King's Prosecutor, Brussels v Armas & Anor

Factual and Procedural Background

Belgium requested the surrender of Appellant, an Ecuadorean national who had been tried in absentia by a Brussels magistrates’ court on three counts relating to people-trafficking, facilitation of unauthorised entry and residence, and forgery of administrative documents. He was sentenced to five years’ imprisonment, none of which has been served.

A European Arrest Warrant (“EAW”) was issued in 2004. The warrant stated that the conviction was by default and that a retrial would be available should Appellant return and appeal.

Following arrest in the United Kingdom, the case came before a District Judge, who discharged Appellant on the basis that the offences did not satisfy s 65 of the Extradition Act 2003 (“the 2003 Act”). The Prosecutor appealed; the Divisional Court reversed the discharge and remitted the matter for continuation of the extradition hearing. Appellant then appealed to the House of Lords, giving rise to the present decision.

Legal Issues Presented

1. Whether the Belgian request satisfies s 65 of the 2003 Act—specifically, do the offences constitute “extradition offences” under subsection (2) or alternatively under subsection (3)?
2. How the term “the conduct” in s 65(2)–(6) is to be construed, particularly where part of the alleged criminal behaviour occurred in the United Kingdom.
3. Whether offences appearing in the European Framework List may be dealt with under subsections (3)–(6) when subsection (2) is unavailable.
4. What level of territorial nexus is required for an offence to be said to “occur” in the requesting state for the purposes of s 65(3)(a).

Arguments of the Parties

Appellant's Arguments

• The offences are Framework-list offences; therefore s 65(2) is the governing provision.
• S 65(2)(a) is not met because part of the alleged conduct took place within the United Kingdom; that renders subsection (2) inapplicable.
• Subsections (3)–(6) apply only to non-Framework offences; hence they cannot legitimate surrender in this case.
• Even if subsection (3) applies to Framework offences, its requirement that the conduct occur “in” the requesting state is unmet because some conduct took place outside Belgium.

Prosecutor's Arguments

• “The conduct” in s 65 refers to the behaviour complained of in the EAW; it need not be analysed by reference to foreign legal ingredients.
• S 65(2) fails solely because part of the conduct occurred in the UK; however, subsections (3)–(6) are cumulative and can include Framework offences where double criminality is satisfied.
• S 65(3)(a) requires only that some element of the conduct occurred in Belgium; exclusive territoriality is unnecessary.
• Therefore the offences satisfy s 65(3) and are extradition offences.

Table of Precedents Cited

Court's Reasoning and Analysis

The House of Lords, by a majority concurring opinion, adopted a purposive construction of s 65:

• Meaning of “the conduct”: Drawing on In re Nielsen, the court held that the phrase refers to the factual behaviour recited in the warrant. This avoids “an undesirable enquiry into the niceties of a foreign law.”
• Subsection (2) Inapplicable: Because part of the alleged conduct occurred in the United Kingdom, s 65(2)(a) (which requires that no part occur in the UK) was not satisfied.
• Subsection (3) Applicable: The statute does not demand that all conduct occur in the requesting state; it is sufficient that some of it did. Moreover, nothing in the text limits subsections (3)–(6) to non-Framework offences. Where these subsections apply, double criminality is reinstated, which the court assumed could be met here.
• Cumulative Structure: The list in s 65(2)–(6) is cumulative, not mutually exclusive. Therefore, failure under one limb does not preclude reliance on another.
• Territorial Nexus: Using domestic jurisdictional principles (e.g., Stonehouse and Megrahi), the court held that effects within Belgium suffice to satisfy s 65(3)(a).
• Formal Validity of the Warrant: Several judges expressed concern that the EAW did not expressly state that Appellant is “unlawfully at large” as required by s 2(5). While reserving final determination for the District Judge on remittal, the House indicated that courts may infer the required statement from accompanying material but should not fill gaps by speculation.

Holding and Implications

HOLDING: The appeal is dismissed; the matter is remitted to the District Judge to continue the extradition hearing.

Implications: The ruling clarifies that:

• Framework-list offences can fall within s 65(3) where s 65(2) is unavailable, provided double criminality is satisfied.
• Only part of the impugned conduct need occur in the requesting state to meet s 65(3)(a).
• Courts should interpret the 2003 Act consistently with the Framework Decision, favouring effectiveness while safeguarding statutory formalities (e.g., the “unlawfully at large” requirement).

The decision strengthens mutual recognition under the European Arrest Warrant regime and provides guidance for future extradition cases involving cross-border conduct.