Neutral Citation No. [2010] NIQB 23    

Ref:    

McCL7758

 

 

 

Judgment: approved by the Court for handing down

Delivered:

24/02/10

(subject to editorial corrections)*

 

 

 

 

 

 

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

________

 

QUEEN'S BENCH DIVISION

________

 

BEFORE A DIVISIONAL COURT

_______

 

IN THE MATTER OF AN APPLICATION UNDER THE

EXTRADITION ACT 2003

________

 

BETWEEN:

 

KINGDOM OF SPAIN

 

Applicant/

Appellant:

-and-

 

ARTURO VILLANUEVA ARTEAGA

 

 

Respondent:

________

 

 

McCLOSKEY J

 

I           INTRODUCTION

 

[1]               This is an appeal under Section 28 of the Extradition Act 2003.  Adopting the statutory language, the requesting State, Spain, is the Appellant and the requested person, Arturo Villaneuva Arteaga, a Spanish national, is the Respondent.  It appears that the Respondent has been living and working in Northern Ireland for some time.  Under challenge is the decision of the Recorder of Belfast, given in writing on 18th November 2009, whereby the discharge of the Respondent was ordered.

 

[2]               The European and domestic legislative framework to which these proceedings belong is constituted by a combination of The Council Framework Decision (dated 13th June 2002) and the Extradition Act 2003.  The salient provisions of these two measures are summarised in the following paragraphs.

 

II         COUNCIL FRAMEWORK DECISION

 

[3]               This is an instrument of EU law, which governs the extradition (the contemporary nomenclature being “surrender”) of individuals from one Member State to the other.  Its full title is “Council Framework Decision of 13th June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States” (hereinafter “the Framework Decision”).  The essence and objectives of this measure can be ascertained from its fifth recital, which states:

 

The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities.  Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures.  Traditional co-operation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice”.

 

The Framework Decision makes provision for the “European Arrest Warrant” (“the EAW”).  This is described in the sixth recital as “the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the ‘cornerstone’ of judicial co-operation”.

 

[4]               The eighth recital focuses on the judicial authority of the requested Member State (the Recorder of Belfast, in this instance) in these terms:

 

Decisions on the execution of the European Arrest Warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender.

 

Thus a judicial process is a central element of the scheme established for the surrender of persons by one Member State to another.  Each Member State must also have a designated “Central Authority”, which performs certain functions in the execution of an EAW.  According to the ninth recital, this role “must be limited to practical and administrative assistance”.   The recitals continue:

 

[10] The mechanism of the European Arrest Warrant is based on a high level of confidence between Member States …

 

[11] In relations between Member States, the European Arrest Warrant should replace all the previous instruments concerning extradition”. 

 

The next theme which emerges is that of respecting fundamental rights, coupled with the need for due process, in the twelfth recital, which states:

 

This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof.  Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European Arrest Warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said Arrest Warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person’s position may be prejudiced for any of these reasons.

 

This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media.

 

The theme of respect for fundamental rights is highlighted by Article 6 of the Treaty on European Union, which provides:

 

1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States.

 

2. The Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law …”.

 

The next succeeding Recital [No. 13] reflects the same theme.

 

[5]               The substantive provisions of the Framework Decision reflect and give effect to the values, standards and objectives expressed in its recitals, summarised above.  Article 1(1) defines the EAW as “a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order”.  By Article 1(2):

 

Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision”.

 

The kind of criminal conduct falling within the scope of the EAW is detailed in Article 2.  This encompasses, per Article 2(2), a lengthy menu of offences, including “terrorism”, punishable by a custodial sentence of at least three years in the requesting Member State.  Offences belonging to this category do not require “verification of the double criminality of the act”.  Under Article 3, the executing judicial authority must decline to execute the EAW in certain circumstances, whereas pursuant to Article 4 execution is discretionary in specified cases.  Article 6 regulates the issuing judicial authority and the executing judicial authority, while Article 7 provides for the designation by each Member State of a “central authority” to assist the competent judicial authorities.

 

[6]               In accordance with Article 8, the EAW must have a prescribed form and content.  Further, it must be translated into the official language of the executing Member State.   Article 8 provides:

 

Content and form of the European arrest warrant

1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State;

(g) if possible, other consequences of the offence.

2. The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities..

 

The form contained in the Annex makes provision for the inclusion of information relating to, inter alia:

 

(a)        The identity of the requested person.

 

(b)       The decision on which the EAW is based.

 

(c)        The maximum length of the relevant custodial sentence, actual or potential.

 

(d)       The number of offences to which the EAW relates.

 

(e)        A description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person.

 

(f)        The nature and legal classification of the offence and the applicable statutory provision/code.

 

[7]               The central role of the competent executing judicial authority in the EAW process is clear from a series of provisions contained in Chapter 2.  These include Article 11 (which is concerned with certain due process rights of the requested person) and Article 12 (whether the judicial authority should remand the requested person in custody or on bail).  Any consent to surrender must be made before the judicial authority (per Article 13).  Next, Article 14 provides:

 

Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State”.

 

By Article 15:

 

1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 

 

2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3, 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17.

 

[This latter provision features in the matrix of the present case].  By Article 17(1), every EAW must be processed and executed “as a matter of urgency”.  Where the requested person consents to surrender, the final decision thereon should be taken within ten days of the provision of consent.  In other cases, the final decision on execution of the EAW should be taken within a period of sixty days, beginning with arrest.  If this cannot be achieved, the executing judicial authority must inform the issuing judicial authority, providing reasons for the delay, whereupon the time limits may be extended by a further thirty days: see Article 17(4).  By virtue of Article 17(6), where the executing judicial authority determines not to execute the EAW, a reasoned decision must be provided. 

 

III        THE EXTRADITION ACT 2003

 

[8]               The Framework Decision must be considered in conjunction with the Extradition Act 2003 (“the 2003 Act”), which is the domestic measure of transposition and comprehensively reformed the law relating to extradition.  The 2003 Act came into operation on 1st January 2004 and governs all extradition requests received on and after this date.  The main features of the new extradition procedures which it establishes include a regime whereby each of the United Kingdom’s extradition partners belongs to one of two categories designated by order of the Secretary of State; the adoption of the Framework Decision, which is widely acknowledged as creating “fast track” extradition arrangements amongst the EU Member States; a simplification of the procedures for authentication of foreign documents; the abolition of the requirement for prima facie evidence in certain cases; and a simplified single avenue of appeal for all cases.

 

[9]               In accordance with Section 67 of the 2003 Act, the Recorder of Belfast is the designated executing judicial authority in Northern Ireland.  The themes of simplified procedures and expedition recur throughout the statute: see, for example, Sections 4-6.  Sections 8-19B contain an array of provisions arranged under the general heading “Bars to Extradition”.  These include matters such as the rule against double jeopardy, so-called “extraneous considerations” and the passage of time.  The judge must decide whether the extradition of the requested person is precluded by any of the specified prohibitions.  Further, by virtue of Section 21, the court is obliged to consider whether the extradition of the requested person would be compatible with the Convention rights given effect by the Human Rights Act 1998.  Section 26 provides for a right of appeal against an extradition order, to the High Court.  By virtue of Section 32, the possibility of a further appeal to the Supreme Court exists.

 

[10]           In the context of the present appeal, Section 2 of the 2003 Act is of central importance.  This provides:

 

(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.

(7)     The designated authority may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

(8)     A certificate under this section must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

(9)     The designated authority is the authority designated for the purposes of this Part by order made by the Secretary of State.

(10)     An order made under subsection (9) may—

(a)     designate more than one authority;

(b)     designate different authorities for different parts of the United Kingdom. ”.

 

Subsections (2)(a), (3) and (4) apply here, given that the requested person has not been convicted in the requesting state but is, rather, to be prosecuted there in the event of his extradition being ordered.  In the context of the present litigation, the spotlight falls particularly on Section 2(4)(c), which may be juxtaposed with Article 8(e) of the Framework Decision (see paragraph [6], supra).  Whereas the latter stipulates that the EAW shall contain, inter alia,  “a description of the…..degree of participation in the offence by the requested person”, these words are not replicated in Section 2(4)(c), which, rather, speaks of “particulars of……the conduct alleged to constitute the offence”.  In all other material respects, Article 8(e) and Section 2(4)(c) are couched in the same terms.  While the linguistic formulae “a description of” and “particulars of” differ, we consider that these do not give rise to any material distinction. Furthermore, we construe the words “particulars of “to qualify all of the ensuing words in the subsection.

 

IV        THE EUROPEAN ARREST WARRANT

 

[11]           The European Arrest Warrant (“the EAW”) in the present matter is dated 27th February 2009 and, on its face, is signed by Judge Carmen Pastor of the Criminal Chamber (Fourth Section) of the National High Court of Spain.  It recites that it is based on a judicial order, dated 13th February 2004, requiring the arrest and remand in custody of the requested person for the purpose of bringing him before the aforementioned court.  Paragraph 2(c) states that the maximum custodial sentence to which the requested person is liable is six years.  Paragraph 2(e) of the EAW, entitled “Offences”, is completed in these terms:

 

This warrant relates to in total: 1 offence”.

 

The ensuing section of the EAW bears the title “Description of the Circumstances in which the Offence/s was (were) Committed, including the Time, Place and Degree of Participation in the Offence/s by the Requested Person”. As newly translated, this is completed in the following terms:

 

“According to the investigations conducted, ARTURO VILLANUEVE ARTEAGA is a member of the ETA terrorist organisation, the aim of which is to achieve the independence of the Basque Country and Navarre and their separation from Spain, which it pursues using violent means, and by those means to create a new independent State, together with part of the south of France. To that end, ETA has created various groupings within the organisation, entrusting them with specific tasks; one of these is Jarrai, to which Villanueva belongs and which, following ETA’s strategy of destroying Spain’s national unity, as evidenced by the documentation seized and, to that end committing various acts of violence and intimidation which occurred between 1994 and 2000, has participated both directly and indirectly in constant breaches of public order through the use of violent means on the public highway, involving the burning of street furniture, buses, setting fire to court buildings and government offices, attacks on individuals and the police, slander campaigns against the judiciary and the police with the aim of encouraging the public to persecute those institutions, intimidation of Basque business persons from whom they demand protection money; during this period, 6 263 acts of street violence were recorded, committed in the Basque Country between 1992 and 1999, in which the Jarrai group to which Villanueva belongs was directly involved. We would inform you that, on 19 January 2007, the Supreme Court passed final sentences on many members of Jarrai, although some of its members were not tried as they had fled abroad, as is the case with Villanueva. In that same judgment, the Jarrai group was declared a terrorist organisation. Arturo Villanueva Arteaga has not been put on trial and we are requesting his surrender on the grounds of his membership of a terrorist organisation.”

 

Under the heading “Nature and Legal Classification of the Offence/s and the Applicable Statutory Provision/Code,” the EAW continues:

 

“OFFENCE CONSISTING OF MEMBERSHIP OF AN ILLEGAL ORGANISATION, DEFINED AS A GANG, ORGANISATION OR TERRORIST GROUP, AS A MEMBER OF SUCH ORGANISATION OR GROUP. ARTICLES 515 AND 516 OF THE PENAL CODE . . . . . . . . . . . . . . . .

 

The following section of the EAW is couched in these terms:

 

If applicable, tick one or more of the following offences punishable in the issuing Member State by a custodial sentence or detention order of a maximum of at least three years as defined by the laws of the issuing Member State”.

 

The offences of “participation in a criminal organisation” and “terrorism” are duly ticked.  In a later passage, the EAW recites:

 

Full description of offence/s not covered by Section 1 above:

 

Member of an Illegal Terrorist Organisation”

 

[12]           According to the evidence generated by the litigation, the requested person was arrested in Northern Ireland, pursuant to the EAW, on 22nd April 2009.  Upon that date, he appeared before the Recorder of Belfast for the first time.  Thereafter, the framework of the present litigation evolved in the following manner. Initially, the requested person’s legal representatives submitted a skeleton argument to the Recorder.  This was the impetus for a series of ensuing communications exchanged between the Recorder and the relevant Spanish authority.  The legal authority for this process is contained in Article 15(2) of the Framework Decision (recited in paragraph [7] above).  The first request for information emanating from the Recorder was in the following terms:

 

The court has been asked to make enquiry by way of further information from the judge seeking the following information:

 

(i) Is it alleged that the Requested Person was involved in specific acts or offences, or it is [sic] alleged that he was a member of the group between the dates set out in the Warrant namely from 1994 to 1999/2000?

