Thyer v Public Prosecutor At the High Instance Court of Paris, France

Factual and Procedural Background

The Appellant appeals against the decision of District Judge Crane ("the DJ") dated 4 May 2018, which ordered her extradition pursuant to a European Arrest Warrant ("EAW") issued by the Public Prosecutor of the High Instance Court of Paris on 9 March 2017 and certified by the National Crime Agency on 19 April 2017. The EAW concerns nine offences alleged to have occurred between 1 June 2015 and 20 February 2017 in various locations in France, relating to the manufacture and sale via the internet of two products marketed as medicines without proper authorisation. These products were advertised as having preventive or curative effects for serious diseases including cancer and autism.

The Appellant is charged jointly with her former partner, Defendant, who resided in the Channel Islands and operated a network manufacturing and selling the products through companies in the Netherlands and a site in France. Over 5,400 boxes were sold worldwide from France, misdeclared as cosmetics to customs, with proceeds estimated between 2-9 million. The EAW initially stated the Appellant received over 11 million in her bank account from two Dutch companies, but this was later corrected to 11,411.05.

The offences include swindling as a gang, illegal pharmacy practice, unauthorised marketing and advertising of medicinal products, fraud, smuggling, concealed work, illegal pharmaceutical establishment operation, and biomedical research without proper authorisation. The maximum sentence for the offences is 10 years' imprisonment. Defendant was separately sentenced in the UK to 15 months' imprisonment for related offences.

The Appellant applied for permission to appeal on eight grounds, including insufficiency of particulars in the EAW, errors concerning absence of prosecution decision, forum issues, breaches of Articles 3 and 8 of the European Convention on Human Rights ("ECHR"), proportionality, oppression due to mental health, and abuse of process. Permission to appeal was granted only on the Article 3 ground initially, with other grounds refused. The Appellant renewed applications on the refused grounds, excluding the forum ground.

The hearing was adjourned pending further evidence concerning the Article 3 issue, and the Appellant sought to amend grounds to argue failure of the dual criminality test.

Legal Issues Presented

1. Whether the Appellant's extradition would breach Article 3 ECHR due to prison conditions in France.
2. Whether the EAW provides sufficient particulars of the alleged conduct under section 2 of the Extradition Act 2003 ("the Act").
3. Whether the offences alleged satisfy the dual criminality requirement under section 10 of the Act.
4. Whether the Appellant's absence from France bars extradition under section 12A of the Act due to absence of prosecution decision.
5. Whether extradition would be disproportionate under section 21A of the Act.
6. Whether extradition would be oppressive due to the Appellant’s mental health under section 25 of the Act.
7. Whether extradition would breach Article 8 ECHR concerning private and family life.
8. Whether extradition would amount to an abuse of process under the statutory regime.

Arguments of the Parties

Appellant's Arguments

• The EAW lacks sufficient particulars, failing to specify the Appellant's precise conduct and mens rea, particularly regarding conspiracy and dishonesty.
• The Appellant's extradition would breach Article 3 due to inhuman and degrading prison conditions in French prisons, supported by reports of overcrowding, poor sanitation, and inadequate mental health care.
• The dual criminality test is not met as the EAW does not clearly link the Appellant to specific offences or establish equivalent English offences.
• The Appellant's absence is not the sole reason for the absence of prosecution decision; the investigation is at an early stage and less coercive measures have not been properly used.
• Extradition would be oppressive given the Appellant’s mental health, including depression and suicide risk, and the poor mental health care in French prisons.
• Extradition would breach Article 8 due to the impact on the Appellant's private and family life, especially considering her role as carer for her infirm mother following her father's death.
• Pursuing extradition represents an abuse of process as the French authorities relied on UK investigation material without providing sufficient particulars, and prosecution in the UK would be more appropriate.

Respondent's Arguments

• The DJ was correct to find the EAW sufficiently particularised, with clear allegations of the Appellant’s role in daily management of the fraudulent activities.
• There is no real risk of inhuman or degrading treatment under Article 3; French prison standards comply with European norms and assurances from French judicial authorities are reliable.
• The offences satisfy the dual criminality requirement, with equivalences identified under UK law.
• The Appellant's absence is the sole reason for the absence of prosecution decision, as the French authorities require her to be questioned in France before charging.
• Extradition is not oppressive; the DJ properly assessed mental health evidence and accepted that France can provide appropriate care.
• The Article 8 balancing exercise was properly conducted, with serious offences and substantial custodial sentence likely; the Appellant’s family circumstances do not render extradition disproportionate.
• There is no abuse of process; French investigations are independent and the Appellant is a charged suspect, not merely a potential one.
• Further evidence from the French judicial authority was properly admitted to clarify the Appellant’s conduct and prison conditions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully evaluated the Appellant's grounds of appeal, applying established legal principles and precedent.

Regarding Article 3 ECHR, the court applied the Aranyosi procedure and the principles from Shumba, considering the French judicial authority’s detailed assurances about prison conditions at Fleury-Merogis and Fresnes prisons. The court found no clear, cogent, and compelling evidence from internationally recognised sources or specific to the Appellant to rebut the presumption that France complies with Article 3 obligations. The reports relied upon by the Appellant were based largely on outdated public material and did not demonstrate a real risk of inhuman or degrading treatment for the Appellant.

On the sufficiency of particulars under section 2 of the Act, the court found that the EAW and further information provided clear details of the Appellant’s alleged role in managing fraudulent activities in France. The court rejected arguments that the conduct was insufficiently particularised or vague, concluding that the Appellant’s conduct was sufficiently described to infer dishonesty, and that the lack of explicit conspiracy allegations did not undermine the particulars.

Regarding dual criminality under section 10, the court accepted that the offences alleged correspond to offences under UK law, as detailed by the Respondent. The court allowed the late amendment to raise this ground and found the dual criminality requirement satisfied, supported by draft English charges and further information.

On section 12A (absence of prosecution decision), the court accepted the DJ’s finding that the Appellant’s absence from France was the sole reason no decision to charge or try had been made. The court rejected evidence suggesting alternative reasons, applying authority that the prosecuting state’s requirement to question the Appellant in person justified this conclusion.

In assessing proportionality under section 21A, the court agreed with the DJ that the conduct was serious, a substantial custodial sentence was likely, and no less coercive measures were available.

Regarding the Appellant’s mental health under section 25 and Article 8 ECHR, the court accepted the DJ’s findings that, despite the Appellant’s depression and suicide risk, French authorities would provide appropriate care. The court also found that the balancing exercise under Article 8 was properly conducted, taking into account family circumstances, including the recent death of the Appellant’s father and her role as carer for her mother. The evidence did not establish that extradition would be disproportionate or an unjust interference with private and family life.

Finally, the court rejected the abuse of process argument, finding that the French authorities conducted independent investigations and that the Appellant was properly charged, not merely a potential suspect. The use of UK investigation material did not amount to usurpation of the statutory extradition regime.

Holding and Implications

The court's final decision is to dismiss the Article 3 appeal and refuse the applications for permission to appeal on all other grounds.

DISPOSED OF.

The direct effect of this decision is that the Appellant's extradition to France is ordered to proceed as determined by the District Judge. No new precedent was established, and the court reaffirmed existing legal principles regarding extradition, Article 3 and 8 ECHR assessments, sufficiency of particulars, dual criminality, absence of prosecution decision, proportionality, mental health considerations, and abuse of process.