EUROPEAN ARREST WARRANTS
1. I will this afternoon speak in relation to three areas:
(i). the competency of the warrant;
(ii). the compatibility of extradition with the accused’s human rights, given
prison conditions in Lithuania; and,
(iii). the oppressiveness of proceedings in a situation where it is argued that
to order an extradition would be oppressive or unjust.
A.
Competency of the warrant
2. Extradition proceedings to category 1 territories, are conducted in terms of
Part 1 to the Extradition Act 2003 (“the 2003 Act”).
3. This requires a warrant (“EAW”) to be issued in terms of section 2 of the 2003
Act. If a warrant does not comply with the terms of section 2, it is not a
warrant within the terms of Part 1, and extradition cannot be granted in terms
of Part 1 (Office of the King’s Prosecutor, Brussels v Cando Armas & Anr [2006] 2
AC 1, per Lord Hope).
4. Section 2 sets out the formal requirements of Part 1 warrants, dividing them
into two categories. The first of these categories, which is that which relates to
the accused, is for those not yet convicted of the offence in question. A
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warrant in relation to such a person must contain both a statement and
information, whose contents are provided for by subsections 3 and 4:
(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. Central to the warrant, then, is a statement required by subsection 3(a) that
the person in respect of whom the warrant is issued is accused of an offence.
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6. This requirement is significant in the context of this case as the particulars of
the circumstances of the offence contained within the warrant are in the
following terms:
In April xxxxxx, in [country specified but redacted] (exact time and
place
not
established during
pre-trial
investigation)
xxxxxxxx
deliberately put a plastic bag on the head and face of her xxxxxx born
on 3 April xxxxx. In the environment with decreasing oxygen
concentration the victim died from asphyxiation. In this way
xxxxxxxxx deliberately murdered xxxxxxx.
xxxxxxx is suspected of committing a criminal act specified in the item
part 2 art. 129 of the Criminal Code of the Republic of xxxxxxx.
7. The argument before the court was whether the EAW statement gave rise to
any potential objections, and it did what were those objections.
8. Ultimately the objections to the EAW argued before the court were two fold:
(i). firstly, that the warrant does not contain a statement that the person in
respect of whom the EAW was granted did not state in specific explicit terms
that the individual was accused of an offence; and,
(ii).
secondly, that the time and place of the alleged offence are not
sufficiently detailed for the purposes of the Act; in that it did not specify a city
or district or state. Rather it simply set out that the alleged crime was
perpetrated in a named country without any specification of a district or a city
or town.
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(i)
Statement that person is accused
9. The final paragraph of the detail of the alleged offence, then, stated that the
accused was merely suspected of committing the crime, whereas the 2003 Act
( section 2 (3)(a)) requires a statement that the person in respect of whom the
warrant is issued is actually accused of the crime.
10. The courts have been wary of interpreting this requirement in an overly
technical fashion, mindful of the differences between the UK legal systems
and the civilian systems of mainland Europe; the words of section 2 have
therefore been considered in what has been described as a cosmopolitan way
(Asztaslos v Hungary [2011] 1 WLR 252). The question being was the purpose
of the extradition for the conduct of the prosecution or for the purpose of
investigation is a question that should be able to be answered by examining
the EAW.
11. Examining the EAW as a whole the court adopting the approach deployed in
Asztaslos will have to determine if what is being presented to it is:
(i). An “accusation warrant”;
(ii). If it is the court must be satisfied that the requested person is an accused
person as required by the terms of the statute; and
(iii). The court will look at the wording of the warrant as a whole to decide
whether the EAW indicates unequivocally that the purpose of the EAW is a
request to have the individual extradited for prosecution
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12. If the EAW is simply an attempt to engineer the surrender of the requested
person for the purpose of conducting an investigation to see if that person
should be prosecuted, that is not a legitimate purpose and any such EAW will
not be in conformity with section 2 of the 2003 Act. See case of Armas at paras’
28 and 54.
13. Thus, in Dabas v Spain [2007] 1 WLR 145, it was accepted that the appellant
had been accused for the purposes of the Act even though there was no
explicit statement to that effect. The distinction between a person considered
an accused, and one who is not, was given by Jack J:
If [a person] is wanted for prosecution, and the warrant later describes the offence
and sets out its circumstances and gives the statutory provision which he is
alleged to have infringed, it is very difficult to see how he can be described other
than as an “accused” even if there is no statement using that word. The subject of
such a European arrest warrant is clearly more than a suspect or someone who is
wanted for questioning.
14. Similarly, in the recent case of Assange v Sweden [2011] EWHC 2849 (Admin),
the court took the view that, notwithstanding the absence of a statement that
the appellant was accused of the offence in question, the content of the
warrant made clear that this was the case. Moreover, at paragraph 140, the
President of the Division noted that:
“Nothing in the EAW suggested he was wanted for questioning as a suspect”.
15. So one would be forgiven for thinking that things were looking quite good for
the extradite in this case.
