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20 June 2017 / by / in

The end of s2 arguments under the Extradition Act 2003?

On 15 June 2017 Irwin LJ and Sweeney J handed down judgment in Alexander v France and Di Benedetto v Italy [2017] EWHC 1392 (Admin). This judgment has significant consequences in relation to challenges surrounding the validity of European Arrest Warrants.

The judgment moves away from the established principles in Dabas v High Court of Justice, Madrid [2007] 2 AC 31 and King’s Prosecutor, Brussels v Cando Armas [2006] 2 AC 1; namely that further information cannot be used to ‘eke out’ the required particulars of a European Arrest Warrant in compliance with s2 of the Extradition Act 2003.

Mr Alexander was subject to two European Arrest Warrants, the first (“EAW1”) in relation to 10 firearms offences and the second (“EAW2”) in relation to a single offence of “maintaining an unlawful arms depot as part of an organised gang”. His extradition was ordered by District Judge Goldspring in relation to offences 1 – 9 on EAW1 and in relation to the one offence on EAW2. At the hearing before the District Judge Mr A did not raise any challenges under s2 of the Extradition Act 2003 however on appeal he sought to argue that offences 1 – 9 in EAW1 were insufficiently particularised as required by s2(4)(c) of the Extradition Act 2003; EAW2 did not comply with s2(4)(c) of the Extradition Act 2003; and offences 1-5 and 7-9 in EAW1 were not extradition offences.

In response to the challenges raised by Mr A, the French Judicial Authority sought to rely on further information contained in a letter dated 12 May 2016, which had been placed before the District Judge in untranslated form, and a further letter dated 21 September 2016. These pieces of further information provided substantially more detail regarding Mr A’s alleged conduct.

Mr Di Benedetto was subject to a European Arrest Warrant seeking his extradition in relation to offences of fraud and money laundering. At the extradition hearing before District Judge Ikram at Westminster Magistrates’ Court Mr DB argued that the EAW did not comply with s2(4)(c) of the Extradition Act 2003 in that it provided a maximum sentence for one of the offences but not the other. The Italian Judicial Authority sought to rely on further information as to which offence the maximum sentence contained in the European Arrest Warrant related to and also provided the maximum sentence for the other. In ordering extradition, District Judge Ikram concluded that he was entitled to rely on the further information to correct the deficiencies in the warrant and therefore the requirements in s2(4)(c) of the Extradition Act 2003 had been complied with.

Mr DB appealed against the order for his extradition and pursued the same challenge to extradition in his appeal.

In dismissing the appeals of Mr A and Mr DB, the court held that there had been a “sea-change” since the decisions in Dabas and Cando Armas. The effect of the Supreme Court judgment in Goluchowski v District Court in Elblag, Poland [2016] 1 WLR 2665 and the decision of the Court of Justice of the European Union in Bob-Dogi [2016] 1 WLR 4583 (Case C-241/15) was such that the court found the respective Judicial Authorities in this case could rely on further information to rectify deficiencies in the European Arrest Warrants.

Whilst Goluchowski opened the door to the admissibility of further information to supplement a warrant, the court in this instance made sure there was no ambiguity in the circumstances in which further information could be relied on:

“73…we conclude that the previous approach to the requirements of an EAW and the role of further information must be taken no longer to apply. The formality of Lord Hope’s approach in Cado Armas, based on the wording of the Act, has not survived. It is clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant.

74. We do not see an easy distinction, in practice, between “formal” and “substantive” requirements of an EAW, despite the remarks of Lord Mance in paragraph 45 of Goluchowski. An EAW requires certain specified information. If that information is not forthcoming, then extradition cannot lawfully be ordered. Are the date, place and nature of the offence, and the question of maximum sentence, to be regarded as “formal” or “substantive” matters? They are required matters. The effect of the two key recent decisions is, we conclude, that missing required matters may be supplied by way of further information and so provide a lawful basis for extradition.”

Whilst it is clear that the decisions in Cando Armas and Dabas have now been overruled, this judgment also reverses the principle in Zakrzewski v Regional Court in Lodz, Poland [2013] 1 WLR 324 that European Arrest Warrants are not “transient”. If deficiencies in a warrant can now be rectified with further information so that it then becomes “valid”, can a requested person now rely on further information to argue that a warrant has become “invalid” as was the argument in Zakrzewski?

The recent trend of High Court and Supreme Court judgments appears to have the aim of reducing the arguments available to resisting extradition and this most recent decision will certainly have a huge impact on the success of future s2 arguments.

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