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
		29 November 2012

1. MR JUSTICE COLLINS: This is an appeal against the decision of District Judge Snow, given on 10 September 2012, ordering the appellant's removal to Poland to face seven offences. Six of them alleged money laundering, the money in question being the proceeds derived from the smuggling of cannabis from Holland to the United Kingdom. One of the charges, number 6, alleged the direct involvement in the smuggling of some 9½ kilograms of cannabis from Holland to the United Kingdom.
2. The ground upon which the appeal is brought is that the arrest warrant does not comply with section 2(4)(c) of the 2003 Act. This requires that the information contained in the warrant provides 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 this Category 1 Territory under which the conduct is alleged to constitute an offence.
3. Section 2(4)(c) is an implementation of Article 8 of the framework decision. Paragraph 1 of Article 8 provides as follows:

"The European Arrest Warrant should contain the following information set out in accordance with the form contained in the annexe:

(a) The identity and nationality of the requested person;

(b) The name address and telephone fax numbers and e-mail address of the issuing judicial authority,

(...)

(e) The description of circumstances in which the offence was committed including the time, place and degree of participation in the offence by the requesting person".

4. The words "the conduct alleged to constitute the offence" are the transcription of the degree of participation. The approach that is to be adopted by the Court in considering 2(4)(c) has been set out by Cranston J in Ektor v National Public Prosecutor of Holland [2007] EWHC 2316 (Admin). His words have been applied and accepted as the correct approach subject to one small proviso which I will deal with in most subsequent cases. What Cranston J said so far as material is this:

"(...) 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."

5. The small reservation is one that comes from observations of Calvert-Smith J in Kopycki v Provisional Court of Lodz Poland [2012] EWHC 722 Admin, where he says:

"9. The phrase from the passage I have just quoted 'and what involvement the person named in the warrant had' might be thought to be overstating the position slightly. A person charged as a principal to a particular offence will no doubt know in this jurisdiction that he is facing an accusation involving an incident on a particular day or between particular dates, but it may be that the evidence in the possession of the prosecution may point to a number of possible conclusions as to the degree of his involvement.

10. If one takes an incident in which a number of people are involved in an attack on another in the street in which both stab wounds and blunt weapon injuries are caused, there may be differences between the witnesses as to who did what (...)."

All he is indicating there is that the precise nature of the involvement may not be needed; indeed, it is not needed. What Cranston J was intending to cover by the use of the words "what involvement the person named had" was, no doubt, what is contained in Article 8, that is to say the degree of participation and what section 2(4)(c) provides itself, namely the conduct alleged to constitute the offence.

6. Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient. Indeed, if one looks at the case of Kopycki itself, one sees that that approach is likely to have appealed to Calvert-Smith J.
7. In that case, there were in fact two offences alleged. The first was between October 2004 and March 2005 in a place in Poland, and other locations in Poland and other countries, the appellant took part in an organised criminal group led by a named person, together with known and unknown persons. The group committed offences by smuggling considerable quantities of narcotic drugs in the form of cocaine in the territory of the European Union.
8. The second was between the same dates in Poland, Spain and other countries, he took part in trading in narcotic drugs in the form of cocaine. The quantity of cocaine was at least 3 kilogrammes. The suspect acted for his financial profit in the conditions of an organised criminal group. It was accepted in that case that both those charges ought to be read together. Indeed, it is common ground that in approaching a warrant which sets out a number of offences, in particular, the warrant as a whole must be taken into account. That is particularly important where the allegation is a number of offences amounting to a course of conduct or a conspiracy in one charge and maybe acts or what could amount to acts in furtherance of that conspiracy in other charges. The whole can properly and should properly be looked at together. In the case of Kopycki, that is precisely what was done. It was decided that, when one looked at that as a whole, it gave him the sufficient particulars that were required by section 2(4)(c) and Article 8 of the Framework decision.
9. It is to be noted that Calvert-Smith J took the view that it was, to a degree, something of a borderline case in the sense that he decided that it did fall on the right side so far as the requesting state was concerned. But it was, as I say, borderline.
10. There were two appeals, one by the requesting authority, the other by the requesting person. The District Judge had drawn a distinction between the two offences and concentrated only on the first offence and decided that, on that, there was not enough to meet the requirements of section 64(3)(b). But Calvert-Smith J took the view that that was the wrong approach because she should have looked at the offences together and treated the warrant as a whole.
11. Here, it is clearly right to look at the seven charges as a whole. I do not need to set them all out because there is a degree of similarity between them. Numbers 1 to 4 allege (1 and 2 in the summer of 2008, 3 and 4 in October 2008) that in the UK and in Holland, acting in conspiracy with three named persons, the appellant conducted activities that could prevent or might have seriously hindered the determination of the criminal origin of the funds. That is, he accepted and passed funds (and the amounts are given) being the proceeds of the crime, namely transportation of significant amounts of cannabis from Holland to the United Kingdom. It is to be noted that in those first four charges it is not suggested that the activities occurred in Poland.
12. Charge 5 is a similar one to 1 to 4, save that the date is November 2008 and, in addition to the UK and Holland, Poland is also alleged. 6 and 7, to an extent, go together. 6 alleges that at the turn of 2008 and 2009, acting contrary to the statutory provisions in conspiracy with two of the named persons, the appellant transported from Holland to Great Britain significant amounts of intoxicants in the form of at least 9 ½ kilograms of cannabis. 7 alleged that at the turn of 2008 and 2009 in the UK, Holland and Poland, acting in conspiracy with 3, that is to say the additional one to the two involved in 6, he conducted the same money laundering activities as were alleged in charges 1 to 5. Those are the particulars of the offences which are alleged in the warrant.
13. Ms Scott submits that what we have here is an overall conspiracy to launder the proceeds of cannabis being smuggled from Holland to the United Kingdom. That does indeed sufficiently indicate what the appellant's role was. If one looks at the judgment of the District Judge, he records the submissions of the judicial authority which are, effectively, reflected before me. There were as follows:

"A. The requested person was acting in conspiracy with several others, including named individuals;

B. The conspiracy was international in nature and related to the trafficking of cannabis from the Netherlands to the United Kingdom;

C. In furtherance of the conspiracy, a consignment of cannabis weighing at least 9.5 kilos was transported from the Netherlands to the United Kingdom at the turn of the year 2008-2009;

D. A further part of the conspiracy concerned the organised money laundering proceeds of the drugs;

E. The laundered proceeds were worth at least £118,000 in total, passed in six tranches;

F. The conduct took place from the summer 2008 until the start of 2009;

G. Some of the acts in furtherance of the conspiracy took place in Poland; and

H. So far as the requested person's role is concerned, it is plain that he was one of the individuals directly involved in importation from the Netherlands to the United Kingdom, the smuggling out from the United Kingdom of the serving currency received by way of sale or proceeds. In other words, his role was not at street level, nor is he alleged to have been the head of the organisation."

14. The difficulty with that, particularly H, seems to me to be this: he was not alleged to have been involved directly in the importations prior to that alleged in number 6. Furthermore, so far as numbers 1 to 4 are concerned, it was not alleged that any activity, by way of the money laundering, took place in Poland. It is only when one comes to number 5 that one finds that Poland is named as a place where that conduct is alleged to have occurred.
15. Of course, I entirely accept, and indeed the authorities make clear, that one does have to look at the warrant as a whole. But it seems to me, in the circumstances of what is alleged here, it is not easy to regard this as a single conspiracy in which the appellant was involved in the way that is recorded by the District Judge.
16. True it is that the fact that a number of different conspiracies have been chosen in the warrant does not of itself mean that it is wrong in any way to regard it that it is a single conspiracy if the material so indicates. However, when one comes to look at the further information, which of course I recognise cannot be taken into account in deciding whether there is compliance with 2(4)(c), but was before the court because there was also an argument raised that these were not extraditable offences, what is said in that is that the money laundering dealings by the appellant took place in the United Kingdom. His role was actually to pass the sterling, which was obtained from the sale of cannabis, to others so that it was exchanged into euros to finance the purchases of further drugs. Also, the currency exchange operated, apparently, both in Poland and in Holland.
17. So far as the transport offences are concerned, it is said that he did not take any action in Poland, but his collaborators in Poland obtained the euros to finance the purchase in Holland, the cannabis was subsequently taken to the United Kingdom, and that he was amongst those that dealt with the latter. It is submitted that those words show that he was involved in the smuggling. Whether it goes that far, I am not sure.
18. Then it goes on:

"All his alleged money laundering offences were closely linked together through their recurrence. His role in the United Kingdom was to obtain the British clients from the sale of the drugs and hand it over to other collaborating subjects so as to take it to Poland for the exchange of euros, the latter then to be used to purchase marijuana in Holland in order to transmit the latter and sell it in the UK. The materials held in Poland indicate that he was fully aware of the fact that the pounds he passed onto others originated from the sale of the drugs as he was a link in the chain."

19. That is fine. Had anything of that nature, even a very short resume indicating that been included in the warrants, there would have been no argument. Unfortunately, it was not. I of course recognise that in many ways this appellant will not have been misled as to what actually he was charged with. But the reality is, in my view, that the warrant as set out really does not indicate clearly what is required for the purposes of 2(4)(c). In particular it is difficult to treat all the offences as a single conspiracy when one finds the distinctions between 1 to 4, 5, 6 and 7. In particular, there is the absence of any reference to Poland in 1 to 4. That is strange in the light of the further information given because it seems clear that what is alleged here is that indeed there was activity in Poland because it was in Poland that the pounds were changed into euros; that is the allegation and he was aware that that was the arrangement. But that is not clear from the warrant.
20. Although one can look at it together as a whole, it is by no means clear in my view that one can regard this as a single conspiracy, in particular as to what his role was. It does need to give an indication of what the main allegation against him was and that could so easily have been done. In my view it was not done.
21. In those circumstances, I am afraid I take the view that this is a case where I have to allow this appeal and direct the discharge of this appellant. That of course does not preclude the authority from issuing a fresh warrant which contains the necessary information. It is not difficult for that to be done and I appreciate that there is a degree of artificiality in the decision I have reached. But that is inevitable because the law is that it is not possible to go outside the warrant itself in considering whether there has been compliance with 2(4)(c). Even if the matter can be easily cured and a fresh warrant can be issued, nonetheless it is important that the provisions of the law are properly followed and properly complied with. Accordingly, as I say, this appeal in my view has to be allowed.
22. MS KAPILA: My Lord, there's one correction. I may have misheard, but I think, when describing charges 1 to 4 initially, you said that they made no reference to Holland.
23. MR JUSTICE COLLINS: Did I say Holland? I meant Poland.
24. MS KAPILA: The only other matter is that there is a representation order. Can I ask for the usual order in relation to public funds?
25. MR JUSTICE COLLINS: Do you want costs out the central funds?
26. MS KAPILA: Yes please.
27. MR JUSTICE COLLINS: You can have them.