Haynes v Court of Magistrates, Malta [2007] EWHC 2651 (Admin)

Case No CO/5902/2007

[2007] EWHC 2651 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Wednesday, 24th October 2007

Strand

London WC2A 2LL

B e f o r e:

LORD JUSTICE RICHARDS

MR JUSTICE GIBBS

Between

TRISTAN HAYNESClaimant

Between

THE COURT OF MAGISTRATES, MALTADefendant

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Mr M Butt (instructed by Hallinan, Blackburn) appeared for Claimant

Miss G Lindfield (instructed by CPS (Special Crime Division)) appeared for Defendant

J U D G M E N T

LORD JUSTICE RICHARDS:

This

[1]is an appeal under section 26 of the Extradition Act 2003 against a decision of District Judge Nicholas Evans, sitting at the City of Westminster Magistrates' Court, to order the appellant's extradition to Malta, to continue his trial, as the judge held, for three offences of causing grievous bodily injury. The trial itself commenced on 12th May 2003 and extended over a number of hearings, the last of which was in July 2005. It appears that at that time the prosecution case was coming to a close. The appellant left Malta and travelled to England. He is sought under a European arrest warrant, issued in January 2007 by the Court of Magistrates of Malta, the respondent in this appeal.

[2]The warrant is stated to relate to a total of six offences. The description of the circumstances in which the offences were committed shows that this was an alleged incident of road rage. The appellant is said to have been the driver of a vehicle that bumped into and overtook on the inside, another vehicle. The vehicles stopped and everyone got out. The description continues:

"An argument broke out and Haynes physically attacked Joseph and Maryanne Attard and David Shepherd, punching and kicking them around the head and body. Each suffered various injuries, including cuts and bruises which required medical attention. David Shepherd who was struck to the head, groin, chest and abdomen received life threatening injuries and was hospitalised for internal bleeding."

Reference is also made to minor matters such as damage to the motor car.

[3]The nature and legal classification of the offences and the applicable statutory provisions are stated in the warrant to be as follows: "(3 counts) Wilful Offences Against the Person: Art 214, 216, 218, 221 Criminal Code [CC]; (1 count) Crimes Against Public Safety and Injury to Property: Art 328CC; (1 count) Contravention Affecting Public

[4]The reference to the framework list is to the list corresponding to that in paragraph 2 of Article 2 of the Council Framework Decision of 13th June 2002 on the European arrest warrant and surrender procedures between Member States ("the framework decision"). As Lord Bingham of Cornhill stated in Office of the King's Prosecutor v Cando Armas

[2006] 1 AC 2006

1, at paragraph 5:

"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."

The warrant itself describes them as "offences punishable in the issuing member state by custodial sentence or detention of a maximum of three years as defined by the laws of the issuing member State." The warrant contains a pro forma list of such offences. The category said to be applicable in this case is identified by a tick or a mark in the box next to "murder, grievous bodily injury".

[5]The form used for the warrant also calls for a full description of offences that are not framework offences. The warrant in this case includes such a description in the following terms:

"Slight bodily harm; Art 221 CC (A bodily harm which does not produce permanent disability of the health ,...of a body organ, or permanent defect or mental infirmity or serious disfigurement of the face, neck, or hands. Involuntary damage: Art 328(d)CC (Causing involuntary damage to property through imprudence, negligence or non-observance of any regulation). Wilfully disturbing the public good order or the publicpeace; Art 338(dd)CC. Causing an obstruction to traffic: Sec 55 Second Schedule."

[6]The other feature of the warrant that I need to mention is the section relating to the maximum length of custodial sentence or detention which may be imposed for the offences to which the warrant relates. That reads:

"Nine years for bodily harm (3 counts); six months for involuntary damage to property (1 count); three months for disturbing the public peace; fine... for traffic violation obstruction of traffic (1 count)."

[7]It is common ground that the particulars given in the warrant include particulars of offences that are not extradition offences or in respect of which the requesting state has now made clear that it is not requesting the appellant's extradition. His extradition is sought in respect of three offences alone, each of which is said to be a framework offence of grievous bodily injury. I have referred to the other offences because they are relevant to the arguments in the case and the overall construction of the warrant.