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16. In determining whether the subject of a warrant is accused or wanted for
questioning, the English courts have effectively taken as a starting point the
statement at the top of the warrant that the subject of the warrant is wanted
for prosecution. In Dabas, it was held that this statement should only be
disregarded if the context of the warrant threw clear doubt on its prima facie
meaning; Latham LJ stated that nothing in the warrant in Dabas could be
taken as justifying that conclusion. The pro- forma wording of the preamble
to the EAW is not necessarily determinative of the issue of whether as a whole
the requirements of s (2)(2)(a)(b) have been satisfied.
17. Subsequent authorities were reviewed in the recent case of Asztaslos, with
Aikens LJ taking the view that the question for the court was whether the
warrant was equivocal or unequivocal.
18. It would appear, then, that the standard required to render a warrant
incompetent is doubt as to the status of the person in question, and not, for
example, satisfaction on the balance of probabilities.
19. The present case is, was as it turned out on the borderline of that test. On the
one hand, the relevant authorities of the country seeking extradition can be
said to have set out sufficient detail of the alleged offence for the court to
conclude that the accused could be described as such for the purposes of the
Act.
20. On the other, it is difficult to conceive of a clearer indication that a person is
regarded as a suspect than the use of the word “suspected”.
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21. It is correct that the words of the warrant are construed in a cosmopolitan
fashion. However, “suspected” does not have quite the same technical
overtones as “suspect”, and the latitude which may be allowed in respect of
“suspected” should, it was submitted to the court, be less than that accorded
to “suspect”. Further, it is clear from the narrative of the alleged offence as
specified in the EAW, that the relevant authorities in the country seeking
extradition of the extradite do not have a full picture of its circumstances. The
court could not it was submitted be certain that investigations are at an end,
and that the accused is not required for questioning. The Crown were asked
to assist in this regard and needless to say did not.
22. As noted above, the issue for the court has been described as whether the
warrant as a whole is equivocal or unequivocal. It was submitted that the use
of the word “suspected” renders the warrant equivocal.
23. Even allowing for the cosmopolitan interpretation of legal terms, the use of
“suspected”, it was submitted cast doubt on the status of the accused in the
eyes of the Lithuanian authorities, and thereby renders it incompetent. It does
not allow a court to say, as in Dabas and Assange, that there is nothing in the
warrant which suggests that the accused is wanted as a suspect rather than as
an accused.
24. For completeness, I would note that the English courts have in the past
admitted extrinsic evidence from the relevant authorities where there has
been some ambiguity as to whether the subject of the warrant was accused or
wanted for questioning. Following Asztaslos, use of such evidence is to be
restricted to exceptional cases.
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(ii)
Particulars of time and place
25. As with the subsection 3(a) statement, the requirement that a warrant
provides the time and place of the alleged offence is not interpreted in line
with domestic requirements as to specification (Fofana v Thubin [2006] EWHC
744 (Admin)). In this case it was submitted that the EAW does not narrate the
last known address of the extradite.
26. The warrant is required to provide sufficient detail to let the extradite know
what they are accused of doing, when they are accused of doing it and where
they are accused of doing it (Von Der Pahlen v Austria [2009] EWHC 383
(Admin)).
27. The amount of detail required may turn on the nature of the offence (Ektor v
Netherlands [2007] EWHC 3106 (Admin)). A failure to specify a precise locus
when that information was known has been held to render the warrant
defective (Taylor v Germany [2012] EWHC 475 (Admin)).
28. The offence for which extradition is sought is that the accused asphyxiated the
deceased, in April xxxxxx, somewhere in xxxxxxx. The time and the place as
specified in the EAW are therefore not particularly specific. The former is
perhaps unobjectionable, as it is easy to conceive of reasons why a prosecutor
would not able to specify the precise date of an offence (although the warrant
could at least have excluded the two days prior to the deceased’s birth). A
range of one month has indeed has been accepted as sufficiently particular in
the English courts (Hewitt v Spain [2009] EWHC 2158 (Admin)).
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29. The adequacy of the locus is somewhat more questionable. Whilst, again,
prosecutors may not be able to ascertain the precise location of a murder, and
therefore require to be general, it seems slightly surprising that they are
unable to be at least slightly more specific than that the alleged offence took
place in xxxxxxx.
30. Loci comprising entire countries have been accepted as sufficient for the
purposes of the Act in the English courts. In R (McGoldrick) v Hungary [2009]
EWHC 2816 (Admin), a stated locus of Hungary was held to be acceptable,
although that case referred to widespread distribution of material, and the
narration of the allegation detailed the offices of the companies involved. In
Farnesi v Italy [2009] EWHC 1199 (Admin), the warrant specified Italy,
although Pisa appears to have been mentioned as the centre of the conspiracy
in question. In Ektor, a warrant relating to people smuggling was upheld
where it specified the loci as England, Nigeria and the Netherlands. In all of
these cases, though, the offences could be characterised as a course of
conduct, in respect of which it was impossible to be precise about a single
location. Indeed, in McGoldrick and Farnesi, there was at least indication of a
more precise locus.
