R Zaman v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 07 December 2018 |
| Neutral Citation | [2018] EWHC 3683 (Admin) |
| Docket Number | CO/2083/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2018 |
[2018] EWHC 3683 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Yip
CO/2083/2018
and
APPEARANCES
Mr A Jones QC & Mr M Henley (instructed by Stuart Miller & Co) appeared on behalf of the Claimant.
Mr M Butt & Ms G Woods (instructed by the Commissioner of Police of the Metropolis) appeared on behalf of the Defendant.
Mr B Brandon (instructed by the Crown Prosecution Service) appeared on behalf of the First Interested Party, the Government of the United States.
THE SECOND INTERESTED PARTY did not appear and were not represented.
By a claim dated 8 May 2018, the claimant seeks judicial review of his arrest and the search and seizure at his home on 8 February 2018, together with the failure to take him to Westminster Magistrates' Court as soon as reasonably practicable and his detention on 8 and 9 February 2018.
By way of relief, he seeks declarations that his arrest, search and seizure were unlawful and mandatory orders directing the return of all properties seized and copies made, together with a request for the return of any copies sent to the USA to be made. The claimant also seeks damages.
On 18 October 2018, Sir Wyn Williams directed that the application for permission should be determined at a hearing, observing that he was doubtful whether judicial review was the appropriate process to resolve the issues raised which included allegations of deliberate unlawful conduct.
The claimant was represented at the hearing by Mr Alun Jones QC and Mr Henley. The correct defendant, who should be substituted as such, is the Commissioner of Police of the Metropolis, represented at the hearing by Mr Butt. The original defendant was the Commissioner of the City of London Police, which will be listed instead as an interested party and did not appear at the hearing. The Crown Prosecution Service, who represents the Government of the United States in the extradition proceedings is also to be included as an interested party and was represented at the hearing by Mr Brandon. Today, Ms Woods of counsel appears on behalf of both the Defendant and the Crown Prosecution Service and Mr Henley appears for the claimant.
I heard submissions on Tuesday 4 December. After the short adjournment, Mr Jones claimed that some of the defendant's submissions had taken the claimant by surprise. He responded by producing further authorities to which he invited my attention. Mr Butt then alleged that the case now being advanced did not form part of the claimant's original grounds. In those circumstances, I decided I ought to look again at the materials placed before me before delivering judgment on the application for permission, which I now do.
The United States have requested the claimant's extradition to stand trial in Nevada for the offence of conspiracy to commence racketeering, an offence which in this country would be charged as conspiracy to defraud. A provisional arrest warrant was issued at Westminster Magistrates' Court on 6 February 2018. To put facts reasonably neutrally, on the night of 7 and 8 February 2018, plain clothes officers attended at the home of the claimant's sister and brother-in-law claiming to be looking for a vulnerable girl.
On that basis, the claimant's brother-in-law took the officers to the claimant's home. The officers knocked on the door and when it was opened they entered the premises. They arrested the claimant and searched his home. There may be an issue as to under which provision of the Police and Criminal Evidence Act 1984 that was done.
The claimant was later taken to Bishopsgate Police Station, where he was interviewed. He was then arrested at 00.35 on 9 February under s.73 of the Extradition Act 2003; following which, he was released ‘under investigation’ for the English offences but detained in relation to the extradition proceedings.
In his summary grounds, the claimant maintains that the conduct of the arresting officer was a sham from start to finish. He contends that there was no intention to search for a missing girl or to investigate domestic offences. Rather, the whole thing was a sham to secure material to create a solid case for the extradition.
Mr Jones describes that as the “broad basis” of the claim. However, the arguments advanced at the hearing moved away from that on to a narrower legal argument about the lawfulness of the arrest and search. That change of focus was at least, in part, driven by recent developments. On 13 to 15 November 2018, the extradition hearing took place at the Westminster Magistrates' Court before District Judge Coleman. Judgment was delivered on 28 November 2018, the District Judge ordering that the request be sent to the Secretary of State for a decision. Referring to the account given in relation to the missing girl, the District Judge said: “I am not persuaded the police covered themselves in glory.”
However, the District Judge found, having heard the evidence that there was a genuine enquiry in relation to crimes committed against the UK banking system. Further, she found no evidence at all that the Requesting State had used any bad faith or sought to manipulate the court process. The District Judge rejected the claimant's abuse of process argument and held that there was no bar to extradition. The claimant was advised of his right to apply for permission to appeal.
If, as the parties expect, the Secretary of State authorises his extradition, the claimant intends to exercise his statutory right of appeal. In so far as the relief sought in this claim is directed towards challenging the extradition the issues will therefore be raised on appeal. Mr Jones accepts that there is a significant overlap in the issues and that pursuing the argument that the whole thing was a sham before this court was inhibited by the judgment of the District Judge in the extradition proceedings.
I agree. I also find that the appeal provides an alternative remedy such that where the claimant is effectively duplicating arguments that will be raised on the appeal that would justify refusing permission in relation to the application for judicial review.
I note that Mr Jones invites me to adjourn this wider ground to the Divisional Court while granting permission on the narrower grounds identified in the course of the hearing before me. Mr Jones's arguments were therefore focused on the lawfulness of the arrest and search without descending into the fundamental dispute about the alleged deception.
On behalf of the claimant, it was firstly contended that the claimant was not told the essential legal and factual basis for his arrest as required by Christie v Leachinsky [1947] AC 573; the claimant having been told that he was being arrested for conspiracy to defraud the UK payments' industry was, said Mr Jones, all far too vague and, as a matter of law, makes the arrest unlawful. Secondly, it was contended that the entry into the claimant's premises was unlawful, there was no search warrant and officers were not invited in, therefore the search was unlawful.
This was further developed into an argument focusing on s.28(3) of PACE, with Mr Jones contending that the arrest was unlawful for want of particularity as to the ground of arrest. Therefore, he said that the search and seizure was unlawful and the property fell to be returned. That appears now to be the real focus of the claimant's case as to why permission should be granted to proceed with the claim for judicial review.
The defendant accepts, as it did in the acknowledgment of service, that the account given to the claimant's sister and brother-in-law in relation to the missing child was untrue. The defendant maintains that this account was given to avoid the claimant being tipped off. However, the defendant maintains that the claimant was suspected of conspiracy to defraud in this country. He is believed to be the administrator of an online forum involved in the illegal acquisition of, and trade in, comprised banking material. The defendant says he was told that that is what he was suspected of and given sufficient information to know it concerned credit cards and the trading of information on the dark web. He was interviewed about such activities.
It is denied by the defendant that the claimant's brother-in-law was threatened or forced to take the...
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