Office of the King's Prosecutor, Brussels v Cando Armas

The House of Lords considered the scope of section 65 of the Extradition Act 2003 (Part 1), enacted to implement the Council Framework Decision of 13 June 2002 on the European arrest warrant. The court held that section 65(2) (the provision dispensing with double criminality for offences on the Framework list) did not apply where some of the conduct relied on in the warrant occurred in the United Kingdom, because subsection (2)(a) requires that the conduct "occurs in the category 1 territory and no part of it occurs in the United Kingdom". The court further held that subsection (3) may nonetheless apply to framework-list offences: it is sufficient that some of the conduct occurred in the issuing State (the effects of acts elsewhere intentionally felt in that State can suffice) and subsection (3) does not require that all conduct occurred exclusively in the issuing State. Accordingly, framework-list offences are not excluded from subsections (3) to (6), but the double criminality dispensation operates only where subsection (2) is satisfied. The court also identified and reserved for further consideration issues about the formal requirement in section 2(5) that a Part 1 warrant in a conviction case state that the person is "unlawfully at large".

Background and parties:

The Kingdom of Belgium sought surrender of the appellant, Mr Cando Armas (an Ecuadorean national), under a Part 1 European arrest warrant issued after his conviction in absentia in Brussels and sentence to five years' imprisonment. The warrant charged offences including people‑trafficking, facilitation of unauthorised entry and forgery (offences on the Framework list). The appellant was arrested in the United Kingdom, and the case came first before the Deputy Senior District Judge (who ordered discharge), then to the Divisional Court (which allowed the prosecutor's appeal) and thence to the House of Lords.

• The appellant sought discharge on the ground that the Part 1 warrant did not describe an "extradition offence" within section 65 of the Extradition Act 2003.

Issues framed by the court:

• How is the word "conduct" in section 65 to be construed for the territorial conditions in subsections (2) to (6)?
• Whether framework‑list offences under subsection (2) are excluded from subsections (3) to (6).
• Whether the Belgian warrant satisfied the requirements of section 2(5) (the statement that the person is "unlawfully at large") or whether the absence of that statement was fatal.

Court's reasoning (concise):

• The court interpreted "conduct" purposively and in light of common‑law rules on territorial jurisdiction: acts done abroad which were intended to, and did, have effects in the issuing State suffice to show that the conduct "occurs" in that State. Thus subsection (3)(a) is satisfied if some of the conduct relied on occurred in the category 1 territory or if acts done elsewhere had intended effects there.
• Section 65(2)(a) contains an express additional qualification (that no part of the conduct occurs in the United Kingdom). That is absent from subsection (3)(a); accordingly subsection (2) is a narrower special case (the circumstance in which double criminality is dispensed with) but does not exclude application of subsection (3) (or (4)–(6)) to framework offences where the double criminality test is met.
• The court declined to read into subsections (3)–(6) an unstated requirement of exclusivity of conduct within the issuing State and rejected the appellant's submission that framework offences could be addressed only by subsection (2).
• On the statutory requirements for Part 1 warrants the court expressed concern about the absence from the Framework Decision form of the specific wording required by section 2(5) (that the person is "unlawfully at large"); the Lords indicated that they would hear further argument on how strictly the absence of the exact words should be treated but gave guidance that courts may draw clear inferences from the material provided while guarding against filling gaps by guesswork.

Disposition: The House of Lords dismissed the appellant's appeal, held that the request could in principle be brought under section 65(3), and remitted the matter to the Deputy Senior District Judge for further hearing on remaining points including whether the warrant satisfied section 2(5).

Appeal dismissed. The House of Lords held that section 65(2) of the Extradition Act 2003 did not apply because some of the conduct relied on in the warrant occurred in the United Kingdom, but subsection (3) can apply to framework‑list offences where some conduct occurred in the issuing State or where acts done elsewhere had effects there; the double criminality dispensation is limited to subsection (2). The case was remitted to the Deputy Senior District Judge for further proceedings and the question of the effect of the omission of an explicit "unlawfully at large" statement under section 2(5) was reserved for further consideration.

Magistrates' court (Deputy Senior District Judge Wickham) ordered discharge; Divisional Court (Henriques and Stanley Burnton JJ) allowed the prosecutor's appeal [2004] EWHC 2019 (Admin) (reported [2005] 1 WLR 1389); appeal to House of Lords ([2005] UKHL 67) — appeal dismissed and remitted to the magistrates' court for further hearing.