Dean Dixon v Kingdom of Spain

Where statutory protection against surrender engages a constitutional prohibition on retrospective criminal liability, the Gibraltar court must itself decide whether surrender presents a real risk of breach. It may obtain further material where necessary and cannot simply leave the issue to the courts of the issuing state. The protection does not require the offence in the warrant to have one identical predecessor. It is sufficient that the current offence reflects an offence, or combination of offences, existing when the conduct occurred, and goes no further. A warrant’s own comparison is not conclusive; the court must assess all the evidence. Combining offences previously separated in different provisions does not, without more, create adverse retrospectivity.

The appellant faced surrender to Spain under a European arrest warrant dated 11 December 2013. The warrant identified an offence under article 149 of the Penal Code 1995, concerning an alleged 1992 assault causing severe injury. Challenges to the warrant were rejected by the Additional Stipendiary Magistrate on 22 May 2014 and by the Supreme Court of Gibraltar, Butler J, on 18 June 2014.

Leave to appeal was limited to whether article 149 was the correct charge under Spanish law and whether surrender would contravene section 8(4) of the Constitution. The central issue was whether the later offence created a real risk of prosecution for conduct that did not constitute the same kind of offence when committed.

Disposition. The Board unanimously dismissed the appeal and advised Her Majesty accordingly.

1. Duty of the Gibraltar court. The European arrest warrant scheme is mechanistic, but section 26(b) of the European Arrest Warrant Act 2004 provides an additional constitutional safeguard. Assuming, without deciding, that section 26(b) is engaged by a real risk of breach of section 8(4), the Gibraltar court must determine that risk itself. It may seek further documentation or information under section 13 and must adjudicate the issue rather than leave it to the Spanish courts. The real-risk principle was drawn from R (Ullah) v Special Adjudicator [2004] UKHL 26 and Arranz v Spanish Judicial Authority [2013] EWHC 1662 (Admin).
2. Correspondence between offences. Section 8(4) does not require article 149 to have one single, precisely identical analogue in the pre-1995 Spanish Code. It is sufficient that the later provision reflects an earlier offence or combination of offences and goes no further. Article 149 could therefore reflect the combined scope of articles 418 and 420. The consolidation of offences formerly contained in separate provisions did not create adverse retrospectivity.
3. Evidence and the scope of article 149. The court was not confined by the comparison stated in the warrant. It had to consider all the evidence when deciding whether article 149 was more favourable and whether surrender created a constitutional risk. Article 149 was not limited to wilful injury; article 152.1.(ii) contemplated serious imprudence causing injuries within article 149. If the Spanish prosecutors confined their case to wilful injury, that could only benefit the appellant. If they could pursue non-wilful conduct, the combined operation of articles 418 and 420 still removed any objection under section 8(4).
4. Article 7. The appellant accepted that surrender would not risk breach of article 7(1) of the Convention, since the relevant offences and maximum penalties were already available under the earlier Code. The Board therefore decided the appeal under the constitutional issue.

1. Privy Council. On 10 November 2014, the Board dismissed the appeal and advised that the appellant be surrendered.
2. Supreme Court of Gibraltar. Butler J dismissed the appeal on 18 June 2014, upholding the ruling below.
3. Additional Stipendiary Magistrate. The appellant’s challenges to the European arrest warrant were rejected on 22 May 2014.