AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

Fecha: 11-Sep-2025

The submissions on behalf of Portugal

96.

In his helpful and well informed submissions Mr Hyman drew attention to the terms of Article 614 of the Trade and Cooperation Agreement between the European Union and the United Kingdom (“TACA”), Title VII of Part 3 of which deals with extradition arrangements between the United Kingdom and the European Union. Article 614 provides, so far as material, as follows:

“Decision in the event of multiple requests
1.
If two or more States have issued a European arrest warrant or an arrest warrant for the same person, the decision as to which of those arrest warrants is to be executed shall be taken by the executing judicial authority, with due consideration of all the circumstances, especially the relative seriousness of the offences and place of the offences, the respective dates of the arrest warrants or European arrest warrants and whether they have been issued for the purposes of prosecution or for the execution of a custodial sentence or detention order, and of legal obligations of Member States deriving from Union law regarding, in particular, the principles of freedom of movement and non-discrimination on grounds of nationality.
2.
The executing judicial authority of a Member State may seek the advice of Eurojust when making the choice referred to in paragraph 1.
3.
In the event of a conflict between an arrest warrant and a request for extradition presented by a third country, the decision as to whether the arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention.” (emphasis added)

97.

Mr Hyman emphasised the requirement for “due consideration of all of the circumstances”. He also referred to Article 16 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (“the Framework Decision”) which, he said, section 179 and section 44 of the 2003 Act were intended to implement. Article 16 also requires “due consideration of all of the circumstances, in particular/especially…” (emphasis added), in effect, the matters specified in section 179(3). And he noted that Parliament did not amend section 179 after the United Kingdom’s withdrawal from the European Union.

98.

Mr Hyman also drew attention to the principle in Criminal Proceedings against Petruhhin (C-182/15); [2017] QB 299 which applies to Member States such as Portugal which prohibit the extradition of their own nationals to third countries, and to the subsequent case law in which this principle was considered and refined. In Petruhin, the Grand Chamber of the European Court of Justice held that where an arrested person is an EU citizen but not a national of the Member State in which he is detained, but has exercised free movement rights conferred by Article 21 of the Treaty on the Functioning of the European Union, before executing an extradition request to a third State the authorities in the Member State of detention are required to inform the Member State of nationality of the extradition request and invite them to consider whether they wish to prosecute their own national in respect of the same offending. If so, an issuing judicial authority in the Member State of nationality is required to issue a European arrest warrant and the authorities in the Member State of detention are obliged to give precedence to it.

99.

Mr Hyman submitted that whilst the Petruhhin principle never applied to the United Kingdom as the 2003 Act does not prohibit the extradition of British citizens and whilst, in any event, the United Kingdom has left the European Union, the SSHD may still be “inspired” by the principle in Petruhhin. Prior to Brexit, an executing judicial authority in Portugal would have been required to invite the authorities here to consider whether they wished to prosecute a British citizen for the same offending prior to ordering his/her extradition to a third State.

100.

Mr Hyman said that although Portugal did not take a position on the legality of the SSHD’s stated approach to competing requests/warrants as a matter of English public law, the considerations listed in Article 16 of the Framework Decision were materially identical to those in Article 614 TACA and, in any event, are non-exhaustive, as is the list of considerations in section 179(3) of the 2003 Act. Moreover, the recent decision of the European Court of Justice in OP v Procureur de la Republique (Case C-763/22) confirms that Article 16(3) of the Framework Decision engages the Charter of Fundamental Rights of the European Union, Article 7 of which seeks to protect the rights enshrined in Article 8 ECHR. In OP the preliminary question which had been referred to the Court of Justice was:

“Does Framework Decision preclude the legislation of a Member State from granting a governmental authority the power to decide, between a European arrest warrant and a concurrent extradition request issued by a third State, which of the two is to be executed, without any possibility of legal remedy?”

101.

In that context, the Court of Justice said in the course of its judgment that:

“42.
Accordingly, Article 16(3) of Framework Decision 2002/584 must be interpreted as meaning that, in the event of a conflict between a European arrest warrant and an extradition request, a body of the executive may be competent to take a decision granting precedence to one or the other of those instruments.
43.
In the second place, the referring court is uncertain whether there must be a judicial remedy against decisions on precedence pursuant to Article 16(3) of Framework Decision 2002/584.
44.
It should be emphasised that that article does not comprehensively establish the procedure governing situations where there is a conflict between a European arrest warrant and an extradition request. It specifies only certain procedural aspects relating to the decision that one or other of those instruments takes precedence, leaving the Member States to choose the form of that decision and the time at which it must be made.
45.
In that regard, Article 16(3) states that the competent authority must give due consideration to all the circumstances of the case, in particular those specified in Article 16(1)... It follows that, although that authority has broad discretion when making its decision on precedence, the fact remains that it cannot dispense with the need to give consideration to the interests of the person concerned.
46.
In view of the right of the person concerned by the decision on precedence not to be subject to a decision taken in disregard of that discretion, it follows from the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union…[the right to an effective remedy] that the Member States must provide that that person has an opportunity for an effective judicial remedy capable of guaranteeing respect for the requirements referred to in the preceding paragraph of the present judgment.” (emphasis added)

102.

Thus, although the Court of Justice did not in terms decide that there was a right to make representations to the executive in relation to the issue of precedence, the basis for its analysis was that the interests of the requested person required to be considered. Mr Hyman said that OP was not binding on me but submitted that I could take it into account in coming to my decision.

103.

Mr Hyman went on to say that had Portugal been given the opportunity to do so it would have wished to make representations to the SSHD that the Warrant should proceed and the Request should be deferred. The points which Portugal would have made in support of this contention were partly made in written submissions from Ms Edite Pinho, Public Prosecutor in the Portuguese Judicial Authority, which were received by the Extradition Unit of the CPS on 13 June 2024, and can otherwise be gathered from the documents:

the offending on which the Warrant is based relates to money laundering and tax fraud in addition to the fraud which is the subject of the Request and is thus broader than the offending which is the subject of the Request;

ii)

the investigation in Portugal commenced on 20 November 2020. A charging decision was only made against the Claimant shortly before the Warrant was issued;

iii)

the Claimant’s acts which form the basis of the alleged offending physically took place in Portugal and he received the proceeds into a Santander bank account in Portugal;

iv)

the Portuguese State considers itself a victim of the Claimant’s offending owing to the nature of the tax offences;

there are victims of the Claimant’s offending in Portugal and across the world; indeed, cooperation was received from the Germany, Romania, Sweden and the United Kingdom;

vi)

the loss attributable to the Claimant is higher in the Warrant than in the Request;

vii)

it is important – from the point of view of the Claimant and Portugal, given its nationality bar to extradition - that the Claimant should be able to stand trial in his home country, where he is culturally assimilated and his mother tongue is spoken;

viii)

the length of sentence that the Claimant may receive if extradited to the USA is substantially greater than that which may be imposed in Portugal. In Portugal, he would be subject to a special regime because of his age at the point of commission and may receive psychiatric care. There are alternatives to pre-trial detention and the Claimant is likely to be released on bail pending trial;

ix)

the appropriate penalty and conditions of detention are relevant since the SCA has concluded that the Claimant is a victim of modern slavery. The USA need not respect the SCA’s decision and nor is it bound by similar obligations in international law;

third States can provide mutual legal assistance to Portugal. Portugal can prosecute own nationals for offending which touches other jurisdictions. There are provisions in place to facilitate videoconferencing between Portugal and the USA.