Moulai v Deputy Public Prosecutor of Creteil, France [2009] EWHC 1030 (Admin)

[2009] EWHC 1030 (Admin)Case No CO/2843/2008
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/05/2009
Before
LORD JUSTICE KEENEMR JUSTICE RODERICK EVANS
Between
Lofti MoulaiAppellantDeputy Public Prosecutor of Creteil, FranceRespondent
Manjit Gill QC & Martin Henley (instructed by Central Law Practice, Wembley HA9 6TE) for AppellantJohn Jones (instructed by CPS, Extradition Unit, London EC4M 7EX) for RespondentHearing Hearing date: Thursday 7 th May 2009
Judgment
[1]This is an appeal under section 26 of the Extradition Act, 2003 (“the 2003 Act”) from an order of District Judge Evans, sitting at the City of Westminster Magistrates Court, whereby on 14 March 2008 he ordered the extradition of the appellant to France. That date indicates that an unusually lengthy period of time has elapsed since the District Judge’s order, a period which is largely explained by the fact that a preliminary point was taken before this Court, differently constituted, on 17 April 2008. The point concerned the service of the notice of appeal on the respondent; this court extended time for such service, but the matter then went to the House of Lords, which held that the notice of appeal had been served in time. That decision was handed down on 21 January 2009. That is relevant for reasons to which I shall come.[2]The appellant is an Algerian national, who is in fact currently serving a custodial sentence in this country because of an offence committed here. A European Arrest Warrant seeking his extradition was issued by the respondent on 8 October 2008. France is a Category 1 territory under section 1 of the 2003 Act, Part I of which therefore applies in this case. The extradition of the appellant is sought, according to the warrant, in respect of two offences: first, what is described in the translation of the warrant as “swindle” – “escroquerie” in the original – in that during September, October and November 2003 and until 1 April 2004 he as part of an organised gang, the other members of which are named, misappropriated several hundreds of hire cars in Rennes, Cannes Orly, Roissy and Paris, with the intent of re-selling them in the Maghreb; and secondly, using false European administration documents and recoded bank cards. The warrant states also that the appellant was the leader of the network. The articles of the French penal code relevant to these offences were specified in the warrant. There is no dispute that such offences constitute extradition offences for the purposes of Part I of the 2003 Act[3]The warrant also states that a warrant (i.e. a domestic warrant) was issued by the examining judge at Creteil on 23 June 2004, that judgment on the appellant was passed in his absence, “by default”, on 4 October 2004 by the court at Creteil and that he was sentenced to five years imprisonment. It states, and this too is not in dispute, that he has the right under French law to re-open the case so long as he applies by 22 February 2010, while on French territory.[4]The warrant was duly certified under the 2003 Act on 9 October 2007.

The Time Limit Issue:

[5]Three issues are raised on this appeal by the appellant. The first concerns time limits. Section 31 of the 2003 Act, insofar as is relevant for present purposes, provides:
“(1) Rules of court must prescribe the period ( the relevant period) within which the High Court must begin to hear an appeal under section 26 or 28. (2) Rules of court must provide for the relevant period to start with the date on which the person in respect of whom a Part 1 warrant is issued - (a) was arrested under section 5, if he was arrested under that section; (b) was arrested under the Part 1 warrant, if he was not arrested under section 5. (3) The High Court must begin to hear the appeal before the end of the relevant period. (4) The High Court may extend the relevant period if it believes it to be in the interests of justice to do so; and this subsection may apply more than once. (5) The power in subsection (4) may be exercised even after the end of the relevant period. (6) If subsection (3) is not complied with and the appeal is under section 26 – (a) the appeal must be taken to have been allowed by a decision of the High Court; (b) the person whose extradition has been ordered must be taken to have been discharged by the High Court; (c) the order for the person’s extradition must be taken to have been quashed by the High Court.”
