Auld LJ:
- Each of the appellants, About Fofana and Moise Belise, is the subject of a European Arrest Warrant ("the Warrant") issued on 29th June 2005 by the Deputy Prosecutor of the Tribunal de Grande Instance de Meaux in France. France is a designated "Category 1 territory" for the purposes of Part 1 of the Extradition Act 2003 ("the 2003 Act"). They appeal, pursuant to section 26 of that Act, orders of the Deputy Senior District Judge, Judge Wickham, on 21st December 2005 directing their extradition.
- The main issue on the appeals is whether the appellants' extradition is barred on the ground of double jeopardy, now a broader concept than a plea in bar of autrefois acquit or convict, by virtue of criminal proceedings commenced in the City of London Magistrates' Court in June 2005, shortly before the issue of the Warrant, and completed in the Southwark Crown Court in mid November 2005 a few weeks before the extradition proceedings were heard and determined by Judge Wickham in the Bow Street Magistrates' Court on 21st December 2005. But for the decision of one department of the Crown Prosecution Service in June to press on with the domestic prosecution, the extradition hearing would have taken place on 18th July, the date originally fixed for it at the request of another department of the Service acting on behalf of the French authorities.
- In addition, both appellants challenge extradition on the ground that the Warrant does not accurately or adequately describe commission by them of an extradition offence.
The European Arrest Warrant.
- It is common ground that one of the offences described in the Warrant, which is of fraudulent conduct towards, among others, a French company called Serviware SA ("Serviware"), is an extradition offence within section 64 of the 2003 Act, namely that it would constitute an offence under English law. Though the Warrant, which is identical, for each appellant, describes itself as "related to a total of 1 (one) offence", the main body of information given in it was as to two specific instances of similar fraudulent conduct against Serviware, followed by more generalised allegations of similar frauds on a number of other French companies. Because much may turn on the nature and detail of the information in the Warrant, I had better set out the material parts of it in full under the heading:
"Description of the circumstances in which the offence was committed, included [sic]the moment (date and time), place so as the degree of participation of the wanted person in the offence..",
It read:
In May, 2004 Serviware SA located
[in] France received by fax several orders
from Brown Information Technology
for a total amount of 60,225 Euros. The goods were to be paid for by a bank transfer from as [sic] the transfer of Lloyds TSB Account
Fraudulent paperwork was then faxed to Serviware SA to confirm this transfer had occurred. The goods were sent to Great Britain and the bank transfer later proved to be false. The goods were lost to Serviware SA.
On 5 June 2005 Serviware SA was again contacted by a British company called Hire Phone Ltd ordering
equipment of an amount of 55,600 Euros which was to be delivered to
Great Britain.
The documents sent were checked by Serviware SA and they were able to definitively link this order with that from May 2004.
The documentation faxed was
identical to that used on the previous occasion.
The Prosecutor of the Republic of Meaux
instructed the French Police services to get in touch with the British Authorities. The liaison Officer UCLAT at the National Criminal Intelligence informed us that Hire Phone Ltd does not exist. This confirmed the assertion that the fraud taking place was on behalf of an organised group, considering the value of the goods involved in their deception and the infrastructure that would be required to arrange their realisation."
The document, still under the heading of the description of "1 (one) offence", went on to outline the arrangements made for a controlled delivery to Serviware in June 2005, the attempted fraudulent obtaining by the use of a false instrument of this second consignment, all leading to the arrest of the two appellants when taking delivery of it the middle of that month. The information in the Warrant then reverted to specific mention of both the May 2004 and the June 2005 fraudulent conduct towards Serviware SA:
"The liaison officer UCLAT at the National Criminal Intelligence informed us that the search which took place at the location of the delivery
resulted in the discovery of the Lloyds TSB banking documentation required to make the orders to Serviware SA on both occasions by Hire Phone Ltd and Brown Information Technology.
Finally, the information in the Warrant turned to much wider allegations of fraud by the two appellants, but fraud of the same nature, against a number of other French companies:
"It was also apparent that numerous other French companies had been the victim of the same fraud from the documentation found. There was also computer equipment seized, which it is believed was used to produce the fraudulent banking documentation. In that the victims are French companies, both the charged suspects are French and the fraud was committed in [sic] France companies, both the charged suspects are French and the fraud was committed in France as orders for goods were [sic] received there and the goods despatched from there, an enquiry into organised fraud was started.
