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Cite as: [2012] EWHC 697 (Admin)

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		Neutral Citation Number: [2012] EWHC 697 (Admin)
		Case No: CO/8719/2011

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

Royal Courts of Justice
Strand, London, WC2A 2LL

28/03/2012

B e f o r e :

LORD JUSTICE MOORE-BICK
MR JUSTICE KING
____________________

Between:

	SANJAY DHAR	Appellant
	- and -
	NATIONAL OFFICE OF THE PUBLIC PROSECUTION SERVICE THE NETHERLANDS	Respondent

____________________

Simon Farrell QC (instructed by David Phillips and Partners) for the Appellant
James Stansfeld (instructed by CPS) for the Respondent
Hearing dates: 29th November 2011
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice King :

The appellant appeals under section 26 of the Extradition Act 2003 (the Act) against the decision of the 7^th of September 2011 of District Judge Tubbs sitting at the City of Westminster Magistrates' Court to order under Part 1 of the Act the appellant's extradition to the Netherlands for the purpose of being prosecuted in relation to one offence of money laundering.

The European Arrest Warrant

The appellant's extradition is sought pursuant to a European Arrest Warrant (EAW). The warrant is an accusation warrant that is to say it seeks extradition for the purpose of a prosecution.

The warrant was issued on its face by the judicial authority described as 'the National Office of the Public Prosecution Service' and its representative Mr G C Bos, holding the post of Public Prosecutor. On this see box (i) of the warrant, headed 'the judicial authority which issued the warrant'.

Again on its face, on its last page, in the box headed 'Signature of the issuing judicial authority and/or its representative', the warrant is dated the 9^th of June 2011 over which appears an official stamp, in the name of Mr G C Bos, again described as holding the post of Public Prosecutor. It is however apparently signed by Mr G Visser, or at least Mr Visser's name is stamped and a signature appears over it. Mr Visser is described as "Officier van Justitie". In other words the warrant appears have been stamped and signed on the 9^th of June 2011, by someone describing himself as " Justice Officer" on behalf of Mr Bos described as 'Public Prosecutor'.

Again on its face, the warrant has been annotated by hand at box (b) under the heading 'Decision on which the warrant was based', to give the information apparently not present in the warrant when it was signed on the 9^th of June 2011, namely that of an Arrest Warrant 'issued by Public Prosecutor GC Bos on 9^th June 2011'. These handwritten particulars are signed and dated by hand the 13 of June 2011. The identity of the signatory is not given.

The certifying of the warrant

The EAW was certified pursuant to section 2(7) of the Act by the Serious Organised Crime Agency (SOCA) on the 13 of June 2011. SOCA is the designated authority for the purposes of Part 1 of the 2003 Act.

Under section 2(7) of the Act the designated authority "may issue a certificate under this section if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory". Under section 2(8), a certificate under this section "must certify that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory.

In this case the certificate read as follows:

"On behalf of the Serious Organised Crime Agency I hereby certify that the Part 1 warrant signed by Mr G Visser, Justice Officer on behalf of Public Prosecutor G C Bos, National Office of the Public Prosecution Service, The Netherlands on the 9th June 2011 and further annotated by Public Prosecutor Bos on 13 June 2011 for the arrest of Sanjay DHAR for one offence against article 420 of the Dutch Criminal Code was issued by a judicial authority of a category 1 territory which has the function of issuing arrest warrants"

The execution of the warrant

The warrant was executed the next day, that is to say the appellant was arrested under the EAW on 14 June 2011 and produced before the City of Westminster Magistrates Court the same day; The appellant did not consent to his extradition and the hearing was opened and adjourned to the 1^st June 2011. Following further adjournments the extradition hearing at which the appellant was represented was heard on the 2nd of August 2011. DJ Tubbs reserved judgment and handed down judgment ordering extradition on 7 September 2011.

This court's powers on appeal: section 27 of the Act

Under section 27 of the Act the High Court may allow an appeal or dismiss an appeal (27(1)).

Under subsection (2) the court may allow an appeal only if the conditions in subsection (3) or those in subsection (4) are satisfied.

The subsection (3) conditions as applicable to this case, are that the District Judge ought to have decided a question before her at the extradition hearing differently and in addition that if she had decided the question in the way she ought to have done, she would have been required to order the appellant's discharge.

The subsection (4) conditions (again as they apply to this case) are that an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; the issue or evidence would have resulted in the District Judge deciding a question before her at the extradition hearing differently; if she had decided the question in that way, she would have been required to order the appellant's discharge.

The material questions

The questions before the District Judge material to this appeal arose first under section 2(2) of the Act defining what is meant by a Part 1 warrant for the purposes of Part 1 of the Act under which this extradition was ordered, the question being whether this warrant was such a Part 1 warrant; and secondly, under section 10 of the Act, under subsection (3) of which the judge had to decide whether the offence specified in the Part 1 warrant was an extradition offence.

As will be seen, it is not in dispute that if any of these questions had been decided differently, the District Judge would have been required to order the appellant's discharge.

Section 2(2): the definition of a Part 1 warrant

Section 2 of the Act applies 'if the designated authority (that is to say SOCA) receives a Part 1 warrant in respect of a person'. See section 2(1).