The Civil Procedure Rules have prescribed a period of forty days in compliance with section 31(1) and (2): see CPR PD 52, paragraph 22. 6A. (3)(c). (a) was arrested under section 5, if he was arrested under that section; (b) was arrested under the Part 1 warrant, if he was not arrested under section 5. (a) the appeal must be taken to have been allowed by a decision of the High Court; (b) the person whose extradition has been ordered must be taken to have been discharged by the High Court; (c) the order for the person’s extradition must be taken to have been quashed by the High Court.”[6]The chronology here is that time was extended by Collins J for the hearing of the appeal to 31 May 2008 by an order dated 3 April 2008. On 17 and 18 April 2008 the Divisional Court heard the argument on the preliminary issue as to whether the appeal was brought in time. When the Divisional Court’s judgment was handed down on 9 May 2008, its formal order included an extension of time “for the hearing of the appeal until 56 days after the House of Lord’s judgment is handed down”. That latter judgment was, as I have said, handed down on 21 January 2009. The fifty six days expired on 17 March 2009, and there has been no further order, so far at least, extending time.[7]Given that history, Mr Gill, Q.C., for the appellant submits that section 31(6) has come into operation and that the appeal must be taken to have been allowed and the appellant discharged. He argues that it is too late now to exercise the section 31(4) power, because although it allows for a retrospective extension of the period no application was made by the respondent for such an extension before the 56 days expired. It is submitted that section 31(6) would be rendered meaningless if the requesting authority could apply for an extension after the relevant period has expired. It would create what Mr Gill describes as a hiatus in the proceedings. He places some reliance on the fact that there are strict statutory time limits in sections 26 and 32 on the giving of notice of appeal to this court and to the House of Lords. Moreover, the whole context of these proceedings is one of a tight timescale because individual liberty is at stake.[8]It is acknowledged on behalf of the appellant that the court can exercise the power to extend time under section 31(4) and (5) of its own motion, so long as the parties have an opportunity to address the merits of the extension. Mr Gill also accepts that the appellant could have sought a declaration that section 31(6) had come into effect. He did not do so, nor did he seek to have the hearing brought on more quickly, because (as Mr Gill frankly told us) this section 31 point was not thought of until the Easter vacation. Nonetheless, it is emphasised that it would have been easy for the respondent to have applied for an extension before the 56 days expired.[9]As for the respondent’s argument that the appeal hearing had already begun in April 2008 when the Divisional Court heard argument about whether the notice of appeal was served in time, so satisfying the requirements of section 31(3), the appellant’s case is that that cannot be treated as the start of the appeal hearing. The respondent at that stage was arguing that there was no valid appeal and so the appeal could not be heard. Mr Gill also points to paragraph 3 of the Divisional Court’s order at the end of that hearing, the order dated 19 May 2008, which extended time “for the hearing of the appeal”. That, it is said, was framed on the footing that the hearing had not yet started.[10]For the respondent, Mr Jones first does indeed submit that the requirements of section 31 have been met by the hearing before the Divisional Court in April 2008. That, it is submitted, is to be seen as the High Court beginning to “hear” the appeal for the purpose of that section. The mere fact that it was argued by the respondent at that stage that the appeal was out of time does not prevent the hearing into that preliminary point being regarded as the start of the appeal hearing. The order of the Divisional Court should not be seen as a section 31(4) order but as one made as part of the court’s normal case management powers under the CPR.[11]In any event, says the respondent, the court has the power to extend the relevant period retrospectively by virtue of section 31(5) and, if it is necessary, the respondent seeks such an extension to the date of this hearing. There is no authority which requires an application by the requesting body for an extension to be made before the relevant period has expired. Section 31(5) is in clear and unrestricted terms, save that the court must believe that such an extension is in the interests of justice. That criterion is met in the present case; no prejudice to the appellant through the granting of the necessary extension has been put forward.[12]I can see force in Mr Jones’ argument that, if a court hears a preliminary point as to whether the appeal is out of time or not, the hearing of that point amounts to a beginning of the hearing. It goes to jurisdiction and normally a court is empowered to take decisions about the scope of its jurisdiction as part of the exercise of that jurisdiction. That being so, it seems somewhat artificial to regard the hearing of the preliminary point as something separate from the hearing of the appeal. After all, the matter only came before the appeal court in its capacity as an appeal court dealing with an appeal, in this case under section 26 of the 2003 Act.[13]But I recognise that the position is not free from doubt and since, as will be seen, I would grant any necessary extension of the relevant period under section 31, it is unnecessary to express any final view on the matter. I turn to the extension of time arguments.[14]It seems to me clear that the power to extend time can be exercised even after time has expired, if the court believes that to be in the interests of justice. Section 31(5) expressly so provides in respect of “the end of the relevant period”. That is initially a period of 40 days, but once that has been extended under section 31(4), it is the ‘relevant period’ that has been extended and which can then be extended again, subject to the application of the criterion as to the interests of justice. Nothing in section 31 leads one to interpret section 31(5) as requiring an application to extend to be made before the expiry of the period in question. It says nothing of the sort.