Criminal Court at the National High Court, 1st Division (A Spanish Judicial Authority) v Murua [2010] EWHC 2609 (Admin)

Case No CO/8732/2010[2010] EWHC 2609 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8 October 2010
Strand
London WC2A 2LL
B e f o r e:
SIR ANTHONY MAY
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
Between
THE CRIMINAL COURT AT THE NATIONAL HIGH COURT, 1ST DIVISIONAppellant(A SPANISH JUDICIAL AUTHORITY)Appellantv
Between
GARIKOITZ IBARLUCEA MURUARespondent
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)
Ms Melanie Cumberland (instructed by the Crown Prosecution Service) appeared for AppellantMr Mark Summers (instructed by Messrs Birnberg Peirce & Partners) appeared for Respondent
J U D G M E N T

SIR ANTHONY MAY

[1]: This is an extradition appeal where the extradition of the respondent, Mr Murua, has been requested by the 1st Section of the National High Court of Madrid, Spain, Spain being a designated Category 1 territory under section 1 of the Extradition Act 2003. Part 1 of the 2003 Act applies.[2]The European Arrest Warrant in this case asserts that the respondent stands accused of three offences of "terrorist havoc", contrary to Articles 346 and 577 of the Spanish Criminal Code, each punishable with 16 years' imprisonment consecutive, thus totalling 48 years in all.[3]Conduct is alleged in the European Arrest Warrant which I shall come to later in this judgment, and it is further significantly alleged that, whilst carrying out the alleged conduct, those concerned (which included seven other defendants in addition to the respondent) had their faces concealed with balaclavas.[4]On 8 May 2006 a committal order was issued by the 1st Section of the National High Court in Madrid. On 18 February 2010 a European Arrest Warrant was issued by the 1st Section of the National High Court in Madrid under the Council of the European Union Framework Decision on the European Arrest Warrant and surrender procedures between member states of the European Union 2002/584/JHE ("the Framework Decision").[5]The European Arrest Warrant was submitted to and received by the Serious Organised Crime Agency, an authority designated by the Secretary of State for the purposes of Part 1, and it was certified by that Agency under sections 2(7) and (8) of the 2003 Act.[6]The respondent was arrested in this jurisdiction on 15 March 2010. The extradition hearing in his case was heard by Senior District Judge Wickham at Westminster Magistrates' Court on 21 July 2010. She reserved her judgment and gave it on 12 August 2010. In and by virtue of that judgment, the respondent's discharge was ordered under section 21(2) of the 2003 Act.[7]In very short summary, the District Judge held that the European Arrest Warrant misstated the true factual and legal position. She applied the case of Castillo v The Kingdom of Spain [2005] 1 WLR 1043, and held that the warrant did not comply with the validity requirements of section 2 of the 2003 Act. She further held that, properly stated, the respondent's prosecution was time-barred under Spanish law such that his extradition would constitute a violation of Article 5 of the European Convention on Human Rights, applying the decision of Atilla v Government of Turkey [2006] EWHC 1203 (Admin).[8]Following the decision of the District Judge, the appellant filed in time and served a notice of appeal and detailed grounds. The respondent then filed and served a respondent's notice seeking to uphold the decision to discharge on alternative grounds to which I shall come in due course.[9]There are five grounds of appeal, and the respondent has two further grounds by the respondent's notice for upholding the District Judge's decision. The two grounds in the respondent's notice, which assert a likely breach of specialty and a violation of Article 8 of the European Convention on Human Rights by reason of a manifestly excessive sentence of 48 years, do not arise for decision if the respondent successfully resists the main grounds of appeal.[10]The heart of the matter is that the respondent contends, and the District Judge in substance held, that the description of the conduct alleged in the European Arrest Warrant was not a proper, accurate and fair description of the charges which the respondent would, or perhaps ought, to face if he were extradited. In reality, he could only be charged, it is said, with lesser offences, and those lesser offences are statute-barred, which would provide an additional reason why the warrant should be discharged. But the essential case for the respondent, which the District Judge accepted, was and is that the description of the conduct given in the warrant does not comprise particulars which comply with section 2(4)(c) of the Extradition Act 2003, and that accordingly the warrant is not a valid warrant.[11]Section 2 of the 2003 Act provides that a Part 1 warrant is an arrest warrant which is issued by a judicial authority of a Category 1 territory and which contains:
"(4)(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 ..."
Particulars of the sentence which may be imposed are also required.[12]On the face of it, the European Arrest Warrant in this case, taken in isolation, gives particulars which, again taken in isolation, appear to comply with the section, and it is argued by Ms Cumberland, on behalf of the appellant judicial authority, that these particulars are to be accepted in good faith and without inquiry as being sufficient. She points to authority to the effect that a warrant which is deficient in particular may not be supplemented by external evidence, although there is of course a well-worn course in an appropriate case for further information requested from a judicial authority by the District Judge to be provided.[13]There is no question in this case of external evidence being relied on to supplement an otherwise defective warrant. There is, however, evidence, receivable in my view under section 202 of the 2003 Act, which explains the strange circumstances in which this arrest warrant comes to be considered and which forms the foundation of the case that the particulars given in it do not comply with section 2(4)(c).[14]In summary, the conduct alleged in the European Arrest Warrant against the respondent is as follows. There are three offences alleged. The first is that on 11 November 2001 at around 2am, the respondent, with others, threw incendiary devices at a Volkswagen Passat motor car. The car was parked in Euska Herria Street in Ibarra Guipuzcoa. The car was owned by a Miguel Munariz Goita, who worked for the General Resource Department, which is linked to the Basque Regional Government. The explosion of the incendiary devices caused damage to the car and to objects inside the car to the value of approximately 2,000 euros. Damage was also caused to other vehicles in the vicinity. The explosion and fire caused by the incendiary devices endangered lives because the vehicle the subject of the attack was parked on the street.