The Government of the United Arab Emirates v Amanda Jane Allen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Mr Justice Griffith Williams |
| Judgment Date | 22 June 2012 |
| Neutral Citation | [2012] EWHC 1712 (Admin) |
| Docket Number | Case No: CO/1146/2012,CO/1146/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 June 2012 |
[2012] EWHC 1712 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Toulson
and
Mr Justice Griffith Williams
Case No: CO/1146/2012
Mr Mark Summers (instructed by the CPS) for the Appellant
Miss Julia Faure-Walker (instructed by Hodge Jones & Allen LLP) for the Respondent
Hearing date: 14 June 2012
This case concerns an undated cheque given by a borrower to a bank as a condition of a 20 year loan.
The critical issue is what representations were to be implied from the giving of the cheque in the commercial context in which it was given. The matter comes before the court on an appeal by the UAE against a decision of District Judge Purdy refusing an application for the respondent's extradition, following her conviction and sentence in her absence on a charge of cheque fraud.
Facts
The bank was the Abu Dhabi Commercial Bank. The amount of the loan was Dhs (Dirhams) 2,380,000, equivalent to approximately £415,000. The loan application form showed that its purpose was the purchase of a property. The total cost of the property was Dhs 2,800,000, of which the respondent was providing Dhs 420,000 from her own resources. In the application form she stated that she was employed by a hospitality and leisure company and had a monthly income of Dhs 35,000 (equivalent to approximately £70,000 per annum).
The loan was to be repayable by monthly instalments through a credit card account with the bank. As security she provided the bank with an undated cheque for Dhs 2,337,500, a sum approximately equal to the amount of the loan. The cheque was provided on terms that:
"In the event of a default or failure by me to effect payments of the outstanding amount under my Credit Card Account…I hereby authorise [the bank] to insert the date on the said cheque if undated and present it for payment."
The loan was described in the application form as a mortgage loan. The form also contained a declaration that the particulars given in the application were true, correct and up to date in all respects, and a statement in the following terms:
"I/we will advise the Bank in writing in the event of any change in my/our circumstances in the period between the loan application and the date of opening of the loan account."
Although the date on which the respondent gave the cheque to the bank is unclear, it is common ground that it must have been before the loan was advanced.
The loan was taken out in May 2008. In late 2009 there was a default by the respondent. The default led the bank to call in the loan, insert the date of 30 December 2009 on the previously undated cheque and present it for payment. The presentation was in a sense notional because the cheque was drawn on the bank itself and there was no credit to meet it. The respondent made a repayment of approximately Dhs 800,000, but that left an unpaid balance of approximately Dhs 1,500,000. Shortly after making that repayment the respondent returned to the UK.
In her absence she was prosecuted and convicted of an offence described in the extradition request as issuing an uncovered cheque.
It appears that under Abu Dhabi law she was treated as having issued the cheque on the day on which the date was inserted by the bank, i.e. 30 December 2009, and as having acted in bad faith because she had no credit with the bank to meet the amount of the cheque. She was sentenced to 3 years' imprisonment. On 22 March 2011 the Home Secretary received through diplomatic channels a request for the respondent's extradition. The UAE has been designated as a category 2 territory under s69 of the Extradition Act 2003. Accordingly, part 2 of the Act applies.
The request was certified by the Home Secretary as valid and sent to the court, which issued an arrest warrant. In due course the respondent was arrested and brought before Westminster Magistrates Court.
The issues and the legislative framework
Because a number of extradition requests from the UAE raised similar issues, on 2 December 2011 DJ Purdy heard arguments in this and three other cases on two questions—whether there was dual criminality and whether there was a prima facie case. The respondent's case was a conviction case. Others were accusation cases. This had the consequence that some of the relevant sections were different but their wording was materially identical.
The first question arose under s78, which deals with initial stages of an extradition hearing. It provides:
(1) This section applies if a person alleged to be the person whose extradition is requested appears or is brought before the appropriate judge for the extradition hearing.
(2) The judge must decide whether the documents sent to him by the Secretary of State consist of (or include) –
…
(c) particulars of the offence specified in the request…
…
(4) If the judge decides that question in the affirmative he must decide whether –
…
(b) the offence specified in the request is an extradition offence…
…
(6) If the judge decides any of the questions in subsection (4) in the negative he must order the person's discharge.
Section 78(2)(c) does not define the particulars of the offence which are required, by contrast with the requirements of an European Arrest Warrant which are as set out in s2. Section 2(4)(c) requires an accusation warrant to contain:
"Particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence."
Section 2(6)(b) requires a conviction warrant to contain particulars of the conviction.
In Dudko v Government of The Russian Federation [2010] EWHC 1125 (Admin), an accusation case, it was common ground that s78(4)(c) should be read as encompassing the more comprehensive language of s2(4)(c). Thomas LJ said, at para 16, that he agreed with that view because it would be an odd result if Parliament had intended that the request of persons to be extradited to other countries in the European Union required particulars of the offence which were more onerous than the requirements of those to be extradited to category 2 territories.
In the respondent's case, the order of the prosecutor referring the charge against her to the court (which would seem to be equivalent to an indictment in this country) stated the alleged offence in these terms:
"It was on 30/12/2009, in Abu Dhabi jurisdiction, with a bad intention she has given to Abu Dhabi Commercial bank an uncovered cheque of amount of 2,337,500 Dhirams to be withdrawn in the same bank, but they did not have balance that was liable for withdrawal."
In its reasons for finding the respondent guilty the court stated that:
"…she has given the victim (beneficiary) a cheque of an amount of 2,377,500 Dhirams to be withdrawn at Abu Dhabi Commercial Bank and the bank stated that the accused has no credit which is liable for withdrawal thus the pillars of crime of issuing an uncovered cheque have been established…"
Whether the conduct specified in the extradition request was an extradition offence, as required by s78(4)(b), turns on the application to the facts of the definition of an extradition offence in s138. (That section applied in the respondent's case because she was a sentenced person; s137 contains a materially identical definition in the case of a request for the extradition of a person who has not been sentenced).
One of the requirements of an "extradition offence" as defined in s137(2)(b) or 138(2)(b) is that:
"the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom."
The first question considered by the district judge was whether the conduct specified in the relevant extradition requests met this requirement.
The second question was whether the extradition request fulfilled the requirement of s84 (accusation cases) or s86 (conviction cases) that:
"there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him."
DJ Purdy answered both questions in the respondent's favour and ordered her discharge.
On the first question, he did not consider that default in a loan agreement supported by the security of an undated cheque could of itself amount to an offence in the UK under s2 of the Fraud Act 2006 (the corresponding offence relied on by the UAE) or at all. On the second question he identified what he saw as a number of deficiencies in the evidence.
The UAE appeals against his decision under s105 of the Extradition Act.
Section 1 of the Fraud Act provides that the statutory offence of fraud may be committed in any of three ways – fraud by false representation (s2), fraud by failing to disclose information (s3) and fraud by abuse of position (s4).
The appellant relies on s2. This provides:
(1) A person is in breach of this section if he –
(a) dishonestly makes a false representation, and
(b) intends, by making the representation –
(i) to make a gain for himself or another or,
(ii) to cause loss to another or to...
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