House of Lords

Session 2005 - 06 Publications on the Internet Judgments PDF Print Version

Judgments - Office of the King's Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others

HOUSE OF LORDS SESSION 2005-06 [2005] UKHL 67 on appeal from: [2004] EWHC 2019 (Admin)     OPINIONS OF THE LORDS OF APPEAL for judgment IN THE CAUSE     Office of the King's Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others       Appeal Committee   Lord Bingham of Cornhill Lord Hope of Craighead Lord Scott of Foscote Baroness Hale of Richmond Lord Carswell     Counsel Appellants: Edward Fitzgerald QC Steven Powles (Instructed by Bindman & Partners)   Respondents: James Lewis QC John Hardy (Instructed by Crown Prosecution Service)   Hearing date: 12 October 2005     on Thursday 17 NOVEMBER 2005   HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Office of the King's Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others [2005] UKHL 67 LORD BINGHAM OF CORNHILL My Lords,     1.  The Kingdom of Belgium seeks the surrender of the appellant, Mr Cando Armas, an Ecuadorean citizen who was convicted in Brussels in his absence of three charges. He was sentenced to five years' imprisonment, and his surrender is sought in order that (subject to any order made on a retrial) he may serve that sentence. The Belgian request is governed by Part 1 of the Extradition Act 2003, which was enacted in discharge of the United Kingdom's duty to transpose into national law the obligations imposed on it by the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). The crucial issue between the parties is whether the Belgian request falls within section 65 of the 2003 Act: the appellant contends, and Deputy Senior District Judge Wickham held, that it does not; the prosecutor submits, and the Queen's Bench Divisional Court (Henriques and Stanley Burnton JJ) held, that it does: [2004] EWHC 2019 (Admin); [2005] 1 WLR 1389. The appellant challenges that conclusion. The legislation     2.  It is not unusual for those facing prosecution or imprisonment in one country to take refuge in another in the hope of evading trial or punishment as the case may be. Procedures have long existed enabling the first country to seek the surrender of the fugitive by the second. But the procedures established by bilateral treaty have in the past been characterised by technicality and delay so great as to impede or even frustrate the efficacy of the process. There has accordingly been a movement among the Member States of the European Union, gaining strength in recent years, to establish, as between themselves, a simpler, quicker, more effective procedure, founded on Member States' confidence in the integrity of each other's legal and judicial systems.     3.  The legal foundation of this movement is now found in articles 31(a) and (b) and 34(2)(b) of the Treaty on European Union, providing for judicial cooperation in criminal matters, the facilitation of extradition and the adoption of framework decisions for the purpose of approximating the laws and regulations of Member States. At a meeting of the European Council at Tampere in Finland on 15 and 16 October 1999 it was resolved (in para 35 of the Presidency's conclusions) that the formal extradition procedure should be abolished among Member States as far as persons were concerned who were fleeing from justice after having been finally sentenced, and replaced by a simple transfer of such persons. The Council and the Commission were invited (para 37) to adopt a programme of measures. On 30 November 2000 the Council duly adopted a programme of measures, one of the express objects of which (measure 15) related to the transfer of persons intent on fleeing justice after they have been finally sentenced: OJ C12, 15.1.2001. The Commission, on 27 November 2001, made a very detailed proposal for a Council Framework Decision on a European arrest warrant: COM/2001/0522 final - CNS 2001/0215. This was considered, and was the subject of detailed consultation, by the European Parliament, A5-0003/2002, 9 January 2002. The stage was thus set for the Council Framework Decision which gives rise, although indirectly, to these proceedings.     4.  The purpose of the Council Framework Decision is clearly outlined in recitals (5), (6), (10) and (11) of the preamble: "(5)  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 cooperation 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. (6)  The European arrest warrant provided for in this Framework Decision is 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 cooperation. (10)  The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. (11)  In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition." Article 1 of the Framework Decision defines the European arrest warrant for which provision is made and imposes an obligation on Member States to execute it: "1.  The European arrest warrant is 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. 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 European arrest warrant may, by article 2, be issued for acts punishable by the law of the issuing Member State (that is, the requesting state) by a custodial sentence or detention order for a maximum period of at least 12 months or, where a sentence has been passed or detention order made, for sentences of at least 4 months.     5.  Paragraph 2 of article 2 of the Framework Decision is central to the main issue in this appeal. It sets out a list of offences which have been conveniently labelled "framework offences". These are not so much specific offences as kinds of criminal conduct, described in very general terms. Some of these, such as murder and armed robbery, are likely to feature, expressed in rather similar terms, in any developed criminal code. Others, such as corruption, racism, xenophobia, swindling and extortion, may find different expression in different codes. Included in the list, and relevant to this case, are the offences of trafficking in human beings, facilitation of unauthorised entry and residence and forgery of administrative documents. Underlying the list is an unstated assumption that offences of this character will feature in the criminal codes of all Member States. Article 2(2) accordingly provides that these framework offences, if punishable in the Member State issuing the European arrest warrant by a custodial sentence or detention order for a maximum period of at least three years, and as defined by the law of that state, shall give rise to surrender pursuant to the warrant "without verification of the double criminality of the act". This dispensation with the requirement of double criminality is the feature which distinguishes these framework offences from others. The assumption is that double criminality need not be established in relation to these offences because it can, in effect, be taken for granted. The operation of the European arrest warrant is not, however, confined to framework offences. Paragraph 4 of article 2 provides: "For offences other than those covered by paragraph (2), surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing [i.e., the requested] Member State, whatever the constituent elements or however it is described." While, therefore, Member States may not require proof of double criminality where framework offences are in question they may do so in relation to any offence not covered by that list.     6.  