Gabriel v Court of First Instance and Instruction No 1 of Cadiz, Spain [2009] EWHC 1282 (Admin)

[2009] EWHC 1282 (Admin)Case No CO/746/09
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 3 June 2009
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE SULLIVAN
MR JUSTICE WILKIE
Between
COLIN MURRAY GABRIELClaimantv
Between
COURT OF FIRST INSTANCE AND INSTRUCTION NO 1 OF CADIZ, SPAINDefendant(A PART 1 JUDICIAL AUTHORITY)Defendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424(Official Shorthand Writers to the Court)
Mr Seth Levine (instructed by BSB Solicitors) appeared for ClaimantMiss Amelia Nice (instructed by CPS) appeared for Defendant
J U D G M E N T

LORD JUSTICE SULLIVAN:

[1]This is an appeal under section 26 of the Extradition Act 2003 ("the Act") against the order of District Judge Evans on 20 January 2009 extraditing the appellant to Spain pursuant to Part 1 of the Act. The European Arrest Warrant ("the warrant") was issued by the Court of First Instance and Instruction No 1 of Cadiz on 10 March 2008. The warrant seeks the appellant's extradition for "an offence against public health due to drug trafficking".[2]At the hearing before District Judge Evans, it was submitted on behalf of the appellant that the warrant was not a valid arrest warrant for the purposes of Part 1 of the Act because the conduct described in the warrant was insufficiently particularised for the purposes of section 2(4)(c) of the Act, and as a result of that failure, the United Kingdom authorities could not be satisfied that the appellant was an "accused person" who was wanted for prosecution in Spain, rather than someone who was merely wanted for questioning by the Spanish authorities.[3]Section 2(2) of the Act states that- "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) ..."[4]There is no dispute that the warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory. Sub-section (3) states:
"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."
[5]The information referred to in sub-section (4) includes:
"(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 ..."
[6]This provision reflects Article 8 of the Council Framework Decision, paragraph 1(e) of which requires a European Arrest Warrant to contain "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". On behalf of the appellant, Mr Levine emphasised the concluding words "the degree of participation in the offence by the requested person".[7]Turning to the warrant, having set out the appellant's details in paragraph (a) and details of the arrest warrant in paragraph (b), paragraph (c) of the warrant describes the "OFFENCE OR OFFENCES FOR WHICH THE ARREST WARRANT IS BEING ISSUED". Under this sub-heading, the warrant says:
"This warrant refers to events that could constitute a CRIME against PUBLIC HEALTH due to DRUG TRAFFICKING, provided for and punishable under Articles 368 and 369 of the Spanish Criminal Code."
[8]There is then a "Description of the circumstances in which the events under investigation occurred". In summary, this description says that a leisure vessel with the name of Cacauete was moored in Puerto America Marina in Cadiz on 2 February 2008. Its crew had left the marina without being seen by security staff. The authority's suspicions were aroused. They discovered that the owner of the vessel was Maria Mercedes Rodriguez Pozas, who was wanted in connection with an offence of robbery with violence. The vessel was searched on 3 February 2008 by a dog trained to detect drugs. That search revealed 81 bales of concealed hashish worth over 2.6 million Euros.[9]The description continues in paragraph 5:
"During the unloading of the bales, agents discovered a United Kingdom passport in [the appellant's name] ... and a driving licence in the same name. 6. The Civil Guard were unable to discover the whereabouts of either of those accused, so a warrant for the search for and capture of both was issued at a national level. Subsequently, the Civil Guard reported that the British citizen could be out of the country."
[10]Under the heading, "Nature and legal classification of the offence or offences and applicable legal stipulations or code", there is the following:
"According to Spanish law the above events constitute an offence AGAINST PUBLIC HEALTH due to DRUG TRAFFICKING, at the level considered to be of great importance ... pursuant to Articles 368 and 369 of the Criminal Code and punishable with PRISON SENTENCES of THREE to FOUR AND A HALF YEARS, with rational indications of criminal action such as to believe that the perpetrator of these offences is [the appellant] as crew of the vessel. I. For the purposes of the non-application of the principle of double incrimination we will now indicate by underlining if the offence falls within one of the following categories of crime ..."
