England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		26 September 2012

1. MR JUSTICE BEAN: This is an appeal against a decision of District Judge Evans on 8 May 2012 at Westminster Magistrates' Court ordering the extradition of the appellant to stand trial in respect of one offence set out in a European Arrest Warrant.
2. No substantive arguments were raised in the Magistrates' Court. It is conceded by Mr Harbinson for the requesting state, and rightly so, that where a pure point of law is raised which was not spotted in the Magistrates' Court, goes to the validity of the arrest warrant and does not depend on evidence, it is open to counsel for the appellant to raise the point in this court (see Hoholm v the Government of Norway).
3. The appellant, at that stage acting in person, lodged an appellant's notice in due time raising a number of points. It is not necessary to go into them. Suffice it to say that I do not think any of them would have any prospect of success. But in his skeleton argument Mr Pons, who appears for the appellant in this court and did not appear below, raises two issues set out in paragraphs 2(i) and 2(ii) of his skeleton argument. First, the District Judge was wrong to conclude that the European Arrest Warrant was compliant with section 2 of the 2003 Act. Mr Pons argues that the warrant is invalid and fails to provide sufficient information about the circumstances of the alleged offence in accordance with the requirements of section 2(4)(c) of the Act. Secondly, the District Judge was wrong to conclude that the single offence contained within the warrant is an extradition offence within the meaning of section 64(2) or (3) of the 2003 Act, and accordingly should have ordered his discharge.
4. I give leave to have those two grounds substituted for the original grounds of appeal.
5. The description of the offence in section E of the warrant is as follows:

i. "Since September 2007, the accused, as Administrator of the company CASHBACK & SALES, with head office in Mijas (Fuengirola), diverted funds, belonging to third-parties that the company received for investments with guaranteed profit, to cover personal or other people interests alien to the company and beneficiaries of it. SAID CRIMINAL OFFENCE TOOK PLACE IN MIJAS, JUDICIAL DISTRICT OF FUENGIROLA. (MALAGA) (SPAIN)."

6. As Mr Pons submits, this paragraph does not specify the time period of the offence beyond the fact that it has occurred since September 2007. On its own that might not be very significant. But, more importantly, the warrant says nothing about how much money was diverted; how many people's money was diverted, let alone their identity; when the money had been invested and for how long and on what terms; nor how the money was diverted nor where it was diverted to.
7. Section 2(4)(c) of the Act requires an arrest warrant under Part 1 of the Act issued by a Judicial Authority of a Category 1 territory to contain the following information:

i. "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..."

8. In Ektor v Netherlands [2007] EWHC 3106 (Admin), Cranston J said at paragraph 7:

i. "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."

9. In Von Der Pahlen v the Government of Austria [2006] EWHC 1672 (Admin), Dyson LJ (as he then was) had gone rather further. He said:

i. "21. The language of section 2(4)(c) is not obscure and, in my judgment, it should be given its plain and ordinary meaning. The sub-section requires the warrant to obtain particulars of the circumstances in which the person is alleged to have committed the offence. These particulars must include four elements: (1) the conduct alleged to constitute the offence; (2) the time and (3) the place at which he is alleged to have committed the offence; and (4) any provision of law under which the conduct is alleged to constitute an offence. Elements (2), (3) and (4) are plain enough, although questions may arise as to how specific the descriptions of time and place need to be. The difficulties in the present case centre on element (1). The use of the introductory word 'particulars' indicates that a broad omnibus description of the alleged criminal conduct, 'obtaining property by deception', to take an English example, will not suffice.

ii. 22. How far does the warrant have to go? It would be unwise to attempt a prescriptive answer to this question, and I do not do so. But I am in no doubt that the warrant in this case did not go far enough. In the first charge, the warrant gave no details of the identity of the victims of the fraud, the number and size of the advanced payments (except that in aggregate they exceeded €50,000), or the nature of the fraudulent misrepresentation. Is it alleged that the appellant pretended to sell single family houses when he was in fact offering something else? Or is it that he pretended to sell single family houses when he was not offering anything for sale? A similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works."

10. Applying that test, and in particular the second of the two paragraphs I have quoted from Dyson LJ's judgment, it seems to me that the information provided in box E of the EAW in the present case comes nowhere near satisfying the particularity requirements of section 2(4)(c), for all the reasons given by Mr Pons in his submissions which I recited earlier.
11. It follows that the European Arrest Warrant is invalid on this ground and the appeal must succeed, and the order of the District Judge must be quashed.
12. This would not, as I see it, prevent the judicial authorities in Fuengirola from issuing, if they see fit, another warrant, properly particularised so as to satisfy the requirements of section 2(4)(c) as interpreted by Dyson LJ in Von der Pahlen v Austria.
13. This conclusion makes it unnecessary for me to consider whether the conduct alleged is an extradition offence. Had the information in the warrant been particularised sufficiently to comply with section 2, I do not think that Mr Pons' separate point on section 64 would have succeeded. I was inclined to agree with Mr Harbinson's submissions that what was alleged would constitute either or both of the English offences of theft and fraud, but it is unnecessary to decide the point and I have not heard oral argument on it.
14. For the reasons I have given, the appeal is allowed.
15. MR PONS: My Lord, I am grateful. Can I please ask for an order for the appellant's costs to be assessed under the representation order in the usual terms?
16. MR JUSTICE BEAN: Yes. Thank you, Mr Pons.