[15]The second alleged offence was that on 4 January 2002, the respondent, with others, threw incendiary devices at a Post Office on No 26 San Jan Street in Alegria, Guipuzcoa. Damage was caused to the Post Office itself and to the belongings of employees in the sum of approximately 4,000 euros. The actions of the respondent and his accomplices endangered lives, owing to the location of the Post Office, the fire caused by the incendiary devices and the fact that people were working inside the Post Office.[16]The third alleged offence was that on 3 May 2002, the respondent, with others, threw incendiary devices at a bus on the Spanish N1 highway on a bus route from San Sebastian to Tolosa. The lives of the bus driver and passengers were placed at risk in the attack. The assailants doused the bus with petrol and set it on fire without waiting for the bus to be evacuated. Indeed, it appears that the bus driver was still on the bus when the attack occurred. The bus was destroyed causing losses of 79,515 euros.[17]Those were three alleged offences on an original Spanish indictment containing particulars of eight offences, five of which the respondent was not concerned with. The indictment charged him and seven other defendants variously for various of those eight pieces of conduct.[18]The respondent contends that evidence before this court establishes the following. The European Arrest Warrant, it is said, has been issued on a misleading basis. It is premised upon a preliminary indictment issued by the prosecutor in the case. In accordance with that indictment, it alleges offences which carry allegations of endangering life and concealment of identity. In fact, evidential materials obtained demonstrate that the prosecution has accepted, and the Spanish court has itself ruled, that those charges are not made out as a matter of fact. In accordance with that ruling, the case in Spain has been the subject of a definitive (or final) indictment containing revised charges punishable; not by 48 years' imprisonment, but by up to three years' imprisonment in the cases of the seven other co-defendants. These seven other co-defendants pleaded guilty to the revised reduced charges and were sentenced to a variety of terms of imprisonment for two years or less, six out of seven of which were suspended.[19]It is not in dispute that, if the true position is as contended for by the respondent, the prosecution of the respondent is subject to a two-year limitation period from the date of declaration of failure to appear (which was 16 October 2006), and that those reduced charges would therefore be statute-barred against the respondent.[20]The District Judge made factual findings to the effect contended for by the respondent. She held that the European Arrest Warrant did not contain a proper, accurate or fair description of the charges. She held that, and it is contended that, this is abundantly apparent from evidential material before the court. It is necessary to give an account of that material, regrettably at some length.[21]On 7 December 2004 there was a statement of committal in the Spanish court, by which the respondent was charged and committed for trial. He was the fourth named defendant of eight defendants. As I have said, the statement contains reference to eight incidents of street violence, and the respondent is alleged to have been involved in the three of them to which I have already referred. The statement alleges as against all defendants that the defendants caused a threat of public injury. All the defendants in that statement of committal, including the respondent, were charged with "estragos", which means more serious criminal offences where there is a risk to life, being an offence of terrorist arson under Articles 346, 351 and 577 of the Spanish Criminal Code, which provide for sentences of imprisonment of up to 20 years.[22]On 21 December 2004 the documentary evidence shows that the investigative phase of the case was concluded and was conveyed to the trial court. The prosecution then, on 30 August 2005, produced a provisional conclusions document, which is consonant with the statement of committal to which I have referred. The trial was listed to start on 9 October 2006. The respondent failed to attend, but the remaining seven defendants did attend. On that date the prosecution's "Provisional Conclusions" document was modified, and the Spanish court documents show that on that day the case was heard. Opening the proceedings, the prosecutor (with the agreement of defence lawyers) made written submissions modifying his preliminary indictment.[23]There was a new indictment dated 9 October 2006 produced by the prosecution, and this document modifies the "Provisional Conclusions" document by accepting that, as a matter of fact, "There is no risk to life proven by any of the facts, and it is not proven that the defendants hid their faces with balaclavas or similar items".[24]The facts were therefore reclassified. They were no longer classified as "estragos" but as "danos", an offence or offences where there is no risk to life, being an offence of terrorist damage under Articles 261.1, 351.2 and 577 of the Spanish Criminal Code, each of which provides for imprisonment punishable with up to three years' imprisonment, and reference was made in this revised document to Article 74 of the Spanish Criminal Code, which provides for concurrent sentences. Hence, the offences were now described as "delito continuado" (a continuing crime) such that concurrent not consecutive sentences would be appropriate.[25]The Provisional Conclusions document was thus amended in respect of all defendants present (that is to say the seven other defendants but not the respondent now before the court) regardless of their alleged involvement and whether they were charged with more, less or the same offences as the respondent. All the co-defendants pleaded guilty to the new indictment and there was an adjournment for sentence.[26]On 16 October the Spanish judge gave judgment, sentencing the co-defendants to total terms of imprisonment of two years, or in the case of one of them one year, for continuing offence of terrorist criminal damage without circumstances modifying criminal responsibility. In so doing the judge expressly approved the new indictment as reflecting the evidence, and observed that:
"... The events proven via explicit acknowledgement of the defendants, together with the documentary evidence [to which he specifically referred by page number] ... prove the incendiary and gravely damaging nature of the devices used in the various episodes, and the documentary evidence ... which prove the true existence of the damages claimed and their exact amount, as claimed ..."
He went on to hold that those constituted the crimes which had been alleged under the Articles of the Spanish Civil Code in the revised indictment to which I have referred.[27]Finally, the Spanish judge made an order dated 29 October 2008 by which the two-year prison sentences imposed on the co-defendants were suspended. Like those of the co-defendants, the respondent is of good character.[28]The respondent's case was before the District Judge and is before this court that, on any analysis, basic notions of elementary fairness dictate that the prosecution and court should proceed against all defendants alike, and faithfully to the concessions of fact and law made in the new indictment and approved by the court. There are, as I find, no differentiating features which would separate the respondent now before this court from the seven other co-defendants that were before the Spanish court. The three allegations with which the respondent is concerned are in terms which do not differentiate between his involvement and that of his joint co-defendants.[29]There are other documents before the court which it is appropriate briefly to refer to. There was a draft European Arrest Warrant, never proceeded with, dated 10 December 2007. This 2007 draft arrest warrant faithfully reflects the modified indictment, in that, both as to fact and as to the legal provisions relied on, the facts and the legal provisions are correspondent with those in the revised provisional document to which I have referred. There were discrepancies in this document which do not matter. There were various matters which were, on the face it, mistaken.[30]There was then a further 2008 draft European Arrest Warrant issued by the judicial authority dated 16 June 2008, which now correctly identifies the three instances of street violence with which the respondent was charged, continues to classify those as "danos" (that is where there is no risk to life), but the legal provisions relied on are the same modified provisions referring to sentences of no more than three years. Despite all that, the draft warrant now states that the maximum penalty for those offences was 48 years' imprisonment.[31]Exhibited to the evidence before this court is also the fact that there was correspondence between the UK Liaison Magistrate in Spain and the Spanish judge regarding the content of the draft 2008 warrant. The judge was requested to clarify, among other things, the anomalous sentence said to be referable to the offences. By letter dated 8 January 2010, the judge did so in terms which referred to two legal provisions attracting sentences of no more than three years' imprisonment, but asserting nevertheless that the maximum sentence was 48 years' imprisonment.[32]So we come to the 2010 European Arrest Warrant, which was before the District Judge and is before this court and is the subject of this appeal. It was issued in respect of the respondent by the Spanish judge and is dated 18 February 2010. It reverts to the original allegations, relying on the legal provisions for more serious offences with a maximum total sentence of 48 years -- this despite the fact that, on the facts as asserted at least by the respondent, it is undisputed that for the seven other defendants the documents show that those facts are not capable of being proved.[33]What all this amounts to, in the submission of Mr Summers on behalf of the respondent, is that the Spanish prosecutor has stated, and the Spanish court has found and held for all of the other seven co-defendants, that the evidence establishes lesser offences carrying sentences of no more than three years (and incidentally with a limitation period of two years), and establishes positively that the evidence does not establish that the much more serious offence carrying sentences of up to 48 years is available on the evidence. Mr Summers says that there is no basis for differentiating between the defendant and his co-defendant for the three charges with which he is concerned. But, on the other hand, the 2010 arrest warrant reverts to the original now unsubstantiated allegations for him alone.[34]The respondent's case is that the suggestion that the respondent alone should now be tried for the pre-modified indictment is untenable, and that the European Arrest Warrant fundamentally misstates the conduct alleged to constitute the offences for which he could now properly be tried, and thus fails to comply with section 2(4)(c) of the 2003 Act. Furthermore, if it had described the conduct for which he could now be tried, that would be statute-barred by limitation under Spanish law.[35]The appellant's essential or first case is that the court should take the 2010 European Arrest Warrant uncritically for what it is: that is, an apparently valid warrant which, on its face, contains the information which section 2 of the 2003 Act requires without regard to the facts of what happened in Spain to the other seven defendants. The modifications, it is submitted, were made for the co-defendants, and were only made for those co-defendants, not for the respondent who did not attend his trial. He does not have the benefit of the plea agreement reached for the other seven defendants.[36]The starting point of the respondent's case is that substantial compliance with section 2 of the 2003 Act is a jurisdictional prerequisite of the validity of a Part 1 warrant under the 2003 Act. If a European Arrest Warrant does not sufficiently conform with the requirements set out in section 2, it will not be a Part 1 warrant within the meaning of that section, and Part 1 of the 2003 Act will not apply to it. Lord Hope of Craighead said this in terms in paragraph 28 of his opinion in the decision of Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, and see also paragraph 42 of that opinion and paragraphs 56 in the opinion of Lord Scott of Foscote; see also Dabas v High Court of Justice, Madrid [2007] 2 AC 31 at paragraph 50; and Pilecki v Circuit Court Legnica, Poland [2008] 1 WLR 325 at paragraph 14.[37]The case then is that the 2010 warrant in this case does not conform with the requirements set out in section 2 because it does not fairly, accurately and properly set out the conduct alleged to constitute the only viable offences available on the evidence to the Spanish prosecutor and the court. It sets out conduct alleged to constitute the original much more serious offences, but the prosecutor has asserted positively that the available evidence does not sustain those offences, and the judge has given a judgment in the cases of the seven co-accused accepting that assertion, not only with reference to the admissions made by the seven co-defendants, but also with positive reference to documentary evidence.