QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HICKINBOTTOM
| HAYLE ABDI BADRE
|- and -
|COURT OF FLORENCE, ITALY
Hannah Hinton (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 26 February 2014
Crown Copyright ©
Lord Justice McCombe:
"organise[d] and manage[d] unauthorised criminal activity as a financial intermediary for the public collection and the transfer of huge amounts of financial flows to agencies not authorised by the Italian Monetary Authorities".
It is alleged that the offence was committed between 2 September 2011 and July 2012.
(B) Background Facts
"….the suspect is the manager of the company named Sahal Express Ltd, having its headquarters in London, carrying out this activity also through, the system of collection of funds and financial flows typical of the Islamic finance known as "hawala", having branches in more countries.
This company is not entitled to operate in Italy, as financial intermediary, as it lacks the required authorization from the competent national monetary and financial authorities.
Abdi Badre Hayle, managing Sahal Express Ltd, acted in complicity with Mohamed Geddi Bashir and other co-defendants of Somali origin, as the aforementioned Geddi Bashir had been delegated by Abdi in the area of Florence and other places in Italy to manage agencies for the transfer of funds at international level using the system and the business name of Sahal Express, and Abdi Badre came periodically to Italy and in particular to Florence to coordinate the activity of the persons acting under his control and management.
In such a way, Abdi Badre Hayle operated as Sahal Express Ltd also in Italy, even though the company lacked completely the necessary authorizations required by Italian Monetary and Financial Authorities, in particular those granted by the Bank of Italy, a conduct which amounts to the offence of unauthorized financial activity in that not duly authorized and regulated according to the law.
This conduct amounts to the offence provided for in article 132 of Legislative Decree 385\1983 as explained above."
The particulars go on to record the potential vice in the offence alleged, which is said to lie in an ability here to escape from the scrutiny of the financial regulators, thus facilitating terrorism or illegal immigration of persons of Somali origin. The EAW does concede, however, that "no real connection of the defendant and his accomplices with Islamic terrorist groups operating in Somalia could be traced".
(C) The Grounds of Appeal
"2(7) 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.
(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."
"…the Spanish judge, by signing the warrant, has given his authority to and thereby vouched the accuracy of its contents. Thus the warrant is in substance if not in form a certification…"
Lord Hope said,
"…The purpose of the certificate, then, is not to provide any further information than that which in a Part 1 warrant is already available. Its purpose is to vouch for, or affirm its accuracy…Any form of words will do, so long as they indicate that the person who authenticates the document accepts responsibility for its accuracy…"
Section 2(4)(c): sufficiency of particulars of the alleged offence
"2(2)(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(4)(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;"
i. The description must include when and where the offence is said to have happened and what involvement the person named in the warrant had (§7);
ii. A balance must be struck between the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures (§7);
iii. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence (§7);
iv. The language of the 2003 Act does not connote the specificity or lack of it demanded in the particulars for a count on an indictment (§8);
v. The amount of detail may turn on the nature of the offence (§7);
vi. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place (§7);
vii. Allowance must be made where an EAW has been translated (§8)."
"…I am satisfied that so far as Dual Criminality is concerned the comparable offence would be s.26 [sic, regulation 26] of the Money Laundering Regulations 2007 which requires registration with the Commissioners, and in default of compliance, renders the person liable to 2 years imprisonment (per s. 45 thereof)."
"102. Prison overcrowding violates international and European prison rules which set the recommended minimum space to be afforded to each detainee. Overcrowding does not, however, necessarily violate Article 3 ECHR. The "minimum level of severity" inherent in Article 3 tolerates some degree of overcrowding. In a case where a country's prison estate has not reached a level of overcrowding that, of itself, violates Article 3, a defendant will have to show that overcrowding had other specific effects in his individual case (such as lack of access to heat, light or sanitary facilities etc.). See, for example, Achmant v Greece  EWHC 3470 (Admin).
103. But overcrowding is capable of reaching such an endemic and serious level (where the prison estate as a whole is so overcrowded that individuals are habitually kept in spaces less than 3m²) that detainees are subjected to a systemic Article 3 violation. Such cases are obviously rare. But they do occur. Amongst the 48 member states of the Council of Europe, until recently, international acknowledgement of such conditions was confined to Russia."
"1. The Court may initiate a pilot-judgment procedure and adopt a pilot judgment where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications."
