Case No: CO/3370/2005
Neutral Citation Number: [2006] EWHC 760 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
On appeal from Bow Street Magistrates’ Court 
(Senior District Judge Workman)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 7th April 2006

Before :

LORD JUSTICE MOSES

MR JUSTICE HOLLAND

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Between :

	GERSINE NAZARET RAOUL VEY
(aka GERSINE NAZARET RAOUL TIM)
(aka GERSINE NAZARET RAOUL FITZPATRICK)	Appellant	
	- and -		
	THE OFFICE OF THE PUBLIC PROSECUTOR OF THE COUNTY COURT OF MONTLUÇON, FRANCE (A CATEGORY 1 TERRITORY)	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal WordWave Limited
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James Hines (instructed by Messrs G.T. Stewart Sols.) for the Appellant
Mark Summers (instructed by The CPS) for the Respondent

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Judgment
Lord Justice Moses : 
Introduction
1.	This is an appeal pursuant to Section 26 of the Extradition Act 2003 (“the 2003 Act”) against a decision of Senior District Judge Workman on 23 May 2005, ordering the extradition of the appellant to France pursuant to Part 1 of the Act.  The order was made following the issue of a second European arrest warrant on 4 February 2005, by Jean-Claude Clement, the Public Prosecutor of the County Court of Montluçon.  
2.	It will be necessary to analyse the chronology in some detail.  But, in order to identify the issues it is sufficient to say that the second European arrest warrant followed an earlier European arrest warrant which was thought to be defective since it did not identify the appellant as an accused person, nor did it assert that her arrest and extradition was sought for the purpose of being prosecuted.  That first European arrest warrant, issued on 8 November 2004, followed the issue of an arrest warrant on 12 May 2004 by the examining magistrate of the County Court of Montluçon.  
3.	Those warrants related to the alleged murder of a paraplegic boy.  He was, apparently, attacked on 18 May 2001 and died on 15 November 2003.  The appellant’s son was arrested in May 2001, originally confessed, subsequently retracted and blamed his stepfather.  When investigations revealed that that accusation was untrue he retracted both his confession and accusation and stated that it was his mother who had attacked the paraplegic.  Following that second accusation the examining magistrate issued the arrest warrant on 12 May 2004.
4.	The essential point of the appeal is whether the second European arrest warrant fulfils the requirements of Section 2(3)(a)(b) and Section 2(4)(c) of the 2003 Act.
5.	In order to resolve this issue one would have hoped and expected merely to have to consider what appears on the face of the European arrest warrant.  After all, simplification, clarity and trust should form the hallmark of the new extradition regime.  Simplicity and clarity are singularly lacking in this case.  Trust, of course, continues wholeheartedly although it requires, in the absence of simplicity or clarity, a greater effort of will than one would have expected. 
6.	The essential argument on behalf of the appellant is that her extradition is sought not because she is accused nor for the purpose of being prosecuted but so that she may be questioned.  The reality of the purpose for which her extradition is sought is underlined by the failure, contrary to Section 2(4)(c), to provide information as to the circumstances in which she is alleged to have committed the offence and her conduct in relation to the alleged murder.  The absence of that information merely confirms, so it was argued, that she is wanted for questioning not for prosecution.
Chronology and facts
7.	On 18 May 2001, a young paraplegic, Mourens, was found seriously wounded in his home in Montluçon, France.  He suffered skull and brain injuries and fell into a vegetative coma from which he never recovered.  
8.	Police investigations led to the arrest of the appellant’s son, Marvin Vey, then aged 15, who had been a friend of the victim.  During interview on 22 May 2001 he admitted attacking Mourens with a hammer following an argument over a debt.  
9.	On 14 September 2001, Marvin Vey retracted that admission and accused his stepfather, Norman Tim, of having attacked the victim.  Tim was the husband of the appellant.  Once this accusation was checked the police discovered that it was untrue.
