Bagri & Ors v Public Prosecutor Bordeaux Court of First Instance [2014] EWHC 4066 (Admin)

Case No CO/2194/2014

[2014] EWHC 4066 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Monday 15 th December 2014

Before

LORD JUSTICE AIKENS

MR JUSTICE MITTING

Between

PARAMJIT BAGRI otherwise known asClaimant

PETER SINGH BAGRIClaimant

PUBLIC PROSECUTOR BORDEAUX COURT OF FIRST INSTANCEDefendant

(Transcript of the Handed Down Judgment of

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Mr Peter Caldwell (instructed by Abbeys, solicitors) for Claimant

Mr Nicholas Hearn (instructed by the CPS) for Defendant

Hearing Hearing dates: 28/10/2014

Further written submissions 5 and 9 December 2014

Judgment

Lord Justice Aikens :

Synopsis

[1]The surrender of Paramjit Bagri, otherwise known as Peter Singh Bagri (“the appellant”) is sought by the Public Prosecutor at the Bordeaux Court of First Instance, a French Judicial Authority (“the JA”), pursuant to a European Arrest Warrant (“EAW”) dated 28 June 2013. The EAW was certified by the UK Serious Organised Crime Agency on 2 September 2013. The appellant was arrested on 8 September 2013, but has subsequently been remanded on conditional bail.

[2]France is, of course, a Category 1 territory for the purposes of Part 1 of the Extradition Act 2003 (“the EA”). Therefore, these proceedings are governed by Part 1 of the EA. I have set out the relevant sections of the EA in an Appendix to this judgment.

[3]The EAW requests the surrender of the appellant in order that he can serve a sentence of 7 years imposed after trial. The sentence of 7 years is in respect an offence of “smuggling prohibited or highly taxed goods within a criminal organisation” contrary to various Articles of the French Customs Code, for which the appellant was found guilty and sentenced in his absence by the Tribunal Correctionnel de Bordeaux on 22 September 2011. It is accepted by the respondent that the appellant had had no notice of the French criminal proceedings so that he was tried and sentenced in his absence. The judgment of the Tribunal Correctionnel de Bordeaux dated 22 September 2011 states that a Bailiff’s summons was issued and delivered to the French prosecutor’s office on 7 June 2011, but he did not thereafter appear and a decision was made to proceed in absentia according to Art 412 para 1 of the French Code of Criminal Procedure. This fact is acknowledged in box (b) and box (d) of the EAW.

[4]The appellant contested the request for his surrender. District Judge Zani (“the DJ”) conducted an extradition hearing on 9 April 2014. Before the DJ the appellant asserted that there were five bars to his extradition. First, the EAW did not give adequate particulars of the alleged offences for which his surrender was sought, and so was an invalid EAW. Secondly, surrender would subject the appellant to “double jeopardy” and so be contrary to section 12 of the EA. Thirdly, surrender would not be “in the interests of justice” and so was subject to the “forum bar” recently introduced into the EA in section 19B. Sections 19A-F were inserted into the EA by Schedule 20(1) para 3 of the Crime and Courts Act 2013. Fourthly, it was said that the appellant, who was tried and convicted in his absence in France, would not be entitled to a retrial if he were to be surrendered, so he should be discharged pursuant to section 20(7) of the EA. Lastly, the appellant argued that his surrender would be a disproportionate interference with his right to respect for his private and family life under

Article 8 of the European Convention on Human Rights

(“ECHR”), so his surrender must be barred pursuant to section 21(2) of the EA.

[5]The DJ heard oral evidence from the appellant at the extradition hearing. The DJ found against the appellant on all five issues and gave his reasons in a Ruling dated 8 May 2014.

[6]The appellant appeals pursuant to section 26 of the EA. He submits that the DJ was wrong on four of the grounds argued below: first, the terms of the warrant; secondly, the issue of “double jeopardy”; thirdly, the issue of “forum bar” and, lastly, on the Article 8 point. The appellant has not pursued any argument on conviction in absence and the right to retrial in the light of the recent decision of the Divisional Court in Zeneli v Public Prosecutor’s Office, Lyon, France and Dickus v Deputy State Prosecutor, Lyon, France.

[2014] EWHC 2239 (Admin)

The terms of the EAW

[7]Box (b) of the EAW, headed “Decision on which the European Arrest Warrant is based” refers to the French domestic arrest warrant issued by the Investigating Judge of the Tribunal de Grande Instance, Bordeaux, dated 12 August 2010 as being the “Arrest warrant or judicial decision having the same effect (as an arrest warrant)”. The “Enforceable Judgment” identified is the judgment rendered against the appellant in absentia on 22 September 2011.