"55. In view of these circumstances, the Court considers that it has not been demonstrated that the action indicated by the government, taking particular account of the current prison system situation will be effective in practice, i.e. likely to prevent the continuation of the alleged infringement and ensure an improvement in the applicants' physical conditions of detention. Therefore, they were not obliged to exhaust things before applying to the Court."
"87. The Court has observed that prison overcrowding in Italy does not concern only the applicants' case (paragraph 54 above). It notes in particular that the structural and systemic nature of prison overcrowding in Italy is clearly evident from the statistical data indicated above and from the terms of a national state of emergency declaration made by the President of the Italian Council of Ministers in 2010 (paragraphs 23-29 above),
88. The combination of these data shows that the breach of the applicants' right to benefit from adequate conditions of detention is not the result of isolated incidents but arises from a systemic problem, which results in turn from a chronic malfunction particular to the Italian penitentiary system, which has affected, and is likely to affect again in the future, many people (see mutatis mutandis, Broniowski v. Poland, cited above, §189).According to the Court, the situation found in the present case therefore constitutes a practice incompatible with the Convention (Bottazzi v. Italy [GC], No 34884/97, §22, ECHR 1999-V; Bourdov (No.2), above, §135).
89. Furthermore, the structural nature of the problem identified in these cases is confirmed by the fact that several hundreds of requests directed against Italy and raising a problem of compatibility with Article 3 of the Convention for inadequate conditions of detention related to overcrowding in different Italian prisons are currently pending before it. The number of such requests continues to increase."
With regard to more recent measures, the court said this (at paragraph 92):
"92. It notes that the Italian State has recently taken measures likely to contribute to reduce the phenomenon of prison overcrowding and its consequences. It welcomes the steps taken by the national authorities and cannot but encourage the Italian State to continue its efforts.
However, it must be observed that, in spite of the legislative and logistical efforts made by Italy in 2010, the national rate of overcrowding was still very high in April 2012 (reduced from 151% in 2010 to 148% in 2012). It notes that this mitigated balance sheet is of particular concern as the emergency plan of action prepared by the national authorities is limited in time with the end of works for construction of new prisons planned for the end of 2012 and that the sentence enforcement provisions, extraordinary in nature, shall apply only until the end of 2013 (paragraph 27 above)."
The court decided that satisfactory remedial measures had to be put in place within one year from the date on which the judgment became definitive.
"…The Minister expressed that awareness of the necessity to remove the prison conditions which may be defined as inhuman or degrading has been acknowledged by the highest Institutions of the Country. By means of an exceptional procedure, which Article 87 of our Constitution reserves for situations of absolute national relevance, the President of the Italian Republic sent a message to Parliament – the first of his long Presidential term – so as to invite the legislature to promptly consider the "fact of exceptional importance constituted by the European Court of Human Right's [sic] decision" and "of proceeding to an internal remedy which may offer a restoration for the overcrowding conditions already suffered by prisoners…"
The letter then proceeds to set out steps being taken and to be taken to ensure compliance with the European Court's requirements, as expressed in the judgment. The letter did not suggest that those requirements had already been met.
"RE: ABDI BADRE Hayle, born on 24 October 1960. European Arrest Warrant
Our Ministry assures you that should the Somali national ABDI BADRE Hayle be surrendered by the Authorities of the United Kingdom of Great Britain and Northern Ireland under the European Arrest Warrant, he will be kept in conditions complying with the provisions of Article 3 of the European Convention for the protection of human rights and fundamental freedoms signed in Rome on 4 November 1950 as modified on 11 May 1994.
Following his surrender ABDI BADRE Hayle shall not be necessarily incarcerated in the Detention Institution of Busto Arsizio or Piacenza in that he can be imprisoned in other correctional institutions."
"189. More usually, the Court will assess first, the quality of assurances given and, second, whether, in light of the receiving State's practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors:
(i) whether the terms of the assurances have been disclosed to the Court….;
(ii) whether the assurances are specific or are general and vague…;
(iii) who has given the assurances and whether that person can bind the receiving State;
(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;
(v) whether the assurances concerns treatment which is legal or illegal in the receiving State;
(vi) whether they have been given by a Contracting State;
(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State's record in abiding by similar assurances;
(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant's lawyers;
(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;
(x) whether the applicant has previously been ill-treated in the receiving State; and
(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State…."
Here it seems to me that questions (i), (ii), (iv), (vi), (vii) and (viii) at least are of some assistance.
(D) A point of practice
Mr Justice Hickinbottom: