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
		7th November 2008

1. MR JUSTICE GROSS:

Introduction

Mr Parveen, also known as Mr Rana, to whom I shall refer as the appellant, appeals against the decision of District Judge Tubbs made on 26th August 2008 to send him to Austria on an European Arrest Warrant (to which I shall refer as an EAW) on charges of aggravated professional fraud.

2. For the appellant, Ms Barnes, to whom I was grateful for her submissions, advanced two grounds of appeal: (1) the EAW contained insufficient particulars and so does not comply with section 2(4)(c) of the Extradition Act 2003 ("the Act"); (2) if that be right, it cannot be said that all the offences are extradition offences so that the requirements of section 10 and 64(3)(a) of the Act are not satisfied. Ground 2 is in fact contingent on Ms Barnes' success on ground 1. If ground 1 fails, then ground 2 falls away. Both grounds of appeal were resisted in a very careful and helpful skeleton argument prepared by Mr Watson, appearing before this court on behalf of the respondent, upon whom in the event it was unnecessary to call.
3. Insofar as material, the Act provides as follows. Section 2:

"Part 1 warrant and certificate

(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.

(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 statement referred to in subsection (3) and 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..."

Section 10(2):

"The judge must decide whether the offence specified in the Part 1 warrant is an extradition offence."

Section 64 "Extradition offences: person not sentenced for offence":

"(3) The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied—

(a) the conduct occurs in the category 1 territory..."

4. As is common ground and needs no elaboration, the Act was intended so far as possible to give effect to the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, to which I shall refer as the Framework Decision. Insofar as material, the Framework Decision provides as follows. Recital (5):

"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre-sentence and final decisions, within an area of freedom, security and justice."

Recital (8):

"Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender."

5. Article 1:

"Definition of the European arrest warrant and obligation to execute it

1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision."

Article 8:

"Content and form of the European arrest warrant

"1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:

...

(e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person..."

The arrest warrant

6. Without more ado I come to the EAW. It was dated 6th June 2008 and was certified by SOCA on 9th June 2008. There is no dispute that Austria is a category 1 territory for the purposes of the Act so that Part 1 of the Act applies. I turn directly to box (e) of the EAW. It provides as follows:

"This arrest warrant relates to a total of at least eight indictable offences...

According to the report by the Polizeiinspektion (police station) Baden of 5.6.2008 to the Public Prosecution Authority Graz, file number D1/19381/2008 including attachments in connection with the report to the police by the company MAGNA International Europe AG of 30.05.2008 (fax message of the Polizeiinspektion (police station) Baden of 06.06.2008) Khurram PARVEEN has deceived in Graz and in other places in intentional and deliberate cooperation with other accomplices in at least eight incidents and at least in the period from 02.04.2008 to 05.06.2008 with the intention to enrich himself or third parties through the acts of the parties deceived. By deceiving authorized persons of the HRG travel agency as regards the use of false or falsified date, which is by pretending to be authorized to use the 'Air Plus Credit card' of the company MAGNA International Europe AG as well as by pretending to be authorized to use the reserved international air travels and by inducing the handing over of the tickets at the ticket booths at the respective airport, he acted with the intention to obtain continuous income by recurring acts of aggravated fraud which caused damage to MAGNA International Europe AG of at least 33,119.00 euros, an amount exceeding 3,000 but not 50,000 euros ...

Danger of absconding ... is given since Khurram PARVEEN has no residence or habitual residence in Austria. Besides, with regard to the reservations made by telephone (presumably carried out from abroad) at the travel agency in Graz) there are no contact addresses or phone numbers available...

Danger that the applicant would commit further offences of the same kind ... is given because Khurram PARVEEN is accused of having committed offences of the same kind, which is aggravated professional fraud with a total of damages of at least 33,119.00 euros and it is to be expected that he will continue to commit offences against the same object of action..."

The decision of District Judge Tubbs

7. I come next to the decision of District Judge Tubbs and confine myself to those passages relevant to the matters which remain at issue. The judge set out very clearly her views on the salient points as to (i) time, (ii) place and (iii) conduct. She rightly made allowance for the fact that the description of the offences had been translated from another language. She said this:

"A. The time is clear: from 2 April 2008 to 5 June 2008 ('In at least eight incidents and in the period from 2 April 2008 to 5 June 2008 with the intention to enrich himself or third parties through the acts of the parties deceived.')

B. The place is clear: he has allegedly deceived employees of the HRG Travel Agency in Graz in 'the reservations made by telephone (presumably carried out from abroad) at the travel agency in Graz'.

C. The conduct is clear: he, in intentional and deliberate cooperation with other accomplices in at least eight incidents in the period specified, deceived employees of the HRG Travel Agency in Graz by pretending to be authorised to use the 'Air Plus Credit Card' of the company Magna International Europe AG and pretending to be authorised to use the resulting reserved international air travels and this induced the handing over of airline reservations and tickets by intentional fraud to the detriment of Magna International Europe AG causing losses to that company amounting to at least €33,119.00."

8. The learned District Judge went on to say that the alleged conduct in respect of each offence was deception:

"The defendant knows what offences he is said to have committed and is aware of the nature and the extent of the allegations against him in relation to those offences."

