QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE RODERICK EVANS
| Irfan Musa Patel
|- and -
|The Office of the Attorney General, Frankfurt
Miss Gemma Lindfield (instructed by Extradition Unit, Crown Prosecution Service) for the Respondent
Hearing date: 1 December 2010
Crown Copyright ©
Mr Justice Roderick Evans:
The present proceedings
The History of the Proceedings
"This Warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
"As Managing Director of the company Lφsungen 360 GmbH with seat in Germany, Irfan Musa Patel was involved in fraudulent VAT chains as a buffer trading with emissions allowances. Based on a common plan with missing traders, other buffers and the distributor he filed false prior VAT returns for the months of August, September, October, November, December 2009 and January 2010 and thus evaded turnover taxes totalling up to 554,779,813 Euros."
"That if the Attorney General's Office did consider the investigation to be concluded or near conclusion, for me there would be no need to refuse inspection of the files or of individual documents in the files relevant to Mr Patel's case under Section 147(2) of the German Code of Criminal Procedures as the investigation could not be endangered by disclosure of the dossier or parts thereof. Under this section of the GCCP, inspection of the files or of individual documents in the files may only be refused if investigations have not yet been designated as concluded on the file."
"First of all, the German proceedings concerning Irfan Musa Patel are not at a mere investigative stage (Vorermittlungen) any more but at the stage of prosecution (Staatsanwaltliches Ermittlungsverfahren). Under German law National Arrest Warrants and, therefore, also European Arrest Warrants (EAW) for the purpose of pre-trial custody can only be issued by a judge or a court:
(a) after prosecution has been initiated and
(b) if, after a review of the evidence displayed by the prosecution a judge or a court have confirmed that there is a more than just a probable cause.
In fact, the National Arrest Warrant and the EAW concerning Irfan Musa Patel were issued on 27th April 2010 and thus several weeks after the prosecution had been initiated by the Office of the General Attorney.
Under German law, an arrest warrant against an alleged perpetrator cannot be issued simply to assist with an investigation.
On 27th April 2010, in accordance with the provisions of the German Code of Criminal Procedure, the District Court of Frankfurt am Main did not only order Irfan Musa Patel to be arrested but also to be held in pre-trial custody for the offences which the General Attorney's Office had charged him when applying for the pre-trial custody order to be issued.
The prosecution's act of applying for a pre-trial custody order can be compared to a preliminary raising of charges because the prosecution is compelled to provide the judge or court with complete information on the evidence that supports the prosecution's argument that there is more than a probable cause and that there are sufficient grounds for also holding the accused person in custody
In our opinion, Mr Patel's defence attorney has tried to influence the Magistrates' Courts decision by omitting this particular aspect of the German Criminal Procedure and by using inaccurate translations of legal terms.
With a view to the allegations made by Mr Jung, Senior Prosecutor Gonder stated that they did not have lengthy conversations. When asked about Mr Jung's first telephone call, Senior Prosecutor Gonder stated, that due to a strict data protection policy, he only confirmed that he had already initiated prosecution (Staatsanwaltliches Ermittlungsverfahren) against Mr Patel and that Mr Jung could have access to the files.
The terms used by Mr Jung to describe the stage of the proceedings are inaccurate. According to the standards of legal translation, the term "investigation" is to be considered an equivalent of the German term "Vorermittlungen" or "Polizeiliche Ermittlungsverfahren" when there is only a mere suspicion (Anfangsverdacht) against an alleged perpetrator. Neither the term "Vorermittlungen" nor the term "Polizeiliche Ermittlungsverfahren" were used by Senior Prosecutor Gonder during the telephone conversation. As there was already more than a probable cause against Mr Patel, Senior Prosecutor Gonder explicitly referred to an ongoing prosecution (Staatsanwaltliches Ermittlungsverfahren)."
"This means that 7 days before the last extradition hearing took place in the UK, Mr Patel's defence attorney had already had full access to the files concerning the criminal charges raised by the General Attorney's Office against Mr Patel. The DVD with the electronic files as served to Mr Jung and the National Arrest Warrant sent to him via fax on 16th June 2010 revealed that the proceedings against Mr Patel had reached at the stage of prosecution.
Thus, Mr Jung should have known that the General Attorney's Office had already charged Mr Patel with more than probable cause when applying for the National Arrest Warrant and that subsequently, the District Court had confirmed that there was more than a probable cause when issuing the National Arrest Warrant as the result of the evidentiary review by the court on 27th April 2010 and ordering Mr Patel to be held in pre-trial custody (Untersuchungshaft) after pondering the various aspects of the principle of commensurability.
As the files have already been disclosed to Mr Jung, it is not necessary for Mr Patel to be invited to interview. It would be a matter for Mr Jung as Mr Patel's lawyer to indicate that he wishes to provide an explanation, but, if there is no explanation then he will be assumed to have exercised his right to silence."
"It is not possible to predict the date of the indictment because the evidence found on the premises that were searched in the UK on 28th April 2010 needs to be transmitted to the General Attorney's Office too.
Mr Patel's co-accused have not been indicted yet. Yet, it is hoped that Mr Patel can be indicted with them."