Nature and judicial qualification of the offence so as [sic] the applying legal provisions: Fraud in an organised gang Offence provided for and punished by sections 313-1, 313.2. 313-3. 313-7 and 313.8 of the Penal Code."
- I stress that it is the description of the alleged criminal conduct in the Warrant that is relied upon by the French authorities, not the "charge" drafted by Mr Peter Caldwell, the English counsel instructed for the Respondent in the extradition proceedings before Judge Wickham and on this appeal. The purpose of that "charge", as he explained to the Court, was to illustrate in the extradition proceedings by reference to the conduct of the appellants as described in the Warrant, that it amounted to an extradition offence. This illustrative "charge", which was confined to the fraud on Serviware, went beyond the June 2005 transaction so as to allege a conspiracy between the two men to defraud it covering the two fraudulent transactions alleged in respect of it, and going beyond allegations of user or custody or control of fraudulent documentation. However, it did not extend to the general allegations in the Warrant of fraud against other French companies. It stated that the appellants:
. . .
, between 1st day of May 2004 and 14th day of June 2005, conspired together to defraud Serviware SA by dishonestly representing that goods ordered from Serviware SA would be paid for by a bank transfer from a Lloyds TSB account, knowing that no such payment would be made." Within the jurisdiction of France
The criminal proceedings in this country.
- In mid June 2005, as I have indicated, the appellants were arrested in this country taking delivery of the controlled delivery that month of a consignment of computer equipment from Serviware. The French authorities acted promptly by issuing the Warrant within a fortnight of those arrests, clearly considering that the appellants' conduct was part of a serious, long-term and wide-spread conspiracy to defraud. Before they could proceed with the extradition proceedings, the City of London Police decided to prosecute them here in respect of substantially the whole range of transactions alleged with varying particularity in the Warrant. They charged them, not just with those relating to Serviware, but of six offences of using a false instrument, contrary to section 3 of the Forgery and Counterfeiting Act 1981 Act ("the 1981 Act"), one for each of six French companies, including Serviware. However, the Crown Prosecution Service sought the committal of the matter to the Southwark Crown Court on a single charge of using a false instrument, contrary to section 3, seemingly confined to the June 2005 the second Serviware transaction, but with, as purported exhibits, allegedly false documentation relating to the transactions originally charged by the City of London Police in respect of all six French companies.
- The indictment, as drawn at the Crown Court, was confined to the appellants' dealing with Serviware, and, did not, therefore, reflect the seriousness and range of conduct referred to in general terms in the Warrant, or covered by the police charges, or that documented in the exhibits bundle. Each appellant was merely charged with two counts of using a false instrument with intent, in relation to the second of the two transactions with Serviware described in the Warrant, contrary to section 3 of the 1981 Act. The statement of offence in each count was the same, namely "[u]sing a false instrument with intent", contrary to section 3 of
the 1981 Act. The material particulars of each count were also the same, save as to dates and the nature of the instrument, the first charging user of the instrument over a four month period between 24th February and 15th June 2005 and specifying the alleged false instrument as a purported international bank transfer from Lloyds TSB for 60,225 Euros. The second was for an overlapping period, but only of nine days, between 4th and 15th June 2005, clearly in relation to the same transaction, but specifying user of a different alleged false instrument, namely a purported funds transfer confirmation of credit slip, again for 60, 225 Euros, from Lloyds TSB I should note that the value of 60, 225 Euros attributed by the indictment to this transaction was that attributed by the Warrant to the May 2004 transaction, its valuation of the June transaction being 55,600 Euros.
