QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE GOLDRING
| INGRID SUTEJ
|- and -
|(1) GOVERNOR OF H.M. PRISON HOLLOWAY
(2) GOVERNMENT OF SWITZERLAND
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
James Hines (instructed by the CPS) for the Respondent
Crown Copyright ©
Mr Justice Maurice Kay:
The allegations and background in more detail
The Rafael allegations
"5. Both parties agree to fund the project (as per the attached schedule on a 50/50 basis by each paying EITHER (sic) a) $450,000…upon signing to newco at its especially opened new account "Cocktail" on or before October 10 1997 OR b) the full $900,000 by each 50% member can be paid on signing.
6. Phase Three-$250,000 by each party will be paid to "Cocktail" on or before December 1 1997.
7. The parties will look to funding the project phases 4 and 5 by each paying in $750,000 in April 1 1998 and $700,000 in June 9 1998."
"This letter serves as confirmation of our letter of agreement of September 1997 to form a new company for a fragrance…but mainly serves to correct and expand on that letter…
With respect to the funding of the Company, we agree that to date, what I have brought to the company has a value of $1.5 million…this includes all the work and opportunities negotiated by me for the last 12 months. This will be credited as my investment in the company as opposed to putting in hard cash into Bordier [Bank]. Also, from October 1 1997 until the day the products are launched in the stores, or the Company is sold, or terminated for some reason, my work will have a value of $100,000 per month. This will also be credited as my investment in the company. On the occurrence of one of the events mentioned in the previous sentence and if there is a difference between our respective investments, the difference will be made up by the income received although we agree the difference should be kept very small if any…All my first class travel and accommodation- which will be extensive in the coming 2 years will be paid for by the Company. This will be as from January 1 1997."
"To my astonishment I discovered that I was the only one who had put funds into the bank account of Deux Amis and further that my partner without my knowledge and using the [Bordier] signing authority had transferred large sums to both her personal account…[at Bordier] as well as to a UBS account…I gave no authority…for these sums to be transferred to her and for purposes other than company business."
The Rafael committal charges
"That she intended to use the money to further Deux Ami (sic) SA's business project in relation to perfume…
That she intended to put into Deux Ami SA equal amounts of money as Georg Rafael to fund the same business."
"…I was relying wholly on representations made by [the applicant] both orally and by email that Georg Rafael was to invest in ICM through Filver. This latter is crucial since I knew Mr. Rafael's status and his business and I was comforted by his involvement. It is true to say that I met with [the applicant] and Mr. Rafael on a few occasions but we did not discuss the investment in Filver as I was advised not to do so by [the applicant] on the basis that Mr. Rafael was angry with me for not investing in either of the previous two ventures which she had put to me. I produce…emails suggesting that Mr. Rafael was to invest in Filver."
"…the Shareholders together will own 100% of the shares of [Filver] as Nina Brink desires to purchase from [the applicant]…thirty three and one third per cent (one third) of her shares, and…has committed to pay her [$2,400,000]…(of which Nina Brink…confirms that $1,400,000 will be paid on this day…and the balance…should be paid at a mutually agreeable date after the main agreement with [ICM] has been signed…leaving [the applicant] or [the applicant] and Georg Rafael together with two thirds of the shares of [Filver]…
…[the applicant] is entitled to, without any additional agreement from Nina Brink, enter into any agreement with Georg Rafael…to sell him up to one third of the total shares of [Filver] and cause him to be bound by the same terms and conditions of this agreement."
"I now know that Mr. Rafael had no involvement with Filver/ICM at all, contrary to the representations made to me by [the applicant] in writing and orally. Had I known the true position I would not have become involved myself and I certainly would not have sent any money to [the applicant]."
"When questioned [about the wording of the agreement]…Nina Brink simply stated that this is not a determining element that might weaken the likeliness of her claim. She doesn't even begin any explanation on the reasons which may have lead her to accept such wording. However the different press clippings produced by the parties show that Nina Brink is an experienced businesswoman. It thus appears unlikely that she wouldn't have reacted to such terms which clearly contradicted the determination she claims to have had, i.e., the determination to invest only at the condition to be sure that Georg Rafael would do so as well."
The Brink committal charges
"[The applicant] intended to use the money in Filver…to invest it in…ICM…
That Georg Rafael intended to invest and was investing through Filver…in…ICM…"
The Swiss Law
Alleged improper pressure applied on the applicant
"Simultaneously with payment of the Settlement Amount…[Ms Brink] shall deliver to [the applicant] the duly executed withdrawal letters of each and any actions and proceedings instituted against [the applicant]…such withdrawal letters relating to all proceedings…" (See the draft Brink agreement of 1 March 2001)
"…the offences Ms Brink asserts having been committed are of the kind which are automatically prosecuted by the State after denunciation with/without complaint.
However, in such commercial matters, when a criminal complaint is withdrawn, the State may, but must not, close the criminal matter."
"It was clear to me that he was using the criminal proceedings as a bargaining tool in order to exert maximum pressure on [the applicant] and her family to buy him out…"
"If the amounts claimed by Brink and Rafael were to be repaid then there would be no reason to continue with the extradition request and the matter would go away."
The alleged co-operation between Mr. Rafael and Ms. Brink
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that…..
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
In Re Osman, unreported, 25 February 1992, Woolf LJ said:
"In my judgment the term good faith has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement."
The authorities now make it abundantly clear that the good faith in question is not only the good faith of the requesting state and its prosecuting authorities. It extends to complainants and witnesses. In R (Saifi) v. Governor of Brixton Prison 2001 1 WLR 1134, Rose LJ stated (at page 1157):
"Accusation is broad enough to encompass the accusation of a witness or witnesses and the offence charged in consequence. By making a request for extradition, reliance is placed upon the evidence of any witness and the offence disclosed thereby. The protection afforded by the sub section would be rendered 'sterile',….if the issue of bad faith could be divorced from the underlying facts supporting the request. Certainly Sedley J in Re Murat Calis, unreported, 19 November 1993, examined the good faith of the complainant to determine the issue under section 11 (3)."