[8]Following the appellant's arrest on the warrant, extradition hearings took place in the Magistrates' Court. At the first hearing the judge expressed a provisional view that only one of the three offences in which extradition was then sought was an extradition offence, that being the assault on Mr Shepherd. The hearing was adjourned part heard.

[9]At the next hearing the requesting authority relied on supplementary material in the form of a letter from the office of the Attorney-General in Malta. That letter was signed by a Dr Dimech, who described herself as "Senior Counsel for the Republic". It is stated that the requesting state had taken note of questions and allegations raised by the defence. The author said she had viewed the court file and consulted with the presiding Magistrate. One of the matters addressed in the letter was the offences for which extradition was being sought. As to that the letter stated:

"The offences for which his return is being requested are for three counts of grievous bodily harm against three persons (David Shepherd, Joseph Attard and Maryanne Attard). In relation to the Attards, Haynes is also accused of causing different injuries of a slight nature. In terms of Maltese law, the causing of slight body harm is punishable by maximum penalty of 3 months' imprisonment and the reason mention was made of this fact is in order to present a complete picture to the esteemed United Kingdom judicial authorities, as one is obliged to do so in terms of the Framework Decision on the EAW."

[10]At the hearing the judge concluded that the warrant was valid and held that extradition was being sought for three offences that amounted to extradition offences of grievous bodily injury. He also made a finding that the requesting authority had acted in good faith. In addition he heard evidence from the appellant on issues which he decided against the appellant and do not arise on this appeal. In the event he ordered, as I have said, the appellant's extradition.

[11]The appeal to this Court is brought on three grounds. The first concerns the formal validity of the warrant under section 2(4) of the 2003 Act. The second relates to whether the appellant's conduct is shown to have constituted an extradition offence within section 64(2) of the Act. The third is an allegation of abuse of process by the requesting authority which it is said ought to lead in any event to the appellant's discharge.

[12]I will deal with the first two grounds together because they both depend heavily, albeit in different ways, on the terms of the warrant. As to the first ground, section 2(4)(d) of the 2003 Act states that the Part 1 warrant must contain "particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it". The information so required corresponds to that set out in Article 8(1)(f) of the framework decision. It is clear from what was said by Lord Hope in Dabas v High Court of Justice in Madrid, Spain

[2007] 2 WLR 254

[2007] UKHL 6

, at paragraph 50, that the particulars of sentence must be contained in the warrant itself and it is not permissible to have regard to information supplied outside the warrant. There is a possible exception in a case of ambiguity (see Kuprevicius v Vice Minister of Justice, Ministry of Lithuania

[2006] EWHC 1518

per Toulson LJ).

[13]The submission made by Mr Butt, on behalf of the appellant, is that the warrant does not comply with the requirements as to the particulars of the sentence which may be imposed. In describing the sentence it refers to "bodily harm" and mentions three counts, but that is not good enough since the warrant refers to various "wilful offences against the person", including at least one offence of slight bodily harm as well as three framework offences of grievous bodily injury. Moreover, the warrant refers to four different articles of the criminal code, including three different articles which are said to apply to the three framework offences. So there is, on the face of the warrant, a range of different offences of bodily harm, yet only one maximum sentence is specified. Nor is it clear whether the maximum sentence is nine years for each of the counts referred to, whichever ones they may be, or a total sentence for all of those counts. The judge thought it was the latter. It is submitted that the warrant is therefore defective and the defect goes beyond a matter of ambiguity so that it is not permissible to have regard to external material.

[14]The second ground concerns the definition of an extradition offence in section 64(2) which provides:

"(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."

Reference has also been made to section 64(3). It does not seem to me that anything turns on that for present purposes.

[15]Mr Butt's submission is that the information within the warrant is insufficient to establish that all three offences for which the appellant's return is sought are extradition offences. The mere statement in the warrant that three counts relate to the framework list and the ticking of the grievous bodily injury box in that list are not sufficient to show that there are three framework offences. One has to look at the conduct described in order to see whether it can amount to a framework offence. In the case of the alleged attack on the Attards, the conduct described is, it is submitted, plainly insufficient to amount to the framework offence of grievous bodily injury. The injuries said to have been suffered by the Attards could not amount to more than slight bodily harm, and the warrant also refers to an offence or offences of slight bodily harm, yet there is nothing such offences could relate to other than the attack on the Attards. There is no suggestion that any offence of slight bodily harm is an alternative to grievous bodily injury as opposed to a separate offence. Mr Butt draws a contrast between this and the very much more serious injuries alleged to have been sustained by Mr Shepherd which could give rise to an offence of grievous bodily injury. Mr Butt submits that the Court cannot be satisfied by reference to the warrant that the offences in respect of which return was sought are extradition offences within the meaning of the 2003 Act.

