Ismail, In re [1998] UKHL 32

House of Lords
Between
Ismail, In reAppellant
Before
Lord Browne-WilkinsonLord Jauncey of TullichettleLord Slynn of HadleyLord SteynLord HuttonDate 29 July 1998
My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. I agree with it and for the reasons he gives I would dismiss the appeal.

LORD JAUNCEY OF TULLICHETTLE

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he has given I would dismiss this appeal.

LORD SLYNN OF HADLEY

My Lords,I have had the advantage of reading in draft the Speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives I would dismiss the appeal.

LORD STEYN

My Lords,The only question on this appeal is whether the appellant, a British citizen, is liable to be extradited under section 1 (1) of the Extradition Act 1989 as a person "accused" of extraditable offences in the Federal Republic of Germany. The appellant contends that he is not a person "accused" because no formal criminal charge has been made against him in Germany and that he is merely wanted for pre-trial investigations.

The main provisions

Section 1 (1) of the Act of 1989 reads as follows:-

The critical words in sub-section (1) (a) are "a person . . . who is accused." Section 20 of the Act of 1989 is also of some relevance. It provides:-It is, also necessary to refer to the European Convention on Extradition Order 1990 (S.I. 1990 No. 1507) which came into force on 14 May 1990. The Order had the effect of incorporating the Convention into United Kingdom domestic law. Extraditions from the United Kingdom to Germany are governed by the provisions of Act of 1989 and the Convention. Article 1 of the Convention provides as follows:-The relevant words are "persons against whom the competent authorities of the requesting party are proceeding for an offence."

The alleged events leading to the request for extradition

In 1994 and 1995 a major international fraud was perpetrated on German investors. In 1994 alone the losses alone apparently involved some Deutsche Marks 52 million or £17 million. The fraudsters achieved their purposes by soliciting by telephone calls investments for the purchase of options in commodity futures. In truth, the fraudsters feigned the buying and selling of options. The documents purporting to record the transactions were bogus. Two German companies, controlled by Peter Schwan, solicited the customers. Two Swiss companies, controlled by the appellant, handled the transmission of money obtained from the victims. No business transactions took place in Switzerland. Communications to the Swiss companies were passed on to Amsterdam where Mark Hoyle pretended to buy and sell the options. The proceeds of the frauds were transmitted directly or indirectly to Belgium where one Van der Veen apparently handed over the appellant's share of the proceeds to him.Peter Schwan was arrested. Criminal proceedings against him are pending in Germany. In the process of collecting evidence against Peter Schwan a State Prosecuting Attorney in Bochum, Germany, discovered evidence implicating the appellant in the fraud. He is said to have been implicated by the statement of one of the conspirators, one Van der Veen. The bank statements of one of the appellant's Swiss companies apparently point to his guilt.

The warrant for the appellant's arrest

On 3 August 1995, upon the application of the Senior Public Prosecutor of Bochum, a judge issued a warrant of arrest in respect of the appellant. The warrant of arrest is a lengthy document. It identifies the appellant and gives particulars of the offences of which the appellant is suspected as well as references to the applicable German criminal statutes. A translation of the warrant prepared by professional translators describes the appellant as "the accused." It asserts that he "acted jointly with the separately prosecuted Peter Schwan." It recites that the "accused is charged with" offences which are then particularised. It then explains that "the accused is strongly suspected of these offences" based on evidence obtained by the prosecutor. The correctness of the translation is in part disputed.

The extradition proceedings

The Government of Federal Republic of Germany requested the extradition of the appellant. On 25 April 1996 the Secretary of State authorised a Metropolitan Stipendiary Magistrate sitting at Bow Street to proceed in conformity with the provisions of Part III of the Extradition Act 1989 . On 29 May 1996 the police arrested and charged the appellant.On 15 August 1996 the hearing took place before Mr. Ronald Bartle a Metropolitan Stipendiary Magistrate. He committed the appellant on bail to await the decision of the Secretary of State as to the return of the appellant to Germany.On 20 August 1986 the appellant applied for a writ of habeas corpus directed to the second respondent challenging the magistrate's decision. Shortly before the hearing before the Divisional Court the appellant produced a sworn statement by Stefan von Moers, a German lawyer, directed to the issue whether the appellant was a person "accused" within the meaning of section 1 of the Act of 1989. He offered an explanation of the three stages of criminal procedure in Germany. So far as relevant his statement with numbering deleted reads as follows:-2. The Intermediate Proceedings The court on which the complaint has been served sends the complaint to the intended defendant and before the court decides on the opening of the Trail the intended defendant is asked to give a statement. . . . At this point after consideration of the complaint and the . . . documents the court is required to decide whether in the view of the court there is sufficient evidence to justify the defendant being tried in accordance with the complaint. If the court decides that point in the negative the case effectively stops there. . . If, however, the court is of the view that sufficient evidence exists to support the complaint then the court will issue a notice of commencement.3. The Main Proceedings The trial hearings will commence with the presiding judge of the court agreeing the timetable of the proceedings."On the 2 July 1997, the Divisional Court dismissed the habeas corpus application. Garland J. delivered the judgment of the Divisional Court. Simon Brown L.J. agreed. Before the Divisional Court Counsel for the appellant had raised an argument as to jurisdiction. The Divisional Court ruled against the appellant. That argument has now been abandoned. It is only necessary to refer to the observations of Garland J. about the "accused" person point. After an analysis of the issue whether the appellant is a "person accused" within the meaning of the Extradition Act 1989 Garland J. concluded:Counsel for the appellant challenged this conclusion by submitting(1) that no decision had been taken in Germany to launch criminal proceedings and(2) that, in any event, a formal charge is necessary before a suspect can be an "accused" person.