- On 28th October 2005 the appellants pleaded not guilty to those two counts. On 14th November 2005 the prosecution amended the indictment by adding two alternative and lesser counts of having custody or control of respectively the same alleged false instruments, each still in the amount of 60,225 Euros, contrary to section 5(2) of the 1981 Act, but both over the same period in 2005, that is, from 24th February to 15th June 2005. On re-arraignment on that day, Fofana pleaded guilty to the two new counts and Belise pleaded not guilty to them. The Judge directed verdicts of not guilty on the original two counts against Fofana and on all counts against Belise, and sentenced Fofana to a short period of imprisonment on the two new counts. So much for the allegations of widespread fraud described with varying particularity in the Warrant, taken up by the City of London Police in their charges and suggested in the documentation included in the committal papers for the Southwark Crown Court.
- Only then did it fall to Judge Wickham to consider, in December 2005, what was left over in the Warrant's description of an extradition offence.
Submissions on the main issue double jeopardy
- As I have indicated, Fofana and Belise contended before Judge Wickham that their extradition was barred under the principle of double jeopardy as applied to extradition proceedings in sections 11 and 12 of the 2003 Act, which are in the following terms:
. "11(1)
the judge
must decide whether the person's extradition to the category 1 territory is barred by reason of -
(a) the rule against double jeopardy;
"
12. A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption
"(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;
(b) that the person were charged with the extradition offence in that part of the United Kingdom."
- The arguments advanced on behalf of both appellants is that the indictment that they faced, in its original and amended form, was based on the same conduct, including the same alleged false documentation relied upon by French authorities in the Warrants. But, as I have said, the indictment, in all its counts, related only to the June 2005 transaction. Whereas the description of the alleged criminality in the Warrant, notwithstanding its heading as "related to a total of 1 (one) offence", and of that in the original police charges before the City of London Magistrates Court, was of a much wider and lengthy course of fraud against a number of French companies, of which the June 2005 Serviware transaction was only part. The fact that the committal papers for the prosecution in respect of that transaction at Southwark Crown Court included documents that might have supported a more widely based charge or charges does not mean that they were relevant to or would have been admissible if there had been a trial on that indictment.
- Mr Liam Pepper, for Fofana, and Mr Ben Watson, for Belise, submitted nevertheless that it is the commonality of the conduct the subject of criminal proceedings - not of the charges based on them in this country - and that described in the Warrant, that determines whether there is double jeopardy. They take as their starting point the European Council Framework Decision of 13th June 2002 on the European Arrest Warrant and Surrender Procedures between Member States ("the Framework Decision), to which the 2003 Act was intended to give effect. The Framework Decision provides, in Article 3, under the heading "Grounds for mandatory non-execution of the European arrest warrant":
"The
[executing] judicial authority of the Member State shall refuse to execute the European arrest warrant in the following cases:
(1)
(2) if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State;
" [emphasis added]
Article 4, which provides grounds for optional non-execution of such a warrant, also does so by reference to the "same acts" the subject of the prosecution and the warrant.
- Mr Pepper and Mr Watson maintained that the focus of the Framework Decision on the same acts or conduct, constituting the extradition offence is carried through into our law in the 2003 Act, in section 2, which provides, in sub-section (2) that the warrant should contain a "statement" as stipulated by sub-section (3) and the information identified in sub-section (4). As to the statement, sub-section (3) provides:
"(3) The statement is one that
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence. "
And as to the information, sub-section (4) includes:
"c) 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."
- Mr Pepper and Mr Watson, submitted that there is further support for their concentration on the commonality of the conduct described in the Warrant and that behind offences charged and dealt with at Southwark Crown Court in that the 2003 Act, like the Framework Decision, was drafted in the context of the Schengen Convention, a collection of European Union protocols and accession agreements providing an additional means by which Member States may seek to develop an area of "freedom, security and justice in which the free movement of persons is assured". Chapter 3 of that instrument, which the United Kingdom has adopted, provides, in Article 54, for European Union-wide application of the double jeopardy principle:
"A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party." [emphasis added]
- From that starting point, and by reference to certain well-visited domestic authorities to which I shall turn in a moment, Mr Pepper and Mr Watson submitted that the Judge should have adopted a broader test by reference to the commonality of the conduct described in the Warrant and relied upon in the prosecution at Southwark Crown Court, rather than the formulation of the alleged offences at Southwark. Accordingly, they argued for the broader principle of double jeopardy than the narrow plea in bar of autrefois acquit or convict. They maintained that the Judge should have turned to that broader principle, which, as they expressed it, is that a person cannot be prosecuted twice on the same or similar facts, a principle which, they said, is expressly incorporated in the extradition process by sections 11(1)(a) and 12 of the 2003 Act. In addition, Mr Watson submitted that, in the case of Belise, given the verdicts at Southwark Crown Court entered at the direction of the Judge of not guilty on all four counts, the Warrant does not fairly or accurately describe his conduct.
- Mr Watson submitted that the effect of sections 11(1)(a) and 12 of the 2003 Act, barring extradition where prosecution would be barred in this country "under any rule of law relating to previous acquittal or conviction" is to bar extradition under any such rule that would prevent their trial here for any of the conduct described in the Warrant. In short, he said, the test is whether they could be re-arraigned at Southwark Crown Court on the facts set out in the Warrant, this time for conspiracy to defraud or some other wider course of conduct than that covered by the June 2005 transaction concerning Serviware.
- In that connection, the law established by the English authorities to which Mr Pepper and Mr Watson turned notably Connolly v DPP [1964] AC 125, HL, and post Connolly decisions, in particular R v Humphries [1977] ACT 1, HL, is not challenged by Mr Peter Caldwell, who appears for the French Deputy Prosecutor, only its application to the facts of this case.
- In summary the authorities establish two circumstance in English law that offend the principle of double jeopardy:
i) Following an acquittal or conviction for an offence, which is the same in fact and law autrefois acquit or convict; and
ii) following a trial for any offence which was founded on "the same or substantially the same facts", where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show "special circumstances" why another trial should take place.
- In Connelly, their Lordships reached this position in practical, though not unanimously in formal, terms by, in the main, confining the notion of double jeopardy to the narrow pleas in bar of autrefois acquit or convict, but allowing for a wider discretionary bar through the medium of the protection afforded by the court's jurisdiction to stay a prosecution as an abuse of process. In Humphreys, where their Lordships sanctioned a prosecution for perjury based on the same facts plus evidence of perjury by the defendant at an earlier failed prosecution for a driving offence, Lord Hailsham of St Marylebone indicated the second broader discretionary bar in the following passage at 41D-E:
"(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly."
- In R v Beedie [1998] QB 356, the Court of Appeal, Criminal Division, gave more formal expression and separation to the two routes to preventing a second prosecution where the charges and/or facts relied upon are the same or substantially the same, the first, where the charge also is the same, and the second, where the charge is different. It confined the principle or doctrine of autrefois acquit or convict to the first, and allowed the court a "discretion" to stay the proceeding where there are "special circumstances".
- The semantic bonds that so constrained their Lordships in Connelly and the Court of Appeal in Beedie to confine the notion of "double jeopardy" the terminology now employed in sections 11 and 12 of the 2003 Act to the absolute plea in bar of autrefois acqui or convict, were loosened by their Lordships, albeit indirectly, in R v Z [2000] 2 AC 483, so as to apply it to a case where, even though the charge is different, it is founded on the same or substantially the same facts as an earlier trial. Lord Hutton, considering the various speeches in Connelly and speaking for their Lordships, said at 497C-D:
"In my opinion the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded."
- Thus, as Mr Pepper and Mr Watson submitted and Mr Caldwell agreed, the term "double jeopardy", as a generality - and as used in the 2003 Act, given its wider European origins should now be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent is a means of protecting a defendant from "double jeopardy". (Cf., in the context of extradition, the narrower approach of Newman J, with which Scott Baker LJ agreed, as to the meaning of that expression in Bohning v USA [2005] EWHC 2613 (Admin), at para 21 narrower as a matter of terminology, but not in substance.)
- As I have said, Mr Caldwell acknowledged the narrow basis of the doctrine or principle of autrefois acquit or convict as a bar to a prosecution and also the broader notion of double jeopardy as it has been developed since Connelly and has now been articulated by Lord Hutton in Z. He went further, by underlining the wording of section 12 of the 2003 Act, which refers to "any rule of law relating to previous acquittal or conviction". However, he submitted that neither is engaged in the circumstances of this case. As to autrefois acquit or convict, he maintained that it does not apply because the conspiracy to defraud Serviware described in the extradition proceedings is not an offence with the same material ingredients as any of those charged in the Southwark Crown Court. As to the second, the broader principle of double jeopardy, he submitted that it does not apply because the whole of the conduct relating to Serviware described in the extradition proceedings has not been the subject of a previous trial or adjudication. His argument was that, consistently with the reasoning in Connelly and the other domestic authorities, a court should consider first, whether extradition would be barred under the narrow principle of autrefois acquit or convict and, if not, it should then consider the wider residual jurisdiction of abuse of process, as Newman J did in Bohning.
- Turning to the application of the two constituents of the double jeopardy principle to the facts here, the first, the plea in bar of autrefois acquit or convict, clearly does not arise, since the May 2004 and June 2005 transactions identified in the Warrant, considered separately or as part of a course of conduct, though covering some of the same facts in the Southwark Crown Court indictment, describe wider criminality from the substantive offences charged in the Southwark indictment.
- As to broader argument on which Fofana and Belise rely, namely that if they were to be re-arraigned in this country for conspiracy to defraud on the facts set out in the Warrant, the court would stay the prosecution as an abuse of process, Mr Caldwell has submitted that it would not because the conduct described in the Warrant is not the same or substantially the same as that in the indictment, in particular:
i) the extradition offences cover a much longer time scale than those in the Southwark indictment;
ii) commission of the offence of conspiracy to defraud or a like offence in France of a fraudulent course of conduct, which is what the Warrant describes, is not contingent on proof of the conduct charged in the Southwark indictment, confined as it was to the June 2005 transaction, and to an allegation of using or having custody or control of a false instrument in relation to it; and
iii) prosecution of Fofana and Belise in France for the extradition offence could not result in their conviction in France of offences that were charged in the Southwark indictment, albeit that the documentation found in this country could be relied upon in France for the purpose of the broader allegation.
Conclusion on the main issue double jeopardy
- The contemplated French proceedings for a continuing offence of fraud against Serviware, of which the two described fraudulent transactions could be regarded as overt acts, concern a longer and more serious course of criminality than the second of them to which the Southwark indictment was confined. Prosecution in France for such a continuing offence would not, of itself, offend against the double jeopardy rule. In the recent case of Boudhiba v Central Examining Court No 5 of the National Court of Justice, Madrid, Spain [2006] EWHC 167 (Admin), to which Mr Caldwell referred the Court, Smith LJ, with whom Newman J agreed, accepted that the Spanish authorities might prosecute the appellant for wide-ranging offences concerning the forgery of passports, despite his conviction in this country for an offence of using a particular passport. She did not find it to be an abuse of process that the offences to be prosecuted in Spain were of a more serious nature, and observed that it would be appropriate for the evidence supporting the conviction in this country to be led in Spain in support any prosecution there for the wider forgery offences.
- However, in the circumstances of this case the contrast in extent and seriousness between the two sets of proceedings, the extradition criminality confined, as Mr Caldwell acknowledged, to fraud against Serviware, would not be so great. A hypothetical attempt to prosecute both men again in this country on a broader charge based on both Serviware transactions, would, in my view, be vulnerable to the court directing a stay as an abuse of process. The only significant addition to the June 2005 Serviware conduct giving rise to the Southwark indictment would be the almost identical conduct described in the Warrant against Serviware a year before, albeit subject to some confusion in that instrument as to the relative values of the two transactions. The case is clearly distinguishable on its facts from that considered by Smith LJ and Newman J in Boudhiba.
- In addition, as I have indicated earlier in this judgment, it is an unhappy feature of the case that the Crown Prosecution Service proceeded with and narrowly confined its Southwark prosecution to the June 2005 Serviware transaction, not only in the full knowledge of the pending and more broadly based extradition proceedings, but also causing them to be delayed until after the completion of that prosecution. In doing so, the Crown Prosecution Service was also already aware, as a result of the information provided in the Warrant and other information provided by the French authorities, not only of the earlier Serviware transaction alleged, but also of the allegations in respect of other French companies, none of which, despite its inclusion of documentation relating to them among the exhibits prepared for the Southwark prosecution, it chose to rely upon as a basis for charging in the indictment. The fact that it chose to frame a prosecution on only one transaction, notwithstanding the material as to others available to it and lying, albeit unused, in the prosecution papers, would, I think, make it difficult for an English Judge to resist an application for a stay as an abuse of process such a prosecution as that now sought by the French authorities in these extradition proceedings.
- Accordingly, I am of the view that, although the extradition offence specified in the Warrant is not based on exactly, or only partly, on the same facts as those charged in the Southwark indictment, there would be a such significant overlap between them as to have required the District Judge to stay the extradition proceedings as an abuse of process. But, in any event, given what was known, and the material available, to the Crown Prosecution Service when committing this matter to the Southwark Crown Court and when framing the indictment on which they were respectively convicted and a acquitted, extradition of these men would be an abuse of process and, on that account, in the words of section 11(1)(a) and 12 of the 2003 Act would be barred "by reason of
the rule against double jeopardy".
- For those two reasons alone, I would allow the appeal of each appellant in respect of the extradition order made against him.
- It is unfortunate that when the matter was before Judge Wickham, the broader meaning now given to "double jeopardy" in this and in other contexts, so as to include circumstances wider than autrefois acquit or convict, was seemingly not clearly identified in argument, leading her to conclude her judgment in the following terms:
"Thus I find that the double jeopardy rule does not apply in respect of these two defendants. I understand that neither defence counsel wish to raise abuse of process arguments nor indeed do they wish to make any further submissions. I therefore order the extradition of both defendants."
The adequacy and accuracy of the information in the Warrant
- If I am correct in my conclusion on the main issue in the appeals, there is no need for me to give a view on the second issue raised by both appellants as to the adequacy and accuracy of the particulars given in the Warrant, including in the case of Belise that, in the light of his acquittals at Southwark Crown Court, it does not describe his conduct accurately or fairly. The effect of those acquittals in his case, Mr Watson submitted, is that the information in the Warrant alleging that he accepted signing for delivery of the goods, that he unloaded them and that he had possession of any documents used in the alleged frauds is inaccurate and unfair. However, the issue is, as a matter of principle, of some importance, and, in deference to the arguments of counsel, it may be of some help for me to give a view.
- Mr Watson referred to observations of Thomas LJ in Castillo v The Kingdom of Spain and the Governor of HM Prison, Belmarsh [2004] EWHC (Admin) 1672, at paragraph 25, and of Laws LJ in Palar v Court of First Instance, Brussels [2005] EWHC 915, at paragraphs 5-8 and 11, on the importance of the Warrant specifying, and specifying correctly, the conduct relied upon to establish the extradition offence.
- Section 2(4)(c) of the 2003 Act includes among the "information" to be provided in a Part 1 warrant:
"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."
- As to the adequacy or particularity in the Warrant, both appellants complain of insufficiency of the detail as to their respective participation in the criminal conduct described. They maintain that such details in it as to either of the Serviware transactions derive in the main from the June 2005 allegation, in respect of which they can rely respectively on the defences of autrefois convict and acquit.
- Mr Caldwell's response to these arguments was that it is plain from the description of the offence in the Warrant that it alleges a long-term offence of fraud, or conspiracy to defraud, beginning in May 2004, and gives a sufficient account of its history until the arrest of both appellants in June 2005. Save for such issues of fact that may arise from Belise's acquittal on the particular charges that he faced in relation to the June 2005 transaction, he maintained that the Warrant complies in the case of each appellant with the requirements of section 2(4)(c) of the 2003 Act, giving particulars of the circumstances in which they are alleged to have committed the offence, including the conduct alleged to constitute it, when they are alleged to have committed it and the relevant provision in French law.
