACTIVE REMEDY?

[22]Before confronting these arguments I should notice a twist in the case which could, I think, affect the efficacy of any relief which the claimant might obtain if in principle his case is good. The power to designate (and of course re-designate) by statutory instrument is by section 223(6) of the 2003 Act subject to the affirmative resolution procedure in both Houses of Parliament. In Javed [2001] EWCA Civ 789 [2002] QB 129 the Court of Appeal had to consider the extent to which, or circumstances in which, it was open to the court to review the validity of an order which had been so approved. The court held that there was jurisdiction to review such an order on grounds of procedural impropriety or unreasonableness, but “the extent to which a statutory power [sic]was open to judicial review on the ground of irrationality depended critically on the nature and purpose of the enabling legislation” (headnote, 129H). It was and is undoubted that the court has power to review such an order on ground of illegality. Here, in fact, we are not being asked to review any order on the ground that it was illegal (or unreasonable) when made; the relief sought (inter alia)is a mandatory order requiring the Secretary of State to re-designate Germany as a category 2 territory, on the basis that the continuation or maintenance of the category 1 designation (effected, as I have said, by SI 2005 No 365) is unlawful by reason of a supervening event, namely the decision of the FCC in Darkanzali.[23]However if either of the claimant’s arguments were right, given Javed I would with respect have no difficulty in concluding that the court has the power to make the order sought. But such an order would bite on the future; it would not have effect to render unlawful Germany’s category 1 designation as at December 2005 (when the EAW was issued against the claimant) or February 2006 (when the first extradition hearing at Bow Street was fixed). Mr Summers for the claimant submitted that we should hold that the designation was indeed unlawful in December 2005 and/or February 2006, and (presumably) grant a declaration to that effect. It might be a nice question how such a declaration would impinge on the legality of proceedings undertaken before it was made, and in reliance on an EAW issued and certified under legal arrangements which at the time were perfectly valid on their face. But in my judgment, irrespective of what might be the appropriate relief, there is in any event no proper basis on which the court could hold that by December 2005/February 2006 the category 1 designation of Germany had become unlawful. I understood Mr Summers to accept that the Secretary of State would be entitled to consider the Darkanzali case, and to make enquiries of the German authorities as to their response to it, and as to the status of EAWs issued in Germany after the judgment was given. There is nothing in the materials before us to demonstrate, or even suggest, that the Secretary of State ought reasonably to have treated that process as exhausted by December 2005 or February 2006. Thus even if the Secretary of State ought now to re-designate Germany in category 2, the EAW issued against the claimant was lawful when it was certified under section 2(7) of the 2003 Act and the extradition proceedings were lawfully instituted. It is difficult to see how their being resumed and continued could be condemned in law merely on account of the fact, if it were so, that Germany is re-designated in category 2 at a future date pursuant to an order of this court. Perhaps an argument might be mounted that the proceedings’ continuance constituted an abuse of the process of the court conducting the extradition hearing. I do not suggest that such an argument would be good.[24]Nothing in these conclusions is affected by the possibility that a retroactive designation order might be made (since the hearing Mr Summers supplied extracts from the 9th edition of Wade and Forsyth, Administrative Law, touching such a question) since for reasons I have given there is no basis on which to hold that the EAW or extradition process was in any way tainted in December 2005 or February 2006.[25]These considerations do not, of course, put the claimant’s case out of court. Their effect is rather that if the claim prospers any relief granted by the court will have effect only in relation to Germany’s position in the future. But subject only to the possibility of an argument as to abuse of process the legal efficacy of the extradition proceedings against the claimant would not be affected.