[8]Box (d) is headed “Decision rendered in absentia”. The passage that has a cross by it reads: “The person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia but has the following legal guarantees after surrender to the judicial authorities (such guarantees can be given in advance): The person concerned may file and application to SET ASIDE the decision rendered by the BORDEAUX Magistrates’ Court (Tribunal Correctionnel); in that case he will be informed of the new hearing date and the case will be judge gain by the BORDEAUX Magistrates’ Court”.

[9]Box (e), headed “offences”, states that the appellant was sentenced in absentia by the Tribunal Correctionnel on 22 September 2011 to a prison term of 7 years. At the head of box (e) the EAW states that the warrant relates to four offences. Under the heading “description of the circumstances in which the offence(s) was/were committed, including the date, time, place, and degree of participation in the offence(s) by the requested person” in box (e) is the following: “The person concerned is requested as a co-perpetrator of criminal offences. The offences were committed within the jurisdiction of the Bordeaux Specialised Interregional Hub (HRS), in Dax and Benesse Maremne from 15 November 2006 to 20 March 2007. On 20 March 2007, the Dax Customs Officers inspected a lorry-trailer combination driven by David Cook. He declared that he was transporting 14,820 litres of vodka and presented the supporting administrative documents. In the vehicle other documents were found concerning previous deliveries of alcohol; the investigations showed that all these documents were forged. David Cook declared that he had loaded the goods at a warehouse on the outskirts of Bilbao. The forged documents were provided by the company Laia Exclusivas. The investigations showed that this was a clandestine warehouse that had not been declared to the Spanish customs administration. Due to financial difficulties, David Cook had closed his international transport company in November 2006. A man by the name of Franck Meacher had sold him a lorry and had put him in contact with the organiser of the trafficking, Peter Singh. Peter Sigh organised the transport and orders and decided on unloading locations which were different from those indicated on the supporting administrative documents. The goods were also delivered to clandestine warehouses. The British authorities also indicated that Peter Singh had a past history of fraud. The investigating judge issued an arrest warrant against him on 12 August 2010. On 22 September 2011, he was sentenced in absentia by the Bordeaux Magistrates Court (Tribunal Correctionnel) to a prison term of 7 years; the Court maintained the effects of the Arrest Warrant”.

[10]Also in box (e), the “nature and legal classification of the offence(s) and applicable statutory provisions” are, as already noted, given as “smuggling prohibited or highly taxed goods within a criminal organisation” contrary to various Articles of the French Customs Code. In the list of extraditable offences, the box for the offence described as “fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of July 26, 1995 on the protection of the financial interests of the European Communities” has been ticked.

Facts concerning criminal proceedings against the appellant in England and France

[11]We were informed by Mr Peter Caldwell, who appeared on behalf of the appellant, that in 2007-2008 there was an investigation by HMRC as to the illegal importation of alcohol and tobacco from Spain and France to the UK. The appellant was arrested in connection with this investigation on 18 December 2007 but he was released without charge. On 26 January 2009, HMRC sent a request for Mutual Legal Assistance (“MLA”) to the French Customs Investigations Department. The appellant was arrested in the UK again on 28 January 2009 in connection with this investigation and he was interviewed that day and the next. On 22 June 2009 HMRC received material from the French Customs Investigation Department which included the transcript of an interview with David Cook, the person identified in box (e) of the EAW. That interview had taken place on 11 September 2007.

[12]Mr Cook had told the French investigators that the appellant had contacted him in December 2006 and that the appellant had stated that he was looking for “a haulier available for occasional transportation between Belgium and Spain”. Mr Cook stated that the appellant offered Mr Cook a trip between Belgium and Spain and that he undertook it, transporting alcohol from Veurne, Belgium to a site just past Irun, on the coast of North Western Spain very close to the French border. Mr Cook said that in early March 2007 he did another trip carrying vodka from Bilbao to a site in Belgium, close to the French border. He was then offered a third trip, which led to the lorry-trailer he was driving being stopped by the French customs officers at Dax, South West France, on 20 March 2007.

[13]On 24 March 2011 the appellant was charged, (together with 12 identified people and “others unknown”), by a summons issued by the Manchester Magistrates’ Court. The charge was conspiracy to evade duty payable “on large quantities of alcohol and tobacco”. In Indictment No T2010/7309, headed “in the Crown Court at Manchester” (“the Manchester proceedings”), the appellant and ten other defendants were charged with “conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979, contrary to section 1(1) of the Criminal Law Act 1977”. The Particulars of Offence stated that the appellant, together with the other ten defendants: “…conspired together and with Derek Alfred Mercer and with others known and unknown, between 1st day of January 2007 and 31 January 2008 at locations between Gateshead and Dover and elsewhere in England and Wales fraudulently to evade the excise duty in respect of quantities of alcohol, as imposed by section 1 of the Alcoholic Liquor Duties Act 1979, in contravention of section 170(2) of the Customs and Excise Management Act 1979”.

