Vice Prosecutor, Magistrate of the Judicial Order, France v Charbit [2014] EWHC 3579 (Admin)

[2014] EWHC 3579 (Admin)Case No CO/2639/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14 October 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE BEATSON
MR JUSTICE CRANSTON
Between
VICE PROSECUTOR, MAGISTRATE OF THE JUDICIAL ORDER, FRANCEClaimantv
Between
CHARBITDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr B Seifert (instructed by CPS Extradition) appeared for ClaimantMr J Stansfeld (instructed by Lewis Nedas) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE CRANSTON: This is an appeal against a decision of Chief Magistrate Riddle on 2 June 2014 at the Westminster Magistrates' Court. He held that a European Arrest Warrant issued on 9 May this year, seeking the extradition of the Respondent, Eric Charbit, to France, to face a single charge of fraud, was invalid. The basis of his decision was that(1) the warrant itself did not particularise the offending sufficiently as required by section 2 of the Extradition Act 2003 ("the 2003 Act") in that it did not explain (to use the Chief Magistrate's words) "what, if anything, went wrong", and(2) that pursuant to the decision of Ouseley J in Pinnick v Spain [2013] EWHC 1034 (Admin) the details annexed to the warrant could not be taken into account to satisfy section 2. The French appeal is advanced on two bases: First, that Pinnick v Spain is distinguishable and the Annex to the warrant can be considered, and secondly, that the conduct contained in the warrant, including the Annex, discloses an extradition offence as required by section 10 of the 2003 Act.[2]The background is this. The warrant alleges a swindle contrary to S.313(1),(3),(7) and (8) of the French Penal Code. In the framework list of offending the box "swindle" is marked. The maximum penalty is stated as 5 years. At Box E of the warrant it is alleged, in essence, that there was a real estate project with investments in it through an offshore company in a US stock exchange listed company, Springfield, and that there had been prejudice to the victim investors so far to the extent of €667,000. The Box E particulars, in full, are as follows:
"Description of the circumstances under which the violations have been committed, including the moment (date and time), the location and degree of involvement of the person wanted in the violations. Perpetrator of the facts, committed in Paris, USA, Bahamas and Cyprus, between July 2008 and July 2010 and over the national territory, since time not covered by statutes of limitation. Several complaints have been filed further to investments performed by the plaintiffs in a luxury real estate project around "
International Golf Waves", knowing that they had been put in touch through Alain MORLOT with Eric CHARBIT, domiciled in Nassau Bahamas [PO Box N 81 85, Nassau, New Providence] and who would be the one dealing with the financing structure for the whole operation in the USA. The investors mentioned that Eric CHARBIT had explained to them that the investment would take place under cover of one of his "off shore" companies: CREDIT CAPITAL INC. That company was liable to subscribe a purchase option of the shares of a company quoted on a US-based stock exchange. That same company would have been used to purchase land in order to develop the real estate projects. These persons, who were acquaintances of Alain MORLOT, mentioned that they had proceeded to money transfers for the purchase of parts of a company by the name of SPRINGFIELD. Indeed they had sent money to Eric CHARBIT who would purchase SPRINGFIELD, a company quoted on a stock exchange through his own company, CREDIT CAPITAL INC. So far the total prejudice for the whole of the victims is €667.000.@[3]There is then a note in bold type at the bottom of Box E stating that a detailed statement of facts has been attached to the warrant. There is no further identification of the Annex, nor is its length stated, although there is a stamp and a signature at the bottom of each page of the warrant and of the Annex to the effect that the copy is certified as conforming with the original.[4]The Annex was part of the same PDF attachment in the e-mail from the French authorities as the warrant. The Annex is entitled "Annex to heading E of the EAW pertaining to Eric Charbit -- description of the circumstances under which the facts have been committed". Over some three pages it explains that a Phillipe Balmette complained that he had been approached by another person about investing in a luxury golf project, who put him in touch with the Respondent, resident in the Bahamas. The Respondent explained that the investment would be through an offshore company into a US stock exchange listed corporation, and gave details of an account in the name of Thomas F Ryan, said to be a US attorney. In the latter half of 2008, Mr Balmette sent $500,000 to the account and was sent documents stating that the US listed company was Springfield Company Inc, of New York. Mr Balmette also sent $15,000 to the Respondent to a Cyprus account. Mr Balmette had tried to contact the other person and the Respondent repeatedly, with no success.[5]The Annex then refers to monies other persons sent to the Respondent in Cyprus to invest in Springfield. One of them discovered that Ryan was not an attorney. The Annex also details the investment which a Mr Morlot and his friends hoped to make by payments of over $1,000,000 into the Respondent's bank account. He had not heard from the Respondent for a year -- or from Ryan -- and considered that he had been cheated. Seven other persons are mentioned by name in the Annex as having made investments in Springfield.[6]Section 2(2)(a) of the 2003 Act provides that an accusation warrant must contain the information in the section 2(4).

(c) requires:

"(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..."
That section reflects Article 8(1) of the European Union Council Framework Decision of 13 June 2002, which constituted the European Arrest Warrant scheme. It provides that a European Arrest Warrant:
"shall contain the following information set out in accordance with the form contained in the Annex: ... (e) a description of the circumstances in which the offence was committed, including the time, place, and degree of participation in the offence by the requested person..."
The form contained in the annex to the Framework Decision contains Box E, well-known in this court, where the words of Article 8(1)(e) are repeated.[7]The Council of the European Union have produced a "European Handbook on how to issue a European Arrest Warrant". The introduction to the 2010 edition states that it provides guidelines for the adoption of good practice, whilst supplying information as to how ideally a European Arrest Warrant should be filled in. The Handbook states:
"The EAW form is an annex to the EAW Framework Decision. The form must be used, although this may not always be clear from the legislation of some Member States. The intention of the Council was to implement a working tool that might easily be filled in by the issuing judicial authorities and recognised by the executing judicial authorities. One of the aims of the form is to avoid lengthy and expensive translations and to facilitate the accessibility of the information. Only this form should be used; it may not be altered. Since this form will in principle constitute the sole basis for the arrest and subsequent surrender of the requested person, it should be filled in with particular care in order to avoid unnecessary requests for supplementary information."
[8]The Handbook adds that the form may be downloaded and that it was changed in 2007 so that the boxes can be expanded where large amounts of information need to be inserted. The Handbook also states that when the person to be arrested has been located, the issuing authority usually sends the warrant directly to the SIRENE National Office for distribution to EU countries which are part of the Schengen Information System. The SIRENE system is that used by law enforcement agencies to access data on persons elsewhere.[9]In commenting on Box E on the standard form, the Handbook reads:
"Give a precise explanation of the facts, justifying the request; use short sentences which are easy to translate. The factual description should only consist of a short summary and not of a full transcript of whole pages of the file. However in more complex cases, and in particular where double criminality applies, a longer description is necessary in order to document the main aspects of the case... A short description will also be useful for the insertion of alerts in the SIS by the SIRENE National Office."
[10]The Handbook also notes the length of the electronic transmission of the box by the SIRENE system is limited to 1,024 characters, about 15 lines in size 12 Word font. Exceeding that limit forces SIRENE to transmit part of the information in another supplementary form (the M form) and to prepare a "support translation", with the risk of system saturation, taking account of the fact that there are limited resources available for this process.[11]In Pinnick v Spain [2013] EWHC 1034 (Admin) the European Arrest Warrant referred in Box E to preliminary inquiries regarding an offence against public health, in fact a conspiracy to import cocaine into Spain. Box E added that the police report was annexed to it. That report ran to 14 pages. Unless the police report could be read as part of the warrant, Spain accepted that there were insufficient particulars provided in it to meet the requirements of section 2(4)(c). On appeal the requested person submitted that the police report could not be relied on since it was not part of the warrant.[12]Ouseley J agreed. He referred first to Article 8(1) of the Framework Decision and Box E in the form in the Annex to it. That had only three lines for the relevant material, but modern technology permitted almost infinite expansion of that as circumstances required. "It is an expandable template, rather than one which by virtue of some imposed brevity will necessitate the use of a separate sheet of paper" [paragraph 12] Ouseley J also cited Dabas v High Court of Justice in Spain [2007] UKHL 6; [2007] 2 AC 31 to the effect that the 2003 Act had to be interpreted in the light of the Framework Decision. Later Ouseley J said:
"[21] In my judgment, although technical points have bedevilled extradition procedures, and it is important, despite the best endeavours of lawyers, that they should not be resurrected under the 2003 Act, there are limits to the informality, flexibility or indeed looseness which can be allowed where the liberty of the individual is at stake. The Framework Decision and the Extradition Act 2003 set out few formalities, some clearly going to the jurisdiction of the court. The language of the Framework Directive is clear: it is the form in the schedule which has to contain the information required by Article 8. United Kingdom legislation has to be interpreted conformably with that, as Dabas makes clear in the passages I have already cited." "[22] But in any event, even without that interpretive assistance, the language of the 2003 Act in section 2 is clear: a single document is contemplated as being the EAW, rather than a multiplicity of documents incorporated by reference and annexure. I do not say that a warrant is invalid if it contains an annex, for example voluntary additional particulars, so long as that which is in the body of the form prescribed by the schedule satisfies the requirements of Article 8 or S.2(4)."
[13]Ouseley J added that Dabas meant that the requirement for the warrant to contain that information meant the information had to be in the form in the Framework Decision and there was no reason why the Act should be given a different interpretation. Moreover, there were many reasons why an annex should not be treated as part of a warrant. First, the form in the Framework Decision was used throughout the European Union and for the sake of uniformity of practice and trust between different countries, warrants should be in the same form; secondly, there was no limit to the amount of material that could be sent in an annex; thirdly, the issuing authority had to apply its mind to the ingredients necessary for a valid warrant and for the executing authority to insert the required information onto the warrant -- it would be wrong to treat the European Arrest Warrant process as a mere means of sending a police report from one country to another; fourthly, allowing annexed documents to be part of a European Arrest Warrant could lead to factual disputes which would be time consuming and expensive to resolve; there was no logical stopping place for allowing information to be part of a warrant before all material could become part of an annex.[14]Mr Seifert accepted that, if the Annex is not part of the warrant in this case, this is not a valid warrant under section 2 of the 2003 Act. Thus, in his cogent submissions, he sought to distinguish Pinnick v Spain. He submitted that the Annex in this case is clearly drafted as part of the warrant with the cross reference at the foot of Box E to it. That contrasted with the Spanish police report in Pinnick v Spain which was not drafted as part of the warrant. Mr Seifert also submitted that the Annex in this case formed part of the same document received electronically in digital form, and hence the concerns which Ouseley J had about the potential confusion as to the whole document, or detachment of an annex in a fax transmission, had no application in this case. Moreover, he contended the French judicial authority were unable to provide the further information in the body of the warrant, due to the guidance in the EAW Handbook about transmission limitations of 1,024 if the SIRENE system is used. In summary, the French judicial authority had provided all the information required in the warrant and Annex if the document was to be read as a whole.[15]I accept that some of the practical concerns which Ouseley J expressed in Pinnick v Spain may not apply in this case. Since the warrant arrived in PDF form the chances of the Annex being detached were less, although as Mr Stansfeld in his written submissions correctly stated there was no numbering of the pages of the Annex. Nor, as he again submitted, was there evidence that the warrant when certified by the National Crime Agency was in PDF form.[16]It seems clear that the template for the form is expandable and that Ouseley J was correct in this regard. The EAW Handbook makes plain that even when the SIRENE system is used for the transmission of a European Arrest Warrant, the limitation in the number of characters is not absolute. It contemplates, in the passage to which I referred, that the form can be downloaded and the boxes expanded when more information than normal needs to be sent. In any event there is no evidence about the use of the SIRENE system in this case. So these practical concerns can be put to one side. What is the law?[17]In Assange v Swedish Prosecution Authority (Nos 1 and 2) [2012] UKSC 22; [2012] 2 AC 471 Lord Phillips said that while the court is not bound to interpret Part 1 of the 2003 Act in a manner that accords with the Framework Decision that is a logical approach on the presumption that Parliament intended that Part to give effect to it: paragraph 10.[18]In his written submissions, Mr Stansfeld contended that Article 8 provided that a European Arrest Warrant must contain the information "set out in accordance with the form contained in the Annex" and that those words did not contemplate an annex. He contended that the meaning of the warrant had to be read in S.2 of the 2003 Act in the same way. To support his argument, he highlighted the differences in statutory wording between Parts 1 and Part 2 requests in the 2003 Act, in that Part 2 requests may consist of a number of documents by contrast with what, he submitted, was the position with European Arrest Warrants in Part 1.[19]Contrary to Mr Stansfeld's submissions I am not persuaded that on their face the legislative and other materials provide a definite answer to whether a European Arrest Warrant can have an annex. However, once the legislative materials are interpreted against the background of the relevant legal policy it seems clear to me that no annex is permitted and that all the information about the circumstances of the offending in Box E must be set out.[20]The European Arrest Warrant system is premised on the simplification of the extradition process: See Ektor v National Prosecutor of Holland [2007] EWHC 3106 (Admin). As my Lord Beatson LJ added in oral argument, the intention is that the system is to be swift and efficient. Moreover, there needs to be a uniform approach by Member States and mutual trust between them in the operation of the system. One aspect of a simplified and uniform approach underlying the European Arrest Warrant is the use of the standard form warrant set out in the Framework Decision. The standard form warrant does not contain any annex. With care, Box E can be drafted so that all the information necessary is contained there. All that is required is a succinct statement of the circumstances in which the offence was committed. To maintain confidence in this simplified system for extradition, Article 8 of the Framework Decision and S.2 of the 2003 Act must be interpreted as requiring a strict adherence to the standard form warrant. That demands that the details of the offending required by Box E be contained in the body of the warrant.[21]In my judgment this warrant does not comply with section 2. It consequently does not constitute a European Arrest Warrant and the court lacks jurisdiction to deal with it.[22]The Chief Magistrate was correct in his analysis and I would dismiss the appeal.

LORD JUSTICE BEATSON: I agree.