Further details were not required. Evidence had been adduced by the appellant as to the "merits"; such evidence was irrelevant to the present proceedings and was a matter for the trial judge. It followed that the District Judge was satisfied that deceptions had taken place in the travel agency in Graz; they had occurred entirely within the Category 1 territory and accordingly she ordered the appellant's extradition.

The appellant's submissions on appeal

9. In her submissions before this court, Ms Barnes in her skeleton argument submitted that the District Judge had fallen into error. As to the requirements of section 2(4)(c) of the Act, the EAW had not specified: (i) the location of the airports at which the appellant and/or his accomplices allegedly induced the handing over of tickets; (ii) the location of the complainant company MAGNA; (iii) the locations from which Mr Rana and/or his accomplices allegedly made reservations; (iv) the loss per offence or ticket.
10. Building orally on that foundation, Ms Barnes developed her submissions in this way. The matter, for these purposes, had to be looked at only as eight offences. It could not be looked at as a single global offence, as Mr Watson canvassed as an alternative in his skeleton argument. But, looking at it as eight separate offences, that was only one construction. If that was right, and they were all committed by deception on the travel agents in Graz, then Ms Barnes properly accepted that her case fell away. But, she submitted, there was an ambiguity. One could, she said, read the warrant as involving four offences in Graz (the deceiving of the travel agency) and four offences at airports somewhere else and those were not specified and not necessarily in Austria. One did not know and any ambiguity ought to be construed in the appellant's favour. One could not resolve the matter by saying that at least he should be extradited for four offences because, given the global nature of the drafting of the EAW, there was nothing which could be blue pencilled out.
11. In her written submissions, Ms Barnes had rather placed reliance upon the evidence of the appellant upon which he was not cross-examined before the District Judge, namely that he was a victim of an identity fraud rather than the perpetrator of fraud; but, in her oral submissions, she focused more on what she submitted was ambiguity in the drafting of the EAW. Either way, she submitted, there was no proper basis for concluding that all eight offences occurred by way of deception on the travel agents in Graz or whether in fact there were four incidents of deception on that travel agency and then the other four at identified airports. It followed, if she was right on this, that not only did the EAW not comply with section 2(4)(c) but so too sections 10 and 64(3)(a) of the Act could not be satisfied. It could not be concluded that each of the offences had occurred in Austria by dint of a deception on the travel agency in Graz. That I hope is a short summary of Ms Barnes' submissions.

The submissions of the respondent

12. Mr Watson's skeleton argument proceeded as follows. The EAW clearly set out the following facts:

"18.1. On 30 May 2008, MAGNA International Airport AG reported a fraud to the police in Baden, Austria.

18.2. The Austrian police produced their own report and forwarded that report (as well as the original complaint made by MAGNA International Europe AG) to the Part 1 authority (the Public Prosecutor, Graz, Austria) on 6 June 2008.

18.3. On the basis of those reports, the Part 1 authority now alleges that on at least eight occasions between 2 April and 5 June 2008, Mr Rana (who was acting together with others) dishonestly made the false representation to members of staff at the HRG travel agency, Graz, that he was entitled to use a certain credit card issued by the MAGNA International Europe AG (an 'Air Plus Credit Card') to pay for tickets for international travel.

18.4. Staff at the HRG travel agency were deceived by the false representations and issued Mr Rana with the relevant travel documents which were paid for by MAGNA International Europe AG.

18.5 The total loss incurred by MAGNA International Europe AG was 33,119.00 Euros.

18.6. Mr Rana subsequently made the same false representation (namely that he was entitled to use the credit card) in order to collect the actual tickets from various airport ticket booths."

Those facts having been set out, the EAW satisfied the requirements of section 2(4)(c) of the Act.

13. Mr Watson did in his skeleton argument canvass alternatives, namely that the EAW described either a single offence of fraud committed on eight occasions or, as the District Judge concluded, eight identical offences. He submitted that it mattered not which and for my part I proceed solely on the basis adopted by the District Judge. Returning to Mr Watson's skeleton argument, he said this in trenchant terms:

"The modus operandi is clearly spelled out: Mr Rana made telephone calls to a travel agency in Graz, Austria; he claimed to have authorisation to use a credit card and booked and paid for flights using that card. Accordingly, the credit card company (which reported the matter to the police station in Graz Austria) suffered loss ... There were at least eight incidents of this fraudulent activity. The same credit card was later used to obtain the physical travel documents themselves from airport ticket booths."

14. In respect of each incident therefore, Mr Watson submitted, the location of the person deceived had been specified; the ultimate victim of the offence had been specified; the method by which the fraud was perpetrated had been described; and the time frame within which the conduct took place had been provided. While the location of the appellant when he made the phone calls to the Graz travel agency was not specified in the EAW it had not been necessary to do so. Similarly, it was neither here nor there that the location of the airports had not been specified. The offence had already been committed.
15. The appellant's evidence called before the District Judge regarding his likely defence at trial was irrelevant to determining whether or not the EAW was valid. Overall, the appellant could have been under no misapprehension as to why he was being sought; hence the requirements of section 2(4)(c) and sections 10 and 64(3)(a) of the Act were satisfied. For completeness, Mr Watson submitted that the conduct occurred in the category 1 territory, Austria, on any view, on the basis that its effects were intentionally felt there - where the travel agency had been deceived.

