England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/03/2008

Lord Justice Maurice Kay :

1. This is an appeal pursuant to section 103 of the Extradition Act 2003 (the 2003 Act). The Government of Switzerland seeks the extradition of the appellant. Extradition to Switzerland comes within Part 2 of the 2003 Act. The appellant was arrested in London pursuant to a provisional warrant of arrest issued by a District Judge. Following a number of adjournments, the substantive extradition hearing before District Judge Purdy was concluded on 26 September 2007. He rejected the submissions made on behalf of the appellant and sent the case to the Secretary of State pursuant to section 92. On 6 November 2007, the Secretary of State ordered the appellant's extradition. In the present appeal, which is being heard after the decision of the Secretary of State by virtue of section 103(5), the appellant is challenging the decision of the District Judge. This court is empowered to allow such an appeal only if (a) the District Judge ought to have decided a question before him at the extradition hearing differently and (b) if he had decided the question in the way that he ought to have done, he would have been required to order the appellant's discharge.
2. Before the District Judge, a number of points were taken on behalf of the appellant. However, only one of them is pursued on this appeal. It is that he should be discharged because he is not an accused person in Switzerland, but merely a suspect. Extradition can only be for "an extradition offence" (see, for example, section 78(4)(b)). Section 137 provides:

"(1) This section applies in relation to the conduct of a person if –

(a)he is accused in a category 2 territory of the commission of an offence constituted by the conduct …

(2) The conduct constitutes an extradition offence … if …

(a)the conduct occurs in the category 2 territory."

3. The investigation and prosecution of criminal offences in Switzerland, as in many European countries, pass through several stages and agencies, which may overlap. Initially the police investigate. When they are satisfied that it is appropriate to do so, they pass the case to an investigating magistrate. When he has completed his task and considers it appropriate to do so, he refers it to the public prosecutor. It is the latter who drafts the equivalent of the indictment, whereupon the case proceeds in the criminal court. At each stage, an independent decision is made and, of course, at any stage the decision may be not to prosecute or further prosecute. That is a rather oversimplified description which I shall augment later.
4. In the present case, the police investigation into the appellant and others commenced in October 2001 and the investigating magistrate became involved on 13 November 2001. His involvement did not put an end to the police investigation, which continued. On 6 March 2003, the appellant informed the Swiss authorities that he was now living at a given address in London. Apart from a brief return to Switzerland in connection with the investigation in June 2003, he is not believed to have returned to that country. He was called for interrogation by the investigating magistrate on 16 August 2006 but on 15 August he sent a fax saying that he was staying in the USA and Great Britain. On 14 September 2006, an international arrest warrant was issued by the investigating magistrate on the application of the public prosecutor. The warrant was executed in London on 10 March 2007 and the appellant has been in custody since that date.
5. In his judgment, the District Judge observed that the extradition request relates to alleged frauds totalling more than $10 million. He referred to the material parts of section 137, observing that they require "conduct of which he is accused in the category 2 territory … Merely suspected is not enough". After citation from authorities to which I shall refer, he said:

"To my mind the detail provided demonstrates that on any proper construction this requested person is plainly an accused."

The material from Switzerland

6. The material provided by the Swiss authorities has come in four tranches. The first accompanied the formal request for extradition dated 2 April 2007. It was followed by three addenda dated 24 May 2007, 16 August 2007 and 3 September 2007.

(1) 2 April 2007

7. The certificate accompanying the original request for extradition states:

"The warrant of arrest … of the investigating magistrate has been issued by Mr Umbricht who is duly authorised to take cognisance of the acts charged against Paschayan in Switzerland and to issue the warrant of arrest."

8. The attached warrant of arrest states that the appellant is

"… charged with: fraud, possibly misappropriation, money laundering, forgery of documents."

9. The formal request is to the effect that the appellant

"… shall be arrested and transferred to the … office of the Investigating Magistrate for the purpose of pursuing a criminal procedure for

(1) fraud according to Article 146 Penal Code,

Possibly misappropriation according to Article 138 Penal Code

(2) forgery of an instrument according to Article 251 Penal Code,

Possibly forgery of identification document according to Article 252 Penal Code

(3) obtaining false certification by fraudulent pretences according to Article 253 Penal Code."

It seems that the "possibly" offences are lesser alternatives.

10. There is then set out over approximately 13 pages under the heading "Relevant Facts" a summary of the allegations itemised by reference to 23 alleged offences. The appellant is referred to as "the alleged offender". Then, after dealing with a number of provisions of the Penal Code, the request then states:

"The acts with which the alleged offender … is charged took place after 22 June 1998. Pursuant to Article 70 Swiss Penal Code the limitation of prosecution will thus take place on 22 June 2013 at the earliest."

(2) 24 May 2007

11. This and the later addenda are in the form of answers to questions posed by the Home Office. One of the matters related to proceedings against the appellant in Germany. The Swiss authorities stated:

"The criminal proceedings against Arturo Paschayan regarding the amount of $500,000 were opened by the Public Prosecutor's Office Ravensburg in 2001. The Public Prosecutor's Office Ravensburg proposed a petition to Switzerland to assume prosecution. The reason for this petition was that the criminal proceedings against Arturo Paschayan were already pending in Switzerland and that Arturo Paschayan as a citizen of Switzerland would not be extradited to Germany. When this petition was proposed the alleged offender Arturo Paschayan still remained in Switzerland at least part of the time. With the decision of 17 February 2003 the Public Prosecutor's Office [in Switzerland] assumed the German criminal proceedings."

12. Article 85 of the Swiss Penal Code provides for assumption of a prosecution by the Swiss authorities in such circumstances, one of the conditions being that "the person prosecuted is accountable for other grave offences in Switzerland".
13. The Home Office also posed a number of questions about particular transactions, including questions as to whether the appellant had ever had an intention to pay various debts. A number of answers from the Swiss authorities took this form:

"According to how things were handled in this and the other cases one must assume that there was never any intention to pay the bill. The alleged offender Arturo Paschayan shall have to be interrogated accordingly."

14. Further questions related to transactions in Lichtenstein. The answer disclosed how the Swiss authorities had assumed the Lichtenstein case along the same lines as the German one.
15. The Swiss authorities also provided a chronology in anticipation of the appellant raising the passage of time as a bar to extradition. It also made clear that the decision to seek the arrest of the appellant was made on 25 August 2006 "after he told us he will not come to the interrogations".

(3) 16 August 2007

16. The material extracts from the supplementary information provided on 16 August 2007 are as follows:

"Since 13 November 2001 the … Investigating Magistrate … pursues formal criminal proceedings against the alleged offender Paschayan. The alleged offender Paschayan is suspected of having committed the penal acts mentioned in the request for extradition.

At present the procedure of investigation is pending. This procedure serves the purpose of fully and absolutely clarifying the relevant facts. The procedure of investigation is conducted by Mr Umbricht, Investigating Magistrate.

As soon as the investigation procedure is terminated the Public Prosecutor's Office … shall decide on account of the ascertained relevant facts whether the criminal proceedings against the alleged offender Paschayan shall be ceased or a charge shall be brought against the alleged offender Paschayan before the competent District Court …

If the Public Prosecutor's Office brings a charge against the alleged offender Paschayan the charge will be treated in a public hearing before the competent District Court and this Court will render a judgment. Against this judgment an appeal is possible to the Higher Court of the Canton. …

The investigation of the relevant facts and the discussion with the alleged offender as well as the evaluation of his statements is the subject matter of the investigation procedure."

(4) 3 September 2007

17. By this final provision of supplementary information the Swiss authorities gave further detail of criminal procedure in the Canton of Aargau. It described the "phases" of criminal procedure. Leaving aside questions of appeal, it identified police investigation procedure, investigation procedure conducted by the Investigating Magistrate, procedure by the Public Prosecutor and court proceedings in the District Court. As to police investigation procedure it states:

"The police investigation procedure is initiated on account of police's own findings or by a third person reporting to the police. Subsequently, the police investigate the relevant facts independently and in so doing is entitled to question any person including the alleged offender.

The police investigation procedure is closed in the following cases

(a) the relevant facts are completely cleared up in the opinion of the police;

(b) in order to clear up the relevant facts coercive measures, eg remand or house search, are necessary.

With the closure of the police investigation procedure according to (a) or (b) the procedure passes to the responsibility of the investigating magistrate and the so-called investigation procedure begins."

18. Dealing with the second stage, that of the Investigating Magistrate, it states:

"In the course of the investigation procedure the Investigating Magistrate continues to clear up the relevant facts. In this context, he may order coercive measures like remand or house search. The Investigating Magistrate questions the alleged offender and witnesses. He must be neutral and is obliged to clear up incriminating and exonerating elements with equal importance.

The Investigating Magistrate may call on the police for his investigations and give the police orders for investigations.

If according to the Investigating Magistrate's opinion the relevant facts are completely cleared up the alleged offender has the right to check all files and documents. The alleged offender may request supplementary investigations within this procedure. If no supplementary investigations are requested or after those are treated the Investigating Magistrate draws up a final report as to the relevant facts. This report is transmitted to the Public Prosecutor together with the case records. The investigation procedure is then closed."

19. The procedure of the Public Prosecutor is then described in these terms:

"On account of the Investigating Magistrate's final report and the records collected during the investigation procedure the Public Prosecutor decides whether a charge shall be brought before the District Court or the criminal proceedings shall be ceased.

If the criminal proceedings are to be ceased the Public Prosecutor issues a nolle prosequi decree. Against the latter an appeal can be lodged with the higher court … if no appeal is lodged or the appeal is rejected, the criminal proceedings are closed.

If the Public Prosecutor wants to bring a charge he issues a bill of indictment which comprises the following items.

relevant facts for judgment by the court

legal assessment of the relevant facts

demand for a stated penalty for the alleged offender.

The Public Prosecutor transmits his bill of indictment together with the case records to the competent District Court."

The authorities

20. It is not a simple task to equiparate the point at which someone becomes an accused person in differential legal systems. The difficulties were authoritatively addressed by Lord Steyn in Re Ismail [1999] 1 AC 320. He was there dealing with the position under the Extradition Act 1989 but his observations continue to be applicable. The following passages are to be found between pages 326F - 327G:

"What more is needed to make a suspect an 'accused' person? … The starting point is that 'accused' … is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an 'accused' person. Next there is the reality that one is concerned with the contextual meaning of 'accused' in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a trans-national interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the text permits in order to facilitate extradition: Reg v Governor of Ashford Remand Centre ex parte Postlethwaite [1988] AC 924, 946-947. … It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of laying of an information or the preferring of an indictment. Moreover, it is important to note that in England the prosecution may also be commenced if a Custody Officer decides that there is sufficient evidence to charge and arrest a person and then proceeds to charge him: section 37(7) of the Police and Criminal Evidence 1984 … Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an 'accused' person. And that is so even if the police continue to investigate afterwards.

It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an 'accused' person. All one can say with confidence is that a purposive interpretation of 'accused' ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirements of there being an 'accused' person is satisfied … For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasise that ultimately the question whether a person is 'accused' … will require an intense focus on the particular facts of each case."

21. Since the coming into force of the 2003 Act, the same problem has had to be revisited, most frequently in the context of countries falling within Part 1 of the Act. In Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67, 2005 3 WLR 1079, Lord Hope of Craighead expressly adopted the speech of Lord Steyn in Ismail as to "a broad and generous construction so far as the texts permit it in order to facilitate extradition". He added (at paragraph 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. Unfortunately this is not an easy task … "

See also Lord Scott of Foscote (at paragraph 54).

22. Mr Smith seeks to place particular reliance on Vey v Office of the Public Prosecutor of Montlucon [2006] EWHC 760 (Admin). The ratio of the case relates to section 2 of the 2003 Act and, in particular, to the requirement of a statement and information including "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 …". The appeal succeeded because, in the words of Moses LJ (at paragraph 32), "There is no clear statement whatever of the circumstances in which the appellant is alleged to have committed the offence nor of her conduct". He later added (at paragraph 36), "… the whole of this warrant is clouded in obscurity". That is the basis upon which the appellant was discharged. However, Moses LJ went on to express "some tentative views" on a second issue which, in the circumstances, did not attract a concluded finding. Essentially, it was the issue that arises in the present case of when a person becomes "accused". Much of what Moses LJ then proffered by way of "tentative views" was specific to the French procedure relevant to that case and to the extraordinary circumstances which had led to the request. As regards principle, he said (at paragraph 59):

"Absent clarity remains risk that extradition is being sought merely for the purpose of questioning and not for the purpose of pursuing a criminal prosecution. Whilst that dichotomy might become blurred because of the difference in penal procedure, mere suspicion should not found a request for extradition."

23. It seems to me that Moses LJ was not adding or seeking to add to the exposition of principle by Lord Steyn in Ismail.
24. The final authority to which I should refer is Harvey v Judicial Authority of Portugal [2007] EWHC 3282 (Admin), which specifically applied Lord Steyn's approach to a case in which the European arrest warrant stated, amongst other things, that the appellant was required "for judicial interrogation". I, with the concurrence of Burton J, concluded that, reading the warrant as a whole, "neither Mr Harvey nor anyone else would be misled … into believing that the purpose for seeking his return to Portugal was to further an investigation as opposed to prosecuting him for the offence referred to in the warrant" (paragraph 17). Harvey was, of course, a Part 1 case, where consideration was confined to the face of the warrant. In the present case, Mr Smith accepts its correctness but seeks to distinguish it on the basis that there the appellant had been declared "contumacious" for failing to attend court for interrogation.

Discussion

25. Mr Smith concedes that the first batch of material provided on 2 April 2007 would be insufficient to enable him to advance his submission that there is a fatal lack of clarity as to whether the appellant is required for prosecution as opposed to investigation. However, he says that the three further batches have rendered the position unclear to the point where the District Judge ought to have discharged the appellant.
26. It is essential to keep in mind the "cosmopolitan approach" referred to by Lord Steyn. On the face of it, jurisdictions in which an investigating magistrate or judge is interposed between the role of the police and the role of the Public Prosecutor have added a tier to the process which is responsible for a variety of tasks, the purpose of some of which is protective of the alleged offender. In other respects, however, the tasks are ones which advance the prosecution but which, in our jurisdiction, are the responsibility of the police, the Crown Prosecution Service or the courts. It is this plurality of functions that makes it "not always easy" to see whether a particular case has crossed the boundary from suspicion/investigation into accusation. In Vey, it was abundantly clear that Madame Vey could not properly be charged or prosecuted on the material then in the hands of the French authorities. In Harvey, on the other hand, although required "for judicial interrogation", the appellant had reached the stage of being prosecuted. I have to say that I am unattracted by the submission that Harvey is distinguishable from the present case because there the appellant was required for interrogation simply because of his contumacious default in attending court. It is clear that on 7 August 2006 the present appellant was cited for interrogation by the Investigating Magistrate on 16 August but on 15 August he communicated by fax his intention not to attend. This is what led to the contact with Interpol in London on 16 August and the issue of the international arrest warrant a month later. In my judgment, these circumstances were strikingly similar to those in Harvey.
27. Of particular importance is the character of the case against the appellant in Switzerland at the time of the hearing before the District Judge. This calls for a qualitative assessment. It is plain from the description of the alleged offences contained in the extradition request and the detailed amplification in the material of 24 May that the case against the appellant is highly particularized. Also, the assumption of the German and Lichtenstein cases is founded on the fact that he is "accountable for other grave offences in Switzerland" (Article 85). The Swiss Public Prosecutor is satisfied as to that. Although the case against the appellant has not finally passed from the Investigating Magistrate to the Public Prosecutor, it is a reasonable inference that the explanation is that the appellant is impeding the process by his refusal to attend for interrogation. The material of 24 May 2007 repeatedly shows that there is evidence of undischarged liabilities accompanied by an inference of mens rea but that the appellant "shall have to be interrogated accordingly". None of the material provided by the Swiss authorities casts doubt upon the correctness of the inference. What is missing is simply the self-inflicted absence of an explanation from the appellant.
28. The allegations against the appellant in Switzerland date from October 2001 when the original complaints were made. The Investigating Magistrate has been involved since November 2001. His early involvement was inevitable in view of the need for warrants to search premises. The police investigation continued concurrently with the involvement of the Investigating Magistrate. The Public Prosecutor is the agency through which the request for extradition has been made and it is the Investigating Magistrate who has issued the arrest warrant. As Mr Smith concedes, the warrant and the request for extradition, under the respective hands of the Investigating Magistrate and the Public Prosecutor, and in the forms delivered in April 2007, are not vitiated by a lack of clarity. The question becomes: have they been rendered unclear by the contents of the three later batches of material? In my judgment, they have not. When one applies the approach prescribed by Lord Steyn, and keeps in mind the purpose to which he referred, together with the need to safeguard the rights of the individual, it is abundantly apparent that this appellant is being prosecuted as an accused person in Switzerland. Such unanswered questions that remain are unanswered because of the stance of the appellant. Of course, if he is extradited, the Investigating Magistrate will no doubt tie up the loose ends. If, ultimately, the totality of the material persuades him or the Public Prosecutor that the prosecution "shall be ceased", the appellant will obtain the benefit of that decision. At the moment, however, I am satisfied that his return is sought as an accused person.

Conclusion

29. It follows from what I have said that I do not find that the District Judge ought to have decided this question differently. I would dismiss the appeal and uphold the decision of the District Judge.

Mr Justice Walker:

30. I agree.