This appeal concerns an accusation warrant. Section 2(2) provides as far is material to such a warrant as follows:

(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)…

(3) The statement is one that 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) The information is –

(a) the particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) 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 the offence;

d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it;

It is common ground that the District Judge was obliged at the outset of the extradition hearing to satisfy herself that the warrant with which she was dealing was a Part 1 warrant within the meaning of section 2(2) (see Lord Hope in Dabas v High Court of Justice in Madrid Spain [2007] UKHL 6, [2007] 2 AC 31. If it was not, the remaining provisions of Part 1 could not have applied to it and the court would have had no jurisdiction to make the order it purportedly did (see again Lord Hope, supra). This is why it is not in dispute that if this particular warrant were not a Part 1 warrant within the meaning of section 2(2), the District Judge would have been obliged to have discharge the appellant.

Consistent with the above, it is established that the requirements which have to be met under section 2(2) are strict mandatory requirements which go to the jurisdiction of the court and if on the face of the warrant, they are not met, the warrant is invalid and the proceedings can go no further. This principle must apply to the requirement that the warrant be issued by a judicial authority (see the opening lines of section (2)(2)) as much as to the requirement that it contain the information referred to in subsection (4).

Further such is the strictness of this principle, it is equally well established that if the warrant does not on its face contain the information required by subsection (4), the deficiencies cannot be made good by recourse to extraneous information. To quote the words of Lord Hope in Dabas in paragraph 50 already referred to:

"A warrant which does not contain the statements referred to in that subsection cannot be eked out by extraneous information"

Section 10: the test of dual criminality

Section 10(2) required the District Judge at the extradition hearing to decide whether the offence specified in the Part 1 warrant was an extradition offence and under subsection (3) she was obliged to order the appellant's discharge if she answered the question in the negative.

The meaning of an extradition offence for these purposes is to be found in section 64 of the Act which, in subsections (2) and (3) respectively sets out two sets of conditions referable to the conduct of the requested person, according to whether or not 'no part of the conduct occurs within the United Kingdom'(see subsection (2)). Where as in this case part of it is alleged to have taken place in this country, the applicable conditions which must be satisfied are those set out in subsection (3), which include, material to this appeal, what is known as a dual criminality test requiring that the conduct is not only an offence under the law of the requesting state, but would also constitute an offence under the law OF England if it occurred in England (see section 64(3)(b) below).

Thus section 64(3) provides as follows:

'(3) 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 category1 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…'

The European Framework Decision

It is further common ground that the Act was enacted to give effect to the European Council Framework Decision of 13 June 2002. Hence although it is the provisions of the Act which must be construed material to the issues raised on this appeal, and Parliament did not in those provisions mirror word for word the Articles of the Framework Decision, nonetheless the wording of those provisions must be construed purposively in the context of the objects of the Framework Decision and its material Articles.

These objects are identified in the recitals to the Preamble of the Framework Decision. The overall objective was to simplify and expedite procedures for the surrender between states, of those accused of crimes committed in other member states, and to this end to abolish extradition between member states and substitute a system of surrender between judicial authorities and a system of free movement of judicial decisions in criminal matters (see recital (5). As Lord Bingham said in Dabas (paragraph 4) by reference to recital (6), "this is to implement the principle of mutual recognition… the corner stone of judicial co-operation" and "the important underlying assumption of the Framework Decision is that member states, sharing common values and recognising common rights, should trust the integrity and fairness of each other's judicial institutions".

Against these considerations must be set those of which Mr Farrell QC on behalf of the appellant reminded the court, namely that the liberty of the individual is at stake in extradition proceedings and a person whose removal is sought under these procedures has the right to "expect that the procedures are adhered to according to the requirements laid down in the statute" (per Lord Hope in Office of the King's Prosecutor (Brussels) v Cando Armas [2005] UKHL 67).

The grounds of Appeal

Issues raised before the District Judge

The written grounds of Appeal identified three issues:

1. The European Arrest Warrant is invalid as when it was issued on the 9^th of June it did not contain an indication of the judicial decision on which it was based as required by section 2 of the Act. It was thus void ab initio. This ground is translated in the Appellant's skeleton argument as whether the warrant is invalid for failure to comply with section 2(4)(b) of the Act;

2. The EAW is invalid as the conduct described in the warrant is not adequately particularised as required by section 2 of the 2003 Act. This ground is translated in the skeleton argument as whether the warrant is invalid for failure to comply with section 2(4)(c) of the Act;

3. The conduct described in the EAW does not satisfy the necessary requirement of "dual criminality" as required by section 64(3) of the Act. This ground is translated in the skeleton argument as whether the conduct for which the Appellant's extradition is sought is an extradition offence for the purposes of section 10 of the Act.

These were all grounds for resisting extradition raised at the extradition hearing before the District Judge, albeit unsuccessfully.

Additional Issue

In addition the appellant's skeleton argument seeks to raise a further ground which was not raised before the Magistrates Court namely "whether the Prosecutor in The Netherlands is a 'judicial authority' for the purposes of section 2(2) of the Act". This can be translated as whether the warrant is invalid for failure to comply with the requirement of section 2(2) that it be issued by a judicial authority.

For my part I consider the appellant is entitled to raise this new issue having regard to the provisions of section 27(2) and (4) of the Act. This is an issue for reasons already explained which went to the jurisdiction of the court to proceed under Part 1 and to order the extradition it did.

Consideration of these grounds

I turn now to consider these individual grounds of appeal.

