OB v The Director of the Serious Fraud Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GROSS |
| Judgment Date | 01 February 2012 |
| Neutral Citation | [2012] EWCA Crim 67 |
| Docket Number | Case No: 201102730 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 February 2012 |
[2012] EWCA Crim 67
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIGH COURT
THE COMMON SERJEANT HHJ BARKER QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Openshaw
and
HHJ Milford QC
Case No: 201102730
U2009/1027 AND U2011/0173
Alun Jones QC and Colin Wells (instructed by Morgan Rose) for the Appellant
Edward Jenkins QC and Ben Douglas-Jones (instructed by the Serious Fraud Office) for the Respondent
Hearing dates : 2 nd November 2011
INTRODUCTION
Two principal questions arise on this appeal. The first is whether a contempt of court flowing from a breach of a restraint order made pursuant to s.41 of the Proceeds of Crime Act 2002 (" POCA"), constitutes a civil or criminal contempt. The second goes to the interpretation of Art. 18 of the United Kingdom – United States Extradition Treaty 2003 ("the Treaty").
The reason these questions matter relates to the principle of "specialty" (or "speciality") in the context of extradition. The Appellant was extradited from the USA to this country to face various charges of fraud. He was not extradited in respect of contempt. Subsequent to his return to this country, he was committed to prison for contempt (as set out below). He challenges the decision to proceed against him in respect of contempt and, hence, his committal to prison, alleging a breach of the specialty principle and an infringement of Art. 18 of the Treaty. The Respondent ("the SFO") retorts that neither the specialty principle nor the Treaty is engaged in that the contempt in question was a civil not a criminal contempt.
On the 1 st April, 2011, the Common Serjeant of London ("the Common Serjeant") ruled that the (English) Court had jurisdiction to deal with the contempt issue and that the principle of specialty did not offer protection from "these civil proceedings". Subsequently, on the 20 th May, 2011, the Common Serjeant committed the Appellant to prison for 15 months in respect for contempt of court. Pursuant to s.13 of the Administration of Justice Act 1960, the Appellant appeals as of right against both these decisions ("the 1 st April ruling" and the "20 th May decision").
THE FACTS
For present purposes, the facts may be shortly summarised. The Appellant came under investigation in respect of what is alleged to have been a substantial scheme to defraud investors—a "boiler room" fraud. On the 24 th September, 2009, a restraint order ("the restraint order") was granted by the Common Serjeant, pursuant to s.41 of POCA, against the Appellant and others (with whom this judgment is not concerned). The restraint order, inter alia, required the Appellant within 21 days both to make disclosure (broadly) of all his assets and to repatriate all his moveable assets held outside England and Wales, in particular, the sum of £457,312.40 held in a bank account in Cyprus. As is indisputable, the Appellant failed to comply either with the disclosure or the repatriation obligations imposed by the restraint order.
On or about the 22 nd October, 2009, it would appear that the Appellant left the jurisdiction. On the 19 th November, 2009, the SFO issued an application to commit the Appellant to prison for failing to comply with the restraint order. On the 18 th December, 2009, in the Appellant's absence, the Common Serjeant found the Appellant to be in contempt, adjourned the imposition of a penalty and issued a bench warrant.
In or about June 2010 the Appellant was located in Chicago. By now, the SFO was interested in obtaining the Appellant's extradition in connection with the underlying charges relating to the boiler room fraud. Assistance was sought from the relevant US authorities and, on the 6 th October, 2010, a federal arrest warrant was issued for the Appellant in the US District Court in respect of the (underlying) fraud matters. On the 8 th October, 2010, the Appellant was arrested at his home address in Chicago and remanded in custody. On the same day, he appeared before the US District Court Northern District of Illinois Eastern Division. The Appellant, then or subsequently (it matters not), consented to extradition in accordance with the United Kingdom's request; for the avoidance of any doubt, the Appellant did not waive the application of the specialty principle.
So far as concerns the question of contempt of court, the position as of October 2010 appears to have been as follows. The question of the Appellant's contempt of court plainly had been raised by the SFO with the US authorities. To begin with, both the SFO and the US authorities appear to have assumed that the contempt was criminal in nature. On that footing, contempt of court was not an extraditable offence; in the US, contempt of court, insofar as criminal in nature was punishable, as a misdemeanour, by up to 6 months imprisonment; however, the Treaty (see below) provided that offences were not extraditable unless punishable by sentences of imprisonment of 1 year or more. If, per contra, the contempt was a civil matter – a point which occurred to one of the leading US officials involved—then the SFO would of course be unable to secure extradition in respect of the contempt.
Against this background it appears that the SFO, by way of a letter to the Central Criminal Court, dated 17 th November, 2010, asked for the matter to be listed so that representations could be made as to the withdrawal of the bench warrant. The 17 th November letter concluded as follows:
" The purpose of our request is attributable to the fact that a contempt of court pursuant to breach of a Restraint Order is not an extraditable offence in the USA. Consequently, the rule of speciality applies and OB can not be brought before the Court in relation to this Bench Warrant under the terms of the rule of speciality in the United Kingdom….."
On the 30 th November, 2010, following an ex parte mention, the Common Serjeant acceded to this application.
In a witness statement dated 28 th October, 2011 ("the 28 th October witness statement"), Mr. Leong, a barrister employed by the SFO, stated that the bench warrant was withdrawn to ensure expeditious extradition. A decision to put the contempt matter to one side on this ground is perhaps unsurprising, given the exchanges with the US authorities recounted above. Para. 32 of the 28 th October witness statement is more puzzling. Mr. Leong said this:
" In view of the fact that A was now [i.e., late October 2010] to be extradited, my view was that the outstanding bench warrant created a risk that A might, on his return, be taken to the CCC before being processed at Heathrow Airport, charged with the predicate offences for which he was to be extradited and taken to the City of Westminster Magistrates' Court which had issued the extradition warrant. The fear was that if the bench warrant were executed before charge that would lead to unnecessary delay in the extradition procedure. It would also prove unnecessarily disruptive and inconvenient to A by causing him not to be processed expeditiously for the matters for which he was extradited: it might have led to A being prejudiced……. At all times, R was conscious of the Overriding Objective of the Criminal Procedure Rules and the duty to assist the court in actively managing cases."
At first blush, the meaning of this paragraph was not apparent. No explanation was forthcoming at the hearing of the appeal which clarified its meaning. It remains, to us, put most charitably, wholly unclear and does the SFO no credit.
Overall, it is clear that the US authorities (in the shape of the Department of Justice) were undoubtedly made aware of the contempt matter and of the bench warrant – at a time when it was still extant. It is not clear that the US Court was likewise made aware, though whether anything turns on that is another matter. On any view, the US Court was well aware of the principle of specialty and its practical meaning was explained to the Appellant in the course of the hearing on 8 th October, 2010.
On the 2 nd December, 2010, the Appellant was returned to the United Kingdom. He was then arrested, charged with the underlying fraud offences, produced at the Magistrates' Court and remanded in custody.
Subsequently, as it would appear, the SFO reconsidered the matter and formed the view that contempt in this context was civil and accordingly not caught by the specialty principle. The SFO decided to proceed and the contempt proceedings returned to the Central Criminal Court. At hearings on the 18 th March, 2011 and the 1 st April, 2011, the specialty issue was argued. Thereafter, the Common Serjeant gave the 1 st April ruling in the SFO's favour; the gravamen of the ruling was that this was "a civil contempt in origin and nature". The 1 st April ruling was followed by the 20 th May decision, committing the Appellant to prison.
THE RIVAL CASES
We turn to a brief outline of the rival cases on the appeal. For the Appellant, Mr. Alun Jones QC's powerful submissions proceeded as follows. English law was to be applied in characterising the contempt as civil or criminal. The better view was that the contempt here was criminal; the best test was furnished by reference to the Courts in which the proceedings had taken place: the Central Criminal Court followed by an appeal to the Court of Appeal. By contrast, the SFO's case had far-reaching consequences: contempt for breach of a restraint order made under s.41 of POCA would not give rise to an extraditable offence. On the basis that this was a...
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