AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

Fecha: 16-Oct-2025

The Evidence

40.

Returning to the four components (§5 above), I have the same who (the French court), when (post-extradition) and what (whether the EMC is evaluated to constitute EMHA) as did the Courts in A and Doga. The critical question is whether. On that question, what I have from the Paris Prosecutor’s Office in the April 2025 further information is really two things. First, I am told that:

it is not possible to predict at this stage.

Secondly, I am told (candidly):

Unfortunately, we have no examples of decisions in which an individual subject to a curfew with electronic surveillance did not have each day subject to this curfew deducted from the sentence handed down by the French court.

41.

Alongside that candid admission, I have evidence of all of the following:

Two Persons (2019-2021). These are the two requested persons who were surrendered to the French authorities on 23 May 2019. They had each been on 7 hour EMC in the UK from 29 March 2018 to 23 May 2019. The Paris Correctional Court allowed their claim for deductions under Article 142-11 of the French Criminal Code. The prosecutor appealed, but the Paris Court of Appeal upheld the deductions. The prosecutor appealed, but the Supreme Court on 17 March 2021 upheld the Paris Court of Appeal. As I have explained, the finding of the Paris Court of Appeal was that the EMC “should be assimilated, in French law, to a measure of house arrest under the terms of the law” and “treated as electronically monitored house arrest, the duration of which is deductible from that of the prison sentence imposed, in accordance with the conditions of Article 142-11 of the Code of Criminal Procedure”. See A at §32 and see §31 above. These were the extradition cases which the Paris Prosecutor’s Office appealed from the Paris Correctional Court to the Paris Court of Appeal and again to the Supreme Court.

ii)

M Pejoine (February 2020). Meanwhile, in a report dated 5 February 2020 for the case of France v Miller, the statement of M Philippe Pejoine said: “Under French law, the time served on tag is equivalent to a custody or a remand measure and does actually count in full against any custodial sentence”. See A at §19vi.

iii)

Mr Miller (2020). Then in France v Miller itself, District Judge Zani at Westminster Magistrates Court discharged Mr Miller. Mr Miller was treated as having served his sentence by reason of his 4 hour EMC. See A at §19iv and vi.

iv)

Mr Peci (April 2022). Next, in France v Daniel Peci, District Judge Zani at Westminster Magistrates Court gave a judgment on 19 April 2022. Mr Peci’s was an 8 hour EMC later reduced to a 6 hour EMC. DJ Zani’s judgment recorded (at §72) that “counsel for the IJA ‘acknowledged that the French authorities have agreed that [Mr Peci] will be given credit for the entire period that he has abided by his curfew imposed as part of his bail conditions.” See A at §19iii; Doga at §18.

Mr Varey (May 2022). English lawyer Karen Todner (GSC Law) has described a court order in the Administrative Court (13 May 2022) in Frank Varey v Rennes Court of Appeal (France), quashing the order for extradition order, the ExAW having been withdrawn because Mr Varey “on tag” had “served the entirety of his sentence”. See A at §19vii.

vi)

Mr Esmaili (July 2022). The solicitor for the requested person in the appeal to the Administrative Court in Esmaili v France stated on 12 July 2022 that the ExAW had been withdrawn because Mr Esmaili was “deemed to have served the entirety of his sentence … by dint of him being subject to bail with an electronically monitored curfew of between 4-6 hours for a period in excess of the sentence”. See A at §6.

vii)

M Kempf (July 2022). French lawyer M Thibaut Kempf said in a statement dated 25 July 2022 that of 1,512 days of A’s 5½hr EMC that: “As a matter of French law, each of these days is to be treated as a whole day served of his French sentence”. See A at §9.

viii)

Ms Todner (November 2022). English lawyer Karen Todner (GSC Law) said in a witness statement dated 30 November 2022 that Mr Miller and Mr Varey were among nine requested persons whom she had represented, there being seven others, “all of [whom] … were given their time on tag in the UK as part of their sentence”. See A at §19v.

ix)

M Arnaud (December 2022). French lawyer M Etienne Arnaud said in a witness statement lodged on 2 December 2022 that Articles 142-11 and 716-4 “mean that under French law, days spent by a person on an electronically monitored curfew as one of their conditions of bail during extradition proceedings relating to a French prison sentence, will be counted as days served of that sentence. For these purposes there is no required minimum period of the daily curfew”. See A at §20.

M Arnaud (July 2023). M Arnaud said in a report dated 4 July 2023 that: “In my opinion and based on those decisions from the first and second instance courts, which eventually led to the 2021 decision [of the Cour de Cassation], even though Mr Doga’s indoors hours [midnight to 5am] are slightly shorter, I believe the conditions of his curfew would meet the criteria for an EMHA”. See Doga at §14.

xi)

Mme D’Harcourt (April 2025). French lawyer Mme Marie D’Harcourt says in her Legal Opinion in this case (2 April 2025): (1) Articles 142-11 and 716-4 of the French Code of Criminal Procedure are up to date applicable French law dealing with the effect of an EMHA. (2) There is no required minimum period of daily curfew. (3) She agrees with M Arnaud’s statement about the decision of the Cour de Cassation dated 17 March 2021. (4) Her opinion is that the 17th March 2021 decision of the Cour de Cassation clearly ruled that, under French law, English EMC should be regarded as French EMHA as defined under articles 142-11 and 716-4 which should be so regardless of the details and modalities of the curfew. (5) Her opinion that in application of Articles 142-11 and 716-4 and case law, the Appellant in this case would be seen as having effectively served his sentence, regardless of the number of hours of his curfew.

42.

In A, the Divisional Court said in A (at §41):

We … accept without reservation that, had the Respondent provided us with material information that went to undermine the case that the Appellant seeks to run, that information should and would have been given the close attention and respect that flows from the obligation of mutual trust underpinning the extradition arrangements; but there is no such information here either as to the proper interpretation of French law, or the criteria that the French court would apply or how such criteria would affect the outcome of any determination of the length of sentence that the Appellant has served.

As to the three French lawyers, the Court said (at §§44-45):

We reject the Respondent’s submission that the evidence is not unequivocal. It includes the evidence of three French lawyers, M Kempf, M Pejoine and M Arnaud, each of which is unequivocal in its terms. The combined effect of their evidence might have been diluted if the Respondent had provided any evidence either to contradict their expressions of opinion or to explain the criteria that the French court would apply so as to lead to a contrary conclusion. Had such evidence been provided by the Respondent, it would have been treated with the respect that is attributable as a result of the mutual trust and confidence that exists in the context of extradition arrangements… But in the absence of any reasoned opposition, there is no sound basis for rejecting their opinions, either singly or cumulatively.

As to the evidence about other cases, the Court said (at §46):

While we accept that the facts of the various cases about which Mr Cooper acquired evidence are different, it may be noted that the package of measures to which the Appellant was subject in England bears some comparison with the facts of the Cour de Cassation decision: in addition to the electronic monitoring of the curfew, the Appellant had to surrender his passport and identify card, was forbidden to obtain travel documents and was not to go to any international travel hub, including any international train station. The duration of his nightly curfew was initially 5½ hours, which bears comparison with the facts of Mr Esmaili's case (4-6 hours), and the cases of Mr Peci (6 hours) and Mr Miller (4 hours). Therefore, though comparison with the facts of other cases would not on its own have been sufficient, the exercise provides some support for the opinions expressed by the three French lawyers. We therefore reject the Respondent's submission that no regard at all should be had to the facts of other cases. It may also be noted that, as Mr Keith submitted in reply, the CPS has been aware of the reasons why the EAWs have been withdrawn in the other cases but, on behalf of the Respondent, has chosen neither to engage with those reasons nor to give disclosure in relation to those or other similar cases – the evidence of Mrs Todner providing strong support for an inference that there are others of which the CPS would be aware.

43.

Farbey J said this in Doga (at §§29-35):

As in the case of A, the respondent does not challenge the way in which M Arnaud applies French law to the appellant’s case. The March 2023 document from the Ministry of Justice does not deal with the appellant’s case in any individualised manner but amounts to a general statement of the law which appears … to be all of apiece with M Arnaud's general statement of the applicable law. As in A, the respondent does not provide any information about the criteria that would be applied by the Lyon Court of Appeal in determining whether the period of EMC would count towards the appellant’s sentence and does not give any indication about how the appellant’s bail conditions would be treated. This is not a promising baseline from which to invite the court to take a different approach to the Divisional Court in A. I have been provided with no reason to distinguish A on any point of law. I accept that each case turns on its facts and that there may be some theoretical reason on the facts why the appellant’s EMC would not be deducted from time to be served in France. I have, however, been provided with no evidence as to why that may happen… [T]here is no particularised evidence from the respondent about the appellant's personal situation…

The respondent has placed all the eggs in one basket, namely that the French court is alone competent to assess whether time on EMC should be deducted from the outstanding period of the appellant's prison sentence as recorded in the EAW. For the reasons given in A, that submission cannot succeed. As A makes plain, this court has a primary duty to ensure that the appellant's extradition would be compatible with his Convention rights. It will perform that duty by considering the evidence before it. In the absence of reasoned opposition to the evidence on which the appellant relies, the question of trust in what a requesting state says about a certain state of affairs does not arise. The principle of mutual trust and confidence does not have purchase when there is an absence of any evidence from the requesting state.

In the absence of any reasoned opposition to M Arnaud’s evidence, I accept his opinion that the conditions of the appellant's curfew would meet the criteria for EMHA. I am satisfied that the appellant has effectively served his sentence in full and … the appellant’s extradition would breach his Article 8 rights… As in the case of A, I would have reached the same conclusion on the basis of abuse of process.