10.	On 18 June 2003 Marvin Vey appeared before the juvenile court.  He again retracted his admission and the accusation against his stepfather.  This time he alleged that the appellant, his mother, had attacked Mourens.  The juvenile court postponed the hearing and ordered further enquiries.  It then appeared that the appellant had left France earlier in 2003 with other members of her family.  It was alleged that she had done so “clandestinely” because she had given no warning to what was described as “social or administrative” institutions.  But she had contacted her elder daughter.  Whether she had left clandestinely or not, it is apparent that her whereabouts were not discovered until late 2004.  
11.	On 15 November 2003 the victim died.  On 12 May 2004 a warrant of arrest was issued by the examining magistrate of the County Court of Montluçon alleging that the appellant was guilty of voluntary murder on a person who was particularly vulnerable.  
12.	On 8 November 2004 a European warrant for arrest was issued by the Public Prosecutor.  This contained a proforma seeking the arrest of the appellant to be handed over to the judicial authority:-
“with a view of penal proceedings or the execution of a sentence or security measure privative of freedom (“sureté privative de liberté”).
By that time it appears that the judicial authority had discovered the appellant’s address; it was stated on the face of the warrant.  But the warrant gave no further information, save as to the maximum sentence, other than saying that the decision on which the European warrant for arrest was grounded was the warrant for arrest issued by the examining magistrate on 12 May 2004.  
13.	The appellant was arrested on 25 January 2005 and the extradition hearing fixed to start on 7 February 2005.  She was placed on bail.  On 4 February 2005, in recognition that the first European arrest warrant was arguably defective, a second, replacement, European warrant was issued by the Public Prosecutor.  This was in identical terms to the first save that in addition to identifying the warrant for arrest, dated 12 May 2004, as the decision upon which the European warrant for arrest was grounded it alleged that the appellant was:-
“accused of a crime.  She has not been tried or sentenced for these facts.  The purpose of this warrant is to take proceedings against her.”
14.	The warrant continued under the heading :-
“Description of the circumstances under which the offence(s) have been committed, including the time (date and time), the place as well as the level of participation of the wanted person in the offences.”
The description described the attack on Mourens, his death and questioning of the appellant’s son on 22 May.  It recorded that:-
“He finally acknowledged the facts.  He explained he had swindled his friend, Jacques Mourens, by using his bank card.  On May 18 2001, the victim had him establish an acknowledgment of a debt (sic).  On the very night, by 6pm, he went upstairs to see his friend and, following an argument, he felt threatened.  He then took a hammer and hit several times on Jacques Mourens head, and then fled.
On September 14 2001, during the examination, he went back on his statement and accused his stepfather, Norman Tim, (at the time of the facts, Norman Tim was the husband of Mrs Tim Gersine née Vey and is not Marvin Vey’s father), of having hit with a hammer, but the checking of the police of Montluçon allowed to ignore this track.
On June 18 2003, at the hearing of the Juvenile Court of Moulins, Marvin Vey went back again on his declarations and, this time, accused his mother, Gersine Tim, of being the author of the knocks received by the victim.
The Court ordered additional information and postponed the judgment of the case.
The rogatory committee left to Mrs Hernandez, judge of the Juvenile court at the Regional Department of Judicial police in Clermont-Ferrand did not allow to find Gersine Tim, but to conclude after inquiry she had probably left the national territory with her family early 2003.  Indeed the hearing of her elder daughter, Marcia Vey, revealed that she had been contacted by telephone by her mother in January 2003, who had confirmed her intention of leaving France, yet in a quite clandestine way, since she had warned no social or administrative institution about her leave.
Since, the attempts of the officers to find her remained vain.”
15.	I have set out that description because it is relevant to the alleged defects in the warrant contrary to Section 2(4)(c)of the 2003 Act.  
The decision of the Senior District Judge
16.	On 18 February 2005 the Senior District Judge conducted an extradition hearing and in a reserved judgment of 2 March 2005 called for further information from the French authorities. Pursuant to Article 15 of the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member states (2002/584/JHA; OJ/2002/L190, page 1).  (“The European Framework Decision”).