[14]On 12 August 2010, a warrant was issued by the Examining Judge of the Bordeaux Regional Court for the arrest of the appellant.

The Manchester proceedings

[15]On 20 November 2010, the prosecution legal team in the Manchester proceedings served a note relating to “Co-conspirators”. This gave more details of the conspiracy alleged against all the defendants including the appellant. The note named David Cook and six others as co-conspirators, although they had not been charged for various reasons. In the case of David Cook and two others the reason given in the note for the decision not to charge them was that “it was not felt in the public interest to include them in the proceedings”. The prosecution case in the Manchester proceedings was that David Cook was the lorry driver transporting the dutiable alcohol through France, to the UK, in furtherance of a conspiracy that also included the appellant.

[16]In the Manchester proceedings the prosecution prepared a “Case Summary” to “assist all parties and the court”, whilst reserving the right to adduce evidence not referred to in the document. The document indicated that the conspiracy covered the period from the start of January 2007 to the end of January 2008 and it involved the illegal diversion of alcohol from bonded warehouses within the UK, and the diversion of alcohol which was meant to be transported from one bonded warehouse on continental Europe to another one; instead of which it was diverted to the UK open market. The note refers to “the first seizure of alcohol relevant to this case” on 14 March 2007. Para 15 of the Summary. This took place within the UK, near Knowsley. The driver of the lorry-trailer was David Cook and the trailer had 16,200 litres of vodka on board. Documents seized indicated that the alcohol had been collected from a warehouse in Bilbao and was supposed to go to a bonded warehouse in Leighton Buzzard. Mr Hearn, on behalf of the respondent, accepts that this is the same consignment as the 12 March 2007 consignment referred to in the judgment of the French court, (see below), which refers to a CMR document showing the destination of a consignment of vodka to be the same warehouse in Leighton Buzzard.

[17]On 28 March 2011, at the Manchester Crown Court, the appellant pleaded guilty to the offence of which he had been charged in the Indictment. He was sentenced to 5 ½ years imprisonment. The appellant became eligible for detention home curfew in October 2013.

The judgment of the Tribunal Correctionnel de Bordeaux of 22 September 2011

[18]The judgment of the Tribunal Correctionnel de Bordeaux dated 22 September 2011 identified the charges of which the three accused, David Cook, his wife Beverly Cook and the appellant, were accused. All three were charged with one offence of “contraband A better translation might be “smuggling”. of prohibited or highly taxed goods committed by an organised group committed between 15 November 2006 and 20 March 2007 in Beness Maremne, Dax within the jurisdiction of the Bordeaux [court]”. The judgment refers to four specific shipments on 24 November 2006, 8 February 2007, 12 March 2007 and 20 March 2007. The other two defendants were also accused of three further charges relating to use of forged documents on 20 March 2007.

[19]The judgment of the French court states that the offence of smuggling in this case comprised the transport of goods from Spain, fraudulently alleged to be destined for Belgium via France, but in fact destined for a secret selling point. In reality, the judgment stated, goods were to be delivered within Great Britain without paying the excise duty due to the British authorities, which duty was twice that of the equivalent French duty. The judgment further stated that the defendants must have been aware of the fraud because David Cook had been arrested on 14 March 2007, a few days previously (ie to 20 March 2007), for a similar transport operation. On that occasion the appellant had asked Mr Cook to deliver the goods to a different place from that identified in the administrative documents.

[20]The judgment also stated that investigations and the statement of Mr Cook demonstrated that the appellant himself had a leading role in the operation, giving instructions to Mr and Mrs Cook to collect the alcohol and deliver it to secret warehouses. Several elements indicated that this was done by an “organised gang”. The French is “bande organisée” Thus the haulage company of Mr and Mrs Cook was placed at the disposal of a criminal organisation to handle illegal transport operations; there was a Spanish supplier of the goods which also provided the forged transport and administrative documents and the appellant gave instructions to Mr and Mrs Cook. All this showed “material preparation and prior agreement between the protagonists to carry out transport operations for the purposes of organising clandestine imports/exports of alcohol from Spain to Great Britain”. The judgment also noted that the appellant was “known to the British authorities for excise frauds”.

[21]David Cook and his wife were sentenced to three years imprisonment which was suspended, and, as already noted, the appellant was sentenced to seven years imprisonment. The Grounds of Appeal: general.

