England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/11/2009

Lord Justice Pill :

1. This is an appeal by Johirul Islam ("the appellant") against a decision of District Judge Tubbs sitting at the City of Westminster Magistrates' Court on 27 November 2008. The judge ordered his extradition to Cyprus in accordance with Section 21(3) of the Extradition Act 2003 ("the 2003 Act"). Extradition was sought by the Judicial Authority, Paphos District Court of Cyprus ("the respondent"), a European Arrest Warrant having been issued. Cyprus has been designated a Category 1 Territory pursuant to Section 1 of the 2003 Act and Part 1 of the Act applies. The decision is appealed under Section 26 of the Act.
2. For the appellant, Miss Higgins submitted that the arrest warrant did not comply with the requirements of Section 2(3) and (4) of the 2003 Act and was not therefore a Part 1 arrest warrant within the meaning of the Act. Section 2 defines a Part 1 arrest warrant. By Section 2(2), the warrant must contain:

"(a) The statement referred to in sub-section (3) and the information referred to in sub-section (4)."

3. Section 2(3) requires a statement 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."

4. Section 2(4)(c) requires the warrant to contain:

"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."

5. The 2003 Act derives from the Council Framework Decision on European Arrest Warrants (2002), which is therefore relevant to the approach to be adopted to its interpretation (Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 Admin, at paragraph 6). Article 8(1) of the Framework Decision requires a warrant to specify:

"(d) the nature and legal classification of the offence, particularly in respect of Article 2;

(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;"

6. For the appellant, Miss Higgins submitted that the EAW is invalid:

"(i) It fails to specify the particulars of the circumstances in which the appellant is alleged to have committed the offences in Cyprus

(ii) It fails to specify how the 20 offences the appellant is alleged to have committed are spread across the 7 identified categories of offences thereby preventing the court from identifying each extradition offence."

Reliance was placed by Miss Higgins on the statement of Cranston J, with whom Richards LJ agreed, in Ektor:

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

7. The warrant is a very detailed document. Under the heading, "Indications for the penalty duration" seven "accusations" are set out, giving the maximum period of imprisonment for each, which range from 2 years to 14 years. The offences listed are, and I quote of course from the English translation of the Greek version, conspiracy for committing a felony, stealing, attempt of stealing, credit card forgery, uttering a false document, offences against the Act on personal data and laundering offences. In a later section of the warrant, the definition of each of those offences is set out. The definition of laundering offences under the appropriate Cypriot instrument appears to be very broad.
8. Under the heading "Criminal offences" it is stated that "the present warrant is linked to 20 criminal offences in total". False credit cards had allegedly been used in several banks in Cyprus to obtain a total sum of £3840. The accounts registered on the credit cards belonged to customers of UK banks. Full particulars are given of the facts alleged in each of 20 specified offences. The method employed was identical in each case. A narrative, over 5 pages long, describes the circumstances in which the offences were alleged to have been committed.
9. The circumstances, as described in the warrant, were summarised by the District Judge in a way about which no complaint has been made:

"In brief it is alleged that the Defendant, between 13 and 19 December 2006, in Cyprus acted with three other men (Shuheil Miah, Jeyaram Arunthavaraja and N Uddin) and withdrew or attempted to withdraw cash from ATM's with false credit cards. The Banks, the addresses, the dates, the credit numbers and the amounts stolen or attempted to have been stolen are specified for each of twenty incidents. The four men stayed together, sharing two rooms, at the King Jason Hotel. A booking, in the Defendant's name and date of birth, was made at the Sofianna Hotel Apartments. Three Asian males (one of whom was identified from the CCTV still as being present at one of the fraudulent ATM incidents) persistently asked the receptionist at the Sofianna Hotel Apartments whether they had a delivery from the Post Office. A delivery of a registered item in the name of N Uddin addressed to the Sofianna Hotel Apartments was intercepted by the Cypriot Authorities and forty plastic cards with magnetic tapes were in it. On 19 December 2006 at 14.25 hrs a Bank alarm was activated showing the use of a false credit card at an ATM. Direct observation by Bank officials showed an Asian male at the ATM and a parked rental car ZKKV974, with two young "foreigners" in it, opposite the ATM. The man using the ATM at the time of the alarm alert was seen getting into that car, which then left the scene. At 15.00 hrs, some thirty-five minutes after the alarm had been triggered, that same vehicle was returned to the Car Rental Office at Lanarca Airport. (Mia, Arunthavaraja and an unidentified third man, in the two days of 13 and 14 December had successively hired and replaced three cars, the final hire being of this same car ZKKV974). Sixteen minutes later the Defendant, Miah and Arunthavaraja checked in at Lanarca Airport for Cyprus Airways flight CY 326 destination Heathrow and they flew out of Cyprus."

10. On the first of her grounds, Miss Higgins submitted that the warrant did not comply with Section 2(4)(c) because the appellant cannot know the nature and extent of the allegations against him. He is not linked, either by presence or by identification, to any of the offences. It is not suggested in the warrant that the appellant withdrew or attempted to withdraw cash with false credit cards on any of the occasions of which particulars are given, or that he was present when false cards were used.
11. The District Judge found that it was clear from the warrant that the allegation was of conspiracy to commit criminal offences between 13 and 19 December 2006. The essence of the offence of conspiracy is the agreement to engage in criminal conduct. The particulars supplied supported an inference that the defendant had entered into an agreement with the other three named individuals to commit criminal offences. Particulars are given in the warrant of the offences actually committed in pursuance of the conspiracy.
12. Particulars were given of identifications of the other men. While there was no identification of the appellant at a bank, there was evidence that he, together with the other named men, were occupying rooms 54 and 83 at the King Jason Hotel, that a booking was made in the appellant's name at Sofianna Hotel Apartments, the date of birth given being that of the appellant. At least two of the named men were also staying at those apartments. Moreover, on 19 December 2006, the appellant was identified passing through check in and passport control at the airport in Cyprus with Miah and Arunthavaraja about 45 minutes after a car hired by them was returned to the company offices. The three men left Cyprus by air together.
13. In my judgment sufficient particulars were given. There was in these particulars sufficient evidence to entitle the District Judge to conclude that the appellant was a party to a joint criminal enterprise in Cyprus and that he conspired with the other men to engage in criminal conduct. In this respect, the requirements in section 2(4)(c) of the 2003 Act were satisfied. Particulars of evidence of his presence at the banks could not be given because there was no such evidence.
14. On the second issue, Miss Higgins submitted that the court is required to consider whether each of the offences for which extradition is sought is an extradition offence (section 10(2) of the 2003 Act). The court must consider each offence (Boudhiba v Central Examining Court No.5 of the National Court of Justice Madrid, Spain [2006] EWHC 167 Admin, paragraph 34). While the warrant specifies seven different offences under the law of Cyprus it does not specify which of those offences relates to each of the 20 individual incidents. Particulars must be supplied, in relation to each of the incidents, of which offence or offences has been committed, it was submitted. In the absence of such a link, the warrant is invalid. The appellant cannot identify, in relation to each charge, the offence or offences for which extradition is sought.
15. The District Judge found that "the overall charge is one of conspiracy to commit criminal offences and the criminal offences are specified . . . There is no requirement for the courses of conduct to be broken down and attached to the various specified Cypriot legal offences to enable this court to consider whether the conduct amounts to Cypriot offences. Article 2(4) of the Framework Decision directs simply that the court needs to be satisfied that the acts for which the warrant has been issued 'constitute an offence under the law of the executing member state, whatever the constituent elements or however it is described'."
16. Miss Higgins submitted that the judge erred in relying on the "overall charge", that of conspiracy to commit offences. That was but one of seven offences listed in the warrant and the offence or offences alleged to relate to each of the 20 charges must be stated. Only then can the transposition exercise required by Section 64(3)(b) of the 2003 Act be performed. Section 64(3) provides:

"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;

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law) "

17. Miss Higgins conceded that if she failed on the first of her grounds, she would have no case if the only offence specified in the warrant had been the offence of conspiracy to commit a felony. Once other offences were listed in the warrant, however, it was necessary to specify which of them was alleged to cover which incident. The specification of other Cypriot offences has made that impossible in the absence of further particulars.
18. In Dabas v High Court of Justice Madrid, Spain [2007] UKHL 6, Lord Hope of Craighead stated, at paragraphs 42 and 43:

"The result that the Framework Decision is designed to achieve is to remove the complexity and potential for delay that was inherent in the previous extradition procedures. It seeks to introduce in place of these procedures a system of free movement of judicial decisions in criminal matters within an area of freedom, security and justice: para (5) of the preamble. The principle on which this new system is based is the mutual recognition of criminal decisions between the Member States. The European arrest warrant is designed to have a uniform effect throughout the European Union. The effect at which it aims is that of swift, speedy surrender. It must be borne in mind too that, for obvious practical reasons, a large number of European arrest warrants are not directed at only one Member State: see the House of Lords European Union Committee Report, "European Arrest Warrant - Recent Developments" (HL Paper 156), para 21. The form in the annex to the Framework Decision has been designed on this assumption. The person who issues a European arrest warrant is not required to address it to any particular Member State. Once issued, it is available to be used wherever the requested person happens to be when it is executed.

There is no doubt that the imposition of additional formalities, not to be found in the Framework Decision itself, by one Member State to suit its own purposes would tend to frustrate these objectives. . . ."

19. The dual criminality requirement in Section 64(3) of the 2003 Act is met. Offences equivalent to those charged exist under the law of England and Wales. For the purposes of that section, the conduct would constitute "an offence" of conspiracy and the reference to other Cypriot offences which may be charged does not in my view invalidate the warrant. Neither does the section require, in present circumstances, the particularisation demanded.
20. In this case, the warrant does also include substantial information about the relevant provisions of the Cypriot Criminal Code. No further investigation of the law of Cyprus is required. It would appear that charges could be brought under any of the seven offences specified in the warrant, the appellant being involved in a joint enterprise. This court need not concern itself as to whether a Cypriot court might require the prosecution to elect between a conspiracy charge and substantive charges, or to consider which of the substantive offence is best suited to which incident.
21. I am not persuaded that the warrant is rendered invalid by the reference to other Cypriot offences. The District Judge was entitled to conclude that the conspiracy charge was the "overall charge" and the facts in relation to individual incidents can be regarded as a statement of evidence in support of that charge.
22. The incidents described are stated to be "20 criminal offences". Failure to state that each of the offences in the warrant applies to each of the charges, or otherwise to apportion them, does not, in present circumstances, invalidate the warrant. That would be to introduce an unwarranted degree of technicality into the construction of this warrant. Moreover, the appellant is not prejudiced by the absence of such particulars.
23. I would dismiss the appeal.

Mrs Justice Rafferty :

24. I agree.