Public Prosecutor's Office Bavaria Germany v Khan
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Nicola Davies |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 1704 (Admin) |
| Docket Number | CO/6548/2013 CO/6544/2013 CO/392/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 May 2014 |
[2014] EWHC 1704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Nicola Davies
CO/6548/2013 CO/6544/2013 CO/392/2014
Mr N Hearn (instructed by the Crown Prosecution Service) appeared on behalf of the Appellant in Khan and Mr J Smith (instructed by Stokoe Partnership) appeared on behalf of the Respondent
Mr N Hearn (instructed by the Crown Prosecution Service) appeared on behalf of the Appellant in Lewis and Mr M Butt (instructed by Hanninans) appeared on behalf of the Respondent
Mr J Stansfeld (instructed by Lawrence and Co) appeared for the Appellant in Din and Mr N Hearn appeared on behalf of the Respondent
JUDGMENT (As Approved by the Court)
These are three linked appeals against the decisions of Deputy Senior District Judge Arbuthnot. The first appeal is by the Public Prosecutor's Office in Bavaria, Germany against the decision of the judge made on 24 May 2013 on behalf of the respondent Shaun Lewis discharging the respondent on an accusation European Arrest warrant (EAW) issued by the Public Prosecutor's Office of Bavaria, Germany on 8 July 2012 and certified by the Serious Organised Crime Agency (SOCA) on 6 February 2013. The respondent's extradition is sought for the purpose of facing criminal prosecution in relation to 22 allegations of "commercial income tax evasion committed by a criminal organisation".
The second appeal is by the Public Prosecutor's Office in Bavaria, Germany appealing against the decision of the judge made on 24 May 2013 to discharge the respondent Sameer Khan from an accusation EAW issued by the appellant on 27 June 2013 and certified by SOCA on 20 January 2013 to face 12 charges of being involved in a criminal organisation to commit carousel fraud in February 2009.
The third appeal is that of Naveed Din appealing against the decision of the judge made on 24 January 2014 whereby she ordered his extradition to Germany pursuant to an accusation EAW issued by the Public Prosecutor's Office, Bavaria on 21 August 2013 and certified by SOCA on 22 August 2013 to stand trial for 7 offences of "commercial turnover tax evasion" committed by a gang, and 2 offences of "accumulation of offences with attempted turnover tax evasion committed by a gang."
Each of the warrants has been issued to secure the extradition of the individual to Germany so that he may stand trial in connection with his alleged involvement in a "Missing Trader VAT Carousel Fraud". As Mr Khan and Mr Lewis were discharged from the EAWs, the matter proceeds by way of a prosecution appeal pursuant to section 28 of the Extradition Act 2003 ("the 2003 Act"). Mr Din's extradition was sought by the lower court and the matter therefore proceeds by way of an appeal lodged on his behalf pursuant to section 26 of the 2003 Act.
Challenges were raised at the lower court before the judge by Mr Lewis, Mr Khan and Mr Din that (1) the defendant is not an accused person within the meaning of section 2(3) of the 2003 Act but is sought for the purposes of investigation and, (2) there is insufficient particularity contrary to section 2(4)(c) of the 2003 Act. In addition, Mr Din takes the point that the offences contained in his EAW were not extradition offences.
Accused Person: The Law
Section 2(2) of the 2003 Act provides that an EAW must contain the statement set out in section 2(3) of the 2003 Act, namely:
"(3) The statement is one that-
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence."
In order for the individual to be an accused person, the court must be satisfied that the competent authorities in Germany have taken a step which can fairly be described as the commencement of a prosecution. In Re Ismail [1999] 1AC 320 HL per Lord Steyn at page 327G. The requirements of section 2(3) are essential and not procedural formalities. Office of the Kings' Prosecutor Brussels v Cando Armas and another [2006] AC 1 per Lord per Lord Scott:
"Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant. But the judicial authority in the Requested State cannot enquire into the purpose of the extradition. It is therefore necessary for there to be an unequivocal statement of that purpose in the arrest warrant itself. Hence the requirement in section 2(3)(b)."
The Framework Decision defines an EAW as a warrant issued in relation to "suspected persons for the purpose of… prosecution". At Article 1.1 the Framework Decision refers to "the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution". The term "accused" does not appear in the Framework Decision.
The 2003 Act goes further than the Framework Decision by requiring in section 2(3)(a) that the person is "accused" of the offence specified in the warrant and the requirement in section 2(3)(b) that the warrant is issued for the purpose of prosecution, Toulson LJ (as he then was) in Belgium v Bartlett [2010] EWHC 1390 (Admin) at paragraph 50.
"… it not enough that the criminal investigation has reached a stage where the person concerned merely faces suspicion of having committed an offence and that the authorities in the requesting state wish to be able to question him with a view to determining whether there is a sufficient case to put him on trial. The investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial. This has to be made clear by the language of the EAW, however it is expressed."
In Cando Armas above Lord Hope at [24] observed that where section 2(3) of the 2003 Act differs from the Framework Decision the additional elements were intended by Parliament as a protection against an unlawful infringement of liberty. In Balazs Asztalos v The Szekszard City Court, Hungary [2011] 1 WLR 252 Aikens LJ considered the numerous authorities that have considered the requirements of section 2 in this context and distilled the following propositions from those authorities in [28] of his judgment.
"(1) The court will look at the warrant as a whole to see whether it is an 'accusation case' warrant or a 'conviction case' warrant. It will not confine itself to the wording on the first page of the warrant which may well be equivocal.
(2) In the case of 'accusation case' warrant issued under Part 1 of the Act the court has to be satisfied, looking at the warrant as a whole, that the requested person is an 'accused' within section 2(3)(a) of the Act.
(3) Similarly, the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.
(4) The court must construe the words in section 2(3)(a) and (b) in a 'cosmopolitan' sense and not just in terms of the stages of English criminal procedure.
(5) If the warrant uses the phrases that are used in the English language version of the EAW annexed to the Framework Decision, there should be no (or very little scope) for argument on the purpose of the warrant.
(6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is clear on the face of the warrant itself.
(7) Consideration of extrinsic factual or expert evidence to ascertain the purpose of the warrant should be a last resort and it is to be discouraged. The introduction of such evidence is clearly contrary to the aspiration of the Framework Decision which is to introduce clarity and simplicity into the surrender procedure between member states of the European Union. Therefore the introduction of extrinsic factual and expert evidence must be discouraged except in exceptional cases."
The burden is on the judicial authority to satisfy a court that the EAW complies with section 2(3) of the 2003 Act and that the requested person is not being sought for the purposes of investigation. The burden is to the criminal standard pursuant to section 206 of the 2003 Act.
Issue 2: Particularity. The Law
Section 2(4) of the 2003 Act provides that the EAW must contain:
"(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 law of the category 1 territory under which the conduct is alleged to constitute an offence".
Mere "broad omnibus" descriptions are insufficient to satisfy section 2(4)(c). See Von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin) per Dyson LJ at...
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