31. It was submitted that the lack of precision in the location renders the warrant
incompetent. Parliament must have intended that warrants specify more than
the name of the territory issuing the warrant; it is almost implicit in an
international arrest warrant that the alleged offence took place within the
jurisdiction of the issuing authority. The warrant in this case provides the
accused with no real detail as to where the offence is alleged to have taken
place. Further, the alleged offence was a single act committed in a single
location. There is no immediately apparent reason why the relevant
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authorities of the country seeking extradition are unable to be precise as to the
town or region in which the offence was alleged to have been committed.
B.
Prison conditions in country making extradition request
32. Section 21 to the 2003 Act provides that a judge must consider whether
extradition would be compatible with the subject’s rights under the ECHR,
and order that the subject be discharged if it would not be so compatible.
33. The conditions in the prisons of the country seeking extradition which are
said to have been found by the Strasbourg court to amount to torture,
inhuman or degrading treatment for the purposes of Article 3 to the ECHR.
This raises the question of whether the accused could rely upon section 21 to
evade extradition.
34. A similar argument was attempted in the case of Kropiwnicki v Lord Advocate
2010 JC 229. The state seeking extradition in that case was Poland, whose
prisons had similarly been criticised by the Strasbourg court in the case of
Orchowski v Poland Application number17885/04
35. The High Court allowed extradition, holding that the findings in Orchowski
related to specific prisons in the period from 2003 to 2009. Orchowski also
demonstrated that the Polish authorities had improved prisons during this
period, and were continuing to do so. The High Court was not able to infer
from Orchowski that there were substantial grounds that the accused was
faced with a real risk to breach of his article 3 rights if he was to be extradited.
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36. The relevance of the conditions of prisons of the country seeking extradition
has additionally been considered in a number of English cases. Their
approach bears some similarity with that of the High Court. In Janovic v
Lithuania [2011] EWHC 710 (Admin), expert evidence was led as to the
overcrowded conditions at one of the prisons named in papers. This evidence
was not, though, sufficient to demonstrate substantial grounds of a real risk to
breach of article 3 rights; what was required was evidence that the accused
was likely to be exposed to such conditions. No such evidence was led.
37. Janovic can be contrasted with Batayav v Secretary of State for the Home
Department (No. 1) [2003] EWCA 1489, where a finding that prison conditions
fell below Article 3 standards for most prisoners in Russia was sufficient to
allow an appeal.
38. The only evidence available is a summary of various judgments and reports,
which provide only the type of general evidence referred to in Janovic. It may
be that expert evidence would suggest that the accused would be likely to
suffer such conditions; it may be, for example, that female prisoners are
particularly exposed to them.
C.
Accused’s mental condition
39. Section 25 to the 2003 Act provides that, if the physical or mental condition of
the person in respect of whom a Part 1 warrant is issued is such that it would
be unjust or oppressive to extradite them, then the judge must either order the
person’s discharge, or else adjourn proceedings until this is no longer the
case.
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40. This requires a high threshold to be met, reflecting the public interest in
giving effect to treaty obligations in extradition cases (Howes v HM Advocate
2010 SLT 337). The cogency of the public interest may depend upon the
seriousness of the charges; thus, it may be oppressive to extradite a person
charged with trivial offences (Maziarski v HM Advocate [2012] HCJAC 33). The
adequacy of treatment facilities for the accused is also highly relevant.
41. It would seem that the seriousness of the accused’s mental state would
require to meet the standard required by section 25 of the 2003 Act. That is
that it would be unjust or oppressive to order that the extradition take place.
42. This would in the ordinary course of events require information and
evidence of a mental disorder to such a degree that there is a substantial risk
of suicide or at the very least evidence of suicidal ideation. It will not be
enough to submit that the most that can be said is that extradition will
increase the risk of harm; but that can presumably be said of many
extraditions.
43. The end!
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LIST OF AUTHORITIES
11. Kropiwnicki v Lord
Advocate 2010 JC 229.
12. Orchowski v Poland
Application
number17885/04
1. Office of the King’s
Prosecutor, Brussels v
Cando Armas & Anr [2006]
2 AC 1.
13. Janovic v Lithuania
[2011] EWHC 710
(Admin).
2. Asztaslos v Hungary [2011]
1 WLR 252.
14. Batayav v Secretary of
3. Dabas v Spain [2007] 1
WLR 145.
State for the Home
Department (No. 1)
[2003] EWCA 1489.
4. Assange v Sweden [2011]
EWHC 2849 (Admin).
15. Howes v HM Advocate
2010 SLT 337.
5. Fofana v Thubin [2006]
EWHC 744 (Admin).
16. Maziarski v HM
Advocate [2012] HCJAC
33.
6. Ektor v Netherlands [2007]
EWHC 3106 (Admin).
7. Taylor v Germany [2012]
EWHC 475 (Admin).
8. Hewitt v Spain [2009]
EWHC 2158 (Admin).
9. R (McGoldrick) v
Hungary [2009] EWHC
2816 (Admin).
10. Farnesi v Italy [2009]
EWHC 1199 (Admin).
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