17.	The decision of the Senior District Judge on 2 March 2005 records the contention on behalf of the appellant, by Mr Hines, that the purpose of the warrant was not for prosecution but for investigation.  The Senior District Judge pointed out, correctly, that there was no allegation that the appellant was acting jointly with her son.  He noted that the proceedings had not been withdrawn against the son.  He accepted the possibility that the warrant was sought in order to secure the interrogation of the appellant in order to establish whether the prosecution of her son should be continued or whether she herself could be prosecuted.  In the light of that view he sought further information.  
18.	On 17 March 2005 the Public Prosecutor provided the original arrest warrant, dated 12 May 2004, accusing the appellant of voluntary murder.  I shall return to the Articles to which that warrant refers.  It is important because in the first and second European arrest warrants it is described as the ground upon which those European arrest warrants were issued.
19.	On 23 March 2005 the judge ruled that the French domestic warrant, dated 12 May 2004, did not provide the necessary information and ordered that counsel should draft appropriate questions for the French authorities.  The extradition hearing was adjourned to 21 April 2005.  Those questions were drafted without the benefit of expert advice.  They read:-
“i     In relation to the legal process that is underway in France in respect of this defendant following the issuance of an arrest warrant by the examining magistrate, may that process properly be classified as part of the trial process in the sense that it may now only be brought to a conclusion by means of a judicial finding of (a) guilt, (b) innocence or (c) insufficiency of evidence?
ii       If the answer to (i) is no, why not?
iii    At this stage in the proceedings is Mrs Vey Accused or merely suspected?
iv     In the eurowarrant it is said that in the proceedings against Martin Vey “the court ordered additional information and postponed the judgment of the case”.  Is the “additional information” the investigation against Mrs Tim Gersine nee Vey, and if not what is the additional information?
v      Does judgment or verdict in the proceeding against Martin Vey remain postponed?  If not what is the present status of the proceedings?”
20.	Following a further adjournment on 3 May 2005, the French Public Prosecutor replied.  In answer to the first two questions he pointed out that in relation to the crime of murder the chief prosecutor cannot send the case straight to the Cour d’Assises but must “seize” (I suspect engage) the examining magistrate by way of an opening brief (réquisitoire introductif).  The opening brief is described as:-
“An act of formal proceedings (poursuite).”
21.	The answers then go on to assert that formal proceedings (poursuite) have begun against the appellant in respect of the murder and that the examining magistrate was seized of the matter by an opening brief from the chief prosecutor on 30 January 2004.  The answer then continues by pointing out that the examining magistrate proceeds with all acts of judicial examination and investigation that he considers useful in order to discover the truth.  At the end of that process the answers assert:-
“If the examining magistrate considers that the facts against the persons placed under judicial examination (mise en examen) constitute an offence classified as a crime under the law, he orders their indictment (mise en accusation) before the court.”
The answer continues:-
“Consequently at the end of the judicial examination and investigation currently underway if the examining magistrate considers that there is sufficient material demonstrating that Mme Vey has committed the murder of Jacques Mourens he will order her indictment…”
22.	It will be apparent from those answers that although it is asserted that the examining magistrate has placed the appellant under judicial examination, in other words she is “mise en examen” there is no description of how it was that she came so to be placed following the engagement of the examining magistrate through the process of the opening brief.
23.	Under question 3 it was asserted:-
“Mme Vey’s status is considered to be that of neither suspect nor accused.  The word “suspect” is not a legal term under French law but could correspond to a person under investigation (mise en cause) by the police during the investigations by the judicial police and therefore prior to the opening of the judicial examination and investigation (information judiciaire).
If there is sufficient information the person placed under judicial examination (mise en examen) is indicted (mise en accusation) at the end of the judicial examination and investigation (instruction).
The status of Mme Vey is between these two concepts.  She is a person placed under judicial examination (mise en examen), since the examining magistrate’s arrest warrant is the equivalent of placing a person placed under judicial examination (mise en examen).
Her being put under judicial examination (mise en examen) is as a result of the fact that there exists serious or corroborating material rendering it likely that she could have participated, whether as author or accomplice, in the commission of the murder in respect of which the examining magistrate is seized (articles 80-1 and 122 of the Code of Criminal Procedure).
The status of Mme Vey as a person placed under judicial examination (mis [sic] en examen) means that only the examining magistrate may conduct her interview and her presence is necessary for certain acts during the judicial examination and investigation (instruction).
During the judicial examination and investigation (instruction), Mme Vey, as a person under judicial examination (mise en examen), or her lawyer, may request the examining magistrate to interview her, question a witness, carry out a confrontation or visit the scene (article 82-1 of the Code of Criminal Procedure).”
24.	The answers, in relation to question 5, stated that the judicial examination and investigation against the appellant’s son was currently suspended awaiting the outcome of the judicial examination and investigation in relation to this appellant:-
“either a finding of “no case to answer” or the sending Mme Vey to the Cour d’Assises for trial.”
25.	It was not surprising that, in the light of the answers to question 3, the senior district judge ordered the appellant’s extradition.  He recorded that the answers to the questions revealed that under French law formal proceedings (poursuites) had commenced in respect of the murder.  He was, accordingly satisfied that the appellant was accused and her extradition was sought for the purpose of prosecuting her for murder (see his decision dated 23 May 2005).
The relevant statutory provisions
26.	Extradition Act 2003, Section 2:-
“(2)(a)	the statement referred to in subsection (3) and 				the information referred to in subsection (4),
(3)	The statement is one that –
	(a)	the person in respect of whom the Part 1 warrant is 			issued is accused in the category 1 territory of the 			commission of an offence specified in the warrant, and
	(b)	the Part 1 warrant is issued with a view to his arrest 			and extradition to the category 1 territory for the 			purpose of being prosecuted for the offence.
(4)	The information is –
	(c)	particulars of the circumstances in which the person is 		alleged to have committed the offence, including the 		conduct alleged to constitute the offence, the time and 		place at which he is alleged to have committed the 			offence and any provision of the law of the category 1 		territory under which the conduct is alleged to 				constitute an offence.”
27.	The information was given pursuant to Section 202:-
“Receivable documents
(1)	A Part 1 warrant may be received in evidence in 			proceedings under this Act.
(2)	Any other document issued in a category 1 territory 			may be received in evidence in proceedings under this 		Act if it is duly authenticated.
(3)	A document issued in a category 2 territory may be 			received in evidence in proceedings under this Act if it 		is duly authenticated.
(4)	A document issued in a category 1 or category 2 			territory is duly authenticated if (and only if) one of 			these applies –
		(a)  it purports to be signed by a judge, magistrate or 			      other judicial authority of the territory;
		(b) it purports to be authenticated by the oath or 			      affirmation of a witness.
(5)	Subsections (2) and (3) do not prevent a document that 		is not duly authenticated from being received in 			evidence in proceedings under this Act.”
The Issues
28.	The appellant contends that she is neither “a person accused” within the meaning of Section 2(3)(a) nor is her extradition sought for the purpose of being prosecuted for the offence of murder within Section 2(3)(b).  It is contended that her extradition is sought for no more than investigation.  In those circumstances the correct course is for the Public Prosecutor to make a formal request for assistance to the Home Secretary pursuant to the Mutual Assistance Guidelines, Second edition 23 December 2004.
29.	During the course of submissions before this court, it emerged that there was a serious issue as to whether the arrest warrant and the information provided amounted to sufficient particulars to satisfy Section 2(4) of the 2003 Act.  Although no reference to that subsection was made in the Ground of Appeal no objection was taken to the argument being raised.
Particulars pursuant to Section 2(4)
30.	This court must be careful, in considering whether particulars sufficient to satisfy Section 2(4) have been given, not to trespass upon consideration of the merits of the proposed prosecution.  The principle which underlines the Framework Decision (OJ 2002 L 190, page 1) and the 2003 Act is to recognise judicial decisions of other Member States and to accord them respect.  The 2003 Act was designed to be consistent with the Decision even though it did not merely implement those provisions.  Accordingly it is not for this court to enquire into the merits of the proposed prosecution (see Lord Bingham in Office of the King’s Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079, paragraph 8, page 1084 and Lord Scott, paragraph 52, page 1099).
31.	However, trust, which forms the foundation of the co-operation Member States expect of each other, also requires clarity.  Lord Hope in Cando Armas took the view that the court could draw inferences from the material available to it to determine whether the requirements of the statute had been satisfied.  But any gap should not be filled by mere guess work (see paragraph 48).
32.	In the instant case there is no clear statement whatever of the circumstances in which the appellant is alleged to have committed the offence nor of her conduct.  Those are requirements not only in Section 2(4)(c) but in Article 8(e) of the Framework Decision.  The space in the warrant provided for describing the circumstances of the offence and the level of participation of the wanted person, is mainly taken up with an account of the arrest, questioning, confession and accusations of the appellant’s son.  Those matters merely add to doubts concerning what precisely the circumstances were in which the appellant was alleged to have committed the offence of murder.  Still less do they throw any light on the conduct alleged.  The most which can be said is that there was an accusation by the appellant that she was:-
“the author of the knocks received by the victim.”
33.	Perhaps, there may be cases where an account of an accusation will provide sufficient particulars of the circumstances to satisfy Section 2(4) of the 2003 Act.  But not in this case.  The warrant identifies the three conflicting accounts given by the appellant’s son.  Firstly, that he struck the blows which left the victim in a pool of blood; secondly, that it was his stepfather; and thirdly, once that accusation had been proved to be false, that it was his mother who was the murderess.
34.	In those circumstances there is no information of the circumstances in which the appellant is alleged to have committed the offence and no statement of her conduct alleged to constitute the offence.  All that the European arrest warrant reveals is this history of accusation.  That that is the most which can be discerned from the information provided may be thought surprising.  If there exists, as this court is bound to accept, “serious or corroborating material rendering it likely that the appellant could have participated”, as the answer to question 3 asserts, it is curious that that material does not provide the foundation for the information which the statute requires.  After all, the information states that the appellant’s son took a hammer and hit the victim several times on the head.  Is it now alleged that the appellant took the hammer and hit the victim several times on the head?  What are the circumstances?
35.	The absence of the information required leads to the conclusion that the warrant does not comply with Section 2(4) of the 2003 Act.  Although Section 27 does not contain any specific reference to the requirements of Section 2(3) or (4) it was not disputed but that a failure to comply with those requirements goes to the validity of the warrant.  The validity of the warrant is the foundation for the judge’s jurisdiction.  In those circumstances both the District Judge and this court must consider any question of validity raised.  If the warrant is not valid there is no jurisdiction to order extradition under the Act.  In so saying I do not understand that I am expressing any principle which is controversial.  It was a principle followed by this court in Boudhiba v Central Examining Court No. 5 of the National Court of Justice Madrid Spain [2006] EWHC 167 Admin.  
36.	Mr Summers, on behalf of the Public Prosecutor, whilst accepting that it was legitimate for the appellant to raise this point, suggested that the appropriate remedy was to grant an adjournment, to see whether the Public Prosecutor could make good the defects in the warrant as to the requirements of Section 2(4) of the 2003 Act.  In my view, such an adjournment is not appropriate.  The absence of information is relevant to the issues which have arisen in relation to the purpose of the extradition.  If it was clear that the appellant was accused and the purpose of the extradition was to take proceedings against her, then the absence of information as to the circumstances of her killing Mourens would be inexplicable.  It is because the whole of this warrant is clouded in obscurity, that I am satisfied that yet another adjournment is not appropriate.
The requirements of Section 2(3)
37.	The appeal was primarily concerned with the contention that the appellant was not a person accused with in Section 2(3)(a) nor was her extradition sought for the purpose of being prosecuted for murder within Section 2(3)(b) of the 2003 Act.  Strictly, it is unnecessary to resolve this issue since, for the reasons given above, I would order the appellant’s discharge.  Since further proceedings may follow I should express some tentative views as to this issue.  
38.	At first blush, there would seem to be little room for doubt but that the appellant is a person accused.  The European arrest warrant, in its second version, asserts that she is:-
“accused of a crime”.
The presence of such a statement should be conclusive (see the provisional view of Lord Scott at paragraph 58 of Cando Armas at page 1100).  But in answer to question 3, the Public Prosecutor states that:-
“Madam Vey’s status is considered to be that of neither suspect nor accused.”
The question then arises whether, as Lord Scott puts it, her status can unequivocally be implied from the warrant and the answers which were provided pursuant to Section 202.
39.	In order to reach a conclusion it is important to bear in mind the principles identified by Lord Steyn in re Ismail [1999] AC 320.  The dichotomy is between those who are merely sought for the purposes of enquiry and those who are accused following an enquiry.  The different legal systems concerned in the Framework Decision require a purposive interpretation of “accused” (see Lord Steyn at page 327).  In the instant case the appellant contends that she is wanted merely for questioning, that she is not accused and that the purpose of the extradition is not to prosecute since no decision to prosecute has been taken.
40.	For the purposes of resolving this issue expert evidence was obtained on behalf of the appellant and on behalf of the Public Prosecutor.  It might have been thought that such evidence would be unnecessary in a system designed to ensure the speedy extradition of those accused of an extradition offence.  Having heard both witnesses in an attempt to alleviate the obscurity, little light has been shone on the gloom which remains pervasive.
41.	The essential issue between the experts is as to the stage which the proceedings against the appellant have reached.  The appellant’s expert, M. Serres, Avocat à la Cour de Paris, contends that she is not mise en examen.  She is therefore not accused and her extradition is not sought for the purposes of taking proceedings against her.  The Public Prosecutor disputes the contention that the appellant is not mise en examen.  The answers to the questions make it clear that she is.  But he also contends that it is unnecessary to resolve this issue.  The logically prior question is whether proceedings have commenced once an opening brief (réquisitoire introductif) has been referred to the juge d’instruction.  Since there is no dispute that the opening brief has been referred to a juge d’instruction, the stage of the proceedings has been reached which satisfies Section 2(3)(b).  
42.	This issue is clearly of importance.  It has implications far beyond this case.  It is, therefore, dangerous to reach any final conclusion when it is unnecessary for the purposes of this decision.  But it may assist in avoiding similar disputes in the future, possibly not just in the instant case, if I express my views.  The wording of the framework decision suggests that formal proceedings have started.  Article 1.1 provides:-
“The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.”
43.	The French version refers to the arrest and surrender:-
“d’une personne recherché pour l’exercice de poursuites pénales…”.
44.	The court is bound to interpret the French and English version in a way which reconciles them as far as possible and in order to realise the objective of the Framework Decision (see Brogan v UK [1989] ECHR 9 at paragraph 59).
45.	In the instant case there is no dispute but that “les poursuites” have started.  In both the joint report and the legal opinion of M. Serres it is accepted that the Public Prosecutor has requested the designation of an examining magistrate by way of an opening brief (réquisitoire introductif).  If that is sufficient to initiate the poursuites, and Section 2(3) is referring to one in respect of whom poursuites have commenced, then the requirements of Section 2(3) are satisfied.
46.	I am not prepared, at this stage, to reach any final conclusion as to whether the mere fact that an examining magistrate has been engaged by the operation of the delivery of an opening brief and subsequent designation by the President of the local court are sufficient to establish that the appellant’s extradition is sought for the purposes of being prosecuted.  It may well be that Section 2(3)(b) is designed to elide the concept of a prosecution with that of the initiation of formal poursuites.  But there is a particular reason why I am reluctant to reach any definitive conclusion about that.  If that is correct, it erodes the distinction between an extradition sought merely for the purposes of questioning and an extradition sought for the purposes of prosecution.  That erosion may be necessary in circumstances where the underlying Framework Decision enables extradition to take place to countries where questioning is part of a formal judicial process.  After all, in the instant case it appears that the investigation of the Public Prosecutor has ceased and the investigation has reached a stage where the matter has been handed over to an examining magistrate.
47.	But my reluctance to reach any definitive view is dictated by the circumstances of this case.  In this case the answers to the questions reveal that extradition is sought not because formal poursuites have been initiated following the opening brief but because the appellant has the status of mise en examen.  That much is clear as a result of the answers to question 3.  
48.	M. Serres, the expert called by the appellant, accepts that if the appellant has the status of mise en examen then extradition is sought for the purposes of conducting a criminal prosecution against her.  He does not pursue an alternative argument that it is only when, after that stage, she is mise en accusation, in other words “sent for trial”, that a criminal prosecution starts.
49.	The dispute centres upon M. Serres’ contention that appellant has not been placed mise en examen.  He seeks to make that argument good by reference to the Articles of the Criminal Code to which the original arrest warrant of 12 May 2004 refers.  Those Articles, he says, demonstrate that the appellant is not mise en examen.
50.	It should be recorded that there are two stages following the engagement of an examining magistrate by the réquisitoire introductif.  The first stage is for the examining magistrate to decide whether to regard the person, the subject matter of the proceedings, as témoin assisté or to place her under judicial examination (mise en examen).  According to M. Serres the examining magistrate can only make that decision after seeking to interrogate the person, the subject matter of the proceedings.  In the instant case, since the appellant has never been given the opportunity of interrogation, no decision has yet been made whether to regard her as a témoin assisté or to place her under judicial examination mise en examen.
51.	In support of those arguments M. Serres refers to Article 122 which confers power to issue an arrest warrant in respect of a person against whom there exists serious or corroborated evidence making it likely that he may have participated in the commission of an offence.  Article 122 requires an investigating judge to hear “as assisted witnesses” any persons against whom there has been issued an arrest warrant:-
“unless they are placed under judicial examination according to the provisions of  Article 116.”
52.	Article 116 has no application to this appellant.  It refers to those who escape during judicial examination.
53.	He further supports his view by reference to Article 80-1 which provides that the investigating judge:-
“may proceed with the placement under judicial examination only after having previously heard the observations of the person or having given him the opportunity to be heard, when accompanied by his advocate, either in the manner provided by Article 116 on questioning at first appearance or as an assisted witness…”.
The arrest warrant of 12 May 2004 referred to Article 131 which empowers an investigating judge, after hearing the opinion of the District Prosecutor, to issue an arrest warrant.
54.	The District Prosecutor, supported by Dr Steiner, who was called on his behalf, relied upon Article 134 which provides:-
“If the person cannot be arrested, an official report of the fruitless search is sent to the judge who issued the warrant.  The person concerned is then considered to be placed under judicial examination for the purposes of Article 176.”
Article 176 refers to the closing stages of the judicial examination when the investigating judge considers whether to charge a person under judicial examination with an offence.  
55.	It seems to me that the appellant, supported by M. Serres, has raised a serious doubt as to whether the appellant is properly to be regarded as having the status of mise en examen.  Analysis of whether she has that status does not seem to me to offend the principle prohibiting the courts in the United Kingdom from enquiring into the merits of a proposed prosecution in France.  Rather, such analysis is necessary in order to determine whether it has been established that extradition is sought for the purpose of being prosecuted.  Resolution of that issue is not easy when the process of questioning may itself be part of a judicial criminal procedure.
56.	The arguments and evidence as to foreign law leave me in a state of grave uncertainty as to the stage which proceedings have been reached.  Firstly, the purpose of Article 134, read with Article 176, is to enable charges to be pursued at trial in the absence of one whose arrest has been sought.  That does not appear to be the case here, when the appellant has been found.  Secondly, apart from the reference to the officers’ vain attempts to find the appellant, there is no evidence of any official report to the judge who issued the warrant on 12 May 2004.  Indeed, it is not clear whether the examining magistrate has considered the matter since he issued the arrest warrant on that date.  No one could have known whether a search would prove fruitless on 12 May 2004.  On the contrary, by November 2004 it had borne fruit.  Thirdly, there is real doubt as to whether Article 131 confers mise en examen status on the appellant.  We were provided with the decision of the Cour d’Cassation of 14 May 2002.  The court ruled that the mere service of an arrest warrant by an examining magistrate does not confer on the subject of that warrant the status of mise en examen (see page 2). 
57.	Mr Summers contended that if the appellant was correct then extradition to France would become unworkable or impossible in the case of serious crime.  There would be no procedure to ensure that a defendant, who has left France prior to a judicial examination, was the subject of such examination by a juge d’instruction.  In that event extradition could never take place.  I doubt the correctness of this submission.  But I need not decide it.  If, in truth, an appellant is not accused or his extradition is not sought for the purpose of prosecution, then the meaning of Section 2(3) cannot be solved by questions as to the unworkability of the system.  
58.	None of the material which causes doubt was before the District Judge.  The answers given to the third question were material falling within Section 202 of the 2003 Act. Those answers were information on which the District Judge understandably believed he could rely.  There was no basis upon which he could go behind those answers.  The District Judge was, as he himself thought, bound by the answers given to the third question.  
59.	Whilst, I repeat, it is not for this court to question or examine the adequacy of the evidence which forms the foundation of the request for extradition, it is the function of this court to be satisfied as to the stage at which the proceedings have reached.  Absent clarity remains the risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution.  Whilst that dichotomy might become blurred because of the difference in penal procedure, mere suspicion should not found a request for extradition.  All these considerations, in the context of the continuing prosecution against the appellant’s son, cause me disquiet.  There would be no reason for uncertainty and ambiguity if the material described as serious or corroborating was at least identified.  That is not to question the propriety of any prosecution or the adequacy of the evidence which forms its foundation.  But it would explain the circumstances in which the appellant was alleged to have committed murder when those circumstances apparently include the confession, withdrawn accusation and then a further accusation by her son. 
60.	Since I would allow the appeal on the basis that Section 2(4) of the 2003 Act has not been complied with, I do not believe it would be right to reach a concluded view in relation to Section 2(3).  But should this matter return to the courts following proper compliance with Section 2(4) I see no reason whatever why the matter should not be beyond doubt.
61.	District judges should not be expected to be placed under the burden of resolving disputes as to French procedural criminal law.  I would have expected the French authorities to be able to assist the UK liaison magistrate to remove this burden from District Judges.  It is, after all, wholly inimicable to the objective of the Framework Decision and the 2003 Act.  In short, the particulars ought to be founded upon a clear description of that which emerges from the serious or corroborating material.  By that means Article 8 of the Framework Decision and Section 2(4) can be clearly satisfied.  It should be possible to explain, with precision, the stage at which proceedings have reached notwithstanding that the appellant has never been interrogated.  I would allow this appeal.
Mr. Justice Holland:

62.	I agree, adding the following.  It could be beneficial to draw the attention of the U.K. Liaison Magistrate to this case and the resultant judgments so that she may assist the French authorities in anticipating and satisfying the stance of the English Court.  It may well be that preparing the European Arrest Warrant in terms that aim to satisfy S. 2(3) and (4) Extradition Act 2003 will prove doubly beneficial: ensuring that the instant case is one in which to initiate an extradition process, as well as meeting the requirements of a Court bound by the Act.  Further, the exercise involved is hardly demanding: simple paragraphs serving to show that the procedural position is such that the extradition is “for the purpose of being prosecuted for the offence”, and serving to set out “the particulars of the circumstances in which the person is alleged to have committed the offence”.  As appears from the judgment of Moses LJ simplicity and clarity are conspicuously absent from the documentation advanced to sustain the sought extradition leaving the procedural position obscure.