Bright Uhunamure v Belgium
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May DBE |
| Judgment Date | 30 September 2022 |
| Neutral Citation | [2022] EWHC 2435 (Admin) |
| Docket Number | Case No: CO/1068/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2435 (Admin)
Mrs Justice May DBE
Case No: CO/1068/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Stansfeld (instructed by Sonn Macmillan Walker) for the Appellant
David Ball (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 14/06/22
Introduction
This is an appeal, brought with permission of the single judge, against an extradition order made by DJ Branston (“the District Judge”) dated 17 March 2021.
The order was made pursuant to a European Arrest Warrant (“EAW”) issued on 25 September 2020 and certified by the NCA on 13 October 2020. The appellant is sought by the Examining Magistrate of the Court of First Instance in West Flanders, Belgium to stand trial for six offences of human trafficking, recruiting another person for prostitution using deception, coercion or threats, possession or retention of the proceeds of crime, conversion, transfer or concealment of money derived from criminal activities and hiding or disguising the movement or ownership of money derived from criminal activities.
The appellant was arrested on the EAW on 2 November 2020. The substantive hearing took place before the District Judge on 5 February 2021 after which he reserved judgment, subsequently handing it down and making the order on 17 March 2021.
As appears from the statement of Thomas Gillis dated 27 September 2021, after extradition was ordered, but before the hearing of the application for permission to appeal, there was a trial in Belgium, starting on 5 May 2021 and concluding on 26 May 2021. No objection is taken to the admission of this evidence on appeal. The appellant was not present at trial, being represented there by his Belgian lawyer. He was convicted and sentenced in his absence to 30 months imprisonment, 15 months of which were suspended. The offences of which he was convicted in his absence were more circumscribed than those for which he is sought on the EAW (a matter that was addressed in argument, see further below). He has lodged an appeal against conviction and sentence. However in the meantime his lawyer in Belgium has applied, successfully, for the appeal to be stayed pending these extradition proceedings. Accordingly it is accepted that the appellant has not been finally convicted in Belgium and that he has a right to a fresh trial there.
Permission to challenge extradition has been granted on two grounds:
(1) The District Judge should have found that the warrant failed to include adequate particulars of the offences as required by section 2(4) of the Extradition Act 2003 (“EA 2003”);
(2) The District Judge was wrong to find that the offences were extradition offences, as required by section 10 of the EA 2003.
Permission was refused on two further grounds, of abuse of process and under Article 6 ECHR.
The EAW and Further information
In overview the conduct is described as follows: the appellant is said to be part of a criminal organisation consisting of Nigerian citizens who exploit Nigerian women in enforced prostitution, putting pressure on the persons involved to have the victims do what they what them to. The organisation operates from Antwerp, sexual services are organised in Flanders. The appellant is said to be responsible for a system by which money is sent outside accredited money transfer operations, referred to as ‘Black Western Union’, for which he receives a commission. Others suspected of human trafficking, named as Kabba, Danko, and Billo, used this system and sent money to each other and to third parties, in order to facilitate the trafficking/prostitution operation and to launder the proceeds. Wiretaps and phone interceptions show money transfers from Kabba to Danko, operated by the appellant through his money transfer system, and Billo arranging to transfer money to Kabba, sometimes before Billo had placed money with the appellant in order to do so. A system was created where advance payments were made where the transferor did not have sufficient resources at the time of the transaction. At the time of the transaction the appellant communicated with the persons wishing to transfer money regarding exchange rates and commission. In the absence of the appellant money was handed over in a place called ‘Dave store’.
Wiretaps and mobile phone investigations show that the appellant has interests in the UK and Spain and is responsible for bringing money from Belgium to Nigeria. On 28 September 2019 the appellant said to Billo that he would take ‘something’ with him to Nigeria and that everything needs to be collected, this was about money. The appellant spoke to Billo about obtaining a residence permit and the possibility of applying for asylum in Belgium. The appellant was aware that Billo had been transferred from Nigeria to Belgium by Kabba. The appellant stated that when he would transfer a person he would look after the residence permit himself. The evidence indicates that Billo organises people-trafficking and smuggling between Dubai and Nigeria from Belgium. The appellant is responsible for advancing money that Billo needs to finance the offences. Wiretaps and cell phone investigations have shown that the appellant assumed that Billo would not be able to pay the money owed on time, before money was transferred out. Before a victim of trafficking, named as Victoria Williams (“VW”), was flown out of Nigeria to Dubai, Billo asked the appellant to check the internet for flight tickets for her. The appellant transferred money to a person called Ivie Ozurumba, on behalf of Billo, to smuggle VW from Nigeria to Dubai and to exploit her in forced prostitution in Dubai.
The involvement of the appellant in this activity is said to amount to six separate offences A to F, contrary to Belgian law, details of which are set out at [25] below.
The respondent has provided further information dated 22 January 2021, 5 February 2021 and 14 September 2021.
Issues before the District Judge and his findings
The District Judge considered and rejected an argument that the warrant did not contain the particulars required by section 2 EA 2003. He held that the EAW detailed “a criminal organisation exploiting Nigerian women for the purposes of prostitution, trafficking them out of Nigeria and using coercion to make them work as prostitutes”, in circumstances where the organisation profited from such activities. The District Judge found that the appellant was an “integral part of the organisation, providing the means by which monies to facilitate the enterprise is [sic] transferred and then transferring the profits of the enterprise”, also providing advice. He held that there were sufficient particulars to show how the appellant's conduct was said to constitute each of the offences for which he was sought: see paragraph 59 of the District Judge's judgment.
The District Judge took into account the contents of the further information dated 5 February 2021 in which the Belgian prosecutor gave notice of an intention to proceed against the appellant in respect of four, rather than six, offences. He concluded that this did not undermine the validity of the EAW, provided that sufficient particulars had been given in respect of the six offences, which had been done: see paragraph 63 of his judgment.
The District Judge then moved to consider whether the offences were extradition offences under section 10, applying (since the EAW is an accusation warrant) the requirements of section 64 EA 2003. Focussing on the requirement of dual criminality under sub-section 64(3) the District Judge held that the conduct had occurred in in Belgium “in the sense that the effects of the conduct were intentionally felt there”, that the offending was centred on Antwerp and that Belgium was the main destination for the trafficking of the Nigerian women. He found that there was “a wealth of information from which the court can infer that [the appellant] was knowingly and willingly involved in the offences disclosed rather than being some naïve or innocent party” and he set out the equivalent offences as follows:
(A) Human trafficking for exploitation, contrary to section 2 of the Modern Slavery Act 2015 (“MSA 2015”).
(B) Holding a person in slavery, servitude or forced labour, contrary to section 1 MSA 2015.
(C) Facilitating a breach of immigration law by a non-EU citizen, contrary to section 25 of the Immigration Act 1091 (“IA 1971”).
(D) Possessing criminal property, contrary to section 329 of the Proceeds of Crime Act 2002 (“ POCA 2002”)
(E) Concealing criminal property, contrary to section 327 POCA 2002.
(F) Disguising criminal property, contrary to section 327 POCA 2002. See paragraph 84 of the District Judge's judgment.
The Judge was also satisfied that as regards the offence of participation in a criminal organisation the conduct disclosed in the EAW and further information supported a finding that the appellant “was involved in a conspiracy to traffic humans for exploitation and/or a conspiracy to hold persons in servitude and/or a conspiracy to possess/conceal criminal property” and that such offence or offences would also be extradition offences: see paragraph 85 of his judgment.
Lastly the District Judge considered and dismissed arguments under section 11(1)(aa) and section 12A EA 2003 regarding the absence of a prosecution decision. There is no appeal against his decision in this respect.
Issues on this appeal
As indicated at [5] above, the issues arising for my decision are
(i) whether the District Judge was right to find that the EAW contained sufficient particulars as required by section 2 EA 2003, and
(ii) whether the District Judge was right to find that the requirement of section 64(3)...
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