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

Mr Swain has argued that the present case is distinguishable from A and Doga. He says EMHA is an evaluative judgment informed by all the features of the EMC measure. He says the Appellant has not demonstrated that the Appellant would receive an Article 142-11 deduction of Qualifying Curfew. He emphasises that the French Supreme Court was upholding as lawful a concrete factual evaluation by the Paris Court of Appeal. He says there is no sound basis for saying, as Mme D-Harcourt does, that any EMC of any duration would necessarily constitute EMHA. The Respondent’s April 2025 further information concedes that the points it makes were addressed in even greater detail in the March 2023 Ministry of Justice which was insufficient for Farbey J in Doga. It says the prosecutor would first make a decision and then, if adverse and challenged, the decision-maker would be a French judge. That is the who (the French court) and the when (post-extradition). The what remains whether the EMC is evaluated to constitute EMHA. These are all the same as they were in A and Doga. The point is repeated by the Respondent that the French Supreme Court was not remaking the decision, but reviewing the legal legitimacy of the decision of the Paris Court of Appeal. That is not a new point.

The critical question remains the whether component (§5 above). The significance of the French Supreme Court lies in the fact of it having upheld the legal legitimacy of the clear conclusion of the Paris Court of Appeal (§30 above) on the facts (§41(i) above). I have the evidence of a series of French lawyers. I have a series of previous examples. They are all one way (§41 above). Then I have the fact that the Respondent through the Paris Prosecutor’s Office accepts that it cannot point to a single case in which the EMC has not constituted EMHA in applying Article 142-11 of the Code. The claim made in the April 2025 further information is that this absence of a single example is “of no consequence”, because of the IJA’s undisturbed “sovereign” function under the Article 26/624 mechanism. I have addressed the Article 26/624 mechanism, and have explained this Court’s own responsibilities (§§24-26 above). All of that was considered and addressed by the Divisional Court in A, back in December 2022. The Respondent continues to emphasise that the Qualifying Remand decision-maker is the French criminal court, and that the decision would be made after extradition has taken place. None of the points being made are new. I accept those points. They were made and considered in A and Doga.

The essential problem can be seen by taking the four components which I identified at the start (see §5 above). The Respondent continues to seek to answer a whether question by making and re-emphasising points which are about who and when. Ms Grudzinska for the Appellant points out that the analysis – of the all-important whether question – identified in A and reinforced in Doga (and now supported by Mme D’Harcourt) has not been answered by the Respondent’s new April 2025 further information, its refiled previous March 2023 further information, or the submissions that have been advanced orally or in writing. I agree.