Supreme Court dismisses appeal on European Arrest Warrant, upholding mutual recognition principle despite evidentiary gaps.

THE SUPREME COURT

[Record No: 2006/399]

Denham J.

Hardiman J.

Finnegan J.

Between/

The Minister for Justice, Equality and Law Reform

Applicant/Respondent

and

Martin Stafford

Respondent/Appellant

Judgment delivered the 17th day of December, 2009 by Denham J.

1. This is an appeal by Martin Stafford, the respondent/appellant, referred to in this judgment as “the appellant”, from the

order of the High Court (Peart J.) made on the 14th day of February, 2006, pursuant to s.16(1) of the European Arrest

Warrant Act, 2003, as amended, referred to in this judgment as “the Act of 2003”, directing his surrender to such person

as is duly authorised by the United Kingdom, on foot of a European arrest warrant.

2. The appellant has raised essentially three issues. First, that a heading in the European arrest warrant is defective and

that as a consequence, or in conjunction with other matters, the warrant is invalid. Secondly, there is insufficient

evidence on the warrants to show that the alleged offences arise. Thirdly, there is insufficient evidence linking the

appellant to the allege offences. I shall consider each of these issues in this judgment.

The High Court

3. The learned trial judge, having referred to details set out in the warrant relating to charges of kidnapping, false

imprisonment, murder, rape, unlawful wounding and sexual touching held:-

“I am of the view that the submission made by Mr O’Higgins fails to take adequate account of the principle of

mutual recognition referred to in the Framework Decision. What is required to be included in paragraph (e) of the

warrant, according to the specimen form of warrant annexed to the Framework Decision is a description of the

circumstances in which the offences were committed, and this description should include details such as time, place

and degree of participation by the requested person. The requesting judicial authority has stated in the warrant

that the Crown Prosecution Service has decided to charge the respondent and to try him for these offences. The

principle of mutual recognition must be interpreted in a way which precludes this Court, except in the most obvious

and glaring inadequacy and failure to make any link between the person named in the warrant and the alleged

offence, from seeking to go behind the description contained in paragraph (e) and in so doing questioning the bona

fides of the warrant signed as it is by the issuing judge.

…

The requirement that the warrant contains a description of the degree of the respondent’s involvement in the

offences means just that – a description thereof. There is no requirement that a particular level of involvement be

described in the sense of having to pass a certain threshold of involvement so as to show anything like a prima

facie case. That would be to require a strength of argument demonstration. In my view the principle of mutual co-

operation is consistent with the requesting authority being expected to show a degree of participation or

involvement by the respondent in the offences set forth in the warrant. Beyond that it is a matter for the

requesting authority, who in this case has stated that it has been decided to charge and try the respondent with

the charges, to prove its case at trial beyond a reasonable doubt so as to dislodge the presumption of innocence

which he presently enjoys as of right. To go further in my view and expect that the requesting authority should at

this stage be required to set forth all of its proposed evidence in more detail is not something required by either the

letter or the spirit of the Framework Decision.

The detail contained in the narrative to the effect that the respondent has been identified as being the driver in the

missing person’s car on the morning of the 5th December 2004, combined with the fact that the semen which has a

DNA match to the DNA of the respondent, as well as finding blood in the car, and the alleged conversation with Ms.

Mohan on the way to Dublin is more than enough by way of degree of involvement in the alleged offences numbered

2 to 6 in the warrant in order to satisfy the requirement contained in the form of warrant provided for in the

Framework Decision.”

The learned High Court judge concluded by directing the surrender of the appellant.

Notice of Appeal

4. By Notice of Appeal the appellant has appealed to this Court. The essence of the appeal is the issue as to whether the

warrant contains information which is required by the Act of 2003.

5. The grounds of appeal relevant to the issue are as follows:-

“(a). The learned Judge, erred in fact and in law in:

(i) Failing to find that the facts set out in the warrant did not

disclose the commission of the offences charged, or any of them.

(ii) That a finding that the offences numbered 2 to 6 in the warrant had been

committed by someone was a pre-requisite to a finding that the detail contained in

the warrant was sufficient to specify the degree of involvement or alleged degree of

involvement of the Appellant in the commission of the offences.

(b) The learned Judge erred in his interpretation of section 11(1A)(f) of the European Arrest Warrant

Act as amended by section 72 of the Criminal Justice (Terrorist Offences) Act 2005.

(c) The learned Judge erred in finding that the European Arrest Warrant was in the form required by

section 11(1A)(f) of the European Arrest Warrant Act 2003 as amended by section72 of the Criminal

Justice (Terrorist Offences) Act 2005 and in particular erred in finding that there was sufficient detail

contained in the warrant to show the time, place and degree of participation/involvement alleged.

(d) Further or in the alternative the learned Judge erred in finding that the European Arrest Warrant was

in the form required by the Annex to the European Arrest Warrant Act 2003 (at page 88 of Act).

(e) The learned Judge erred in law in finding that the warrant transmitted to this State by the U.K.

authority must be looked at in the context of the Preamble of the Framework decision.

(f) The learned Judge erred in law in finding that the submissions by Counsel for the Appellant failed to

take account of the principle of mutual recognition referred to in the Framework Decision.

(g) The learned Judge erred in law in finding that the principle of mutual recognition must be interpreted

in a way which precludes the Court (except in circumstances of the most glaring inadequacy and failure

to make any link between the person named in the warrant and the alleged offence) from seeking to go

behind the description contained in paragraph (e) and in so doing questioning the bona fides of the

warrant signed as it is by the issuing Judge.

(h) The learned Judge erred in finding that the principle of mutual cooperation is consistent with the

requesting authority being expected to show a degree of participation or involvement by the Appellant

in the offences set out in the warrant.

(i) The learned Judge erred in finding that the detail contained in the narrative (to the effect that the

Appellant had been identified as being the driver in the missing person’s car on the morning of the 5th

December 2004, combined with the fact that the semen which has a DNA match to the DNA of the

Appellant, as well as the finding of blood in the car, and the alleged conversation with Ms. Mohan on

the way to Dublin) is more than enough by way of degree of involvement in the alleged offences

numbered 2 to 6 in the warrant in order to satisfy the requirement contained in the form of warrant

provided for in the Framework Decision.

(j) The Court erred in failing to require the issuing judicial authority to provide it with appropriate

additional documentation or information pursuant to section 20(1) of the 2003 Act.

…

(m) The learned Judge erred in law in failing to interpret the statute in a manner favourable to the

Appellant herein against whom the statute was invoked in the proceedings.”

Submissions

6. Counsel for the appellant confirmed that there was no appeal in relation to Count No.1 on the European arrest warrant,

i.e. the unlawful wounding offence. The appeal was advanced in relation to Counts No. 2 - 6.

7. It was submitted that the material on the warrants does not support a finding that the offences have been committed.

Alternatively, if the European arrest warrant does disclose that the offences were committed, it was submitted that the

information is insufficient to show that the appellant “participated”. Counsel confirmed that he was not making the case

that there is a requirement to show a prima facie case. However, he submitted that the warrant must have material which

indicates that the appellant participated. He argued that if deficiencies are established that it is not an answer to rely

upon the Comity of Nations or the doctrine of mutual recognition. These principles are not in conflict, it was submitted,

with the obligation to show that the offences were committed and that the appellant participated. Counsel submitted that

it was a statutory matter and that the question was whether the material in the European arrest warrant complied with

the statute.

8. Counsel for the Minister for Justice, Equality and Law Reform, referred to in this judgment as “the Minister”, submitted

that this was a “dressed up strength case”. Reference was made to the Framework Decision and to the requirement to

describe the circumstances. Counsel referred to the circumstances of this case and submitted that the warrant gave a

description of a murder for which no body has been found. One could not say there would never be a “circumstantial

evidence” case in a European arrest warrant. It was submitted that there is an appropriate description of the

circumstances in which the alleged offences were committed. Reference was made to the learned High Court judge’s

reference to “obvious and glaring inadequacy” and it was argued that this case is far from that situation. This, it was

submitted, is a case based upon circumstantial evidence and that of itself is not a reason to refuse a request for

surrender. It was submitted that in this case there was a clear set of circumstances where a person has disappeared in

suspicious circumstances and there is an evidential link to the appellant.

Framework Decision

9. The Council Framework Decision of the 13th June, 2002, on the European arrest warrant and the surrender procedures

between Member States, is referred to in this judgment as “the Framework Decision”. Article 8 provides:-

“Content and form of the European arrest warrant

1. The European arrest warrant shall contain the following information set out in accordance with the

form contained in the Annex:

(a) the identity and nationality of the requested person;

(b) the name, address, telephone and fax numbers and e-mail address of the issuing judicial authority;

(c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision

having the same effect, coming within the scope of Articles 1 and 2;

(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(e) a description of the circumstances in which the offence was committed, including the time, place

and degree of participation in the offence by the requested person;

(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence

under the law of the issuing Member State;

(g) if possible, other consequences of the offence.”