[38]Mr Summers submits that a European Arrest Warrant which materially misstates the conduct capable of being alleged is not one which complies with Article 8.1(e) of the Framework Decision, nor a valid Part 1 warrant for the purposes of section 2(4)(c) of the 2003 Act. Article 8.1(e) requires the warrant to contain a description of the circumstances in which the offence was committed.[39]Castillo v The Kingdom of Spain [2005] 1 WLR 1043 was a decision of the Administrative Court under the Extradition Act 1989. The court considered whether one of three requests for extradition contained a proper, accurate and fair description of the conduct alleged with reference to Article 12(2)(b) of the European Convention on Extradition Order 2001, and one of the United Kingdom's specified reservations to Article 12, which required that "the statement of offences for which extradition is requested must contain a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested".[40]Ms Cumberland explained parenthetically that the matter could and perhaps should have been addressed with reference to section 7 of the 1989 Act, but she agreed that, in substance, the question would have been the same. The court in Castillo examined a dossier of evidence and a submission that, if the request had properly described the conduct from the materials contained in the dossier, it would not have been possible to say that the description constituted offences under the United Kingdom law as asserted; alternatively that, on the basis of a proper description of the applicant's conduct, the charges under United Kingdom law were not sustainable.[41]Thomas LJ, giving the lead judgment in Castillo, said this in paragraphs 24 and 25:
"The requirements under the Convention and the Act 24. It is the obligation of a state making a request under the Convention, in the light of Article 12, to set out a description of the conduct which it is alleged constitutes the offence or offences for which extradition is requested. That requirement does not mean that the evidence has to be provided, because Article 3 of the Convention provides the state requesting extradition does not have to provide the courts of the state to which the request is directed with evidence and the court in that state does not have to be satisfied that there is sufficient evidence; as reflected in s 9(4) of the Act and paragraph 3 of the European Convention Extradition Order 2001 there is no requirement of evidential sufficiency. As the House of Lords made clear in re Evans [1994] 1 WLR 10066 at 1013: "
The magistrate is not concerned with proof of the facts, the possibilities of other relevant facts, or the emergence of any defence; these are matters for trial." 25. However the description of the conduct alleged must be made in the request and that description will be considered by the Secretary of State and the court in the decisions each has to make in respect of the offences under the law of the UK which are constituted by the conduct described. It is in my view very important that a state requesting extradition from the UK fairly and properly describes the conduct alleged, as the accuracy and fairness of the description plays such an important role in the decisions that have to be made by the Secretary of State and the Court in the UK. Scrutiny of the description of the conduct alleged to constitute the offence alleged, where as here a question is raised about its accuracy, is not an enquiry into evidential sufficiency; the court is not concerned to assess the quality or sufficiency of the evidence in support of the conduct alleged, but it is concerned, if materials are put before it which call into question the accuracy and fairness of the description, to see if the description of the conduct alleged is fair and accurate."[42]Thomas LJ went on to say that it was clear that, in the light of the dossier held by the court in Spain, the description in the request of the conduct which it is alleged constituted the offences was not a proper, accurate and fair description. He went on to say why on the facts of that case. To that extent the request was unsustainable. In other respects, it was a fair description of the conduct alleged.[43]Castillo was a decision under the 1989 Extradition Act (now superseded), and Ms Cumberland says that things have changed and that Castillo no longer applies under the 2003 Act. Things certainly have changed, and Ms Cumberland is correct to submit that the issues in this appeal should be addressed with reference to recent decisions of the House of Lords to the effect that it is rarely appropriate or permissible for this court to go behind a judicial decision or explanation as to law or procedure given by the judicial authority of a Category 1 territory as to the law or procedure in that territory. Nor is the court normally concerned to carry out a detailed examination of evidential material to see whether the conduct alleged in a European Arrest Warrant is capable of being established at a trial. She points to paragraph 4 of the opinion of Lord Bingham of Cornhill in Dabas, where Lord Bingham said:
"4. But Part 1 of the 2003 Act must be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002/584/JHA; OJ 2002 L190, p 1). This was conceived and adopted as a ground-breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crimes committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states. Extradition procedures in the past had been disfigured by undue technicality and gross delay. There is to be substituted "a system of surrender between judicial authorities" and "a system of free movement of judicial decisions in criminal matters" (recital (5) of the preamble to the Framework Decision). This is to implement the principle of mutual recognition which the Council has described as the cornerstone of judicial cooperation (recital (6)). The important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions."
[44]At paragraph 42 of Dabas, Lord Hope said that the principle on which the new system is based is the mutual recognition of criminal decisions between member states. The European Arrest Warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift and speedy surrender.[45]In Caldarelli v the Court of Naples, Italy [2008] 1 WLR 1724, the House of Lords again emphasised the need to approach extradition proceedings under Part 1 of the 2003 Act on the basis of trust and mutual recognition between judicial authorities. At paragraph 24 of Caldarelli, Lord Bingham said:
"24. Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorised to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer ..."
[46]Ms Cumberland does not take the extreme position that the court cannot look at anything beyond the terms of the 2010 warrant itself to determine its sufficiency, nor could she in the light of Lord Bingham's statement which I have just read. She does, however, submit that the court should not look behind the express or implied assertion by the Spanish Judicial Authority that the 2010 warrant contains a competent statement of conduct by the respondent, which is properly capable of sustaining the more serious charges which underlie it. The court should, in short, trust the Spanish Judicial Authority that there is evidence available to that court to establish the alleged conduct. Mr Summers for his part points out that the Judicial Authority has never asserted this for the purpose of these proceedings, having had the opportunity to do so.[47]As to Castillo, Ms Cumberland submits that its legal effect does not extend beyond proceedings conducted under the 1989 Act. She says that the 2003 Act contains its own exhaustive code, and prescribes the limited matters which may be addressed. She suggests that there is no authority to support the District Judge's conclusion that Castillo can apply to proceedings under the 2003 Act so as to create a route to discharge a requested person outside the self-contained code. Mr Summers submits, in my view correctly, that there is authority under the 2003 Act which carries forward the relevant part of the decision in Castillo.[48]In Palar v Court of First Instance, Brussels [2005] EWHC 915 (Admin), it was contended that a Part 1 European Arrest Warrant did not properly specify offences which were extradition offences under sections 10 and 64 of the 2003 Act. Laws LJ said at paragraph 5 that, on a true analysis, the complaint was that the purported warrant was not really a Part 1 warrant at all because it did not include particulars of the conduct alleged to constitute the offence, which by section 2(4)(c) is a prerequisite of a proper Part 1 warrant within the statute. Laws LJ examined what was specified in the warrant. He said at paragraph 7 that it was far from clear how it could be said that the specified facts were capable of constituting conduct which amounted to the extradition offences alleged. He then noted and cited in full paragraph 25 of Thomas LJ's judgment in Castillo, which I have already quoted in full in this judgment.[49]Laws LJ then said at paragraph 8:
"8. I bear fully in mind that the background to the relevant provisions made in the 2003 Act is an initiative of European law and that the proper administration of those provisions requires that fact to be borne firmly in mind. It goes without saying that the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme. However, it remains the case that the conduct said to constitute the extradition offence in question has to be specified in the warrant (section 2(4((c))."
Laws LJ concluded in that case that no conduct capable of constituting the extradition offence as specified was described in the Part 1 warrant. David Steel J agreed.[50]La Torre v Her Majesty's Advocate [2006] HCJAC 56 is a decision of the Scottish High Court of Justiciary (Appeal Court). With some irrelevant exceptions, the 2003 Act extends to Scotland (see sections 1(1) and 226). There were numerous issues in this case under both Parts 1 and 2 of the 2003 Act. One ground of appeal (ground 6) was under Part 1 only and it contended that there was a lack of clarity as to the place of the alleged offences. The appellant's counsel submitted (see paragraph 77) that the Sheriff was wrong to hold that the warrant contained information required by section 2(2)(a) and (4)(c) of the 2003 Act. It was not in sufficiently specific terms, he said, to enable the Sheriff to conclude where the conduct took place. A reference was made to Castillo and to Government of Canada v Aronson [1991] AC 579. It was submitted that the warrant did not fairly and accurately describe the offence of which the appellant was accused. Reasons were given why it mattered whether the offence had taken place in Scotland or in Italy.[51]It was submitted for the respondent Lord Advocate (see paragraph 84) that the critical requirement of the legislation was to be found in section 2(4)(c) of the 2003 Act, which contained a direct transposition of Article 8.1(e) of the Framework Decision. It was submitted that the authorities did not require such a high degree of specification as that contended for by the appellant.[52]The court's discussion of this issue begins at paragraph 92 as follows:
"The starting point for consideration of ground 6 is section 2(2)(a) of the 2003 Act which requires a European Arrest Warrant to contain inter alia the information referred to in section 2(4), which includes, at paragraph (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 paragraph includes, and expands upon, a transposition of the requirements of article 8(1)(e) of the Framework Decision. We accept that the conduct must be fairly and properly described (R (Castillo) v Spain, per Thomas LJ at 1052, para 25). We accept that that is so as a matter of first principles of fairness, as well as to allow the rule of speciality to be given content (Aronson, per Lord Griffiths at pp 594D and 595D). But we also accept the submission of counsel for the Lord Advocate that one purpose of the 2003 Act was to simplify and streamline procedures for extradition to EU countries, and that a practical, rather than a technical, approach should be adopted to the specification given in the warrant ..."[53]In Fofana v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin), Auld LJ (with whom Sullivan J agreed) considered Castillo and Palar but not La Torre, to conclude that they did not apply to the facts before the court, but not to suggest that Castillo is not applicable in appropriate factual circumstances to warrants under Part 1 of the 2003 Act. Auld LJ said at paragraph 38 in Fofana that the dicta of Thomas LJ in Castillo and of Laws LJ in Palar on the need for accuracy and particularity should be considered in their context.[54]Hashmi v Government of the United States of America [2007] EWHC 563 (Admin) was an appeal under Part 2 of the 2003 Act. The fourth ground of appeal relied on paragraph 25 of Castillo in support of an argument based on discrepancies or inconsistencies between the proposed testimony of a witness in the United States and the same witness's statement in the English proceedings. It appears to have been treated as a bad faith argument and was held not to get off the ground. It was not for the court to weigh the evidence of a witness relied on by the prosecutor.