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
		27 June 2006

1. LORD JUSTICE DYSON: On 16 March 2005 a European Arrest Warrant ("the warrant") was issued by the Leoban High Court in the Republic of Austria against the appellant. Before I come to the terms of the warrant, I need to say something about the appellant and the background to this case. What follows is largely based on the appellant's witness statement.
2. The appellant is a 40 year-old German national and an engineering graduate. He is a specialist in the marketing, sale and construction of environmentally-sound family houses. He is the managing director of My Home Is My Castle Limited ("MHIMC"), a company which was incorporated in the United Kingdom on 4 December 2003 and is based in Pembrokeshire. He has lived in Wales since October 2002, having moved there from Austria with his wife and four children to set up a new business venture. On 4 September 2002, he had set up and incorporated in the United Kingdom Dr Livingstone & Feuker Limited ("Livingstone") for the marketing, sale and construction of environmentally-sound houses in the United Kingdom, Germany and Austria. On 14 March 2003, he resigned as director, and Wolfgang Ochmann was appointed in his place. This arrangement lasted until 9 July 2003 when Mr Ochmann left Livingstone, following a police report in the United Kingdom, Germany and Denmark that he had stolen €30,000 from the company. The appellant thereupon resumed his role as director -- indeed as managing director.
3. Following the theft, shareholder confidence evaporated and Livingstone collapsed. The shares were transferred to a holding company, Red Dragon Administration Limited, which was incorporated as a limited company in the United Kingdom on September 2003.
4. The appellant, together with Wolfgang Sikora, who is an experienced surveyor, decided to start another business, and on 25 October 2003, incorporated Dragon Bau GmbH in Austria. The appellant was registered as a temporary director. Dragon Bau took over Livingstone's work in progress. It was intended that Dragon Bau would operate in Germany and Austria under Mr Sikora's direction, and that MHIMC would operate in the United Kingdom under the control of the appellant.
5. The appellant ceased being a director of Dragon Bau and became an adviser to the company on 30 December 2003. On 28 June 2004, Mr Sikora was dismissed as company director of Dragon Bau and replaced by Ms Prudovic. In October or November 2004, an official complaint was first made against the appellant in relation to offences allegedly committed by him in 2003. The Leoban Public Prosecutor and the Leoban High Court conducted a comprehension investigation into the subject matter of the complaint. This led to the issue of court proceedings against the appellant on 29 December 2004 and the issue of the warrant.
6. The warrant relates to three alleged charges. It includes the following:

"Description of the circumstances in which the offence(s) was (were) committed, including the time, place and degree of participation in the offence(s) by the requested person.

(1) Peter von der PAHLEN is urgently suspected of having committed the offence of severe and professional fraud according to ss. 146, 147/3, 148, 2nd case Austrian Criminal Code by being the director of DR LIVINGSTON & FEUKER LTD in the period between 25/10/2003 and 30/12/2003, first as a managing director according to trade law and then as an actual director. In this capacity acting with fraudulent intention as of the year 2003 in Lower Austria, Vienna and Styris, intending to enrich himself unlawfully through the behaviour of the deceived persons and to receive a continuous income by repeatedly committing frauds

a) by deceiving various persons willing to buy a house pretending to sell single family houses thus making them pay advance payments,

b) by deceiving various companies on facts, that is by pretending to arrange for

building contracts, delivery of materials and making professional construction works seducing them act in a way that damaged them on their property to a total amount exceeding €50,000.

(2) Moreover, Peter von der PAHLEN is urgently suspected of having committed the crime of dishonest dealings according to s. 153/1 and /2 Austrian Criminal Code by having misused his authorization to dispose of foreign property in the period until October 2003 in Gänserndorf and Mistelbach acting as a director of DR LIVINGSTON & FEUKER LTD and as of 25/10/2003 acting in his capacity as a managing director and authorized signatory of DRAGON Bau GmbH, by taking unjustified money from the business account of DRAGON Bau Gmbh at the ERSTE BANK in 2130 Mistelbach in favour of My Home Is My Castle Limited, Clifford Administration Limited and Paris London Limited, or had intended to take it, thus causing a damage to DRAGON Bau Gmbh exceeding €50,000.

(3) Moreover, Peter von der PAHLEN is urgently suspected of having committed the crime of faked bankruptcy according to s. 156/1 and /2 Austrian Criminal Code by having taken the payments for works from some customers in the period until October 2003 in Gänserndorf and Mistelbach acting as a director of Dr LIVINGSTON & FEUKER LTD and as of 25/10/2003 acting in his capacity as a managing director and authorized signatory of DRAGON Bau GmbH, and then invoicing the DRAGON Bau GmbH partially with claims of suppliers from these works, thus pretending non existing liabilities of DRAGON Bau GmbH, and by doing so fictitiously reducing the property of the DRAGON Bau GmbH, that is at least having reduced the satisfaction of creditors, thus causing a damage exceeding €50,000."

7. It will be seen that the three charges alleged offences of dishonesty committed in 2003, the latest being in December 2003. On 22 August 2005, the warrant was certified by the National Criminal Intelligence Service ("NCIS") under section 2(7) and (8) of the Extradition Act 2003 Act ("the 2003 Act").
8. On 12 March 2006, the appellant was arrested at his home address in Wales under section 3 of the 2003 Act on the basis of the warrant. On 14 March, the initial hearing was conducted by the Bow Street Magistrates' Court, pursuant to section 4(3) and section 7 and 8 of the 2003 Act. The appellant was granted bail and the extradition hearing was set down.
9. On 8 May, District Judge Anthony Evans heard evidence and submissions which were directed to the question whether the appellant's extradition to Austria, being a category 1 territory, was barred on the grounds that it appeared that it would be oppressive to extradite him by reason of the passage of time: see section 14 of the 2003 Act. The district judge found against the appellant and ordered his extradition.
10. Since the date of the hearing, the appellant has produced a witness statement which contains material that was not before the district judge. In particular, he explains why he says that it would also be unjust to extradite him by reason of the passage of time. He gives evidence that in effect he was lulled into a false sense of security by the Austrian police, and that, as a result, he allowed important documents to be disposed of in mid 2005. He says the absence of these documents would prejudice his defence.
11. The appellant appeals against the decision of the district judge with the permission of Andrew Collins J. He has two grounds of appeal. The first is that the warrant failed to satisfy the requirements of section 2(4)(c) of the 2003 Act in respect of all three charges. Section 2 of the Act, so far as material, provides:

"(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 information referred to in subsection (4) ...

(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."

The section 2(4)(c) issue was not raised before the district judge.

12. The appellant's second ground of appeal is that extradition is barred on the grounds that it would be unjust to extradite him by reason of the passage of time since the date on which he is alleged to have committed the extradition offence (an argument not advanced before the district judge), and that the district judge reached the wrong conclusion on the question whether extradition is barred on the grounds that it would be oppressive to extradite him by reason of that passage of time.
13. I turn to the first ground of appeal. It is not in dispute that, in considering this ground of appeal, it is necessary to have in mind the principle that strict compliance with the terms of the 2003 Act is important. As Lord Hope of Craighead said in the Office of the King's Prosecutor, Brussels v Cando Armas and another [2005] UKHL 67; [2005] 3 WLR 1839:

"23 ... The system has, of course, been designed to protect rights. Trust in its ability to provide that protection will be earned by a careful observance of the procedures that have been laid down ...

"24 ... But the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. They are entitled to expect the courts to see that the procedures are adhered to according to the requirements laid down in the statute."

14. Mr Summers submits that, in relation to the first charge, no particulars of conduct are provided, no particulars are provided as to what advanced payments are alleged to have been received, from whom or why or how it is alleged that the appellant pretended to sell houses. So far as the allegation that the appellant obtained building materials and professional services from "various companies" and by "pretending to arrange for building contracts" is concerned, Mr Summers submits that no particulars of conduct are provided, no particulars are provided as to what building materials or professional services are alleged to have been received, from whom or why or how it is alleged that the appellant pretended to arrange for building contracts.
15. As regards charge (2), he submits that this appears to contain two separate allegations. The first is that, prior to 25 October 2003, as director of Livingstone, the appellant "dispose[d] of foreign property". As to this, he submits that no particulars of conduct are provided, no particulars are provided as to what the foreign property is or how he (the appellant) is alleged to have disposed of it or to whom or in what circumstances.
16. The second allegation, Mr Summers submits, to be found in charge (2) is that after 25 October 2003, as director of Dragon Bau, the appellant took "unjustified monies" from the company account of Dragon Bau on behalf of MHIMC and other companies "or had intended to take it". No particulars of conduct are provided. No particulars are provided as to what monies are alleged to have been obtained, why the monies are alleged to have been "unjustified", or indeed whether monies were obtained at all. So far as this last point is concerned, Mr Summers refers to the phrase: "or had intended to take it".
17. As for charge (3), which alleges that in his capacity of director of Livingstone and Dragon Bau the appellant was responsible for the "faked bankruptcy" of Dragon Bau by having taken payments for work from "some customers", then invoicing Dragon Bau partially with claims of suppliers from "these works" thus artificially inflating the liabilities of Dragon Bau, Mr Summers submits that no particulars of conduct are provided. No particulars are provided as to what invoices the appellant is alleged to have inflated or created in respect of which customers or suppliers or what "works".
18. In short, Mr Summers submits that the particulars contained in the warrant fall a long way short of those required by section 2(4)(c).
19. Ms Ezekiel submits that the information contained in the warrant in relation to each of the three charges satisfies the requirements of section 2(4)(c). She says that it is not necessary to identify the victims of the allegedly fraudulent conduct or the amounts of which they are alleged to have been defrauded. It is sufficient for the warrant to identify in general terms the criminal conduct alleged.
20. She says that, if we were to accede to the submissions of Mr Summers, we would frustrate the purpose of the European Arrest Warrants scheme, which is to provide a speedy means of extradition between member states of the EU. It would be unduly burdensome to expect the prosecuting authorities of requesting states to include in their warrants the degree of detail contended for by Mr Summers.
21. We have been referred to a number of authorities, including Palar v Court of First Instance of Brussels [2005] EWHC 915 (Admin) and Vey v The Office of Public Prosecutor of the County Court of Montlucon, France [2006] EWHC 760 (Admin). In my judgment, neither of these authorities purports to provide an interpretation of section 2(4)(c). They are no more than examples of its application. The language of section 2(4)(c) is not obscure and, in my judgment, it should be given its plain and ordinary meaning. The sub-section requires the warrant to obtain particulars of the circumstances in which the person is alleged to have committed the offence. These particulars must include four elements: (1) the conduct alleged to constitute the offence; (2) the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence. Elements (2), (3) and (4) are plain enough, although questions may arise as to how specific the descriptions of time and place need to be. The difficulties in the present case centre on element (1). The use of the introductory word "particulars" indicates that a broad omnibus description of the alleged criminal conduct, "obtaining property by deception", to take an English example, will not suffice.
22. How far does the warrant have to go? It would be unwise to attempt a prescriptive answer to this question, and I do not do so. But I am in no doubt that the warrant in this case did not go far enough. In the first charge, the warrant gave no details of the identity of the victims of the fraud, the number and size of the advanced payments (except that in aggregate they exceeded €50,000), or the nature of the fraudulent misrepresentation. Is it alleged that the appellant pretended to sell single family houses when he was in fact offering something else? Or is it that he pretended to sell single family houses when he was not offering anything for sale? A similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works.
23. In the second charge there are similar difficulties. What was the foreign property? How much money was unjustifiably taken? In answering the charge of obscurity, Ms Ezekiel submits that the whole of this charge must be read together, and that it contains only one allegation and not two, as suggested by Mr Summers. It seems to me that this is by no means clear. But what is clear is that the allegation is put on the basis that there was an obtaining of unjustified monies, dishonestly; or alternatively that the appellant "had intended to take it". How those two alternatives are to be understood without any amplification is totally unclear. No amplification or explanation is provided in the text of the charge.
24. In the third charge, there are similar problems of lack of particularity. As regards the question of clarity, Ms Ezekiel acknowledges that the language is obscure and suggests that one can make sense of the charge as a whole by deleting most of the first two and a half lines on the grounds of redundancy. I am unpersuaded that this is permissible in interpreting the warrant, having regard to the approach of relatively strict compliance that needs to be adopted, as was explained by Lord Hope.
25. In my judgment, these three charges are too vague, and as regards charges (2) and (3) too obscure, to satisfy the requirements of section 2(4)(c) of the 2003 Act. As I say, I bear in mind the need for strict compliance as explained by Lord Hope, and also have regard to the principle of speciality, which is referred to in Article 27.2 of the Framework Decision.
26. I would accordingly allow this appeal on ground (1). In these circumstances, I do not find it necessary to deal with the arguments arising on ground (2).
27. MR JUSTICE WALKER: I agree.
28. MR SUMMERS: My Lord, I am grateful. My Lord, may I please have an order for the appellant's costs to be assessed under the representation order. I believe that is the correct form of order I need to seek. It changes regularly enough. It used to be called legal aid taxation.
29. MS EZEKIEL: I have no observations to make, my Lord.
30. LORD JUSTICE DYSON: We will make that order.
31. MR SUMMERS: My Lord, I am grateful. My Lord, there is another matter. Under section 27(5), my Lord, if you allow this appeal, you must by statute order the appellant's discharge and quash the order for his extradition. Those are orders that my Lord is duty bound to make.
32. LORD JUSTICE DYSON: You do not dispute that, do you?
33. MS EZEKIEL: No, my Lord.
34. LORD JUSTICE DYSON: We make those orders too. Thank you very much.