The meaning of "accused" person

It is common ground that mere suspicion that an individual has committed offences is insufficient to place him in the category of "accused" persons. It is also common ground that it is not enough that he is in the traditional phrase "wanted by the police to help them with their enquiries." Something more is required. What more is needed to make a suspect an "accused" person? There is no statutory definition. Given the divergent systems of law involved, and notably the differences between criminal procedures in the United Kingdom and in civil law jurisdictions, it is not surprising that the legislature has not attempted a definition. For the same reason it would be unwise for the House to attempt to define the word "accused" within the meaning of the Act of 1989. It is, however, possible to state in outline the approach to be adopted. The starting point is that "accused" in section 1 of the Act of 1989 is not a term of art. It is a question of fact in each case whether the person passes the threshold test of being an "accused" person. Next there is the reality that one is concerned with the contextual meaning of "accused" in a statute intended to serve the purpose of bringing to justice those accused of serious crimes. There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permits it in order to facilitate extradition: Reg. v. Governor of Ashford, Ex parte Postlethwaite [1988] A.C. 924, 946H-947D. That approach has been applied by the Privy Council to the meaning of "accused" in an extradition treaty: Rey v. Government of Switzerland [1998] 3 WLR 1 , 7B. It follows that it would be wrong to approach the problem of construction solely from the perspective of English criminal procedure, and in particular from the point of view of the formal acts of the laying of an information or the preferring an indictment. Moreover, it is important to note that in England a prosecution may also be commenced if a custody officer decides that there is sufficient evidence to charge an arrested person and then proceeds to charge him: section 37 (7) of the Police and Criminal Evidence Act 1984; and see generally as to the commencement of prosecutions Card, Cross and Jones, Criminal Law, 13th ed., (1995) Chapter 4. Despite the fact that the prosecuting authorities and the court are not involved at that stage, the charging of an arrested person marks the beginning of a prosecution and the suspect becomes an "accused" person. And that is so even if the police continue to investigate afterwards.It is not always easy for an English court to decide when in a civil law jurisdiction a suspect becomes an "accused" person. All one can say with confidence is that a purposive interpretation of "accused" ought to be adopted in order to accommodate the differences between legal systems. In other words, it is necessary for our courts to adopt a cosmopolitan approach to the question whether as a matter of substance rather than form the requirement of there being an "accused" person is satisfied. That such a broad approach to the interpretation of section 1 of the Act of 1989 is permissible is reinforced by the provisions of section 20. This provision deals with the reverse position of an extradition of a person "accused" in the United Kingdom and contemplates that "proceedings" against him may not be commenced ("begun") for six months after his return. This provides contextual support a correspondingly broad approach to "accused" in section 1. For my part I am satisfied that the Divisional Court in this case posed the right test by addressing the broad question whether the competent authorities in the foreign jurisdiction had taken a step which can fairly be described as the commencement of a prosecution. But in the light of the diversity of cases which may come before the courts it is right to emphasize that ultimately the question whether a person is "accused" within the meaning of section 1 of the Act of 1989 will require an intense focus on the particular facts of each case.

The facts

My Lords,I would reject as unrealistic the argument that the appellant is a mere suspect whose presence is required in Germany for the purposes of questioning. I would rest my decision on the cumulative effect of three matters. First, it is common ground that the German judge had been satisfied on compelling evidence that the appellant was guilty of conspiracy to defraud and fraudulent mis-representation before he ordered the warrant of arrest to be issued. Secondly, although the point was disputed, it is clear beyond any doubt that the senior public prosecutor of Bochum had been satisfied that there was sufficient evidence to justify criminal proceedings against the appellant. He had to be so satisfied to apply for the warrant of arrest. It is true that there is no evidence that he transmitted the papers to the State Court. But he certainly had decided that there was sufficient evidence for a criminal prosecution against the appellant. Thirdly, and most importantly, there are the terms of the particular Warrant of Arrest. It is true that the German lawyer disputes the translation in certain respects. For my part I find some of his criticisms less than convincing. But I do not have to examine these points. He does not dispute that the warrant of arrest recites that "The accused is charged with the following", and that it then sets out at some length the criminal conduct alleged against the appellant and the statutory provisions under which the charges are brought. In combination these three circumstances point irresistibly to the conclusion that the appellant is a person "accused" under section 1 of the Act of 1989. And he is certainly a person "against whom the competent authorities of the requesting party are proceeding for an offence" within the meaning of article 1 of the Convention.

Conclusion

I would dismiss the appeal.

LORD HUTTON

My Lords,I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. I agree with it and for the reasons which he has given I would dismiss this appeal.

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