7 August 2018 / by Extradition/ in
M & B v Italy – leaving the door open for s2 arguments?
On 16 July 2018 the divisional court handed down judgment in M & B v Italy  EWHC 1808 (Admin) which has given extradition defence lawyers some hope when it comes to challenging the validity of warrants under s2 of the Extradition Act 2003 (“the Act”).
For a long time it was established law that further information could not be used to ‘eke out’ the required particulars to satisfy s2 of the Act; Dabas v High Court of Justice, Madrid  2 AC 31 and King’s Prosecutor, Brussels v Cando Armas  2 AC 1. A European Arrest Warrant was either valid at the point of issue or it was not. If it did not contain the required particulars, it was void ab initio. This was the case until Goluchowski v District Court in Elblag, Poland  1 WLR 2665, which followed the decision of the CJEU in Bob-Dogi  1 WLR 4583 (Case C-241/15). In Goluchowski, Lord Mance stated that further information could be used to rectify ‘formal’ rather than ‘substantive’ defects in a warrant.
This position was taken even further in Alexander v France and Di Benedetto v Italy  EWHC 1392 (Admin). When the judgment was handed down it created significant difficulties for s2 challenges. Whereas Goluchowski appeared to limit the use of further information to rectify ‘formal’ defects, Irwin LJ stated:
“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…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.”
He further went on to state, “…The question in a given case whether the Court is faced with lacunae or a wholesale failure to provide the necessary particulars can only be decided on the specific facts.”
Following this judgment, the difficulty for defence lawyers lay in persuading the court that there had been a wholesale failure in the warrant rather than simply the provision of further information to fill lacunae in the particulars.
M & B v Italy concerned a husband and wife who were arrested on European Arrest Warrants issued by the Preliminary Investigations Section of Naples Court in relation to offences of people trafficking. The requested persons had been found guilty following a trial, with M being sentenced to 8 years’ imprisonment and B to 7 years’ imprisonment. However, as appeals had been lodged on their behalf, as a matter of Italian criminal procedure, they remained accused persons until the appeals were disposed of. The EAWs were, therefore, accusation warrants. Box E of the EAWs set out several paragraphs containing legislative provisions and particulars of the alleged offences. It would appear that the information provided was, at points, confusing and indeed Nichol J noted “Nothing about these warrants is straightforward.”
At the hearing before the Magistrates’ Court, the district judge received four pieces of further information. The further information asserted that the requested persons were fugitives and confirmed where the offences took place. It also confirmed that they remained accused persons while the appeals were outstanding. Extradition was opposed by both requested persons on the basis that the warrants did not comply with s4(c) of the Act and that extradition would be a disproportionate interference with their, and their children’s, rights under Article 8 of the European Convention on Human Rights. In ordering their extradition, the district judge was satisfied that the 42 offences were sufficiently particularised and thus the warrant complied with the requirements under s4(c).
On appeal, the requested persons contended that the district judge was wrong to come to this conclusion. It was argued that each offence had to be properly particularised as set out in Extradition Act 2003 (Multiple Offences) Order 2003 SI 2003 No. 3150, that the warrants were unintelligible as the particulars of the offences referred to different defendants by numbers without explaining which numbers applied to the requested person and in some cases there was no explanation of the dates or locations of the wrongdoing.
At the conclusion of the appeal hearing, the court felt that it would be desirable to obtain further information from the Judicial Authority. As a result, several pieces of further information were provided by the Judicial Authority clarifying the offences for which the requested persons were sought and which ‘numbers’ in the particulars referred to which requested person.
Whilst acknowledging the judgments in Goluchowski and Alexander and Di Benedetto, Nichol J came to the conclusion that this was a case where further information could not be relied upon to correct a deficiency in the warrant.
“55. In my judgment these EAWs were wholly deficient. They failed entirely to make clear for what offences the Appellants were to be prosecuted. The deficiencies were not simply lacunae that could be made good by further information: the problems with the warrants were far more fundamental than that.”
The court eventually refused to admit the further information that had not been before the district judge, stating:
“63…Having seen it, my conclusion remains that the EAWs represented a wholesale failure to comply with EA s.2 and the further information does not make good lacunae, rather it reinforces the conclusion.”
This is a welcome judgment at a time when it appears the courts are set on narrowing the scope in which challenges to extradition will succeed.