 

(ii) Could we be advised of the date upon which Jarrai was declared a terrorist organisation?  It would appear that this was some time in January 2007 following a ruling of the Spanish Supreme Court on 19th January 2007”.

 

On 30th June 2009, the Criminal Chamber of the Spanish National High Court replied as follows:

 

With respect to the first question …we reply that, according to the charges of the Public Prosecutor, Mr. Villaneuva was a member of Jarrai in the years 1994 to 2000 and carried out various violent and coercive actions as a member of that organisation between the dates referred to.  With respect to the second question …the Jarrai organisation was declared a terrorist organisation by a final judgment of the Supreme Court on 19th January 2007.  It is specified that Mr. Villaneuva was not prosecuted in the judgment made by this court on 20th June 2005 and confirmed by the Supreme Court on 19th January 2007, he having fled the Spanish territory prior to the trial”.

 

[Emphasis added].

 

The import of this communication is clear: it embodies an unequivocal allegation that the arrested person, as a member of Jarrai, carried out various violent and coercive acts during the period 1994 to 2000.  This appears to be an indirect reference to some of the numerous “acts of violence and intimidation” detailed in paragraph 2(e) of the EAW.  However, it may be observed that the use of the plural (“the charges”) is inaccurate and potentially misleading, given that the Spanish text clearly employs the singular (“la acusacion”).

 

[13]           Subsequently, the Spanish National High Court provided still further information, apparently in response to a letter from the Crown Solicitor’s Office (representing the requesting state).  In a written communication dated 2nd September 2009, the Spanish court stated:

 

 

1. Arturo Villaneuva is charged of belonging to the terrorist organisation named Jarrai.

 

2. The mentioned organisation was declared a terrorist organisation, for the first time, in a judgment of the Supreme Court dated 2007.01.19.

 

3. The alleged membership of the requested person to Jarrai dates back to the years 1994-2000.

 

4. Membership of a terrorist organisation is a crime in Spain for over 30 years; therefore if it is demonstrated during the trial the belonging of the requested person to Jarrai, he will be convicted, if not he will be acquitted …

 

5. The crime by which the requested person will be judged, if he is surrendered, is for his alleged membership to [sic] the terrorist organisation Jarrai, not for the commission of a specific violent act …

 

8. … The Supreme Court pronounced the underneath mentioned judgment on 2007.01.19 and concluded that Jarrai was not only an unlawful assembly, but in addition an aggravated form of it, that is a gang, organisation or terrorist group and condemned its members as perpetrators of a crime of membership of an unlawful assembly, constituent of gang, organisation or terrorist group.

 

The final communication emanating from the Spanish court is dated 1st October 2009.  This is to the effect that, to the knowledge of that court, there are no relevant proceedings pending before the European Court of Human Rights. 

 

V         THE DECISION OF THE RECORDER

 

[14]           In the aforementioned skeleton argument, the requested person’s legal representatives identified retrospectivity as a preliminary issue and, invoking (inter alia) Article 7 of the European Convention on Human Rights and Fundamental Freedoms (“ECHR”) argued that an order surrendering the requested person would be unlawful as it would infringe his Convention rights.  The gist of this argument was that whereas the allegation against the requested person was that he had been a member of Jarrai between 1994 and 2000, this organisation was not declared unlawful until 2005, with the result that his earlier membership (which he denied) could not constitute a criminal offence. 

 

[15]           The Recorder convened a preliminary hearing for the purpose of considering and determining this preliminary issue of retrospectivity.  At this stage, a supplementary written argument on behalf of the requested person was provided.  This raised the following additional issue:

 

This hearing has been listed to deal with a preliminary argument on the question whether the extradition of the RP would be compatible with Article 7 of the ECHR.  There is, however, an anterior issue: is there before the court a warrant within the meaning of Part 1 of the Act?  It is submitted that there is not …”.

 

The thrust of the argument advanced was that the warrant was defective as it failed to adequately particularise how, when and where the conduct alleged against the requested person had allegedly occurred i.e. the degree of his alleged involvement in the asserted offence, contrary to Section 2(4)(c) of the 2003 Act.  [I shall describe this hereinafter as “the specificity issue”].  Having considered submissions from both parties, the Recorder, in a reserved ruling, acceded to this argument.  In paragraphs [18] - [20], he considered the terms of the EAW and in paragraph 21 he continued:

 

The court could on the face of the wording in the Warrant proceed for the purposes of this application purely on the grounds that the offence for which the Requested Person is sought to be extradited is membership of a terrorist organisation.  However, for the purposes of completeness I will deal with the allegations in the particulars in relation to alleged acts undertaken personally by the Requested Person”.

 

 Having considered some of the decided cases belonging to this sphere, the Recorder reasoned and concluded in the following terms:

 

“[24]    Dealing with the offence stated in the particulars to the Warrant what is deficient in the particulars is either the evidence whereby it is alleged that the Requested Person is a member of that organisation other than by a general statement that he committed a number of offences about which no details are given as to when they occurred – for example

 

·                    the nature of disturbance of the public peace and in

 what streets it is alleged this occurred:

·                    where street furniture and buses were set on fire:

·                    where arson attacks against courts were carried out:

·                    which private individuals and police it is alleged that he carried out attacks: or

·                    the nature of the campaigns to discredit judges and the police. 

 

This is not improved upon by the reply of 2 July where reference is made to carrying out “various violent and coercive actions” as a member of that organisation between the dates referred to in the reply.  No further detail is given in the letter of 2 September 2009 – although I accept this was directed to the issue as to whether or not JARRAI was an illegal organisation prior to the date of the decision of the Spanish Supreme Court. 

 

[25]      I have therefore concluded that the particulars given are general and lack any specificity as to the actions of the Requested Person which evidences his alleged membership of the organisation such as attending meetings: giving interviews: being involved in the organisation of the Group (and if so, how) and other outward manifestations that might allow the court to come to a view that the element of membership of the Group is particularised with proper specificity. 

 

[26]      For the sake of clarity I accept that the time period of the activities of JARRAI are properly set out and that it would be open to the court to decide that the scale of their activity (running into over 6,000 incidents) may be sufficient to allow the Requested Person to have sufficient particularity as to the activities of the Group.  But that is not the point on which my decision is made.  It is the question of particularity as to his membership of that Group which is missing. 

 

[27]      I said I would return to the question of the specific acts attributed to the Requested Person based on the wording in the Warrant and the general statement in the email of 2 July.  In fact I have covered this in my comments above.  There is an overlap between the available evidence to substantiate membership and the evidence available to show what specific offences have been committed by the Requested Person.  For the same reason therefore this would not meet the requirements of Section 2(4)(c) of the Extradition Act. 

 

[28]      I therefore accede to the application that the Warrant is invalid.”

 

[16]           As appears from paragraphs [8] and [9], the specificity issue is the only matter considered in the judgment of the Recorder.  In particular, he declined to consider the Article 7 arguments raised in writing on behalf of the requested person.  Consequential upon his ruling, he ordered the discharge of the requested person, thereby triggering the appeal provisions of Section 28 of the 2003 Act.  Upon the hearing of this appeal, consistent with the hearing below and the Recorder’s ruling, the only issue argued by the parties  was that of specificity.

 

 

VI        GUIDANCE FROM THE DECIDED CASES

 

[17]           In Office of the King’s Prosecutor, Brussels –v- Cando Armas [2006] 2 AC 1, in which questions regarding the proper construction of Section 65 of the 2003 Act arose, Lord Bingham commented on the transposition of the Framework Decision in the following terms:

 

[8] Part 1 of the 2003 Act did not effect a simple or straightforward transposition and it did not on the whole use the language of the Framework Decision.  But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co-operation by the United Kingdom than the Decision required, it did not intend to provide for less.

 

Lord Hope also reflected on the genesis of the Framework Decision:

 

[21] The Tampere European Council of 15 and 16 October 1999 which laid the foundations for this system was the highlight of Finland’s first Presidency of the European Union.  Its theme was the creation of an area of freedom, security and justice within the EU, based on a shared commitment to freedom based on human rights, democratic institutions and the rule of law…

 

There was to be a new approach to judicial co-operation between Member States.  The essence of that approach is described in Recital (5) of the preamble to the Framework Decision …”.

 

Lord Hope continues:

 

[22] … What Part 1 of the 2003 Act provides for, in its simplest form … is really just a system of backing of warrants.  It is designed to enable the persons against whom they are directed to be handed over in the shortest possible time to the requesting authorities.  The grounds on which a Member State can decline to give effect to the European Arrest Warrant are … very limited.

 

[23] But a system of mutual recognition of this kind … is ultimately built upon trust.  Trust in its turn is built upon confidence.  As Recital (10) of the preamble puts it, the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States …

 

The system has, of course, been designed to protect rights.  Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down. 

 

[24] … But the liberty of the subject is at stake here and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures.  They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute.  Unfortunately this is not an easy task, as the wording of Part 1 of the 2003 Act does not in every respect match that of the Framework Decision to which it seeks to give effect in domestic law.  But the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty.”

 

In the opinion of Lord Scott, one finds a somewhat different, though not inconsistent, emphasis:

 

[50] … The Framework decision was intended to simplify the procedures for extradition of individuals from one Member State to another either for the purpose of being prosecuted for alleged criminal conduct or for the purpose of serving a sentence imposed after conviction …

 

In relation to offences falling within the so-called framework list the requirement of double criminality was removed …

 

[51] Secondly, the Framework Decision was intended to make it unnecessary, whether in relation to framework list offences or any other offences, for the requesting state to show that the individual had a case to answer under the law of that state.  The merits of the extradition request were to be taken on trust and not investigated by the Member State from which extradition was sought …

 

[52] The principle underlying these changes is that each Member State is expected to accord due respect and recognition to the judicial decisions of other Member States.  Any inquiry by a Member State into the merits of a proposed prosecution in another Member State or into the soundness of a conviction in another Member State becomes, therefore, inappropriate and unwarranted …

 

[53] Accordingly, the grounds on which a Member State can decline to execute a European Arrest Warrant issued by another Member State are very limited …

 

None of these grounds enables the merits of the proposed prosecution or the soundness of the conviction or the effect of the sentence to be challenged.

 

[18]           The decision in Dabas –v- High Court of Justice, Madrid [2007] UKHL 6 concerned the proposed surrender of the Appellant to be prosecuted in Spain for complicity in Islamic terrorism, related to the notorious Madrid train bombings of 11th March 2004.  After setting out various parts of the Preamble to the Framework Decision and some of its provisions, Lord Hope commented:

 

[18] These provisions show that the result to be achieved was to remove the complexity and potential for delay that was inherent in the existing extradition procedures.  They were to be replaced by a much simpler system of surrender between judicial authorities.  This system was to be subject to sufficient controls to enable the judicial authority is of the requested state to decide whether or not surrender was in accordance with the terms and conditions which the Framework Decision lays down.  But care had to be taken not to make them unnecessarily elaborate.  Complexity and delay are inimical to its objectives.

 

[Emphasis added].

 

Lord Hope notes in paragraph [25] that while the 2003 Act may have exceeded the Framework Decision in certain respects, it is within this statute that one finds the domestic legal rules giving effect to the United Kingdom’s obligation under Article 34(2)(b) of the Treaty on European Union regarding the result to be achieved:

 

The wording of the provisions of the Act that are under scrutiny must be construed in that context”.

 

In paragraph [38], Lord Hope elaborates on this theme:

 

The search for the meaning and effect of the reference to a ‘certificate’ does not consist only of an examination of the words of the statute.  The Framework Decision, to which Part I of the 2003 Act gives effect in national law, must be interpreted in conformity with Community law.  This is in fulfilment of the state’s obligations under European Union law and the general duty of co-operation referred to in Article 10 EC.

