The Queen (on the application of Hasan Akarcay) v Chief Constable of the West Yorkshire Police Secretary of State for the Home Department (Interested Party) National Crime Agency (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett,Mrs Justice Thirlwall |
| Judgment Date | 03 February 2017 |
| Neutral Citation | [2017] EWHC 159 (Admin) |
| Docket Number | Case No: CO/296/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 February 2017 |
and
and
[2017] EWHC 159 (Admin)
Lord Justice Burnett
Mrs Justice Thirlwall
Case No: CO/296/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alun Jones QC & Ramiz Gursoy (instructed by Kaim Todner) for the Claimant
Matthew Holdcroft (instructed by Alison Walker, West Yorkshire Police) for the Defendant
Hugo Keith QC and Dr Christopher Staker (instructed by Government Legal Department) for the First Interested Party
Clair Dobbin (instructed by the National Crime Agency) for the Second Interested Party
Hearing dates: 1st & 2nd November 2016
Approved Judgment
The claimant seeks to challenge the provision of material by the West Yorkshire Police ("the Police") to their counterparts in the Turkish Republic of North Cyprus ("Northern Cyprus"), where he now faces prosecution for drug related and money laundering offences alleged to have been committed in England. Northern Cyprus is not recognised by the United Kingdom, nor by any other country save Turkey. The alleged offences were fully investigated by the Police. The claimant would have been prosecuted in this jurisdiction had he not relocated to Northern Cyprus. Indeed, after he left the United Kingdom a warrant for his arrest was issued and then a European Arrest Warrant. That meant that he would have been arrested had he set foot in any EU country, including the Republic of Cyprus ("Cyprus"), and returned to the United Kingdom for prosecution. But he has chosen to remain in Northern Cyprus.
The Police have co-operated with their counterparts in Northern Cyprus and provided them with the fruits of the English investigation. They did so with the advice of the National Crime Agency ("the NCA"), who acted in conformity with the view of the Foreign and Commonwealth Office that to do so is compatible with our non-recognition of Northern Cyprus. The NCA has an officer based in the British High Commission in Cyprus who has dealings with law enforcement agencies in both Cyprus and Northern Cyprus. Some of the material was sent to Cyprus in the diplomatic bag and then handed to the police in Northern Cyprus by that official. Some of it was handed over in the United Kingdom directly to visiting police officers from Northern Cyprus. The material is expected by all concerned to be used in the prosecution of the claimant in Northern Cyprus. Witnesses, most of whom are police officers, are expected to travel to Northern Cyprus in due course to give evidence in the trial.
The claimant has permission to challenge the provision by the Police of investigation materials to their counterparts in Northern Cyprus on two grounds:
(i) That the provision of the material amounted to an act of recognition by the United Kingdom of Northern Cyprus in breach of international and domestic law;
(ii) That the only lawful mechanism for providing information to the law enforcement agencies of Northern Cyprus would be by using the provisions of the Crime International Co-operation Act 2003 ("the 2003 Act").
The skeleton argument filed on behalf of the claimant for the hearing of the judicial review claim raised a fresh issue under the Human Rights Act 1998:
(iii) That the provision of material in aid of a prosecution in Northern Cyprus would give rise to violations of the claimant's rights under articles 3 and 6 of the European Convention on Human Rights ("ECHR"). The first because, if convicted, he would be imprisoned in conditions which would give rise to a serious possibility of a violation of article 3 standards. The second, relying on the judgment of the Second Section of the Strasbourg Court in Amer v Turkey of 13 January 2009 (App. No. 25720/02) because any trial is likely to be delayed and the standard of interpretation poor.
The defendant and interested parties were content that we should consider whether to grant permission for the third ground to be argued and for it to be dealt with it substantively if permission is granted.
The Facts
The claimant is a 60 year old businessman who regards himself as a citizen of Northern Cyprus. Until the end of December 2006 he owned a property in Enfield, Middlesex. In 2006 the Police began a wide-ranging investigation into drug smuggling, money laundering and other criminal activity believed to be organised by a criminal gang. In September 2006 12.5 kilograms of heroin were found in Bradford. The claimant's brother-in-law was one of those suspected of involvement in a conspiracy relating to that seizure. He was arrested in January 2007, prosecuted and in due course acquitted in June 2007. The claimant had also been suspected but before he could be arrested he left the country in December 2006. In February 2008 the Police obtained the claimant's fingerprints from their colleagues in Northern Cyprus where he had previous convictions for drugs offences. It is alleged that there is fingerprint evidence to link him to the Yorkshire drugs.
A European Arrest Warrant was issued in October 2012 and shortly afterwards proceedings under the Proceeds of Crime Act 2002 were commenced which resulted in a restraint order being made against the claimant in Bradford Crown Court in February 2013. The domestic criminal proceedings fell away in due course when it became apparent that the claimant would be prosecuted for the same alleged offending in Northern Cyprus. He was arrested in Northern Cyprus in August 2015 with a view to being prosecuted there. He is on bail.
The non-recognition of Northern Cyprus brings with it the reality that fugitives from justice living there, so long as they are willing to sustain the relatively constrained life inevitable if they never leave its territory, cannot be extradited to any country (except Turkey). The claimant is far from being the first wanted person who has stayed in Northern Cyprus knowing that he remains invulnerable to extradition to face trial in the United Kingdom or elsewhere. However, Northern Cyprus has assumed a wide jurisdiction to try its nationals for crimes committed elsewhere as well as within its own claimed territory. It was in those circumstances that that law enforcement agencies in the United Kingdom have co-operated with the Northern Cypriot police.
In 2011 the Foreign and Commonwealth Office issued a memorandum to the Serious Organised Crime Agency (the predecessor of the NCA) which indicated that it had "no objection to UK law enforcement authorities passing relevant information and evidence" to Northern Cyprus and to their police officers "travelling unofficially to the UK in the execution of their duty". It articulated the policy of the Government of the United Kingdom towards Northern Cyprus and forms the backdrop to the co-operation which has occurred in this case:
"The UK does not recognise the self-declared "Turkish Republic of Northern Cyprus" and has no relations with it at state level. It is not possible for the UK to conclude international agreements with the "TRNC" on any issue. However, the UK maintains a dialogue with the political leadership of the Turkish Cypriot community and co-operates with Turkish Cypriot authorities on many issues of immediate concern. Such co-operation does nothing to undermine the non-recognition of the "TRNC".
The Foreign and Commonwealth Office has no objection to UK law enforcement authorities passing relevant information or evidence to law enforcement authorities in northern Cyprus. Similarly the FCO has no objection to "TRNC" law enforcement officers travelling unofficially to the UK in the execution of their duty where this does not contravene UK domestic legislation. Due to the political sensitivities that exist, all contacts with Turkish Cypriot law enforcement authorities should, in the first instance, be made through SOCA and their resident Liaison Office in Cyprus.
In 2004, UN Secretary General Kofi Annan called for the international community to lift the isolation of the Turkish Cypriot Community. In response, EU foreign ministers determined to lift the isolation of the Turkish Cypriots in recognition of their commitment to a UN settlement on the island and its accession to the EU. Doing so will bring the Turkish Cypriots closer to the EU and promote re-unification. Working with Turkish Cypriot authorities is an integral element of these objectives …
The transfer of material relating to criminal matters from UK to Turkish Cypriot law enforcement authorities and vice versa is entirely consistent with these objectives. Where UK law enforcement authorities are aware that individuals wanted in connection with criminal matters in the UK are residing in northern Cyprus, the Foreign and Commonwealth Office has no objection to them sharing that information with the Turkish Cypriot law enforcement authorities through the SOCA Liaison Office in Nicosia."
In 2012 the NCA began Operation Zygos designed to assist in securing the arrest of fugitives in Northern Cyprus. The operation was conducted in the public domain. A Crimewatch programme on the BBC identified some of the main suspects, including the claimant. There was contact between the High Commission in Cyprus and the Northern Cypriot authorities regarding the claimant's case in April 2014. Later that year there were discussions between the Police and the NCA about co-operating with those authorities. The Northern Cypriot law enforcement authorities appear to have indicated their willingness to prosecute the claimant in October 2014. Evidential material was provided to Northern Cyprus in February 2015 and then, following further discussion...
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