THE CLAIMANT’S FIRST ARGUMENT

[26]Mr Summers deployed the decision of the European Court of Justice in Pupino (Case C-105/03) [2006] QB 83. The case concerned a different framework decision, on the standing of victims in criminal proceedings. Mr Summers relies on general observations by the Court of Justice as to the character and status of framework decisions:
“34. The binding character of framework decisions… places on national authorities, and particularly national courts, an obligation to interpret national law in conformity with Community law. 43. ... [T]he court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions… When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues…”
And so Mr Summers submits that Article 1(2) of the Framework Decision, reinforced by the recitals in the preamble which I have set out, constitutes a binding obligation given legal force in the United Kingdom by the 2003 Act.[27]Now, it is beyond contest that, as I have already said, the 2003 Act was passed (in part at least) in order to carry the regime of the Framework Decision into domestic law. However the language of section 1, conferring the power to designate, is clearly not on its face limited to any such purpose. And there might be occasion in the future, as Lord Filkin said in the House of Lords, to designate a non-European territory in category 1. Thus although I have described the claimant’s first submission as being in essence one of construction of the 2003 Act, it involves no exercise of textual interpretation. It engages a question of construction only in the sense given by the decision of their Lordships’ House in Padfield [1968] AC 997: do the policy and objects of the 2003 Act require the Secretary of State to re-designate Germany? Manifestly, a principal element of the Act’s policy and objects is to transpose the EAW regime provided for in the Framework Decision into domestic law. And I would accept that if the Secretary of State made an executive decision which contradicted and frustrated the Act’s policy and objects, that would be a legal error rightly attracting the judicial review jurisdiction.[28]But it is in my judgment clear that the scheme of the Framework Decision, and thus the policy and objects of the 2003 Act, does not as a matter of law require a response by other Member States to the Darkanzali decision of the kind urged by the claimant in these proceedings, at least as matters presently stand. The true question here is what room the law makes for negotiation and persuasion, the deployment of the political arts, in the achievement of the Framework Decision’s goals. I think we are bound to face the reality that acceptance of the EAW regime, like some other strategic measures of European Union law, is an incremental process. As I have shown by no means all the Member States complied with Article 34 of the Framework Decision by the due date. There have been other difficulties along the way. In determining whether the point has been reached at which Secretary of State now has no legal option but to re-designate Germany, I have with respect found the Report of the European Union Committee of the House of Lords published on 4 April 2006 (30th Report of Session 2005-06, European Arrest Warrant – Recent Developments) to be of considerable assistance. I will cite paragraphs 27 – 31:
“National Constitutional Courts 27. The EAW has come under attack in a number of national courts. In April 2005 the Polish Constitutional Tribunal found that the EAW offended the Polish Constitution’s ban on extraditing Polish nationals. In July 2005 the German Constitutional Court annulled Germany’s law transposing the Framework Decision because it did not adequately protect German citizens’ fundamental rights. The Supreme Court of Cyprus has found the EAW to fall foul of a clause in the Constitution of Cyprus prohibiting their citizens from being transferred abroad for prosecution. On the other hand, the EAW has survived challenge in the Greek Constitutional Court. 28. The Minister recognised that such challenges were a matter of some concern and he could not say that similar problems might not arise in other Member States. But he also drew attention to the fact that remedial action was in hand. In Germany steps were being taken to introduce amending legislation, though the Minister could not say by when that would be accomplished. In the case of Cyprus and Poland the problem may be difficult to solve because amendment of their constitutions seems to be needed. It looks unlikely that the 18 month deadline set by the Polish Constitutional Tribunal will be met. Mutual recognition – the principle 29. In its report the Commission describes the EAW as ‘the first, and most symbolic, measure applying the principle of mutual recognition’. This principle is built on the trust and confidence of one Member State in the criminal justice arrangements of other Member States. If one Member State refuses to execute an EAW on grounds which are not permitted under the Framework Decision then other Member States might well feel justified in doing likewise. Were such practice to become widespread then the whole regime could break down and its benefits would be lost. Mutual recognition and reciprocity would seem to go hand in hand. 30. In response to the German Constitutional Court’s ruling, the Spanish authorities rejected several EAW requests from Germany because under Spanish Constitutional law extradition is permitted only on the basis of reciprocity. We therefore asked the Minister whether the challenges to the EAW in the courts of Member States could have long-term implications for the operation of the EAW, and in particular for the approach of the UK to the EAW. Would the UK recognise and execute EAW requests from Member States that could not reciprocate? 31. The Minister believed mutual recognition to be important and that it would be unsatisfactory to have an imperfect relationship. He thought that there would be ‘a breakdown of the system if it was tit-for-tat’. He added: ‘I think it is right that we should say to our partners we would want them to make the changes as quickly as possible and we will give them ample time to do that but there would have to come a point where if there was no movement we would have to review the position’. The Minister hoped to avoid the situation where some Member States might have to be treated, for the purposes of our Extradition Act, differently from others.”

