Besaran Husin Zada v The Deputy Public Prosecutor of the Court of Trento, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde,Lord Justice Elias |
| Judgment Date | 16 March 2017 |
| Neutral Citation | [2017] EWHC 513 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4785/2016 |
| Date | 16 March 2017 |
[2017] EWHC 513 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
Mr Justice Holroyde
Case No: CO/4785/2016
Mr Sean Kivdeh, Mr Alexander dos Santos (instructed by SBS Solicitors) for the Appellant
Mr Daniel Sternberg (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 7 th February 2017
Approved Judgment
On the 14 th September 2016, in the Westminster Magistrates' Court, District Judge (MC) Ashworth ("the DJ") ordered the extradition of Mr Besaran Zada to Italy. Mr Zada appeals, with leave, against that order.
Italy is a category 1 territory for the purposes of part 1 of the Extradition Act 2003. The relevant judicial authority in these proceedings is the public prosecutor's office attached to the Ordinary Court of Trento, Italy ("the JA"). On 14 th April 2014 the JA issued a European Arrest Warrant ("EAW") requesting the arrest and surrender of Mr Zada for the purposes of executing a custodial sentence which the Court of Trento had imposed upon him in his absence on 11 th June 2010 and made final on 31 st October 2010. That sentence had initially been one of 4 years 6 months' imprisonment, but as a result of what appears to have been a general amnesty in Italy it was substantially reduced, with the result that the remaining sentence to be served is a term of 18 months' imprisonment.
The EAW specified that it related to two offences, namely criminal association for the purposes of facilitating illegal immigration and facilitation of illegal immigration. The Warrant stated the applicable statutory provisions under the Italian criminal code. In the Framework list of offences, the EAW was marked to show "participation in a criminal organisation" and "facilitation of unauthorised entry and residence".
The EAW summarised the circumstances of the offences and the degree of participation in them by Mr Zada, who was said to be also known as Omar Mast Frosh. His role was described in the following terms:
"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"
The EAW was certified in this country by the National Crime Agency on 21 st July 2015. Mr Zada was arrested, pursuant to it, on 15 th October 2015. He has been in custody since his arrest. At the extradition hearing, it was submitted on Mr Zada's behalf that his extradition was barred by the rule against double jeopardy, and/or because it would be oppressive as a result of delay. The DJ ruled against Mr Zada on both those issues. The second of them has not been pursued on appeal, and I need say no more about it. It follows that, subject to the issue of double jeopardy, it is accepted that the EAW is valid in all other respects.
The grounds of appeal are that the DJ —
"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."
The appeal is brought pursuant to section 26 of the Extradition Act 2003, which permits an appeal, with the leave of the High Court, on a question of law or fact. This court's powers on hearing the appeal are set out in section 27 of the 2003 Act:
"(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."
Sections 11 and 12 of the Extradition Act 2003 set out the circumstances in which extradition may be barred on the ground of double jeopardy. So far as is material for present purposes, those sections are in the following terms:
"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 Fofana and Belise v Deputy Prosecutor Thubin, Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin) Auld LJ (with whom Sullivan J agreed) reviewed previous authorities and said at para18 –
"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."
On behalf of Mr Zada, Mr Kivdeh and Mr dos Santos submit that the EAW issued against Mr Zada by the JA relates to the same, or substantially the same, facts and law as were the subject of his earlier conviction and sentence by a court in France. His first ground of appeal is, accordingly, that his extradition is barred by the rule against double jeopardy. His second, alternative ground of appeal is that the DJ failed correctly to analyse the facts and circumstances of the French and Italian prosecutions, and so failed to identify that they were founded on the same or substantially the same facts. It is therefore necessary to summarise those matters.
Mr Zada was born on the 22 nd November 1976, and so is now forty years old. He is an Iraqi Kurd. He came to this country in October 2003, sought asylum, and in October 2005 was granted leave to remain for five years. In late 2005 an EAW was issued against him, and two others named Azad Hosseini and Omar Ahmed, by the Head of the Prosecution Department of the Courts of Higher Instance, Paris. His extradition was sought by France for the purposes of conducting a criminal prosecution for an offence described in the EAW as follows:
"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 background to the issuing of that EAW is that an investigation began in France in October 2004, when French police arrested a number of Afghani illegal immigrants and identified the existence of a people-smuggling ring. Telephone intercepts identified Mr Zada as a banker for the operation, based in England. Men called Sada and Kouhi were identified as returning regularly from France to Italy, or picking up in France persons who were entering illegally via Italy. The investigation was referred to a specialist inter-regional court in Paris, and was conducted by OCRIEST 1. As the investigation progressed it identified links with investigations which were ongoing in Italy.
On 29 th April 2005 there was a meeting, instigated by the French, of representatives from France, the UK, Italy, Belgium, Greece, Turkey, Europol 2 and Eurojust 3. The participants agreed on coordinated action aimed at "the eradication of the...
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