Brian Powney v District Court of Ljubljana, Slovenia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holroyde,Lord Justice Burnett |
| Judgment Date | 14 September 2015 |
| Neutral Citation | [2015] EWHC 2543 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2201/2015 |
| Date | 14 September 2015 |
[2015] EWHC 2543 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
Mr Justice Holroyde
Case No: CO/2201/2015
Malcolm Hawkes (instructed by Lawrence & Co) for the Appellant
Catherine Brown (instructed by CPS Extradition Unit) for the Respondent
Hearing dates: 21 st July, 2015
This is an appeal, by permission of Ouseley J, against the decision of District Judge Coleman ("DJ Coleman") on 11 th May 2015 ordering that the Appellant Brian Powney ("Mr Powney") be extradited to Slovenia to face prosecution on a charge of fraud.
Mr Powney was a director of a company with a registered office in Ljubljana, Slovenia. The Slovenian name of the company is translated as "Sunset Promotion, Services and Trade Ltd" ("Sunset"). It appears that Sunset was in some way associated with a much larger organisation, Resorts Condominiums International ("RCI"), which has its registered office in Northampton. The allegation against Mr Powney is that between 10 th July 2010 and 24 th June 2011 he, as director of Sunset, engaged in fraudulent dealings in relation to timeshare holidays. In essence, it is said that he was selling timeshares in properties on the Spanish island of Tenerife when the properties either did not exist or were not available for use as a timeshare. It is alleged that he, through his representatives, dishonestly obtained deposits from customers amounting in total to 31,990 euros. Mr Powney denies these allegations. He accepts that he did for a time work for Sunset, but says that he had no knowledge of any dishonest activity and that, as far as he was concerned, no customer was defrauded.
On 17 th October 2014 the Respondent issued a European Arrest Warrant ("EAW"). It was certified by the National Crime Agency on 26 th December 2014, and Mr Powney was arrested on the same date. He made an initial appearance before the Westminster Magistrates' Court on 27 th December 2014, and was thereafter remanded on conditional bail until the full hearing before DJ Coleman. That hearing began on 30 th March 2015, when Mr Powney gave evidence, and was then adjourned until 11 th May 2015.
It is necessary to set out some of the terms of the EAW. Its preamble, sealed and signed by the Investigating Judge on behalf of the Respondent, says:
"EUROPEAN ARREST WARRANT
This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
The warrant then gives Mr Powney's full name and date of birth. It gives his address as a house in Wolverhampton which I understand to be his parents' home. It identifies the order for Mr Powney's detention which was issued by the Respondent on 17 th October 2014. It indicates the maximum sentence (5 years' imprisonment) for the offence alleged. In Box C2 it states:
"2. Length of the custodial sentence or detention order imposed/Remaining sentence to be served:
The procedure is in the stage of judicial investigation and the verdict has not yet been delivered."
The warrant then goes on, in Box E, to give detailed particulars of the fraud alleged, which it describes as "one continued offence" and identifies as coming within the broad category of "swindling". This factual summary begins with the words:
"From the Decision to open procedure it is evident that the accused …"
Finally, the warrant identifies District Investigating Judge Suzana Putrih as the representative of the Respondent court.
Part 1 of the Extradition Act 2003 applies to these proceedings. Section 2(3) and (5) of the Act require that an EAW must contain either a statement that the requested person is accused of an offence and his arrest and extradition are sought "for the purpose of being prosecuted for the offence", or a statement that the requested person has been convicted of an offence and his arrest and extradition are sought "for the purpose of being sentenced for the offence or of serving a sentence of imprisonment or another form of detention imposed in respect of the offence". Thus extradition may not be sought for the purpose of questioning a suspect or investigating an alleged offence.
Consistently with that limit to the legitimate scope of extradition, section 12A – which came into effect on 21 st July 2014 – provides as follows:
"12A Absence of prosecution decision
(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—
(a) it appears to the appropriate judge that there are reasonable grounds for believing that—
(i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and
(ii) the person's absence from the category 1 territory is not the sole reason for that failure,
and
(b) those representing the category 1 territory do not prove that—
(i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or
(ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure.
(2) In this section "to charge" and "to try", in relation to a person and an extradition offence, mean—
(a) to charge the person with the offence in the category 1 territory, and
(b) to try the person for the offence in the category 1 territory."
In relation to persons extradited for the purpose of being prosecuted for an alleged offence, it is necessary to have regard to section 21A, which also came into effect on 21 st July 2014:
"21A Person not convicted: human rights and proportionality
(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate.
(6) If the judge makes an order under subsection (5) he must remand the person in custody or on bail to wait for extradition to the category 1 territory.
(7) If the person is remanded in custody, the appropriate judge may later grant bail.
(8) In this section "relevant foreign authorities" means the authorities in the territory to which D would be extradited if the extradition went ahead."
The construction of section 12A was recently considered by a Divisional Court in Kandola v Germany [2015] EWHC 619 (Admin). It is appropriate to cite a lengthy passage from the judgment of the court given by Aikens LJ:
"26 There is a trans-national interest in bringing those accused of serious crime to justice, as Lord Steyn noted in Re Ismail [1999] 1 AC 320 at 327. He considered that extradition treaties and extradition statutes should therefore be accorded "a broad and generous construction so far as the texts permit it in order to facilitate extradition". That point was noted by Lord Hope of Craighead in Armas at [24], which concerned the construction of the EA itself. Lord Hope also pointed out that individual liberty was also at stake, so that "generosity must be balanced against the rights of the persons who are sought to be removed under these procedures". He noted that the task of construction was not easy because the wording of Part 1 of the EA did not match that of the FD 2002. But, he said:
"The task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against the unlawful infringement of the right to liberty".
The other four law lords agreed with Lord Hope's speech.
27 It seems to us that these are factors to be borne in mind in construing section 12A. It was clearly inserted in Part 1 with the aim of ensuring that those extradited under "accusation" EAWs should not be subject thereafter to long periods in detention whilst investigations were carried out in the issuing state. At the same time, we must not approach the construction of the phrases "decision to charge" and "decision to try" in section 12A by reference solely to the domestic law and practice of criminal...
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