McCormack v Tribunal De Grande Instance, Quimper, France

For extradition under Part 1 of the Extradition Act 2003, the question whether a person is “accused” and wanted for prosecution must be assessed substantively and in the light of the requesting state’s criminal procedure. A formal stage such as mise en examen is not necessarily a prerequisite. The court must adopt a cosmopolitan and purposive approach, focusing on whether the competent foreign authorities have taken steps that fairly constitute the commencement of a prosecution. The person’s deliberate absence cannot prevent extradition where the remaining procedural steps depend on his attendance. The Act must also be interpreted, so far as possible, consistently with the European Arrest Warrant Framework Decision.

The appellant was wanted by French authorities under two European Arrest Warrants concerning allegations of rape and attempted rape, and tax fraud. The police investigations had been referred to the French Public Prosecutor, who had submitted a requisitoire introductif to an examining magistrate.

The appellant had not appeared before the magistrate and had therefore not been placed under judicial examination (mise en examen). A District Judge ordered extradition on 10 April 2008. The issue on appeal was whether the appellant was merely a suspect wanted for investigation, or an accused person wanted for the purpose of prosecution under section 2(3) of the Extradition Act 2003.

1. Appeal dismissed. The appellant was an accused person whose extradition was sought for the purposes of prosecution in relation to both European Arrest Warrants.
2. The court applied the approach in Re Ismail [1999] 1 AC 320. Extradition legislation requires a broad and purposive construction which accommodates differences between legal systems. The decisive question is whether, in substance, the competent foreign authorities have taken a step which can fairly be described as the commencement of a prosecution. The assessment requires close attention to the particular facts.
3. The issue of mise en examen was not decisive. Under French procedure, the examining magistrate could not take that step until the appellant appeared and was heard. His absence was self-inflicted and could not convert an already commenced prosecution into a mere investigation. The French proceedings had passed beyond informal questioning: the investigations had ceased, the matters had reached the examining magistrate, the allegations were particularised, and the magistrate had applied the relevant evidential test.
4. The court rejected the submission that the phrase “could have been employed” in the tax-fraud warrant prevented the statutory requirements from being met. The warrants, read with the explanatory material, established the necessary prosecutorial purpose.
5. Part 1 of the Extradition Act 2003 implements the Framework Decision. Following Dabas v High Court of Justice, Madrid [2007] UKHL 6 and Tribunale di Firenze (Italy) v Maria Pupino Case C-105/03, the Act had to be interpreted, so far as possible, in the light of the Framework Decision. Treating mise en examen as an indispensable prerequisite would adopt an insular approach and undermine that purpose.
6. The appeal test under sections 26 and 27(3)(a) was not satisfied. The District Judge had reached the conclusion required by the evidence, and extradition remained ordered in respect of both warrants.

• High Court (Administrative Court): Appeal under section 26 of the Extradition Act 2003 dismissed. The court upheld the District Judge’s extradition order.
• District Judge: On 10 April 2008, District Judge Nicholas Evans ordered extradition in respect of both European Arrest Warrants.