Hunt v The Court at First Instance, Antwerp, Belgium
| Jurisdiction | England & Wales |
| Judge | Mr Justice NEWMAN,LADY JUSTICE SMITH |
| Judgment Date | 15 February 2006 |
| Neutral Citation | [2006] EWHC 165 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 February 2006 |
| Docket Number | Case No: CO/8961/2005 |
[2006] EWHC 165 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
lady Justice Smith And
Mr Justice Newman
Case No: CO/8961/2005
Mark Summers (instructed by TNT Solicitors) for the Appellant John Hardy (instructed by CPS Casework Directorate) for the Defendant
This is an appeal pursuant to section 26 of the Extradition Act 2003 (the 2003 Act) against the decision of District Judge Wickham sitting at Bow Street Magistrates' Court, ordering the appellant's extradition to Belgium on a European Arrest Warrant (EAW) for offences of money laundering allegedly committed between 1997 and 1998.
Belgium has been designated by Order of the Secretary of State as a "category 1 territory" pursuant to section 1 of the Act by virtue of the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (S.I. 2003 No. 3333).
The facts asserted in the EAW can be summarised as follows: On 24 th March 1997 the appellant opened both an account with a stock/securities trader and a bank in Antwerp. He gave unlimited power of attorney to one Werner Smeyers in April 1997 and between 16 th May 1997 � 18 th August 1997 Smeyers deposited into the account the proceeds of his cigarette smuggling activities.
On 8 th January 1998 the appellant instructed the bank to transfer US$1,445,810 from his account to the account of an Irish company (Panway International Ltd), held with the same bank. This was followed by another transfer from his account to Panway International Ltd on 13 th January 1998.
On the 9 th October 1997 the appellant gave unlimited power of attorney to Smeyers. Between 8 th December 1997 � 5 th June 1998 Smeyers purchased securities using the account and funds representing the proceeds of Smeyers' criminal activities. The proceeds were cashed and converted into real estate.
CHRONOLOGY
On 15 th December 1999 the appellant, voluntarily and at his own expense, attended Antwerp at the request of the Belgian authorities for the purposes of an interview as a witness. The appellant answered all questions asked of him and provided a statement to the Belgian authorities. Between December 1999 and 15 th October 2004 when the EAW was issued by the Court of First Instance, Antwerp, the following occurred:
(1) On 24 th September 2002 Belgian police issued a report regarding "legally valid investigation acts", and
(2) On an unspecified date, an "order for arrest" was given in absentia against the appellant.
On 12 th January 2005 the EAW was certified by NCIS under section 2(7) and (8) of the 2003 Act. The appellant was arrested on 16 th February 2005 following his surrender at Chingford police station. On 17 th February 2005 he was granted bail. Thereafter the extradition hearing commenced and was completed on 7 th October 2005. Judgment was reserved until 31 st October 2005 when the District Judge ruled against the appellant and ordered extradition pursuant to section 21(3) of the 2003 Act.
ISSUES ON THE APPEAL
The appellant raised four grounds by his notice of appeal, but abandoned one of them at the hearing, The three remaining were:
(1) Whether the EAW contains the statement that the person in respect of whom it was issued is accused in Belgium of the commission of an offence specified in the warrant, as required by section 2(3) of the 2003 Act;
(2) Whether the EAW contains the information including any provision of Belgian law under which the conduct is alleged to constitute an offence, as required by section 2(4) of the 2003 Act; and
(3) Whether the extradition of the appellant is barred by reason of injustice and/or oppression arising from the passage of time since he is said to have committed the offences.
Ground 1
Section 2(3)(a) of the 2003 Act provides that the EAW should contain a statement that "the person in respect of whom the European Arrest Warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant �". The requirement is unequivocal; "If it does not do so it is not a Part 1 warrant and the provisions of that Part of the Act cannot apply to it �" ( Office of the King's Prosecutor, Brussels v Cando Armas [2005] 3 WLR 1079, HL per Lord Hope of Craighead at paragraph 42).
The 2003 Act gives effect to the Framework Decision 2002/584/JHA of the Council of European Union (dated 7 th June 2002 and adopted by the JHA Council of the European Union on 13 th June 2002). There is a proforma EAW annexed to the Framework Decision. Following the terms of the proforma, the EAW issued against the appellant stated:
"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, sentencing following conviction or execution of a custodial sentence or detention order.�".
Mr Summers, in the course of his careful argument for the appellant, submitted that, despite this statement, it was not clear at what stage the Belgian proceedings had reached and, moreover, the EAW was consistent with there being an ongoing judicially overseen investigation which the appellant was being required to attend. Put another way, he submitted that it was not clear from the EAW the appellant was being required to be extradited because he was an accused person.
In my judgment the EAW is clear. In this particular regard, the EAW follows the proforma and it is plain from the proforma that it can only serve one of two purposes � either it is accusatory or it records a conviction. The statement that the appellant is to be arrested "for the purposes of conducting a criminal prosecution" for an offence can only mean that his return is required because he is a person who is accused of a criminal offence and his presence is required for his trial.
Although the words "or execution of a custodial sentence or detention order" have not been deleted, the paragraphs of the warrant which follow state, under the heading: " decisions on which the warrant is based:
1. Arrest warrant or judicial decision having the same effect:
Nature: Order for arrest given in abstentia.
2. For an executable court order � not applicable."
Under the heading: " indications on the length of the sentence:
1. Maximum length of the custodial sentence or detention order which may be imposed for the offence(s): 5 years.
2. Length of the custodial sentence or detention order imposed � not applicable."
Further, under the heading "punishable offences", it states that the order "relates to a trial of 1 punishable fact" and thereafter a "description of the circumstances in which the offence was committed" is set out.
I am satisfied that these statements leave it beyond argument that this is an accusatory EAW. This ground of appeal, in my judgment, fails.
Ground 2
Section 2(4) of the 2003 Act provides, so far as is relevant, that:-
"(4) The information is-�
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence �".
This requirement gives effect to the mandatory requirement of Article 8.1(d) of the Framework Decision which states that the EAW shall provide "�the nature and legal classification of the offence�". The warrant provided for the "nature and legal classification of the punishable offence/the offences and the applicable statutory provision/code" and stated thereafter that 3 years was the maximum applicable sentence.
The EAW contains the list of "Framework Offences" following the categories of conduct set out in the proforma. The EAW refers to the circumstances as "the money � originated out of cigarette smuggling" and identifies with a mark X that the conduct amounts to "money laundering and the proceeds of crime", but the EAW does not refer to the provision of Belgian law ("statutory...
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