Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin)

Case No CO/9863/2007[2007] EWHC 3106 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 7th December 2007
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE CRANSTON
Between
GILBERT EKTORClaimantv
Between
NATIONAL PUBLIC PROSECUTOR OF HOLLANDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ben Lloyd (instructed by Messrs Lawrence & Co Solicitors, London) appeared for ClaimantMs Clair Dobbin (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is another appeal to this court involving an European arrest warrant. In broad terms, the warrant in this case alleges cross-border people trafficking. The appellant contends that the warrant does not comply with the requirements of the Extradition Act 2003 and that consequently the District Judge had no jurisdiction to make the order for extradition. In particular, it is said that the warrant is defective because it does not set out adequately the particulars of the conduct relating to the offences alleged against the appellant. The Facts[2]Let me start with the facts. On 17th October 2007, a Public Prosecutor of the National Public Prosecutor's Office of the Netherlands issued an European arrest warrant for Robby Reinholt Hallatu for serious offences associated with people trafficking. Despite the name on the warrant, there is no issue before this court that the appellant, who travels under various aliases, is not the person named in the warrant. The following day, 18th October, an officer of the Serious Organised Crime Agency, which is the agency designated in this country for these purposes, issued a certificate under section 2(7) of the Act. In effect, this recognised the Netherlands as a country to which the provisions of Part 1 of the Act apply. After details about the appellant, the European arrest warrant in this case set out the five offences for which the Dutch authority sought him: human trafficking, contrary to Article 273 of the Dutch Penal Code; people smuggling, Article 197 of that Code; falsification or forgery of travel documents, Article 231; abduction of minors from custody, Article 275; and participation in a criminal organisation, Article 140.[3]The offences are explained in outline terms in the warrant. The warrant then contained the following under the heading "Description of the facts":
"The person named above is suspected among other things of carrying out human trafficking together with others (including the exploitation of others, which among other things includes enforced prostitution), people smuggling (including aiding and abetting the bringing of illegal persons into the Netherlands), the removal of underage children from the lawful authorities, falsifying or forging of travel documents and/or participation in a criminal organisation, which organisation is alleged to have been participating in said offences in the Netherlands during the period from 1 January 2006 up to and including 24 October 2007. At the time when the offences were being committed Hallatu ('Gilbert'/'Gilbert Solomon') was (mostly) in England. Gilbert CONSPIRED to commit the offences detailed. The organisation, of which the suspect is a member, is involved among other things in recruiting minors in Nigeria. These are then brought to Western Europe, especially the Netherlands. These minors then register as asylum seekers with the Dutch government which then in accordance with Dutch law proceeds to place them in refuges for underage people. Then, by using threats of violence against those minors or members of their family with threats of Voodoo, the organisation forces these minors to leave the refuge for minors after which they generally end up in Spain or Italy as illegal prostitutes. The suspect played an important role and directing role in the transport of minors, arranging false documents, maintaining contact between the various members of the organisation and directing one or more of them, including in the Netherlands. The criminal organisation is suspected of being a wide-reaching criminal network, operating at a national and international level."
It is these details which are at issue before us today.[4]The warrant having been issued, the appellant was arrested on 24th October. There was an initial hearing the following day and the extradition hearing was conducted by District Judge Wickham at the City of Westminster Magistrates' Court on 2nd November 2007. No issue about what happened at that hearing is raised before us today. The District Judge ordered extradition and the appellant now exercises his right of appeal to this court under section 26 of the Extradition Act 2003. In law, he argues that the warrant, not complying with the Act, is a nullity and the District Judge lacked jurisdiction: Boudhiba v Spain [2006] EWHC 167 (Admin). The Law[5]Let me set out the law. The European arrest warrant is a measure of the European Union introduced by Council Framework Decision 2002/584/JHA of 13th June 2002. In brief, it is a measure, as reflected in its pre-amble, to simplify extradition procedures between member states of the European Union. It is based on the principle of mutual recognition by the member states of decisions in other member states and, in broader terms, of the mutual trust which member states have in the justice systems of each other. One aspect of the Council Framework Directive is to remove the requirements of double criminality in relation to certain offences set out in Article 2(2) if punishable in the issuing member state by imprisonment or detention for at least three years. It is fair to say that the measure was not uncontroversial, not only here but in other European member states. That is no surprise because, as Lord Hope put it in a passage to which we were taken, the right to liberty is at issue: King's Prosecutor, Brussels v Armas [2006] 2 AC 1 at paragraph 24.[6]As it is obliged to under the Treaty on European Union, the United Kingdom gave effect to the European arrest warrant. It did this in the Extradition Act 2003 Part I, which covers extradition to so-called category 1 territories. That the Act derives from the Council Framework Decision is relevant to the approach we must adopt to its interpretation. We must do so, as the Grand Chamber of the European Court of Justice has held, in the light of the wording and purpose of that Council Framework Decision: Case 105/03, Criminal Proceedings against Pupino [2005] ECR 1-5285. That approach was treated as authoritative by the House of Lords earlier this year in Dabas v Spain [2007] 2 AC 31. Dabas involved a different aspect of Part I of the Extradition Act from that before the court today, the requirement for a certificate in section 64. In his speech, Lord Bingham or Cornhill invoked Pupino, as did Lords Hope and Brown of Eaton-under-Heywood, paragraphs 5, 39 and 76. Lord Mance agreed with their opinions. As Lord Hope put it, the search for the meaning and effect of the provision in the Extradition Act 2003 in issue in that case "does not consist only of an examination of the words of the statute"; at paragraph 38. Lord Eaton-under-Heywood expressed it this way (paragraph 76):
"Put shortly, Pupino imposes upon national courts the same interpretative obligation to construe national law so far as possible to attain the result sought to be achieved by framework decisions as the ECJ in MarleasingSA v Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR 1-4135 had earlier imposed upon national courts to achieve the purpose of directives."
[7]The part of the Council Framework Decision at issue before us is Article 8, headed "Content and Form of the European Arrest Warrant".

(e) :

"a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person..."
Reference to the Annex to the decision does not take us any further. In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place.[8]In implementing this provision in the United Kingdom, the Extradition Act 2003 provides in section 2(4) that the information in the European arrest warrant must include:
"(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, [and] the time and place at which he is alleged to have committed the offence..."
That language, Dyson LJ said in Von Der Pahlen v Austria [2006] EWHC 1672, is not obscure and can be given a plain and ordinary meaning (paragraph 21). Whether in requiring "the conduct alleged to constitute the offence" the subsection goes beyond the European Framework Decision, and so needs to be read consistently with it, we can leave to another day. For my part, I have no doubt that it can be so read. What is clear is that there is no need to put any gloss on the language; for example, that the language somehow connotes the specificity or lack of it demanded in the particulars for a count on an indictment. In making that point, in a decision of this court, Auld LJ added the valuable point that allowance needs also to be made that the description in an European arrest warrant can often be expected to have been translated: Fofana v Thubin [2006] EWHC 744, paragraph 39. Submissions of the appellant[9]In his able argument, Mr Lloyd for the appellant contended that the European arrest warrant in this case does not contain sufficient particulars of the circumstances in which the appellant is alleged to have committed the offences. Thus it falls short of the demands of section 2(4)(c) of the Extradition Act 2003. (He expressly takes no point that the allegations do not satisfy any requirements of dual criminality because the appellant was in England for the most part when the offences alleged had been committed in the Netherlands.) In relation to section 2(4)(c), Mr Lloyd says, firstly, that the warrant gives generic descriptions of the types of offences alleged against the appellant. For example, the alleged conduct is described as human trafficking with others. This, it is said, is simply a title of an alleged offence and does not in itself provide sufficient details of conduct said to constitute the offence. Furthermore, says Mr Lloyd, in relation to the allegations that the appellant conspired to commit offences, the warrant does not contain sufficient details as to his precise conduct. The warrant simply says that the suspect played an important and directing role but it does not tell us how this was done. There is no detail, Mr Lloyd continues, of how "arranging false documents" occurred, by approaching the passport office or by wrongly using birth certificates or otherwise. Moreover, there is no detail of how the appellant transported the children, by vehicles or airplanes. Furthermore, Mr Lloyd says that in some respects the warrant is unclear and often contradictory. For example, the warrant states that at the time the offences were being committed the appellant was mostly in England but there is no detail as to where else he was when committing the offences. A contradiction is said to be that, while the warrant states that the appellant conspired to commit the offences, he is also accused of aiding and abetting the bringing of illegal persons into the Netherlands. In other words, it is being said that he is both a conspirator and a secondary party. Criticism is also made of the warrant because it states that the appellant is suspected "among other things" of these offences and also that the appellant is suspected of human trafficking, including the exploitation of others, which "among other things" includes enforced prostitution. The phrase "among other things" is said to fall short of the statutory requirement.[10]In my view, this European arrest warrant satisfies the requirements of section 2(4)(c) of the Extradition Act 2003. The appellant can have been under no misapprehension as to why he is being sought by the Public Prosecutor of the Netherlands. In the light of how this court must interpret the requirements of section 2(4)(c), I cannot accept Mr Lloyd's submissions that the details are too vague or are contradictory. The warrant makes quite plain the nature and scope of the conspiracy to which the appellant is alleged to be a party. The warrant indicates the role of the appellant within that conspiracy, namely that he played a directing role in the transportation of underaged children, that he arranged false documentation and that he acted as an intermediary in maintaining the links between various members of the conspiracy. The time period of the conspiracy is set out from 1st January 2006 until the time of his arrest. The warrant specifies the route by which the underaged children were trafficked. They were recruited in Nigeria and then brought to western Europe, in particular to the Netherlands. It specifies how those children became asylum seekers, how they ended up in refuges and how they were frightened into fleeing those refuges by violence and Voodoo. Finally, it specifies that the children generally ended up in Spain or Italy as prostitutes. As Ms Dobbin put it in her written submission, on an overall analysis the modus operandi of the conspiracy is there for all to be seen. In my view, affording the statutory language its plain and ordinary meaning, the circumstances in which this appellant is alleged to have committed these offences is set out in the European arrest warrant before us. I would dismiss the appeal.

LORD JUSTICE RICHARDS: I agree. I should make clear that I see no difference in substance between section 2(4)(c) of the Extradition Act 2003 and Article 8(1)(e) of the Framework Decision but it is not necessary to consider that point any further because, giving the words of section 2(4)(c) their full force and their plain and ordinary meaning, I, like Mr Justice Cranston, take the view that the warrant in this case contains the requisite particulars. Accordingly, the appeal is dismissed.

[12]MR LLOYD: My Lord, I ask simply for a detailed assessment of legal aid costs.

LORD JUSTICE RICHARDS: You may certainly have that. We are grateful for your assistance and also for your assistance, Ms Dobbin, even though we did not call on you. Thank you very much.

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