The Divisional Court, in dismissing the appellants’ appeals against orders for their extradition, held that it was open to a requesting judicial authority to add missing information to a deficient European arrest warrant (EAW) so as to establish its validity. There had to be a document in the prescribed form, presented as an EAW and setting out to address the required information. The question was whether the court was faced with lacunae or a wholesale failure to provide the necessary particulars, which could only be decided on the specific facts.
Alexander v Public Prosecutor’s Office, Marseille District Court of First Instance, France; Benedetto v Court of Palermo, Italy  EWHC 1392 (Admin), Queen’s Bench Division, Administrative Court (London), Irwin LJ and Sweeney J
Extradition – Extradition order – Appeal – Appellants appealing against orders for extradition – Whether further information from judicial authority could validate or cure defect in accusation European arrest warrant said to lack required particulars – Extradition Act 2003, section 2.
Two appeals were heard together because they raised the same point of principle. The extradition of the appellant in the first appeal, A, was sought under an European arrest warrant (EAW) for prosecution for ten offences in France concerning the purchase of weapons, weapon components and ammunition with a view to transferring them, with the assistance of accomplices, to London, where they were to be sold to drug-dealing groups and other delinquents (EAW1). A second EAW was issued relating to the same offending as the tenth offence in EAW1 (EAW2). Further information was given in two letters. A’s extradition was ordered on EAW1 for offences one to nine and EAW2, but he was discharged in relation to offence ten in EAW1. Extradition of the appellant in the second appeal, B, was sought under an EAW for prosecution for two offences of conspiracy to commit handling, unlawful use of credit cards and money laundering. The judicial authority served further information on the day of the extradition hearing. The judge held that it was permissible to correct the deficiencies in the EAW on the basis of the further information. The appellants appealed.
The principal issue was whether and to what extent further information from a judicial authority could validate or cure a defect in an accusation EAW in circumstances where the EAW was said to lack some of the particulars required by section 2 of the Extradition Act 2003.
The appeals would be dismissed.
The previous approach to the requirements of an EAW and the role of further information had to be taken no longer to apply. It was clearly open to a requesting judicial authority to add missing information to a deficient EAW so as to establish the validity of the warrant. An EAW required certain specified information. If that information was not forthcoming, extradition could not lawfully be ordered. The effect of the recent judgments was that missing required matters might be supplied by way of further information and so provide a lawful basis for extradition. There had to be a document in the prescribed form, presented as an EAW and setting out to address the information required by the Act. The system of mutual respect and co-operation between states did not mean that the English court should set about requesting all the required information in the face of a wholly deficient warrant. However, it would include resolution of any ambiguity in the information provided and filling lacunae. The question in a given case as to whether the court was faced with lacunae or a wholesale failure to provide the necessary particulars could only be decided on the specific facts. There was an obligation on a court to consider, in each case, before ordering extradition, whether the necessary information was present and, subject to any exception which might arise, might enquire as to further information before concluding against extradition. At all stages, the principal responsibility for the provision of information required by an EAW lay on the state requesting extradition. That responsibility was not transferred to the English court considering extradition. Nor was the requesting judicial authority relieved of that responsibility because the requested person failed to raise the point. The requested person should consider that problem early and raise any point as soon as possible. Requested persons were participants and had to act in accordance with the overriding objective. They had to inform the court and other parties of any significant failure, whether the fault of the requested person or not. The requested person had a duty to inform all other parties of what would be in dispute and any further information which was required. Those obligations should ensure such an issue did not arise late. Good case management and the Criminal Procedure Rules should lead to early consideration of whether the requirements of information were met and, where they were not met, for an early request for the necessary further information from the judicial authority seeking extradition, with appropriate, tight time limits (see - of the judgment).
With respect to A, applying the relevant principles, EAW1 had complied with section 2(4)(c) of the Act in relation to alleged offences one to nine. When EAW1 and the two letters were combined it became clear that alleged offence nine also complied with section 2(4) of the Act. EAW2 had consisted of a document in the prescribed form, which had been presented as an EAW and which had set out to address the information required by the Act. It had clearly not involved a wholesale failure to provide the necessary particulars. Further, it was an appropriate case to exercise the discretion to admit the relevant part of the second letter to fill the lacuna. Furthermore, there was no doubt that the offences had been extradition offences. With respect to B, the EAW had consisted of a document in the prescribed form, which had been presented as an EAW and which had set out to address the information required by the Act. It had clearly not amounted to a wholesale failure to provide the necessary particulars, but there had been a lacuna. However, there was no doubt that the judicial authority had been entitled to rely on the further information (see , , , , ,  of the judgment).
Office of the King’s Prosecutor, Brussels v Cando Armas  1 All ER 647 distinguished; Dabas v High Court of Justice, Madrid, Spain  2 All ER 641 distinguished; Zakrzewski v Regional Court in Lodz, Poland  2 All ER 93 distinguished; Polczynski v Regional Court of Piotrkow Trybunalski Poland  EWHC 4490 (Admin) distinguished; Ektor v National Public Prosecutor of Holland  All ER (D) 109 (Dec) applied; Szombathely City Court v Fenyvesi  4 All ER 324 applied; Hewitt v First Instance and Magistrates’ Court Number One of Denia, Spain; Woodward v First Instance and Magistrates’ Court Number One of Denia, Spain  All ER (D) 234 (Apr) applied; Dhar v National Office of the Public Prosecution Service the Netherlands  All ER (D) 249 (Mar) applied; Elashmawy v Court of Brescia, Italy  All ER (D) 94 (Jan) applied; King v Public Prosecutors of Villefranche Sur Saone, France  All ER (D) 188 (Dec) applied; Goluchowski v District Court in Elblag, Poland; Sas v Circuit Court in Zielona Gora and District Court in Jelenia Gora, Poland  2 All ER 887 applied; Pupino (criminal proceedings against): C-105/03  All ER (EC) 142 considered; Bob-Dogi: C-241/15  1 WLR 4583 considered.
Helen Malcolm QC and James Stansfeld (instructed by Powell Spencer & Partners) for A.
Helen Malcolm QC and Joel Smith (instructed by Hayes Law Solicitors and Advocates LLP) for B.
Julian B Knowles QC and Saoirse Townshend (instructed by the Crown Prosecution Service) for the judicial authorities.
Karina Weller solicitor (NSW) (non-practising).