Ahsan Ali Syed v Government of Switzerland

Hearing dates: 23 July 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 31 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Applicant's extradition has been requested by the Government of Switzerland for offences of fraud. Following a contested extradition hearing before District Judge McGarva, on 4 July 2023 he sent the Applicant's case to the Secretary of State under s 87(3) of the Extradition Act 2003 (EA 2003). The Secretary of State subsequently ordered extradition on 24 August 2023 under s 95.

On 23 July 2024 I heard an oral renewal application for permission to appeal under Part 2 of the EA 2003 following refusal on the papers by the single judge. The Applicant seeks permission to appeal against both the district judge's and the Secretary of State's decisions, under ss 103 and 108 of the EA 2003 respectively. I reserved my decision and said I would put my reasons into writing. This I now do.

For the reasons that follow I am not persuaded that any of the grounds of appeal are arguable, and I therefore refuse permission to appeal.

Factual background

The Applicant is accused in Switzerland of what is known in this country as advanced fee fraud. He is accused of having obtained a total of CHF 28.6 million from 23 parties between September 2010 and May 2011 by misusing the companies Western Gulf Advisory AG and Western Gulf Assets Limited, which were managed by him.

The Applicant is said to have pretended to be able to grant large loans to companies (amounts between USD 30 – 80 million), but demanded advance payments (‘up-front fees’) from the interested companies, allegedly for the costs of the credit assessment (‘due diligence fee’), the effort in setting up the contract (‘registration fee’) and insurance costs (‘insurance fee’). This took place in the aftermath of the 2008/9 financial crisis when many companies faced difficulties in raising capital.

In fact, the Applicant was neither willing nor able to pay out the promised loans as agreed, and he did not fulfil any of his loan obligations. The sums of money that the companies paid with regard to the granting of the agreed loan were for the most part paid directly into bank accounts in Switzerland, but partly also into bank accounts in the Kingdom of Bahrain. In addition, sums of money amounting to millions were moved between Switzerland and Bahrain.

It is alleged that the Applicant subsequently used the money obtained from the injured parties not for business but for his own private purposes, such as: the purchase of an expensive flat on Lake Lucerne in Switzerland (CHF 3 million); leasing and operation of a private aircraft (approximately CHF 4 million); and the purchase and maintenance of the Racing Santander football club in Spain (approximately CHF 2.2 million).

There is a table in Appendix 1 to the statement of the Swiss prosecutor of 12 January 2023 which sets out the victim companies and shows what they were allegedly defrauded of, and where that money was paid. In all but two cases it was paid into bank accounts in Switzerland.

Grounds of appeal

As now presented, there are four grounds of appeal, plus an additional ground of appeal based upon recent developments concerning the Applicant's statelessness. Griffiths J granted permission to amend the grounds of appeal to include this ground.

In respect of the district judge's decision, it is said he erred in failing to rule that:

a. the extradition request is inadequately particularised so that it is impossible to apply the dual criminality test (Ground 1);

b. the Applicant's extradition is barred on the ground of double jeopardy (s 80, EA 2003) (Ground 2);

c. the Applicant's extradition is barred by the passage of time (s 82, EA 2003) (Ground 3).

In relation to the Secretary of State's decision, it is said that he wrongly held that there were specialty arrangements with Switzerland, and thus that he was wrong not to conclude that extradition is prohibited by the absence of speciality arrangements (ss 93 and 95, EA 2003) (Ground 4).

The additional ground relating to the Appellant's statelessness arises out of the decision of the Turkish Government in May 2024 to revoke his Turkish citizenship. At present it is not known what it was which led to this decision being taken. The ground of appeal said to arise out of it is that extradition would be incompatible with the Applicant's rights under Article 8 of the European Convention on Human Rights (ECHR) and so is barred by s 87 of the EA 2003 (Ground 5).

Discussion

In relation to Ground 1, it is common ground that an extradition request must contain sufficient particulars of the alleged foreign offending so that the defendant knows clearly what s/he is accused of, so that any bars to extradition can be raised, or arguments made that the alleged offending does not satisfy the relevant dual criminality test in Part 2 of the EA 2003.

Mr Jones said that the particulars of the Applicant's alleged criminal conduct in the extradition request (properly so called) dated 12 December 2022 and sent to the UK under the seal of the relevant Swiss Ministry was sparse and obviously inadequate as it did not, for example, provide details of those who were allegedly defrauded nor did it clearly set out where the alleged conduct took place. The request was then supplemented by statements and enclosures sent by the Zurich prosecutor to which the district judge had regard when he concluded that the Appellant's offending had been sufficiently particularised, for example, Appendix 1, to which I referred earlier.

Mr Jones said the district judge had been wrong to have regard to this supplementary material, and should have limited his inquiry to what was in the request (properly so called), and that had he done so, he would have been bound to have discharged the Applicant.

Mr Jones relied on Government of the United States v Shlesinger [2013] EWHC 2671 (Admin), [12], in support of his submission that the district judge was limited to considering only the request:

“… It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request. It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales.”

I do not agree that the district judge erred in his approach in the way suggested by Mr Jones (or at all). The point in Shlesinger was that the defendant had tried to adduce evidence to undermine what was in the request. The Divisional Court said this was not permissible, and that the district judge was only able to consider material emanating from the requesting state in determining whether the request contained extradition offences. This is made clear by the two sentences after the passage in [12], which Mr Jones relied on and I set out earlier. Those sentences are:

“It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below [ie, abuse of process]. The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone.”

This was an unsurprising conclusion. Since at least In re Evans [1994] 1 WLR 1006, a case under the Extradition Act 1989, it has been clear that a defendant cannot call evidence or put in material to undermine what is in an extradition request for the purposes of trying to show that it does not disclose an extradition offence.

The decision in Mauro v Government of the United States of America [2009] EWHC 150 (Admin), [20], is directly against Mr Jones' submission. Even if he is right that the relevant paragraph was obiter (and so not strictly binding upon me), it is plainly correct. In that case a letter from the American prosecutor had been used to supplement the request in relation to whether the offences alleged were extradition offences, and the Divisional Court said this was permissible:

“20. Moreover, when requiring the District Judge to decide in a Part 2 case whether the offence specified in the request is an extradition offence, section 78(4)(b) does not limit him to the information contained in the originating request.”

In the present case, the information supplied by the Swiss prosecutor was properly authenticated as required by s 202(4) of the EA 2003. The fact it was not sent first to the Secretary of State is neither here nor there. That is not required by s 78. The material plainly showed that the Applicant is accused of extradition offences. In equivalent circumstances, his conduct would amount to fraud by false representation contrary to s 1 of the Fraud Act 2006. Whilst some conduct occurred outside Switzerland (eg in Bahrain), and so must be taken to have occurred outside England and Wales for the purposes of the dual criminality exercise required by s 137(3) of the EA 2003, those companies who were defrauded and who paid money into Swiss bank accounts (as the...