Discussion

16. I am, with respect, unable to accept the submissions advanced by Ms Barnes and with no real hesitation prefer those of Mr Watson. My reasons follow.
17. First, as to the law, it is in our judgment unnecessary to look beyond Ektor v National Public Prosecutor Of Holland [2007] EWHC 3106 (Admin). The principal judgment of this court was given by Cranston J. He said this:

5. Let me set out the law. The European arrest warrant is a measure of the European Union introduced by Council Framework Decision 2002/584/JHA of 13th June 2002. In brief, it is a measure, as reflected in its pre-amble, to simplify extradition procedures between member states of the European Union. It is based on the principle of mutual recognition by the member states of decisions in other member states and, in broader terms, of the mutual trust which member states have in the justice systems of each other...

6. As it is obliged to under the Treaty on European Union, the United Kingdom gave effect to the European arrest warrant. It did this in the Extradition Act 2003 Part I, which covers extradition to so-called category 1 territories. That the Act derives from the Council Framework Decision is relevant to the approach we must adopt to its interpretation...

7. The part of the Council Framework Decision at issue before us is Article 8, headed 'Content and Form of the European Arrest Warrant'. That Article says that an European arrest warrant shall contain information, set out in accordance with the form contained in the Annex, relating to matters such as the identity and nationality of the offender, the offence, and then at Article 8(1)(e):

'a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person...'

Reference to the Annex to the decision does not take us any further. In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence...

8. In implementing this provision in the United Kingdom, the Extradition Act 2003 provides in section 2(4) that the information in the European arrest warrant must include:

'(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, [and] the time and place at which he is alleged to have committed the offence...'

That language, Dyson LJ said in Von Der Pahlen v Austria [2006] EWHC 1672, is not obscure and can be given a plain and ordinary meaning (paragraph 21)... What is clear is that there is no need to put any gloss on the language ... In making that point, in a decision of this court, Auld LJ added the valuable point that allowance needs also to be made that the description in an European arrest warrant can often be expected to have been translated ...

In my view, this European arrest warrant satisfies the requirements of section 2(4)(c) of the Extradition Act 2003. The appellant can have been under no misapprehension as to why he is being sought by the Public Prosecutor of the Netherlands."

I respectfully agree with and adopt the approach and those observations of Cranston J.

18. Secondly, for my part, I could detect no ambiguity of the sort canvassed by Ms Barnes. It seemed to me that, reading the language of the EAW and giving it its plain and ordinary meaning, it referred to eight instances of fraud at least, each committed so as to involve the deception of the travel agents in Graz. In a sense that is sufficient to dispose of this appeal because Ms Barnes, as already indicated, accepted that if that was the construction, and if there was no ambiguity, then the requirements of section 2(4)(3) would be satisfied; but I continue a little further only out of courtesy to address the matters canvassed in the written submissions.
19. Thirdly, the amount of detail required in an EAW in any individual case is necessarily fact sensitive. The requirement of particularity, as is common ground, is so that the requested person knows why his surrender is sought. Here there can be no, or no sensible, doubt that the appellant knows precisely why his surrender has been sought. That he disputes it -- is quite a different matter -- but one for a court in Austria on another day rather than this court today.
20. Fourthly, as to the appellant's evidence going to his accounts of events and of his being a victim rather than a perpetrator of fraud, that suffers from precisely the difficulty to which I have just referred. Such evidence is irrelevant to the requesting court. It goes to the merits and is or may be relevant, a matter upon which I express no view, to the trial court.
21. Fifthly, confining myself to the wording of the EAW, on its natural reading, as already suggested, it involves eight incidents of deception all occurring on Austrian territory at a travel agent. It is only in truth if one assumes the correctness of the appellant's account in his evidence that one gets near a debate about any ambiguity or about two separate and distinct sets of deception, some in Austria, some outside. That, as it is based on evidence as to the merits, is inappropriate territory for a hearing of this nature. That the wording of the EAW could perhaps have been more elegantly expressed is, if that be the case, neither here nor there. Reliance must be made for linguistic and stylistic differences.
22. Sixthly, on the case set out in the EAW, the location of MAGNA, the location from where the reservations were made and the location of the airports are all irrelevant. The offences were committed in Austria, when and where the travel agents were deceived.
23. Seventhly, it follows both that the requirements of section 2(4)(c) of the Act as to particularity and those of sections 10 and 64 as to the offences being committed in Austria are satisfied.
24. It follows further, if I may say so essentially for the reasons given by the district judge, that this appeal must be dismissed.
25. LORD JUSTICE DYSON: I agree.
26. MS BARNES: My Lord, may I ask for a detailed assessment for public funding of this application.
27. LORD JUSTICE DYSON: Yes.
28. MS BARNES: Thank you.
29. MR WATSON: Nothing further, thank you.
30. LORD JUSTICE DYSON: Thank you both very much.