Biritwum v District Public Prosecutors Office in Zwolle-Lelystad Netherlands [2014] EWHC 4087 (Admin)

Case No CO/4107/2014[2014] EWHC 4087 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 12 November 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE OUSELEY
Between
BIRITWUMAppellantv
Between
DISTRICT PUBLIC PROSECUTORS OFFICE IN ZWOLLE-LELYSTAD NETHERLANDSRespondent
Computer-Aided Transcript of the Stenograph Notes ofWordWave International Ltd (a Merrill Corporation Company)8th Floor, 165 Fleet Street, London, EC4A 2DYTel: 020 7421 4043 Fax: 020 7404 1424E-mail: mlsukclient@merrillcorp.com(Official Shorthand Writers to the Court)
Mr G Hall (instructed by JD Spicer Zeb Solicitors) appeared for AppellantMs H Hinton (instructed by CPS) appeared for Respondent
J U D G M E N T
[1]MR JUSTICE OUSELEY: This is an appeal against the decision of District Judge Zani ordering the extradition to Holland of the Appellant on what is plainly a conviction European Arrest Warrant (an "EAW"). I say that because aspects of his judgment suggest that he considered the particulars required under section 2(4) of the Act, which were the particulars appropriate to an accusation warrant. The Appellant faces serving a term of 327 days.[2]The first issue raised in the appeal is whether the particulars of the offence satisfy the requirements of section 2(6)(b). In particular, (b) requires, for a valid warrant, that the warrant contain the statement and information as to the particulars of the conviction.[3]The terms of the EAW are that in respect of the one offence:
"On 12 February 2006 in Heerlen, together with others, namely C Rowland and J Abus, the person concerned aided and abetted the procurement of entry into the Netherlands while he knew that such entry was illegal. The person concerned did after all take the aforesaid Rowland and aforesaid Abus from the Federal Republic of Germany to the Netherlands in a motor vehicle driven by him."
It is, in the end, clear that Rowland and Abus are the persons whose entry into the Netherlands was said to be illegal.[4]Mr Hall for the Appellant puts his case under this head briefly. He said that it is not possible to tell from that description of the offending conduct what the nature of the illegality was. It could have been, he said, something to do with either the vehicle or something other than the people but which that was taken with them, for example, contraband goods. There might have been some specific bar against those particular individuals preventing legal transit by them from Germany into the Netherlands.[5]Ms Hinton for the requesting authority points to the classification of the offence which then follows, which is aiding and abetting another person to procure entry into the Netherlands while he knew that such entry was illegal.[6]The applicable article of the Netherlands penal code says that it is an imprisonable offence to assist another person to obtain entry to the Netherlands and certain other countries which are signatories to the Protocol Against the Smuggling of Migrants by Land and Sea and Air (New York, 15 November 2000), supplementing the Convention Against Transnational Organized Crime, when he knows that the entry or transit is illegal. Such activities make a person guilty of "people smuggling".[7]Ms Hinton says if the classification and applicable article of the code are read with the description of the offence, it is perfectly clear what the nature of the illegality is. It is, for these purposes, accepted that no further information can be examined by this court for the purposes of reaching a conclusion on the issue. This is an issue which goes directly to the validity of the warrant.[8]The District Judge dealt with this under section 2(4), but directed himself by reference to the relevant authority, which is Sandi v the Craiova Court of Romania [2009] EWHC 3079 (Admin), a Divisional Court decision which concerned what was meant by "particulars of conviction" for the purposes of section 2(6). The relevant paragraphs in the decision of Hickinbottom J, with which Moses LJ agreed, are paragraphs 25 and 34.[9]It is perfectly clear that the particulars of conviction are not the same as the circumstances which are required to be particularised for the purposes of an accusation warrant, but nor are they limited to a mere recitation of the date of conviction and the broad offence-creating provision pursuant to which the conviction was entered. There has to be enough to enable the requested person to understand what he has been convicted of and sentenced for, and to consider whether any bars to extradition might apply. I shall come later to the question of how this plays out in relation to the second issue, which is whether dual criminality has been shown to exist.[10]In my judgment, the warrant is valid. It is trite that the warrant has to be read as a whole. The concern about the lack of specificity as to what the illegal nature of the entry was, insofar as there is any doubt from the description of the offence, is made good by reading the warrant as a whole. It is perfectly clear that the allegation is one of people smuggling, not of travelling in a defective car or anything to do with the mode of transport, nor is it to do with any goods that were transported. It is to do with the transport of people who have no right of entry, commonly called people smuggling.[11]It is not possible to infer that the underlying allegation of illegal entry related to some specific court order without more. In any event, once one looks at the people smuggling provision, it is perfectly clear what the nature of the allegation is. These are illegal immigrants who were being smuggled into the Netherlands from Germany.[12]The second issue which arises is whether the warrant provides for dual criminality. The offence alleged is not a framework offence. No framework offence box has been ticked. It therefore follows that the requesting authority has to show that the offending behaviour alleged is an offence under English law and has to do so to the criminal standard.[13]The judicial authority relies upon S.25 of the Immigration Act 1971. That section only applies to the entry of a non-EU national. If that is the provision relied on for dual criminality, the only permissible inference from the warrant, absent extraneous information, has to be that the individuals, Rowland and Abus, are non-EU nationals. If that is the not the only permissible inference, then dual criminality has not been established. It is not enough that it is a reasonable inference that the individuals are non-EU nationals.[14]The first contention by Mr Hall is that the position is not clear enough from the warrant and, therefore, he must succeed. Indeed, he says that the District Judge applied, in coming to the conclusion he did on dual criminality, too low a standard of proof.[15]I did not read the warrant in the way which Mr Hall contends is possible. I read it -- and this is much a matter of impression as anything else -- as meaning that these were non-EU nationals because EU nationals have no general bar in crossing from Germany into the Netherlands. Provisions dealing with people smuggling would not be apt for those who are German or other EU nationals moving between Germany and the Netherlands.[16]There are, I accept, certain circumstances in which there would be a different form of illegality. For example, somebody who has been removed from the Netherlands on the grounds that their presence there was no longer in the public interest on the narrow basis on which that is permissible under EU law. For example, somebody who has been trafficked for the purposes of exploitation rather than being smuggled for their own benefit. That would be a Framework offence, but I do not consider that those can give rise to the inference that these individuals were possibly EU nationals.[17]This is not an offence in which any exploitative conduct or smuggling with a view to exploitative conduct is alleged. The smuggling of people, for example, for the purposes of prostitution is a framework offence and having been thus marked, dual criminality would not further have had to be considered.[18]There is no realistic basis, absent it being specifically stated, for supposing that people smuggling would cover those who ought to have been, or who were, by court order perhaps following the conclusion of a sentence for a serious offence, removed from the Netherlands. Accordingly, in my judgment, the obvious inference and the only realistic inference is that the two people in question were not EU nationals.[19]Ms Hinton says that if there is doubt, it is permissible to consider extraneous information. For that purpose, she relies on paragraph 49 of Dabbas v the High Court of Justice in Madrid, Spain [2007] UKHL 6 in which Lord Hope makes it perfectly clear that, for the purposes of S.10 and S.65, it is permissible to receive further information to decide whether or not the offence specified is an extradition offence and such further information can be requested.[20]Mr Hall points to two authorities which he says are contrary to that. One is the decision in Government of United States v Shlesinger [2013] EWHC 2671 (Admin) in which, at paragraph 5, the President of the Queen's Bench Division said that it is clear that the court must look at:
"the conduct alleged in the documentation constituting the request to see if the conduct constitutes an offence under the law of the United Kingdom."
[21]Mr Hall submitted that that was a decision which meant that the court was confined to the terms of the warrant itself. It was so confined because the conduct referred to in section 10 and section 65 meant the conduct as set out in the warrant.[22]I do not consider that that authority can be regarded as having overruled paragraph 49 of Dabbas, least of all without expressly saying so and in the teeth of it being a common practice to consider such information. I should point out that the issue in Shlesinger was not whether the requesting authority could provide such further information, which was what Dabbas was dealing with. The issue in Shlesinger was whether the requested person could upset the content of the warrant by providing further information.[23]Mr Hall, more promisingly, relied upon the decision of the Supreme Court in Zakrzewski v The Regional Court in Lodz, Poland [2013] UKSC 2, [2013] 1 WLR 324. This is the case that concerned the aggregation of Polish sentences which had not been aggregated in the warrant, but which subsequent information showed would be aggregated to a different total term.[24]In paragraph 6 of the judgment of Lord Sumption, which the others agreed with, says that the conduct relevant for dual criminality was the conduct specified in the warrant. It had to be determined by reference to information certified by the requesting authority, which may be certified in the warrant itself. There then follows a reference to Dabbas.[25]Mr Hall submits that, in the subsequent paragraphs, the clear indication is that the court, in dealing with this issue, not really the issue in that case, is confined to the warrant.[26]I do not consider that that is right. Both in paragraph 10 and in the reference to Dabbas in paragraph 6, the powers of the Framework Decision to request further information are identified. Once Dabbas has been referred to without any sign of disapproval, the reference to Dabbas in paragraph 6 determination "by reference to information certified by the requesting authority, which may be (and commonly is) certified in the warrant itself" has to be read with paragraph 49.[27]Accordingly, insofar as concerns the dubiety of whether the individuals in question were EU nationals, I am entitled to look at the requesting authority's further information, which makes it perfectly clear that they are not EU nationals. Dual criminality is satisfied.[28]That leaves the issue of Article 8. The position in relation to Article 8 is this. The judge was satisfied that extradition would be proportionate, having considered the position of the Appellant and his children. The judge decided that the Appellant was a fugitive, a point not contested before me, who had come to the UK late in 2009. The offence in question was committed in 2006. There had been a series of hearings in the Netherlands following from his conviction.[29]The District Judge found that the Appellant, having come to the United Kingdom in 2009, divorced shortly afterwards from his wife and entered into a relationship with another woman by whom he has a son aged 1. This means he has a 1 year old in addition to a 6 year old child who lives with her mother, the Appellant's former wife. He provides some financial assistance each month, £200, and saw that child every month. The mother of his son, who is 1, has no confirmed right to remain in the United Kingdom, has no right to work and receives minimal benefits.[30]The Appellant has also served 161 days on remand, meaning he will have served nearly half of the 327 days he is required to serve. Hence it is said that all the associated disruption to family life, the loss potentially of his job, the cost of welfare for the child, the possible problems that the partner will face without state assistance, means that the whole process is simply disproportionate. Here is somebody whose life is going to be significantly disrupted in order that he should serve a period of the order of 161 days.[31]However, I have to start from the premise that this is, and indeed it is, a serious offence. It merits a custodial sentence. The Dutch authorities have imposed one. The Appellant is a fugitive. He has developed relationships knowing that he had not resolved the issue of his offence. The welfare of the children are a primary consideration, but I am not satisfied at all that their circumstances, each of whom has a mother with them, means that extradition would be disproportionate. Extradition will impose hardships on them, but it is hardship for a limited period.[32]It would not be right that the Appellant should not serve his full sentence of smuggling people. Accordingly, this appeal is dismissed.[33]MR JUSTICE OUSELEY: I am grateful to the members of the court staff for staying hearing this appeal. I want counsel to bear in mind that 45 minutes is the basis upon which these cases are listed. Counsel are asked to say whether it is going to take longer, in which case different arrangements will be made. No such application was made here, but yet the opening of the appeal took more than an hour and a quarter.[34]MS HINTON: My Lord, forgive me for raising one very small point. I checked this with Mr Hall. I do not know if we have the same note or different, but just for the purposes of any transcript. I think there may have been a reference to section 64 when it should have been section 65.[35]MR JUSTICE OUSELEY: I am sorry. I think there was, yes.[36]MS HINTON: Thank you, my Lord.

MR JUSTICE OUSELEY: Yes, section 65 when it is not a reference to a judgment.

[38]MS HINTON: Quite so.[39]MR HALL: My Lord, I rise in relation to making an application for the court to certify this case on two bases.[40]The first is that, in my submission, there is an issue of a general public importance in relation to section 2 and the extent to which the court is able to move from the conduct which forms the description of the offence to the applicable law, which is simply a statement of that offence in order to ensure that it is sufficiently particularised for the purposes of section 2.[41]The --[42]MR JUSTICE OUSELEY: That is within section 2. It is using the description of the applicable law. Yes.[43]MR HALL: The second point is in relation to the issue of section 10 and whether the court can refer to extraneous material. I hear my Lord's comments in relation to what Lord Sumption did in Zakrzewski, but clearly, in my submission, there is a tension, at the very least, but, in my submission, there is a conflict between what he has stated there and what Lord Hope stated in the case of Dabbas. There is no wording. Lord Sumption does not refer at all to paragraph 49 and any reference thereto would not appear to explicitly support my Lord's conclusion.[44]MR JUSTICE OUSELEY: Yes. Thank you. I am not going to grant a certificate. I will tell you why.[45]So far as section 2 is concerned, it is clear, in my view, that judges are allowed to construe the warrant as a whole unless there is a peculiarity. That makes it unsuitable for a general point of law. The particular facet focused on by way of deficiency was illegality itself, the nature of the illegality. It seems to me obvious that the nature of the illegality can be picked up and understood from the offence-creating provision.[46]So far as section 10 is concerned, the issue is academic because of the way I interpret the warrant, but I do not accept that there is an arguable tension, because of what Lord Sumption is saying between paragraph 6 of Lord Sumption and paragraph 49 of Lord Hope, because, first of all, Lord Sumption does not suggest a conflict or a rowing back from what is said. The way he phrases it in paragraph 6 when he talks about "maybe and is commonly certified in the warrant" seems to me to be recognising what Lord Hope has said in paragraph 49 because those supply the circumstances in which it is not common and may not be certified in the warrant but by further information, which he elaborates in paragraph 10.[47]But resolving that tension is not going to assist this Appellant. Thank you very much, Mr Hall.[48]MR HALL: I am grateful, my Lord.[49]MR JUSTICE OUSELEY: I have a whole lot of cases up here. I do not know whether you want them back. I have left up here the Framework Decision if it is part of your travelling library.[50]MS HINTON: Thank you, my Lord.

MR JUSTICE OUSELEY: I will put all those there for you to plough through as you wish.

[52]MS HINTON: I think we perhaps should also say that we are also grateful to the court staff.[53]MR HALL: Very grateful.