CASE SUMMARY: Blanchard v Spain [2021] EWHC 1776 (Admin): Incoherence is still a bar to extradition

Background facts

The appellant Requested Person (‘RP’) appealed against the decision of the District Judge to order his extradition to Spain pursuant to an accusation European Arrest Warrant (‘EAW’) for offences relating to his alleged involvement in a criminal enterprise which was engaged in fraud and money laundering. The appellant had a chequered history with the Spanish authorities. In 2001, while working as an accountant in Spain, he brought to the attention of the Spanish police a timeshare fraud that was allegedly being committed by his employer. His account is that he then began working as an undercover state agent for the Spanish authorities until his cover was blown in 2004. In 2007, his status in Spain changed from a prosecution witness to a co-defendant. In 2008, he successfully challenged the Spanish indictment in the Spanish High Court. In the meantime, he had pleaded guilty in the UK to four unrelated dishonesty offences for which he received a sentence of six and a half years’ imprisonment. Following his release on license in 2010, the Spanish authorities made several unsuccessful attempts to elicit information from him by way of requests for mutual assistance made to the UK authorities. In 2018, an EAW was issued in respect of the appellant and his extradition was ordered in June 2020.

Grounds of appeal

The appellant raised no fewer than nine grounds of appeal. Namely that, his extradition was barred by reason of an absence of a prosecution decision; the EAW was defective for lack of adequate particulars of the offending and sentence; his extradition would be oppressive due to the passage of time; there was a risk of a flagrant denial of his Article 6 right to a fair trial if extradited; his extradition would be disproportionate and/or an abuse of process.

Court’s decision and reasoning

Permission to appeal was refused on all but the grounds of appeal relating to the contents of the EAW. Pursuant to section 2(4)(c) of the Extradition Act 2003 (‘the 2003 Act’), an EAW must contain “particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence.” Whilst the particulars of the EAW provided a reasonably clear account of the accusations against the appellant, viz, involvement in a criminal enterprise involving fraud and money laundering for which he served as a financial advisor, the EAW was nevertheless incoherent and fundamentally defective. It purported to refer to only one offence but, in fact, set out five or possibly six separate offences contrary to various Spanish legislative provisions. It was therefore impossible for the reasonable reader to know for what offence or offences the appellant was to be extradited. This confusion was compounded by the fact that it was impossible to work out how the maximum sentence of 15 years specified in the EAW, and required pursuant to section 2(4)(d) of the 2003 Act, was calculated. Far from clarifying matters, the further information provided by the Spanish authorities served only to cause more confusion, giving possible sentences of 5, 6 and 12 years – no combination of which results in the maximum 15 years specified in the EAW. The appellant therefore succeeded in his challenge to the District Judge’s order.

Comment

The instant case involved an EAW issued in 2018 and therefore prior to the end of the UK’s transition period for exiting the European Union (11 pm on 31 December 2020) and the coming into force of the new surrender arrangements between the UK and the EU as set out in Title VII of Part 3 of the Trade and Cooperation Agreement 2020 (‘TCA’). However, the requirements of section 2(4)(c) and (d) of the 2003 Act are equally applicable to Arrest Warrants issued under the TCA as they are to EAWs issued before the agreement came into force. Consequently, the UK courts can be expected to take a similarly strict approach to section 2 particulars in cases involving warrants issued under the TCA and Requesting States ignoring those requirements do so at their peril. Previous authorities, such as Dhar v Netherlands [2012] EWHC 697 (Admin), which set out the level of detail required to be included in an EAW remain relevant and Requesting States should caution against over-reliance on further information, which cannot be relied upon to cure a “wholly deficient” warrant (M v Italy [2018] EWHC 1808 (Admin)).

The appellant’s unsuccessful grounds of appeal provided a useful restatement of the requirements under section 12A of the 2003 Act that the authorities in the Requesting State must have already made a decision to charge or try the requested person; and on the scope of the court’s residual discretion to prevent extradition on the grounds of abuse of process. Both the EAW and the further information made clear that the appellant’s extradition was sought for the purpose of prosecuting him in Spain. It was no bar to that prosecution that the original indictment of 2008 has been quashed. It was well established that section 12A required no formality of a decision to prosecute (Pucevicience v Lithuania [2016] EWHC 1862 (Admin)). Under Spanish law the formal decision to prosecute cannot be taken in the absence of the accused and, therefore, it was clear on the facts of the instant case that the sole reason the decision had not yet been taken was because of the appellant’s voluntary absence from Spain. The court went on to consider the appellant’s argument that his extradition was being requested in bad faith in an attempt by the Spanish authorities to coerce him into providing evidence against his co-accused. Though there was no doubt that the court had a residual discretion to prevent extradition on the grounds of abuse of process, it was a limited one and, as established in Symeou v Greece [2009] EWHC 897 (Admin), it did not extend to considering misconduct or bad faith by the police in the Requesting State. The proper venue for the appellant to make arguments about alleged misconduct on the part of the Spanish police was at his trial in Spain, not in the course of his extradition proceedings.