[16]He also seeks to rely on certain extraneous material. First, he refers to transcripts of the evidence given in the course of the trial before the appellant left Malta. If admissible, that material would tend to confirm that the appellant's alleged conduct towards the Attards was not such as could amount to an offence of grievous bodily injury. In my view, however, it runs counter to the whole scheme of the framework decision for the English court to be involved at examining the evidence given in the court of the requesting State, even for the limited purpose for which Mr Butt seeks to deploy it. One is moreover getting too close to the question whether the charges are made out on the evidence rather than the question of what the charges are, of course which was objectionable even in the regimes which preceded the framework decision (see Re: Evans

[1994] 1 WLR 1006

at 1012H). In addition, Mr Butt relies on what is said to have been the charge sheet on the basis of which the appellant was being tried. That charge sheet was made available to us at a very late stage before today's hearing.

[17]There is an objection by Miss Lindfield, on behalf of the respondent authority, to that charge sheet being relied on in circumstances where it was not produced before the District Judge. It is open to this Court in defined circumstances to allow an appeal on the basis of evidence that is available to the Court but was not available to the court below (see section 27 of the 2003 Act). In Miklis v The Deputy Prosecutor of Lithuania

[2006] EWHC 1032

Admin at paragraph 3, Latham LJ said:

"...the court will require to be persuaded that there is some good reason for the material not having been made available to the District Judge. And where there could be any suggestion of the appellant 'keeping his powder dry' he must expect the Court to view any application to rely on such evidence with some scepticism."

We have been told by Mr Butt of the difficulties of getting the material from the appellant's Maltese lawyers, but we do not have a clear picture of the position, nor any supporting evidence. From what we have been told, however, I do not think the appellant can be accused of deliberately keeping his powder dry for this appeal.

[18]The greater difficulty is to be sufficiently certain of the status of the charge sheet. The appellant has produced one copy which bears a court stamp and signature, together with the date of 12th May 2003 which was the date the appellant's trial commenced. That states in clear terms that the charge in relation to Mr Shepherd is one of causing harm of a grievous nature, whereas the charge or charges in relation to the Attards was or were of causing harm of a slight nature. In response, Miss Lindfield has produced a different copy of the same document, a copy which she had in her possession. That copy contains some manuscript comments which, if read benevolently, suggest that the charges in relation to the Attards were amended so as to refer to causing harm of a grievous bodily nature and of a slight nature. There is, however, nothing to report the date of any amendment, or that such an amendment was authorised by the court. I have to say that the manuscript comments do not bear the hallmarks of an official amendment. Miss Lindfield said she would have to ask for an adjournment to obtain instructions if more certain information about the status of the document she was able to produce was required by the court.

[19]The charge sheet is a puzzling and unsatisfactory feature of this case but, in the circumstances, I do not think it would be right to place reliance on it without allowing Miss Lindfield time to establish the requesting authority's position in relation to the copy produced by the appellant and in relation to the different copy that was in Miss Lindfield's own possession. I would leave open the question whether, if the court were certain of the status of these different documents, it could then properly have regard to them in determining the issue of the extradition offence.

[20]Miss Lindfield herself relies on the terms of the warrant and on the letter from the Attorney-General's office which, as I have indicated, states expressly that the offences for which the return is requested are three counts of grievous bodily harm but that in relation to the Attards the appellant is also accused of causing different injuries of a slight nature.

[21]Where does all this leave one? On any view this warrant is a terrible muddle. The warrant says that it relates to six offences, yet it plainly refers to more than six offences. Three of those offences, namely damage to property, disturbing the public peace and traffic violation can be left on one side, although in reading out the relevant parts of the warrant I thought it right to include reference to them so that the warrant can be understood in its totality.