[22]Before considering the individual grounds, it is important to recall the structure of Part 1 of the EA and the approach that the Magistrates’ Court and this court (on appeal) has to take to the issues that arise on Part 1 extradition cases. As Scott Baker LJ stated in Sonea v Mehedinti

[2009] 2 All ER 821

;

[2009] EWHC Admin 89

at [16]. the structure of Part 1 of the EA envisages a “step by step” approach by the judge to particular questions. The answer to each particular question will determine the next move that the judge has to take and the next question that the judge has to consider. Scott Baker LJ emphasised in the same paragraph [16] that it is only when the judge gets to section 20 that it is pertinent to consider whether the person requested was convicted in his presence or absence and, if in his absence, whether the person was deliberately absent and, thus, whether he is entitled to a retrial upon surrender under a “conviction” warrant. It is important that this same step by step approach is taken by counsel when considering what arguments may be available to them if their client wishes to challenge an EAW, whether it is an “accusation” warrant or a “conviction” warrant. A failure to do so could lead the court into error and very nearly did so on this appeal, as I will explain under Ground 2.

Ground 1 of Appeal: what terms must be in the EAW to make it valid?

[23]On behalf of the appellant, Mr Peter Caldwell’s first submission is that the EAW must comply with the requirements set out in section 2(4) of the EA before he can be validly surrendered. Thus, he said, it must state(a) particulars of the requested person’s identity;

(b) particulars of any other warrants issued in the My emphasis category 1 territory for the person’s arrest in respect of the offence; and

(c) particulars of the circumstances in which the person is alleged to have committed the offence. That requires particulars of the “conduct alleged to constitute the offence”, “the time and place at which he is alleged to have committed the offence” and (broadly) an particulars of the law of the territory concerned relating to the alleged commission of the offence.

[24]This submission must be rejected at the outset. This EAW is plainly a “conviction” warrant, because, its terms, taken overall, are those required by section 2(2)(b) of the EA. Thus the terms of the EA indicate sufficiently clearly that the appellant is unlawfully at large after conviction of an offence specified in the EAW and the EAW has been issued with a view to his arrest and extradition to France to serve the sentence of imprisonment imposed on him by the Bordeaux court. In short, it contains the statements in section 2(5)(a) and (b) of the EA, not those in section 2(3), which are the statements needed if the EAW is to be an “accusation” warrant. The fact that some or all of the “information” referred to in section 2(4)(a) to (c) is, in fact, set out in this EAW cannot turn it into an “accusation” warrant. Furthermore, it is now very well established that the fact that, if surrendered, the appellant may decide to exercise his right to a retrial, cannot turn this “conviction” EAW into an “accusation” warrant: see in particular Sonea v Mehedinti District Court of Romania. [2009]2 All ER 821;

[2009] EWHC Admin 89

, particularly at [22] per Scott Baker LJ. See also: Istanek v District Court of Prerov, HM Att-Gen (Interested Party)

[2011] EWHC 1498 (Admin)

[25]The requirements as to “information” that are set out in section 2(4) of the EA relate to “accusation” warrants, as is clear from section 2(2)(a) and 2(3) of the EA. In respect of “conviction” warrants, which are referred to in section 2(2)(b) and (5), the information that has to be in the EAW is that set out at section 2(6) of the EA. That stipulates that the EAW must give(a) particulars of the person’s identity;

(b) particulars of the conviction;

(d) details of the sentence that might be imposed if it has not been passed; and where the person has been sentenced already in the category 1 territory, then

(e) particulars of the sentence that has been imposed under the law of the category one territory.

[26]Mr Hearn accepts that the EAW refers to “4 offences” at the start of box (e), but I am satisfied that the only offence for which the appellant is requested to be surrendered is that of “smuggling prohibited or highly taxed goods within a criminal organisation”. Even if that were not clear enough from the EAW, it is clear from the additional information given by the JA in the form of the judgment of the Bordeaux court.

[27]In Sandi v Craiova Court, Romania,

[2009] EWHC 3079 (Admin)

Hickinbottom J stated, at [34] that, in general, in the case of a “conviction” warrant the requested person “will need to have sufficient details of the circumstances of the underlying offences to enable him sensibly to understand what he ahs been convicted of and sentenced for – and to enable him to consider whether any bars to extradition might apply”. I respectfully agree with that statement. In my judgment, the EAW itself does exactly that. There is nothing in this ground of appeal and, indeed, it was not advanced orally as a separate ground of appeal by Mr Caldwell. Ground 2: “double jeopardy” – section 12 of the EA.

