Criminal Court at the National High Court, 1st Division (A Spanish Judicial Authority) v Murua

Substantial compliance with section 2 of the Extradition Act 2003 is a jurisdictional prerequisite for a valid Part 1 warrant. The warrant must describe the alleged conduct properly, fairly and accurately.

Mutual recognition ordinarily requires the executing court to accept an issuing judicial authority’s statements. Nevertheless, on appropriately clear facts, the court may examine materials which demonstrate that the warrant materially misstates the conduct capable of supporting the foreign prosecution. This limited inquiry concerns the accuracy of the description, rather than the sufficiency or quality of the prosecution evidence. A warrant which fails that requirement is not a valid Part 1 warrant.

A Spanish judicial authority appealed against a district judge’s order discharging the respondent under section 21(2) of the Extradition Act 2003. The European Arrest Warrant sought his surrender for three serious terrorist-arson offences said to involve danger to life and an aggregate maximum sentence of 48 years.

Spanish court documents showed that the prosecutor had subsequently stated that danger to life and concealment by balaclavas were not proved. The seven co-defendants had therefore faced reduced terrorist-damage charges and received sentences of two years or less. There was no material basis for differentiating the respondent from those co-defendants.

The central issue was whether the warrant gave proper, fair and accurate particulars of the conduct alleged, as required by section 2(4)(c), or whether mutual recognition required the English court to accept its contents without further inquiry.

1. Appeal dismissed. The 2010 European Arrest Warrant was not a valid Part 1 warrant. The district judge had therefore been right to discharge the respondent.

2. Substantial compliance with section 2 of the Extradition Act 2003 is a jurisdictional prerequisite. A purported warrant which does not sufficiently conform to that section does not engage Part 1 of the Act. The decision in Castillo remained relevant under the 2003 Act: sufficient conformity requires the conduct alleged to constitute the extradition offence to be described properly, fairly and accurately.

3. The court’s task must be performed with firm regard to mutual co-operation, recognition and respect between Member States. Ordinarily, statements made by the issuing foreign judge will be accepted as accurately describing the foreign procedure. The court must not undertake a debatable analysis of discrepant evidence, assess evidential sufficiency or conduct a detailed critique of the requesting state’s law.

4. That principle does not prevent a limited inquiry on appropriately clear facts. Where reliable materials call the accuracy and fairness of the description into question, the court may determine whether the particulars required by section 2(4)(c) have genuinely been given. That inquiry arises within section 2 itself and need not be recast as a freestanding abuse-of-process or bad-faith jurisdiction.

5. The Spanish prosecutor had stated unequivocally that danger to life and concealment of identity were not proved. The Spanish judge had endorsed the reduced factual basis by reference both to the co-defendants’ admissions and to documentary evidence. Nothing before the court distinguished the respondent’s participation from that of the relevant co-defendants.

6. The warrant nevertheless reverted to the original serious charges. It therefore alleged conduct which the requesting authority’s own documents showed could not be proved in its material particular of danger to life. The description was neither proper and fair nor accurate, because the lesser offences which could properly be alleged were not the offences stated in the warrant.

7. The limitation, article 5, specialty and article 8 issues did not require determination. The court also declined to certify a point of law of general public importance. The discharge order accordingly took effect.

1. High Court (Administrative Court): The Spanish judicial authority’s appeal was dismissed in [2010] EWHC 2609 (Admin) . The Part 1 warrant was invalid and the respondent’s discharge took effect.

2. Westminster Magistrates’ Court: The Senior District Judge held that the warrant did not comply with section 2 of the Extradition Act 2003 and ordered the respondent’s discharge under section 21(2). She also held that extradition on the only viable, time-barred charges would violate article 5 of the European Convention on Human Rights.