England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/05/2013

MR JUSTICE FOSKETT:

Introduction

1. The appellant is a citizen of the United Kingdom who was born on 2 November 1958. His extradition is sought by the Lille Court of First Instance, France, on a European Arrest Warrant ("EAW'") issued on 25 May 2012 and certified by the Serious Organised Crime Agency ("SOCA") on 18 June 2012.
2. He was convicted in his absence by Lille Magistrates Court on 24 October 2011 of an offence of conspiracy, an offence of drug trafficking and three offences of money laundering. He was sentenced to a 7-year term of imprisonment. His extradition is sought to serve that term.
3. On 7 January 2013, the Appellant's full extradition hearing was heard before District Judge Purdy who, on 11 February 2013 in a careful written judgment, ordered his extradition on the conspiracy allegation and the three money laundering offences only.
4. In relation to any issue arising under section 20 of the 2003 Act, it is clear that the Appellant will, if he chooses to seek a re-trial, be retried by a French court in a maximum period of two months after his arrival on French soil.
5. The only live issue before the District Judge and before this court on appeal is whether, pursuant to section 12 of the Act, the Appellant's extradition is barred because he would be entitled to be discharged pursuant to a double jeopardy argument. Section 12 provides that:

"A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption—

(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;

(b) that the person were charged with the extradition offence in that part of the United Kingdom."

6. The contention advanced by Miss Anna Booth on the Appellant's behalf is that his appearance before Southwark Crown Court on 21 July 2011 (following his arrest on 13 July 2010) on an indictment containing two counts, one of conspiracy to supply cannabis and one of conspiracy to supply amphetamine, to the first of which he pleaded guilty and in respect of the second of which no evidence was offered resulting in a not guilty verdict being entered, ought to prevent his extradition. Her argument, based on well-established authorities, is that the case against him in France is founded on the same or substantially the same facts as those which were relevant to the case before Southwark Crown Court and, accordingly, it would be wrong to extradite him in effect to face the same set of allegations twice.
7. This was the argument rejected by the District Judge whose decision is supported by Mr Adam Payter on behalf of the Respondent. He contends that the District Judge was correct to conclude that the French proceedings for the conspiracy offence and the three money laundering offences do not arise out of "the same or substantially the same facts" as the proceedings in the United Kingdom although he concedes that there is, as he put it, "a limited degree of evidential and temporal overlap between the two sets of proceedings". He says (a) that the offences for which the Appellant is sought, namely, money laundering and conspiracy, are entirely different from those pursued domestically, namely, drug supply; (b) the extent of the criminality set out in the EAW is far wider than in the domestic proceedings; and (c) that it was not possible to pursue the Appellant in the United Kingdom for the offences set out in the EAW.
8. That comprises the essential battleground in this appeal.

Authorities referred to

9. I do not propose to extend this judgment by referring in detail to the various authorities to which I have been referred. They include Fofona and Belise v Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin), Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin), Maxwell-King v The Government of the United States [2006] EWHC 3033 (Admin), Mitchell v High Court of Boulogne Sur Mer [2007] EWHC 2006 (Admin), Purcell v High Court in Dublin, Ireland [2012] EWHC 3325 and Zdinjak v Republic of Croatia [2012] EWHC 1554 (Admin). The principles are clear.

The comparison exercise

10. This appeal revolves around a comparison of the underlying facts of the UK proceedings and the facts underlying the case in France and it is to that comparison that I will turn after identifying what the EAW specifies as the conduct in respect of which the Appellant's extradition is sought. The summary in Mr Payter's Skeleton Argument is accurate and it is to the effect that the Appellant's extradition is sought in relation to five offences of which it is said that he is "the principal perpetrator", namely -

(i) A criminal conspiracy with a view to preparing offences punishable by ten years imprisonment (Framework list ticked for "taking part in a criminal conspiracy");

(ii) Unlawful importation and export of drugs under organised crime, unlawful possession and transport of drugs (Framework list ticked for "unlawful trafficking of narcotic drugs and psychotropic substances");

(iii) Money laundering (Framework list ticked for "laundering of criminal products");

(iv) Transfer of undeclared sums of money of at least €10,000 between France and abroad without the use of an intermediary of an establishment authorised to undertake banking operations; and,

(v) Undertaking financial operations between France and abroad with funds resulting from offences under the legislation on drugs.

11. The narrative account of the Appellant's alleged involvement in the offences set out in Box E of the EAW can (again drawing on Mr Payter's Skeleton Argument) be summarised as follows:

(i) On 21 October 2009, French customs at Calais stopped Steven Kingsford coming from the United Kingdom in his vehicle. In the spare wheel of his vehicle French customs recovered €693,000 in cash.

(ii) Steven Kingsford was a salaried truck driver for Kent Trucking Ltd, a company that was managed by Paul Palmer. Steven Kingsford admitted that he had made three trips by vehicle from the United Kingdom to the Netherlands via France since August 2009. On those trips he transported cash from the United Kingdom at the request of his employer, Paul Palmer.

(iii) Steven Kingsford also explained that Colin Dunne, another employee of Kent Trucking Ltd also made trips for the same purpose. Colin Dunne later accepted that this allegation was correct and he had made the trips at the request of his employer, Paul Palmer.

(iv) The estimated amount of funds conveyed and laundered was more than €4 million.

(v) Paul Palmer was also arrested in France while visiting Steven Kingsford in prison. He accepted that he had given instructions to his two employees as set out above.

(vi) Paul Palmer explained that he had received instructions to make the transfers of cash to the Netherlands at the request of an individual known as 'Franck'. As a result of investigations in the United Kingdom that had begun prior to the stop and search and arrest of Steven Kingsford on 21 October 2009, and an examination of Paul Palmer's telephone data, 'Franck' was identified as the Appellant. Paul Palmer formally identified the Appellant as the individual who had given him the instructions to make the transfers of cash.

(vii) The Appellant was arrested and interviewed in the United Kingdom following a French international rogatory letter. The Appellant refused to answer any questions put.

12. The Appellant's alleged role can be deduced from proposition (vi) since the case advanced against him is that he is 'Franck'. On the basis of this narrative account it can be seen how it is alleged that, so far as any offences committed on French soil are concerned, he was "the principal perpetrator" in the arrangements by virtue of which cash said to be the proceeds of crime in the UK was to be transported to the Netherlands.
13. The summary details of the convictions as already found in France (but, of course, subject to the re-trial to which I have referred) are set out in the judgment in the following way:

(i) Laundering, aiding in an investment operation, dissimulation or conversion of the product of a drugs traffic offence between 1 January 2009 and 21 October 2009 in Calais, Great Britain and the Netherlands.

(ii) Participation in a criminal conspiracy with a view to preparing an offence punishable by 10 years' imprisonment acts committed between 1 January 2009 and 21 October 2009 in Calais within the jurisdiction of the [French court], on the national territory, as well as Great Britain and the Netherlands (the conspiracy to traffic drugs offence, see page 6 of the French court order on remittal for trial dated 30 September 2011, tab 12).

(iii) Transfer of undeclared sums of money, deeds, valuables of at least €10,000 between France and abroad without the intermediary of an establishment authorised to undertake banking operations, acts committed between 1 January 2009 and 21 October 2009, in Calais within the jurisdiction of the [French court], on the national territory, as well as Great Britain and the Netherlands.

(iv) Undertaking financial operations between France and abroad with funds resulting from offences under the law on drugs acts committed between 1 January 2009 and 21 October 2009, in Calais within the jurisdiction of the [French court], on the national territory, as well as Great Britain and the Netherlands.

14. Kingsford, Palmer and Dunne were also convicted of various associated offences in the French criminal proceedings.
15. The case against the Appellant in France needs to be compared with the case advanced against him in the UK. The first count on the indictment was in the following terms:

"Douglas Belbin, David Pratt and Gary Smith between the 1^st day of January 2009 and the 26^th day of August 2009 conspired together with other persons to supply a quantity of cannabis, a controlled drug of Class C."

16. The second count was as follows:

"Douglas Belbin, David Pratt and Gary Smith between the 1^st day of October 2009 and 23^rd day of October 2009 conspired together with other persons to supply a quantity of amphetamine, a controlled drug of class B."