[28]Section 12 is set out in the Appendix. Since the decision of the Divisional Court in Fofana v Deputy Prosecutor, Thubin, Tribunal de Grand Instances, Meaux, France

[2006] EWHC 744 (Admin)

; [2006] Extradition LR 102. it has been accepted that the phrase “double jeopardy” in section 12, upon its correct construction, embraces both limbs of the rule against double jeopardy as developed in English case law. Thus a person’s extradition will be barred under section 12 first, if he could plead autrefois acquit or autrefois convict in an English court in respect of the offence for which his surrender is sought under the EAW. Further, the person’s extradition will be barred if he can establish that it would be an abuse of the process of the court to subject him to a prosecution of the offence for which his surrender is sought under the EAW because that prosecution, albeit for a different offence, is founded on the same or substantially the same facts as the previous charge and trial which had lead to a conviction or acquittal.

[29]The Fofana case concerned an “accusation” EAW. The present case concerns a “conviction” warrant. Section 12 does not indicate, in terms, whether it applies only to “accusation” EAWs or to both types of EAW. There is nothing in section 11 to indicate that section 12 only applies to “accusation” EAWs. In my view, as a matter of principle, it must apply to both types. The court in the requesting category 1 territory may have conducted a trial in ignorance of the prior criminal proceedings in the UK, particularly if, as in this case, the trial in the category 1 territory was conducted in absentia of the requested person. It would only be just that the requested person could claim “double jeopardy” as a bar to a request for surrender in respect of a sentence imposed after a trial in the category 1 territory when the requested person could claim in respect of that trial (and sentence), autrefois acquit or autrefois convict or abuse of process in the sense identified above.

[30]Mr Caldwell accepts that this is not a case where he can assert autrefois convict. But his submission is that, on the facts, the offence to which the appellant pleaded guilty in the Manchester proceedings and was sentenced, are founded on substantially the same incidents as those on which the Bordeaux conviction and sentence are founded. Therefore, it would be an abuse of the process to surrender the appellant to serve the sentence imposed by the Bordeaux court.

[31]Mr Caldwell submits that the essence of the offence in the Manchester proceedings was that the appellant was a part of a conspiracy to smuggle dutiable goods from Spain, via France, into the UK. David Cook, although not a co-defendant in the Manchester proceedings, was a co-conspirator and was involved in driving the lorry that was seized on 14 March 2007. The conspiracy offence to which the appellant pleaded guilty in the Manchester proceedings is based on substantially the same conduct as that of the French judgment. The only difference, Mr Caldwell submits, is that the EAW refers to 15 November 2006 as the start date for the “smuggling” offence, whereas the English Indictment identifies the start of the conspiracy as being the beginning of January 2007.

[32]Mr Hearn submitted that there was simply not enough common factual overlap between the offence as identified in the EAW and the offence to which the appellant pleaded guilty in the Manchester proceedings to conclude that it would be an abuse of process to surrender him to serve his sentence in respect of the French conviction, even assuming he would exercise his right to a retrial and were to be re-convicted. He submitted that the EAW was clear enough to indicate, when compared with the Manchester proceedings, that this was so. He referred to the decision of this court in Tolulope (John) v Government of the USA.

[2006] EWHC 3512 (Admin)

[33]I accept Mr Hearn’s submission. First, in relation to the English offence, it is clear from the Indictment itself in the Manchester proceedings that the conduct forming the basis of the allegation of conspiracy covered the period 1 January 2007 to 31 January 2008. Secondly, as Mitting J remarked during argument, any conspiracy charge in the English court must have related to the evasion of duty payable upon the entry of alcohol into the UK, not any evasion as a result of smuggling into or out of any other state. Thirdly, as the prosecution Case Summary for the Manchester proceedings indicates, the particular “seizures” within the UK which form the “overt acts” upon which the prosecution relied to demonstrate the agreement between the appellant and others to carry out unlawful acts start with that of 14 March 2007 and go on to 14 January 2008. The prosecution relied on 11 principal seizures and a further five “alcohol diversions” of consignments of alcohol which were meant to be for export from the UK but were diverted for resale in the UK without paying excise duty.

[34]In contrast to that, in relation to the Bordeaux proceedings, the EAW refers to a period from 15 November 2006 to 20 March 2007. It refers to “4 offences” at the head of box (e), which could, arguably, mean four separate charges or it could mean four instances of illegal behaviour that form the conduct embraced in one charge against the appellant. The latter must be the case so far as the appellant is concerned because at the foot of that box there is reference only to one offence, that of “smuggling prohibited or highly taxed goods within a criminal organisation”. Moreover, as the body of box (e) makes clear, “the offences” were all committed within the jurisdiction of the Bordeaux court, in other words, they were all offences which, by definition, could not be embraced by the English conspiracy charge.

[35]Whilst there is clearly a degree of both temporal and possibly evidential overlap between the two sets of proceedings, charges and convictions, it is very limited. Thus, in summary, the extradition offence:(1) covers a much shorter time scale than the English offence;

(2) concerns events in France, not an agreement to commit unlawful acts in the UK.

[36]I would therefore dismiss this ground of appeal. Ground 3: the “Forum Bar”.

[37]Section 11(1A) and section 19B of the EA are set out in the Appendix. The new “forum bar” provisions in Part 1 of the EA were introduced by Schedule 20(1) paragraph 2 of the Crime and Courts Act 2013 and they came into force on 14 October 2013. The provisions have since been amended slightly by the Anti-Social Behaviour, Crime and Policing Act 2014, Schedule 11(4) paragraph 104 and those modifications came into force on 21 July 2014. The DJ noted in his Ruling at [38] that the JA “questioned” the relevance of “forum bar” and section 19Bbecause this was a case concerning a “conviction” warrant. Unfortunately the DJ did not elaborate on this. He simply stated that because the appellant would have a right to a retrial upon his return (if so ordered), then it was “appropriate…to consider the position”. He concluded, after a short discussion, that he was “not persuaded” that the extradition would not be in the interests of justice and so rejected that objection to surrender.

[38]It does not appear that either counsel drew the DJ’s attention to section 11(1A)(b) of the EA. Nor, I fear, did they do so before us, either in their written submissions or in their oral argument. In fact, it was only after a draft of this judgment had been prepared, including a long section on the issue of section 19B and “forum bar”, that my attention was drawn to section 11(1A)(b) whilst preparing for another case. This unfortunate lapse nearly led to error. It demonstrates that it is imperative that counsel should put before the court, in any bundle of authorities that is prepared for an appeal on extradition, a copy of the whole or Part 1 of the EA, at least up to and including section 29 as well as other sections if particularly relevant to any argument that is to be put forward.

[39]Section 11(1A)(b) of the EA provides:

“But the judge is to decide whether a person’s extradition is barred by reason of….(b) forum, only in a case where a Part 1 warrant contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution of offences in category 1 territory)”

. In short, the “forum bar” challenge is only available for use in the case of an “accusation” EAW, not in the case of a “conviction” warrant. As already noted, the fact that a requested person will have a right of retrial upon his surrender under a “conviction” EAW will not turn that warrant into an “accusation” EAW. Therefore it is plain from the wording of the legislation that “forum” is not a statutory basis on which to bar the extradition of a person who is requested under a “conviction” warrant. It is only available to a requested person who is “accused” within section 2(3).

[40]When section 11(1A)(b) was pointed out to counsel, they both immediately accepted that the “forum bar” provisions could not apply in this case. Nonetheless, Mr Caldwell argued, in further written submissions which he was permitted to advance, that where a requested person is the subject of a request to surrender to a “conviction” EAW and he would have the unconditional right to a retrial if surrendered to the requesting state, there remains an issue as to the “most appropriate forum”. He submitted that this issue could be raised as part of an argument that extradition would be disproportionate to the requested person’s Article 8 rights. He submitted, moreover, that when “forum” is considered under the heading of Article 8, a court is not limited to the specific factors to which a court is required to have regard under section 19B(3), but can take account of other matters. In particular he submitted that the court can take account of the fact that there has been a criminal prosecution in relation to matters that might have formed part of the same prosecution as is now contemplated in the retrial in France if the appellant were to be surrendered and retried.

[41]The question of whether “forum” can be raised as a factor when a court is considering whether extradition would be a disproportionate interference of the requested person’s Article 8 rights was considered by the European Court of Human Rights in Soering v UK

(1989) 11 EHRR 439

. where it held that it was a relevant factor when considering proportionality. The issue was raised in the Divisional Court’s decision in R(Bermingham and others) v United States of America.

[2007] QB 727

at [121] in the judgment of Laws LJ, with whom Ouseley J agreed. That case concerned a request by the USA to extradite British citizens, who were resident in the UK, to face trial on fraud charges in Texas, USA. It was therefore a case under Part 2 of the EA. Laws LJ held that “the possibility of trial in the UK” was legally relevant to the Article 8 issue. He said (at [121]) that “there might be an instance in which such a possibility could tip the balance of judgment in favour of a conclusion that the defendant’s extradition would amount to a disproportionate interference with his Article 8 rights”. But Laws LJ added: “what it would take to make such a case is a very different question”.

[42]In Norris v Government of the USA (No 2),

[2010] 2 AC 487

. the US government sought the extradition of a British citizen to stand trial on a charge of conspiring to operate a price-fixing agreement or cartel. It was therefore an “accusation” type case. Lord Phillips of Worth Matravers PSC noted, at [66], that the Article 8 and “forum” point had been raised in a “spate” of cases since Bermingham. Lord Phillips commented, at [67], that extradition proceedings should “not become the occasion for a debate about the most convenient forum for criminal proceedings”. He considered that the possibility of bringing criminal proceedings in the UK would only rarely be capable of tipping the scales against extradition in accordance with the UK’s treaty obligations. Further, Lord Phillips stated that “unless the judge thought that the scales are finely balanced he should not enter into an enquiry as to the possibility of prosecution in this country”: see [67]. He emphasised the point again at [87] where he said that rarely, if ever, will the fact of a possible prosecution in this jurisdiction be likely, in practice, to “tilt the scales against extradition”. Lord Collins of Mapesbury added, at [131], that the fact that a prosecution could be brought in this country would not normally be a relevant Article 8 factor.

[43]Mr Caldwell’s bold submission is that, in the case of a “conviction” EAW where a person has a right of retrial if he were to be surrendered to the requesting state, then there remains an issue, which is part of the Article 8 “balancing exercise”, as to the most appropriate forum for his trial. That submission must plainly be confined to a case where the person is sought on a “conviction” EAW. In the case of an “accusation” EAW, my provisional view is that “forum” cannot now normally be a relevant factor for Article 8 purposes, in the light of the statutory provisions in section 19B and following. However, even in the case of a “conviction” EAW, the scope for arguing about “forum” in the Article 8 context must be very limited indeed. In general, the fact that a competent court has already been seized of criminal proceedings and has conducted a trial and found the requested person guilty of an offence must be factor in the balance in favour of surrender, not against it. In my view, the highest way that the issue can be put is as Lord Phillips expressed it in Norris: viz. the possibility of a prosecution for the extradition offence in the UK must only to be considered by the judge on an issue of proportionality under Article 8 if the judge reaches the conclusion that all the other Article 8 factors are finely balanced. In my judgment, arguments about the most convenient forum for the trial of the extradition offence should not otherwise be raised as an Article 8 factor in the case of “conviction” EAWs.

[44]The “forum bar” argument as such must be rejected. Section 19B cannot apply, as a matter of construction of section 11(1A)(b). I will consider whether there is any possibility of raising “forum” more generally as an Article 8 point when I have considered the other arguments advanced by Mr Caldwell under that head.

Ground 4: Article 8

[45]Mr Caldwell submitted that the surrender of the appellant would not be compatible to his right to respect for his family life under

Article 8 of the ECHR

. The factors that Mr Caldwell submitted the court should consider on the “family life” side of the equation were: that the appellant had a wife and children in the UK; that he had already been separated from them for a long period as a result of his 5 ½ year sentence in the Manchester proceedings; that the appellant had made positive efforts towards rehabilitation; and, lastly, the delay between the time the offence came to the attention of the French authorities and the date of the EAW. Mr Caldwell submitted that the normally weighty public interest in extradition was diminished in this case by the fact of the Manchester conviction and sentence, even if the double jeopardy argument failed. Mr Caldwell submitted that the additional offence covered by the French conviction (based on the four instances of criminal conduct identified by the four consignments) would have added only 6-9 months to the total sentence of 5 ½ years if the extradition offence had also been dealt with by the Manchester Crown Court judge. Therefore, extradition to face a possible sentence of 7 years after a retrial in France was unduly disproportionate.

[46]The approach which the court must take when considering whether the extradition of a person from the UK should be barred because it would be a disproportionate interference with that person’s Article 8 rights is now very well settled and well known. The leading cases are Norris v USA (No 2)

[2010] 2 AC 487

in the House of Lords and HH v Deputy Prosecutor of the Italian Republic Genoa

[2013] 1 AC 338

in the Supreme Court. The basic question is always whether the interference with the private and family life of the requested person and other members of his family is outweighed by the public interest in extradition. The starting point is that there is a constant and weighty public interest in extradition. That weight is greater if the crime is a serious one – as in this case. Against that public interest there is to be balanced the private and family life of the individual, in which the interests of minor children have a primary consideration. Delay since the crimes is also another relevant factor. The test is a proportionality one, not an “exceptionality” one. The fact that the Article 8 argument will only “exceptionally” succeed is just an acknowledgement of the fact that it will be only in rare cases, on their facts, that the proportionality balance will be struck in favour of the person raising the Article 8 argument.

