Stephen Carpenter v Pre-Trial Investigation Court Milan, Italy
| Jurisdiction | England & Wales |
| Judge | Mr Justice Popplewell,Lord Justice Hickinbottom |
| Judgment Date | 07 February 2019 |
| Neutral Citation | [2019] EWHC 211 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 February 2019 |
| Docket Number | Case No: CO/2983/2018 |
[2019] EWHC 211 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Hickinbottom
and
Mr Justice Popplewell
Case No: CO/2983/2018
Martin Henley (instructed by Lewis Nedas Law) for the Appellant
Louisa Collins (instructed by The Crown Prosecution Service) for the Respondent
Hearing date: 13 December 2018
Approved Judgment
Introduction
Mr Carpenter appeals against an order under section 21A(5) of the Extradition Act 2003 (“the Act”), made on 20 July 2018 by District Judge Blake in the Westminster Magistrates Court, providing for his extradition to Italy to face two charges of fraud and money laundering. The order was made pursuant to a European Arrest Warrant (“the EAW”) issued in Milan on the 22 June 2017 and certified by the National Crime Agency on 27 June 2017.
The EAW
The EAW was issued by Judge Roberta Nunnari in her stated capacity as a Giudice delle Indagini Preliminari (“GIP”), translated as a “Pre-trial Investigation Judge”.
The request at the commencement of the EAW was in the following terms:
“I request that the person mentioned below be surrendered for the purposes of executing a custodial sentence.”
This is a modification from the proforma wording which is contained in the Annex to the Framework Decision under Title VI of the Lisbon Treaty, to which the United Kingdom opted back in from 1 December 2014, and which has the status of an EU Directive. The standard proforma wording states: “The warrant has been issued by a competent authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.” The wording in the first half of this formulation (“for the purposes of conducting a criminal prosecution”) is apposite where the requested person has not been tried and the EAW is what is commonly called an accusation warrant, namely one which falls within section 2(2)(a) and (3); the wording in the second half (“for the purposes of …..executing a custodial sentence or detention order”) is designed for those already sentenced after trial and subject to what is commonly called a conviction warrant, falling within section 2(2)(b) and (5). The wording is commonly but not always modified to reflect these two aspects. In this case the first half of the standard wording (“for the purposes of conducting a criminal prosecution”) had been deleted, as had the final reference to a “detention order”. Nevertheless it was clear from all the material before the district judge that this was an accusation warrant and that there had been no trial or conviction. The district judge so held and no appeal is pursued from that aspect of his decision. This is significant in the context of the section 12A ground of appeal considered below.
In box (b) identifying the “decision on which the warrant is based” it stated:
“Arrest warrant or judicial decision having the same effect:
Pre-trial custody in prison order issued on 15.6.2017 by Pre-trial Investigation Judge attached to the Court of Milan…”
The warrant was in respect of two offences the details of which were set out in box (e). Because one of the grounds of appeal relates to whether they disclose an equivalent English law offence I must set them out in full:
“Mr Carpenter is charged with the offence of fraudulent bankruptcy committed as legal representative of the company under English law “ FLOW METERING COMPANY Ltd”.
1) Offence provided for, and punishable under, Articles 40 paragraph II, 110 of the Criminal Code, 223 paragraphs I and II N° 2, 219 paragraph 1 and II, 216 paragraph 1 N° 1) and 2) of Royal Decree 267/42, because, acting in complicity with one another, Mr. NOVIELLO at first as dejure manager of the bankrupt company SPARTACO DUE spa, and subsequently, with the entry of Mr. Bartoli, as de facto manager, and besides, as manager of BARTOLI group's subsidiaries, as voluntary liquidator of the company Spartaco Due, having powers as from July 2013, as well as of the subsidiary IMPIANTISTICA INDUSTRIALE s.r.l. (previous name: TM TECNOMATIC s.r.l.), in this case having powers as from June 2013; Mr. SENTATI, who made the estimates in support of the illicit transactions, de facto manager; Mr. BORLENGHL as “sole auditor” of IMPIANTISTICA INDUSTRIALE s.r.l., member of the board of auditors of the bankrupt company and of TM Tecnomatic spa (then MIRABELLO SRL), in addition to being a representative delegated by the Hungarian companies; Mr. SESTO as chairman of the board of auditors of the bankrupt company and of Mirabello srl; Mr. CARPENTER as representative of the English company FLOW METERING COMPANY LTD; Mr. PITTIA as representative of the
Hungarian companies SENTRICA Kft, BARRET Kft and SOVENEK Kft, diverted, concealed, dissimulated, destroyed or dissipated the company assets causing a considerable financial damage through the following steps:
— Mr. Noviello and Mr. Sentati, transferring (30.11.2012) the branch of the company dealing with manufacturing equipment for the oil industry, operating at the plant in Cremona (via delle Industrie N° 36), including start-up costs, tangible and intangible assets, credits and cash for a total of 5,200,000.00, to the subsidiary IMPIANTISTICA INDUSTRIALE sr.l. (previous name: TM TECNOMATIC s.r.l.) at the price of just 8,000 €, while the above-mentioned auditors did not prevent this transfer;