Illicit trafficking in narcotics and psychotropic substances is then underlined. The warrant is signed by a magistrate-judge of the Court of First Instance and Instruction No 1 of Cadiz.[11]It is common ground between the parties that the introductory word "Particulars" in paragraph (c) in sub-section 2(4) makes it clear that "a broad omnibus description of the alleged criminal conduct" will not suffice: see Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin). Although a number of authorities were cited in the parties' skeleton arguments, appeals under Part 1 of the Act tend to be very fact sensitive. Whether a warrant does or does not contain "particulars of the circumstances ..." will depend on the facts of the individual case. Perhaps the most helpful general guidance is to be found in the judgment of Cranston J in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin). Having referred to the need to strike a balance between the need to inform the person named in the warrant as to why his extradition is being sought, and the objective of simplifying extradition procedures, Cranston J said:
"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."
[12]That clearly reflects the requirement in Article 8(1)(e) of the Directive that the person named in the warrant needs to be told his degree of participation in the offence.[13]On behalf of the appellant, Mr Levine submitted that, absent a description of the specific role of the requested person in the alleged offence, the court in the executing authority could not make an informed decision about the conduct, and the requested person would not know precisely why his extradition was being sought. He submitted that the warrant did not describe the appellant's conduct; it merely drew inferences from a set of circumstances.[14]The warrant must be read as a whole, and due allowance must be made for the effects of translation from the Spanish original into English. I have no doubt that, if that is done, the warrant does tell the appellant not merely what offence he is said to have committed -- trafficking a substantial amount of hashish -- but also his alleged role in that offence, namely as crew of the vessel in which the drugs were concealed.[15]The appellant's real complaint, in my judgment, is not that this allegation is in any way unclear -- the appellant knows perfectly well what he is said to have done -- his complaint is, in reality, that the mere discovery of his passport and driving licence on the vessel while the bales of hashish were being unloaded from it, while it might arouse suspicion against him, could not possibly of itself justify a prosecution against him. However, it is common ground that the warrant did not have to set out the evidence on which the allegation against the appellant was based, and the District Judge was not concerned with whether the appellant had a case to answer. An investigation into the merits of the proposed prosecution would be entirely contrary to the principles of neutral recognition on which the Framework Decision is based.[16]In the appellant's skeleton argument, it appeared that the second ground of appeal was parasitic upon the first. Thus, it was said in paragraph 10 that the conduct in the warrant was insufficiently particularised for the purposes of section 2(4)(c), and "as a result of the failure identified in the first ground" the executing state could not be satisfied that the appellant fell within section 2(3)(b), ie that he was an accused person.[17]Mr Levine submitted before us that, even if we did not accept ground 1 and concluded, as I would conclude, that the conduct in the warrant was sufficiently particularised for the purposes of section 2(4)(c), nevertheless the second ground of challenge did have a life of its own. Insofar as the second ground is parasitic upon the first, it would of course fail for similar reasons. It is said that the second ground has a life of its own because it is "inconceivable" that the appellant could be prosecuted on the basis of the facts set out in the warrant. In the absence of any more material, it is submitted the appellant must be merely under suspicion and wanted for questioning rather than trial.[18]In my judgment, once it is accepted that the warrant does give a description of the appellant's conduct, his degree of participation in the offence, namely as crew of the vessel in which the drugs were being trafficked, this ground of challenge also falls away. The preamble to the warrant requests the appellant's return to Spain "for the purposes of carrying out criminal trial proceedings". The warrant is signed by a competent judicial authority, a magistrate-judge, and there is nothing on its face to suggest that the appellant is merely wanted for questioning rather than prosecution.[19]The evidential basis for the prosecution may appear, on the face of the warrant, to be thin, but that is not a sufficient reason for the executing authority not to take the warrant at face value. As I have said, it is common ground that the warrant does not have to set out the evidence on which the Spanish authorities rely for contending that the appellant was crew of the vessel in which the drugs were being trafficked. To examine the adequacy of the evidence or the basis on which the Spanish authorities drew inferences would be to embark upon an inadmissible investigation into the merits of the prosecution.[20]For these reasons, I am satisfied that neither of the grounds of challenge to the district judge's decision is made out, and for my part I would dismiss this appeal.[21]MR JUSTICE WIKIE: I agree. I too would dismiss the appeal.[22]MR LEVINE: My Lords, I am grateful. May I ask for an assessment of legal aid costs?

LORD JUSTICE SULLIVAN: You may indeed.

[24]MR LEVINE: Very grateful.

LORD JUSTICE SULLIVAN: May I thank you both for your very helpful skeleton arguments.