Ground 1: Whether the National Office of the Public Prosecution Service, the Netherlands, is a judicial authority for the purposes of section 2(2) of the Act

It is convenient to start with the additional issue. Mr Farrell invited us to allow him to have this issue adjourned, pending the outcome of any appeal to the Supreme Court from the recent decision of this court in Assange v Swedish Prosecuting Authority [2011] EWHC 2849 in which the question of whether a Prosecutor can be a judicial authority for these purposes was extensively considered and answered in the affirmative. I for myself however see no reason not to consider this issue in this particular appeal. Asssange is not a decision binding upon us, but is nonetheless of considerable persuasive authority.

The Act does not itself define a judicial authority or contain any deeming provision. The argument for the appellant is that the ordinary principles of statutory construction whereby the words must be given their plain and ordinary meaning, must apply. On these principles a warrant issued by a Public Prosecution Office in the name of a Public Prosecutor cannot be a warrant issued by a judicial authority since such a body would not be recognised as such in this country. Such a body, so the argument runs, lacks the essential characteristics of a judicial authority which is that it should be independent of both the Executive and the Prosecution and should be a person or body exercising judicial power, such as a court or a judge. In support of this submission Mr Farrell prayed in aid the record in Hansard of various statements made by ministers in Parliament during the passage of the bill which was to become the 2003 Act, to the effect that all EAWs were to come from a "judicial source". I doubt whether he was entitled to do that, since he did not suggest that he could bring this case within the principles set out in Pepper v Hart [1993] AC 593 but these passages together with others were referred to by this court in Assange (at paragraph 26).

The status of the certificate

The respondent accepts that in principle such a new issue can be raised on appeal but this acceptance is subject to the submission that this particular issue cannot so be raised because of the conclusive nature of the certificate issued by SOCA under section 2(7) of the Act. This it is said is conclusive evidence that not only does the authority issuing the warrant in the requesting state have the function of issuing such warrants, but that such authority is a judicial authority for the purposes of the Act. The respondent submits that the only way to raise this issue is by way of challenge to the certificate by an application for permission to judicially review the decision of the designated authority to grant the certificate. In support the Respondent relies upon the decision of this court in Harmatos v Office of the King's Prosecutor in Dendermond,Belgium [2011] EWHC 1598 (Admin) where this approach was accepted following on the habeas corpus procedure in Enander v The Governor of Her Majesty's Prison Brixton,The Swedish National Police Board In Harmatos [2005] EWHC 3036 (Admin) [ paragraph 17] this court accepted the need for it to reconstitute itself as an Administrative Court for the purpose of such an application .

For myself I do not accept the correctness of this submission, accepted though it has been in the decisions of this court referred to. It depends upon the premise that the certificate issued under section 2(7) and (8) of the Act is certifying that the warrant's issuing authority is a judicial authority for the purposes of section 2(2) of the Act. However in my judgment this cannot be correct having regard to the words of those subsections. The certificate can do no more than certify that for which those subsections provide. This is limited to certifying that the warrant's issuing authority has been given the function of issuing such warrants under the law of the requesting state, without saying anything about the quality of the body which has been given that function.

The Respondent relied upon the terms of Article 6 of the Framework Decision in support of the alleged conclusive nature of the certificate on this question but in my judgment this is to take the terms of Article 6 one stage too far. Article 6 does not mention any certificate of the sort provided for under section 2(7) and (8) of the Act.

Article 6 provides as follows:

1. The issuing authority shall be the judicial authority of the Member State which is competent to execute a European Arrest Warrant by virtue of the law of that state.

2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute a European Arrest Warrant by virtue of the law of that state.

3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law.

True it is that the certificate must be certifying that the issuing authority has been designated by the law of the requesting state as the competent judicial authority for the purpose of issuing such warrants and that the requesting state has given notice to this effect to the General Secretariat of the European council pursuant to Article 6(3) of the Framework Decision, but this is not the same in my judgment as certifying that such designated authority is as a matter of fact a judicial authority within the meaning of section 2(2).

Hence in my judgment it must be open, the grant of the certificate under section 2(7) notwithstanding, to this appellant to raise on this appeal (as he could have done before the District Judge) the issue whether the warrant was an invalid Part 1 warrant on the grounds that the purported issuing authority was not a judicial authority within the meaning of section 2(2) of the Act.

This approach would appear to be consistent with the approach of this court in Assange at paragraph 48 where it is expressly stated that the certificate "does not certify it is a judicial authority" and that it had been permissible for Mr Assange to raise the issue in the course of the appeal, although I accept that the paragraph is not entirely clear on whether judicial review is still the correct avenue of challenge.

The significance of the designation of the issuing authority by another Member State

Although, for the reasons stated, the certificate cannot in itself be conclusive on whether the Prosecutor's Office is a judicial authority for the purposes of section 2(2), the question still remains as to the significance that the material Member State has designated the particular Prosecutor's Office as the judicial authority competent to issue EAWs.

The approach adopted by this court in both Enander and Harmatos, having regard to the objects of the Framework Decision with the emphasis on mutual recognition, co-operation and trust between member states, and the particular terms of Article 6 which leaves to the individual member states the right to designate its own judicial authority, is that it would not be appropriate for this court to go behind such designation by investigating whether the function of issuing the warrant in the requesting state was undertaken by someone who would be recognised in this country as a person exercising a "judicial" function.

Mr Farrell boldly submits that both Enander and Harmatos (and indeed Assange) were wrongly decided even in the context of the Framework Decision, since the mutual co-operation embodied in its objects is that "between judicial authorities properly so called (that is judges or courts) and not between judicial authorities and overseas prosecutors".