— Mr. Noviello and Mr. Sentati, transferring (12.12.2012) all the shares (with a value of € 1,244,000.00) of the British company Flow Metering Company Ltd, represented by Mr. Carpenter and operating in the field of production of instruments and equipment for pressure measurements intended for petrochemical industry, to Impiantistica Industriale s.r.l., at the lower price of € 980,000.00, while the above-mentioned auditors did not prevent this transfer;
— Mr. Noviello and Mr. Sentati, transferring (12.12.2012) the plant located in Cremona, viale delle lndustrie 36, having a commercial value of € 2,399,025.00, to the subsidiary Onofrio S.r.1. and, subsequently, through this company, to Impiantistica Industriale, estimating the value of the property at just € 98,000 for the first transfer, due to mortgages of € 2,399,025.00, one of which, however, having a value of € 1,410,000.00, concerned a non-existing debt, while for the second transfer the value of the property was further reduced to € 18,000.00 due to another mortgage of €80,000.00; the auditors did not prevent this transaction;
— Mr. Noviello and Mr. Sentati, transferring (31 January 2013) all the assets acquired by Impiantistica Industriale s.r.1. to its subsidiary “TM TECNOMATIC CREMONA s.r.l.”, subsequently renamed MIRABELLO, at the price of just € 1,008,000, the value of said assets having already been previously estimated at € 1,270,000 against a real value of not less than € 4,500,000; Mr. Noviello, Mr. Sentati and Mr. Bartoli, transferring the shares of the company MIRABELLO to the Hungarian company SENTRICA Kft (50%), represented by Mr. Pittia, and to the Luxembourg company DYNAMICS Holding Sa (the remaining 50%), at the price of € 300,000, which has never been paid, while the auditors did not prevent this transaction;
— Mr. Noviello, Mr. Sentati, Mr. Bartoli, Mr. Pittia, effecting (11 March 2014) the partial division of MIRABELLO s.r.1. with the two foreign companies, as partners of the said Mirabello s.r.l., as a result of which the company TM DUE s.r.l., as transferee of the property located in Cremona, and the company TM TECNOMATIC s.r.l., to which the branch of the company was transferred, were set up, with Mirabello retaining full ownership of Flow Metering Company Ltd; the auditors did not prevent this transaction;
— Mr. Noviello, Mr. Sentati, Mr. Bartoli, Mr. Pittia, transferring all the shares of Mirabello to Quartaroli Fava (7 August 2014) at the price of just € 1,600, while the auditors did not prevent this transaction;
Moreover,
— Mr. Noviello, transferring the warehouse to TM Tecnomatic s.p.a between 28 February and 9 April 2013 at the total price of € 1,756,000, which was not paid; however, a contingent liability of € 1,289,390 was registered in the accounts of the bankrupt company (13 July 2013); the auditors did not prevent this transaction;
— Mr. Noviello, failing to recover the debt of € 422,448.65 from TM Tecnomatic s.p.a.; however, a contingent liability of the same amount was booked in the accounts;
— Mr. Noviello, granting loans (27 December 2012) amounting to € 727,735.18, which have never been repaid, but were booked as liabilities, to the subsidiary Flow Metering Company Ltd, managed by Mr. Carpenter; the auditors did not prevent this transaction; besides, transferring goods for a value of €700,493.64 to the said English company, without being paid this sum, and booking (1 March 2013) in the accounts a loss of the same amount, thereby causing a total damage of € 1,428,228.82 to the bankrupt company;
— Mr. Carpenter. as a result thereof, as manager of FMC Ltd, ordering some money transfers (13.5.2013 – 29.11.2013) for a total amount of € 1,073,327.69 in favour of the Hungarian company SOVENECK Kft, managed by Mr. Pittia;
— Mr. Noviello and Baroli, transferring various planks and timbers previously purchased by the bankrupt company (31. 3.2013) at the price of € 484,000 to AGRIPESCA s.r.l. at the price of just € 36,000, despite the fact that the goods had nothing to do with the company purpose; the auditors did not prevent this transaction;
— Mr. Noviello and Mr. Banoli, fully writing down (11 July 2013)
— by booking extraordinary losses in the accounts — the shareholding in the Polish company TM POLSKA, the...
To continue reading
Request your trial
-
Jacek Litwinczuk v The Circuit Court in Szczecin, Poland
... [2016] EWHC 2100 (Admin). The case law can be summarised as follows: a. In Carpenter v Pre-Trial Investigation Court Milan, Italy [2019] EWHC 211 (Admin), [1, 8] the Divisional Court (Hickinbottom LJ and Popplewell J) said that s 12A is concerned with the necessity for requesting judicial......
-
Romana Dumitru v Court of Verona, Italy
...the starting point is with the two-stage analysis of section 12A. That is authoritatively described in the case of Carpenter [2019] EWHC 211 (Admin) at paragraph 18(1). Mr Henley emphasises, taking me back to the case of Kandola [2015] EWHC 619 (Admin) [2015] 1 WLR 5097 at paragraph 30, t......
-
The Forum Bar in UK Extradition Law: An Unnecessary Failure
...see R (Bermingham) (n 29) para 64,and R (McKinnon) v Secretary of State for Home Affairs, [2009] EWHC 2021 at para 53.84. [2019] EWHC 211 (Admin) at para 38.85. Dibden (n 81) para 35 per Simon J.86. Piotrowicz (n 82) para 27.87. Scott (n 48) paras 28–31.88. Supra note 48.89. See Dibden (n 8......