[Emphasis added]

10. The European arrest warrant form in the annex to the Framework Decision states, in the relevant portion, as follows:-

“Description of the circumstances in which the offence(s) was (were) committed, including the time, place and

degree of participation in the offence(s) by the requested person:”

Statute law

11. The Act of 2003 makes provision for the form and content of a European arrest warrant as to the circumstances of

the offence or alleged offence. Section 11(1), as amended by s.72 of the Criminal Justice (Terrorist Offences) Act 2005,

provides that:-

“A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework

Decision.”

Section (1A) provides that:-

“Subject to subsection (2A), a European arrest warrant shall specify –

…

(f) the circumstances in which the offence was committed or is alleged to have been committed,

including the time and place of its commission or alleged commission, and the degree of involvement or

alleged degree of involvement of the person in the commission of the offence, …”

Section 2A provided:-

“If it is not practicable for any of the information to which subsection (1A) (inserted by section 72(a) of the Criminal

Justice (Terrorist Offences) Act 2005) applies to be specified in the European arrest warrant, it may be specified in

a separate document.”

In fact section 2A has been amended under Part 2 of the Criminal Justice (Miscellaneous Provisions) Act 2009, which

came into operation on the 25th day of August, 2009. However, the amendment of 2009 does not apply to this appeal.

Decision

Heading on Warrant

12. First, the technical point as to the heading in the warrant. The heading in the warrant states:-

“Description of the circumstances in which the offence(s) was (were) committed, including the time and place they

were committed by the requested person:”

It does not include the words “degree of participation/degree of involvement”. I am satisfied that while it would be better

practice if such words were in the title it is not a matter which nullifies the warrant. It is for the court to consider the

facts on the warrant to determine whether they meet the requirements of the Act of 2003. The omission of these words

on the heading in the warrant is not a flaw which goes to the validity of the warrant. Consequently, I would dismiss this

ground of appeal

Offences

13. Secondly, Counsel submitted that the material on the warrants does not support a finding that offences were

committed. In relation to this submission it is necessary to consider the facts stated in the European arrest warrant. It

contains the following information:-

“Statement

I am satisfied that a Crown Prosecutor in the Crown Prosecution Service, whose function is to decide whether or

not to prosecute an individual for the alleged commission of a criminal offence, has decided to charge the person

named herein and to try him for the offences specified above and for which this warrant is issued.

Description of the circumstances in which the offence(s) was (were) committed, including the time and place they

were committed by the requested person.

At the time of Alleged Offence 1, Martin STAFFORD [“Mr STAFFORD”] and David Lee Goodall [“Mr Goodall”] were

living in Parker House Hostel, 25 Parker Street, London WC2. This is a hostel for the homeless.

On 25 July 2004 at about 2.30 am Mr Goodall was trying to sleep when he heard banging on his door. He told the

person banging that he was trying to sleep and to leave. The banging continued so he got up and answered the

door. On opening it he saw a male he knew by the name of Martin [“Mr STAFFORD”]. Mr STAFFORD pushed past Mr

Goodall into the room and shut the door behind him. He threatened Mr Goodall. Mr STAFFORD told Mr Goodall to take

off his gold ring and give it to him. He also pointed at a number of other things including the television. Mr

STAFFORD pulled out a knife and said if Mr Goodall didn’t give it to him he would get his brothers and the IRA on to

him. Mr STAFFORD then unzipped his [“Mr STAFFORD’s”] trousers and pulled out his penis. Mr STAFFORD then

urinated in a cup. Mr STAFFORD said “Suck my cock”. Mr Goodall refused, and Mr STAFFORD lunged at him with the

knife. Mr Goodall grabbed the knife but sustained a badly cut right hand.

Members of the staff came. Mr Gary Smith, an assistant manager at the hostel, knocked on the door, which was

opened by Mr STAFFORD, who said nothing was going on. Mr Smith saw Mr Goodall mouthing the words, “Help me,

help me.” Mr STAFFORD said the injury to Mr Goodall’s hand was an accident. He then slammed the door. Mr Smith

heard Mr STAFFORD say, “If you grass me up for this I’m going to kill you, I mean that.” The door was then

unlocked by Mr STAFFORD, and Mr Smith and a colleague managed to get Mr STAFFORD out.

Mr Goodall received a 5” curved full thickness cut between the right thumb and the index finger. He required

stitches.

The knife was recovered by Mr Smith from under a car in Parker Street. Another resident had seen Mr STAFFORD

throw the knife out.

Police Constables Stuart Robinson and Ek attended at about 3.30 am. Mr STAFFORD was arrested.

On the same day he was interviewed at Holborn Police Station in the presence of a solicitor and an appropriate

adult.

Mr STAFFORD said he had been given a cup of coffee and a ‘spliff’ by Mr Goodall and that he then felt

strange. (He implied he had been drugged in some way by Mr Goodall.) He stated he went into Mr

Goodall’s room and asked him what he had given him. He remembers the next things that happened was

Mr Goodall’s hand being placed on his leg and moving towards his penis. Mr STAFFORD stated he then

pushed Mr Goodall away from him. Mr Goodall then got up and looked at a knife that was on a table. Mr

STAFFORD believed he was about to reach for it and so grabbed it himself. As he did so, Mr Goodall

grabbed the blade and, in the struggle that followed, Mr Goodall slashed his hands on the blade. Mr

STAFFORD says it was an accident and denied he made any homosexual demands. He denied asking for

property or urinating in a cup.

On 25 July 2004 Mr STAFFORD was charged with unlawful wounding.

Alleged Offences 2 to 6

Michelle GUNSHON was born on 19 June 1966. She had separated from her husband Derek and has three

children aged 23, 21 and 15. Until recently her 15 year old son was living with his father, Derek, but

because of Derek’s alcoholism she arranged for her son to come and live with her and hew new partner

Ian POMFREY. She worked for a security company and at the time of her disappearance was working in

Birmingham providing security for the “Clothes Show Live”. She is not considered by those who know her

to leave them without making contact with them.

On 3 December 2004 Michelle GUNSHON travelled from London to Birmingham with two colleagues,

Richard FINNEY and Michael KEEGAN. They were all working at the National Exhibition Centre in

Birmingham for the “Clothes Show Live”. They all stayed at The Dubliner Public House, High Street,

Digbeth, Birmingham. Michelle stayed in Room 2, Flat 2. FINNEY and KEEGAN stayed in Room 2, Flat 3.

On 4 December, 2004 Michelle, FINNEY and KEEGAN finished work at about 18.30 hours and returned to

The Dubliner at 19.15 hours. They had travelled in Michelle’s car, a blue Ford Escort registration number

H814 KNO. Michelle parked her car in Mill Lane, which is a road between The Dubliner Public House and

the main Coach Station in Birmingham. The group had some drinks in the pub but shortly after Michelle

went to her room.

Michelle was last seen at 21.30 hours on 4 December 2004 when FINNEY went to her room to borrow

some money. At that time she was wearing black trousers, a T-shirt and no footwear. Her partner Ian

POMFREY rang her at 22.05 hours and she told him she was tired and was going to sleep.

She was reported missing on 6 December 2004 by Richard FINNEY. Both he and KEEGAN say that they

saw Michelle’s belongings along with her mobile phone in her room at 15.00 hours. They noted that the

phone had 27 missed calls displayed. By 17.00 hours her belongings had been removed.

CCTV footage was recovered from around the area and this shows Michelle GUNSHON’s car being driven

from Mill Lane where she parked it at 07.15 hours on 5 December 2004. It shows one person

approaching the car and getting into it. It is not possible to determine whether the person is male or

female.

Michelle’s car activated 2 speed cameras on two roads between 08.29 and 09.08 hours on 5 December

coming into the city centre. The two photographs recovered show a white male as the driver. They

have been enlarged and the second photograph appears to show a person sat in the front passenger

seat. The licensee of The Dubliner has viewed these photographs and has identified the driver as Mr

STAFFORD.

Ian POMFREY was contacted and stated that Michelle had a mobile phone charger in her car so she

would be able to charge her phone. Michelle was supposed to be working in Birmingham until 8 December

2004. She did not turn up to work on 5 December or the remaining days and left her colleagues without

transportation back to London. She has not been seen since.

A message was left on her phone by the police asking her to contact them. Family members, work

colleagues and friends were all contacted and no one had had any contact. The Dubliner has CCTV but

it does not record. Checks were completed at her estranged husband’s address and her partner Ian

POMFREY’s address and a vehicle and person check was completed, all with negative result.

On 7 December 2004 Michelle GUNSHON’s car was found on a street near to The Dubliner. On

examination blood was recovered from a jacket in the boot, blood was also recovered from the front

drivers door frame and from the steering wheel. This is Michelle’s blood. Semen was also recovered and

this matches a profile held on the DNA database for Martin STAFFORD.

Martin STAFFORD had been staying at The Dubliner in Room 5, Flat 3 and had stayed at the Pub from

time to time under a loose agreement with the landlord Paddy Finn, whereby he would walk the family

dog and collect glasses in return for free accommodation. He did not stay at The Dubliner from Sunday

5 December 2004 to Wednesday 8 December 2004. On 8 December he was seen by a witness, Sheila

MOHAN, at the main coach station where they both travelled to Dublin via Holyhead. Mr STAFFORD told

Sheila MOHAN not to tell anyone that she had seen him.

On 23 February 2005 a further search was carried out for evidence, and property belonging to Michelle

GUNSHON was recovered on a small piece of waste land next to The Dubliner Public House. This included

her wallet and bank cards, a bag of men’s clothing, a tube of mascara, a T mobile telecommunications

paperwork and two kitchen knives with a serrated edge.

Although Michelle Gunshon’s body has not been found, the circumstantial evidence is such to render the

commission of her murder certain and leave no ground for reasonable doubt.”

14. Article 8 of the Framework Decision and section 11(1)(f) of the Act of 2003, as amended by s.72 of the Criminal

Justice (Terrorist Offences) Act 2005, require that there be a description of the circumstances in which the offences or

alleged offences were committed. The matter of time and place are important as they are central to issues such as the

statutes of limitation and jurisdiction.

15. It is required that there be a description of the acts upon which the warrant is based. This is similar to the situation

under the Extradition Act 1965, as amended, and indeed classically in extradition law. A description of the acts, or the

acts alleged, are the facts upon which the executing judicial authority may apply the law. By describing the acts the

facts are before the court and so a decision may be made as to whether there is, for example, double criminality. I am

satisfied that the facts on the warrant in this case are sufficient to describe the circumstances in which alleged offences

were committed.

Participation

16. The next issue is the submission that the information is insufficient to show that the appellant “participated”.

17. The Framework Decision, in Article 8, in describing the content and form of the European arrest warrant states in (1)

(e) “… and degree of participation in the offence by the requested person”. The European arrest warrant form in the

annex to the Framework Decision states: “… and degree of participation in the offence(s) by the requested person”. The

Act of 2003, as amended by s.72 of the Criminal Justice (Terrorist Offences) Act 2005, requires in s.11(1A)(f) “… and the

degree of involvement or alleged degree of involvement of the person in the commission of the offence…”. It is these

words which fall to be considered in this case.

18. While the Framework Decision uses the word “participation” and the Act of 2003 uses the word “involvement”, I am

satisfied that no issue arises on the use of different terms. Both mean to take part in, to participate in, to be involved in.

There is no significance in the use of the different words.

19. The question which arises for determination is whether the acts alleged on the warrant show a link with the requested

person. It is not necessary to show a prima facie case. It is not necessary to show a “strong” case. The issue of guilt or

innocence is for the jury in the requesting state.

20. This case is one of circumstantial evidence. There is no reason why an accusation of a crime based upon

circumstantial evidence could not be the basis for a European arrest warrant. It is necessary to look at the facts alleged

in each warrant.

21. In this case the facts alleged include a missing woman, missing since the evening of 4th December, 2004, no body

found, her belongings seen in her hotel room, with 27 missed calls on her mobile, at 3 pm on the 6th December, 2004, and

then a few hours later her belongings missing, her car removed from where she parked it, road camera shots taken of the

car on the 5th December, 2004 with the appellant identified by a witness as the driver, on the 7th December, 2004 her

car was found, the missing woman’s blood was found in her car, semen was found in the car which matches a profile on

the DNA database of the appellant’s DNA, on the 8th December, 2004, the appellant was seen travelling to Dublin and he

told a witness not to tell anyone she had seen him.

22. I am satisfied that there are sufficient facts stated on the European arrest warrant to indicate an alleged

participation, or alleged involvement, by the appellant with the offences for which he is charged in the requesting state.

It is not for this Court to consider the strength of the prosecution case against the appellant.

23. The European Arrest Warrant Scheme, based on the Framework Decision and applied in each Member State under the

relevant national law, is founded on the concept of mutual respect and judicial cooperation between the Member States

of the European Union. It is a development of the concept of the Comity of Nations to a closer working relationship

between the judicial authorities of the EU in the area of the European arrest warrant. However, each request and

European arrest warrant process is a matter for determination by the courts.

24. There is no reason in this case, in light of the facts described on the European arrest warrant, not to apply the

appropriate mutual recognition and judicial cooperation. There is sufficient detail described on the warrant to show the

alleged participation, the alleged involvement, of the appellant in order to satisfy the requirements of the Act of 2003.

25. Of course the appellant would be surrendered for the purpose of prosecution, not investigations.

26. For the reasons given I would dismiss the appeal and uphold the order of the High Court.