Muldoon v Malaga Provincial High Court, Spain [2016] EWHC 3689 (Admin)

Case No CO/3557/2016[2016] EWHC 3689 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 14 December 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -Between:
KIM TERESA MULDOON
Appellant
v
MALAGA PROVINCIAL HIGH COURT, SPAIN
Respondent
- - - - - - - - - - - - - - - - - - - - -Computer-Aided Transcript of the Stenograph Notes of
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Ms J Farrant (instructed by CPS Extradition Unit) appeared on behalf of the Appellant
Mr B Keith (instructed by J D Spicer) appeared on behalf of the Respondent
Between
MuldoonClaimantMalaga Provincial High Court, SpainDefendant
[1]MR JUSTICE HICKINBOTTOM: This an appeal against the decision of District Judge Tempia of 21 June 2016 to order the Appellant's extradition to Spain, brought with the permission of Collins J dated 14 October 2016. Spain is a category 1 territory. And Part 1 of the Extradition Act 2003 (“the 2003 Act”) therefore applies.[2]The basis of the application for the Appellant's extradition is an accusation European Arrest Warrant (“EAW”) issued by the Respondent judicial authority, the conduct with which the Appellant is charged being set out in box E of the EAW, as follows:
"Time share resale fraud beginning in 2000, having mutually agreed beforehand, and with the aim of unlawfully obtaining wealth and deceit through the use of the company structure they had created for such purpose and which they periodically renewed disassociating themselves from the predecessor companies to avoid being detected. They operated from the so-called Costa del Sol and in particular the city of Fuengirola, carrying out a form of the sadly widely known time share resale fraud."
[3]Box E indicates that that is charged as one offence, "a continued offence of fraud"; and, it is said, "the offence is especially serious and affected a wide number of people". The framework list is ticked in respect of “swindling”. Box C says that the maximum sentence is 4 years 6 months.[4]Mr Keith, for the Appellant, advances three grounds of appeal, namely that the District Judge erred in: (i). 5. concluding that the EAW was adequately particularised (section 2(4)(c) of the 2003 Act; (ii). 6. finding that extradition was not oppressive due to the passage of time since the alleged offending occurred (section 14 of the 2003 Act); and (iii). 7. finding that extradition would not be disproportionate having regard to the Appellant's rights under article 8 of the European Convention on Human Rights.[8]In respect of the first ground, the burden falls upon the Respondent judicial authority to satisfy the court to the criminal standard that the EAW is a valid warrant.[9]By section 2(4)(c) of the 2003 Act, a Part 1 warrant (such as the EAW in this case) is an arrest warrant that contains:
"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 as alleged constitute an offence."
[10]That reflects Article 8(e) of the Framework Decision 2002/584/JHA which provides that an EAW must contain:
"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."
[11]The level of particularity that will meet those requirements has been considered by this court in a number of cases. It is clear from those that that level will depend upon the circumstances of each case. In relation to why particularity is important – and what informs the appropriate level of particulars - Lloyd-Jones LJ in King v Public Prosecutors of Villefranche sur Saone, France [2015] EWHC 3670 (Admin) at [22] said this:
"I do not believe that the particulars required whether for an accusation or a conviction warrant need great detail. As I have said, provided they give sufficient information to enable any available point on a bar to be taken and the ability to judge whether the offence is properly listed in the framework list and dual criminality can be shown if that should be needed, they will suffice whether for accusation or conviction cases."
I accept that, in this case, some particularity is given in the EAW. It is made clear that the Appellant is alleged to have acted with others to commit the offence in question, in effect in a conspiracy. It is clear that the offence started in 2000, and involved not one but "a wide number" of people, presumably victims. There is an indication of, at least, the broad geographical area in which the alleged fraud was committed, i.e. the city of Fuengirola. Ms Farrant for the Respondent submits that the particulars here are adequate: they adequately set out the conduct alleged, and the place and time of the alleged offence.[12]However, Mr Keith on behalf the Appellant submits that the particulars given are insufficient. In support of that contention, he relies upon the evidence of the Appellant. She says that she was born in Croydon and lived in the United Kingdom until she married Tony Muldoon in 1985. In 1987, they moved with the Appellant's son to Spain. where she lived until 2007. In 2000, the marriage broke down, and Mr Muldoon moved out of the family home in Malaga. After that, the police attended the premises in which the Appellant continued to live, looking for Mr Muldoon.[13]The Appellant moved back to the United Kingdom in 2007. In 2008, she returned to Spain to collect some of her belongings, when she and her mother were arrested and questioned about an alleged time share fraud. They were released and returned to the United Kingdom. The District Judge accepted that the Appellant was not a fugitive, e.g. as a result of that arrest, accepting that she was released without charge and without any expectation of criminal proceedings against her.[14]In the event, Mr Muldoon was charged in relation to fraud, with others; and he pleaded guilty in 2011. He received a £1,000 fine and a one year suspended sentence. None of his co-defendents were sentenced to immediate imprisonment.[15]Meanwhile, the Appellant return to the United Kingdom, where she did nothing to conceal her identity or whereabouts. From 2001, she maintained the same bank account, and bought a house in 2007.[16]The District Judge accepted that the Appellant was "a totally credible witness." He found that the judicial authority had been guilty of culpable delay in issuing the EAW. The conduct occurred in 2000, the District Judge said, and the judicial authority did not issue the EAW until 2011. The Appellant had been in Spain until 2007, and the police visited her house on several occasions looking for a husband, without suggesting that they intended to investigate her. She was arrested in 2008, but released. There was no explanation given for why the judicial authority took so long to issue the EAW; nor why the NCA took four years to certify it.