Kulibaba & Anor v Government of the United States of America [2014] EWHC 176 (Admin)

Case No CO/8788/2013Case No CO/10876/2013[2014] EWHC 176 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/02/2014
Before
LORD JUSTICE TREACYMR JUSTICE KING
Between
(1) Yevhen KulibabaAppellants(2) Yuriy KonovalenkoAppellantGovernment of the United States of AmericaRespondent
Ms Helen Malcolm QC & Mr David Williams (instructed by Blackfords LLP) for KulibabaMs Helen Malcolm QC & Mr Ben Cooper (instructed by Kaim Todner Solicitors) for KonovalenkoMr Alun Jones QC, Ms Natasha Draycott & Ms Hannah Hinton (instructed by Crown Prosecution Service) for RespondentHearing Hearing date: 27th November 2013
Judgment

Introduction

[1]These two Appellants, Ukrainian citizens, appeal against the ruling of District Judge Purdy of 20th June 2013 whereby he made an order under Section 87(3) of the Extradition Act 2003 sending the cases of the Appellants to the Secretary of State for her decision as to whether to extradite the Appellants to the United States of America.[2]Although the Respondent government submitted separate requests to the United Kingdom for the extradition of the two Appellants to answer charges in respect of a six count indictment relating to their alleged involvement in a scheme to defraud multiple US banks and US account holding victims of millions of dollars, all parties have agreed to both matters being heard together in the interests of convenience. There is no material difference between the two cases.[3]Each of the Appellants has been convicted on his plea of guilty on 15th July 2011 to an indictment before the Crown Court at Croydon for a conspiracy to defraud, involving loss caused to UK victims from essentially the same conduct as is alleged in the American indictment involving in excess of £2.6 million pounds. Both Appellants received sentences of four years and eight months imprisonment on 31st October 2011.[4]The overall allegation is that the Appellants were party to a conspiracy to introduce malicious software into target computers in a number of countries which would allow bank details, pin codes and passwords to be obtained, thus allowing security procedures to be bypassed and substantial funds to be withdrawn. Kulibaba had access to UK victim bank accounts, and transferred money from them to “mule” accounts provided by Mr Konovalenko. Konovalenko was Kulibaba’s cousin and said to be his right hand man in the UK. His role was to arrange the “mule” accounts (accounts set up by innocent individuals to receive monies from the victim accounts) and then to arrange the withdrawal of fraudulent monies from those UK “mule” accounts.[5]Before the District Judge each Appellant had raised the following challenges to these proceedings: i) Abuse of process arising from an alleged failure to follow guidance on joint UK/USA criminal investigations or intended prosecutions published by HM Attorney General. ii) Double jeopardy under Section 80 of the 2003 Act – the Appellants submit that the US complaint is part and parcel of that which was or which should or could have been prosecuted at Croydon Crown Court. iii) A disproportionate interference with Article 8 rights to family and private life pursuant to Section 87 of the Act.[6]The District Judge rejected the challenges. At paragraph 8 of his judgment he said this:
“The mischief of double jeopardy is to avoid someone facing proceedings from essentially the same facts when a fair minded assessment is that such matters should and couldhave been dealt with before – see: Fofana, Supra and more recently Jones v USA [2012] EWHC 2332 (Admin). If the criticism of the prosecution in Fofana has stood the test of time, as I believe it seems to have done and the Crown at Croydon chose to accept a seemingly very limited plea from each man – with the chat log evidence of all current US complainants served not as unused but as part of its case, I am driven to find that that which is now envisaged must come close to offending Section 80’s double jeopardy bar. The Crown did not make clear, notwithstanding the material evidence available, that it was expressly limiting the UK case not least because a US prosecution was likely (highly likely). However, I am of the firm view that the USA complaints could not have been tried at Croydon and therefore there is no double jeopardy. If I am wrong then I would, very reluctantly given the criminality alleged, have felt bound to discharge this Request. I reject any Tollman abuse for I find no conduct requiring of an explanation or any suggestion of impropriety. Turning to Article 8 ECHR, to my mind accepting this qualified right is engaged for anyone with a family unit, I cannot find, on the instant facts – a grave multi national fraud – is trumped by Article 8 ECHR. Plainly, in my view, this Request is in no way disproportionate to otherwise enforcing cross border criminal justice for serious crime.”
[7]Ms Helen Malcolm QC, for the Appellants, submitted that the District Judge was in error: i) In finding that the Appellants’ extradition was not barred by reason of double jeopardy and submits that the judge made an error of fact and/or law in relation to whether US victims could have formed part of the UK indictment. She points out that but for that asserted error, the District Judge declared in his judgment that he would have discharged these Appellants. ii) In finding that no issues of abuse of process arose or needed to be investigated. iii) In finding that the Appellants’ extradition would not be a disproportionate interference with their Article 8 rights.[8]We can dispose of the Article 8 point at this stage. It is conceded that it is not a ground that can succeed on its own. In written submissions which were not amplified orally, it was simply submitted that extradition would amount to a disproportionate interference with the Appellants Article 8 rights given that they have already been punished for their role in this conspiracy by reason of the sentences imposed at Croydon Crown Court. Accordingly, unless there is merit in either of the two other grounds of appeal, this ground will fail.[9]We understand that Mr Kulibaba only arrived in the UK from the Ukraine about two weeks prior to his arrest. Since then he has been in custody. We understand that his wife was sentenced to two years imprisonment in relation to these matters and that the couple has a son. Beyond that we have no information in the case of Kulibaba, and none at all in the case of Konovalenko.[10]It is clear to me that if the Article 8 ground were to be regarded as a free-standing point, this sparsity of information would lead to the inevitable conclusion that the public interest in extradition in this case outweighs any Article 8 rights. The threshold identified in Norris v Government of the United States of America (2) [2010] 2 AC 487, further considered in HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, has not been surmounted.[11]This court’s powers under Part 2 of the 2003 Act dealing with extradition to Category 2 Territories (of which the United States of America is one) are set out at Section 104. “(1) On an appeal under Section 103 the High Court may –(a) allow the appeal;(b) direct the judge to decide again a question (or questions) which he decided at the extradition hearing;(c) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that – (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way in which he ought to have done, he would have been required to order the person’s discharge.”[12]Subsection (4) arises where an issue was not raised below or where evidence not available at the extradition hearing subsequently becomes available. It does not apply to this appeal.