QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE GRIFFITH WILLIAMS
| THE GOVERNMENT OF THE UNITED ARAB EMIRATES
|- and -
|AMANDA JANE ALLEN
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Miss Julia Faure-Walker (instructed by Hodge Jones & Allen LLP) for the Respondent
Hearing date: 14 June 2012
Crown Copyright ©
Lord Justice Toulson:
"In the event of a default or failure by me to effect payments of the outstanding amount under my Credit Card Account…I hereby authorise [the bank] to insert the date on the said cheque if undated and present it for payment."
"I/we will advise the Bank in writing in the event of any change in my/our circumstances in the period between the loan application and the date of opening of the loan account."
The issues and the legislative framework
(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) –
(c) particulars of the offence specified in the request…
(4) If the judge decides that question in the affirmative he must decide whether –
(b) the offence specified in the request is an extradition offence…
(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.
"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."
"It was on 30/12/2009, in Abu Dhabi jurisdiction, with a bad intention she has given to Abu Dhabi Commercial bank an uncovered cheque of amount of 2,337,500 Dhirams to be withdrawn in the same bank, but they did not have balance that was liable for withdrawal."
"…she has given the victim (beneficiary) a cheque of an amount of 2,377,500 Dhirams to be withdrawn at Abu Dhabi Commercial Bank and the bank stated that the accused has no credit which is liable for withdrawal thus the pillars of crime of issuing an uncovered cheque have been established…"
"the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom."
"there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him."
(1) A person is in breach of this section if he –
(a) dishonestly makes a false representation, and
(b) intends, by making the representation –
(i) to make a gain for himself or another or,
(ii) to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if –
(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.
(3) "Representation" means any representation as to fact or law, including a representation as to the state of mind of -
(a) the person making the representation, or
(b) any other persons.
(4) A representation may be expressed or implied.
1. By providing the cheque the respondent represented that in the event of the cheque being presented it would in the ordinary course be met.
2. The representation became false when at or prior to 30 December 2009 the respondent depleted her account, or failed to maintain it in credit, so as to render the balance insufficient to meet the cheque on presentation.
"I think the real representation made is that the cheque will be paid. It may be said that that is a representation as to a future event. But that is not really so. It means that the existing state of facts is such that in the ordinary course the cheque will be met."
"We can see no reason why in the case of a post-dated cheque the drawer does not impliedly represent that the existing facts at the date when he gives the cheque to the payee or his agent are such that in the ordinary course the cheque will, on presentation on or after the date specified in the cheque, be met.
Take the case where, as in this instance, a post-dated cheque is issued when the account is heavily overdrawn and there is, as the drawer well knows, no prospect of any future funds being paid into the account before the date when the cheque matures or of the bank providing other overdraft facilities before that date. In such a case it appears to us the drawer is as much guilty of deception as he would be in the case of a cheque which is not post-dated."
"My Lords, the distinction in law between a promise as to future action, which may be broken or kept, and a statement as to existing fact, which may be true or false, is clear enough. There may be inherent in a promise an implied statement as to a fact, and where this is really the case, the court can attach appropriate consequences to any falsity in, or recklessness in the making of, that statement. Everyone is familiar with the proposition that a statement of intention may itself be a statement of fact and so capable of being true or false. But this proposition should not be used as a general solvent to transform the one type of assurance with another: the distinction is a real one and requires to be respected, particularly where the effect of treating an assurance as a statement is to attract criminal consequences, as in the present case."
"For the purposes of this section "deception" means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person."
"It might perhaps be thought from the manner in which Viscount Dilhorne expressed himself that he considered that in the case of offences under sections 15 and 16 of the Theft Act 1968 the relevant representation need not be a representation of existing facts, but can extend to include a representation as to the future. However, both Lord Diplock and Lord Edmund-Davies made it plain that the relevant representation must be a representation as to existing facts. This was certainly so under the old law relating to obtaining by false pretences before the coming into effect of the Theft Act 1968, and that this is still so is (putting on one side the immaterial reference to a representation of law) plain from the definition of deception in section 15(4) of the Act of 1968, referring as it does to deception by words or conduct as to fact, and also confining a representation as to intentions to the present intentions of the accused."
"There must be a misstatement of an existing fact: but the state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else. A misrepresentation as to the state of a man's mind is, therefore, a misstatement of fact."
"The concept of fraudulent misrepresentation is well established in both the civil and criminal law. It may be defined as an assertion of a proposition which is untrue or misleading, either in the knowledge that it is untrue or misleading or being aware of the possibility that it might be. The assertion may be expressed, implicit in written or spoken words, or implicit in non-verbal conduct. The proposition asserted may be one of fact or of law. It may be as to the current intentions, or other state of mind, of the defendant or any other person: for example, a person who orders a meal in a restaurant thereby impliedly claims to have not only the means of payment but also the intention to pay. An assertion as to future events will not suffice; but this is academic, since such an assertion would be dishonest only if the maker of the assertion knew that it was likely to prove untrue – in which case the maker would be making a false assertion about a present fact, namely the maker's own state of mind". (Original emphasis)
"The pre-1968 concept of "false pretence" did not include a misrepresentation as to the defendant's state of mind: Dent  2 QB 590. Such a misrepresentation is sufficient for the tort of deceit, however (Edgington v Fitzmaurice (1885) 29 Ch D 459), and section 15(4) of the Theft Act 1968 expressly provides that "deception" includes a deception as to the present intentions of the person using the deception or any other person. Clause 2(3) of our draft Bill similarly provides, for the avoidance of doubt, that, for the purpose of the new fraud offence, "representation" includes a representation as to the intentions of (a) the person making the representation or (b) any other person."
Mr Justice Griffith Williams: