QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLROYDE
| BESARAN HUSIN ZADA
- and –
|THE DEPUTY PUBLIC PROSECUTOR OF THE COURT OF TRENTO, ITALY
Mr Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 7th February 2017
Crown Copyright ©
Mr Justice Holroyde:
"Participant in the criminal association, 'cashier' for the criminal association in the United Kingdom. He administers personally the proceeds of crime of the criminal association. On behalf of Ako Ali and Arih Murat he collects most of the money paid for arranging the trips by the family members of the illegal immigrants, already resident in the United Kingdom and other countries. He is in contact with his brother, who lives in Kurdistan, to whom he transfers, on behalf of Ako Ali, a part of his gains, which are subsequently collected by family members or persons trusted by the leader of the association."
The warrant then identified a number of "single episodes" which "may be directly ascribed to" Mr Zada. These single episodes comprised financial transactions through companies such as Western Union and Money Gram: the dates and amounts were specified, together with references to text messages confirming them. The list of single episodes ended in these terms:
"Moreover, the entry and transit of other illegal immigrants who have not been checked.
Date: September 2004 until April 2005
Place: Iraq, Turkey, Greece, Italy, France, United Kingdom"
"1. erred in determining that the conduct for which [Mr Zada] is sought was not the same in fact and law or alternatively founded on the same/substantially the same facts as a matter for which he had been dealt with previously;
2. erred in his findings of fact regarding the French and Italian judgments and the underlying alleged conduct."
"(1) On an appeal under section 26 the High Court may-
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that-
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that-
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must-
(a) order the person's discharge;
(b) quash the order for his extradition."
"11. (1) … the judge … must decide whether the person's extradition to the category 1 territory is barred by reason of —
(a) the rule against double jeopardy; …
12. 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."
"In summary the authorities establish two circumstances in English law that offend the rule against double jeopardy:
i) Following an acquittal or conviction for an offence, which is the same in fact and law - autrefois acquit or convict; and
ii) Following a trial for any offence which was founded on 'the same or substantially the same facts', where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show 'special circumstances' why another trial should take place."
"by direct or indirect assistance, facilitated or attempted to facilitate the illegal entry, circulation or stay in France with the circumstance that the facts were committed by an organised gang"
The EAW identified the offence as a Framework list offence, namely 'assistance in illegal entry and stay'. It stated that under French law, the maximum sentence for such an offence is life imprisonment.
"The investigations showed that Besaran Husin Zada, named with Sheik Hussein and Khaled Dallo in the intercepted telephone communications as being one of the 3 main bankers of the ring, was in reality playing a central role, quite crucial in the proper functioning of this organisation by enabling the receipt and prior check of the funds before any transit as in his capacity as banker, he was the only one to authorise and then proceed to a return of part of the funds to different smugglers who had contributed to the transit, but equally made possible the survival of the illegal immigrants, by the transfers of funds he made, in the various countries they crossed.
The investigations have furthermore established that this was an ancient activity exercised on behalf of the ring, first in Greece, then in Great Britain after transit in France.
Those elements characterise the offence of assistance to the illegal entry and stay in France.
In order to enable the arrival on the national territory of numerous candidates to illegal immigration having chosen Great Britain as country of destination, he was in contact with the major stakeholders not only in France but also abroad, as it results from the agreement which characterises the aggravated circumstance of organised gang.
The offences he is blamed for, committed in Great Britain, inseparably jointly with the offences committed in France are described perfectly. Besaran Hussain Zada will therefore be remanded in order to prevent further offences."
"it is apparent in fact from the phone-tapping recordings transcribed in the case file that he was in permanent contact with the main individuals responsible for the network in France, in particular smugglers, and gave his guarantee, as the 'guarantor' banker, on the arrival in France of numerous people, in an illegal situation, wanting to live either in France or other countries in northern Europe, via France; the funds that he contributed therefore made possible not only payment of smugglers working in France, but also the upkeep and survival in France of numerous illegal immigrants;
… the procedure also establishes that the person concerned himself went to France on several occasions in the context of his illegal activity; in particular, he was questioned on two occasions in Coquelles in 2005; whereas consequently, offences constituting the infringement of assisting the illegal entry, movement and stay in France as member of an organised group of which he is accused were, indisputably, committed in France; …
Whereas the offences of which Husin Besaran Zada is accused are extremely serious, the procedure establishing indisputably that he is one of the network's three 'bankers' and that, as such, he played a central and determining role in the operation of the said network; these offences, in breach of public policy in that they seriously compromise the national immigration policies and contribute to creating related crime, justify a significant non-suspended prison sentence …".
"They associated one another and with persons not identified for the purposes of committing more offences of facilitating unlawful immigration under aggravated circumstances; and, with a view to gaining profit, in furtherance of the same criminal plan, in participation with one another, committed actions aimed at facilitating the entry of foreign nationals in the territory of the State in breach of law provisions of Consolidated Act 286/98, as well as facilitating the unlawful entry into other states (France, United Kingdom, Sweden, Netherlands, and northern Europe more in general) of persons not nationals or not having the residence in those countries; with the following aggravating circumstances:
- transports for more than 5 persons;
- entry and accommodation of persons subject to inhuman and degrading treatment:
Facts committed by more than 3 persons in complicity with each other using counterfeited documents
Availing themselves of the conditions set out in Article 416 bis of the Criminal Code and with a view to facilitating the activity of the association described…".
"Offence currently committed in several EU and non EU countries (Iraq, Turkey, Greece, France, Italy and United Kingdom) and ascertained in Trento starting from March 2003 until today. Association linked to the activity described in the charge made in the framework of criminal proceedings 1036/2000 RGNR of which this is a separate proceedings and in respect of which some judgments have already become final".
"He is the one who personally manages the proceeds of the criminal organisation. He receives, on behalf of Ali Ako and Murat Arih, the majority of the money of the relatives of migrants already living in the United Kingdom or in other countries transfer as a payment for the journey. The same person speaks with his brother living in Kurdistan to whom, by express order by Ali Ako, he transfers part of his earnings, which are directly withdrawn by relatives or people trusted by the heads of the organisation"."
Certain specific transit financial transactions said to be directly traceable to Mr Zada were then particularised.
"This office doesn't know if the French judicial authority charged the above mentioned Zada with the acts with which he has been convicted in Italy. I don't think so, because of the kind of acts and places where they have been committed, which are indicated in the judgment hereby attached."
i) The defence bear the burden of establishing abuse on the balance of probabilities.
ii) A stay of proceedings on the grounds of abuse of process is an exceptional remedy, and only rarely granted.
iii) The 2 main categories of abuse of process are cases where the court concludes that an accused cannot receive a fair trial and cases where the court concludes that it would be unfair for the accused to be tried: see Connelly v DPP  AC1254, Maxwell  4 All ER 941 and Warren v Attorney General for Jersey  1AC 22.
"that the French prosecution was for offences that related solely to Zada's involvement with the French network and the criminality that flowed from its activities. The judgments repeatedly stress that the behaviours in the UK were 'inseparable' from those in France. The facts of the case which amount to the offence for which he was convicted and punished in my assessment are limited to the organisational and banking activities of Zada that assisted the French network, and not any wider role such as his transactions with the Italian cell. "
"The Italian prosecution I find as a fact relates solely to the activities that the RP undertook for the benefit of Ali Ako and Murat Ali in relation to the transit of illegal immigrants in Italy and not to any activity in France or involvement in the wider network activities. This is because the EAW and judgment of the Court of Trento are so specific as to what facts and transactions are stated to make up the offending behaviour."
"was providing assistance to the two cells separately. There is no evidence that he was providing any kind of co-ordination between the two and indeed had a different level of involvement of the French network, being more of an organiser. The money from each organisation went back to its own smugglers and so his assistance to the two cells was distinct. The fact that he was using a similar method of money transfers does not advance the defence case far, that was simply a tool the RP used to transfer money".
"The Italian and French organisations, I find, were part of a wider network. However, their actions were undertaken in the very large part within the countries they operated in, and were identified by the investigators as separate organisations. The two countries I find were only intent on prosecution of their respective organisations, and not in punishing the separate organisations for the entirety of the network's activities. … I am not persuaded on the balance of probabilities that either the existence of an overarching network or a joint investigation of a number of countries of that network would inevitably lead to identical prosecutions of those involved if more than one country proceeded. It may be a matter of evidence, but there would be no difficulty in one prosecuting authority identifying individuals involved in a discrete sub-group and prosecuting them for their activity. In fact, Mr Zada was providing assistance to more than one sub group. That he faces more prosecutions than individuals that only operate in one sub group is a risk he took by engaging in the actions that he took. He is not being prosecuted by either country for being the 'banker' to the network at large, in fact they have been quite precise as to what activity they are specifying in their respective prosecutions.
I cannot discern any evidence that would suggest the sentence he was given in France incorporated any enhancement for his activities in Italy. Further, the accusation of money laundering against the RP was discharged at the committal stage. On the balance of probabilities, bearing in mind the continual reference to the French based nature of offences and activities, I find there was no such enhancement. The Italian sentence, I find, also had no such enhancement. The EAW and judgment of the Court of Trento are clear as to the activity penalised, which relates solely to the organisation in Italy.
The individual sentences for each country do not seem particularly incongruous bearing in mind the activity in each territory he was convicted of. The combined effect of the sentences (even before the reduction) reflecting his actions in more than one territory, would not appear to be manifestly excessive albeit it that no process to consider totality has been undertaken. Bearing in mind the general amnesty, the eventual sentence was 8.5 years for providing banking services in two countries and organisation in France cannot be said to be unfair or to amount to an abuse."
"…it would have been preferable if one country could have been able to deal with Zada for his behaviour overall. That legally may not have been possible due to the fact that he acted remotely in the UK which presented a legal hurdle that could not be crossed if any one country (other than the UK) decided to prosecute him for his assistance to the network in both Italy and France".
He rejected a submission that Mr Zada could end up being prosecuted in multiple countries over substantially the same offending, and would thereby suffer unfairness. The DJ reiterated that it was in his judgment abundantly clear that France and Italy had dealt only with Mr Zada's criminal conduct relating to their respective countries, and pointed out that
"if an offender commits an offence that affects a number of different countries, he must also bear the burden of facing justice in each of them, providing the countries are clear about what behaviour they are dealing with".
i) Following the international meetings, there was an agreement between the states concerned as to which state would prosecute those involved in the criminal conspiracy, and France elected to take on the responsibility of prosecuting Mr Zada for all his criminal activity in relation to facilitating illegal immigration into EU member states. That election was made, or evidenced, by France's issuing of the EAW and requesting Mr Zada's extradition from the UK. France did then prosecute, convict and sentence Mr Zada for all of his criminal activity, including that in Italy.
ii) Alternatively, if France did not in fact prosecute Mr Zada for all his criminal activity, then pursuant to what had been agreed at the international meetings she could and should have done so, and it would be an abuse of the process for any other state now to prosecute or sentence him for some of his activity in furtherance of the single conspiracy.
iii) If neither of the above submissions succeeds, there is in any event such a close overlap between the subject of the French prosecution, and the subject of the Italian prosecution, that they must properly be regarded as prosecutions founded on the same or substantially the same facts, and the Italian EAW thus exposes Mr Zada to double jeopardy.
He submits that the DJ should therefore have concluded, applying s12 of the 2003 Act, that an application to stay proceedings against Mr Zada as an abuse of the process would succeed, and it was not properly open to the DJ to reach any other conclusion.
"Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences arising from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly."
"there was, in my judgement speaking generally no abuse in the United Kingdom prosecuting authorities deciding to confine the United Kingdom prosecution to the United Kingdom offences, leaving it to the Italian authorities to proceed with the European arrest warrant conduct as alleged in Italy. They were not, on the facts of this case, in my view, obliged to accede to the Appellant's request to bring the European arrest warrant Italian conduct into the English prosecution. Nor would it be an abuse if punitively the Appellant were to be prosecuted in this jurisdiction, on charges reflecting the conduct alleged in the European arrest warrant. There were substantial reasons, as articulated by counsel on 25 June 2009, why it was right that the matters alleged in Milan should be dealt with in Italy, not least because there was no substantial connection with the matters alleged in this jurisdiction, and because the allegation was that this Appellant was concerned with a co-conspirator in Italy in the matters that were alleged against him here"
"(1) A person commits an offence if he –
a) does an act which facilitates the commission of a breach or attempted breach of immigration law by an individual who is not a citizen of the European Union,
b) knows or has reasonable cause for believing that the act facilitates the commission of a breach or attempted breach of immigration law by the individual,
c) knows or has reasonable cause for believing that the individual is not a citizen of the European Union."
"There was a meeting on 7th October 2005 … . This dealt with negotiating and agreeing the co-ordination of the arrests which subsequently took place on 14th December 2005. There was no discussion at Eurojust or involvement of Eurojust in deciding in which jurisdiction prosecutions should take place or with regards to which jurisdiction should issue European Arrest Warrants, either at the meeting on 7th October 2005 or subsequently."
Lord Justice Elias: