Christopher Thomas v Swedish Economic Crime Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 01 August 2019 |
| Neutral Citation | [2019] EWHC 2628 (Admin) |
| Docket Number | Nos. CO/4703/2018 CO/4712/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 August 2019 |
[2019] EWHC 2628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Dingemans
Nos. CO/4703/2018 CO/4712/2018
Mr A Jones QC and Mr M Henley (instructed by AM International) appeared on behalf of the Applicants.
Mr D Perry QC and Mr R Evans (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent.
This is a hearing of an application to reopen an appeal which relates to an order for extradition which was made on 19 November 2018. The application is made by Anthony Farrell and Christopher Thomas. The application is made pursuant to the Criminal Procedure Rules paragraph 50.27, which rule was itself made after the Court of Appeal Criminal Division declared in R v Yasain [2015] EWCA Crim 1277; [2016] QB 146 that the Court of Appeal Criminal Division had jurisdiction to reopen an appeal in the same way that the Court of Appeal Civil Division had such jurisdiction.
The previous application for permission to appeal
I had heard on 2 April 2019 renewed applications for permission to appeal by Afram Gergeo, Anthony Farrell and Christopher Thomas against the judgment of the Senior District Judge Magistrates' Court, Emma Arbuthnot, the Chief Magistrate, which was dated 19 November 2018 and followed a hearing on 15, 16 and 17 October 2018. The Chief Magistrate had ordered the extradition of the appellants pursuant to a European arrest warrant signed by Arne Fors, the Senior Public Prosecutor, Third Economic Crime Chamber of the Swedish Economic Crime Authority (“SECA”).
Cutts J had refused permission to appeal in writing and I dismissed the renewed applications for the reasons which I gave orally at the time. The effect was that the original extradition order was upheld. In the event, both Mr Farrell and Mr Thomas were then extradited to Sweden. Both were interviewed and released, but I will come to the dates in a short period of time.
The application before me and the issues
Mr Farrell and Mr Thomas make their application to reopen their appeals on three grounds. The grounds are first, that it was apparent from their interviews and release that no decision had been made to bring proceedings against them, a proposition which they say is now made evidently clear by a further letter dated 26 July 2019, signed by the new prosecutor who has taken over from the former prosecutor. The new prosecutor is Mr Asplund. The second ground was that the extradition proceedings were an abuse of process, because the only intention of the prosecutor was to obtain information from them under interview. The third ground was that the prosecutor, SECA, is not an independent prosecutor as required by the provisions of the Extradition Act 2003 and the Framework Decision to which it gives effect. Reliance was again placed on the letter from Mr Asplund, the prosecutor at SECA, who said that in fact SECA was not the prosecutor but it had been individually Arne Fors and then him and someone before Mr Fors.
The application is resisted by the respondent, which says, first, the decision to charge and try had been made. There are difficulties in reading across from English law concepts of a charge and decision to try to a civil law jurisdiction, but, subject always to the requirement to review, a decision to charge and try had been made. Further evidence which has been produced by Mr Asplund simply shows that the authority has kept matters properly under review. For similar reasons, they say, secondly, there is no abuse of process. The respondent is progressing the matter towards trial and there is no collateral purpose from the interviews. Thirdly, they say the prosecutor is the main person in the letters written on behalf of SECA, and that he was and is an independent prosecuting authority.
The respondent further submits that reopening the proceedings will serve no practical purpose because the extradition proceedings are at an end, in the sense that both Mr Farrell and Mr Thomas were extradited and both are now back in this jurisdiction.
Factual background
It might be noted that a co-defendant, Maxwell Serwin, was also ordered to be extradited by the Chief Magistrate, but he absconded and the proceedings took place in his absence. He was then located in Hungary and he was extradited from there. It is apparent that he is remanded in custody in Sweden.
The essential allegations against the appellants is that they, with Mr Serwin, were involved in defrauding a Swedish pension fund of millions of euros. It is alleged that Mr Serwin and Mr Gergeo were at the heart of the fraud and that Mr Farrell and Mr Thomas had lesser roles in enabling the monies to be paid over to companies controlled by the main fraudsters under the guise of innocent investment decisions. I should say (as I had said on 2 April), as a matter of fairness to all, that the appellants before me strongly deny any wrongdoing.
There were a number of issues before the Chief Magistrate about whether sufficient particulars had been given and more relevantly to this hearing, about whether a decision to try had been made pursuant to section 12A of the 2003 Act, and whether the appellants were wanted for prosecution or investigation. Another issue related to conditions of isolation in pre-trial detention. Additional points were taken before the Chief Magistrate about whether the Senior Public Prosecutor of SECA was a judicial authority, whether requirements of dual criminality were met, and whether extradition would be contrary to various rights protected under the European Convention on Human Rights, and there was also an issue of disclosure.
The Chief Magistrate had evidence, including the European arrest warrant, further information, expert evidence from the defence on which Mr Jones QC has relied in particular before me, as well as evidence from Mr Thomas and Mr Farrell. The Chief Magistrate gave a detailed judgment rejecting the appellants' grounds of challenge and ordering extradition.
Cutts J refused permission on the papers on 22 February 2019. So far as is material, Cutts J. held that SECA was a judicial authority, relying on Assange v Swedish Prosecution Authority [2012] UKSC 22, and that the judge had approached the issue about whether a decision to try had been made on the evidence, and referred to Puceviciene v Lithuania [2016] EWHC 1862 (Admin); [2016] 1 WLR 4937. As I have said, the renewed applications were made before me.
Principles on reopening an appeal
It is common ground that there is jurisdiction in this court to reopen an appeal, even an application for permission to appeal, in certain narrow circumstances as was made clear in Taylor v Lawrence [2003] QB 528. The governing principle was set out at [55] of Taylor v Lawrence. There it was noted that what was required was that it be clearly established that a significant injustice has probably occurred. As I have already...
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