 

He then refers to the decision in Pupino [2006] QB 83, paragraphs [34] and [42]-[43] especially.  In a later passage, Lord Hope alludes to Section 2(2) of the 2003 Act in these terms:

 

[49] I would add two further observations in response to this question. First, a judge conducting an extradition hearing under s 10 of the 2003 Act may find that the information presented to him is insufficient to enable him to decide whether or not the offence specified in the Pt 1 warrant is an extradition offence within the meaning of s 64(2) or s 64(3). If so, he will be at liberty to request further information from the appropriate authority of the category 1 territory, and to adjourn the hearing to enable it to be obtained. He has not been given power to do this expressly by the statute. But arts 10.5 and 15.2 of the Framework Decision show that it is within the spirit of this measure that the judge should be assumed to have this power. The principle of judicial cooperation on which it is based encourages this approach.

[50] I wish to stress, however, that the judge must first be satisfied that the warrant with which he is dealing is a Pt 1 warrant within the meaning of s 2(2). A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information. The requirements of s 2(2) are mandatory. If they are not met, the warrant is not a Pt 1 warrant and the remaining provisions of that Part of the Act will not apply to it.”

 

 

In the opinion of Lord Bingham, the importance of interpreting the transposing domestic legislation, the 2003 Act, in the light of the wording and purpose of the Framework Decision receives due emphasis:

 

“ [4] But Pt 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.

[5] By art 34(2)(b) of the Treaty on European Union, reflecting the law on directives in art 249 of the EC Treaty, framework decisions are binding on member states as to the result to be achieved but leave to national authorities the choice of form and methods. In its choice of form and methods a national authority may not seek to frustrate or impede achievement of the purpose of the decision, for that would impede the general duty of cooperation binding on member states under art 10 of the EC Treaty. Thus while a national court may not interpret a national law contra legem, it must “do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with art 34(2)(b) EU” (Criminal proceedings against Pupino (Case C – 105/03) [2006] QB 83, paras 43, 47, [2006] All ER (EC) 142, [2005] 3 WLR 1102).”

The EU legal obligation in play is expressed with particular clarity by Lord Brown:

[76] Put shortly, Pupino imposes upon national courts the same interpretative obligation to construe national law as far as possible to attain the result sought to be achieved by framework decisions as the ECJ in Marleasing SA … had earlier imposed upon national courts to achieve the purpose of directives”.

This is followed by an analogy with Section 3 of the Human Rights Act 1998.Thus the association between the Framework Decision and the 2003 Act must never be overlooked.  In short, the latter is to be construed in a manner harmonious with the former, promoting its objectives and values, unless it is not possible to do so. 

 

[19]           The opinion of Lord Mance (with whom all other Supreme Court justices concurred) in the recent decision in Louca –v- A German Judicial Authority [2009] UKSC 4 deals with the admittedly different questions of the requirements of Sections 2(4)(b) and 2(6)(c) in the 2003 Act, read in conjunction with Article 8(1)(c) of the Framework Decision.  Nonetheless, the observations in paragraph [13] lend some support to the suggestion that the statutory requirements arising for consideration in the present appeal – enshrined in Section 2(4)(c) – are of the “due process” variety, which his Lordship links to the array of provisions in Sections 11-20 (which include bars to extradition) and the general safeguard enshrined in Section 21, whereby the court is obliged to consider whether the surrender of the requested person would be compatible with Convention rights. 

 

[20]           The specificity issue which the present appeal raises has arisen in a number of reported cases.  Some of these purport to contain guidance of a general, principled nature while others are more clearly mere illustrations of the statutory requirements, duly construed by the court, applied to their particular factual contexts.   In any survey of these decisions one must be alert to any possible judicial gloss or usurpation of the statutory language.  In short, while this exercise yields some degree of guidance, the decision to be made in the present case is properly approached by considering the purpose underlying Section 2(4)(c), in the light of the overarching themes and objectives of the Framework Decision. 

 

[21]           In Palar –v- Court of First Instance, Brussels [2005] EWHC 915, Laws LJ recorded, in paragraph [4], that the only issue to be determined by the court was the following:

 

The judge ought to have decided the question of whether the offences specified in the relevant Part 1 Warrant were extradition offences under Sections 10 and 64 of the Extradition Act 2003 in the negative.  This is because the conduct specified does not constitute an offence”.

 

   Section 10 of the 2003 Act, which is concerned with the initial stage of an extradition hearing, obliges the judge to decide whether the offence specified in the EAW is an extradition offence and, if he thus decides in the negative, to order the requested person’s discharge.   If he decides the question in the affirmative, he must then “proceed under Section 11”, which requires consideration of the statutory bars to extradition.  In Section 64, the main focus is on the conduct and the offence belonging to the relevant Category 1 territory.  The substance of the issue and the court’s treatment of it are apparent from the following passages (per Laws LJ):

 

[5] On a true analysis the complaint is that the purported warrant is not really a Pt 1 warrant at all because it does not include particulars of the “conduct” alleged to constitute the offence which by s 2(4)(c) is a prerequisite of a proper Pt 1 warrant within the statute. The submission is that if that is the case the judge acting under s 10 ought to have concluded that no extradition offence was properly specified in what purported to be the Pt 1 warrant. The only translation of the purported warrant which was before us last week was, with respect, somewhat garbled. The conduct alleged in it was as follows:

“From the elements of the file it appears that the suspect Gheorghe Palar would be involved in the use of false credit cards. On 03/09/2004 the suspect Ion Gurau was found in the possession of a number of credit cards, among which three Tesco-Club cards. On the magnetic tape stripe of those three cards data was found of existing credit cards. This data was apparently illegally copied of the magnetic tape stripe of the original card. The suspect Ion Gurau stated that he would have found the Tesco-Club cards in the close proximity of a (Brussels) shop on 03/09/2004 (although it apparently seemed to be English cards).

It appeared that on 1 September and 3 September 2004 these cards (at least the data contained on them) would have been used to do a money withdrawal from a point-of-payment terminal for a total amount of 3,650 euros. Apparently the persons who did the money withdrawals were in the possession of the PIN code of one of the cards of which the data seemed to originate from. The original card was apparently issued by the British financial institution Halifax and used by the subject Gheorghe Palar. Another card which was apparently used to execute illegal money withdrawals also contained the data of a credit card which would have been issued on the name of the suspect Gheorghe Palar, more specifically by the MBNA-bank. Furthermore the suspect Gheorghe Palar appears to be the cousin of the wife of the suspect Ion Filip (who was on the razzle with the suspect Ion Gurau and would apparently have played a role in hiding the origin of the money that was found on Ion Gurau). Ion Filip stated that conversations were held between the suspect Palar and the suspect Ion Gurau by means of his mobile phone. These conversations apparently were about money withdrawals, theft of a bank card and a false card.

These elements make believe that the suspect Gheorghe Palar could be actively involved in credit card fraud which was set up and which would apparently show an international and organised character.”

 

Some of these observations have a certain resonance in the present appeal, given that there were some evident imperfections in the initial English translation of the Spanish EAW. Following the oral hearing of this appeal, the concerns of the court about this matter were such that, without objection on the part of the requested person, a further translation was supplied on behalf of the requesting state.  This corrected the earlier errors. 

 

Laws LJ, having thus forged a clear nexus between Section 2 (4) (c) and Section 10, said the following of the EAW:

[7] In the result, in my judgment, the warrant (so far as either translation shows) alleges these facts. One or more of three Tesco-Club cards were used to draw cash from an ATM machine. Those cards bore data copied from the magnetic strip of other cards. Two of the original cards had been issued to this Appellant respectively by the Halifax and MBNA-Bank. The Appellant is the cousin of the wife of another suspect, Filip. The man Filip had stated that telephone conversations “apparently about money withdrawals, theft of a bank card and a false card” had taken place between the Appellant and the third suspect Gurau. It is far from clear to me how it could be said that these facts are capable of constituting conduct which amounts to the extradition offences alleged

Continuing, his Lordship emphasized that the conduct said to constitute the extradition offence in question must be specified in the EAW, in accordance with Section 2(4)(c).  He concluded:

 

… this Act of Parliament requires the courts to be satisfied that conduct is described which on the face of it may be said to constitute the offence relied on by the requesting State. That condition is not met here. In those circumstances, for my part I would allow the appeal.”

 

Laws LJ further commented that the specification in the EAW in question of the conduct of others was insufficient: see paragraph [9] : this too has some resonance in the present case..

 

[22]           As observed by Auld LJ in Fofana and Belise –v- Deputy Prosecutor Thubin [2006] EWHC 744 (Admin), these statements must be considered in their particular context: see paragraph [38].  He highlighted the condemnation of Laws LJ that the language of the warrant was so defective that it failed to disclose facts “capable of constituting conduct which amount[ed] to the extradition offences alleged”.  Auld LJ continued:

 

[38] Provided that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country.  Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal ‘pleading’ may vary considerably from one jurisdiction to another”.

 

The cautionary words of Auld LJ simultaneously focus attention on the unique European character of the legislative measure underlying the new extradition machinery and discourage inapt comparisons with certain aspects of domestic law and practice. 

 

[23]           In Von Der Pahlen –v- The Government of Austria [2006] EWHC 1672 (Admin), another decision of the Divisional Court concerning Section 2(4)(c), Dyson LJ offered the following reflections:

 

[21] … The language of Section 2(4)(c) is not obscure and, in my judgment, it should be given its plain and ordinary meaning.  The subsection requires the warrant to obtain particulars of the circumstances in which the person is alleged to have committed the offence.  These particulars must include four elements:

 

(1) The conduct alleged to constitute the offence;

 

(2) The time and

 

(3) The place at which he is alleged to have committed the offence; and

 

(4) Any provision of law under which the conduct is alleged to constitute an offence. 

 

Elements (2), (3) and (4) are plain enough, although questions may arise as to how specific the descriptions of time and place need to be.  The difficulties in the present case centre on element (1).  The use of the introductory word ‘particulars’ indicates that a broad omnibus description of the alleged criminal conduct, ‘obtaining property by deception’, to take an English example, will not suffice. 

 

[22] How far does the warrant have to go?  It would be unwise to attempt a prescriptive answer to this question and I do not do so.

 

[Emphasis added].

 

In Ektor –v- National Public Prosecutor of Holland [2007] EWHC 3106 (Admin), the question which arose was whether a EAW complied with the statutory specificity requirements. Cranston J, delivering the judgment of the Divisional Court, said the following of Section 2(4)(c) of the 2003 Act:

 

[8] … That language, Dyson LJ said in Von Der Pahlen –v- Austria … is not obscure and can be given a plain and ordinary meaning …

 

What is clear is that there is no need to put any gloss on the language; for example, that the language somehow connotes the specificity or lack of it demanded of it in the particulars for a count on an indictment.

 

Once again, one is cautioned against recourse to inapt comparisons.

 

[24]           One of the themes of the judgment of Lloyd Jones J in Owens –v- Court of First Instance Marbella, Spain [2009] EWHC 1243 (Admin) is the need for a balancing exercise in considering whether Section 2(4)(c) has been observed in any given case.  See paragraph [17]:

 

It seems therefore that a balance must be struck between the requirement of particularity and the requirement that the conduct be stated concisely and simply.  In determining the degree of particularity required in the description of the offence in the warrant, it is necessary to balance these competing considerations while at all times being mindful of the need to avoid unfair prejudice to the person whose extradition is sought.

 

His Lordship also observed, having quoted from paragraph [18] of the opinion of Lord Hope in Dabas:

 

[16] …I would accept that the requirement for particularization must be placed in the context of a legislative scheme designed to eliminate undue complexity”.

 

What is the main purpose underlying Section 2(4)(c)?  Roderick Evans J sought to answer this question in Hewitt and Woodward –v- First Instance and Magistrates Court of Denia, Spain [2009] EWHC 2158 (Admin) in these terms:

 

[9] … The warrant is not an indictment or a court pleading.  The purpose of particulars required by statute is to inform the requested person of the offence he is alleged to have committed and the nature and extent of the allegation being made against him.  The degree of particularity required may vary from case to case and may depend on the nature of the offence alleged and of the alleged participation of the person sought by the warrant”.

