Naveed Din v Director of Public Prosecutions of The Augsburg Public Prosecutors Office, Germany National Crime Agency (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 13 March 2017 |
| Neutral Citation | [2017] EWHC 475 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4379/2016 |
| Date | 13 March 2017 |
[2017] EWHC 475 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/4379/2016
James Stansfeld (instructed by Lawrence & Co Solicitors) for the Appellant
Ben Lloyd and Florence Iveson (instructed by the Crown Prosecution Service) for the Respondent
The Interested Party did not appear and was not represented
Hearing date: 28 February 2017
Approved Judgment
The Appellant has appealed against the order for extradition to Germany made by District Judge Zani (hereinafter "the DJ") on 23 August 2016 at Westminster Magistrates' Court.
On 30 March 2016 the Respondent issued a European Arrest Warrant ("EAW") which was an "accusation" warrant seeking the Appellant's extradition to Germany so that he could be prosecuted for twenty offences arising from a VAT carousel fraud. The EAW was certified by the National Crime Agency on 6 April 2016.
Permission to appeal was granted by Cranston J. on 20 December 2016, at an oral hearing.
Grounds of appeal
The grounds of appeal were:
i) The DJ erred in finding that the warrant was a valid Part 1 warrant pursuant to section 2(4)(c) Extradition Act 2003 (" EA 2003") because the details of the allegations against the Appellant were insufficiently particularised.
ii) The DJ erred in finding that the Appellant's extradition was not barred under section 12A EA 2003, as no decision to charge or try had been made. After the DJ's decision, an indictment was lodged by the Respondent on 14 October 2016, and in the light of this the Appellant abandoned his challenge that no decision to charge had been made.
The scope of the appeal
The right of appeal is conferred by section 26 EA 2003, on a question of law or fact, with the leave of the court.
The court's powers on appeal are set out in section 27 EA 2003:
"(1) On an appeal under section 26 the High Court may—
(a) allow the appeal;
(b) dismiss the appeal.
(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.
(3) The conditions are that—
(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;
(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.
(4) The conditions are that—
(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;
(c) if he had decided the question in that way, he would have been required to order the person's discharge.
(5) If the court allows the appeal it must—
(a) order the person's discharge;
(b) quash the order for his extradition."
Fresh evidence
With the consent of the parties, I admitted fresh evidence on appeal, applying the principles in Hungary v Fenyvesi [2009] EWHC 231 (Admin), at [33] – [35]. The Respondent sought to adduce in evidence the letter of Public Prosecutor Paintinger, dated 6 February 2017, which provided information as to the lodging of the indictment, and the likely next steps in the proceedings. The Appellant sought to adduce in evidence the letter of Attorney Daniela Palme, dated 13 February 2017, which described court procedures after the lodging of the indictment. This was updating evidence, which post-dated the DJ's decision.
Ground 1: section 2(4)(c) EA 2003
Section 2(4) EA 2003 provides, so far as is material:
"(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) …
(4) The information is –
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(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 places 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;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
(5) …"
If a warrant fails to include the information required by section 2 EA 2003, it is not a valid warrant (see Dabas v High Court of Justice, Madrid (Criminal Appeal from Her Majesty's High Court of Justice) [2007] 2 AC 31; Office of the King's Prosecutor v Cando Armas [2006] 2 AC 1). The requirements under section 2 EA 2003 have to be considered separately for each offence in the EAW.
In Von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), the Divisional Court emphasised that the use of the word 'particulars' indicates that a broad omnibus description of the alleged criminal conduct will not suffice (per Dyson LJ at [21]). In Gilbert Ektor v National Public Prosecutor of Holland [2007] EWHC 3106, Cranston J. summarised the requirements under section 2(4)(c), at [7]:
"… In other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
In Dhar v The Netherlands [2012] EWHC 697, Moore-Bick LJ held, at [117]:
"Although I accept that the warrant need not contain highly detailed information of the kind that one might expect to find in a civil pleading, it must contain enough information to enable the requested person to understand with a reasonable degree of certainty the substance of the allegations against him, namely, what he is said to have done, when and where, and also, in a case where knowledge of particular matters is an essential ingredient of the offence, sufficient information to enable him to understand why it is said that he had the necessary knowledge."
In Pelka v Regional Court in Gdansk, Poland [2012] EWHC 3989 (Admin) Collins J held, when considering an allegation of conspiracy, at [6]:
"Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient…."
The Appellant submitted that, applying these principles to this EAW, there was insufficient detail in respect of the twenty offences referred to in the EAW. It was unclear what he was said to have done, and when.
In my judgment, the EAW gave a detailed and sufficient description of the alleged tax fraud. In summary:
i) The Appellant was one of a group of named individuals who in 2010 established a criminal association in order to manage a VAT tax carousel fraud to evade German VAT. The loss in Germany was over 60 million euros. They were able to operate from any place by means of laptops and online banking. They met in Marbella, Spain until the end of 2014, and thereafter in Poland.
ii) The carousel was controlled by three organisations: the "English Crew", "Truesay" and "DJ".
iii) The ringleaders of the English Crew organisation purchased companies registered in Germany and set up a network of further companies through which goods were funnelled, and ultimately sold abroad. These companies were known as missing traders.
iv) Goods were imported from abroad and sold by missing trader companies, having "charged" VAT on the goods without paying it to the tax authorities. The next companies in line "bought" the goods and "sold" them on to further companies – these were known as buffer companies, controlled by the ringleaders, with temporary office spaces and fictitious paper work created. DB Wealth GmbH served as a buffer company, and the Appellant was its managing director.
v) The next layer of companies then channelled the goods abroad to give the appearance of real business transactions taking place and to conceal the tax fraud. These companies were also controlled by the ringleaders with...
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