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, WC2A 2LL
		15th February 2006

Mr Justice NEWMAN :

1. This is an appeal pursuant to section 26 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Wickham sitting at Bow Street Magistrates' Court, ordering the appellant's extradition to Belgium on a European Arrest Warrant (EAW) for offences of money laundering allegedly committed between 1997 and 1998.
2. Belgium has been designated by Order of the Secretary of State as a "category 1 territory" pursuant to section 1 of the Act by virtue of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (S.I. 2003 No. 3333).
3. The facts asserted in the EAW can be summarised as follows: On 24^th March 1997 the appellant opened both an account with a stock/securities trader and a bank in Antwerp. He gave unlimited power of attorney to one Werner Smeyers in April 1997 and between 16^th May 1997 – 18^th August 1997 Smeyers deposited into the account the proceeds of his cigarette smuggling activities.
4. On 8^th January 1998 the appellant instructed the bank to transfer US$1,445,810 from his account to the account of an Irish company (Panway International Ltd), held with the same bank. This was followed by another transfer from his account to Panway International Ltd on 13^th January 1998.
5. On the 9^th October 1997 the appellant gave unlimited power of attorney to Smeyers. Between 8^th December 1997 – 5^th June 1998 Smeyers purchased securities using the account and funds representing the proceeds of Smeyers' criminal activities. The proceeds were cashed and converted into real estate.

CHRONOLOGY

6. On 15^th December 1999 the appellant, voluntarily and at his own expense, attended Antwerp at the request of the Belgian authorities for the purposes of an interview as a witness. The appellant answered all questions asked of him and provided a statement to the Belgian authorities. Between December 1999 and 15^th October 2004 when the EAW was issued by the Court of First Instance, Antwerp, the following occurred:

(1) On 24^th September 2002 Belgian police issued a report regarding "legally valid investigation acts", and

(2) On an unspecified date, an "order for arrest" was given in absentia against the appellant.

7. On 12^th January 2005 the EAW was certified by NCIS under section 2(7) and (8) of the 2003 Act. The appellant was arrested on 16^th February 2005 following his surrender at Chingford police station. On 17^th February 2005 he was granted bail. Thereafter the extradition hearing commenced and was completed on 7^th October 2005. Judgment was reserved until 31^st October 2005 when the District Judge ruled against the appellant and ordered extradition pursuant to section 21(3) of the 2003 Act.

ISSUES ON THE APPEAL

8. The appellant raised four grounds by his notice of appeal, but abandoned one of them at the hearing, The three remaining were:

(1) Whether the EAW contains the statement that the person in respect of whom it was issued is accused in Belgium of the commission of an offence specified in the warrant, as required by section 2(3) of the 2003 Act;

(2) Whether the EAW contains the information including any provision of Belgian law under which the conduct is alleged to constitute an offence, as required by section 2(4) of the 2003 Act; and

(3) Whether the extradition of the appellant is barred by reason of injustice and/or oppression arising from the passage of time since he is said to have committed the offences.

Ground 1

9. Section 2(3)(a) of the 2003 Act provides that the EAW should contain a statement that "the person in respect of whom the European Arrest Warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant …". The requirement is unequivocal; "If it does not do so it is not a Part 1 warrant and the provisions of that Part of the Act cannot apply to it …" (Office of the King's Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079, HL per Lord Hope of Craighead at paragraph 42).
10. The 2003 Act gives effect to the Framework Decision 2002/584/JHA of the Council of European Union (dated 7^th June 2002 and adopted by the JHA Council of the European Union on 13^th June 2002). There is a proforma EAW annexed to the Framework Decision. Following the terms of the proforma, the EAW issued against the appellant stated:

"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution, sentencing following conviction or execution of a custodial sentence or detention order.…".

11. Mr Summers, in the course of his careful argument for the appellant, submitted that, despite this statement, it was not clear at what stage the Belgian proceedings had reached and, moreover, the EAW was consistent with there being an ongoing judicially overseen investigation which the appellant was being required to attend. Put another way, he submitted that it was not clear from the EAW the appellant was being required to be extradited because he was an accused person.
12. In my judgment the EAW is clear. In this particular regard, the EAW follows the proforma and it is plain from the proforma that it can only serve one of two purposes – either it is accusatory or it records a conviction. The statement that the appellant is to be arrested "for the purposes of conducting a criminal prosecution" for an offence can only mean that his return is required because he is a person who is accused of a criminal offence and his presence is required for his trial.
13. Although the words "or execution of a custodial sentence or detention order" have not been deleted, the paragraphs of the warrant which follow state, under the heading: "decisions on which the warrant is based:

1. Arrest warrant or judicial decision having the same effect:

Nature: Order for arrest given in abstentia.

2. For an executable court order – not applicable."

Under the heading: "indications on the length of the sentence:

1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s): 5 years.

2. Length of the custodial sentence or detention order imposed – not applicable."

14. Further, under the heading "punishable offences", it states that the order "relates to a trial of 1 punishable fact" and thereafter a "description of the circumstances in which the offence was committed" is set out.
15. I am satisfied that these statements leave it beyond argument that this is an accusatory EAW. This ground of appeal, in my judgment, fails.

Ground 2

16. Section 2(4) of the 2003 Act provides, so far as is relevant, that:-

"(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 …".

17. This requirement gives effect to the mandatory requirement of Article 8.1(d) of the Framework Decision which states that the EAW shall provide "…the nature and legal classification of the offence…". The warrant provided for the "nature and legal classification of the punishable offence/the offences and the applicable statutory provision/code" and stated thereafter that 3 years was the maximum applicable sentence.
18. The EAW contains the list of "Framework Offences" following the categories of conduct set out in the proforma. The EAW refers to the circumstances as "the money … originated out of cigarette smuggling" and identifies with a mark X that the conduct amounts to "money laundering and the proceeds of crime", but the EAW does not refer to the provision of Belgian law ("statutory provision/code") which renders the conduct an offence under Belgian law. In the usual course, whilst the 2003 Act should not be taken as requiring the text of the law to be recited, section 2(4)(c) of the 2003 Act requires the provision to be identified so that it can be seen that the alleged conduct constitutes an offence under Belgian law. Having considered the warrant, in my judgment, no part of it can be taken as having identified the provision of Belgian law in the manner required under the 2003 Act. As Lord Hope observed (paragraph 28) in Cando Armas "there is no way back for the judicial authority of a category 1 territory…". It follows that since I am satisfied that this warrant does not conform to the requirements set out in section 2 of the 2003 Act, it is not a Part 1 warrant under the 2003 Act and in my judgment the warrant must be quashed.

Ground 3

19. Section 14 of the 2003 Act (which effectively re-enacts section 11(3)(b) of the 1989 Act) provides that:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be)."

20. Mr Summers submits that the delay in the present case is over 7 years. The offence was alleged to have been committed between 24^th March 1997 and 5^th June 1998. The part 1 warrant was not issued until 15^th October 2004. The magnitude of delay is such that it would be both unjust and oppressive to return the appellant to Belgium now after so many years: unjust because at this distance in time it will be virtually impossible for the appellant to defend himself against these allegations; oppressive because of changes in his circumstances within the 'cradle of events'. The relevant period runs from the last date of the offence (5^th June 1998) to the date of the extradition hearing (7^th October 2005).
21. The District Judge acknowledged that "persuasive arguments" existed, but concluded that if the appellant was extradited they could be deployed before the Belgian court. Having regard to the observations of Simon Brown LJ in Woodcock v Government of New Zealand [2004] 1 WLR 1979 DC at paragraph 21 that:

"… [section 14] that entitles, indeed requires, this court to have regard to whatever safeguards may exist in the domestic law of the requesting state to ensure that the accused would not be subjected to an unjust trial there …. we would have no alternative but to reach our own conclusion on whether a fair trial would now be possible in the requesting state if we were not persuaded that the courts of that state have what we would regard as satisfactory procedures of their own akin to our (and the New Zealand courts') abuse of process jurisdiction";

and the approach of the court in R v Secretary of State for the Home Department ex parte Patel [1995] 7 ALR 56, I am satisfied that, where there is no information or evidence as to how the court in the requesting state would approach an abuse of process argument, it is for this court to consider the risk of hardship or injustice which could arise.

Delay

22. It is clear that if the appellant was to be extradited to Belgium there would be some delay before he was tried. As it presently stands, he will have to answer for his conduct between March 1997 and June 1998. Nearly 9 years have elapsed since March 1997 and, assuming only a short delay before the trial starts, 8 years will have elapsed since June 1998. But more than that, if, as I have concluded, the warrant must be quashed because of its failure to state the provision of law under which the conduct alleged against him constitutes an offence in Belgium, the extradition process must commence again with further delay.
23. There has been no explanation for the delay between the appellant's attendance to be interviewed (December 1999) and October 2004 when the EAW was issued, save for the statement in the warrant: "Interruption of time limitation due to legally valid Investigation Acts, Police report … dated 24/09/2002". Without more explanation, this unexplained delay of nearly 5 years in respect of a case which, on a proper analysis, appears to be factually straightforward and within a short compass should be labelled: culpable delay. Further, the appellant having answered all questions asked of him was entitled to assume, in the course of such a passage of time, that his answers had laid the matter to rest. There is no indication that evidence has recently come to light. Nor have the Belgian authorities been unaware of his whereabouts. Indeed in March 2002 he offered in writing to be interviewed in the United Kingdom, but no reply was received to the letter.
24. If, as I have concluded must be the case, the EAW must be quashed, the "cradle of events" will extend, assuming a fresh warrant is issued in 2006, to a period of 8 years, for which period of delay the appellant bears no responsibility and which comprises significant culpable delay by the Belgian authorities. Culpable delay is a relevant factor in "borderline cases"; (see R v Governor of Brixton Prison ex parte Osman & Another (No. 4) [1992] 1 All E.R. 579 at 587 D-H).
25. In Kakis v Government of the Republic of Cyprus [1978] 1 WLR 772 HL, at 785 C-D, Lord Edmund-Davies stated:

"… the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return …".

In my judgment, the inaction of the authorities must be seen in the context of the appellant's co-operation by attending for interview and offering a further interview. Where there has been full co-operation and the requesting state has thereafter delayed for years, it can be inferred that the subject may be lulled into a sense of security. That I accept has happened in this instance.

26. In addition to the above, the personal circumstances of the appellant have changed. He bears a huge burden of responsibility for caring for his wife. I am satisfied on the material I have seen (it being unnecessary to rehearse it) that the extradition of the appellant could result in serious consequences for the wellbeing of his wife and would impose great burden on the appellant's family.
27. For the above reasons, I have concluded that this appeal ought to be allowed. The EAW must be quashed and there should be a declaration that the appellant's extradition to Belgium in respect of the conduct and offences specified in the warrant is barred by section 14 of the Extradition Act 2003.
28. LADY JUSTICE SMITH :  I agree.
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LADY JUSTICE SMITH: The judgment in this matter is now handed down. For the reasons given in the judgment of Newman J, with which I agree, we have concluded that the appeal should be allowed. The European arrest warrant is quashed and there is a declaration that the appellant's extradition to Belgium in respect of the conduct and offences specified in the warrant is barred by section 14 of the Extradition Act 2003. Are there any consequential orders?

MR SMITH: I represent the appellant again. There is an application for the appellant's costs. He was privately funded in the High Court, there being no means testing in the Magistrates' Court. The lower court was funded by the Legal Services Commission. The relevant section is section 61 of the 2003 Act.

LADY JUSTICE SMITH: Where will we find that? I have not brought --

MR SMITH: I beg your pardon --

LADY JUSTICE SMITH: The Act with me.

MR SMITH: I am grateful to my learned friend. May I hand it up?

LADY JUSTICE SMITH: Thank you very much. (Handed). As a matter of fact I think probably we have part of the Act in the papers in the case of Boudhiba. Thank you. Section 6?

MR SMITH: 61, my Lady. An order has been made by the High Court for the discharge of the appellant and therefore section 61(5) is engaged, which gives this court power to make an order for payment in the appropriate amount. Unless is the court is satisfied that there are good reasons why the full amount should not be paid -- that is section 61(7) -- the appropriate amount is either specified in the order or determined in accordance with regulations made by the Lord Chancellor -- that is 61(8).

There are no regulations at the moment in existence made by the Lord Chancellor, so, my Lady, my understanding of the situation is that section 61(8)(a) is engaged and the amount must be specified in the order.

I have a schedule of costs. My learned friend for respondent has seen it. I only have one copy. I shall hand that up now. (Handed). The front sheet is the total costs and thereafter it is broken down into individual pieces.

(Pause)

LADY JUSTICE SMITH: The total is, inclusive of VAT, £4,899.96.

MR SMITH: Yes, my Lady.

LADY JUSTICE SMITH: Yes. Miss Mannion.

MISS MANNION: I understand, my Lady, that the costs are from central funds if ordered, so I have no observations to make.

LADY JUSTICE SMITH: You have no observations as to the --

MISS MANNION: As to the amount.

LADY JUSTICE SMITH: -- as to the quantum. I must say, at first glance, it looks reasonable. (Pause). Thank you very much. We do make an order under section 61(5) in favour of the person whose discharge has been ordered, and we are satisfied, on looking at this schedule, that this sum is reasonable and we specify the amount pursuant to subsection (6) in the sum of £4,899.96.

MR SMITH: I am very much obliged.

LADY JUSTICE SMITH: Anything else?

MR SMITH: No.

LADY JUSTICE SMITH: Good. Thank you all very much. Perhaps that ought to remain on the file.

MR SMITH: There is a copy with those instructing me.

LADY JUSTICE SMITH: I will put that with my papers and return a well thumbed Extradition Act to Miss Ezekiel.