"To my mind the often repeated mutual trust and confidence principle applicable to all extradition requests, not just those in part 1 EAW matters, cannot be understated. My reasoning for refusing an adjournment to hear Herr Jung is simple. The EAW in my judgment is open to little if any confusion as to its purpose i.e. accusation for the purposes of actual prosecution. The ambiguity, if it exists, arises from extrinsic material namely Herr Jung's evidence. On one view that should not have been considered. It was and has been. However, having had the Judicial Authority's full and clear response of 14th July 2010 to my mind one is back to an unambiguous position. To hear evidence, never mind, as Mr Fitzgerald invited, to expect a further live response from the Judicial Authority in the witness box under cross examination, flies in the face of the clear and substantial body of case law. Accordingly, I find this EAW complies with s. 2 Ex Act 2003 being a EAW issued for the purpose of prosecution not mere investigation."
The Grounds of Appeal
Submissions and Discussion
"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."
The Article goes on to direct that Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and Recital 10 to the Framework Decision states that the mechanism of the European Arrest Warrant is based on a high level of confidence between Member States.
(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), or
(3) The statement is one 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.
"It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of 'accused' persons. It is also common ground that it is not enough that he is in the traditional phrase 'wanted by the police to help them with their enquiries'. Something more is required. What more is needed to make a suspect an 'accused' person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdiction, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word 'accused' within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that the 'accused' in section 1 of the Act of 1989 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 transnational 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 it in order to facilitate extradition: R v Governor of Ashford Remand Centre, ex part Postlethwaite  AC 924 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 formal acts of the 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.
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 an 'accused' ought to be adopted in order to accommodate the difference 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 requirement 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 light of the diversity of cases which may come before the courts it is right to emphasis that ultimately the question is whether a person is 'accused' within the meaning of section 1of the Act of 1989 will require an intense focus on the particular facts of each case."
"Sometimes evidence, both factual and expert, is sought to be adduced to demonstrate that the criminal proceedings in the requested state have not got to the stage of a prosecution. The question that arises is: in what circumstances (if any) should the court consider extrinsic evidence when it appears to the court that it is an "accusation case" (as opposed to a "conviction case"), but there is an issue between the parties on whether the purpose of the surrender sought by the EAW is, in fact, for the purpose of the requested person being prosecuted as an accused person, as opposed to being for the purpose of that person being questioned with a view to possible prosecution thereafter."
The court reviewed the cases and at paragraph 38 of the judgment summarised the effect of the authorities as follows:
"(1) The court will look at the warrant as a whole to see whether it is an 'accusation case' warrant or a 'conviction case' warrant. It will not confine itself to the wording on the first page of the warrant, which may well be equivocal.
(2) In the case of an 'accusation case' warrant, issued under Part 1 of the Act, the court has to be satisfied, looking at the warrant as a whole, that the requested person is an 'accused' within the meaning of section 2(3)(a) of the Act.
(3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.
(4) The court must construe the words in section 2(3)(a) and (b) in a 'cosmopolitan' sense and not just in terms of the stages of English criminal procedure.
(5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.
(6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.
(7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clean contrary to the aspiration of the Framework Decision, which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged, except in exceptional cases."
"Under article 1 of the Framework Decision the EAW is a judicial decision issued by the requesting state which this country (subject to the provisions of the Decision) must execute on the basis of the principle of mutual recognition. It might in some circumstances be necessary to question statements made in the EAW by the foreign judge who issues it, even where the judge is duly authorized to issue such warrants in his category 1 territory, but ordinarily statements made by the foreign judge in the EAW, being a judicial decision, will be taken as accurately describing the procedures under the system of law he or she is appointed to administer."
"The respondent's case is simple. The Spanish prosecutor has asserted in terms and without qualification in a formal court document that "there is no risk to life proven by any of the facts" and "it is not proven that the defendants hid their faces with balaclavas or similar items". That constrained a reduction of the charges from "Estragos" to "Danos". The judge gave judgment on this factual basis, not only with reference to the defendant's pleas, but also to documentary evidence. The Respondent was charged jointly with other Defendants There is no evidence or other basis before this court for distinguishing between him and his relevant co-defendants. The Spanish prosecutor, therefore, by his own positive statement has no evidential basis for reverting to "Estragos" charges and the Spanish judge has positively endorsed this by his judgment.
64. The 2010 Warrant does not, therefore, give particulars of conduct capable of constituting a viable extradition offence so that it does not contain a description of the conduct alleged which is proper, fair and accurate. It is not proper or fair because it is improper and unfair to seek the extradition of a person upon charges which the courts own document show cannot be proved in their most material particular; that is to say, risk to life. It is not accurate because the lesser charges which could properly be alleged are not those alleged in the warrant."
"Perhaps appreciating that the matter, on the face of the arrest warrant, was not altogether clear, a number of requests have been directed to the Czech authorities seeking further information."
"If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to enquire into the situation and ensure that its procedure is not being so abused. Usually, no doubt, such enquiry would be prompted by a complaint on the part of the defendant. But the duty of court in my view exists even in the absence of a complaint."
"83. The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused if put on inquiry as to the possibility of this. The judge will usually, though not inevitably, be put on inquiry as to the possibility of abuse of process by allegations made by the person whose extradition is sought.
84. The judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics. No steps should be taken to investigate an alleged abuse of process unless the judge is satisfied that there is reason to believe that an abuse may have taken place. Where an allegation of abuse of process is made, the first step must be to insist on the conduct to constitute the abuse being identified with particularity. The judge must then consider whether the conduct, if established, is capable of amounting to an abuse of process. If it is, he must next consider whether there are reasonable grounds for believing that such conduct may have occurred. If there are, then the judge should not accede to the request for extradition unless he has satisfied himself that such abuse has not occurred."
Lord Justice Pill: