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
		13 August 2014

Sir Brian Keith :

Introduction

1. On 4 December 2012, the Appellant, Peter Roope, was arrested pursuant to a European Arrest Warrant ("the warrant") issued by Judge Cihlarova in the District Court for Prague 1 on 13 March 2012. The warrant had been certified by the Serious Organised Crime Agency (as the National Crime Agency was then called) on 21 November 2012. The warrant was what is colloquially called an accusation warrant. It sought Mr Roope's extradition to the Czech Republic so that he could be tried for what in our law would be an offence of fraud. He and a co-defendant were alleged to have persuaded people who wanted to buy properties in Eastern Europe to invest considerable sums with them. The case against Mr Roope is that he used an assumed name, and never intended to purchase the properties, despite fraudulently representing that that was what he would be doing. The sums which he and his co-defendant are alleged to have defrauded the investors of amount to about £1.6m. A total of 50 complaints were particularised in the warrant.
2. The extradition hearing took place at the City of Westminster Magistrates' Court on 7 April 2014. District Judge Zani reserved judgment, and on 30 April 2014 he ordered Mr Roope's extradition to the Czech Republic. Mr Roope now appeals against that order. His sole ground of appeal is that his extradition to the Czech Republic would be an abuse of the extradition process. The facts are not entirely straightforward, and I trust that I will be forgiven for setting them out in some detail, but it is important to remember that the Czech Republic has been designated a category 1 territory pursuant to section 1 of the Extradition Act 2003 ("the Act"). Accordingly, Mr Roope's extradition is governed by Part I of the Act.

The facts

3. The criminal proceedings in the UK. This was not the first fraudulent investment scheme which Mr Roope was alleged to have been involved in. In 2008 he was living in Prague when he was extradited to the UK to face charges relating to a fraudulent investment scheme in this country. A restraint order was made against his realisable assets, and it was registered in the Czech Republic to cover his assets there. Mr Roope was to plead guilty at Worcester Crown Court to a charge of conspiracy to defraud, and on 21 December 2009 he was sentenced to 56 months imprisonment. In view of the time he had spent on remand in custody, he was released from prison on licence on 11 October 2010. His licence expired on 9 February 2013, and during the period of his licence he was under the supervision of a probation officer. The terms of his licence included conditions requiring him to reside at an address approved by his supervising officer, not to travel outside the UK without permission, and to leave his passport and any other international travel documents with the police.
4. On 20 October 2010, a confiscation order was made against Mr Roope by Worcester Crown Court in the sum of £844,637.02. He had to pay that sum within 6 months, with 54 months imprisonment in default of payment. The confiscation order had been made on the basis of two properties in the Czech Republic which he owned, and they represented the majority of his realisable assets. They had been included in the restraint order, and in due course the registration of the restraint order in the Czech Republic was vacated to enable those properties to be sold in order to satisfy the confiscation order. By September 2012, there was still a large amount outstanding on the confiscation order, and on 20 September 2012 the Serious Fraud Office applied to the City of Westminster Magistrates' Court for a warrant for the committal of Mr Roope for non-payment. However, by 2 November 2012 Mr Roope had paid the amount outstanding on the confiscation order together with interest.
5. The attempts by the Czech authorities to locate Mr Roope. In the meantime, the police in the Czech Republic had begun to investigate Mr Roope's involvement in the offences for which his extradition to the Czech Republic was subsequently sought. On 8 April 2011, the police decided to initiate criminal proceedings against him. It was known that he had been sentenced to a term of imprisonment in the UK, and the police asked the Home Office for his whereabouts so that the decision of 8 April 2011 could be served on him. On 1 December 2011, the Home Office informed them that Mr Roope had been released from prison, and that they were "trying to locate" him. That was a little surprising, because all that was needed was for an enquiry to be made by the Home Office of the Ministry of Justice, and Mr Roope's address which had been approved by his supervising officer would have been apparent. However, when the Home Office's letter was translated into Czech, the word "locate" was translated as if it meant "search for", and it may have been that which led the police to believe that Mr Roope did not want his whereabouts to be known and that he had become a fugitive from justice.
6. Accordingly, the Czech police asked for a lawyer to be appointed to act for Mr Roope in his absence, and it was decided to commence criminal proceedings against him in the Czech Republic under the provisions of Czech law which allowed for someone to be prosecuted in their absence when they were regarded as a fugitive from justice. At no time did the Home Office inform the Czech authorities that Mr Roope's whereabouts were known after all, though it is important to add that at no time did the Czech authorities get in touch with the Home Office following the letter of 1 December 2011 to find out if Mr Roope had been found.
7. It is not entirely clear what the Czech police thought Mr Roope was a fugitive from justice from – a fugitive from justice in the UK (for example, because of the sums outstanding on the confiscation order) or a fugitive from justice in the Czech Republic (perhaps because he had heard that he was wanted there in connection with the offences for which his extradition was subsequently sought). Having said that, though, the warrant itself suggests the latter, since it referred to him as having "escaped", which in the circumstances must have meant having gone to ground on his release from prison, and being "in hiding in order to avoid criminal prosecution or the threat of punishment", which is more likely to refer to his prosecution and punishment for offences in the Czech Republic). In the circumstances, I proceed on the basis most favourable to Mr Roope, namely that the police and Judge Cihlarova both thought that Mr Roope was a fugitive from justice in the Czech Republic. Mr Roope's Czech lawyers - not the lawyer appointed by the State - say that the Supreme Public Prosecutor's Office knew (even if the police and Judge Cihlarova did not) that Mr Roope was not a fugitive from justice because through his Czech girlfriend he had been liaising with the Czech authorities over the release of his properties in the Czech Republic in order to meet his obligations under the confiscation order. But that does not mean that he could not have been a fugitive from justice at the same time.
8. The criminal proceedings in the Czech Republic. That was the background against which the warrant was issued on 13 March 2012. With the police believing that Mr Roope was a fugitive from justice, the criminal proceedings against Mr Roope continued in his absence. Only 24 of the 50 complaints were pursued initially, and Mr Roope's Czech lawyers think that that may have been because the attendance of the complainants relating to those 24 complaints could be secured at Mr Roope's trial without any difficulty. In the event, his trial took place in his absence in the Municipal Court in Prague on 11 December 2012, with the court-appointed lawyer representing him. Mr Roope was convicted in respect of 21 of the 24 complaints, and he was sentenced to 6 years imprisonment. Ironically, Mr Roope had been arrested in the UK under the warrant 7 days earlier, but the Municipal Court did not know that. Indeed, it was not until 4 March 2013 that the Czech courts were informed that Mr Roope had been arrested under the warrant. Mr Roope himself claims that he did not know that he was being investigated by the authorities in the Czech Republic, or that the police wanted to interview him. Whether that is true or not is not something which appears to have been investigated or adjudicated upon, but it is not disputed that he had not been served with notice, or otherwise formally notified, of the proceedings.
9. The subsequent errors made in Mr Roope's case. On 21 December 2012, Mr Roope's Czech lawyers filed a motion in the Czech courts seeking the revocation of the warrant, and on 5 February 2013, Mr Roope's court-appointed lawyer lodged an appeal on the basis that there had been insufficient evidence to justify his conviction. By then, the proceedings to extradite him to the Czech Republic had been commenced. In the course of those proceedings, it must have been asserted on Mr Roope's behalf that although the warrant was an accusation warrant, he had in fact been convicted in the Czech Republic, albeit in his absence and without his knowledge. That is the only explanation which has been advanced for why Judge Cihlarova was asked by the Crown Prosecution Service's Extradition Unit what the status of the proceedings against Mr Roope was. She replied to the Extradition Unit on 18 February 2013 that "no criminal action [had been] brought [against Mr Roope] to a competent court".
10. That was, of course, incorrect, but the reason for that had been because Judge Cihlarova had only seen documents pre-dating Mr Roope's trial. Also incorrect was her subsequent statement to counsel instructed by the Extradition Unit on 25 July 2013 (after she had either been informed or had discovered that Mr Roope had been tried, convicted and sentenced in the Municipal Court in his absence the previous December) that those offences were not ones to which the warrant related. It looks as if that error arose because Judge Cihlarova had not seen a list of the complaints on which he was to be tried. It was that later error which caused counsel instructed by the Extradition Unit to state in a skeleton argument dated 18 August 2013 prepared for an extradition hearing on 27 August 2013 that Mr Roope was wrongly asserting that he had been convicted of the conduct to which the warrant related. Fortunately, these errors were corrected by Judge Cihlarova very shortly afterwards. On 22 August 2013, she wrote to counsel instructed by the Extradition Unit confirming that the offences for which Mr Roope had been tried, convicted and sentenced in the Municipal Court were among the offences to which the warrant related.
11. Mr Roope's appeal. Mr Roope's appeal against his conviction was heard by the High Court in Prague on 4 November 2013. The court's judgment referred to the grounds of appeal filed by Mr Roope's Czech lawyers, which asserted that at no time had Mr Roope been a fugitive from justice, and that his whereabouts had at all times been known to the authorities in the UK. He should not, therefore, have been tried in his absence. In the event, the High Court in Prague quashed Mr Roope's conviction. The police had merely been informed on 1 December 2011 that attempts were being made to "locate" Mr Roope following his release from prison, and no further enquiries had been made to ascertain whether his whereabouts had become known. The High Court in Prague did not at that stage decide that Mr Roope had not been a fugitive from justice. It merely decided that what the High Court described as "the criteria" for treating someone as a fugitive from justice had not been satisfied.
12. The High Court did not at that stage order that Mr Roope be retried. Instead, it directed "[t]he investigative, prosecuting and adjudicating bodies", i.e. the police, the prosecuting authority and the Municipal Court, to ascertain whether what was being advanced on Mr Roope's behalf, namely that he had at all times during the period of his licence been living at the address or addresses approved by his supervising officer, was correct. Only after those enquiries had been made could the indictment against Mr Roope be filed again, provided that further investigations into the case justified that.
13. Other matters. Four further matters should be noted. First, by the time of the extradition hearing before District Judge Zani, the Probation Service had confirmed in a statement dated 29 January 2014 that Mr Roope had complied with all the terms of his licence "including those concerning residence". A copy of that statement was sent to the District Court in Prague before the extradition hearing took place. Secondly, there was evidence before District Judge Zani from Mr Roope's Czech lawyers that "the law enforcement authorities" in the Czech Republic were obliged to consider at "all stages in the criminal proceedings" whether the grounds for treating the suspect as a fugitive from justice still existed. Thirdly, by a letter dated 2 June 2014, and therefore after the extradition order was made, the Czech police requested the Metropolitan Police to interview Mr Roope under caution and to ask him a series of questions which they itemised. All those questions related to the offences Mr Roope is alleged to have committed. Fourthly, Mr Roope has been on bail at all times. He was granted bail following his arrest under the warrant, and he has remained on bail since the extradition order was made.

The relevant principles

14. The test for abuse of the extradition process has been described in various ways in the authorities, usually by reference to the nature of the abuse being alleged, but the core of it is that the requesting authority has behaved in such a way in relation to the extradition process that to extradite someone in the particular circumstances of the case would offend the court's sense of justice, invariably but not necessarily because the defendant has either been unfairly prejudiced in his attempts to resist his extradition, or will be unfairly prejudiced on his extradition, whether in the trial itself or in the events leading up to it. The conduct complained of will usually involve bad faith or the deliberate manipulation of the process to make it more difficult for the defendant to resist his extradition or to make him less concerned to do so.

The basis of the appeal

15. It is important to note what this appeal is not about. Although the errors in the letters of 18 February 2013 and 25 July 2013 are part of the history, they were corrected relatively quickly, and did not have any impact on events. The errors occurred after Mr Roope's trial in his absence, and they did not prevent the High Court in Prague from quashing his conviction. Similarly, although the Home Office can be criticised for giving incorrect information to the Czech police in the first place about Mr Roope's whereabouts, it is the abuse of the extradition process by the Czech authorities which is being alleged. The core argument advanced by Mr Ben Brandon for Mr Roope is that it was wrong for the Czech authorities – to be precise, the police, the prosecuting authority and the Municipal Court in Prague – to treat Mr Roope as a fugitive from justice simply on the basis of the letter from the Home Office of 1 December 2011, without having made any subsequent enquiries of the Home Office about whether Mr Roope's whereabouts had been established.
16. There is a good deal of force in that criticism. All the police knew was that towards the end of 2011 the UK authorities were trying to locate Mr Roope. They did not attempt to find out whether those attempts were subsequently successful. The fact that his whereabouts were unknown towards the end of 2011 should not have led them to conclude, without any further enquiry, that he had gone to ground and was trying to conceal his whereabouts. That, I assume, was what the High Court in Prague had in mind when it held that the criteria for treating Mr Roope as a fugitive from justice had not been met. The judgment of the High Court did not state what those criteria were, but the quashing of Mr Roope's conviction, on the basis that his trial should not have taken place under the regime for trying fugitives from justice, is likely to have been because insufficient attempts had been made to get confirmation that Mr Roope was indeed a fugitive from justice. In short, therefore, the criticism made of the Czech authorities on this appeal was upheld by the High Court in Prague.
17. That is reinforced by the assertion of Mr Roope's Czech lawyers that "the law enforcement authorities" in the Czech Republic were obliged to consider at "all stages in the criminal proceedings" whether the grounds for treating Mr Roope as a fugitive from justice still existed. It would have been better if that had come from lawyers who were not representing Mr Roope, but if that was one of the conditions which had to be met before Mr Roope could be tried in his absence as a fugitive from justice, it was not met. Further enquiries should have been made before the warrant was issued and before his trial took place.
18. Having said that, there is nothing to suggest that the injustice to Mr Roope of having been tried, convicted and sentenced in his absence on the erroneous premise that he was a fugitive from justice was the result of anything other than incompetence on the part of the Czech authorities. There is no material which suggests that they were motivated by bad faith. It is, for example, not suggested that they knew that Mr Roope's whereabouts were known despite the Home Office's letter of 1 December 2011 but nevertheless chose to treat him as a fugitive from justice. Moreover, the injustice to Mr Roope was put right by the quashing of his conviction by the High Court in Prague. Subject to one reservation, it is not disputed that if Mr Roope is to be retried, i.e. if the further investigation which the Czech police are conducting justifies the re-filing of the indictment against him, he will be tried in the conventional way, and not be tried in his absence as a fugitive from justice (unless, of course, he becomes a fugitive from justice in the future). In those circumstances, I cannot say that the extradition process has been abused.
19. The one reservation is this. It will be recalled that the High Court in Prague directed the police, the prosecuting authority and the Municipal Court to ascertain whether the facts being advanced on Mr Roope's behalf, namely that he had at all times during the period of his licence been living at the address or addresses approved by his supervising officer, were correct. It is said that the authorities have taken no such steps at all. The only questions which the police had for him in their letter of 2 June 2014 related to the offences he was being investigated for. They did not relate at all to his whereabouts during the period of his licence. Indeed, no documents were placed before District Judge Zani which suggested that any steps had been taken since the quashing of Mr Roope's conviction to verify the facts on which the High Court in Prague based its view that the criteria for treating Mr Roope as a fugitive from justice had not been met.
20. In my view, that ignores the fact that before the extradition hearing Mr Roope's Czech lawyers had sent to the District Court in Prague, i.e. the requesting authority, the evidence which confirmed that Mr Roope had complied with the condition of residence in his licence. We do not know for sure that that was brought to the attention of the police, the prosecuting authority or the Municipal Court, but it can fairly be inferred, I think, that it was, because that would explain why no further steps were apparently taken after the judgment of the High Court in Prague to ascertain Mr Roope's whereabouts prior to his arrest under the warrant. The one thing which I am not prepared to infer is that the police, the prosecuting authority and the Municipal Court all ignored the instructions they received from the High Court in Prague.
21. I have not overlooked the point which Mr Brandon made about a letter which Judge Cihlarova sent to counsel instructed by the Extradition Unit on 6 December 2013 setting out the effect of the decision of the High Court in Prague. She said in effect that Mr Roope's conviction had been quashed, but merely added that Mr Roope had been ordered to be "returned back to the prosecuting attorney for additional investigation". It is said that she had not picked up from the judgment the requirement to ascertain Mr Roope's whereabouts during the period of his licence. I do not agree. The reference to "additional investigation" could have been a reference to further investigation into both his whereabouts during that time and the offences for which his extradition had been sought. In any event, it was not as critical for Judge Cihlarova, i.e. the judge in the District Court responsible for issuing the warrant, to understand the judgment of the High Court as it was for the Municipal Court, i.e. the "adjudicating" authority for the purposes of Mr Roope's trial, since it was the Municipal Court, not the District Court, which had been called upon, admittedly with the police and the prosecuting authority, to ascertain Mr Roope's whereabouts at the relevant time.
22. That leads me to the final point advanced by Mr Brandon, which is that Mr Roope will be in a worse position on his return to the Czech Republic than he would have been in if he had not been treated in the past as a fugitive from justice. Again, it is important to note what Mr Brandon is not saying. He is not saying that Mr Roope would not get a fair trial which complies with Art. 6. That was being advanced at one stage, but it is not being advanced now. The argument is that had Mr Roope known that he was under investigation by the Czech authorities, he would have co-operated with them. If that meant going to the Czech Republic, he would have been prepared to do that. That was, after all, where his girlfriend lives, even though she visits him in the UK. There would therefore have been no need for the warrant to be issued, or for the Czech authorities to seek his return by extradition. It is said that Mr Roope is now less likely to be granted bail on his return to the Czech Republic pursuant to the extradition order than if he had returned voluntarily, especially as he was once being regarded as a fugitive from justice.
23. A recent report from Mr Roope's Czech lawyers, which was not before District Judge Zani, addresses this issue. They set out the principles on which the courts in the Czech Republic decide whether to grant a defendant bail. Those principles appear to be similar to those in the UK. For what it is worth, the lawyers expressed the opinion that Mr Roope is unlikely to be granted bail. They said this:

"The Court would be able to take into account his conviction in absentia, albeit that this Judgment has been cancelled. They are also likely to be influenced by the fact that Peter Roope is not generally resident in the Czech Republic and is not a Czech national. I am aware that in the course of proceedings before Westminster Magistrates Court Mr Roope has changed his place of residence on a number of occasions. Despite the fact that reasons have always been put forward for this and the change of residence has been accepted by Westminster Magistrates Court, I fear that this will be interpreted badly in the Czech Republic and will be a factor that the Court takes into account in a negative way."

24. This would have carried much more weight if it had come from lawyers independent of Mr Roope, but leaving that aside it is important to remember that extradition proceeds on the basis of mutual respect between nations, and the assumption underlying the Framework Decision on the European Arrest Warrant is that "member states, sharing common values and recognising common rights, can and should trust the integrity and fairness of each other's judicial institutions": Lord Bingham in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 at [4]. The court which has to decide on Mr Roope's return to the Czech Republic whether he should be granted bail will, no doubt, take into account (a) the judgment of the High Court in Prague that the criteria for treating him as a fugitive from justice had never been met, (b) the fact that his whereabouts were at all relevant times known to the UK authorities, and (c) his claim that but for what has happened since, he would have been prepared to return to the Czech Republic voluntarily had he been aware of the investigation into his activities there. For what it is worth, the court will have the benefit of this judgment setting out all the relevant facts. In the circumstances, I do not think that Mr Roope's chances of being granted bail are any less than they would have been if he had returned to the Czech Republic voluntarily before all this happened.

The validity of the warrant

25. Mr Brandon disavowed any challenge on this appeal to the validity of the warrant. The fact that it referred to Mr Roope being a fugitive from justice when in fact he was not was not something which undermined its validity under the Act. In any event, the warrant had always been an accusation warrant, and the fact that Mr Roope had been a convicted person during some of the time between his arrest under the warrant and the extradition hearing did not make it any the less an accusation warrant both when it was issued and when the extradition order was made. But different considerations may apply in the Czech Republic. As far as I can tell, the motion in the Czech courts for the warrant to be revoked has not yet been determined. If it had been, I imagine that the Extradition Unit would have been told that. It goes without saying, therefore, that if the warrant is revoked by the Czech courts before Mr Roope is returned to the Czech Republic, the basis of his extradition goes. But that has not happened yet, and may not happen at all.

Conclusion

26. For these reasons, this appeal must be dismissed. I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and the order as to costs which I am minded to make is that there be no order as to costs, save that there be a detailed assessment of Mr Roope's publicly-funded costs as I have been told that he is legally aided. If both parties agree, that order will take effect within 14 days of the handing down of this judgment. If one or both of them do not, they should notify the Administrative Court Office of that within 14 days of the handing down of this judgment, and I will then decide what order to make without a hearing on the basis of such written representations as are made.