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
		25th June 2007

1. LORD JUSTICE HUGHES: This is an appeal against an extradition order made in the City of Westminster Magistrates' Court on 8th May 2007. The request for extradition came from Germany on an European Arrest Warrant. Germany is, of course, a category 1 territory for the purposes of the Extradition Act 2003. It follows from that the court is not concerned with whether there is a prima facie case or with any examination of the evidential sufficiency for what is alleged. The court is concerned, first, that a proper request be made, namely that there had been a Part 1 warrant (for that proposition see section 10(1)) and, secondly, that the offence is an extradition offence (for that see section 10(2)).
2. The appellant's case in the present proceedings is that this application fell at one or other of those two fences. Specifically, he contends: (1) the request did not sufficiently particularise the allegations and thus failed to satisfy section 2(4)(c) of the Extradition Act 2003; (2) that the offence or offences alleged were not extradition offences because, whilst the case was put under section 64(2) and/or section 64(3), both those categories of extradition offence require that the relevant conduct be committed in the requesting state and here, it is submitted, it was not. For the appellant, Mr Lakha QC makes an additional submission: (3) that, concentrating only upon section 64(3), to the extent that that is the alleged basis for the extradition order, the requirement of dual criminality which is contained at section 64(3)(b) is also not satisfied.
3. In a nutshell, the case against the defendant which is alleged by the German requesting authorities is that he was a Pakistani procurement officer. The allegation which is made against him is that he obtained in Germany, from a chemist or atomic engineer there, three components with the intention that they should be used for making nuclear weapons in Pakistan. The terms of the warrant are directly questioned and I should, I think, set them out. In paragraph (e) the warrant says this:

"Offences:

This warrant relates to three offences in total.

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, Nature and legal classification of the offence(s) and the applicable statutory provision/code:

Time/period of offence: 14 August 2002 to 24 November 2003

Place of offence: Ebsdorfergründ [that is of course in Hesse in Germany] and Pakistan

Facts of case: The subject is accused of the following:

In his capacity as the procurement agent of the Pakistan Atomic Energy Authority (PAEC), he ordered two detection systems, namely a liquid waste monitor (case 1) and a contamination monitor (case 2), from the chemist [then he is named], who ran a corresponding company [and that is named] and who is prosecuted separately. The equipment was exported to the Pakistani company [that is named] on 14 August 2002 and 22 September 2002. Furthermore, he [the appellant] ordered from [the German gentleman] an alpha-gamma spectrometry system (case 3) which was exported to the company [in Pakistan] ... on 24 November 2003. The respective recipients were involved in the procurement organisation of PAEC. It was the intention of the accused that the exported systems were to be used for Pakistan's nuclear weapons programme. The accused also knew that [the German supplier] absolutely should have asked the German Federal Office of Economics and Export Control (BAFA) to check the necessity of an export permission.

... the goods - which are suitable for the development of nuclear arms - went to institutions which basically support Pakistan's nuclear weapons programme [then they are named]. In view of the tensions between Pakistan and India, the peaceful co-existence of both peoples - consequently - was put at risk.

Moreover, the exports to key institutions of Pakistan's nuclear programme were of a nature to question the credibility of the non-proliferation policy of the Federal Republic of Germany. In the cases 1 and 2, the [German national] who is prosecuted separately, did not recognise the purpose/destination of the monitors exported.

Degree of involvement: Perpetrator

Nature and legal classification of the offence(s) and the applicable statutory provision/code..."

"Wilful aiding of the development of nuclear weapons by which the peaceful coexistence of people was endangered, coinciding with instigation and/or attempted instigation to illegal exportation of dual-use goods and technology in three cases."

There are then set out in some detail the legislative sources in Germany of the offences which are alleged. We need not set out the statutory provisions but it is perhaps necessary to note that what is alleged are offences contrary to the German War Weapons Control Act and also contrary to the Foreign Trade and Payments Act and associated legislation.

4. As Mr Lakha has helpfully explained, the principal question in the case revolves around the degree of particulars contained in the warrant of the conduct which is alleged against the appellant. His submission is that the offence here charged is in essence export without a licence. Says Mr Lakha, there is absent from the particularisation given any allegation that the appellant knew that no licence was obtained. Similarly, there is no allegation that he intended that there should be export without a licence. In effect, said Mr Lakha, it may well be that he legitimately relied upon the German supplier to obtain the necessary licence and there is no allegation that he did not. Mr Lakha points to the description of the components as dual use components and says that it should be inferred from that description that they are components which can be exported from Germany without a licence, at least if they are not destined for purposes such as are alleged in this case.
5. I am wholly unpersuaded by that submission. I should observe first that it is far from clear that the offences under German law which are alleged against this appellant are confined to unlawful export without a licence. It looks very much as if what is alleged against him, in addition to export without a licence, is the wilful aiding of the development of a nuclear weapons programme such as to put at risk the peaceful coexistence of peoples. However that may be, the allegations against the appellant certainly include allegations of complicity in export without a licence and, if the extradition order is to be upheld, it is necessary to examine Mr Lakha's submission in order so see whether that is or is not sufficiently particularised. It seems to me, without question, that it is. The offence is identified, though that of course is not by itself sufficient. For my part, I entirely endorse the observation of Dyson LJ in Von Der Pahlan v Government of Austria [2006] EWHC 1672 (Admin), to the effect that the requirement for particulars of conduct indicates:

"... that a broad omnibus description of the alleged criminal conduct; 'obtaining property by deception', to take an English example, would not suffice."