Article 3 lays down grounds on which the judicial authorities of executing Member States must refuse execution of a European arrest warrant, and article 4 grounds on which they may refuse. The mandatory grounds of refusal are not relevant to this appeal, but two of the discretionary grounds are. The executing judicial authority may refuse to execute the warrant "1.  if, in one of the cases referred to in Article 2(4) [i.e., non-framework offences], the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State;… 7.  where the European arrest warrant relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory." Thus the law of a Member State may, consistently with the Framework Decision, provide for refusal to execute a European arrest warrant where a non-framework offence is in question and the requirement of double criminality is not met, or where the law of the executing Member State regards the offence in question as committed wholly or partly in its territory (so as to confer territorial jurisdiction on the Member State requested to execute the warrant) or where the issuing Member State is seeking to exercise an extra-territorial jurisdiction for which the law of the executing Member State does not provide.     7.  It is unnecessary to recite or attempt to summarise the very detailed provisions of the Framework Decision, but two further provisions must be mentioned. First, article 8 requires that a European arrest warrant shall contain the information set out in the article in accordance with a form annexed to the Decision, which must be translated into the language of the executing Member State. Secondly, article 34 requires Member States to comply with the Decision by 31 December 2003 and to transmit to the Council and the Commission the text of the provisions transposing into their national law the obligations imposed on them under the Decision. The United Kingdom performed its duty by enacting Part 1 of the 2003 Act, which received the royal assent on 20 November 2003.     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 cooperation by the United Kingdom than the Decision required, it did not intend to provide for less.     9.  In the terminology of Part 1, Member States are called "category 1 territories", a class which of course includes both Belgium and the United Kingdom, and Part 1 governs the United Kingdom's response to a warrant issued by a category 1 territory, which is called a Part 1 warrant. This may seek the surrender of a person whom the category 1 territory wishes to prosecute or may be issued where, by section 2(5), "(a)  the person in respect of whom the Part 1 warrant is issued is alleged to be unlawfully at large after conviction 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." Paragraph (a) does not reflect any express provision of the Framework Decision and uses language familiar in domestic law, but is plainly intended to exclude from the operation of the scheme a person who is lawfully at liberty, whether on bail or parole or under deferred enforcement provisions, even after conviction or sentence. Paragraph (b), like the Framework Decision, applies both to those who have been convicted but not sentenced and to those who have been sentenced but have not served the requisite term of imprisonment.     10.  It is again unnecessary to recite or attempt to summarise the very detailed provisions of Part 1, which exceed the scope of the Framework Decision. Material for present purposes are sections 64 and 65, which are in the same terms save that section 64 applies to persons who have not been sentenced for the offence in question and section 65 to persons who have. Part 1, unlike the Framework Decision, uses the language of extradition and these sections define the offences for which a person may be extradited (or, in Framework Decision terminology, the offences in respect of which the issuing Member State may seek the surrender of a person by the executing Member State). I must quote the full terms of section 65, which governs this appeal: "65  Extradition offences: person sentenced for offence "(1) This section applies in relation to conduct of a person if— (a) he is alleged to be unlawfully at large after conviction by a court in a category 1 territory of an offence constituted by the conduct, and (b) he has been sentenced for the offence. (2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom; (b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list; (c) the certificate shows that a sentence of imprisonment or another form of detention for a term of 12 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct. (3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs in the category 1 territory; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom; (c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct. (4) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs outside the category 1 territory; (b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct; (c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment. (5) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom; (b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom; (c) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct. (6) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied— (a) the conduct occurs outside the category 1 territory and no part of it occurs in the United Kingdom; (b) a sentence of imprisonment or another form of detention for a term of 4 months or a greater punishment has been imposed in the category 1 territory in respect of the conduct; (c) the conduct constitutes or if committed in the United Kingdom would constitute an offence mentioned in subsection (7). (7) The offences are— (a) an offence under section 51 or 58 of the International Criminal Court Act 2001 (c.17) (genocide, crimes against humanity and war crimes); (b) an offence under section 52 or 59 of that Act (conduct ancillary to genocide etc committed outside the jurisdiction); (c) an ancillary offence, as defined in section 55 or 62 of that Act, in relation to an offence falling within paragraph (a) or (b); (d) an offence under section 1 of the International Criminal Court (Scotland) Act 2001 (asp 13) (genocide, crimes against humanity and war crimes); (e) an offence under section 2 of that Act (conduct ancillary to genocide etc committed outside the jurisdiction); (f) an ancillary offence, as defined in section 7 of that Act, in relation to an offence falling within paragraph (d) or (e). (8) For the purposes of subsections (3)(b), (4)(c) and (5)(b) — (a) if the conduct relates to a tax or duty, it is immaterial that the law of the relevant part of the United Kingdom does not impose the same kind of tax or duty or does not contain rules of the same kind as those of the law of the category 1 territory; (b) if the conduct relates to customs or exchange, it is immaterial that the law of the relevant part of the United Kingdom does not contain rules of the same kind as those of the law of the category 1 territory. (9) This section applies for the purposes of this Part.

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