This firm has been given permission to announce the decision of LJ Moore-Bick and Mr Justice King of 28 March 2012.
Shahid Miah, a Partner in the Fraud, Regulatory and Extradition department, acted for Sanjay Dhar (appellant), and successfully argued against his extradition to the Netherlandsbefore the High Court.
The appellant’s extradition was sought pursuant to a European Arrest Warrant (EAW) under section 2 (7) of the Act certified by the designated authority in this case, SOCA, for the purposes of a prosecution concerning an allegation of Money Laundering, on behalf of the Public Prosecutor of The Netherlands.
The appeal succeeded on 2 grounds:
1. “Failing to particularise the offence”
The Court allowed the appeal on the grounds that the EAW was invalid as it did not contain particulars of the conduct alleged to constitute the offence of Money Laundering, which the appellant is alleged to have committed as required by section 2 (4) (c) of the Act which requires:
“(c) the 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 provisions of the law of the category 1 territory under which the conduct is alleged to constitute an offence”
Article 8 of the Framework decision, (which section 2 (4) (C) of the Act seeks to implement) under the heading “Content and Form of the European Arrest Warrant” provides that a EAW shall contain information including:
“ (d) the nature and legal classification of the offence
(e) a description of the circumstances in which the offence was committed, including the time, place and degree of the participation in the offence by the requested person”
The respondent submitted that the particulars specified the appellents role in a Money Laundering Conspiracy based in theNetherlands, with the appellant acting from the United Kingdom (see full judgement for further particulars pages 15 – 18).
The defence emphasised the use of the expression “the….degree of the participation in the offence by the requested person”. The Court commented that the word “particulars” means that “a broad omnibus description of the alleged criminal conduct”, will not suffice (see Dyson LJ Peter Von Der Pahlen v Austria (2006) EWHC 1672 (Admin) and that the particulars must at the very least enable a person to know what the offence he is said to have committed and to have an idea of the nature and extent of the allegations ( see Cranston J in Ektor v National Prosecutor of Holland (2007) EWHC 3106. The defence submitted that the particulars were not sufficient to enable the appellant to understand the nature and extent of what he is alleged to have done and that the critical allegation was ambiguous and lacked clarity. The defence further complained of the vagueness ands obscurity in the way in which funds were received by the appellant, by what means, from where the funs were received, how they were transferred to him in the UK or by him to the Netherlands and to whom he made such transfer.
2. “Dual criminality test”
The Court of Appeal were much more affirmative in allowing the appeal under the grounds that conduct alleged in the EAW, if it occurred in England, would not constitute an offence in England thereby not satisfying the requirement of dual criminality under section 64 (3) of the Act.
The Respondent stated were two offences, contrary to the Proceeds of Crime Act 2002 (POCA) of a) concealing or transferring criminal property under section 327 and b) assisting in the retention, and control of criminal property under section 328.
Again for reasons of ambiguity and lack of clarity in the particulars as to how the Money Laundering had allegedly taken place, this ground succeeded as the offence being described as committed did not amount to an offence in the UK. For an offence be committed under POCA, the property in question must be “criminal property”. The court accepted by the defence that for property to be “criminal property”, it has to constitute a person’s benefit from criminal conduct or represent such benefit, and the alleged offender must know or suspect it constitutes or represents such benefit (See R v Akhtar  EWCA Crim 146 also a case represented by Shahid Miah of David Phillips and Partners).
The defence submitted that the whole premise of Money Laundering under POCA is that there has been an earlier offence committed, the benefit from which is or represented by the criminal property in question. The difficulty the court found in this case is that it was ambiguous as to whether the funds received by the appellant were criminal property when they came into his hands or were originally tainted and subsequently transferred.
The Respondent raised the argument that the funds received by the appellant as being derived by reference to a criminal group being involved in “Hawalla banking” (a private banking system which does not involve money transfers between different countries, but based on a system whereby money can be made available on trust internationally without moving it) which is illegal in under Dutch law if unlicensed. The court accepted that the use of Hawalla banking to facilitate money exchanges is not itself unlawful if carried out in this country (see R v Khanani (Abbas Hussein)  EWCA Crim 276).
The appeal was rejected on ground the “Judicial Authority” ground whether the Prosecutor in The Netherlands is a “Judicial Authority” for the purposes of satisfying section 2 (2) of the Extradition Act 2003 (the Act).
The Court of Appeal were invited to allow this issue to be adjourned pending the outcome of the case of Assange v Swedish Prosecution Authority (2011) EWHC 2849 in which this issue was being considered, however rejected this invitation. In essence this ground advanced as in Assange, that the certificate issued by the designated authority, in this case SOCA, does not certify it is a judicial authority, and that the Prosecution Office has not been designated as a judicial authority by the materialMemberState, in this case, The Netherlands was rejected on the same grounds as Assange. There appears, however to be an argument as to how to construe Article 6 of the Framework Decision in which “Judicial Authority” is defined.
The Court of Appeal also rejected the argument that the EAW was invalid for failure to comply with section 2(4)(b) of the Act by virtue of it being issued on 9 June 2011 when the requisite particulars were missing which were inserted after the event, on 13 June 2011, and that this in their judgement was to scrutinise the EAW too far. It commented that there is nothing wrong in principle in the issuing authority remedying its defects in a EAW, prior to its certification by the designated authority (SOCA).