Jedinak v District Court in Pardubice (Czech Republic)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] EWHC 3525 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3417/2016 |
| Date | 09 December 2016 |
[2016] EWHC 3525 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/3417/2016
Mr D Williams (instructed by Freemans) appeared on behalf of the Appellant
Ms J Farrant (instructed by CPS Extradition Unit) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Ikram given, eventually, at the end of June 2016, whereby he directed that the appellant be extradited to the Czech Republic on an accusation warrant.
The offence in the warrant which is in issue involves essentially the obtaining of goods by deception but the goods were and all the deception took place in the Slovak Republic. It may be of some significance that until 1993 both countries were one as Czechoslovakia, and it may be that laws there on each do cater for, as it were, inter-State prosecutions. However, that is by the way.
It is important as a starting point to see what the European Arrest Warrant alleged as the offending for which extradition was sought.
The offence in question, said to be an offence of fraud, was described so far as material in these words:
"He acted with a preconceived intention not to pay for the goods, timber, he had obtained as a person acting on behalf of [the named individual who in fact was his partner, although they were living apart] without her consent and knowledge"
He alleged that she was one carrying on business which consisted of the provision of services in forest management and hunting.
On three dates in July 2007, it carries on:
"On the basis of an oral agreement entered into with a Mr Taragel [who is identified] purchased timber [in the total volume given and its value] which he took over in a warehouse in the Slovak Republic. As a result, the supplier issued invoices and documents evidencing the origin of the timber. All the above mentioned documents were issued for the customer [the customer being the, as was believed, the appellant's partner]. The appellant subsequently sold a part of the timber [in the volume given to an identified company] which paid an amount to him on the basis of advance payments made in October 2007, November and December.
The appellant used the remaining part of the timber in an unascertained manner, despite he had received a payment for a part of the goods purchased from the supplier. However, he failed to use the funds he had obtained to settle his obligations towards the supplier and he used them for his own needs thus causing damage totalling a substantial sum and it was said that he had thereby committed an offence of fraud."
It is apparent from that description that no part of the offending was carried out in the Czech Republic but he was a citizen of the Czech Republic, he lived there, and he received the benefit in respect of the money and the ability to dispose of the timber and had received payment for it in the Czech Republic.
The warrant goes on, so far as material:
"Both as regards to the offence committed in the Slovak Republic in 2007, an investigation of pre-trial proceedings were also conducted in this matter in Slovakia, during which a number of actions were carried out by means of request for legal assistance including in the Czech Republic.
"On 14 November 2009, resolution to commence the prosecution of the appellant was issued. He was then questioned as the accused within the proceedings, in January 2012, and expressly stated that he wanted to be present at the inspection of the file after the investigation was closed. Although he informed of the address in which he should be staying, the police of the Slovak Republic in co-operation with the police of the Czech Republic was unable to serve on the accused the summons for the inspection of the file which was scheduled for a specific date.
In view of this, it was decided that the entire case would be handed over to the Czech Republic through the Attorney's General Office for the Czech Republic."
I assume from that that the original investigation was carried out in the Slovak Republic because presumably it was considered that any proceedings would be taken there, but when he was not able to be located because he was a citizen of the Czech Republic it was decided that the matter would be handed over to the Czech Republic.
It must follow from that, that the law of the Czech Republic gave jurisdiction to the courts in the Czech Republic to deal with him notwithstanding that the offending in question had taken place in the Slovak Republic.
The result of that is that Section 64 of the Extradition Act applies and that provides so far as material as follows, dealing with what needs to be established in order to give jurisdiction in this country:-
"64 Extradition offences: person not sentenced for offence
(1) This section applies in relation to conduct of a person if —
(a) he is accused in a category 1 territory of the commission of an offence constituted by the conduct, ……
(2) The conduct constitutes an extradition offence in relation to the category 1 territory if these conditions [in sub-section 3, 4 or 5] are satisfied —
(a) the conduct occurs in the category 1 territory and no part of it occurs in the United Kingdom;
(b) a certificate issued by an appropriate authority of the category 1 territory shows that the conduct falls within the European framework list;
(c) the certificate shows that the conduct is punishable under the law of the Category 1 territory with imprisonment or another form of detention for a term of 3 years or a greater punishment."
I need not refer to ( 3) or(5), but (4) provides that:
"(4)The conduct also constitutes an extradition offence in relation to the category 1 territory if these conditions are satisfied —
(a) the conduct occurs outside the category 1 territory;
(b) the conduct is punishable under the law of the category 1 territory with imprisonment or another form of detention for a term of 12 months or a greater punishment (however it is described in that law);
(c) in corresponding circumstances equivalent conduct would constitute an extra-territorial offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment."
The issue therefore is, in this case, whether the conduct which is set out in the EAW, and to which I have already referred, would constitute an extra-territorial offence under the law of the United Kingdom (or relevant part of the United Kingdom, in this case, England) in corresponding circumstances.
Essentially, the allegation here would, if it was a purely domestic offence in this country amount to obtaining by deception (or fraud, in a more general sense) because the victim was induced to sell the timber in the belief that the appellant was authorised by the named person, his partner, who held a particular status and, equally obviously, that the victim would be paid for the timber which was sold.
But what was submitted here, and the District Judge accepted, was that this was or could be regarded as an offence under the Proceeds of Crime Act 2002, and accordingly in the circumstances there being extra-territorial effect to the material offence which could have been charged under those provisions the conditions of Section 64(4) are met.
The authority that is said to support that approach is a case in the Court of Appeal Criminal Division R v Rogers [2015] 1 WLR 1017. The material facts of that case were that the defendant was involved in two frauds in which members of the public in the United Kingdom were persuaded to pay money into bank accounts in this country on the basis of false promises. They believed that the bank accounts were genuine UK accounts, whereas in fact what was behind the fraud was that the money was to be taken (and indeed was taken) to accounts in Spain and it was the accounts in Spain which the appellant, Rogers, was managing. There were others clearly involved in the fraud but his role appears to have been to act as the chief villain's 'man' in Spain.
It is obvious from the facts of that case that there was an element of the offending, on the face of it, within this country, in that the victims were nationals of this country and albeit it was a bogus account (in the sense that it was used only for the payment of expenses) there was an account in this country.
The charge which had relevance so far as that case was concerned was money laundering contrary to section 327 of the Proceeds of Crime Act 2002.
There had originally been a charge pursuant to section 327(1)(e) that he had removed criminal property from this country. But he had not himself been removing property and so that was decided by the trial judge not to be possible as a charge...
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