[47]The DJ acknowledged that there would be unfortunate hardship for the appellant’s family upon him being surrendered to serve his sentence. He took into account the Article 8 rights of the appellant, his wife and his children. The only possible argument of some force is that the possibility of a sentence of 7 years after a retrial, in addition to the sentence of 5 ½ years imposed by the Crown Court in Manchester for allied, but different offences, would be a wholly disproportionate interference with the appellant’s Article 8 rights.

[48]I cannot accept that argument. Mr Caldwell has not argued, nor could he, that the potential French sentence is bound to be “grossly disproportionate”. The question of what sentence would be imposed by the French court upon conviction after a retrial must be at large. The appellant would be entitled to argue, if he were re-convicted in the French court and so face sentence, that he had successfully completed his sentence in the UK proceedings. The appellant will be able to argue that, given the circumstances of the overall offending, the UK sentence should be taken into account when the French court set it sentence for the extradition offence.

[49]Can the argument that the extradition offence could have been prosecuted in England be raised in the Article 8 context? I will assume, in the appellant’s favour, that the English courts would have had jurisdiction to adjudicate on the extradition offence. But, in my judgment, this is clearly not a case where the proportionality argument is otherwise “finely balanced”. Therefore, following the guidance of the House of Lords in the Norris decision, this is not a case where this court should even contemplate consideration, as an Article 8 factor, the issue of whether there could have been a trial of the extradition offence in the UK.

[50]Even if the proportionality argument were finely balanced there are no “forum” factors that would go into the balance in favour of extradition being disproportionate for Article 8 purposes. The opposite is the case. Thus: the extradition offence caused harm across the European Union and so the French JA had a legitimate interest in pursuing the prosecution of the appellant in France. The “centre of gravity” of the extradition offence is in France because the offence involved smuggling in France. Lastly, any possibility of prosecution of the extradition offence in England would be problematic because the likely principal witness would be Mr Cook, who is not resident in the UK and any application to adduce his evidence as “hearsay” evidence would not be bound to succeed.

[51]Thus, in my judgment the DJ’s conclusion that the appellant’s extradition would not be a disproportionate interference with the Article 8 rights of the appellant and his family was correct. There was no error of law or fact.

Conclusion

[52]I would dismiss this appeal. Mr Justice Mitting

[53]I agree. Appendix: relevant provisions of the Extradition Act 2003.

(B) , 20, 21 and 26

[2]Part 1 warrant and certificate (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 in 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. …………………………………………………………………………………………..

[11]Bars to extradition (1). If the judge is required to proceed under this section he must decide whether the person’s extradition to the category 1 territory is barred by reason of— (a) the rule against double jeopardy; …………………….. (j) forum. (b). forum 64. only in a case where the Part 1 warrant contains the statement referred to in section 2(3) (warrant issued for purposes of prosecution for offence in category 1 territory). …………………………………………………………………………………………..

[12]Rule against double jeopardy (a). that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction; (b). that the person were charged with the extradition offence in that part of the United Kingdom. ………………………………………………………………………………………….. 19B Forum (1). The extradition of a person (“D”) to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice. (2). For the purposes of this section, the extradition would not be in the interests of justice if the judge –(a) decides that a substantial measure of D’s relevant activity was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place. (3). These are the specified matters relating to the interests of justice – (a) the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur; (b) the interests of any victims of the extradition offence;

(c) any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;

(d) were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;

(e) any delay that might result from proceedings in one jurisdiction rather than another;

(f) the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to – (i) the jurisdictions in which witnesses, co-defendants and other suspects are located, and (ii) the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;

(g) D’s connections with the United Kingdom. (4). In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned. (5). If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D’s extradition is barred by reason of forum. (6). In this section “D’s relevant activity” means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D. ………………………………………………………………………………………..

[20]Case where person has been convicted (1). If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence. (2). If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21. (3). If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial. (4). If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21. (5). If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial. (6). If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21. (7). If the judge decides that question in the negative he must order the person’s discharge. (8). The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. …………………………………………………………………………………………..

[21]Human rights (1). If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42). (2). If the judge decides the question in subsection (1) in the negative he must order the person’s discharge. (3). If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. (4). If the judge makes an order under subsection (3) he must remand the person in custody or on bail to wait for his extradition to the category 1 territory. (5). If the person is remanded in custody, the appropriate judge may later grant bail. …………………………………………………………………………………………..

[26]Appeal against extradition order (1). If the appropriate judge orders a person’s extradition under this Part, the person may appeal to the High Court against the order. (2). But subsection (1) does not apply if the order is made under section 46 or 48. (3). An appeal under this section may be brought on a question of law or fact. (4). Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made.