 

There are two propositions in this passage.  The first is consonant with the emphasis in paragraphs [12] and [13] of the Preamble to the Framework decision on fundamental rights and the express incorporation of Article 6 of the Treaty on European Union.  The second proposition seems unassailable and was not contested by either party in argument.  In the same case, the learned judge deemed it appropriate to consider the question of whether the specification disadvantaged the requested person in any way or whether the information supplied was sufficient to enable them to consider the invocation of any of the statutory bars to extradition.  These would appear to be valid considerations in any case where contested  specificity issues are raised.  The repeated caution against inapt comparisons is also noteworthy. 

 

[25]           Certain other reported decisions were brought to the attention of the court.  These include Farnesi –v- Court of Livorno, Italy [2009] EWHC 1199 (Admin) and a series of French decisions, some of which concern persons said to be associates of (or in some way related to) the requested person in the present appeal: see in particular Public Prosecutor –v- Suberbiola [26th November 2008], Public Prosecutor –v- Moreno Sains [7th [27th?] April 2009], Public Prosecutor –v- Salaverri Sansinenea [29th April 2009] and Public Prosecutor –v- Santamaria Mikel [22nd September 2009].  The latter decision, of the judicial determinations belonging to this group of cases:

 

Whereas the requesting authority … [alleges] … that [the requested person] is charged with membership of the terrorist organisation SEGI … on 10th November 2008 and on the preceding days;

 

That this information, which is laconic to say the least, in no way makes it possible to determine where the offence took place or the circumstances under which the offence was committed, as required by the law;

 

That owing to its failure to meet the conditions laid down by law, the European Arrest Warrant is irregular and the delivery of [the requested person] to the Spanish judicial authorities must be refused …”.

 

It was acknowledged, correctly, on behalf of the requested person that these decisions, properly analysed, are illustrations of the application of Article 8 of the Framework Decision (as transposed in the domestic law of the Member State concerned) to particular factual contexts.  The most recent decision belonging to this sphere is Sandi –v- Craiova Court, Romania [2009] EWHC 3079 (Admin), where the court considered the distinctions between the requirements governing an “accusation” warrant and a “conviction” warrant, placing some emphasis on the legislative context and the aims of eliminating undue complexity and avoiding undue burdens on the requesting state:  see paragraphs [25] – [26] and [31] – [32] particularly.

 

VII      CONSIDERATION AND CONCLUSIONS

 

Some General Propositions

 

[26]           Having regard to the terms of the Framework Decision and the guidance to be deduced from some of the decided cases, in particular the decisions of the House of Lords, we consider that as regards “accusation” EAWs, the following general propositions can be stated with some confidence:

 

(a)        There is no requirement that the EAW specify any of the evidence on which the accusation is based.

 

(b)       The merits of the accusation against the requested person do not fall to be considered by the executing judicial authority in the requested Member State.

 

(c)        The EAW should convey to the requested person the essence of the accusation.

 

 (d)      This basic requirement confers due process rights on the requested person and subjects the surrender process to a sufficient degree of judicial superintendence.  This facilitates, and is linked to, the discharge of the court’s duty under Section 10 to decide whether the offence specified is an extradition offence.

 

(e)        Further, compliance with this basic requirement should help to expose whether any of the discretionary or obligatory statutory bars to extradition is in play and to ensure compatibility with the requested person’s Convention rights, in accordance with Section 21 of the 2003 Act.

 

(f)        Any specification of “particulars of … the conduct alleged to constitute the offence” [the domestic statutory language] or the “degree of participation in the offence by the requested person” [in the language of the Framework Decision] will inevitably vary from one context to another. 

 

(g)       Such specification is bound to vary according to the nature of the offence alleged against the requested person.

 

(h)       The nature of the offence alleged against the requested person must be considered by reference to the domestic law of the requesting state.

 

(i)        In construing and applying Section 2(4)(c) of the 2003 Act in any given case, while the court must bear in mind particularly the overarching legislative aim of avoiding undue technicality and complexity, this is to be balanced with the other dominant principles and values articulated in the Framework Decision, which have been the subject of authoritative exposition in the decisions of the House of Lords in Cando Armas and Dabas (see paragraphs [17] and [18], supra).

 

The Offence Under Spanish Law

 

[27]    The EAW seeks the surrender of the requested person to Spain for the purpose of being prosecuted for the offence described as “member of an illegal terrorist organisation” under Articles 515 and 516 of the Spanish “Codigo Penal”.  This is a lengthy instrument of domestic Spanish law, outlawing many hundreds of offences.  Chapter 4 of the Code contains an extensive list of offences relating to the exercise of fundamental rights and public liberties.  Within this chapter, Section 1 specifies a series of offences (twelve in total) arranged under the banner of “Offences Committed Concerning the Exercise of the Fundamental Rights and Public Liberties Guaranteed by the Constitution”.  This contains an array of offences, ranging from unlawful assembly to incitement to hatred of minority or ethnic groups.  Armed and terrorist groups are outlawed by Article 515(2).  By virtue of Article 516, the leaders and promoters of such organisations are liable to punishments of between eight and fourteen years imprisonment and disqualification from public office for eight to fifteen years:  see Article 516(1).  A distinction is made between promoters and leaders (on the one hand) and members of such organisations (on the other).   In accordance with Article 516(2), the members of armed or terrorist organisations are liable to be imprisoned for between six and twelve years and disqualification for public office during a period of six to fourteen years.  The language of Article 516(2) is clear and uncomplicated:  the offence which it outlaws is simple membership of an armed or terrorist organisation.  There is some distinction between Article 516 and 517,  the latter making provision for the punishment of, inter alios, the “active members” (“los miembros activos”) of certain groups, including paramilitary organisations and racist associations.

 

[28]    When one considers Articles 515 and 516 of the Spanish Codigo Penal, it is not difficult to appreciate why a both “participation in a criminal organisation” and “terrorism” are ticked on page 8 of the EAW.  These are types, or categories, of criminal conduct, rather than specific individual offences.  It is uncontroversial that membership of a terrorist organisation can conceivably savour of both kinds.

 

The EAW Analysed

 

[29]    We consider that the EAW is to be analysed in the following manner:

 

(a)        It states unequivocally that it seeks the surrender of the requested person in respect of one alleged offence only.

 

(b)       It specifies six years imprisonment as the maximum punishment which may be imposed.

 

(c)        It accuses the requested person of the offence of membership of a terrorist organisation, Jarrai. 

 

(d)       It provides information about the genesis, lifespan and activities of Jarrai.

 

(e)        It specifies, in general terms, the place where (the Basque country) and the period during which (1992-2000)  Jarrai is alleged to have committed a multiplicity of public order and other serious offences, exceeding 6,000 in total.

 

(f)        It sets out the historical context and circumstances in which the requested person was allegedly a member of the relevant organisation.

 

 (g)      Considered in conjunction with the supplementary information provided on 30th June and 8th September 2009, it does not accuse the requested person of any specific act of violence or public disorder or any other form of criminality.

 

[30]      The two supplementary communications from the relevant Spanish authority fall to be considered, for the following reasons.  The EAW, correctly interpreted, accuses the requested person of membership of an illegal terrorist organisation, Jarrai, without any supporting particulars attributed in express and personal terms to the individual himself.  If relying on the EAW alone, it would be necessary for the requesting state to contend that, by implication, the detailed description of violent acts in paragraph 2(e) applies, to some unspecified extent, to the requested person.  It would, plainly, be difficult to sustain this argument.

 

[31]      However, the EAW does not stand alone.  Rather, it is supplemented by the two subsequent communications from the Spanish authority.  These are couched in unambiguous terms.  The first states that the charge preferred against the requested person is that he was a member of Jarrai between 1994 and 2000 and that in such capacity he carried out a series of violent and coercive acts.  We construe this as, at most, an indirect reference to some of the extensive list of violent acts contained in the EAW.  Furthermore, this communication reiterates that the sole offence with which the requested person is charged is that of membership of this organisation.  This is made clear beyond peradventure in the second of the communications.  It was not argued on behalf of the requested person that either of these communications did not fall within the mechanism contained in Article 15(2) of the Framework Decision.  Nor was it contended that the court should disregard them or, alternatively, give them little weight.  However, we remind ourselves of what Lord Hope said of Articles 10.5 and 15.2 of the Framework Decision in Dabas, paragraphs [49] – [50].  This places the spotlight firmly on the EAW, rather than any supplementary communications from the requesting state or submissions from the requesting state’s counsel said to be based on instructions.

 

Compliance with Section 2(4)(c)

 

[32]     The question to be addressed is whether the EAW complies with Section 2(4)(c) of the 2003 Act.  We consider the fundamental test to be one of sufficiency of particulars, or information.  In every case of this kind, there will be an interface between the particulars of the alleged offence (on the one hand) and supporting evidence of its commission (on the other).  We consider that, in the present case, the particulars of the conduct alleged to constitute the offence in question contained in the EAW are couched in unacceptably vague and general terms.  They are insufficiently specific and particularised.  They require the requested State to engage in a process of interpretation, or conjecture, which neither the Framework Decision nor the 2003 Act permits.  Ultimately, the accusation contained in the EAW resolves to an assertion that the requested person was a member of Jarrai and that such organisation engaged in a large number of public order and other offences during a lengthy period.  There is a failure to include supporting particulars of conduct, time and place attributed in express and personal terms to the requested person.  Even assuming that the EAW, as supplemented, is to be interpreted as alleging that the requested person indulged in some of the criminal activities formulated in general terms, there is no further particularisation specific to him.  The emphasis throughout the EAW and the supplementary communications is on the corporate conduct of the organisation Jarrai, rather than the individual conduct of which the requested person is accused.   In agreement with the Recorder, we conclude, therefore, that the EAW fails for want of particularity. 

 

 

[33]      We would add the following.  The court has no reason to suppose that under the Spanish legal system the offence of membership of an unlawful organisation differs fundamentally from its counterpart in the United Kingdom.  This offence connotes adherence to, or affinity with, the outlawed group.  In the abstract, it is possible that, in some hypothetical case, a requesting state may  accuse the requested person of pure membership, or membership simpliciter, in an exclusively passive sense.  Thus, for example, the basis of the case against the requested person might be an alleged confession of membership or a statement or other communication indicative thereof, without any suggestion of active participation of any kind.  If such a case were to arise, we consider that it would be necessary for the EAW to spell this out in clear terms, bearing in mind the requirement contained in Section 2(4)(c) of the 2003 Act to specify “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 …”.  In such a case, a carefully and clearly formulated statement of the accusation against the requested person in terms of conduct, time and place would be necessary, in order to satisfy the statutory requirements.

 

[34]      Such a hypothetical case is to be contrasted with the instant case, where the clear import of the EAW, duly confirmed by the supplementary communications, is that the conduct alleged to constitute the offence of which the requested person is accused by the Spanish Court partakes in some unspecified way of some of the broad descriptions of the unlawful activities attributed to Jarrai in general terms.  The failure to condescend to the level of particularity required by both the 2003 Act and the Framework Decision is fatal to the EAW in the present case. 

 

 

VIII     DISPOSAL

 

[35]      For the reasons elaborated above, this appeal is dismissed.  We would add the following observation.  This court has previously sought to discourage the isolation and determination of preliminary issues in extradition proceedings: see Re Campbell’s Application [2009] NIQB 82 (where judgment was promulgated following completion of the preliminary hearing in the present case), paragraph [31}:

 

While there is some merit in Mr Fitzgerald’s submission that the Applicant’s abuse of process complaint had the character of a threshold issue which sounded on the propriety of the entire proceedings, nonetheless we consider that it is only in exceptional circumstances that preliminary hearings of this kind should be conducted in extradition applications.  The same approach should apply to applications for judicial review during the currency of such proceedings.  There is no reason why, exceptional circumstances apart, all issues cannot be considered within the extradition proceedings rather than have piecemeal hearings with consequent delay of the hearing of the main issue and increased costs.

 

In addition to minimising delay, uncertainty and expense, this approach has the further merit that any appeal to this court will be of a composite nature, ventilating all relevant issues at a single hearing and resulting in one judgment only.  It is to be expected that this guidance will be duly heeded in future cases.

 

[36]      The parties will be at liberty to address the court on the issue of costs.