- Proof of the commission of the extradition offence, Mr Caldwell reminded the Court, is ultimately for the French court, and this Court should not trespass into a review of the sufficiency of the evidence to support the charge of fraud as described in the Warrant. This is not, he submitted, a case like Castillo or Palar, where respectively, the information given in the Warrant was in material respects of dubious accuracy and fairness or insufficiently particularised to support the extradition offence alleged. Even if some part of the fraud charge the conspiracy to defraud in his "illustrative" charge is unseated by Belise's acquittal on the particular charges he faced at Southwark in relation to the June 2005 transaction, the remainder of the conspiracy to defraud, as described in the Warrant, would be sufficient to uphold the Judge's decision.
- In my view, Mr Caldwell's submissions on this issue are to be preferred to those of Mr Pepper and Mr Watson. The dicta of Thomas LJ in Castillo and of Laws LJ in Palar on the need for accuracy and particularity should be considered in their context. In Castillo, as Thomas LJ explained at paragraphs 27 and 28 of his judgment, the description in the warrant of the criminal conduct relied on was so inadequate and unfair that, if it had been described properly, it could not have covered the offence under English law claimed for it. That is not, on any showing, a criticism that can be made of the Warrant in this case, which, read as a whole clearly would, but for double jeopardy, support a charge of conspiracy to defraud in respect of the Serviware transactions. It is also to be noted that, in Castillo, Thomas LJ went on to find, in paragraph 28, that the impugned description covered another extradition offence claimed for it. In Palar, as Laws LJ observed at paragraph 7 of his judgment, the language of the warrant, notwithstanding a further translation of it directed by the court, was still so bad that it did not disclose facts "capable of constituting conduct which amount[ed] to the extradition offences alleged". Again, that is far from the case here, where the information provided in the Warrant clearly discloses an extradition offence of conspiracy to defraud.
- Providing that the description in a warrant of the facts relied upon as constituting an extradition offence identifies such an offence and when and where it is alleged to have been committed, it is not, in my view, necessary or appropriate to subject it to requirements of specificity accorded to particulars of, or sometimes required of, a count in an indictment or an allegation in a civil pleading in this country. Allowance should be made for the fact that the description, probably more often than not, was set out in a language other than English, requiring translation for use in this country, and that traditions of criminal "pleading" vary considerably from one jurisdiction to another. As Laws LJ observed in Palar, at paragraph 8, while emphasising the need for conduct said to constitute the extradition offence to be specified in a warrant:
"
the background to the relevant provisions made in the 2003 Act is an initiative of European law and
the proper administration of those provisions requires that fact to be borne firmly in mind.
the court is obliged, so far as the statute allows it, to proceed in a spirit of co-operation and comity with the other Member State parties to the European Arrest Warrant scheme.
"
- As to the accuracy of the Warrant in Belise's case having regard to his acquittals on the charges based on the June 2005 transaction, the inroad of such acquittals at a trial on the charge of conspiracy to defraud would be for the French Court as a matter of law, bound as it would be, not to permit prosecution or conviction for essentially the same offences as those in the English prosecution. It would also depend on the nature and range of the evidence as to the alleged conspiracy that would be adduced by the French prosecuting authorities. It would not be a basis for impugning the Warrant in extradition proceedings here on the ground of inaccuracy.
- In my view, the Warrant in this case described the extradition offence of conspiracy to defraud and did so sufficiently and accurately, including the conduct alleged and its dates and location. Accordingly, I would not have allowed either appeal on this issue.
- However, on the main issue, for the reasons I have given, I would allow both appeals.
Mr Justice Sullivan:
- I agree.
LORD JUSTICE AULD: For the reasons given in the draft judgment, copies of which have been provided to the parties, both of these appeals are allowed. I should add that the draft that was seen by all counsel, I hope, did not contain one paragraph that it now does, paragraph 31. I thought I should draw your attention to it. It does not materially change the reasoning or the outcome of the appeals.
Yes, Mr Watson?
MR WATSON: There are no further applications, my Lord.
LORD JUSTICE AULD: I am afraid I do not have your name, I should --
MR WATSON: Ms Randall appears instead of Mr Pepper.
LORD JUSTICE AULD: Ms Randall, you appear on behalf of the appellant, Fofana, today, do you?
MS RANDALL: Yes, my Lord.
LORD JUSTICE AULD: Are there any consequential applications?
MS RANDALL: No, my Lord.
LORD JUSTICE AULD: Thank you for attending.