[55]In the present case, the appellant's second ground of appeal is that the District Judge wrongly relied on Castillo (a decision under the 1989 Act) as providing a jurisdiction to discharge a requested person under the 2003 Act. Ms Cumberland suggests that Castillo is wrongly advanced as providing what she calls a "freestanding jurisdiction" outside the self-contained code of the 2003 Act, and distinct from well understood considerations of abuse of process. She suggests that there is no authority to support the District Judge's conclusion that Castillo applies to the 2003 Act. She is, in my judgment, wrong about this, since both Palar and La Torre proceed on that basis, and neither Fofana nor Hashmi suggests otherwise.[56]She is also, I think, wrong to look to Castillo as providing a freestanding jurisdiction. Authority for the proposition that a European Arrest Warrant does not sufficiently conform with the requirements of section 2 of the 2003 Act is to be found in such House of Lords cases as Dabas and Pilecki, to which I have referred. Castillo tells us that sufficient conformity requires a proper, fair and accurate description of the conduct alleged. I respectfully agree with the Scottish Appeal Court in La Torre that the need to describe the conduct fairly, properly and accurately is a matter of first principles of fairness.[57]A further persuasive consideration in favour of the continuing relevance of Castillo to the 2003 Act is that the centrally relevant statutory provisions were materially the same; that is, for the 1989 Act, the United Kingdom's reservation in respect of Article 12 of the European Convention on Extradition (see paragraph 18 of Castillo) and the relevant part of section 2(4)(c) of the 2003 Act.[58]The court's task -- jurisdiction, if you like -- is to determine whether the particulars required by section 2(4) have been properly given. It is a task to be undertaken with firm regard to mutual co-operation, recognition and respect. It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority. It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate. I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree. She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002.[59]Ms Cumberland submitted that an argument of the kind which succeeded before the District Judge can be raised, but not with reference to section 2 of the 2003 Act. She said that the proper approach was to deal with it as an abuse argument, and this ties in with the appellant's third ground of appeal, to which I shall come in a few moments. I do not agree that the respondent's case could only be advanced as an abuse argument. It can properly be advanced, as it was, as a contention that the description in the warrant of the conduct alleged did not sufficiently conform with the requirements set out in section 2 for the reasons advanced by Mr Summers with reference to Dabas and Pilecki. If that is shown, it is not a valid Part 1 warrant.[60]The appellant's first ground of appeal is that the District Judge was wrong to conclude that the description of the conduct alleged in the European Arrest Warrant did not constitute a proper, accurate and fair description of "the charges that the respondent would face if extradited". This is not an entirely accurate expression of the question to be asked, nor of the case advanced by Mr Summers in this court in opposition to the appeal. The question to be asked is whether the description sufficiently conforms with the requirements set out in section 2 by giving proper, accurate and fair particulars of the conduct alleged to constitute the extradition offences. This should be the same as "the charges that the respondent would face if extradited" for specialty reasons, but Ms Cumberland more than once suggested orally that the Spanish court might decide to proceed in this case upon lesser charges than those to be derived from the conduct alleged to constitute the extradition offences by virtue of the stated Spanish law under which the conduct is alleged to constitute an offence.[61]Ms Cumberland submitted that the District Judge's conclusion entirely disregarded the clear evidence provided by the appellant that extradition was indeed sought for the alleged conduct and offences specified in the 2010 warrant. This does not however meet the respondent's case that the offences specified, based on the conduct alleged, are not viable offences capable of being prosecuted in the Spanish court. I have set out the details of the material relied on earlier in this judgment. In summary, the Spanish court papers show that:(a) Eight defendants, including the respondent, were originally variously charged with reference to eight incidents of terrorist street violence, with offences classified as "estragos" where there is risk to life under Articles of the Spanish Criminal Code providing for sentences of up to 20 years' (or perhaps more) imprisonment. The respondent was alleged to have participated jointly with others in three of the eight incidents.(b) The prosecutor's provisional conclusions were to equivalent effect.(c) The seven defendants other than the respondent attended for trial on 9 October 2006 when the prosecution produced a modified indictment.(d) The modified indictment added the following facts to the Provisional Conclusions document:
"There is no risk to life proven by any of the facts. It is not proven that the defendants hid their faces with balaclavas or similar item." (e) The facts were reclassified as "danos", where there is no risk to life, and the seven defendants were charged with and pleaded guilty to reduced offences under Articles of the Spanish Criminal Code providing for sentences of up to three years' imprisonment. (f) The judge convicted and sentenced the seven defendants. He recited the reduced facts which had been proved, including the facts of the three incidents with which the then absent defendant was concerned. He held that the legal bases for the convictions included that the events were proved by the acknowledgement of the defendants "together with the documentary evidence contained in pages [numbers given]"
