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
		19 May 2009

1. 1.1. SIR ANTHONY MAY: Each of these two appellants appeals against the judgment and order of 5 November 2008 of Her Honour District Judge Tubbs at the City of Westminster Magistrates' Court in Category 1 extradition proceedings. The European arrest warrant, which initiated the proceedings, was issued on 10 July 2008 by the Court of Livorno in Italy, seeking the extradition of each appellant for offences of (a) participating in a criminal organisation, and (b) counterfeiting or falsifying credit cards. A maximum penalty in Italy is five years' imprisonment for each offence.
2. 2.1. Subject to an insubstantial point raised on behalf of Mr Farnesi, these are extradition offences under section 10 of the Extradition Act 2003. Parallel offences in this jurisdiction would be offences contrary to section 5 of the Forgery and Counterfeiting Act 1981, and conspiracy to commit that offence.
3. 3.1. Details of the alleged offences are given in somewhat extended narrative form in the warrant translated into English. There were investigations concerning a Giovanni Morabito where disclosed trafficking in cloned credit cards from England to Italy. Mr Farnesi was found in possession of eight forged credit cards in the name of Francesco Versace on 4 July 2007 upon arrival in Italy. Investigations showed that Mr Fawaz had given Mr Farnesi these credit cards and Mr Fawaz was identified as "the point of reference in England." It was said that Fawaz had travelled to Greece to open a new market in forged credit cards.
4. 4.1. Descriptive details are then given of the criminal association established for the purpose of committing an unspecified number of frauds importing forged credit cards for their use in Italy. Fourteen named individuals are alleged to have been involved, including Mr Farnesi as responsible for local cells of organisation and Mr Fawaz as one of the "technical experts". Mr Fawaz is charged with importing huge amounts of counterfeited American Express cards from England. Others, including Mr Farnesi, on 4 July 2007 are charged with being in possession of particular numbers of counterfeited credit cards. On four specific dates between 11 February 2007 and 7 August 2007 Mr Fawaz is said to have delivered or sent the forged credit cards, which were then seized. The offences are alleged to have been committed at least from March 2007 and were still ongoing in Livorno and other European countries.
5. 5.1. Common to each of the appellants is the submission, which failed before the District Judge, that the European arrest warrant does not give adequate particulars. Section 2(4)(c) of the Extradition Act 2003, which derives from the European Framework Directive, requires the following information to be provided:

"... 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..."

6. 6.1. It is submitted that this European arrest warrant does not give particulars which comply with these requirements. In particular, it is said, that the date or dates are not sufficiently specific. The place where the offence or offences were committed makes reference to unspecified countries in addition to England and Italy, and there are inadequate particulars of the alleged conspiracy and of the conduct alleged.
7. 7.1. For the respondent Mr Jones draws attention to the judgment of Scott Baker LJ in the case of Von Der Pahlen No.2 at paragraph 13 with this quite extended quotation:

"Section 2(4)(c) has been a fruitful source of litigation in extradition cases, but both sides agree that the law is now correctly stated by Cranston J (with whom Richards LJ agreed) in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin). Cranston J referred to Article 8 of the Council Framework Decision which is headed: 'Content and Form of European Arrest Warrant' and, in particular, to Article 8(1)(e) which provides that it must contain:

'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....'

He said:

'... 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. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place.'

He then referred to the language of section 2(4)(c) and Dyson LJ's comment when the present case was before him ([2006] EWHC 1672 (Admin)) that the language is not obscure and can be given its plain and ordinary meaning (para 21). Cranston J could see nothing inconsistent between the subsection and the Framework Decision. He said it was clear that there was no need to put any gloss on the language; for example that the language somehow connotes the specificity or lack of it demanded in the particulars for a count in an indictment. He added a point made first by Auld LJ in Fofana v Thubin [2006] EWHC 744 (Admin) para 39 that the description in a European Arrest Warrant can often be expected to have been translated."

The paragraph in Auld LJ's judgment, to which Mr Jones refers in Fofana v Thubin [2006] EWHC 744 (Admin), was also usefully cited as follows:

"39. Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal 'pleading' vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:

"...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...'"

8. 8.1. It is submitted in this context by Mr Jones that the particulars given are entirely adequate. Miss Powell and Mr Summers have submitted otherwise. They say that the time allegations are inadequate, that the place where the offences are alleged to have been committed are inadequate, and that the nature of the facts alleged are vague, unsatisfactory and insufficient. I do not agree.
9. 9.1. First of all, the various conspirators are named. Secondly, the nature of the conspiracy is clear. A time period beginning March, or thereabouts, 2007 is given and ends with the date of the warrant itself, and the dates of four specific manifestations of the conspiracy are given specifically. The place where the alleged facts are said to have taken place is clear enough. That is that the conspiracy centred in Italy, including Pisa and that the participation of these appellants included being in England for Fawaz and between England and Italy, including Pisa, for Mr Farnesi. The part played by each of the two appellants is described both generally and with particular reference to their alleged part in the conspiracy.
10. 10.1. It is not, in my view, necessary for the offences alleged, that is to say conspiracy and forgery of credit cards, to state or establish the use to which the cards were put, nor the loss caused. Admittedly there is some general reference to that in the body of the text, but in my view it was unnecessary. In my view there is nothing persuasive in this ground of appeal and I consider that it should fail.
11. 11.1. The next ground of appeal by Mr Farnesi is the inconsequential one that the European arrest warrant does not comprise, or may not comprise, an extradition offence. This is based on an extension of the argument that inadequate particulars of the date are given. Miss Powell submits that, for all this arrest warrant shows, the dates alleged may have stretched back to a point before the relevant offences both in Italy and in this jurisdiction came into being. There is, in my view, nothing in this whatever. It is perfectly clear that the time period that is alleged in this arrest warrant began at the earliest in February, or thereabouts, of 2007 and stretched forward to the date of the warrant themselves. The offences, as I have indicated, plainly alleged extradition offences. That is all that is put forward on behalf of Mr Farnesi and, in my judgment, his appeal should fail.
12. 12.1. Mr Fawaz has additional grounds of appeal. First, it is said that his identity was not sufficiently established. The judge at an extradition hearing has to decide, on the balance of probabilities, that the person before the court is the person in respect of whom the warrant was issued. District Judge Wickham had decided this as a preliminary matter on 11 July 2008 and Mr Summers tells us that it was raised again at the extradition hearing before District Judge Tubbs.
13. 13.1. Mr Fawaz, through Mr Summers, relies on a number of discrepancies. Firstly, the European arrest warrant says that the person sought was born in Lebanon. Mr Fawaz, who is indeed Lebanese, was in fact born in the Ivory Coast. Secondly, the warrant does not give his full name, omitting the name "Hussain". Thirdly, the warrant says that a person of the appellant's name travelled at one point to Greece, but Mr Fawaz's passport indicates that he has been in the United Kingdom throughout since 1993. Fourthly, the person is alleged to have used credit cards apparently in Italy, but Mr Fawaz has not left the United Kingdom. Fifthly, the European arrest warrant says that he gave eight forged credit cards to Mr Farnesi in July 1997, but Mr Fawaz was, for particular reasons, unable to do so during that period and, in particular, between a period of 17 June to 29 July 2007. In addition to that Mr Farnesi has said that he has never met Mr Fawaz.
14. 14.1. The appellant, Mr Fawaz, accepts that a photograph of him is attached to the Italian version of the European arrest warrant. The photograph came from the United Kingdom and Mr Summers submits that there is a degree of circularity in this matter of identity. In the round it is said that these matters rendered the District Judge's decision as to identity insupportable. I disagree. A mistake as to Mr Fawaz's place of birth is, in the circumstances, understandable. Omitting one of his names is inconsequential. The other points go more to the substance of the allegations than to his identity. The European arrest warrant was issued in respect of the person in the photograph who is the appellant.
15. 15.1. Mr Fawaz then has a submission that the judge was wrong on human rights' grounds to order his extradition. He relies, in particular, on Article 8 of the European Convention on Human Rights. Mr Summers puts his case in this way: the appellant lives with his son, a 29-year old adult now, and infant grandson. His son has life-long sickle cell anemia and the appellant is the carer of both the son and the grandson, and has been for many years. As to Bilal, his son, he was born in Lebanon in 1980. He suffers chronic debilitating and life long sickle cell anemia. The appellant has been his sole carer since he separated from Bilal's mother in 1981. Bilal accompanied the appellant when he fled Lebanon and the Ivory Coast and arrived in the United Kingdom with the appellant in 1993.
16. 16.1. His condition is detailed in a report by Dr El Gazzer, dated 28 April 2009, which the court has. The appellant is his sole carer and guardian. The District Judge acknowledged that the appellant's care and support is very important for Bilal's well-being, and it is hoped that further evidence would be available to the court before the date of the hearing, and that indeed was so.
17. 17.1. Following the appellant's remand into custody in this matter, Bilal lived alone and was said to be unable to cope with his normal daily activities due to his pain and tiredness. He therefore moved in with the appellant's brother on a temporary basis, but the appellant's brother himself is the carer for three of his own children who suffer from the same disease. The court now has a document in the form of a witness statement from the appellant's brother. The appellant's brother is, it is said, not able to care for Bilal on anything other than a temporary basis.
18. 18.1. As to the grandson, his name is Luke. He was born in July 2000 and is now aged eight or thereabouts and Luke's mother separated from Bilal when Luke was young. As a result of an attempt by her to abduct Luke the Family Court unusually awarded Bilal custody of Luke, and Luke's mother has access two days of the week. The result of Bilal's condition is that the appellant is also the principal carer and guardian of Luke.
19. 19.1. Mr Summers submits that these facts are sufficiently striking and unusual for the purpose of a claim under Article 8 of the European Convention on Human Rights. In addition, he submits that if the appellant is extradited to Italy he will have no right to return to the United Kingdom, his immigration status still being uncertain. Account, he submits, should be taken of the effect of his extradition on third parties, that is to say his son and his grandson.
20. 20.1. There is, as I have said, material in addition that was not before the District Judge which indicates that Mr Fawaz's brother (Bilal's uncle) would be in great difficulty in caring for Bilal on a permanent basis. Reference in this respect is made to Cookson v Australia [2001] EWHC 149 (Admin).
21. 21.1. The District Judge concluded that there would be no breach of Article 8. She took due note of the matters relied on, but said this:

"Whilst Mr Fawaz was in custody for these proceedings Mr Fawaz's brother looked after Billy. The brother has three children affected by the same genetic disease and his two daughters are affected by it to an even greater extent than Billy and are in wheelchairs. The strain on Mr Fawaz's brother's family must be immense. However, Billy is now an adult. He has good medical care and attention in this country where he will remain. He has the support of close family members. He has in the past had to survive without his father's presence whilst his father served his sentences of imprisonment in this country for matters of dishonesty. In all the circumstances I cannot find that the facts are so striking and unusual as to make it disproportionate to extradite Mr Fawaz to face trial for the serious charges contained in the EAW [European arrest warrant]. The undoubted interference with the right to family life being proportionate to the legitimate aim of prosecuting a serious criminal charge, extradition would not breach the Article 8 Convention right."

22. 22.1. In substance, the District Judge considered all the matters that are before this court. Mr Summers has referred to a certain amount of additional information. In my judgment there is no problem under Fenavasi(?) in admitting and considering that material. The material does not, in my judgment, really take this matter any further than it was before the District Judge. She reached the conclusion, applying the law correctly, that the facts are not so striking and unusual as to make it disproportionate to extradite Mr Fawaz. In my judgment this was a finding to which she was fully entitled to come. There was no error of law, nor misappreciation of the facts. For these reasons, in my judgment, that ground of appeal also fails.
23. 23.1. Mr Fawaz has a further ground of appeal which has been dealt with and dismissed in private and in the result, in my judgment, these appeals both fail.
24. 24.1. MR JUSTICE BLAKE: I agree.
25. 25.1. SIR ANTHONY MAY: Mr Summers?
26. 26.1. MR SUMMERS: There are three corrections of fact, and I hope the court will not regard these as impertinent. They are not meant to be. My Lord referred to the Framework Decision as the "Framework Directive". My Lord referred to the hearing before District Judge Wickham as the "extradition" hearing, it is the admission hearing. There is a difference. Lastly my Lord referred to Luke's mother having separated from the appellant --
27. 27.1. SIR ANTHONY MAY: I recognised that at the time. I am sorry about that.
28. 28.1. MR SUMMERS: May I apply for two things at this stage: firstly, for legal aid taxation and secondly, a copy of the transcript to be expedited? I have 14 days to consider our position under section 32. I can frankly say that I do not anticipate there being an application to certify any point of law, but the transcript would enable me to give proper advice on that.
29. 29.1. SIR ANTHONY MAY: Thank you very much. Miss Powell?
30. 30.1. MISS POWELL: On behalf of Mr Farnesi, may I apply for a legal aid assessment for costs?
31. 31.1. SIR ANTHONY MAY: Yes. We are grateful to everyone. Thank you.