I for myself however agree with the approach in Enander and Harmatos, subject only to the one qualification recognised in Assange.

The fallacy in Mr Farrell's argument, confining itself as it does to the meaning and functions of a prosecutor in this jurisdiction, is that it ignores the diversity within the common area of justice with which Part 1 warrants are concerned as to the bodies by whom judicial functions can be performed and for what purpose. As this court in Assange observed after its extensive review of the Framework Decision and the meaning of the term 'judicial authority', there is a considerable diversity within the common area as to whether prosecutors are 'judicial authorities' for various purposes and it would be, contrary to the principle of mutual confidence and recognition to confine the term "judicial" in section 2(2) only to a judge who adjudicates. Again as was held in Assange, Article 6 must have been intended to allow Member States to designate authorities in their state which were 'judicial authorities' having regard to their own national laws and traditions. Hence it is entirely consistent with the principles of mutual recognition and confidence to recognise as valid an EAW issued by a prosecuting authority under Article 6. To do otherwise would be to construe the word "judicial" in section 2(2) out of context and look at it simply though the eyes of the common law (see Assange at paragraphs 33 – 43, but in particular at paragraphs 38, 40 and 41).

The one qualification which Assange recognised, and with which I agree, is that the designation under Article 6 does not always compel its recognition by another member state as conclusive, if the authority is "self evidently not a judicial authority within the meaning of that broad term in the Framework Decision" (Assange at paragraph 46). The example given in was that of a warrant self evidently issued by the Executive, such as the Ministry of Justice.

Such qualification cannot, however, assist the present Appellant. For the reasons given in Assange, I would reject this ground of appeal. No evidence having been produced by the Appellant that contrary to the certificate, the Prosecution Office which issued this warrant does not have the power to issue EAWs or has not been designated as a judicial authority for this purpose by The Netherlands, this court should accept that it has been issued by a judicial authority within the meaning of section 2(2).

I might add that even if the appellant had had such evidence available to him, this would have been a challenge to that which is certified by the certificate and hence would have required a challenge by judicial review rather than by way of appeal under the Act.

Ground 2 : Whether the warrant is invalid for failing to provide the information required by section 2(4)(b) of the Act, namely "particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence"

I can see no substance in this ground of appeal.

The argument is that for the warrant to be valid, the requisite information must be contained within the warrant as at the time it was issued and that any defect by way of omission as at that time cannot be cured by some later handwritten annotation, albeit one on the face of the warrant, since this would be to offend the principle (see paragraph 19 above) that a warrant which does not contain the information referred to in section 2(4), cannot be eked out by "extraneous information".

Central to this argument is the proposition that the warrant in this case was issued (by reference to the contents of the final box (see paragraph 5 above)) on the 9^th of June 2011 when the requisite particulars were missing, and that the handwritten annotation making good the omission was inserted after the event on the 13^th of June 2011.

This in my judgment is to take the scrutiny of the warrant required by section 2(2) of the Act too far.

It must be a matter of debate when this particular warrant was issued before it was received by SOCA, the designated authority, for the purposes of certification under section 2(7). On one interpretation of what happened here (given the date of the certificate and its contents expressly acknowledging the fact of the annotation) is that SOCA originally received the warrant in its defective state, recognised such defect, drew the defect to the attention of the issuing authority who immediately remedied the defect by the annotation and then reissued the certificate and sent the same back to the designated authority in this country who duly received it in this annotated form and issued the certificate.

If this is what happened (and the inference that this is so, is a compelling one) this would be entirely in accordance with the process envisaged as a lawful one by Scott Baker LJ in Robert Thompson v Public Prosecutor of Boulogne Sur Mer [2008] EWHC 2787 at paragraph 23:

"The European Arrest Warrant procedure is designed to provide a summary and speedy process for securing the extradition of accused and convicted persons between Member States… Whilst I appreciate that warrants are often directed to more than one Member State, and it may not be easy to provide a form of words that meets the requirements of each recipient state's national legislation, it should surely be possible, on receipt of the warrant in the United Kingdom, for it to be carefully checked to ensure that it complies with the requirements of the Extradition Act 2003. Then any defect can be remedied before time is wasted on what are likely to be costly and abortive proceedings"

55. In any event the critical time in my judgment when the warrant must contain the requisite statement and information so as to qualify as a valid Part 1 warrant under section 2(2) for the purpose of validating the executing procedures provided for under Part 1 of the Act, is when those procedures commence following the receipt of the warrant in this country by the designated authority (see again section 2(1) of the Act). Those procedures begin with the certification of the warrant under section 2(7), the existence of which is a precondition to the execution of the warrant by the arrest of the person to which it relates, or any further process under Part 1 if the person is arrested under the provisional arrest provisions of section 5. If at that time the warrant contains the statement and information required under section 2(2), then in my judgment it complies with the section in these regards.

I agree with the District Judge that there is nothing wrong in principle in the issuing authority remedying defects in a EAW before it is certified by the designated authority under section 2(7), even if the warrant cannot be said to have been "reissued" by the issuing authority as distinct from being "amended" by the authority post issue, so long as such amendment is apparent upon the face of the warrant as having been made by the issuing authority.

