England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		3rd March 2005

1. LORD JUSTICE MAURICE KAY: There is before the court a second application for habeas corpus on behalf of the applicant, Ingrid Sutej. She is the subject of an extradition request from Switzerland. She was arrested on 20th June 2001 on a warrant issued under section 81(b) of the Extradition Act 1989. The formal request for her extradition was received from the Government of Switzerland in July 2001. On 2nd August 2001 the Secretary of State issued his authority to proceed under section 7(4) of the 1989 Act. The applicant was then committed by District Judge Reece on 21st January 2002, pursuant to Section 9(8) of the 1989 Act, on 27 out of the 28 charges upon which her committal had been sought.
2. Of the 27 committal charges, 23 were allegations of fraud or dishonesty in respect of which the alleged victim is a man by the name of George Rafael. The remaining four were allegations in respect of which the alleged victim was a woman called Nina Brink. In a judgment of this court, then comprising myself and Goldring J, on 21st July 2003, we discharged the applicant in relation to the Brink charges but not in relation to the Rafael charges. We are told that a subsequent application to the House of Lords for leave to appeal in respect of the Rafael charges was refused. The discharge in relation to the Brink charges was pursuant to section 11(3)(c) of the 1989 Act. As the general background to the extradition request is fully set out in the earlier judgment I shall not repeat it all here.
3. This second application is in respect of the Rafael charges. In a nutshell, Mr Garlick QC, on behalf of the applicant, submits that, following the earlier judgment, the Swiss Investigating Magistrate, M Tappolet, has manifested an intention not to disregard the Brink charges if the applicant is returned to Switzerland, that this offends against the speciality rule and, accordingly, the applicant should now be discharged in relation to the Rafael charges pursuant to section 11(3)(c) because they can no longer be said to be accusations made in good faith in the interests of justice.
4. I begin with the relevant statutory provisions. By section 6(4) of the 1989 Act, effect is given to the principle of speciality protection in these terms:

"A person shall not be returned or committed or kept in custody for the purposes of such return unless provision is made by the relevant law or by an arrangement made by the relevant foreign state ... for securing that he will not, unless he has first had an opportunity to leave it, be dealt with for or in respect of any offence committed before his return to it other than --

(a) the offence in respect of which his return is ordered;

(b) an offence other than an offence excluded by subsection (5) below which is disclosed by the facts in respect of which his return is ordered; or

(c) subject to subsection (6) below any other offence being an extradition offence in respect of which the Secretary of State . . . may consent to his being dealt with."

Section 11(3)(c) provides:

"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 ... 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."

5. It is common ground that the word "accusation" should be construed not solely by reference to acts and omissions by the Swiss police and prosecutor and the complainants, but is wide enough to cover bad faith on the part of a foreign court.
6. I turn next to the material which is said to establish such bad faith in the present case. On 4th August 2004 the applicant's Swiss lawyer, M Pascal Maurer, wrote to the Investigating Magistrate M Tappolet in these terms:

"You are, I am sure, aware of the judgment issued by the High Court of Justice, Queens Bench Division, in England, in the context of the extradition proceedings brought against Madame Ingrid Sutej at your request.

The case relates to a decision dated 31st July 2003 refusing Madame Sutej's extradition to Switzerland in so far as it relates to facts concerning Madame Nina Brink but authorising the extradition on the basis of the facts brought to light in the George Rafael case ... The result therefore is that the decision of the High Court dated 31st July 2003 is final in so far as the case relates to the Nina Brink issues. It seems therefore that the necessary conclusions can be drawn.

I am not sure whether this has been done voluntarily or at the request of one or other of the parties. But I would request formally in the name and on behalf of Madame Sutej that you clear the criminal proceedings file numbered P 1994 2001 of all documents, reports, written records and references connected or within the context of facts relating to the Madame Brink case.

To leave these elements on the criminal file of which you have charge would in effect be tantamount to failing to take due notice of a relevant decision of state and of legislation relating to the matter of extradition. Furthermore your conduct in retaining this material on file in proceedings which are bound to continue whatever the final decision will be which the authorities will take in response to your request for extradition in the George Rafael matter, would be such as to influence the administrative authorities and the courts to the prejudice of my client and in breach of her rights."

On 6th August 2004 M Tappolet replied in these terms:

"I note that Ms Sutej's extradition had been granted concerning the facts arising from the complaint of Mr Rafael but not [granted] for [the facts arising from] the complaint of Mrs Brink ... I have no reason to "clear" my file of elements connected to Mrs Brink. To my knowledge Ms Sutej has not been tried on the facts arising from the complaints of Mr Rafael and Mrs Brink. The English authorities have ruled only on my request for extradition.

I will make a ruling as to whether Mrs Brink is a party to the criminal case or not ["partie civile"] when Ms Sutej comes to Switzerland. Until that time Ms Sutej has no status as a party to the proceedings (neither as the indicted, nor as a party to the criminal case ["partie civile"])."

7. That exchange of correspondence has given rise to further witness statements from the applicant and from M Maurer. In her witness statement dated 21st September 2004, the applicant states:

"In relation to the reply from M Tappolet dated 6th August, I am advised (by my Swiss lawyers) that the reference to "the file" in the third paragraph refers to the criminal proceedings which M Tappolet is conducting against me. The term "partie civile" refers to the victim of an alleged criminal offence and that it raises within the criminal proceedings a civil claim arising from a criminal offence committed by the person being prosecuted. As such, the partie civile is a party to the criminal proceedings and has a right to actively participate and affect the course of the criminal proceedings and to appeal against the Inquiring Magistrate's decisions."

8. The evidence of M Maurer in a statement dated 1st March 2005 includes this passage:

"It is my understanding that it is clear following M Tappolet's letter that he will continue to deal with and investigate the allegations made against Ingrid Sutej by Nina Brink. He will decide whether Ingrid Sutej should be indicted for the facts contained in them once she has been produced before the Swiss courts. The point when the criminal proceedings against Ingrid Sutej for matters in relation to Nina Brink will end is therefore uncertain and will not finally be determined until after she has been produced before the courts. This is despite the High Court ruling that the request for her extradition to Switzerland be allowed only in respect of the allegations made by George Rafael and specifically not for Nina Brink. This also means that M Tappolet can take into account the Nina Brink allegations evidentially in the George Rafael case. Even if Ingrid Sutej is not indicted, which is not certain, in relation to the allegations made by Nina Brink, the factual evidence arising from her allegations may be used to support an assertion that she has a tendency to be dishonest in her public business dealings."

9. As I have indicated, the submission made by Mr Garlick by reference to the exchange of correspondence with M Tappolet and those witness statements, is that M Tappolet is manifesting bad faith and, in particular, is manifesting an intention to disregard speciality protection. For my part I do not consider that the terms of M Tappolet's letter justify the interpretation put upon it by that submission, or by the recent witness statements of the applicants and M Maurer. The Investigating Magistrate has made no ruling which manifests an absence of good faith, nor has he indicated that he will disregard the applicant's speciality protection. All he has said is that he will make a ruling if and when the applicant is returned to Switzerland. That country is of course party to the European Convention, Article 14 of which secures speciality protection.
10. If the Secretary of State decides to return the applicant to Switzerland, a decision which he has yet to make, it is to be assumed that he will only do so in respect of the Rafael charges. If the applicant is tried on those charges, I must assume that she will be tried in accordance with the Swiss law of criminal procedure and evidence. To the extent that the Swiss law differs from our own, for example, by permitting one person's civil claim to be attached in some way to a criminal prosecution of another person's allegation of fraud, so be it. That does not begin to provide a foundation for an argument based on withdrawal of speciality protection.
11. On behalf of the respondents, Mr Hines refers to a line of authority beginning with the case of Davison, 77 Cr.App.R 309, proceeding by way of Ex Parte Ross Munro [1967] 1 QB 620, and culminating in the case of Kashanu [2002] 2 WLR 907. I derive particular assistance from the judgment of Rose LJ in Kashanu, especially the passage at paragraph 33 which is in these terms:

"Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues. Self evidently, extradition contemplates trial in another jurisdiction according to the law there. It is there that questions of admissibility, adequacy of evidence, and fairness of the trial itself will be addressed, and if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive's return."

12. Of course, if there truly were grounds for considering that, on a balance of probabilities, the Swiss examining Magistrate may have manifested bad faith, then I entirely accept that section 11(3)(c) could be brought to bear and serious consideration would have to be given as to whether it would be unjust and oppressive to return the applicant to Switzerland. However, in my judgment the material before us falls a long way short of that. On that simple ground I would therefore dismiss the present application.
13. In the circumstances it is not necessary to consider a further submission of Mr Hines that in any event speciality protection does not necessarily avail a returnee in perpetuity. One can point to Article 14(1)(b) of the European Convention, which is reflected in section 6(4) of the 1989 Act, to suggest that M Tappolet would be entitled to adopt a wait and see stance in relation to the Brink allegations pending the conclusion of the trial on the Rafael allegations. That may be so, but it is not clear to me that that is the stance being adopted by M Tappolet. It is highly probable that he is simply waiting until the applicant is returned before making any decision. As I have indicated, that he is entitled so to do.

Finally, I should record that although we were provided in advance with copies of a more recent letter from M Tappolet to the CPS and we have read it prior to the hearing, we were told this morning that for technical reasons Mr Hines no longer seeks to rely upon it. In the circumstances I have disregarded it.

14. MR JUSTICE MOSES: I agree.
15. MR HINES: My Lord, I have an application for costs in the sum of £1,500 plus VAT, which I make £1,700.
16. LORD JUSTICE MAURICE KAY: Mr Garlick, anything to say about the principle or quantum?
17. MR GARLICK: My Lord, no, thank you.
18. LORD JUSTICE MAURICE KAY: You may have an order in those terms.
19. MR GARLICK: My Lord, I have not had an opportunity to discuss this with my junior or those instructing me or my main client. May we have permission to -- if advised and we come to the conclusion we would invite you to consider granting us permission to go to the House of Lords. May we have permission to submit a proposed question in writing? I have not formulated a question yet, nor have we decided whether it would be appropriate, but I do not know if the court is going to be presently constituted --
20. LORD JUSTICE MAURICE KAY: My Lord and I are together until a week tomorrow. If you would like to think about it if there is a question you wish us to consider. Wednesday?
21. MR GARLICK: Thank you, I am grateful.
22. LORD JUSTICE MAURICE KAY: On the face of it it does not seem very promising. Thank you.