[22]As to offences of bodily harm, the warrant says that there are three counts and refers to three counts being in the framework list, yet it also refers, on its face, to at least one offence of slight bodily harm. In relation to offences of bodily harm, it also refers to four different provisions of the criminal code. It would seem that one of them (Article 221) relates to slight bodily harm and that three of them (Articles 214, 216 and 218) relate to grievous bodily injury. The warrant does not specify which offence falls under which provision. Further, if one considers the conduct described in the warrant it is very difficult indeed to see how it could give rise to three separate offences of grievous bodily injury, in particular how the conduct in relation to the Attards can be said to involve such offences. On those matters, I accept Mr Butt's submissions.

[23]Plainly it would not be appropriate to approach the construction of a warrant of this kind in the same way as, for example, an English statute. But even applying an appropriate degree of benevolence, I am not satisfied there have been shown to be three framework list offences in respect of which the appellant's return is sought. The letter from the Attorney-General's office does not seem to me to provide a satisfactory answer. It asserts that offences for which return is being requested are three counts of grievous bodily harm, but it does not explain how that ties in with the warrant. Moreover, it goes on to refer to additional offences of slight bodily injury in relation to the Attards, without casting any light of how that ties in with the warrant, or how those offences differ from the conduct described in the warrant in relation to the Attards. There is simply no explanation how the conduct described in the warrant can generate both offences of grievous bodily injury and separate offences of slight bodily injury in relation to the same alleged victims. In my view, all one can safely conclude is that the appellant's return is sought in relation to at least one offence of grievous bodily injury in relation to the attack on Mr Shepherd.

[24]Then there is a further difficulty about that, which is that neither the warrant nor the further letter indicates which provision of the Code that offence falls under. Nor does the warrant tell one with sufficient clarity what is the maximum sentence for that particular offence. It does not say that the maximum sentence for the one offence which is clearly an extradition offence is nine years. It simply gives the figure of nine years for the offences of bodily harm, referring, as I have said, to three counts, although the warrant has quoted more than three offences of bodily harm and it is open to doubt whether there is a total of nine years, as the District Judge held, or whether nine years is the maximum for a single offence. It does not tell whether, if it is the latter, it is nine years for an offence under Article 214, Article 216 or Article 218. For the reasons I have already given, one does not know which of those articles is said to be engaged in relation to the one extradition offence as to which one can be satisfied. In my judgment, what is contained in the warrant does not meet the requirement of the particularity as to sentence in section 2(4)(d) of the Act. That is sufficient to invalidate the warrant.

[25]More generally it is right to say that I do not regard this warrant as being cast in sufficiently clear and particularised form to meet the conditions for extradition. There are also surrounding features of the case that cause concern, not least the fact that the charge on the face of it is limited to one offence of grievance bodily injury, albeit, as I have said, no final judgment can be made in relation to that without giving the requesting authority an opportunity to deal with the point.

[26]The conclusion I have reached on the first two grounds of appeal makes it unnecessary to consider the third ground, advanced with some vigour by Mr Butt, that the requesting authority has provided deliberately misleading information to this Court resulting in an abuse of process. It is both unnecessary and wholly inappropriate for me to consider the matters raised in that connection, having regard to the conclusion I have reached on the earlier grounds.

[27]For the reasons I have given, I would allow this appeal.

MR JUSTICE GIBBS: I agree.

[29]MR BUTT: My Lord, may I ask for a legal aid assessment order?

LORD JUSTICE RICHARDS: Yes, detailed assessment for these purposes certainly, but do we have to go further in allowing the appeal, do we have to direct discharge?

[31]MR BUTT: My Lord, yes.

LORD JUSTICE RICHARDS: We allow the appeal; order the appellant's discharge and give a detailed assessment for public funding purposes.

[33]MR BUTT: Thank you, my Lord.

LORD JUSTICE RICHARDS: And formally quashing the District Judge's order as a necessary consequence of allowing the appeal. So it probably goes in the order of appeal allowed; district judge's order quashed; discharge ordered and detailed assessment.

[35]MR BUTT: That would seem more appropriate, my Lord.

LORD JUSTICE RICHARDS: Thank you very much both for your assistance.

Order

Art 338(dd)CC ...; (1 count) Violations of the Motor Vehicle Regulations; obstruction to traffic Section 55(3) second schedule... NB Of above in Relation to Framework List below ONLY: (3 counts) Wilful Offences Against the Person: Art 214, 216, 218, CC."