In this case as at the time this warrant was certified by SOCA on the 13^th of June (see again the careful wording of that certificate with its reference to the annotation of the 13^th of June) it did contain the information required by section 2(4)(b)… The handwritten annotation signed and dated by the issuing authority was apparent on the face of the warrant. There was nothing 'extraneous' about this information, giving 'extraneous' its ordinary meaning as in the Oxford English Dictionary, as connoting something "of external origin separate from the object to which it is attached". If this is to be treated as a case of an amendment made to the warrant, I agree with the District Judge's analysis that:

"the amendment occurred prior to certification and is integral to the certificated EAW and the information contained in it is therefore information included in the EAW"

In rejecting this ground of appeal, I agree with the overall analysis contended for in Mr Stansfeld's skeleton argument:

"The information in the EAW was included prior to certification, prior to any arrest and prior to the commencement of any procedures under the Act. This information has not been introduced from outside nor has it been introduced to supplement the warrant already under consideration by the Courts. It is and has always been a part of the warrant under which the Appellant has been arrested and has had his extradition ordered"

Ground 3: Whether the warrant is invalid for non-compliance with section 2(4)(c) of the Act

The issue is whether the particulars given in the warrant are adequate to satisfy the requirement that the warrant contain the information set out in section 2(4)(c) of the Act. The essential complaint made by the appellant is that it does not set out adequately and unambiguously, particulars of the conduct alleged to constitute the offence which he is alleged to have committed.

The information required by subsection (4)(c) is in these terms:

"(c) 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"

The article of the Framework Decision which this particular provision of the Act, was seeking to implement, although not in identical terms, is that of Article 8 headed "Content and Form of the European Arrest Warrant". This provides under Article 8(1) that such a warrant shall contain information including:

" (d) the nature and legal classification of the offence

(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"

Mr Farrell when inviting the court to interpret the expression "conduct alleged to constitute the offence" appearing in subsection (4)(c) in the light of this Article, emphasises the use of the expression "the… degree of participation in the offence by the requested person".

We were referred to a number of decisions of this court in which this particular subsection has come under scrutiny in the light of the objects of the Framework Decision and Article 8.

It is well established that the subsection does not demand the specificity of a count on an indictment or of an allegation in a civil pleading (see Auld LJ in Fofana and Belise v The Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux [2006] EWHC 744 at paragraph 39). The court must be alive to the purpose of the legislation namely that of simplifying extradition procedures so as not to put too onerous a burden on the requesting judicial authorities. The court must have regard to the object that the conduct be expressed concisely and simply. There is no requirement that it be described in legal language.

On the other hand it is equally established that the use of the introductory word "particulars" in the subsection means that "a broad omnibus description of the alleged criminal conduct", such as "obtaining property by deception" will not suffice (see Dyson LJ as he then was in Peter Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin) at paragraph 21). Although the question "how far does the warrant have to go?" admits of no prescriptive answer (see again Dyson LJ at paragraph 20 in Von Der Pahlen), the particulars required must at the very least in my judgment enable the person sought by the warrant to know what offence he is said to have committed under the law of the requesting state and to have "an idea" of "the nature and extent of the allegations against him in relation to that offence" (to use the language of Cranston J in Ektor v National Prosecutor of Holland [2007] EWHC 3106 (Admin ) at paragraph 7). The amount of detail required may turn on the nature of the offence.

I would not go as far as the observations of Hickinbottom J in Sandi v The Croatia Court, Romania [2009] EWHC 3079 (Admin) at para 28 that "a significant level of particularisation is required to enable the person sought to be extradited to identify exactly what he might face at trial" if by the expression which I have emphasised is meant that the information provided must deign to every last detail of the case against the person. Further, of course, there is no requirement to set out the evidence against the person by which the particularised conduct is to be established at trial.

Mr Stansfeld on behalf of the Respondent referred the court to the decision of this court in Hewitt and Woodward v First Instance and Magistrates Court Number One of Denia, Spain [2009] EWHC 2158 (Admin) to support his proposition that the purpose of the particulars under s.2(4)(c) is to enable the requested court to determine whether the conduct alleged amounts to an extradition offence, and to alert the Requested Person to possible statutory bars to extradition such as the passage of time and speciality (see section 11 of the Act). So long as the particulars are adequate for these purposes they meet the requirements of particularity. Hewitt concerned an allegation of anal rape and this court held that it was not necessary in the particulars to give the precise date in the month when the conduct had taken place when the month and year had been given, nor was it necessary to go beyond the description of the victim as a minor male and to give his name, or to particularise "his domicile" in the city which was however identified as being where the offence was committed. Roderick Evans J. said this at para 11:

"For my part, I do not see any ambiguity in the reference to the place where the incident is said to have occurred, but in any event the importance of the need to give particulars of a place is to enable the court to determine whether the conduct referred to amounts to an extradition offence; see the speech of Lord Hope in Office of the King's Prosecutor, Brussels v Cando Armas… at paragraph 30. The particulars here make clear that the Appellants are to face an allegation of raping a male minor in Calpe Alicante, Spain in March 2008. There has been no attempt to identify how the Appellants are in any way disadvantaged by the particulars provided or by the absence of particulars not provided. Adequate information is given to enable the Appellants to consider whether there is any statutory bar to their extradition. In my judgment the particulars contained in the warrant are adequate and comply with the requirements of section 2(4)(c)"

I myself would not seek to confine the application of section 2(4)(c) in the precise way contended for by the respondent. As was also said in Van der Pahlen, the language of the subsection is not obscure and should be given its plain and ordinary meaning albeit in the context of the objects of the Framework Decision.

What Hewitt does highlight however, is the need when determining the adequacy of the particulars in a given case, and the significance of any lack of particulars complained of, to have regard to any potential prejudice to the Requested Person in the extradition process both in the requested state and upon his surrender to the requesting state. Clearly the particulars must be sufficient to enable him to consider whether any statutory bars may apply. Equally the particulars of the conduct alleged must be sufficiently clear and unambiguous to enable the Person to invoke the principle of speciality if on his surrender, he, for example, finds himself facing allegations in the requested state as regards his degree of participation in the alleged offence (for example being that of having the master role in a conspiracy) which go materially beyond that which was alleged in the EAW. I agree again with Cranston J (see Ektor at paragraph 7) that where dual criminality is involved the detail must also be sufficient to enable the transposition exercise to take place.

It was the degree of vagueness and ambiguity of the particulars given in Van Der Pahlen which was fatal to he validity of the warrant on the first charge in that case ("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 else for sale?" per Dyson LJ at para 22) and on the remaining charges which were also held to be too obscure (see again at para 23 – "…In answering the charge of obscurity Ms Ezekial submits that the whole of this charge must be read together, and that it remains only one allegation not two… It seems to me that this is by no means clear, but what is clear is that the allegation is put on the basis that that there was an obtaining of unjustified monies, dishonestly, or alternatively that the appellant "had intended to take it". How these two alternatives are to be understood without amplification is totally unclear. No amplification or explanation is provided in the text of the charge").

Overall I would adopt the approach of Lloyd Jones J. in Owens v Court of First Instance Marbella, Spain [2009] EWHC 1243(Admin) para 17:

"…a balance must be struck between the requirement of particularity and the requirement that the conduct be stated concisely and simply. In determining the degree of particularity required in the description of the offence in the warrant, it is necessary to balance these competing considerations while at all times being mindful of the need to avoid unfair prejudice to the person whose extradition is sought"

The particulars in this case

With these considerations in mind, I turn to consider the adequacy under s.2(4)(c) of the particulars given in the present warrant.

The particulars are given in section (c) under the heading "offences" as follows:

The warrant relates to in total… 1… offence.

One of these individuals is Sanjay DHAR (DOB 24/08/1964 in Delhi) who operates within the United Kingdom. The Dutch investigation has identified that Singh has provided loans to DHAR via his wife's UK Bank account. DHAR has been identified as using a variety of mobile telephones and is regularly in contact with Singh.

Furthermore indications from the Dutch investigation are that Sanjay DHAR received funds within the United Kingdom that were paid to suspected drug traffickers in the Netherlands by Singh. On the 5^th of May 2011 Singh and DHAR were identified as being in a telephone conversation discussing a sum of money of 40,000 Euros.

Surveillance by the Dutch National Crime Squad on the 16 May 2011 identified that DHAR was meeting with another of Singh's associates, previously arrested with 112,400 Euros. DHAR was identified in telephone contact with Singh shortly after his arrest, during which the cash and seizure were discussed. In addition DHAR made reference to having viewed paperwork from the seizure. The nature of the conversation concerns the rectifying the loss of cash by splitting the amount into smaller amounts. The Dutch investigation believes that DHAR is a key figure in Singh's illegal money laundering activities and is suspected of being part of the money laundering conspiracy within the Netherlands.

73. There then follows under the heading "Nature and classification of the offence(s) and applicable statutory provision/code", the particulars of the provisions of the applicable Article 420b of the Dutch Criminal Code, followed by particulars of the maximum available sentence. These particulars tell us that under Dutch law a person is considered guilty of the offence of "money laundering" if he, amongst other things, (a) hides or conceals the real nature of …an object, while knowing that this object directly or indirectly originates from an offence or (b) acquires possesses transfers or turns over or uses an object, while knowing that this object directly or indirectly originates from an offence.

The District Judge's Decision

The District Judge held that these particulars complied with the requirements of section 2(4)(c). She gave the following reasons (the emphasis is my emphasis):

"The EAW seeks the Defendant's extradition for the purpose of prosecuting him for an offence of money laundering …I do not accept the defence submission that the EAW is alleging a number of different offences inadequately particularised. The conduct said to constitute the offence of money laundering is particularised. It is alleged that the Defendant was involved with and handled money from Bakshish Singh who himself is linked to drug trafficking. In particular on one occasion the Defendant is alleged to have discussed with Bakshish Singh the seizure of money by the police and the splitting of the money into smaller amounts. There is no allegation against the Defendant himself of conduct amounting to drug trafficking or involvement in a type of banking which is illegal in the Netherlands. The locations of the money laundering allegations are particularised as being in the Netherlands and the United Kingdom. Dates of two alleged instances are given as 5 May 2011 and 16 May 2011. The relevant provisions of law in the Netherlands are provided in Box E.

I find reading the EAW as a whole and applying Sandi, it is clear that the offence for which extradition is sought is that of money laundering and the particulars in the EAW comply with the requirements of s.2(4)(c) of the Act"

Mr Farrell submits that these particulars are not sufficient to enable the appellant to understand the nature and extent of what he is alleged to have done in order to have committed the specified offence. They do not enable him to understand the nature and extent of his alleged participation and conduct in relation to the offence of money laundering. He raises issues both of lack of particularity and lack of clarity. The warrant he says suffers from obscurity and vagueness.

In his attack on this ground Mr Farrell concentrated upon what he submitted was the ambiguity and lack of clarity of the critical allegation in the particulars that the appellant "received funds within the United Kingdom that were paid to suspected drug traffickers in the Netherlands by SINGH" (the emphasis is my emphasis). He points out that this is the only place in the particulars where express mention is made of drug trafficking in connection with monies handled by the appellant (or indeed in connection with Singh or his organised crime group) yet it is unclear whether what is being alleged is that the funds received by the appellant within the United Kingdom were funds which had been in the past used by Singh to pay drug traffickers in the Netherlands (in which case they would arguably be monies already originating from an offence, to use the expression in the applicable Dutch Code, or arguably already imprinted with the quality of what in English law would be described as criminal property) or whether they were funds which after his receipt were subsequently paid by Singh to the dug traffickers (in which case on the basis of this allegation alone they would lack this quality). Although this may be thought to be a point more relevant to the further ground of appeal based on dual criminality, Mr Farrell submits that his client is still entitled to know what is being alleged against him and how the case is being factually put against him in this regard.

Mr Farrell complains further of the vagueness and obscurity of this particular allegation on either hypothesis. It is he submits totally unclear from whom the funds were received by the appellant and by what means; from where (in particular from within or from outside the United Kingdom) the funds were received; how they were transferred either to him in the UK or by him to the Netherlands (if this is the allegation), and to whom he made any such transfer. His links with or knowledge of the suspected drug traffickers is not stated nor is his knowledge that the funds had been or were to be paid to the drug traffickers (if knowledge, on either basis, be the allegation). When the funds were received or paid is not stated. The overall point is made that the alleged role of the appellant in the whole enterprise is unclear, in particular – on the second hypothesis - once he had received the funds. On the particular allegation that Singh provided the appellant with " loans via his wife's UK's bank account" it is not clear whether that is intended to refer to Singh's wife or the appellant's wife and it is unclear how these " loans " fit into the alleged offence .

Mr Stansfeld on behalf of the respondent submits that the appellant is being far too pernickety. He submits that the District Judge was correct to read the particulars contained in the warrant as a whole, on which basis there is no lack of clarity as to the appellant's role in the specified offence of money laundering or any lack of particularity as to the conduct alleged to constitute the offence. The particulars make clear, he submits, that the appellant is sought for prosecution for his involvement in a money laundering conspiracy (the emphasis is my emphasis) based in the Netherlands, with the appellant acting from the United Kingdom. The conspiracy involved illegal Hawalla banking controlled by Singh and related to drug trafficking .The appellant's role was that of facilitating cash exchanges on behalf of Singh. In particular he received funds that were paid to suspected drug traffickers by Singh. On a specified date in 2011 he had met a man linked to Singh who had previously been arrested in possession of 112,400 Euros and shortly after whose arrest the appellant had been in telephone conversation with Singh in which had been discussed both the arrest and the rectifying of the loss by the splitting up of money into smaller amounts.

Mr Stansfeld submits that it matters not to the appellant's understanding of the role he is alleged to have played in the conspiracy whether his receipt of funds was before or after they were paid to drug traffickers. His role was to facilitate cash exchanges, receive funds and assist in dealing with the money. His role was to facilitate the transfer of such funds whether by receiving funds or paying them out.

For my part, I have not found the resolution of this ground of appeal an easy one. The court at this stage of the appeal is not concerned with whether the conduct alleged amounts to the specified offence in Dutch law but simply with whether sufficient particulars have been given for the appellant to understand the nature and extent of his alleged offence role and participation in the alleged which go beyond the omnibus description set out in the final sentence of the particulars ("key role in Singh's money laundering activities… being part of the money laundering conspiracy within the Netherlands"). I have had in these circumstances considerable sympathy with the submissions made by Mr Stansfeld, in particular given the need to avoid requiring such particularity as would satisfy a civil pleading and to have in mind the objects of conciseness and simplicity. Ultimately however I have been persuaded by Mr Farrell's submissions on the issue of clarity and ambiguity.

The Appellant is entitled in my judgment to sufficient particulars to enable him to understand how the case is being put against him on critical allegations without that understanding being obscured by the fog of vagueness or ambiguity. The respondent has chosen in the EAW to make what in my judgment, looking at the particulars as a whole, is a critical allegation in the conduct alleged to amount to the offence of money laundering, namely the appellant "received funds within the United Kingdom that were paid to suspected drug traffickers in the Netherlands by Singh". The appellant's understanding of that allegation must be wholly disabled in my judgment by the ambiguity to which Mr Farrell referred and which is discussed above, and the lack of clarity of what it is the appellant is supposed to have done in this regard. Whether the funds were received by the appellant before or after they were paid to the suspected drug traffickers, how he is said to have received them and from whom, and the role if any which the appellant is supposed to have played in facilitating that payment, must be of considerable importance to any understanding of the role the appellant is supposed to have played in the alleged conspiracy.

