Office of the King's Prosecutor, Brussels (Respondents) v. Armas (Appellant) and others

Under Part 1 of the Extradition Act 2003, “conduct” means the conduct alleged or relied upon in the Part 1 warrant. Section 65(2) cannot apply if any part of that conduct occurred in the United Kingdom.

Section 65(3) can nevertheless apply to an offence on the European framework list. It is sufficient that some of the conduct occurred in the requesting territory, provided the double-criminality requirement is met. Conduct occurs there where acts performed elsewhere were intended to produce harmful effects there. The requested person need not have been physically present in that territory.

Belgium sought the surrender of an Ecuadorean citizen who had been convicted in his absence of offences relating to organised illegal immigration and false passports. He had received a five-year custodial sentence. His surrender was governed by Part 1 of the Extradition Act 2003.

The Deputy Senior District Judge discharged him because part of the alleged conduct occurred in the United Kingdom. The Queen’s Bench Divisional Court allowed the prosecutor’s appeal in [2004] EWHC 2019 (Admin), reported at [2005] 1 WLR 1389, and remitted the matter.

The central issue was whether framework-list conduct which occurred partly in Belgium and partly in the United Kingdom could constitute an extradition offence under section 65(3), although it could not satisfy section 65(2).

1. Disposition. Lord Bingham of Cornhill delivered the leading speech. Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Carswell agreed that the appeal should be dismissed. The House therefore upheld the Divisional Court’s remittal order, although its reasoning differed in part from that court’s reasoning.

2. Meaning of conduct. Per Lord Bingham, “the conduct” in section 65 means the conduct complained of or relied upon in the warrant. This construction accords with the purpose of the European arrest warrant scheme and avoids an undesirable inquiry into the technicalities of foreign criminal law. Because some conduct specified in the Belgian warrant occurred in the United Kingdom, section 65(2)(a) was not satisfied.

3. Application of section 65(3). Per Lord Bingham, section 65(3)(a) does not require all the conduct to have occurred in the category 1 territory. The omission from that subsection of the express requirement that no part occur in the United Kingdom was deliberate. Some conduct in the requesting territory is sufficient. Sections 65(3)–(6) are also capable of applying to framework-list offences. Unlike section 65(2), those provisions retain the applicable double-criminality requirements.

4. Territorial effects. Per Lord Hope, whose reasoning on the principal issue was adopted by Lord Bingham and expressly agreed with by Lord Scott, physical presence in the requesting territory is unnecessary. Acts performed elsewhere amount to conduct in that territory when their intended effect is to cause harm there. Section 65(2)(a) qualifies that general territorial principle by excluding cases in which part of the conduct occurred in the United Kingdom.

5. Contents of a Part 1 warrant. Lord Hope considered, without deciding the remitted issue, that section 2(2) requires a warrant to contain the applicable accusation-case or conviction-case statement. The precise statutory words need not necessarily appear, and clear inferences may be drawn from the available material. A gap affecting protection of liberty cannot, however, be filled by guesswork. Lord Scott expressed the provisional view that an omitted “unlawfully at large” statement must at least be unequivocally implied. Lord Bingham reserved his opinion, and Baroness Hale considered the practical solution unresolved.

6. Order. Appeal dismissed. The case was remitted to the Deputy Senior District Judge to continue the extradition hearing and determine any remaining points properly open to the appellant.

1. House of Lords: In [2005] UKHL 67, the House unanimously dismissed the appellant’s appeal and upheld the order remitting the extradition proceedings.

2. Queen’s Bench Divisional Court: In [2004] EWHC 2019 (Admin), reported at [2005] 1 WLR 1389, the court allowed the prosecutor’s appeal. It held that section 65(2)–(6) of the Extradition Act 2003 formed a cumulative list and that sections 65(2) and 65(3) applied.

3. Bow Street Magistrates’ Court: The Deputy Senior District Judge ordered the appellant’s discharge. She held that section 65(2) failed because part of the conduct occurred in the United Kingdom and that section 65(3) did not apply.