Sukhdev Singh Kandola and Others v Generalstaatwaltschaft Frankfurt, Germany and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWHC 619 (Admin) |
| Docket Number | Case No: CO/3988/2014, CO/3749/2014 & CO/4006/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 March 2015 |
[2015] EWHC 619 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice Nicol
Case No: CO/3988/2014, CO/3749/2014 & CO/4006/2014
Mark Summers QC and James Stansfeld (instructed by Tuckers Solicitors) for the 1 st Appellant
Mark Summers QC and Martin Henley (instructed by Lloyds PR Solicitors) for the 2 nd Appellant
Mark Summers QC and Myles Grandison (instructed by Sonn Macmillan Walker) for the 3 rd Appellant
John Jones QC and Daniel Sternberg (instructed by CPS) for the 1 st and 2 nd Respondent
John Hardy QC and Kathryn Howarth (instructed by CPS) for the 3 rd Respondent
Hearing dates: 10/12/2014 & 12/12/2014
This is the judgment of the court to which both of us have contributed.
Synopsis
These three appeals concern requests for extradition to Germany and Italy, which are, of course, EU member states which have, for the purposes of the Extradition Act 2003 ("the EA") been designated Category 1 territories, so that Part 1 of the EA applies to all three cases and appeals. The appeals are from extradition orders made by District Judges ("DJ") sitting at Westminster Magistrates' Court in respect of what are commonly called "accusation" European Arrest Warrants ("EAW"), viz. warrants issued by a requesting state for the surrender of a person for the purposes of prosecuting that person for an extradition offence. The appeals were heard together because they raise a common issue. That issue is, broadly, whether the extradition of each of the appellants is barred because of an absence of a "prosecution decision" in the requesting state to charge or to try the appellant, in circumstances where it has not been demonstrated that the sole reason for the absence of a "prosecution decision" is that the requested person (ie the appellant in each case) is absent from the requesting state?
This new "extradition bar" was created by section 12A of the EA which was inserted into that Act by section 156(2) of the Anti-Social Behaviour, Crime and Policing Act 2014 (the "ASBCPA 2014"). Section 12A came into force on 21 July 2014 pursuant to the ASBCPA 2014 (Commencement No 4 and Transitional Provisions) Order 2014 ( SI 2014 No 1916). Section 12A applies to all "accusation" EAWs where the "appropriate judge" (viz. in England and Wales, the DJ) had not ordered extradition prior to the commencement of the provisions. Thus it applies to the case of each of the appellants.
Other issues are raised in each of the three cases, which we will summarise shortly below. We will refer to each of the appellants, Sukhdev Singh Kandola, Lenuta Droma, and Naweed Ijaz as, respectively, Mr Kandola, Ms Droma and Mr Ijaz.
The EAW in the case of Mr Kandola was issued by Dr Weinbrenner, Public Prosecutor, Generalstaatsanwaltschaft (Prosecutor General's Office) Frankfurt am Main, Germany on 1 July 2013. It was certified by the Serious Organised Crime Agency ("SOCA") on 4 October 2013. We will call this EAW the "Kandola EAW". On 29 March 2012 the Attorney General of Frankfurt am Main had issued an investigational warrant for Mr Kandola's arrest. Mr Kandola is accused of nine offences of tax evasion committed between August 2009 and May 2011, when he was the managing director and sole shareholder of a company called Deco Fabrics, based in Frankfurt am Main and which dealt in mobile telephones. In relation to the first four offences, it is said that between August and November 2009 the company wrongly claimed refunds of VAT input tax in respect of mobile phones which it had purported to sell and deliver but which it had not. It is alleged that the VAT evaded amounted to €1,856,470.10. The remaining five offences concern the period January to April 2010. It is said that the company failed to comply with an obligation to submit advance turnover tax returns or an annual declaration for the year 2010. It is alleged that tax totalling €2,674,414.70 was evaded. The offences attract a maximum sentence of either 6 or 10 years imprisonment.
The Kandola EAW was challenged before District Judge Snow on three grounds, which are: (1) the Kandola EAW was not issued "for the purposes of prosecution" within the meaning of section 2(3) of the EA. (2) The Kandola EAW contains insufficient particulars of the circumstances in which Mr Kandola is alleged to have committed the offences, the time and places and those provisions of the law of the requesting state under which his conduct is said to be an offence, so does not comply with section 2(4)(c) of the EA. (3) The offences are not extradition offences within section 64(3) of the EA. Mr Kandola represented himself at the extradition hearing before DJ Snow on 5 August 2014 and the judge handed down a written ruling later that day. He rejected each of the three objections and ordered Mr Kandola's extradition.
On his appeal Mr Kandola is represented by Mr Mark Summers QC and Mr James Stansfeld. The three objections to extradition raised before the DJ are maintained. In addition, Mr Kandola wishes to argue a new point: that the extradition is barred by reason of an absence of a prosecution decision to charge or try him so that his extradition is barred by section 12A of the EA.
The EAW in the case of Ms Droma ("the Droma EAW") was issued by the Senior State Prosecutor, Ms Rosinski, of the Office of the State Prosecutor of Nurnberg-Furth, Germany, on 31 March 2014. The Droma EAW was certified by SOCA on 21 May 2014. Ms Droma's extradition is sought in respect of one offence, which was, essentially, an attempted robbery or theft of a wallet. The maximum sentence on conviction of such an offence under German law is 15 years. Ms Droma was arrested on the EAW on 18 June 2014. She is now on conditional bail. The substantive extradition hearing took place before District Judge Devas on 21 August 2014 and Ms Droma was represented by counsel. Ms Droma gave oral evidence. The Droma EAW was challenged on three grounds: first, the absence of a prosecution decision to charge or try her: section 12A; secondly, that extradition would be a disproportionate interference with her and her children's Article 8 rights and so is barred by section 21A(1)(a) of the EA; and, thirdly, that extradition would be not be proportionate, and so is barred by reason of section 21A(1)(b) of the EA. 1
On her appeal, Ms Droma, who is represented by Mr Summers QC and Mr Martin Henley, maintains these three challenges to extradition.
The appellant Naweed Ijaz was the subject of an EAW issued by the Court of Milan on 25 June 2013. The validity of that EAW was challenged and, at the extradition hearing before District Judge Devas on 24 July 2014, Mr Ijaz was discharged in respect of that EAW. However, a second EAW, ("the Ijaz EAW") had been issued by the same court on 18 July 2014 and was certified by the National Crime Agency ("NCA") on 23 July 2014. On the same day the Italian authorities supplied further supplemental information concerning a possible "double jeopardy" issue. The Ijaz EAW was served on Mr Ijaz at the extradition hearing before the DJ originally fixed to deal with the challenges on the first EAW. After Mr Ijaz was discharged in respect of the first EAW the hearing proceeded in relation to the three challenges made on the Ijaz EAW.
The Ijaz EAW alleges that Mr Ijaz stands accused of two offences: (1) participation in a "criminal association" contrary to Article 416 of the Italian Criminal Code; and (2) fraud, contrary to Article 8 of Legislative Decree 74/2000. In respect of the first alleged offence, which is effectively an allegation of participating in a conspiracy, it is said that, between 2010 and November 2011 in "Milan, national and foreign territory" Mr Ijaz participated in a criminal association whose aim was to commit "an indefinite series of tax offences…fiscal frauds to the detriment of the [Italian] national inland revenue and the European Union". It is said that this offence involved the appropriation of VAT totalling €8,587,192. As a result of that participation Mr Ijaz is said to have also committed a particular instance of VAT fraud which is dealt with by the second alleged offence. It is alleged that Mr Ijaz, as a director of Nabucco Ltd, re-sold energy credits acquired from three named companies "at different times and places", in the course of which he issued "subjectively inexistent invoices for a taxable income" with VAT amounting to €3,874,512. The Ijaz EAW sets out 40 invoices.
The Judge of Preliminary Investigations at the Court of Milan had issued an order for Mr Ijaz's remand in custody on 4 July 2012.
The three challenges to the Ijaz EAW before the DJ were: (1) an absence of adequate particulars of the alleged criminal "conduct" so that the Ijaz EAW did not comply with section 2(4)(c) of the EA. It was said that there were insufficient details in the Ijaz EAW of the alleged tax fraud or the actual conduct constituting a significant part of the alleged €8,587,192 VAT loss asserted. Moreover, it was said that the scope of the second offence alleged as unclear, despite the 40 particularised invoices. (2) The extradition was barred by reason of the rule against "double jeopardy" within section 12 of the EA. (3) The extradition was barred by reason of an absence of a...
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