[13]The relevant history of this matter shows that the American authorities began an investigation in May 2009 concerning substantial losses caused to US financial institutions and private businesses. In the course of that investigation the US authorities seized evidence resulting in the obtaining of chat log evidence, (subsequently found to involve these Appellants), covering a period between September 2009 and early 2010. In March 2010 the American authorities sent to UK investigators a DVD with the chat log material. Those chat logs were then translated in this country from their original Russian. This enabled UK investigators to focus an investigation and eventual prosecution on losses caused to UK banks and victims by the fraud.[14]In June 2010 the UK sent translated copies of the logs to the US investigators. UK officers went to America and drew the attention of the FBI to offences committed against US banks. Thereafter there were contacts between the UK and the US, principally through the Legal Attache at the US Embassy, London.[15]In September 2010 the Appellants were arrested in the UK and charged. They pleaded guilty to conspiracy to defraud on 15th July 2011 at Croydon Crown Court. They were sentenced on 31st October 2011.[16]In the meantime, and unknown to the Appellants, on 20th July 2011 an indictment relating to the fraud was filed in the US District Court in Nebraska. Subsequently, when the identities of the two Appellants, which had been referred to by code names in the chat logs, became known to the American authorities, a superseding indictment which forms the basis of the extradition requests was filed in the US District Court in Nebraska in August 2012.[17]In the English proceedings, the indictment alleged a conspiracy to defraud involving these two Appellants and a number of other named co-conspirators who were said to have conspired together and with persons unknown. The victims of the fraud were particularised as four named UK banks and their customers. The prosecution’s case summary described the fraud as one “attacking the heart of the UK banking industry”. At least £1.3 million was obtained, with a total amount targeted being around double that figure. The summary made clear that not only were certain UK financial institutions attacked, but that recipient accounts in the UK had been allocated to receive the dishonestly obtained funds.[18]A history of the UK investigation referred to the parallel American investigation and the provision of the DVD containing the chat logs. There was a prosecution opening in similar terms which also referred to basis of plea tendered by the two Appellants. Again, the sole focus was on defrauding of UK banks.[19]The chat logs had been served as evidence in the UK proceedings. They represented contacts between the two Appellants discussing the business of obtaining money fraudulently and providing accounts for use in the fraud. Although the whole of the chat logs was served, the prosecution only related to those contacts involving UK banks and customers. No charge or transaction relating to any American bank was brought or identified.[20]In addition to the chat logs, the UK prosecution also relied on telephone evidence, surveillance or CCTV evidence, evidence from computer hard drives and USB sticks, and witness evidence including statements from those who were the victims of the fraud in the UK.[21]It is clear that the activities of those involved in this fraud did not in fact confine themselves to frauds on banks in this country. Similar actions were carried out targeting banks in America, Spain and Australia and probably other countries as well. The alleged scale of losses caused to American banks and their customers runs to several tens of millions of dollars. The principal American charges in the US indictment are of conspiracy to commit racketeering activity and bank fraud. The banks named as victims are American banks, although the indictment refers to the fraud as targeting bank accounts in the United States “and elsewhere”. A letter from the US Department of

Justice dated May 8th 2013 states:

“It should be noted, however, that none of the victim UK banks are mentioned in the US indictment, and are not identified as victims of the fraudulent scheme. In sum, as alleged in the indictment, the conspirators, residing abroad, used US based instrumentalities and victimised US victims, making the exercise of US federal jurisdiction over these Defendants appropriate under US law…The victim banks alleged in the bank fraud counts in the US indictment are different from those charged in the United Kingdom.”
[22]In addition, there was evidence before the District

Judge from DS Deborah Donaghy stating:

“The strategy adopted by the PCeU and agreed with the FBI was as follows. The FBI would focus exclusively on enquiries to identify and tackle individuals committing offences against US banks and their US based customers, whilst the PCeU would focus exclusively on identifying and bringing to justice those individuals involved in committing offences to the detriment of the UK banks and their UK based customers. I did not discuss the option that we would take over the investigation or prosecution of offences committed to the detriment of US banks and US customers with either my Detective Inspector or later with the CPS. Such investigation would have been outside the PCeU remit and jurisdiction, and impracticable for a number of reasons….I am also able to state that Operation Lath [the UK investigation] did not find any evidence that fraudulently transferred funds from US bank accounts were being cashed out by money mules in the UK.”

Double Jeopardy

[23]On behalf of the Appellants, Ms Malcolm QC, contended that the double jeopardy rule, as explained by this court in Fofana v France [2006] EWHC 744 (Admin), was infringed. She submitted that the American indictment was in reality the same conspiracy, but involving different victims. The same modus operandi was involved, and the time frame in the UK and US indictments was very similar. In addition, there was some overlap between conspirators in both countries. In the UK conspiracy there were eight other co-conspirators named in addition to these two Appellants, but the case summary referred to three other individuals whose names were not then known as also being parties to the conspiracy.[24]The American conspiracy names six conspirators, including these two Appellants and two of the three conspirators whose identity was not known to the UK authorities. All of those individuals are now named. In addition, the American indictment identifies three others as John Doe Defendants by reference to their internet aliases. One of those is a person named in the UK case summary as an unidentified co-conspirator.[25]Ms Malcolm also submitted that the overt acts of these Appellants in furtherance of the US conspiracy represent UK based activity by these two Appellants rather than overt acts in the United States. At its very highest, any evidence of overt acts by either Appellant in the chat logs relating to American victims should be regarded as de minimis. The conduct of these Appellants within the conspiracy representing their overt acts shows, it is argued, a significant overlap between what is alleged in the US indictment and what was alleged in the UK indictment. Accordingly, when the conduct of the Appellants is examined, the Respondent’s case falls foul of the double jeopardy rule, as explained in Fofana.[26]In Fofana at paragraph 22, Auld LJ stated:
“The semantic bonds that so constrained their Lordships in Connelly and the Court of Appeal in Beddie 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 acquit 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.”
[27]He cited with approval Lord Hutton’s speech in Z, referring to a general rule that the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the Defendant has been convicted or acquitted is founded on the same incident as that on which the second offence is founded. A little later he expressed the view that even if the extradition offence was not based on exactly the same facts as those charged in an English indictment, if there was “a significant overlap” between them that would require a stay of the extradition proceedings as an abuse of process bringing into operation the rule against double jeopardy.[28]Ms Malcolm submitted that this case falls within Fofana principles, particularly where the chat logs were being used in both sets of proceedings, and where the conduct of the Appellants in both sets of proceedings remains the same: in reality these Appellants operated the UK arm of a single conspiracy, assisting in the withdrawal of funds in the UK.[29]The Respondent contends that whilst there is overlap between the UK and US proceedings, it does not demonstrate that the double jeopardy bar applies. The proceedings in both countries are focused on different things. Each nation’s prosecuting authority has concentrated on the criminality within its own jurisdiction. Although conspiracies have been charged, the evidence would have supported charges based on different obtainings by deception in the different countries. There was no obligation on the United Kingdom to assume jurisdiction over all the crimes which might be revealed, and it is clear from the evidence that each investigating team was not proposing to do so.[30]Notwithstanding the common features pointed to by the Appellants, the reality is that the US and the UK indictments were not dealing with the same incident and were not founded on substantially the same facts, but were based on different transactions, resulting in separate losses. There is no sense in which the harm caused to the American victims is reflected in the UK proceedings, and it is clear from the evidence that the proposed American indictment will not seek to convict or punish these Appellants for matters dealt with in our courts. Accordingly, this ground should be rejected.[31]It seems to me that the essential difference between the parties’ approaches is that the Appellants are concentrating on the overt acts primarily demonstrated by the chat logs, and arguing that since the conduct is essentially the same in both the UK and US proceedings, the double jeopardy rule is offended. The Respondent’s case is that this is too narrow a view, and that even if the overt acts are to a large extent (but not entirely) the same, the victims in the American proceedings are entirely different from those in the UK proceedings. Moreover, there will have been different acts of commission in order to obtain the monies from the different victims. In those circumstances it is not sufficient to focus on the chat logs, it is necessary also to focus on the different losses caused to the American victims.

Discussion on Double Jeopardy

[32]It seems to me that the Respondent’s argument is correct. The UK proceedings did not purport to convict and sentence these Appellants for anything done in relation to American victims. Although the chat logs as a whole were exhibited before the court, it is clear from the indictment, the case summary and similar documents that the UK proceedings were confined to British banks and their customers and did not address possible US offences. There was no suggestion that the UK proceedings related to American victims. Nor was any evidence presented to show the scale of loss in America, or indeed to any individual American victim.[33]It is clear that there were separate investigations going on on opposite sides of the Atlantic, but each investigation appears to have been concerned with its own domestic victims and the gathering of evidence from them. Although the chat logs are a common document, different use was or is to be made of them by different prosecutors.[34]It is clear that different evidence from witnesses will be required to prove the US offences, and that the victims named in the US indictment are entirely different from those in the UK indictment without overlap in the harm caused or losses suffered. In those circumstances I do not consider that the US proceedings can be described as founded on the same or substantially the same facts as the UK proceedings. There was no obligation on the UK authorities to prosecute in relation to offences which might involve American victims, and no evidence was put before the court with a view to proving those offences.[35]Additionally, the difference in scale between the effect of the fraud upon victims in the two jurisdictions is very striking, and is a strong pointer in favour of the Respondent’s case. Unlike the situation in Fofana, no charge has been brought in the UK which covered the activities upon which extradition is now sought. The present case has some parallels to the situation in Bohning [2005] EWHC 2613 (Admin) where it was argued that a proposed US prosecution for offences arising out of material found on the Appellant’s laptop which had been seized in the UK was barred by reason of the rule against double jeopardy and/or amounted to an abuse of process. There, the fact that material found on the Appellant’s laptop resulted in separate prosecutions in each jurisdiction representing national interest in particular matters germane to its own jurisdiction, was held not to infringe the rule and not to amount to an abuse of process. Moreover, it was held that the principle of forum coveniens had no application to extradition cases.[36]For these reasons, notwithstanding that there is some overlap between the two cases, I would hold on the facts of this case that the double jeopardy principle is not infringed. It will be for the US courts to decide whether evidence of the overt acts is admissible in relation to alleged frauds upon US victims. Moreover, the overlap in evidence is not the same as an overlap in the facts upon which the respective offences are based. Nor is this court concerned with the strength of the evidence implicating the Appellants in the US conspiracy.[37]Allied to the double jeopardy point, Ms Malcolm submitted that the judge made an error of fact or law in stating in the passage from his judgment cited above, that he was of the view that the US complaints could not have been tried at Croydon Crown Court. That observation founded the District Judge’s conclusion for rejecting the Appellants’ argument on double jeopardy. If the District Judge was making an observation as to the state of the law, then it is common ground that he was wrong. It would have been open to the UK prosecutors as a matter of law to have included US victims in a UK indictment. However, the District Judge’s remarks may have represented a factual finding based on the statement of DS Donaghy.[38]Whatever the judge meant, the essential question for us is contained in Section 104(3), namely whether the judge ought to have decided the double jeopardy question differently, and whether if he had decided the question in the way in which he ought to have done, he would have been required to order the Appellants’ discharge.[39]In my judgment, the District Judge was right to hold that there was no double jeopardy, not on the basis he stated, but for the reasons which I have given above. Accordingly, this point cannot avail the Appellants.

Abuse of Process

[40]In R (Government of the United States of America) v Bow Street Magistrates’ Court (Tollman)[2006] EWHC 2256 (Admin) Lord Philips CJ stated at paragraph 82:
“The 2003 Act places a duty on the judge to decide a large number of matters before acceding to a request for extradition. To these should be added the duty to decide whether the process is being abused, if put on the enquiry as to the possibility of this.”
[41]At the hearing below the District Judge was invited in the light of Tollman to institute enquiries as to whether an abuse of process might have occurred, but the judge rejected this, holding that there was no conduct requiring an explanation or any suggestion of impropriety.[42]The Appellants submitted that the CPS extradition team should be required to provide information explaining what the domestic CPS knew of the US prosecution at the time of framing the UK indictment and also the extent of the US involvement in the UK prosecution. Whilst DS Donaghy, the officer in charge of the case, was aware of the US involvement in an investigation, there is asserted to be an absence of evidence from the CPS as to its state of knowledge as to what was taking place in the United States. In the circumstances it is said that the Croydon Crown Court was misled, as were the Appellants, who must reasonably have expected they were being sentenced for the totality of their criminal conduct. As a result the Appellants have been substantially prejudiced and it is unfair in an era of multi-jurisdictional guidance to hold back allegations and have the possibility of serial trials in one jurisdiction after another.[43]A parallel is drawn with Fofana where the CPS were held to have chosen to frame a prosecution based on a single transaction notwithstanding that material as to other transactions was available to it on the face of the prosecution papers. In Fofana the court held that extradition proceedings would in the circumstances amount to an abuse of process.[44]Ms Malcolm relied on the Attorney General’s Domestic Guidance for Handling Criminal Cases affecting both England, Wales or Northern Ireland and the United States of America of January 2007. She also relied on Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America, a document signed by the Attorneys General of both countries and the Lord Advocate in January 2007. Ms Malcolm argued that because the CPS extradition team had not provided information as to what the domestic CPS knew of the US prosecution at the time of the framing of the UK indictment, it remained unknown whether the CPS thought that its proceedings covered American victims or whether it had decided to leave those matters to US prosecutors. She pointed out that the onus lies with the requesting state, in that the court should not accede to a request for extradition unless it is satisfied that abuse has not occurred.[45]Mr Jones, for the Respondent, pointed out that the Attorney General’s Guidance is directed at prosecutors, not police; and he submitted that DS Donaghy should not be criticised for not having discussed the matter with the Crown Prosecution Service. He further submitted that there was no legal requirement for the police or the CPS to have expanded their investigation into US related matters. Practical considerations such as cost, delay, locating witnesses and differing criminal justice regimes were highly relevant. He conceded that the Crown Prosecution Service had not considered applying the Attorney General’s guidelines, and that they should have been more aware of potential concurrent jurisdiction issues. However, if there was a failing, it did not involve bad faith or manipulation of the process of the court, and in the absence of a treaty as to mutual legal assistance, the argument that the extraditions should fail because the guidance agreed between the US and UK authorities had not been acted on is wrong.[46]Separate investigations in different jurisdictions leading to charges there do not constitute an abuse of process, and at the relevant time a forum bar did not apply. In the absence of that, Mr Jones submitted that there was nothing in the point. There were no reasonable grounds for the judge to believe that an abuse may have taken place, and accordingly there was no basis for this court or the court below to cause an investigation to take place. Accordingly, the threshold test identified in Tollman at paragraphs 84 to 89 in relation to abuse of process had not been met.

Discussion on Abuse of Process

[47]The guidance document signed by the Attorneys General and the Lord Advocate, and whose contents are replicated in essence in the Attorney General’s domestic guidance, refers to the need to enhance the exchange of information in criminal cases involving concurrent jurisdiction. It speaks of early contact between prosecutors intended to enable them to agree on strategies for the handling of criminal investigations and proceedings so as to avoid potential difficulties later in the case (paragraph 1).[48]In deciding whether contact should be made with the other country, the prosecutor should ask if there is a real possibility that a prosecutor in the other country may have an interest in prosecuting the case (paragraph 2). Any decision should be seen to be fair and objective. Each case is unique and should be considered on its own facts and merits (paragraph 3).[49]Paragraph 4 provides that the guidance follows a step by step approach to determining issues arising in cases with concurrent jurisdiction. There should be early sharing of information between prosecutors in the jurisdictions with an interest in the case. Secondly, prosecutors should consult on cases and the issues arising from concurrent jurisdiction. In the event of disagreement, the offices of the Attorneys General or Lord Advocate should become involved.[50]Paragraph 13 provides that the guidance does not create any rights on the part of a third party to object to or otherwise seek review of a decision by UK or US authorities regarding an investigation or prosecution of a case or issues related thereto. Paragraph 14 provides that the aim of consultation includes enabling prosecutors to decide where and how investigations may be most effectively pursued, where and how prosecutions should be initiated, continued or discontinued, or whether and how aspects of the case should be pursued in different jurisdictions. This paragraph concludes:
“It is of course for the prosecuting authority, having applied the guidance, to decide that a case should properly be prosecuted in its country, where that is in accordance with the law and the public interest.”
[51]The Appellants’ contention is that the failure of the CPS to respond to queries in these proceedings seeking information as to what the domestic CPS knew of the US prosecution at the time of the framing of the UK indictment and the extent of US involvement in the UK prosecution triggers the Tollman process in relation to abuse of process.[52]This process was summarised by Richards LJ in Haynes v Malta [2009] EWHC 880 at paragraph 6:
“To sustain an allegation of abuse of process in relation to proceedings under the Act, it is necessary, first to identify with specificity what is alleged to constitute the abuse; secondly to satisfy the court that the matter complained of is capable of amounting to an abuse; and thirdly to satisfy the court that there are reasonable grounds for believing that such conduct has occurred. If the matter gets that far, then the court should require the judicial authority to provide an explanation. The court should not order extradition unless satisfied that no such abuse has taken place.”
[53]Because of a failure to consider the guidance or to provide evidence that the guidance was considered, the Appellants’ contention is that there is an abuse of process in this case, and in particular the court and the Appellants should have been informed of the possibility of other proceedings in the US. This in turn would have enabled the Appellants to have made representations to the UK court, enabling them to be dealt with for all matters on the same occasion.[54]It seems to me that there is a degree of artificiality about this argument. Firstly, the Appellants and their legal advisers were privy to the chat logs and the Appellants themselves aware of the potential scale of the conspiracy. Secondly, it will have been clear to them that the UK indictment was confined to offences against UK banks. Thirdly, there was no indication in the Appellants’ basis of plea that they were admitting or wanted the court to take account of a conspiracy affecting victims other than those identified in the indictment.[55]In addition, the Crown Court was made aware through the case summary and subsequent documents that whilst the indictment was confined to UK banks and their customers, the FBI had started an investigation prior to the British police, and had provided information in the form of chat logs which had enabled the British police to identify UK based victims. It seems to me therefore that in reality neither the Crown Court nor the Appellants were misled or potentially disadvantaged by any failure explicitly to refer to the possibility of US proceedings arising from the fraudulent activities of the Appellants.[56]Moreover, by the time the matter came before the District Judge it was common ground between the parties that there were investigations into those activities conducted in the UK and the US, and that information had been shared between the two jurisdictions. Such information sharing would be unsurprising and not unusual. The District Judge had the evidence of DS Donaghy about the history of the matter and the levels of contact between the two sets of investigators. He also had the evidence filed by the Respondent showing that the US authorities were unaware of the identities of the Appellants until after their counsel had acknowledged their internet usernames at the Croydon hearing on 15th July 2011 during which the Appellants pleaded guilty to the UK indictment.[57]The evidence, in my judgment, sufficiently demonstrates that whilst there were concurrent investigations in the UK and the US, they were being conducted as separate investigations, and that at the time charges, and then an indictment were preferred against these Appellants in this jurisdiction, the US authorities were unaware of the real identities of these two Appellants.[58]I do not consider that it advances the Appellants’ case in this respect that the chat logs will form part of the evidence to be used in the American proceedings. Firstly, they only form part of the evidence; secondly, it is clear that the American authorities will not seek conviction or punishment relating to any UK victims; and thirdly, it will be for the American courts to decide to what extent the evidence of what these Appellants did in relation to UK banks is admissible in relation to charges concerning US banks.[59]It is common ground that in relation to these proceedings the Appellants do not have the benefit of statutory forum protection so that there is no legal obligation for proceedings covering all matters to have taken place in this jurisdiction. In the circumstances therefore and in the absence of anything to suggest bad faith, any improper manipulation of due process, any misleading of the Appellants or any unfairness to them, I come to the conclusion that any failure to consider the jointly agreed UK/US guidelines does not of itself trigger the Tollman process. It therefore follows that for the Respondent to seek extradition is not an abuse of process.

Conclusion

[60]Both these appeals fail in relation to all the grounds raised for the reasons given above. Both appeals are dismissed.[61]I agree.

Cited in 1 later judgment