Thus, although this is a European Convention case and it was unnecessary for the District Judge to consider the sufficiency of the evidence, the issues raised under section 11(3)(c) do require this court to consider "the underlying facts".
"'unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."
As there is no suggestion that any organ of the Swiss state or its prosecuting authorities or the examining magistrate have acted in bad faith, the central issue in the present case is whether the accusations made against the applicant by Mr. Rafael and Ms Brink are made in good faith in the interests of justice. The burden is upon the applicant to establish on a balance of probabilities, that they are not so made. As Sedley J said in Murat Calis:
"Where the ground established by the applicant is that the accusation against him is not made in good faith in the interests of justice, it is possible but not easy to envisage a case in which it would be just or other than oppressive to use Lord Diplock's portmanteau term, fair….to return him to face that accusation."
It is now necessary to consider this application against that legal background.
"In good faith in the interests of justice"
(1) Mr. Rafael
(2) Ms. Brink
"is entitled to, without any additional agreement from Nina Brink, enter into an agreement with George Rafael or his designee, to sell up to one third of the total shares of the company…"
Secondly, Ms. Brink has failed to persuade the Swiss civil courts, at first instance and on appeal, to grant her a freezing order over the Applicant's assets. Applying a standard of proof which seems equivalent to a balance of probabilities, the civil courts rejected Ms. Brink's application, relying on the terms of the agreement and Ms. Brink's experience as a businesswoman. The hearings in the civil courts post date the committal at Bow Street.
MR JUSTICE MAURICE KAY: This judgment is a judgment of myself and Goldring J, who cannot be here today. In this case there will be judgment in accordance with the judgment that has been handed down this morning. Mr Garlick?
MR GARLICK: I appreciate that Goldring J is not in court. We have two applications. I would be content for them to be dealt with administratively at some time when your Lordship and Goldring J could confer. The first is in relation to costs, which I anticipate will not be a controversial matter. The applicant is not legally aided. From the terms of your Lordships' judgment it is clear that she has succeeded in relation to the charges brought by Miss Brink.
MR JUSTICE MAURICE KAY: Yes.
MR GARLICK: In those circumstances we would make an application under the Prosecution of Offences Act for defendants costs order in respect only of the costs referrable to preparation and presentation of the application for habeas corpus in relation to those charges. We do not, of course, make an application against the Secretary of State.
MR JUSTICE MAURICE KAY: No, simply a central funds order, and that is quite normal in an extradition case. That comes under the Act, does it not? Because it is a Divisional Court criminal matter it is within the Act.
MR GARLICK: It is section 16(5) of the Prosecution of Offences Act 1985.
MR JUSTICE MAURICE KAY: Yes, it would seem to me -- Miss Stratton, do you want to say anything about that?
MR GARLICK: My Lord, I have no observations.
MR JUSTICE MAURICE KAY: No. It seems to me that the court ought to make that order. Whether it ought to make it without Goldring J's express concurrence, I am not sure. Perhaps not. Can you wait for your order?
MR GARLICK: My Lord, yes.
MR JUSTICE MAURICE KAY: Yes.
MR GARLICK: The second application, I anticipate, is one which your Lordships would wish to confer about it. I am instructed and do make an application for permission to appeal to the House of Lords. We have drafted a question. The question is framed really in terms of paragraph 59 of your Lordships' judgment. The question merely reflects whether, given the finding of the court expressed in paragraph 59, whether or not that per se must almost necessarily amount to an accusation not being made in good faith in the interests of justice. It is a very short point. Your Lordship is of course aware, being habeas corpus in a criminal law matter it is not necessary for the question to be one of general public importance, but we do seek this court's permission for leave to appeal to go to the House of Lords.
MR JUSTICE MAURICE KAY: Obviously that will have to await discussion with Goldring J.
MR GARLICK: Of course.
MR JUSTICE MAURICE KAY: Do you wish to make some submissions in writing about it?
MR GALLICK: My Lord --
MR JUSTICE MAURICE KAY: We will not be here together -- I think each of us is sitting at some stage in the vacation but I think not at the same time. So it may be we are not in the same place at the same time until 1st October.
MR GARLICK: If it be convenient to the court we shall, within seven days, put in a very short skeleton argument in support of our application.
MR JUSTICE MAURICE KAY: Certainly. Miss Stratton, you may wish to respond to that or Mr Hines may wish to respond to it. When will he be in a position to deal with it? Is he going to be working in the second half of August?
MISS STRATTON: My understanding is that Mr Hines has returned from holiday. I do not know if he is going away again, but he has just come back.
MR JUSTICE MAURICE KAY: Yes. If I say that Mr Garlick serves his submissions on the court with a copy to Mr Hines, Mr Hines has seven days after first sight of those submissions to respond, and Goldring J and I will consider the matter. It is perhaps desirable that the decision is announced in court rather than administratively.
MR GARLICK: If your Lordship pleases.
MR JUSTICE MAURICE KAY: In those circumstances, I hope we could do that no later than the end of the second week in September. I know I am sitting that week and I think he is sitting in August. So we should have come to some view by then.
MR GARLICK: I am most grateful, thank you.
MR JUSTICE MAURICE KAY: Any other applications in that case?
MR GARLICK: No.
"Where a criminal complainant has an ulterior motive for making his complaint, in other words, his predominant motive in making his complaint is something other than a desire to bring the alleged perpetrator to justice, then is the accusation per se not made in good faith in the interests of justice?"