QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPEAL UNDER
SECTION 26 OF THE EXTRADITION ACT 2003
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SULLIVAN
| ABOUT FOFANA
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DEPUTY PROSECUTOR THUBIN
TRIBUNAL DE GRANDE INSTANCE DE MEAUX, FRANCE
Mr Ben Watson (instructed by GT Stewart) for the Second Appellant
Mr Peter Caldwell (instructed by CPS London) for the Respondent
Crown Copyright ©
The European Arrest Warrant.
"Description of the circumstances in which the offence was committed, included [sic]the moment (date and time), place so as the degree of participation of the wanted person in the offence..",
In May, 2004 Serviware SA located [in] France received by fax several orders from Brown Information Technology for a total amount of 60,225 Euros. The goods were to be paid for by a bank transfer from as [sic] the transfer of Lloyds TSB Account Fraudulent paperwork was then faxed to Serviware SA to confirm this transfer had occurred. The goods were sent to Great Britain and the bank transfer later proved to be false. The goods were lost to Serviware SA.
On 5 June 2005 Serviware SA was again contacted by a British company called Hire Phone Ltd ordering equipment of an amount of 55,600 Euros which was to be delivered to Great Britain.
The documents sent were checked by Serviware SA and they were able to definitively link this order with that from May 2004. The documentation faxed was identical to that used on the previous occasion.
The Prosecutor of the Republic of Meaux instructed the French Police services to get in touch with the British Authorities. The liaison Officer UCLAT at the National Criminal Intelligence informed us that Hire Phone Ltd does not exist. This confirmed the assertion that the fraud taking place was on behalf of an organised group, considering the value of the goods involved in their deception and the infrastructure that would be required to arrange their realisation."
The document, still under the heading of the description of "1 (one) offence", went on to outline the arrangements made for a controlled delivery to Serviware in June 2005, the attempted fraudulent obtaining by the use of a false instrument of this second consignment, all leading to the arrest of the two appellants when taking delivery of it the middle of that month. The information in the Warrant then reverted to specific mention of both the May 2004 and the June 2005 fraudulent conduct towards Serviware SA:
"The liaison officer UCLAT at the National Criminal Intelligence informed us that the search which took place at the location of the delivery resulted in the discovery of the Lloyds TSB banking documentation required to make the orders to Serviware SA on both occasions by Hire Phone Ltd and Brown Information Technology.
Finally, the information in the Warrant turned to much wider allegations of fraud by the two appellants, but fraud of the same nature, against a number of other French companies:
"It was also apparent that numerous other French companies had been the victim of the same fraud from the documentation found. There was also computer equipment seized, which it is believed was used to produce the fraudulent banking documentation. In that the victims are French companies, both the charged suspects are French and the fraud was committed in [sic] France companies, both the charged suspects are French and the fraud was committed in France as orders for goods were [sic] received there and the goods despatched from there, an enquiry into organised fraud was started.
Nature and judicial qualification of the offence so as [sic] the applying legal provisions: Fraud in an organised gang Offence provided for and punished by sections 313-1, 313.2. 313-3. 313-7 and 313.8 of the Penal Code."
. . . , between 1st day of May 2004 and 14th day of June 2005, conspired together to defraud Serviware SA by dishonestly representing that goods ordered from Serviware SA would be paid for by a bank transfer from a Lloyds TSB account, knowing that no such payment would be made." Within the jurisdiction of France
The criminal proceedings in this country.
Submissions on the main issue double jeopardy
. "11(1) the judge must decide whether the person's extradition to the category 1 territory is barred by reason of -
(a) the rule against double jeopardy; "
12. A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption
"(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;
(b) that the person were charged with the extradition offence in that part of the United Kingdom."
"The [executing] judicial authority of the Member State shall refuse to execute the European arrest warrant in the following cases:
(1) (2) if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; " [emphasis added]
Article 4, which provides grounds for optional non-execution of such a warrant, also does so by reference to the "same acts" the subject of the prosecution and the warrant.
"(3) The statement is one 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. "
And as to the information, sub-section (4) includes:
"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."
"A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party." [emphasis added]
i) Following an acquittal or conviction for an offence, which is the same in fact and law autrefois acquit or convict; and
ii) following a trial for any offence which was founded on "the same or substantially the same facts", where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show "special circumstances" why another trial should take place.
"(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly."
"In my opinion the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded."
i) the extradition offences cover a much longer time scale than those in the Southwark indictment;
ii) commission of the offence of conspiracy to defraud or a like offence in France of a fraudulent course of conduct, which is what the Warrant describes, is not contingent on proof of the conduct charged in the Southwark indictment, confined as it was to the June 2005 transaction, and to an allegation of using or having custody or control of a false instrument in relation to it; and
iii) prosecution of Fofana and Belise in France for the extradition offence could not result in their conviction in France of offences that were charged in the Southwark indictment, albeit that the documentation found in this country could be relied upon in France for the purpose of the broader allegation.
Conclusion on the main issue double jeopardy
"Thus I find that the double jeopardy rule does not apply in respect of these two defendants. I understand that neither defence counsel wish to raise abuse of process arguments nor indeed do they wish to make any further submissions. I therefore order the extradition of both defendants."
The adequacy and accuracy of the information in the Warrant
"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 background to the relevant provisions made in the 2003 Act is an initiative of European law and the proper administration of those provisions requires that fact to be borne firmly in mind. the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme. "
Mr Justice Sullivan:
LORD JUSTICE AULD: For the reasons given in the draft judgment, copies of which have been provided to the parties, both of these appeals are allowed. I should add that the draft that was seen by all counsel, I hope, did not contain one paragraph that it now does, paragraph 31. I thought I should draw your attention to it. It does not materially change the reasoning or the outcome of the appeals.
Yes, Mr Watson?
MR WATSON: There are no further applications, my Lord.
LORD JUSTICE AULD: I am afraid I do not have your name, I should --
MR WATSON: Ms Randall appears instead of Mr Pepper.
LORD JUSTICE AULD: Ms Randall, you appear on behalf of the appellant, Fofana, today, do you?
MS RANDALL: Yes, my Lord.
LORD JUSTICE AULD: Are there any consequential applications?
MS RANDALL: No, my Lord.
LORD JUSTICE AULD: Thank you for attending.