[17]However, the District Judge concluded that the warrant was valid, saying: "The warrant sets out the territorial jurisdiction, the Costa del Sol in Spain and in particular the city of Fuengirola. The date of offence is given beginning in 2000. The conduct of the conspiracy is specified, namely, time share resale fraud by using companies set up for that purpose. One offence is specified. There is a presumption that Spain will protect Ms Muldoon's speciality rights and there is no evidence to rebut that.[18]Mr Keith submits that the warrant is invalid for want of particularisation, particularly because it does not give sufficient information to gauge the seriousness of the charge relevant to the balancing exercises inherent in section 14 and article 8 respectively. He submits that, on the basis of the particulars given, those exercises are impossible. The District Judge concluded that the allegations against the Appellant are "serious"; and Mr Keith submits that she had no proper basis for reaching that conclusion on the basis of what is contained in the particulars. Whilst the broader conspiracy may well have been serious, he contends that it is impossible to assess the Appellant's role within it. She may have been an organiser, or she may have had the most minor and peripheral roles.[19]In my judgment, those submissions have formidable force. Section 14 requires a balance to be performed, because oppression can only be considered by reference to the nature of the offence or offences for which extradition is sought. The more serious the offence, the greater public interest there is likely to be in extradition taking place (see Hutton v Government of Australia [2009] EWHC 564 (Admin) at [14]). Article 8 too requires a balancing exercise, although one made against a different backdrop (see Polish Judicial Authority in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin)). However, it requires consideration of the seriousness of the offences.[20]In this case, although the EAW indicates that the alleged offence is "serious", “serious” here is necessarily a relative term. The EAW indicates that a number of people – as I have said, presumably victims, although not expressly referred to as such - are or were involved, but there is no indication of how many or whom. There is no indication of the period over which the continued offence took place, from 2000: it may have been a week or a year, or the whole period up to 2008, when the Appellant was arrested.[21]Nor does the EAW give any indication of the value of the alleged fraud, whether it be hundreds, thousands, or millions of pounds.[22]Furthermore, as Mr Keith submitted, the EAW gives no particulars of the Appellant's conduct within the scope of the conspiracy. Section 14 and article 8 each require an assessment of the seriousness of the relevant offences. It is in my view noteworthy that others who were involved in this conspiracy, who included individuals such as her former husband who apparently played a greater part than the Appellant, have been convicted and have received sentences in terms of fines and suspended custody, but none in terms of immediate custody. That underscores the importance of there being adequate particulars of the conduct in which it is alleged that the Appellant was engaged, to enable a proper balance to be made both in regard to section 14 and article 8.[23]Adequacy of particulars is, in my view, particularly important here, given the time lapse since the relevant events and even since the Appellant's arrest in 2008. The delay in itself is such that section 14 and article 8 are, to say the least, in play. As I understand it, in addition to the District Judge finding that the judicial authority was guilty of culpable delay between 2001 and 2011, the proceedings before the District Judge were adjourned twice for the judicial authority to have an opportunity to explain that delay, an opportunity which they failed to take.[24]In the circumstances, I am persuaded that the particulars are inadequate; and the District Judge erred in holding otherwise. The Respondent judicial authority has thus failed to persuade me that the warrant is valid. Indeed, I am firmly of the view that it is invalid.[25]In those circumstances, it is not necessary (or, indeed, appropriate) for me to consider the other two grounds upon which Mr Keith relied, namely section 14 and article 8, both of which of course are premised on the basis that the warrant is valid. However, that is not to say that I do not consider that there is considerable force in those grounds, on the basis of the information that we do have. In particular, Mr Keith emphasised three points of notable force.[26]First, there is the delay to which I have referred, and in particular the lack of reasons for any of the delay. Of course, the nature of the conduct alleged in this case is such that an investigation could well have taken some considerable time. But none of the delay since 2001 has been explained, despite the judicial authority having been given more than adequate opportunity to do so. In relation to the passage of time under section 14, lengthy periods of unexplained delay can be a particularly powerful factor.[27]Second, Mr Keith relies upon the fact that the Appellant's alleged co-offenders have been convicted, and none have been subject to an immediate custodial sentence. To say the least, it would be curious, he submits, if the Appellant was extradited on an accusation EAW, in circumstances in which it is unlikely that she could face an immediate custodial sentence. Indeed, he suggests that that in itself should be sufficient for bar purposes.[28]Thirdly and finally, he relies upon the false sense of security engendered in the Appellant by the conduct of the judicial authority. Again, I consider that there is some force in that submission. Although she was arrested in 2008, in the circumstances in which I have described, as I understand it there is no evidence that the Appellant was aware that she was being investigated in relation to these matters before then. Having been arrested, questioned and released without any indication that matters would be taken further, and in the knowledge that others were being tried in 2011, that must have engendered within her at least some sense of security, which in the event was not well-founded.[29]For those reasons, as I say, Mr Keith's submissions in relation to section 14 and article 8 appear to me on their face to have some merit.[30]However, for the reasons I have given, I consider that the EAW is invalid; and, on that basis, I will declare it as such, and order the discharge of the Appellant.