CASE SUMMARY: Benmaimun v France [2019] EWHC 1798 (Admin)

1st Jul 2019

Background facts

The appellant appealed against an order for his extradition to France to face a charge in respect of an alleged offence of escape of an inmate on temporary absence. It was submitted that the time the appellant had spent in custody awaiting extradition meant that the extradition would now be oppressive pursuant to the Extradition Act 2003, s.14. Further the court considered the way that time in custody would count towards the appellant’s sentences in France.

The appellant has been the subject of several EAWs. Having spent time in custody in the UK awaiting extradition on an accusation EAW relating to an offence of escape of an inmate on temporary absence, he was subsequently arrested on a further EAW to serve a five and a half year sentence of imprisonment.

Grounds of appeal

It was submitted on behalf of the appellant that these two periods of detention combined exceed the maximum sentence of three years which could be imposed for the prisoner escape offence. Further the appellant argued that the periods of detention, under a proper construction of Art 26 of Framework Decision 2002/584, are required to be taken into account as time served in respect of each EAW and there is no exception for cases where the appellant is also remanded in respect of another EAW. This, it was submitted, is supported by an ordinary reading of the Decision.

The respondent argued that Art 26 was incorporated into French law so that time spend in custody in relation to each EAW is only considered in respect of that sentence.

Court’s decision and reasoning

The court dismissed the appeal.

  1. The objective of Art 26 is to ensure that there is deducted from the period of detention to be served, such periods of detention that have been occasioned by the execution of the EAW so as to not infringe on the right to liberty of the subject of the EAW save as to the extent required to meet the judgment of the criminal court in the Requesting State.
  2. The requirement to deduct periods of detention is not to be construed artificially to provide an unmerited benefit to the accused. To construe Art 26 as requiring each period spent in custody in the execution of a number of EAWs to be subtracted repeatedly for each sentence imposed as a result of the EAWs would lead to double or triple counting of the reduction. Such an outcome would be at odds with a proper purposive construction of Art 26. The court considered it to be plainly appropriate that the periods of detention in the course of the execution of the EAW were applied first to the conviction, and then to the accusation case, precisely as the French law required.

Jasvinder Nakhwal
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Nick Vamos
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