R Fouad Khaled Jaffar v The Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Males,Lord Justice Pitchford |
| Judgment Date | 11 April 2013 |
| Neutral Citation | [2013] EWHC 813 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2655/2012,CO/2655/2012 |
| Date | 11 April 2013 |
[2013] EWHC 813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Mr Justice Males
Case No: CO/2655/2012
and
Mr John Hardy QC and Mr Mark Shaw QC (instructed by Lawrence StephenSolicitors) for the Claimant
Mr Ben Watson (instructed by the Treasury Solicitor) for the Defendant
Hearing Dates: 20 th 21 st March 2012
Introduction
The claimant, Fouad Khaled Jaffar, challenges the decision by the Secretary of State to order his extradition to Spain to face criminal charges for the equivalent under Spanish law of conspiracy to defraud. The charges relate to the period between 1988 and 1992 when Mr Jaffar was an officer of Grupo Torras SA, a Spanish company owned by the Kuwait Investment Office. He is alleged (and has been found in civil proceedings in this country) to have conspired with others to defraud Grupo Torras out of many millions of dollars. He resists extradition on two grounds: first, that the criminal charges against him which are the subject of the extradition request are time barred under Spanish law; and second, that by reason of the passage of time since he is alleged to have committed the offences it would be unjust or oppressive to return him to Spain. The Secretary of State determined both issues against Mr Jaffar. The question for us is whether her decision was Wednesbury unreasonable and therefore unlawful.
Background
Mr Jaffar, now aged 67, was born in Kuwait but has lived in the United Kingdom since 1958, marrying a British wife (now deceased) in 1971. Their two children were born in the United Kingdom and are British citizens. In 1994 Mr Jaffar became a British citizen by naturalisation.
The Kuwait Investment Office ("KIO") was the controlling shareholder in Grupo Torras SA ("GT"), which it used as an investment vehicle for Kuwaiti Government funds in Spain. Mr Jaffar was the deputy chairman and general manager of the KIO from 1 July 1984 until 21 April 1990 and was a director and vice president of GT from June 1986 until 26 May 1992. He was also a director of various other associated companies.
On 8 January 1993 GT commenced Spanish criminal proceedings against Mr Jaffar and others by filing a complaint which went on to give rise to the first and second extradition committal charges (see [10] below). Mr Jaffar filed various objections to the Spanish criminal proceedings, but these objections were not successful and on 11 February 1994 the Spanish court formally accepted the complaint. The Spanish criminal proceedings were extended on 18 November 1996 to encompass the matters which are the subject of the third to fifth charges. As a result of Mr Jaffar's absence from Spain, the criminal proceedings did not proceed further against him, but they did proceed against other defendants including Mr Javier de la Rosa, the vice-chairman of GT, with the results described at [35] to [39] below.
Meanwhile in 1994 GT commenced civil proceedings against Mr Jaffar and others in the Commercial Court in London. On 24 June 1999 Mance J gave judgment in GT's favour after a trial lasting many weeks: Grupo Torras SA v. Al-Sabah [1999] EWHC 300 (Comm), [1999] CLC 1469. Mr Jaffar was represented by Simmons & Simmons, a well known firm of City solicitors, and by leading and junior counsel, and participated fully in the proceedings during the interlocutory stages and until day 25 of the trial. We were told that he personally made as many as 52 affirmations in the course of the proceedings. I would infer that those acting for him left no stone unturned in their efforts to ensure that his case was fully set out and that whatever evidence was available from other witnesses which would support his defence was before the court in the form of written witness statements.
On day 25, however, which was before Mr Jaffar was called to give oral evidence, but must have been after his counsel had an opportunity to cross examine at least the principal GT witnesses, Mr Jaffar and his legal team withdrew from the proceedings. They maintained that this was due to Mr Jaffar having been declared bankrupt, but Mance J did not accept that this was the true explanation. He found that the withdrawal was "without doubt" precipitated by the disclosure of damaging documents produced by a Swiss investigating judge in criminal proceedings against another defendant in Switzerland: see page 1475C.
In the result Mance J gave judgment against Mr Jaffar for a total sum in excess of US $450 million and found that he had personally benefited from the fraud to the tune of US $47.5 million: see pages 1561F-G and 1679C-E. Of course, this was a finding to the civil and not the criminal standard of proof, and in any event is not binding in the Spanish criminal proceedings or in these extradition proceedings, but it demonstrates that (subject to his limitation defence under Spanish law) there is at the very least a powerful case for Mr Jaffar to answer.
The extradition process began on 6 June 2001, when the Spanish authorities requested Mr Jaffar's extradition. At that time the applicable legislation was the Extradition Act 1989 and that remained the position after the coming into force of the Extradition Act 2003 as a result of transitional provisions contained in statutory instruments. On 20 November 2001 the Secretary of State issued an Authority to Proceed, the formal opening stage in extradition proceedings under the 1989 Act.
There were five extradition committal charges which accompanied the Authority to Proceed. These did not necessarily correspond precisely to the criminal charges which Mr Jaffar would face on return to Spain. Rather, their purpose was to demonstrate to the court at the committal hearing that the conduct alleged against Mr Jaffar amounted to an "extradition crime" — that is to say, using the terminology of section 2 of the 1989 Act, that if such conduct had occurred within the United Kingdom, it would have constituted a criminal offence punishable by 12 months' imprisonment or more.
There is an issue whether the transactions which have given rise to the charges against Mr Jaffar can be regarded as a single continuing offence ("delito continuado") under Spanish law, but without prejudice to that issue (the significance of which is explained at [31] below) it is convenient to summarise them very briefly as follows, giving them the labels which they have been given in the Spanish and the English proceedings:
(1) INPACSA (committal charge 1) — Between January 1987 and September 1988 Mr Jaffar and others defrauded GT by selling a company wholly owned by GT at a deliberate undervalue and via a circuitous route to a company based in Gibraltar called Croesus Ltd, controlled by Mr Jaffar and others, which in turn sold the company on to the Smurfit Group at or near its real value. This resulted in Mr Jaffar and his associates profiting from the difference in sales values.
(2) CROESUS (committal charge 2) — Between January and November 1988 Mr Jaffar and others defrauded GT by arranging a loan to Croesus Ltd from a GT subsidiary, for which GT assumed responsibility, and which was ultimately written off by GT after the loan money had been moved on into accounts controlled by Mr Jaffar and his associates.
(3) OAKTHORN 1 (committal charge 3) — Between January 1988 and November 1989 Mr Jaffar and others defrauded GT by arranging a loan to Oakthorn, a Jersey-based company, by the same GT subsidiary involved in the Croesus loan, for which GT assumed responsibility, which was again written off by GT after the loan money had been moved on into accounts controlled by Mr Jaffar and others.
(4) OAKTHORN 2 (committal charge 4) — In about June 1990 Mr Jaffar and others defrauded GT by arranging another loan to Oakthorn, which was treated in the same way as the earlier loan.
(5) PINCINCO (included within committal charge 5) — After the Iraqi invasion of Kuwait in August 1990 Mr Jaffar and others took advantage of the lack of oversight by the KIO to embezzle massive sums from GT and its subsidiaries, which were diverted to a Jersey company called Pincinco Ltd.
Although it is common ground that the Pincinco transaction was included within the fifth extradition committal charge, that charge is expressed in very general terms as a single "umbrella charge" of conspiracy to defraud covering the whole period from 1987 to 1992. It therefore includes also the conduct covered by the first four charges. It would appear that this demonstrates an intention on the part of the Spanish authorities from an early stage to prosecute all of the conduct alleged against Mr Jaffar as falling within a single continuing conspiracy (and thus as a delito continuado), although the concept of delito continuado is not expressly mentioned in the extradition request or in the Spanish charges. It is clear that they intend to do so now.
The summary above is no more than the briefest summary of transactions which were extremely complex. They were found by Mance J to be deliberately complex with a view to covering the conspirators' tracks (see [1999] CLC 1469 at 1480A). With the exception of INPACSA, which did not form part of the English civil proceedings, the full story is told in his judgment, but it need not be rehearsed further here.
The original Authority to Proceed turned out to be defective and had to be quashed and replaced but...
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