17. As indicated above (paragraph 6), he pleaded guilty to the first count on a particular basis of plea and no evidence was offered in relation to Count 2. The basis of plea in relation to Count 1 was an acceptance of his involvement in assisting David Pratt in the transportation of the cannabis by driving a vehicle on 21 and 22 January 2009 although he did not, he said, know the final destination of the cannabis. He had sought a Goodyear indication on that proposed basis of plea before pleading guilty. He was sentenced to 15 months imprisonment.
18. The Case Summary relating to the events leading to the arrests made on 22 January 2009 can be summarised as follows:

(i) On 21 January 2009, Gary Smith, David Pratt and the Appellant met in Essex at Gary Smith's home address. David Pratt, driving a white van, and the Appellant had driven in convoy to Gary Smith's address. At that address, the trio spoke. David Pratt and the Appellant left in the Appellant's car and Gary Smith parked the white van on his driveway.

(ii) On 22 January 2009, David Anthony parked another van on Gary Smith's driveway. David Anthony then drove David Pratt's van to his own home address and took several bags from the vehicle into his home. He then returned to Gary Smith's address in David Pratt's van. A later police search of David Anthony's address revealed that the bags contained 83 packages of cannabis.

(iii) The Appellant and David Pratt also attended at Gary Smith's home address shortly after David Anthony had left on 22 January 2009. The trio again had a conversation.

(iv) The evidence also suggested that there had been several other meetings between Gary Smith and the Appellant in car parks.

19. In other words, that was the case he faced. His plea of guilty and the basis for the sentence imposed were more limited.
20. The case against him on Count 2 can be summarised as follows:

(i) On 19 October 2009, the Appellant and David Pratt drove in the same vehicle to a location in Essex. David Pratt parked and walked to a van where he spoke with the driver. That van then parked nearby and next to the van David Pratt drove in Count 1. David Pratt took cardboard boxes from his van to the other van. Both drivers left in their vans and the Appellant drove off alone.

(ii) On 21 October 2009, David Pratt drove from his home address to a garage where he took a cardboard box into his vehicle. David Pratt and Douglas Belbin met in a public house shortly thereafter.

(iii) On that same date, police executed a search warrant at the garage and seventeen cardboard boxes were found. The boxes contained 340 kilograms of amphetamine.

21. That short comparison does, as it stands, make good the essential submission made by Mr Payter. However, Miss Booth suggests that the position is not quite so straightforward and ignores certain clear overlaps between the two cases against the Appellant and the involvement of a French investigating officer, Police Inspector Richard Baran, which, she submits, demonstrates the close links between the two sets of proceedings. She submits that the proceedings in the United Kingdom on the indictment were based on substantially the same facts as those reflected in the EAW and, accordingly, the Appellant should be discharged in relation to the conspiracy and money laundering offences. She makes the following points:

(i) The subject matter contained in box e) of the EAW is substantially the same as that contained in the United Kingdom prosecution case summary and the evidence relied upon in the United Kingdom, provided by Richard Baran together with telephone data and surveillance by the authorities in the United Kingdom.

(ii) In bringing the case in each jurisdiction the authorities have relied upon information and evidence obtained outside of the jurisdiction: the French authorities have relied upon surveillance from the United Kingdom; the United Kingdom relied upon evidence from Richard Baran. Phone data appears to have been provided by both sets of authorities.

(iii) There is clear temporal overlap. The French case concerns the period commencing at the beginning of 2009 through to 21 October 2009. The English indictment runs through two counts from 1 January 2009 through to 23 October 2009.

(iv) Neither case extends beyond the scope of the other. While a significant value is put to the French conspiracy, this is an estimate and one which is relevant only to the temporal period stated above.

(v) The investigations in the United Kingdom and France were ongoing at the same time and there appears to have been some degree of information sharing at least up until the appellant's interview in the United Kingdom. The authorities in the United Kingdom clearly had the knowledge required to prosecute the appellant for the French matters.

(vi) The allegations of money laundering could have been dealt with in the United Kingdom. The foundation of allegation against the appellant appears to have come from United Kingdom surveillance, telephone data and the evidence of the stop of Mr Kingsford referred to by Officer Baran. Officer Baran was already warned to attend court in the United Kingdom to give evidence in proceedings. Telephone data and United Kingdom surveillance evidence could easily have been adduced as evidence in the United Kingdom.

22. As I have indicated, Inspector Baran was a French investigating officer. There were some 226 pages of evidence (from 119 witnesses most of whom were police officers whose evidence, I have been told, was largely surveillance evidence gathered in the United Kingdom) served along with 655 pages of exhibits in the UK proceedings. Richard Baran's statement, running to about 3 pages and dated 19 October 2010, was served as a notice of additional evidence. An English translation was provided.
23. The statement details in slightly fuller form the narrative account summarised in the EAW (see paragraph 13 above). It did not mention the Appellant by name. From the evidential point of view it merely demonstrates how the name 'Franck' came to emerge and thus, I imagine, how the train of inquiry, both from the French and UK perspectives, led in due course to link the Appellant to the others involved. One can see why the UK prosecution may have wanted (in the event of a trial) to lead evidence linking 'Franck' to those apprehended in France with the cash if there was other evidence, as there presumably must have been, to link that cash with the drug-dealing being carried on in the UK. However, to say that this "evidence-sharing", as Miss Booth accurately describes it, means that the facts of the cases presented against the Appellant in the UK and in France were substantially the same seems to me to be a step too far on the facts. Obviously each case depends on its own facts, but the District Judge observed that "an overlap and exchange of information/evidence is inevitable and indeed very much the aim of Eurojust and Europol i.e. to foster and facilitate enforcement and effective prosecution of cross-border crime." That being so this court would be very reluctant to reach any conclusion that undermined such co-operation unless the facts were very clear.
24. Subject only to the question whether there is any principle that establishes that the money laundering allegation against the Appellant sought to be made against him in France by the French authorities ought to have been made against him by the UK prosecuting authorities in the UK proceedings, it seems to me that what the Appellant has to face in France is entirely different from what he actually or potentially faced in the UK. In the UK the prosecution case against the Appellant on Counts 1 and 2 was that he had conspired with Gary Smith and David Pratt and others within the jurisdiction of the United Kingdom to supply the specified drugs. Neither count on the indictment named the Appellant's co-defendants in France and neither concerned the money laundering matters for which the Appellant extradition is now sought. The elements of the offences charged in France are materially different from those charged in the UK (cf. Purcell v High Court in Dublin, Ireland [2012] EWHC 3325) and the offences charged in France were offences "not reflected in anything that had been, or was likely to be, charged in this country" (see Mitchell v High Court of Boulogne Sur Mer [2007] EWHC 2006 (Admin)).
25. Is there any principle of the kind mentioned in the first sentence of paragraph 24? Although Miss Booth contends that the allegations of money laundering could have been dealt with in the United Kingdom no authority has been drawn to my attention to the effect that there is an obligation to prosecute in such circumstances or that a failure to do so operates as a ground for some kind of prohibition against extradition: section 12 does not appear to cover such an eventuality. Mr Payter contends, in any event, that the three money laundering offences specified in the EAW and the evidence in support of them "are peculiar to France". If that means simply that the offences of which there was evidence were arguably committed in France, I would agree with him. It is, however, an available inference (though not necessarily the only inference) that the instruction to take the money through France was given in the UK (and thus the conspiracy to act illegally in France was formed in the UK). It might have been inferred also that there was a conspiracy formed within the UK to dispose of the proceeds of the drug supply activities which, arguably, would have been an offence within the UK. Had he been prosecuted for such an offence and had he been acquitted or convicted, then that might have afforded grounds for saying that section 12 operated to prevent his extradition to France to be tried for the French equivalent. But that is not the case here.

Conclusion

26. Like the District Judge I am unable to accept that there is any basis upon which the Appellant's extradition should be prevented on the grounds of double jeopardy. He is, as I have indicated (paragraph 4 above), entitled to a re-trial in France within two months and I understand that his convictions will be set aside so that he can have that re-trial. He will be entitled, if he chooses to do so, to raise the issue of double jeopardy before the French court.
27. In the foregoing circumstances and for the reasons given the appeal must be dismissed.