[15]I do not accept Mr Gill’s argument that, if no application to extend the period has been made before the end of that period, to allow an extension retrospectively would render section 31(6) meaningless. That sub-section sets out the consequences if the relevant period expires and the court decides not to allow an extension. The appeal is automatically deemed to have been allowed. Section 31(6) still has that function to perform, if the court does not extend time. Mr Gill’s point, if valid, would apply just as forcefully if an application to extend time had been made before the end of the relevant period: the period would have expired without any extension having been made. If he were right, it could be argued that section 31(6) immediately operated and the appeal was deemed to have been allowed. But that is not what Mr Gill argues for, and rightly so. The power to extend time retrospectively, clearly provided by section 31(5), is incompatible with such an argument, but it likewise fatally undermines the appellant’s argument that section 31(6) must operate automatically and irretrievably once the period expires and no application to extend has been made.[16]There is another flaw in that submission. It presupposes that an application to extend the relevant period is a pre-condition to the exercise of the section 31(4) power. But it is conceded by Mr Gill that the court may exercise the power of its own volition. No application by either party is required, though no doubt that would normally occur. But if that is so, how can the retrospective power to extend the period be dependent on an application being made before the expiry of that period? Nor do I find that the appellant’s reliance on sections 26 and 32 assists his case. Those sections contain express statutory limits which must be complied with: see Mucelli v. Government of Albania [2009] UKHL 2; [2009] 1 WLR 276. There is no power to extend them. That is in complete contrast to the situation under section 31, which not only grants a power to extend time but expressly allows that power to be exercised more than once and to be exercised retrospectively. It may well be that that greater flexibility recognises that the timing of a court hearing is significantly different from the timing of the giving of a notice of appeal. The latter is under the unilateral control of the prospective appellant, but the time at which an appeal hearing takes place is not: it will involve others and in particular the court itself.[17]I conclude therefore that the power to extend the relevant period does exist in the present case. Whether that power should be exercised depends upon this court forming the belief that an extension would be in the interests of justice. The extension required to the start of this hearing on 7 May is one of just over seven weeks. That is not an insignificant period of time and any exercise of discretion must reflect the fact that the EAW system is intended to be a speedy process, as has often been emphasised. The longer the passage of time before an appeal hearing starts, the less likely in general it is that a further extension will be in the interests of justice. However, in the present case there is no evidence of any prejudice to the appellant arising from the extension now required (assuming that it is required). In particular, it is of importance that the appellant is not being detained because of the extradition process: he is currently serving a custodial sentence because of an offence committed in this country, and so any extension under section 31 is not having the effect of prolonging his detention. In addition, though of less significance, nothing has been done by him or on his behalf to seek to bring this hearing on earlier. Indeed, it seems that it was not until some four weeks after the hand-down of the House of Lord’s judgment that a time estimate was supplied by those acting for the appellant to the Administrative Court office. By then, half the 56 day period had already expired.[18]Taking all those matters into account, and in particular the absence of any prejudice to the appellant from the extension now sought (other than the inevitable fact that his appeal is not automatically allowed), I am satisfied that an extension of the relevant period to the start of this hearing is, if required, in the interests of justice and I would accordingly grant such an extension under section 31.

The form of the arrest warrant:

[19]The second issue concerns arguments about the European Arrest Warrant itself and its form in this present case. Two of the points now taken on behalf of the appellant were not taken as such before the District Judge. At that extradition hearing it was argued that section 2 of the 2003 Act did not fully reflect the Framework Decision when dealing with the information required to be set out in the warrant.[20]Section 2, insofar as relevant for present purposes, provides as follows:
“(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 whom the 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. (4) The information is – (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence (c) 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; (d) 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. (5) The statement is one that – (a) the person is respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (6) The information is – (a) particulars of the person’s identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.” (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). (a) the person in respect of whom the 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. (a) particulars of the person’s identity; (b) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence (c) 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; (d) 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. (a) the person is respect of whom the Part 1 warrant is issued has been convicted of an offence specified in the warrant by a court in the category 1 territory, and (b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence. (a) particulars of the person’s identity; (b) particulars of the conviction; (c) particulars of any other warrant issued in the category 1 territory for the person’s arrest in respect of the offence; (d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence, if the person has not been sentenced for the offence; (e) particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.”
[21]Thus the wording of section 2(2) requires the warrant to contain either the information referred to in subsection (4) or the information referred to in subsection (6). The distinction between the two requirements turns on whether the person in question is accused of an offence specified in the warrant or has been convicted of that specified offence. In the former case section 2(4) spells out the information required, whereas in the latter case less information is required. In particular while some of the particulars required are the same in both cases, section 2(4) requires information about the alleged offence in the case of an accused person.[22]Before the District Judge, it was argued that the Framework Decision, when dealing in Article 8 with the content and form of a EAW, does not draw such a distinction between a convicted and an accused person, but instead requires in all cases a description of the circumstances in which the offence was committed, including the time, place and degree of participation by the requested person. It was submitted that in consequence, section 2 of the 2008 Act should be read so as to import into section 2(6) in conviction cases the requirement to be found in section 2(4)(c). The District Judge rejected this argument. That argument is still maintained, and I shall return to it.[23]But Mr Gill first submits that the warrant must fail because it is put forward as a conviction warrant, whereas in substance the appellant is in the position of an accused person. He was convicted in absentia, and it is accepted on his behalf that he is entitled to a full retrial on the merits on return to France, so long as he so applies by the required date. He had no notice of the proceedings in France which led to his conviction. Reliance is placed on a number of decisions in the English courts which have dealt with such default judgments in absentia in a number of countries, including France.[24]Mr Gill relies on Foy v. Governor of Brixton Prison [2000] EWHC Admin 329, a decision of this court in a habeas corpus case, but one where consideration was given to the nature of a conviction in absentia in the French courts. Referring to earlier authorities, to the effect that in the case of a conviction in absentia, the person must be treated as an accused person not a convicted one if the matter could be re-opened in the event of subsequent surrender, Kennedy LJ, with whom Butterfield J agreed, held that the appellant was rightly to be regarded as a person accused. He said:
“That is because if returned to France he is entitled to have his conviction at Villefranche set aside.”
That decision was followed in Hewitson v. Government of France [2005] EWHC 135 (Admin), another case of a conviction of the applicant in absentia in a French court. Moses J (as he then was) noted that the applicant was entitled to lodge objection to the conviction if returned to France and so set it aside. He held that it was an accusation case, not a conviction case, because “this applicant has an absolute right to set aside the judgment on his return to France.” Richards J agreed.[25]Consequently, submits Mr Gill, the present warrant is flawed, because it is not put forward as an accusation warrant. It purports to be a warrant for the arrest of a person who has been convicted of the offence specified. It therefore fails to comply with section 2(3) of the 2003 Act because it does not contain a statement that the appellant is accused of the commission of the specified offence.[26]This is in my view an ingenious argument but a fallacious one. The warrant itself is in the form contained in the Annex to the Framework Decision. That Decision, at Article 8(1), states that the warrant “shall contain the following information set out in accordance with the form contained in the Annex.” As Lord Hope pointed out in Office of King’s Prosecutor, Brussels v. Cando Armas [2005] UKHL 67; [2006] 2 A.C. 1, at paragraph 26, Article 8 makes no distinction as to the contents of the warrant between accusation and conviction cases. The annexed form indeed does not require there to be a conceptual categorization between accusation and conviction cases spelt out on the face of the warrant. In essence, it requires the facts of the case to be stated. That is what this warrant does. It sets out the details of the French arrest warrant dated 23 June 2004 and then of the judgment given in the appellant’s absence on 4 October 2004, following the pattern to be found in the Annex to the Framework Decision: see paragraph (b) thereof. It then deals with the maximum length of sentence and the length of the custodial sentence actually imposed. It makes it clear that the decision was rendered in absentia and goes on to deal with the other matters set out in paragraph (d) of the Annex form, before turning to the particulars of the offences. So it makes it clear that the appellant has been convicted in his absence. Whether English law then sees that as a conviction or, because of the right to retrial in France, merely an accusation does not mean that the warrant fails to contain the statement required by section 2(2) of the 2003 Act.[27]The appellant contends that it is not enough for the requesting authority to send a warrant which is precisely in the form set out in the Annex to the Framework Decision. Mr Gill submits that authorities in territories designated under Part I of the 2003 Act, essentially the Member States of the European Union, need to add to their European Arrest Warrants when directed to the United Kingdom a statement to say whether the situation described therein amounts to a conviction or an accusation. It is not enough to say that the person sought has been convicted in absentia or by default. The strict words of section 2 of the 2003 Act must be applied by the English courts.[28]It would in my view be a retrograde step if, under the new regime of the EAW, based upon mutual trust and understanding of the systems of the states in question, the English courts were to seek to impose its own requirement of an express categorization of that kind onto the face of a warrant which is capable of being issued in any one of a considerable number of countries. As Lord Hope said in the Cando Armas case at paragraph 44 “It would be unduly strict in these circumstances to insist that a statement must appear in the actual words used in section 2(5) if a European arrest warrant is to qualify as a Part I warrant. The purpose of the requirement is to provide protection against an unlawful infringement of the right to liberty, so it is an important part of the procedure provided for by Parliament. But the court should be slow to construe those words in a way that would make it impossible to give effect to a warrant which is in the terms which the Framework Division has laid down. The purpose of the statute is to facilitate extradition, not to put obstacles in the way of the process which serve no useful purpose but are based on technicalities.”[29]In short, if the warrant in a case complies with what Article 8 and the Annex require, then it is not to be held to be invalid merely because it does not state in terms whether it is a conviction warrant or an accusation warrant. The English courts may very well need to decide which of those categories it comes into, because of other provisions of the 2003 Act, but the warrant itself will not be defective because of the absence of a clear categorization in the warrant itself. As Lord Bingham said in Caldarelli v. Court of Naples, Italy [2008] UK HL 51; [2008] 1WLR 1724, at paragraphs 22 and 23:
“22. While a national court may not interpret a national law contra legem, 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 thus comply with article 34(2)(b)EU” (Criminal proceedings against Pupino (Case C-105/03) [2006] QB 83, paras 43, 47: see Dabas v High Court of Justice in Madrid, Spain {2007] 2 AC 31, paras 5,39-40, 75-77) As I suggested in Office of the King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, para 8, the interpretation of the 2003 Act 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 co-operation by the United Kingdom than the Decision required, it did not intend to provide for less.” 23. Providing as they do for international co-operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. …”
I also draw attention to Baroness Hale’s statement in R (Hilali) v. Governor of Whitemoor Prison [2008] UKHL 3; [2008] 1 AC 805, at paragraph 32. “The issuing judicial authority will not always know where the person concerned will be found. It cannot tailor the warrant to any particular or idiosyncratic requirements of another member state.” “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 co-operation by the United Kingdom than the Decision required, it did not intend to provide for less.”[30]I say “if the warrant complies with what Article 8 and the Annex require.” That takes me on to Mr Gill’s other two points on the warrant, which are closely linked. It is argued that if the warrant is treated as an accusation warrant, as the Foy and Hewitson cases require, then it fails to provide the specific particulars required by section 2(4)(c) for such a warrant. Alternatively, even if it is treated as a conviction warrant, the same degree of particularly should be required as with an accusation warrant. As part of that latter argument, the appellant advances the point I have noted earlier, that the Framework Decision at Article 8 does not distinguish between the level of particularity required as between an accusation warrant and a conviction warrant. In either case, the basic principle of fairness (says the appellant) requires that a person knows enough detail of the case against him to enable him to request the case for extradition.[31]Mr Gill accepts that the particulars to be given do not require to be as detailed as would be needed for a person to defend himself at trial. He contends that the purpose of the particulars in the warrant is to enable him to raise any bar to his extradition under the 2003 Act. He places much reliance on a decision of this court, Van der Pahlen v. Austria [2006] EWHC 1672 Admin, where Dyson LJ, giving the leading judgment, dealt with what the words in section 2(4)(c) of the 2003 Act, “the conduct alleged to constitute the offence”, meant. He was unwilling to offer a prescriptive answer, but said that a “broad omnibus description”, such as obtaining property by deception”, would not suffice. Thus far I would agree. But he then went on to criticize the warrant in that case, because it did not identify the victims of the fraud, the number and size of the advanced payments, the nature of the fraudulent misrepresentation, or the amount of money taken.[32]So, submits Mr Gill, in the present case, the warrant fails to give the value of the cars taken, the names of the owners, how the appellant is said to be the leader of the gang, how he participated and what administrative documents he used. Nor is there information about what has happened to his alleged co-defendants. So the warrant is bad on its face.[33]I can see the force of the argument that an EAW seeking a person convicted in absentia should contain the same degree of detail as would an accusation warrant. The person in question was not at his trial, he is (in cases such as the present) entitled to a re-trial, and the Framework Decision in any event does not draw a distinction between conviction and accusation cases when dealing with the particulars required of the offence or alleged offence. In those circumstances I am prepared to treat the present warrant as requiring the same degree of particularity as would be required in the case of a person sought as an accused person in order that he should stand trial.[34]What does that necessitate on the face of the warrant? It is not in dispute that the particulars do not need to deal with what has been or will be needed to prove the offence at trial or re-trial. What Article 8 of the Framework Decision requires is, according to paragraph 1(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.” That wording is close to that which appears in section 2(4)(c) of the 2003 Act, save that in the latter the requested person’s “conduct” is added as a requirement whereas his “degree of participation” is omitted. No doubt that latter aspect is something which one would expect to be covered in the particulars of “conduct”.[35]It may well be that one needs to distinguish also between what the warrant itself needs to state by way of particulars and what evidence may be relevant at the extradition hearing. The leading authority on this is the recent House of Lords’ decision in Hilali. There Lord Hope of Craighead emphasised that the information to be provided about the offences does not require a narrative of the evidence against the person in question. He said at paragraph 26:
“The purpose for which the information is required is to enable the executing judicial authority to decide whether the offences are extradition offences, not whether they can be proved against the requested person.”
He had earlier, at paragraph 20, noted that the evidence relevant for the extradition hearing was again not the evidence needed to prove the offence but evidence about matters which the judge is required to decide at the extradition hearing, such as whether there is a bar to the person’s extradition or whether his extradition would be incompatible with his Convention rights. But at that stage Lord Hope was not dealing with the particulars required in the warrant. He in fact went out of his way at paragraph 26 to criticize the excessive extent of the information provided in the warrant in that case.[36]It is in my view wrong to use the specific matters referred to in the Van der Pahlen case as some sort of template of the matters which must be set out in the description of the offence or alleged offence, and Dyson LJ expressly denied seeking to provide a prescriptive answer to the question “how far does the warrant have to go?” Moreover, one needs to bear in mind that the court there did not have the benefit of the later decision of the House of Lords in Hilali to guide it. Neither the Framework Decision nor section 2 of the 2003 Act, even in an accusation case, require the identity of the victims to be given, and in a case such as the present, that would go way beyond the concept of brief particulars required in the warrant. The courts of the requested state are not required to consider whether there is a case to answer.[37]The appellant has gone so far as to argue that in a case such as the present the required particulars in the warrant must identify the main prosecution witnesses, so that he can tell if he needs to find other witnesses of his own. They may have disappeared, which would be relevant to an objection to extradition based upon section 11(1)(c), the passage of time and the consequential injustice or oppressiveness of extradition (section 14). Mr Gill contends that one needs a summary of the evidence against the appellant for that reason.[38]That seems to me to be an attempt to revert to the situation which existed before the European Arrest Warrant came into being. Normally if a requested person has the details of the date and time of an alleged offence, together with a brief description of the conduct alleged on his part, he will be in a position to raise a passage of time objection under section 11(1)(c). He does not require to be told, even briefly, what the evidence is against him.[39]The value of the cars taken again is not a necessary particular of the warrant. This warrant gave, as I have indicated near the beginning of this judgment, a description of the places, dates and role of the appellant, and the conduct in question is also clearly if briefly described. As noted earlier, there is no dispute that the offences referred to are extradition offences for the purpose of Part I of the 2003 Act.[40]In those circumstances, whether one treats the appellant as a convicted person or an accused person, this warrant in my judgment gave adequate particulars to be a valid warrant. For that reason, it seemed to me to be unnecessary for there to be an adjournment to obtain further evidence on the effect of the judgment in absentia in France on the appellant if returned there. Even if he is to be treated as an accused, the particulars given are adequate.

Specialty:

[41]Finally the appellant raises a third issue, that of specialty. It is argued that the details in the warrant are insufficient for the court to be able to tell whether there is a bar under section 17 of the Act to extradition. There is, it is said, a risk of the appellant being tried for an offence not specified in the warrant and not otherwise covered by the exceptions in section17.[42]There is no evidence of such a risk. This argument, as Mr Jones for the respondent says, and the appellant accepts, really stands or falls with the argument about the adequacy of the particulars given in the warrant. Since I see no force in the latter argument, it follows that this point must likewise fail.[43]I for my part would dismiss this appeal and uphold the District Judge’s order for extradition.[44]I agree.