Mutual recognition – the principle

[29]The position taken by the Minister, as the Committee there reports it, was reflected in Mr Qureshi’s argument for the Secretary of State. He submitted that the Secretary of State must enjoy an ample “margin of appreciation” in reaching any conclusion as to how the United Kingdom should respond to the Darkanzali decision. I am not sure that the expression “margin of appreciation”, which is of course a term of art in the jurisprudence of the European Court of Human Rights, is apt in the present context; but the essence of Mr Qureshi’s case was clear enough, and was to the effect that the nature of that response was a matter for the judgment of the Secretary of State; and in the exercise of that judgment his present decision not to re-designate, for the reasons given in the letter of 17 March 2006, could not be faulted.[30]Mr Qureshi also submitted that it was not open to the Secretary of State to re-designate Germany in category 2, because of the terms of the second sentence of the 10th recital in the preamble to the Framework Decision which I have set out, but repeat for convenience:
“[The EAW’s] implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof.”
Despite the apparently mandatory terms of this provision I entertain considerable doubt whether, appearing as it does in the preamble, it is to be read as a black-letter rule strictly confining the circumstances in which a Member State may take action of the kind urged by the claimant in this case. But it assists Mr Qureshi at least to this extent. It tends to show that the spirit or philosophy (I cannot find a more exact term) underlying the principle of mutual recognition in the context of the EAW regime is not to promote “tit-for-tat” responses, but so far as possible to keep the regime in being and respond to lapses or legal difficulties in fellow Member States by co-operative discussions. Such an approach is also consonant with, albeit not demonstrated by, measures such as Article 34.2 of the Framework Decision, and also 31.2 which shows that Member States may do more, though they should not do less, than required by the Framework Decision to “simplify or facilitate... the procedures for surrender of persons who are the subject of European arrest warrants”.[31]I do not say there might not come a point at which, all else having failed, a Member State’s proper and lawful response to another’s repudiation of the EAW system (in relation to its own nationals) would be to withdraw co-operation. But for the domestic court to conclude that such a point had been reached, if it were ever right for it do so, would require an overwhelming case. Here, amending legislation remains under consideration in Germany. We cannot begin to say that such a point has been reached.[32]I should add that the Secretary of State and the Munich Prosecutor (who put in submissions as an interested party) placed some reliance on this court’s decision in Norris [2006] EWHC Admin 280, paragraph 43, in order to show that the extradition process given by the 2003 Act imposed no requirement of reciprocity. I found no assistance in that case. The President was dealing with designation under Part 2 of the 2003 Act, whose context has no analogue to the Framework Decision; and his reasoning accordingly offers no read-across to cast light on the presence or absence of any putative requirement of mutuality for the purpose of designation under Part 1.[33]I conclude that the claimant’s first argument fails.

THE CLAIMANT’S SECOND ARGUMENT

[34]My reasons for rejecting the claimant’s first argument are also fatal to his second. As I have stated the nature of the United Kingdom’s response to the Darkanzali decision was a matter for the judgment of the Secretary of State; and in the exercise of that judgment his present decision not to re-designate, for the reasons given in the letter of 17 March 2006, could not be faulted.[35]There has in my view been no hidden shift of policy by the Secretary of State. It is one thing to designate another Member State, first time round as it were, in category 1 as and when the EAW regime is adopted there. It is quite another to respond to the other State’s partial withdrawal from the scheme by what the Minister (and Mr Qureshi in the course of argument) called a “tit-for-tat” approach. The designation first time round unequivocally promotes reciprocity in the administration of the EAW scheme. The “tit-for-tat” response risks, or may reasonably be thought to risk, its fragmentation.

CONCLUSION

[36]For all the reasons I have given I would dismiss this application. Mr

Justice Walker:

[37]I agree.