The EAW makes reference to the conspiracy involving Hawalla banking. As I understand such term it refers to a private banking system which does not necessarily involve money transfers between different countries as distinct from cross credits. The allegation might for example be that the Appellant received funds within the United Kingdom from a wholly innocent source which however he then utilised to enable Singh to pay drug traffickers by cross credits. Alternatively the allegation may be that the appellant received funds from Singh or one of his associates which were already tainted with having been paid out to such traffickers, which is a very different allegation to have to meet. The District Judge regarded the particulars as informing the reader that "the Appellant was involved with and handled money from Singh who was himself linked to drug trafficking". The only sentence in the particulars which could begin to justify this analysis is the one sentence referred to (coupled perhaps with the somewhat obscure allegation that Singh provided "loans" to the appellant) but as already explained the meaning of that sentence is wholly ambiguous, and it may or may not carry the meaning that the appellant "handled money from Singh".

The sentence as it stands is moreover wholly lacking in the particularity one would need in order to understand how this particular piece of conduct is said to constitute the specified offence. I accept Mr Farrell's submissions on this aspect summarised above at paragraph 78. It may be in that in a different case where conspiracy is alleged, it may not matter that one particular piece of conduct relied upon in support of the allegation that the Requested Person played a certain role in that conspiracy, is obscure and ambiguous, when the overall clarity of the allegation made against the appellant as to the nature and extent of his role is made good by particulars of other pieces of conduct relied on. But this is not the case here in my judgment. I agree with Mr Farrell that this particular sentence and this particular piece of conduct relied upon, is critical to the case alleged against the appellant in the EAW.

For all these reasons in my judgment this ground of appeal succeeds. The District Judge ought to have decided the question raised with regard to the compliance of the EAW with the requirements of section 2(4)(c) of the Act differently. She ought to have found that the EAW was invalid in that it did not contain the information required by that subsection.

Ground 4: The question raised under section 10: Whether the offence was an extradition offence; the issue of dual criminality under section 64(3)(b)

I have had much less difficulty in resolving this final ground of appeal. The argument before us has again centred around the ambiguity and lack of clarity in the particulars of the conduct alleged against the appellant already identified.

In my judgment it is this self same ambiguity and lack of clarity which means that this ground must succeed.

The critical question if the condition in s.64(3)(b) is to be satisfied in this case, is whether the conduct alleged in the EAW, if it occurred in England, would constitute an offence in England. I accept (see Norris v United States of America [2008] 1 AC 920) that the court is not to be concerned with whether the elements of the offence in the requesting state correspond to an offence in the United Kingdom. Further it is to nothing that the offence to which the conduct would give rise in the United Kingdom does not correspond to the offence specified in the warrant, for example in the context of this case a conspiracy to possess a controlled drug as distinct from a money laundering conspiracy, or as a further example, a conspiracy to commit a criminal offence as distinct from the completed substantive offence. Further, I accept that as regards any mens rea required for the English offence, it is not fatal if the particulars of conduct in the EAW do not identify or specify that mens rea in terms. It is sufficient if it can be inferred by the court from the conduct which is spelled out and any further information from the appropriate authority in the requesting state (see Zak v, Regional Court of Bydgoscz, Poland [2008] EWHC 470 (Admin), per Richards LJ at paragraph 16).

It was thus the particulars of the conduct upon which the District Judge had to concentrate in answering this question. Her answer was that the conduct so particularised revealed two substantive offences, if it had occurred in England, contrary to the Proceeds of Crime Act 2002 (POCA), namely that under section 327 (concealing or transferring criminal property) and that under section 328 (assisting in the retention and control of criminal property).

The difficulty with this analysis is that for an offence to be committed under either section the property in question has to be "criminal property" within the meaning of the 2002 Act at the time the accused person does the acts said to amount to concealing or transferring etc. within section 327, or enters into or becomes concerned in an arrangement to facilitate the acquisition, retention, use or control of the property within section 328. And for property to be "criminal property" for these purposes the effect of the definition section (s.340(3)) is that it has already to constitute a person's benefit from criminal conduct or to represent such benefit, and further the alleged offender must know or suspect it constitutes or represents such benefit. See R v. Amir and Akhtar [2011] EWCA Crim 146 where the Court of Appeal held that there was no warrant for construing the language of section 328 so that the offence could be committed where the applicable property was not "criminal property" at the time of the arrangement but where it had been intended that it should be. The court accepted the submission of Mr Farrell that the whole premise of the money laundering sections in the 2002 Act, criminalising those who deal in various ways with criminal property, is that there has been an earlier offence committed, the benefit from which is or is represented by the property in question. The court followed an earlier decision of the Court of Appeal in R v Geary [2010] EWCA Crim 1925, in which my lord, Lord Justice Moore-Bick, in giving the judgment of the court said (at paragraph 19) that to say that section 328 extended to property which was originally legitimate but became criminal only as a result of carrying out the arrangement, was to stretch the language of the section beyond its proper limits.

The District Judge purported to find that these offences were made out by the conduct alleged in the EAW by reasoning as follows:

"the allegation is that this Defendant is a key figure in Singh's illegal money laundering activities and is part of the money laundering conspiracy in the Netherlands the money being benefit from criminal conduct, drug trafficking in the Netherlands…

If the conduct occurred in this jurisdiction it would constitute an offence of concealing or transferring criminal property s.327 Proceeds of Crime Act 2002 or assisting in the retention and control of criminal property under s.328 POCA 2002. Criminal property is defined in section 340 POCA 2002 as constituting a person's benefit from criminal conduct and the alleged offender knows or suspects it constitutes or represents such a benefit. The particulars state that the money from Singh derived from criminal conduct and provides particulars from which the necessary 'mens rea' of the Defendant can be inferred (see Zak…) (again the emphasis is my emphasis)."