Fofana v Thubin
| Jurisdiction | England & Wales |
| Judgment Date | 05 April 2006 |
| Neutral Citation | [2006] EWHC 744 (Admin) |
| Date | 05 April 2006 |
| Court | Queen's Bench Division (Administrative Court) |
[2006] EWHC 744 (Admin)
Court and Reference:Divisional Court, CO/10635/2005 & CO/10609/2005
Auld LJ, Sullivan J
Appearances: L Pepper (instructed by Edwards Vaziraney) for F; B Watson (instructed by GT Stewart) for B; P Caldwell (instructed by the Crown Prosecution Service) for the Respondent.
Whether extradition was barred by double jeopardy by virtue of criminal proceedings in the UK, and whether the EAW accurately or adequately described commission by F and B of an extradition offence.
A judicial authority of France, a category 1 territory under theExtradition Act 2003, sought the extradition of F and B for offences of fraud against a French company, Serviware. There had been related criminal proceedings at Southwark Crown Court in which F was convicted and B acquitted. The District Judge ordered their extradition on the charges in the European Arrest Warrant. F and B appealed to the High Court, arguing that: (i) extradition was barred by virtue of the principle of double jeopardy, pursuant to ss. 11 and 12 of the 2003 Act, as the domestic criminal proceedings arose from the same conduct as was the subject of the EAW; (ii) there was insufficient detail in the EAW as to the participation of F and B in the criminal conduct described; such details as were given related mainly to the transactions in relation to which double jeopardy applied.
Auld LJ
1. Each of the appellants, About Fofana and Moise Belise, is the subject of a European Arrest Warrant ("the Warrant") issued on 29 June 2005 by the Deputy Prosecutor of the Tribunal de Grande Instance de Meaux in France. France is a designated "Category 1 territory" for the purposes of Part 1 of the Extradition Act 2003("the 2003 Act"). They appeal, pursuant to s. 26 of that Act, orders of the Deputy Senior District Judge, Judge Wickham, on 21 December 2005 directing their extradition.
2. The main issue on the appeals is whether the appellants' extradition is barred on the ground of double jeopardy, now a broader concept than a plea in bar of autrefois acquitor convict, by virtue of criminal proceedings commenced in the City of London Magistrates' Court in June 2005, shortly before the issue of the Warrant, and completed in the Southwark Crown Court in mid November 2005 a few weeks before the extradition proceedings were heard and determined by Judge Wickham in the Bow Street Magistrates' Court on 21 December 2005. But for the decision of one department of the Crown Prosecution Service in June to press on with the domestic prosecution, the extradition hearing would have taken place on 18 July, the date originally fixed for it at the request of another department of the Service acting on behalf of the French authorities.
3. In addition, both appellants challenge extradition on the ground that the Warrant does not accurately or adequately describe commission by them of an extradition offence.
The European Arrest Warrant
4. It is common ground that one of the offences described in the Warrant, which is of fraudulent conduct towards, among others, a French company called Serviware SA ("Serviware"), is an extradition offence within s. 64 of the 2003 Act, namely that it would constitute an offence under English law. Though the Warrant, which is identical, for each appellant, describes itself as "related to a total of 1 (one) offence", the main body of information given in it was as to 2 specific instances of similar fraudulent conduct against Serviware, followed by more generalised allegations of similar frauds on a number of other French companies. Because much may turn on the nature and detail of the information in the Warrant, I had better set out the material parts of it in full. Under the heading 'Description of the circumstances in which the offence was committed, included [sic] the moment (date and time), place so as the degree of participation of the wanted person in the offence…', it read:
"In May, 2004 Serviware SA located … [in] France received by fax several orders … from Brown Information Technology … for a total amount of 60,225 Euros. The goods were to be paid for by a bank transfer from as [sic] the transfer of Lloyds TSB Account … Fraudulent paperwork was then faxed to Serviware SA to confirm this transfer had occurred. The goods were sent to Great Britain and the bank transfer later proved to be false. The goods were lost to Serviware SA.
On 5 June 2005 Serviware SA was again contacted by a British company called Hire Phone Ltd ordering … equipment of an amount of 55,600 Euros which was to be delivered to … Great Britain.
The documents sent were checked by Serviware SA and they were able to definitively link this order with that from May 2004. … The documentation faxed was … identical to that used on the previous occasion.
The Prosecutor of the Republic of Meaux … instructed the French Police services to get in touch with the British Authorities. The liaison Officer UCLAT at the National Criminal Intelligence informed us that Hire Phone Ltd does not exist. This confirmed the assertion that the fraud taking place was on behalf of an organised group, considering the value of the goods involved in their deception and the infrastructure that would be required to arrange their realisation."
The document, still under the heading of the description of "1 (one) offence", went on to outline the arrangements made for a controlled delivery to Serviware in June 2005, the attempted fraudulent obtaining by the use of a false instrument of this second consignment, all leading to the arrest of the two appellants when taking delivery of it the middle of that month. The information in the Warrant then reverted to specific mention of both the May 2004 and the June 2005 fraudulent conduct towards Serviware SA:
"The liaison officer UCLAT at the National Criminal Intelligence informed us that the search which took place at the location of the delivery … resulted in the discovery of the Lloyds TSB banking documentation required to make the orders to Serviware SA on both occasions by Hire Phone Ltd and Brown Information Technology."
Finally, the information in the Warrant turned to much wider allegations of fraud by the two appellants, but fraud of the same nature, against a number of other French companies:
"It was also apparent that numerous other French companies had been the victim of the same fraud from the documentation found. There was also computer equipment seized, which it is believed was used to produce the fraudulent banking documentation. In that the victims are French companies, both the charged suspects are French and the fraud was committed in [sic] France companies, both the charged suspects are French and the fraud was committed in France as orders for goods were [sic] received there and the goods despatched from there, an enquiry into organised fraud was started.
Nature and judicial qualification of the offence so as [sic] the applying legal provisions: Fraud in an organised gang - Offence provided for and punished by ss. 313-1, 313.2. 313-3. 313-7 and 313.8 of the Penal Code."
5. I stress that it is the description of the alleged criminal conduct in the Warrant that is relied upon by the French authorities, not the "charge" drafted by Mr Peter Caldwell, the English counsel instructed for the Respondent in the extradition proceedings before Judge Wickham and on this appeal. The purpose of that "charge", as he explained to the Court, was to illustrate in the extradition proceedings by reference to the conduct of the appellants as described in the Warrant, that it amounted to an extradition offence. This illustrative "charge", which was confined to the fraud on Serviware, went beyond the June 2005 transaction so as to allege a conspiracy between the two men to defraud it covering the two fraudulent transactions alleged in respect of it, and going beyond allegations of user or custody or control of fraudulent documentation. However, it did not extend to the general allegations in the Warrant of fraud against other French companies. It stated that the appellants:
"… between 1st day of May 2004 and 14th day of June 2005, conspired together to defraud Serviware SA by dishonestly representing that goods ordered from Serviware SA would be paid for bya bank transfer from a Lloyds TSB account, knowing that no such payment would be made" within the jurisdiction of France.
The criminal proceedings in this country
6. In mid June 2005, as I have indicated, the appellants were arrested in this country taking delivery of the controlled delivery that month of a consignment of computer equipment from Serviware. The French authorities acted...
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