That was a case in which the nature of the fraud alleged was wholly obscure. It does not follow, and Mr Lakha does not submit, that every legal constituent of the offence which was alleged has to be set out in the arrest warrant. What matters is whether the particulars comply with section 2(4)(c), that is to say they give particulars of the circumstances in which the persons alleged to have committed the offence including the conduct alleged to constitute it, the time and place in which he is alleged to have committed it and any provision of the local law under which it is alleged to constitute an offence.

6. This warrant does the following. First, it alleges that the appellant intended that these components should be used for the purpose of a nuclear weapons programme. Whether or not a licence is required in German law for dual use components, whatever their intended use, we do not know and do not need to enquire. It is perfectly plain that it is alleged that the licence would be needed if the intention which this appellant is alleged to have had is present. Secondly, this warrant alleges that the appellant knew that a licence was required. Thirdly, the warrant alleges an illegal exportation of dual use goods. Fourthly, in relation to the identification of the relevant framework offence, the warrant alleges illicit trade in such material. More particularly, fifth, this warrant alleges that this appellant instigated the illegal exportation of the components. Sixth, this warrant describes the appellant's degree of involvement as that of perpetrator. Lastly, seventh, the warrant alleges that, at least in relation to the first two exportations, the German supplier was an innocent agent. That carries the necessary implication that it was the appellant who was responsible for the illegal exportation. I have not the slightest doubt for my part that the conduct which is alleged against this appellant is quite sufficiently identified in this warrant to satisfy the provisions of section 2(4)(c).
7. The second question which we will address is whether this is an extradition offence. For the purposes of both section 64(2) and section 64(3), in order for it to be so it must allege conduct which occurred in Germany. The House of Lords has recently considered that requirement in Office of the King's Prosecutor, Brussels v Cando Armas and others [2005] UKHL 67. The House was there considering the provisions of section 65 of the Extradition Act, which is the collection of provisions relating to those who have been convicted of offences rather than those against whom offences are alleged, which are the provisions from section 64 which we need to consider. But for present purposes the wording is identical.
8. Mr Lakha's submission is that, in order for this to be an extradition offence, the effects of the appellant's actions have to be alleged to have a causative link to the actual offence which was subsequently committed, as he puts it, by the German supplier. As he immediately recognises, that is in effect a submission which is extremely closely related to his particularisation submission with which I have just dealt. Says Mr Lakha, there is no allegation here of conduct by the appellant which occurred in Germany. The only thing that occurred in Germany was the export by the German supplier.
9. That submission also, I fear, I am quite satisfied, cannot here be made out. This is an allegation plainly in the warrant of obtaining in Germany equipment intended for the development of nuclear weapons and of the obtaining in Germany of equipment which was to be exported illegally. It is a case in which the appellant is alleged to have brought about from Pakistan the export out of Germany of components in a manner which is contrary to German law. That is an offence in Germany. Its effects are felt in Germany. It is an offence against German legislation, designed to prevent the proliferisation of nuclear weapons. It is, moreover, so far as one can see, at least in relation to two of the exports, an allegation of the use of a German national as an innocent agent. But even without that component in the allegation, I am quite satisfied that this would be an allegation of an offence of conduct occurring in Germany.
10. Lastly, I turn to section 64(3)(b). That subsection requires that if this allegation is to be justified as one of an extradition offence under section 64(3), that is to say not on the basis of it being a framework offence, what is usually referred to as the requirement of dual criminality must be demonstrated. Section 47(3)(b) of the Anti-terrorism, Crime and Security Act 2001 in this country makes it an offence for any person to develop, produce or participate in the development or production of a nuclear weapon. Under subsection (3) of the same section, participation in the development or production of a nuclear weapon includes any act which facilitates the development by another of the capability to produce or use a nuclear weapon or facilitate the making by another of a nuclear weapon knowing or having reason to believe that his act has or will have that effect.
11. Mr Lakha points to section 47(7), which provides as follows:

"This section applies to acts done outside the United Kingdom, but only if they are done by a United Kingdom person."

He says accordingly that, since the appellant is not a United Kingdom person, if one were to transpose the facts of this case into the United Kingdom, section 47(7) would not bite. I agree that if he were to transpose the facts of this case to England, section 47(7) would not bite but that does not mean that an offence under English law would not in those circumstances be committed. Section 47(7) is a section of which the purpose is to extend the jurisdiction of this country even to acts which are wholly done abroad and of which no part takes place and no part of the effects are felt in this country providing that they are done by an United Kingdom person. If the facts of this case were to be transposed and a scenario were to be postulated in which a Pakistani national ordered from England components which were intended to be used in the making of nuclear weapons, I have no doubt at all that, irrespective of section 47(7), that would be an offence against English law upon well-established principles of English territorial jurisdiction because the effects would be felt in England. The reasons are very clearly set out in the reasoning of Lord Hope in Cando Armas. It follows that I am of the clear opinion that section 64(3)(b) would in any event be met in this case and it follows from that that this was an extradition offence for the purposes not only of section 64(2), the framework offence subsection, but also subsection (3).

12. In those circumstances, this is an appeal which I would dismiss.
13. MR JUSTICE TREACY: I agree.
14. LORD JUSTICE HUGHES: Is there any further application? Thank you both very much indeed for your help. We are extremely grateful.