Re Ismail

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD JAUNCEY OF TULLICHETTLE,LORD SLYNN OF HADLEY,LORD STEYN,LORD HUTTON
Judgment Date29 July 1998
Judgment citation (vLex)[1998] UKHL J0729-2
Date29 July 1998

[1998] UKHL J0729-2

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Jauncey of Tullichettle

Lord Slynn of Hadley

Lord Steyn Lord Hutton

In RE Ismail
(Appellant)

(Application for a Writ of Habeas Corpus) (On Appeal from a Divisional Court of the Queen's Bench Division)

LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. I agree with it and for the reasons he gives I would dismiss the appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he has given I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,

3

I have had the advantage of reading in draft the Speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I would dismiss the appeal.

LORD STEYN

My Lords,

4

The only question on this appeal is whether the appellant, a British citizen, is liable to be extradited under section 1 (1) of the Extradition Act 1989 as a person "accused" of extraditable offences in the Federal Republic of Germany. The appellant contends that he is not a person "accused" because no formal criminal charge has been made against him in Germany and that he is merely wanted for pre-trial investigations.

5

The main provisions

6

Section 1 (1) of the Act of 1989 reads as follows:-

"Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who - (a)is accused in that state of the commission of an extradition crime; or (b)is alleged to be unlawfully at large after conviction of an extradition crime by a court in that state, may be arrested and returned to that state in accordance with those procedures."

7

The critical words in sub-section (1) (a) are "a person … who is accused." Section 20 of the Act of 1989 is also of some relevance. It provides:-

"(1)This section applies to any person accused of an offence under the law of the United Kingdom who is returned to the United Kingdom in pursuance of extradition arrangements or as mentioned in section 19 (1) above. (2) If in the case of a person to whom this section applies either - (a)proceedings against him for the offence for which he was returned are not begun within the period of six months beginning with the day of his arrival in the United Kingdom on being returned: or (b)… the Secretary of State may, if he thinks fit, on the request of that person, arrange for him to be sent back free of charge and with as little delay as possible to the jurisdiction of the foreign state, Commonwealth country or colony from which he was returned."

8

It is, also necessary to refer to the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507) which came into force on 14 May 1990. The Order had the effect of incorporating the Convention into United Kingdom domestic law. Extraditions from the United Kingdom to Germany are governed by the provisions of Act of 1989 and the Convention. Article 1 of the Convention provides as follows:-

"The contracting parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order."

9

The relevant words are "persons against whom the competent authorities of the requesting party are proceeding for an offence."

10

The alleged events leading to the request for extradition

11

In 1994 and 1995 a major international fraud was perpetrated on German investors. In 1994 alone the losses alone apparently involved some Deutsche Marks 52 million or £17 million. The fraudsters achieved their purposes by soliciting by telephone calls investments for the purchase of options in commodity futures. In truth, the fraudsters feigned the buying and selling of options. The documents purporting to record the transactions were bogus. Two German companies, controlled by Peter Schwan, solicited the customers. Two Swiss companies, controlled by the appellant, handled the transmission of money obtained from the victims. No business transactions took place in Switzerland. Communications to the Swiss companies were passed on to Amsterdam where Mark Hoyle pretended to buy and sell the options. The proceeds of the frauds were transmitted directly or indirectly to Belgium where one Van der Veen apparently handed over the appellant's share of the proceeds to him.

12

Peter Schwan was arrested. Criminal proceedings against him are pending in Germany. In the process of collecting evidence against Peter Schwan a State Prosecuting Attorney in Bochum, Germany, discovered evidence implicating the appellant in the fraud. He is said to have been implicated by the statement of one of the conspirators, one Van der Veen. The bank statements of one of the appellant's Swiss companies apparently point to his guilt.

13

The warrant for the appellant's arrest

14

On 3 August 1995, upon the application of the Senior Public Prosecutor of Bochum, a judge issued a warrant of arrest in respect of the appellant. The warrant of arrest is a lengthy document. It identifies the appellant and gives particulars of the offences of which the appellant is suspected as well as references to the applicable German criminal statutes. A translation of the warrant prepared by professional translators describes the appellant as "the accused." It asserts that he "acted jointly with the separately prosecuted Peter Schwan." It recites that the "accused is charged with" offences which are then particularised. It then explains that "the accused is strongly suspected of these offences" based on evidence obtained by the prosecutor. The correctness of the translation is in part disputed.

15

The extradition proceedings

16

The Government of Federal Republic of Germany requested the extradition of the appellant. On 25 April 1996 the Secretary of State authorised a Metropolitan Stipendiary Magistrate sitting at Bow Street to proceed in conformity with the provisions of Part III of the Extradition Act 1989. On 29 May 1996 the police arrested and charged the appellant.

17

On 15 August 1996 the hearing took place before Mr. Ronald Bartle a Metropolitan Stipendiary Magistrate. He committed the appellant on bail to await the decision of the Secretary of State as to the return of the appellant to Germany.

18

On 20 August 1986 the appellant applied for a writ of habeas corpus directed to the second respondent challenging the magistrate's decision. Shortly before the hearing before the Divisional...

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