. The respondent is not named as a defendant in this judgment, and is referred to in at least one passage of the judgment as being at large and as "another person against whom this judgment is not directed". (g) The 2007 and 2008 draft warrants are of narrative interest only, but they do indicate that the Spanish court gave thought to requesting the extradition of the respondent upon the reduced charges brought against the other seven defendants. (h) The 2010 European Arrest Warrant with which this appeal is concerned reverts to the original more serious "estragos" charges carrying consecutive sentences of up to 48 years' imprisonment.[62]Although this summary account is quite long, it is not contentious. It simply results from reading and abstracting from the Spanish court documents, translated into English. I do not understand that this summary is challenged in any material respect as to fact, nor is any point taken about the accuracy of the translation. In this respect, I agree with Mr Summers that the case is rather more straightforward than Castillo because it does not require an evaluation of evidence.[63]The respondent's case is simple. The Spanish prosecutor has asserted in terms and without qualification in a formal court document that "there is no risk to life proven by any of the facts", and "it is not proven that the defendants hid their faces with balaclavas or similar item". That constrained a reduction of the charges from "estragos" to "danos". The judge gave judgment on this factual basis, not only with reference to the defendant's pleas, but also to documentary evidence. The respondent was charged jointly with other defendants. This is explicit for the first occasion and implicit and by Ms Cumberland's concession for the other two. There is no evidential or other basis before this court for distinguishing between him and his relevant co-defendants. The Spanish prosecutor therefore, by his own positive statement, has no evidential basis for reverting to estragos charges, and the Spanish judge has positively endorsed this by his judgment.[64]The 2010 warrant does not, therefore, give particulars of conduct capable of constituting a viable extradition offence, so that it does not contain a description of the conduct alleged which is proper, fair and accurate. It is not proper or fair because it is improper and unfair to seek the extradition of a person upon charges which the court's own document show cannot be proved in their most material particular; that is to say, risk to life. It is not accurate because the lesser charges which could properly be alleged are not those alleged in the warrant.[65]Ms Cumberland struggles, unsuccessfully in my judgment, to argue against the force and logic of this submission. She shows me that the Spanish judge explained to the District Judge in this case under a heading "Abuse of process" that the modification made by the Public Prosecutor only affected the defendants who were present at the hearing, not the respondent, and that the judge's ruling did not affect the respondent either. That may be correct so far as it goes, but it does not go far enough. We may suppose perhaps that there may have been a measure of out-of-court negotiation between the prosecution and the seven defendants. But the modified indictment is a unilateral prosecution document, not for instance a defence basis of plea, and it contains the unqualified positive statement that there is no risk to life proven by any of the facts. The judge did not seek to explain to the District Judge that, contrary to this positive statement, there is such evidence available in the case of the respondent. In my judgment, the unqualified statement should be taken to mean what it says. In so concluding, I take account of and reject as unpersuasive Ms Cumberland's submissions that the respondent was committed upon more serious charges, and one should suppose that there was evidence to support the committal charges, and that it is common practice, in this jurisdiction at least, to proceed initially against one of several defendants who has absconded upon the original charges, even if other defendants have been dealt with upon modified charges.[66]I have already explained why the second of these submissions is unpersuasive in an extradition case such as this. As to the first, the positive statement of the prosecutor must be seen as his assessment of the evidence available at the time of the trial.[67]For these reasons, in my judgment, both the first and second grounds of appeal fail, and that, without more, is determinative of this appeal. The 2010 European Arrest Warrant is not a valid Part 1 warrant, and the District Judge was correct so to hold and to discharge the respondent.[68]It is not necessary for the court to address (1) Mr Summers' alternative submission that the appeal should fail under section 14 of the 2003 Act and Article 5 of the European Convention on Human Rights because the only viable charges against the respondent available to the Spanish prosecutor are the lesser charges, which are, as is accepted, statute-barred. This matter is also the subject of ground 5 of the grounds of appeal, which I need not address.[69](2) It is not necessary for the court to address the appellant's third ground of appeal, which contended that the respondent's case should have been addressed exclusively as one of abuse of process or bad faith. I have explained why, in my judgment, this is wrong. The invalidity argument is available on the very special facts of this case and it stands on its own without reliance on abuse. The respondent does not now advance an abuse argument. Although the matter was not argued in detail before me, I do not consider that abuse or bad faith on the part of the appellant, who has been quite open with the District Judge and with this court, was capable of being established.[70](3) I do not need to address the appellant's fourth ground of appeal, which is a variant of ground 1, it being contended that the matters advanced by the respondent were not capable of having a bearing upon the validity of the 2010 warrant, but should be considered only by reference to section 2 of the 2003 Act, which was, it is contended, plainly complied with. I have already explained why this variant fails.[71]Nor do I have to address (4), the additional matters relied on in the respondent's notice under the heading "Specialty and Article 8". I note, without deciding, Ms Cumberland's submission that had the appeal otherwise succeeded, those questions would have to be remitted to the District Judge.[72]For these reasons, the appeal fails and is dismissed.[73]MS CUMBERLAND: My Lord, in light of your Lordship's decision there is an application to this court for certification of a point of law of general public importance, and we did consider the matter before your Lordship handed down judgment. I do have a proposed question and submissions to advance in support of that question. The application is made pursuant to section 32 of the Extradition Act 2003, and the proposed question is:
"Does the court's inquiry under section 2 of the Extradition Act 2003 include an investigation into the viability of the underlying foreign proceedings?"

