QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
| SANJAY DHAR
|- and -
|NATIONAL OFFICE OF THE PUBLIC PROSECUTION SERVICE THE NETHERLANDS
James Stansfeld (instructed by CPS) for the Respondent
Hearing dates: 29th November 2011
Crown Copyright ©
Mr Justice King :
The European Arrest Warrant
The certifying of the warrant
"On behalf of the Serious Organised Crime Agency I hereby certify that the Part 1 warrant signed by Mr G Visser, Justice Officer on behalf of Public Prosecutor G C Bos, National Office of the Public Prosecution Service, The Netherlands on the 9th June 2011 and further annotated by Public Prosecutor Bos on 13 June 2011 for the arrest of Sanjay DHAR for one offence against article 420 of the Dutch Criminal Code was issued by a judicial authority of a category 1 territory which has the function of issuing arrest warrants"
The execution of the warrant
This court's powers on appeal: section 27 of the Act
The material questions
Section 2(2): the definition of a Part 1 warrant
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains –
(a) the statement referred to in subsection (3) and the information referred to in subsection (4)…
(3) The statement is one that 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 –
(a) the particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(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 the offence;
d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it;
"A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information"
Section 10: the test of dual criminality
'(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied:
(a) the conduct occurs in the category1 territory
(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom
(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment…'
The European Framework Decision
The grounds of Appeal
Issues raised before the District Judge
1. The European Arrest Warrant is invalid as when it was issued on the 9th of June it did not contain an indication of the judicial decision on which it was based as required by section 2 of the Act. It was thus void ab initio. This ground is translated in the Appellant's skeleton argument as whether the warrant is invalid for failure to comply with section 2(4)(b) of the Act;
2. The EAW is invalid as the conduct described in the warrant is not adequately particularised as required by section 2 of the 2003 Act. This ground is translated in the skeleton argument as whether the warrant is invalid for failure to comply with section 2(4)(c) of the Act;
3. The conduct described in the EAW does not satisfy the necessary requirement of "dual criminality" as required by section 64(3) of the Act. This ground is translated in the skeleton argument as whether the conduct for which the Appellant's extradition is sought is an extradition offence for the purposes of section 10 of the Act.
Consideration of these grounds
Ground 1: Whether the National Office of the Public Prosecution Service, the Netherlands, is a judicial authority for the purposes of section 2(2) of the Act
The status of the certificate
1. The issuing authority shall be the judicial authority of the Member State which is competent to execute a European Arrest Warrant by virtue of the law of that state.
2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute a European Arrest Warrant by virtue of the law of that state.
3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.
The significance of the designation of the issuing authority by another Member State
Ground 2 : Whether the warrant is invalid for failing to provide the information required by section 2(4)(b) of the Act, namely "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence"
"The European Arrest Warrant procedure is designed to provide a summary and speedy process for securing the extradition of accused and convicted persons between Member States… Whilst I appreciate that warrants are often directed to more than one Member State, and it may not be easy to provide a form of words that meets the requirements of each recipient state's national legislation, it should surely be possible, on receipt of the warrant in the United Kingdom, for it to be carefully checked to ensure that it complies with the requirements of the Extradition Act 2003. Then any defect can be remedied before time is wasted on what are likely to be costly and abortive proceedings"
55. In any event the critical time in my judgment when the warrant must contain the requisite statement and information so as to qualify as a valid Part 1 warrant under section 2(2) for the purpose of validating the executing procedures provided for under Part 1 of the Act, is when those procedures commence following the receipt of the warrant in this country by the designated authority (see again section 2(1) of the Act). Those procedures begin with the certification of the warrant under section 2(7), the existence of which is a precondition to the execution of the warrant by the arrest of the person to which it relates, or any further process under Part 1 if the person is arrested under the provisional arrest provisions of section 5. If at that time the warrant contains the statement and information required under section 2(2), then in my judgment it complies with the section in these regards.
"the amendment occurred prior to certification and is integral to the certificated EAW and the information contained in it is therefore information included in the EAW"
"The information in the EAW was included prior to certification, prior to any arrest and prior to the commencement of any procedures under the Act. This information has not been introduced from outside nor has it been introduced to supplement the warrant already under consideration by the Courts. It is and has always been a part of the warrant under which the Appellant has been arrested and has had his extradition ordered"
Ground 3: Whether the warrant is invalid for non-compliance with section 2(4)(c) of the Act
"(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"
" (d) the nature and legal classification of the offence
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person"
Mr Farrell when inviting the court to interpret the expression "conduct alleged to constitute the offence" appearing in subsection (4)(c) in the light of this Article, emphasises the use of the expression "the… degree of participation in the offence by the requested person".
"For my part, I do not see any ambiguity in the reference to the place where the incident is said to have occurred, but in any event the importance of the need to give particulars of a place is to enable the court to determine whether the conduct referred to amounts to an extradition offence; see the speech of Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas… at paragraph 30. The particulars here make clear that the Appellants are to face an allegation of raping a male minor in Calpe Alicante, Spain in March 2008. There has been no attempt to identify how the Appellants are in any way disadvantaged by the particulars provided or by the absence of particulars not provided. Adequate information is given to enable the Appellants to consider whether there is any statutory bar to their extradition. In my judgment the particulars contained in the warrant are adequate and comply with the requirements of section 2(4)(c)"
"…a balance must be struck between the requirement of particularity and the requirement that the conduct be stated concisely and simply. In determining the degree of particularity required in the description of the offence in the warrant, it is necessary to balance these competing considerations while at all times being mindful of the need to avoid unfair prejudice to the person whose extradition is sought"
The particulars in this case
The warrant relates to in total… 1… offence.
One of these individuals is Sanjay DHAR (DOB 24/08/1964 in Delhi) who operates within the United Kingdom. The Dutch investigation has identified that Singh has provided loans to DHAR via his wife's UK Bank account. DHAR has been identified as using a variety of mobile telephones and is regularly in contact with Singh.
Furthermore indications from the Dutch investigation are that Sanjay DHAR received funds within the United Kingdom that were paid to suspected drug traffickers in the Netherlands by Singh. On the 5th of May 2011 Singh and DHAR were identified as being in a telephone conversation discussing a sum of money of 40,000 Euros.
Surveillance by the Dutch National Crime Squad on the 16 May 2011 identified that DHAR was meeting with another of Singh's associates, previously arrested with 112,400 Euros. DHAR was identified in telephone contact with Singh shortly after his arrest, during which the cash and seizure were discussed. In addition DHAR made reference to having viewed paperwork from the seizure. The nature of the conversation concerns the rectifying the loss of cash by splitting the amount into smaller amounts. The Dutch investigation believes that DHAR is a key figure in Singh's illegal money laundering activities and is suspected of being part of the money laundering conspiracy within the Netherlands.
73. There then follows under the heading "Nature and classification of the offence(s) and applicable statutory provision/code", the particulars of the provisions of the applicable Article 420b of the Dutch Criminal Code, followed by particulars of the maximum available sentence. These particulars tell us that under Dutch law a person is considered guilty of the offence of "money laundering" if he, amongst other things, (a) hides or conceals the real nature of …an object, while knowing that this object directly or indirectly originates from an offence or (b) acquires possesses transfers or turns over or uses an object, while knowing that this object directly or indirectly originates from an offence.
The District Judge's Decision
"The EAW seeks the Defendant's extradition for the purpose of prosecuting him for an offence of money laundering …I do not accept the defence submission that the EAW is alleging a number of different offences inadequately particularised. The conduct said to constitute the offence of money laundering is particularised. It is alleged that the Defendant was involved with and handled money from Bakshish Singh who himself is linked to drug trafficking. In particular on one occasion the Defendant is alleged to have discussed with Bakshish Singh the seizure of money by the police and the splitting of the money into smaller amounts. There is no allegation against the Defendant himself of conduct amounting to drug trafficking or involvement in a type of banking which is illegal in the Netherlands. The locations of the money laundering allegations are particularised as being in the Netherlands and the United Kingdom. Dates of two alleged instances are given as 5 May 2011 and 16 May 2011. The relevant provisions of law in the Netherlands are provided in Box E.
I find reading the EAW as a whole and applying Sandi, it is clear that the offence for which extradition is sought is that of money laundering and the particulars in the EAW comply with the requirements of s.2(4)(c) of the Act"
Ground 4: The question raised under section 10: Whether the offence was an extradition offence; the issue of dual criminality under section 64(3)(b)
"the allegation is that this Defendant is a key figure in Singh's illegal money laundering activities and is part of the money laundering conspiracy in the Netherlands the money being benefit from criminal conduct, drug trafficking in the Netherlands…
If the conduct occurred in this jurisdiction it would constitute an offence of concealing or transferring criminal property s.327 Proceeds of Crime Act 2002 or assisting in the retention and control of criminal property under s.328 POCA 2002. Criminal property is defined in section 340 POCA 2002 as constituting a person's benefit from criminal conduct and the alleged offender knows or suspects it constitutes or represents such a benefit. The particulars state that the money from Singh derived from criminal conduct and provides particulars from which the necessary 'mens rea' of the Defendant can be inferred (see Zak…) (again the emphasis is my emphasis)."
Lord Justice Moore-Bick :