SIR ANTHONY MAY: No doubt you drafted that before you had heard the terms of my judgment. I would substitute in any event the word "may" for "does". (Pause)

[75]I am sorry to hold you up. I am not saying one way or the other whether I am going certify, but I am just trying to formulate an alternative question. How about this:
"Does the decision in Castillo apply to a consideration under the 2003 Extradition Act whether a Part 1 European Arrest Warrant sufficiently conforms with the requirements of section 2(4)(c)?"
[76]MS CUMBERLAND: My Lord, yes, that question would encompass, I think, the points which arise in the judgment.

SIR ANTHONY MAY: I also put to myself a version of your question which said:

"May, upon appropriately clear facts, the court's inquiry under section 2 of the Extradition Act 2003 include an investigation into the viability of the underlying foreign proceedings?"
[78]MS CUMBERLAND: My Lord, yes.

SIR ANTHONY MAY: Well, Mr Summers, should I certify some question or not?

[80]MR SUMMERS: My Lord, we say simply this: this, as my Lord's judgment has made clear, is now a very well-trodden path under the 2003 Act. This court is the fourth court of this jurisdiction to give a positive answer to that question, and the courts of Scotland have also given a positive answer to it. It is, we respectfully submit, in those circumstances not a case suitable for the attention of the Supreme Court.

SIR ANTHONY MAY: Ms Cumberland, let us revert to an appropriate form of question with a view to wondering whether to certify it or not. Would you be content with my formulation? I will read it again. "Does the decision in Castillo apply to a consideration under the 2003 Extradition Act whether a Part 1 European Arrest Warrant sufficiently conforms with the requirements of section 2(4)(c)?"

[82]MS CUMBERLAND: My Lord, I would respectfully agree with the terms of the proposed question.

SIR ANTHONY MAY: Of the formulation?

[84]MS CUMBERLAND: My Lord, yes. My Lord, the submission in support of the application is a very simple one. Your Lordship's judgment would appear to extend further than any previous decision of this court or of a higher court the scope of section 2 of the 2003 Act, and would at least appear to state definitively the relevance of the decision of this court in Castillo. So for that reason it would be appropriate to certify a question.

SIR ANTHONY MAY: Just, as it were, conversationally, to help me make up my mind, Castillo is under the 1989 Act, and under the 1989 Act and in that case the evidence was looked at and evaluated. My decision is that Castillo applies as to the proper, fair and accurate part of it to the 2003 Act and to the question under 2(4)(c). I hope I have made clear that I do not think that that should involve an evidential inquiry of the kind that was undertaken in Castillo itself, but that the question -- proper, fair and accurate -- is one which is capable of being asked.

[86]MS CUMBERLAND: My Lord, I respectfully agree. The inclusion of the words "on appropriately clear facts" would appear to clarify that and define the scope of the decision in this case.

SIR ANTHONY MAY: What do you say about Mr Summers' submission that the Castillo point is a well-trodden path, and this is at least the third occasion, if not the fifth, when a court at this level has in effect either held that Castillo applies to the 2003 Act or not held that it does not.

[88]MS CUMBERLAND: My Lord, in the decision in Palar, the case was decided by reference to section 10 of the Act, namely an extradition offence, and then in the case of Hashmi, the case was decided on the basis of it not being a bad faith argument. In La Torre, the argument was rejected out of hand, so there has been no other decision.

SIR ANTHONY MAY: La Torre is the strongest case against you because it says in terms that this is the right approach. It may not have been the approach they took, but it is quite clear, is it not, that the Scottish court was saying that?

[90]MS CUMBERLAND: My Lord, yes.

SIR ANTHONY MAY: Do you want to say any more?

[92]MS CUMBERLAND: No.

SIR ANTHONY MAY: I decline to certify.

[94]MS CUMBERLAND: My Lord, the effect of that is -- because in the event your Lordship had agreed to certify a question of law of general public importance, the appellant would have applied for the respondent to be remanded in custody or on bail pending the conclusion of the appeal process.

SIR ANTHONY MAY: Section 30(4).

[96]MS CUMBERLAND: My Lord, section 33A.

SIR ANTHONY MAY: Absolutely, section 33A.

[98]MS CUMBERLAND: But that no longer arises.

SIR ANTHONY MAY: Do I have to make any order, Mr Summers, about his discharge?

[100]MR SUMMERS: No, my Lord. It follows from the refusal of the appeal. The order for his discharge therefore takes effect. My Lord, may I say two things. The first I do so with some real hesitation. There were some slips of the tongue in my Lord's judgment.

SIR ANTHONY MAY: Yes, please tell me what they were.

[102]MR SUMMERS: My Lord said at one stage by reference to the Spanish Articles, Article 377, when in fact my Lord meant 577. At another stage my Lord mentioned section 2(4)(b) of the 2003 Act, when it should have been section 2(4)(c), and Article 8.1(d) instead of (e), my Lord. Nothing turns on them at all.

SIR ANTHONY MAY: We have to get them right. In any case where there is a 77, it should have a 5 in front of it.

[104]MR SUMMERS: 8.1(d) should have been 8.1(e), my Lord, in the context in which my Lord mentioned it, and section 2(4)(b) should have been section 2(4)(c).

SIR ANTHONY MAY: If I said 2(4)(b), that is plainly wrong.

[106]MR SUMMERS: My Lord, the only other application I make is the usual order for detailed assessment of publicly funded costs on behalf of the respondent.

SIR ANTHONY MAY: You can have that. Yes, it is 8.1(e).

[108]I am very grateful to everyone who has worked on this case, not least those who have spoken. Thank you.

Cited in 16 later judgments

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