Jaffar v HM Prison Brixton & Anor

J U D G M E N T

Tuesday 25 November 2003

THE LORD CHIEF JUSTICE:

Introduction

1. This judgment relates to an application for a writ of habeas corpus by Mr Jaffar. I would like at the outset to express my appreciation of the arguments which were advanced by Mr Clive Nicholls QC on behalf of the applicant and Mr Hines on behalf of the respondent. The clarity of their arguments enabled the court to deal with this issue much more expeditiously than would otherwise have been the case.

2. The applicant challenges the order of the Bow Street Magistrates' Court made on 4 November 2002. By that order the applicant was committed to await the decision of the Secretary of State for the Home Department regarding his extradition on five charges of conspiracy to defraud alleged to have been committed between 1987 and 1992. He has since been granted bail.

The Law

3. Extradition from the United Kingdom to Spain is governed by the Extradition Act 1989 and the European on Extradition Order 2001. For the purposes of these proceedings it is necessary to bear in mind that the framework of extradition under those provisions involves five different stages: first, the issue by the Secretary of State of authority to proceed; secondly, possible judicial review proceedings in relation to that authority, if it is granted unlawfully by the Secretary of State; thirdly, a committal hearing before a district judge, of the sort that occurred here and resulted in the applicant being committed to return; fourthly, the making of an order to return by the Secretary of State; and finally, judicial review in relation to the order to return.

4. There are three statutory provisions to which I should refer in relation to those different stages. Section 11(3) of the Extradition Act contains the authority for a person in the applicant's position to make an application to this court for habeas corpus. It provides:

“Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that --

(a)by reason of the trivial nature of the offence; [that has no application here] or

(b)by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; [(b) is important] or

(c)because the accusation made against him is not made in good faith, in the interests of justice [that has no relevance here],

it would, having regard to all the circumstances, be unjust or oppressive to return him.” (my emphasis)

5. Article 10 of the European Convention on Extradition Order 2001 provides:

“Extradition shall not be granted when the person claimed has, according to the law of either the requesting or the requested Party, become immune by lapse of time from prosecution or punishment.”

Article 14, so far as relevant, provides:

“RULE OF SPECIALITY

1. A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited .....”

There are then two exceptions to that general provision to which it is not necessary to refer.

The Background Facts

5. The applicant holds a British passport. He has resided in the United Kingdom with his wife for the last 27 years. He has three children. For certain periods of time the applicant was an officer of both the Kuwait Investment Office (“KIO”) and Grupo Torras SA (“GT”). At one time he was Chairman of KIO. KIO was the controlling shareholder of the Spanish company GT. GT was used by KIO for investment in Spain.

Committal Charge 1 (INPAC)

6. The applicant is accused of conduct which, had it occurred within the jurisdiction of the United Kingdom, would have constituted conspiracy to defraud the shareholders of GT. The five offences in which he is alleged to have been involved are as follows. The first related to a company named Industrias Del Papel Y La Cellusosa SA (“INPAC”). GT owned 100% of Industrial Cartonera SA (“IC”) and 96% of INPAC. In 1987 GT sold IC to INPAC at an undervalue of 2 billion Pesetas. 40% of INPAC was sold on the stock market at a premium because of its acquisition of IC. GT then sold IC to Croesus Ltd, which was a company controlled by GT's management. That sale was at an undervalue of 4 billion Pesetas. Croesus then sold IC to the Smurfit Group for 12 billion Pesetas. The effect of the transaction is alleged to have resulted in an unlawful gain of 8 billion Pesetas by the applicant and others.

Committal Charge 2 (Croesus)

7. In June 1988, a transfer of US $27.4 million was authorised from KIO to GT by the applicant. It is alleged that it was authorised under the guise of a loan to GT to enable it to pay for services which had been rendered. The money was not, in fact, transferred to GT but entered into an account controlled by the applicant and others. To disguise the transfer, a fictitious credit was made by GT to Croesus for US $25 million. The “loan” to Croesus was then written off in July 1991.

Committal Charges 3 and 4 (Oacthorn)

8. In July 1989 and June 1990, Torras Hostench London transferred US $55 million and US $50 million to Oacthorn, a company with registered offices in Jersey. The money was never returned and was traced into accounts controlled by the applicant and others. In the meantime, GT assumed responsibility for the “loans”, and the loans were never repaid.

Committal Charge 5 (Pincinco)

9. This was an “umbrella” charge of conspiracy to defraud the shareholders of GT by dishonestly misappropriating funds from GT and its subsidiaries.

The Spanish Proceedings

10. The activities of the applicant, Mr de la Rosa, the vice-chairman of GT, and others were investigated by the authorities when the management of GT changed in 1992. The new management filed criminal complaints against the applicant, Mr de la Rosa and others on 8 January 1993 in respect of committal charge 1 (INPAC).

11. 1The applicant was summoned to appear before the Spanish courts on 4 May 1994. He failed to appear.

12. The ambit of the initial criminal complaints was extended on 18 November 1996 by the Spanish prosecutor to include committal charges 2, 3 and 4 to which I have referred.

13. A preliminary hearing was held in the Criminal Division of the National Court of Justice in Madrid, on 25 March 2003. The Spanish court passed resolutions on 11 April 2003 in relation to ten of the eleven defendants and the issue of limitation (a bar on proceedings).

14. Included in the papers before us is a translation of an order which was made on 28 July 2003. It reads, so far as relevant, as follows:

“THE PROSECUTOR, having been notified of the court order of 16 July 2003 by which notice was served of the documents sent by the competent UK judicial Authorities regarding the extradition of FOUAD KHALED JAFFAR states:

1. That Criminal Proceedings 67/93 were instituted by the Central Examining Court No 3 of the National Court of Justice [Audiencia Nacional] on the charges described in Court Order No 2 of 2 December 1989, 29 December 1989 and 13 July 2000.

The trial concerning court record TCSA-INPACSA, which also included operation CROESUS, started on 25 March 2003.

The counsels for the defence brought several 'prior issues' forward, among them, that the prosecution of the offences could [have] become barred by reason of lapse of time.

On 11 April 2003, an answer was given by the Criminal Division of the National Court of Justice to the above mentioned 'prior issue', according to which, on careful consideration of the dates in which the alleged offences took place, and of the dates in which statements were taken from persons against whom charges were brought later on ,it was decided that the status on limitations should be applied as follows.

1. As regards Operation ICSA-INPACSA, only to persons whose statements as 'accused' had not been taken before November 1996, and who, judging from the facts described in the complaint, were neither involved nor aware of the illicit activities, given their position within the company.”

For the purpose of these proceedings Mr Nicholls does not dispute that, because of paragraph 1 of the order, in relation to charge 1 (INPAC), there was no decision that that charge was time-barred as against the applicant. The order continues:

“However, prosecution has not become barred by lapse of time for those who were mentioned in the complaint as involved in the facts described therein. FOUAD KHALED JAFFAR is one of them.

This person, being aware of the charges against him, has never appeared before this court, and this is the reason why his statement as accused has never been taken and the extradition request has been filed.

In the records, folios 369-370, that is a document written by FOUAD KHALED JAFFAR, by means of which he became party to the proceedings, later on his representatives submitted several documents.

He was summoned to give his statement on 4 May 1994, but he failed to appear.

This all means that the decision made by the Criminal Division of the National Court of Justice on the application of the statute of limitations does not affect this person, whose extradition has been requested.

2. As regards Operation CROESUS, the Criminal Division of the National Court of Justice, prosecution has become barred by lapse of time, given that the facts described happened between 1988 and 1990, and they were described for the first time in a document written by the Public Prosecutor dated 18 November 1996. This means that these facts were not included in the complaint, and prosecution was therefor barred by lapse of time.

However, this Agreement, which must be included in the judgment that will be passed once the Operation ICSA-INPACSA trial is over, is not final. An appeal can be filed against it before the Supreme Court. Both the Public Prosecutor and the private prosecutor protested against the Agreement, and announced their intention to file an appeal against such decision.

On the other hand, other separate court records called Operation PINCINCO and OAKTHORN, among others, are awaiting trial. The extradition of FOUAD KHALED JAFFAR is requested in all of them, and the Criminal Division has made no statement in this regard as the trial has not started.

On consideration of the above said, prosecution of the offences for which extradition is requested has not become barred by lapse of time, except for Operation CROESUS, although the decision is not final.”

Although the language of that order is far from clear, Charge 1 (INPAC) is not time-barred so far as the applicant is concerned. The Croesus charge is time-barred in relation to the application. The position with regard to Oacthorn (charges 3 and 4) is not clear. The position with regard to Pincinco is not clear.

15. That document was followed by a document dated 29 July 2003, made by the court in Madrid, which was ordered and signed by the judge. It reads:

“Due consideration has been taken of the Prosecutor's report, which has been attached to the aforementioned criminal proceedings [Procedimiento Abreviado], and it is to be submitted to the competent judicial authorities in the United Kingdom for their consideration. It should be noted that the prosecution of the offences the extradition request was based on has not become barred by lapse of time, except for Operation Croesus, although no final decision has been reached in this regard. The Prosecutor's report, together with the present Order, is to be submitted to the Translation Department for its URGENT translation.”

16. The Spanish court duly acquitted some of the defendants in relation to Charge 1 (INPAC) because of the lapse of time. Secondly, all other defendants were acquitted of Charge 2 (Croesus) on the ground that the proceedings were time-barred. The applicant was not formally acquitted with the others of his alleged involvement in Charge 2 because he was absent. However, a preliminary issue could be taken were he to be proceeded against. It has not been suggested before us that there is any distinction between the position of the ten defendants who have been acquitted and the applicant, apart from the fact that he was not before the court.

United Kingdom Extradition Proceedings

17. The Secretary of State issued an authority to proceed on 20 November 2001. The applicant was then arrested and released on conditional bail. The authority to proceed was quashed as a result of an application for judicial review on 21 May 2002 on the ground that two of the eight listed offences were not extradition crimes. That was an example of the second type of proceedings that could arise to which I referred earlier.

18. On 26 April 2002, the Secretary of State issued a second authority to proceed. By mutual agreement, the applicant attended Bow Street Magistrates' Court on 24 May 2002, where he was arrested and again released on conditional bail.

19. The committal hearing took place on 4 November 2002 initially in relation to the four charges of conspiracy to defraud and two charges of fraudulent trading. At the hearing, the fraudulent trading charges were withdrawn and an “umbrella” charge of conspiracy to defraud was added, that being Committal Charge 5 to which I have already referred.

20. Mr Nicholls advances the case on behalf of the applicant under two heads: first, under section 11(3)(b) of the statute; and second, under the inherent jurisdiction of the court. He submits that, having regard to the fact that the committal charges in four of the five cases (excluding the first) are time-barred, they are not subject to extradition by virtue of Article 10 of the European Convention on Extradition. Secondly, he submits that by virtue of the passage of time and with regard to all the circumstances it would be unjust and/or oppressive for the applicant to be returned to Spain under section 11(3)(b).

21. There are further issues, the first of which is: due to the expiry of a limitation period in a Convention case, is there a free-standing right to apply for, and be granted, habeas corpus even if the limitation period applies to only four of the five charges? Secondly, if the inherent jurisdiction of the court is being invoked, can the court grant relief in respect of four of the five charges, assuming that the fifth charge (Charge 1) is a charge in respect of which a committal order could appropriately be made?

22. Apart from the matters to which I have already referred, the applicant had obtained from Mr Diaz-Bastien evidence on Spanish law in relation to limitation. Mr Diaz-Bastien refers to the relevant provision of the Spanish Penal Code, and in his evidence he draws attention to the fact that in respect of the first charge the period of limitation was reduced to five years only because it was a charge which did not involve multiple victims. He submits that Committal Charges 2, 3 and 4 were properly regarded as being time-barred here.

23. As to which Charges are time-barred (apart from Croesus), the evidence before us is not clear. Nor is it clear what would happen if there is a prosecution appeal in relation to any of those charges. It seems to me that, unless there is some purpose in so doing, this court should avoid entering into the respective merits of the orders of the Spanish court, to which I have referred, and the expert evidence on Spanish law by the applicant's witness. Because of time considerations the respondent to the application, the Spanish Government, have not had sufficient time to deal with that issue. They have not placed before this court any expert evidence.

24. I do not consider that it is necessary at this stage to go further into the issue as to the effect of limitation. This case can appropriately be determined on the assumption that the charges are time-barred. If all five charges had been time-barred, it is accepted by Mr Hines that under section 11(3)(b) it would be oppressive to send the applicant back to Spain. In my view that concession is properly made. If proceedings could not be continued against the applicant in Spain, it would be wrong to subject him to having to go to Spain in order to contest proceedings which are bound to fail. However, if the proceedings are taken with appropriate authority under the statutory provisions to which I have referred, and only four of the five charges are possibly time-barred, that is a different situation.

25. The order made by the district judge to commit the applicant would be a valid order, since it is conceded that it was made with jurisdiction and it is conceded that it was supported by the appropriate evidence. Each charge could have given the district judge the jurisdiction to make the committal order which he did. The fact that one charge survives makes the position clear.

26. It is relevant to refer to In the Matter of Debs [1998] EWHC Admin 271 (6 March 1998). The leading judgment was given by Kennedy LJ and Maurice Kay J agreed with it. Kennedy LJ concluded his judgment as follows:

“The applicant's challenge having failed both in relation to the 1987 and in relation to the 1988 offences it is not necessary for me to decide what our order would have been if he had succeeded in relation to one of the offences and not in relation to the other but, as both counsel did address us in relation to that issue, it may be helpful if I say that having regard to the wording of section 11(3) I am wholly satisfied that this court should only order discharge if persuaded in relation to 'each of the offences in respect of which the applicant's return is sought that .... it would be unjust or oppressive to return him'. In other words there can be no order for discharge unless the challenge succeeds in relation to every offence. On the other hand, as Mr Lewis points out, it would be unthinkable for the Secretary of State when making an order for return pursuant to section 12 of the 1989 Act not to have regard to a finding of this court that in relation to one or more offences the requirement of section 11(3) has been satisfied, and the court had held that so far as those offences were concerned it would be unjust or oppressive to order return.”

That passage is clearly obiter, but Mr Nicholls, rightly in my view, does not seek to challenge the accuracy of that dicta. It is relevant because it confirms that a committal on one charge of the five is perfectly in order. That is subject to the separate argument which I have to consider which is advanced on the basis of section 11(3)(b).

27. The court has an inherent jurisdiction, as the language of section 11(3) makes clear. The extent of that inherent jurisdiction was considered by this court in In the Matter of Lorrain Esme Osman (28.2.92). Having regard to the language of section 11(3) the inherent jurisdiction which remains in the court is limited. I would not wish to try and set out the parameters of that jurisdiction. It is sufficient that it is appreciated that it is confined. However, it would be most appropriately engaged in a case where what is being relied upon is some want of jurisdiction either of the Secretary of Stage in giving a notice to proceed or a want of jurisdiction by the committing magistrate or district judge (as would now be the case). The reason I take that view is not only based upon the language of the Extradition Act itself, but the practical realities of the whole process which the Extradition Act lays down. The fact that further steps must take place after the committal proceedings means that in many situations it would be more appropriate for any issue arising as to the propriety of what happened, which does not fall within section 11(3), to be taken either by the Secretary of State himself before making the order for return, or, if necessary, on an application for judicial review in relation to his order.

28. Mr Nicholls submits that if a person is entitled to have a favourable decision from the court, then the court should grant him that decision at the first available opportunity. However, the procedure of habeas corpus is not always ideally suited to resolve the sort of issue which exists here as to whether particular charges are time-barred or not. That sort of issue is one which the Secretary of State is required to determine. He will be in a better position to consider the facts than this court would be today. It is therefore more appropriate that the issue should be resolved by him than now before this court. Justice is more likely to be done if the matter is dealt with as part of the remaining processes to which I have made reference.

29. It is critical, therefore, in relation to the first charge (INPAC), to consider the words of section 11(3)(b):

“by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be ....

it would, having regard to all the circumstances, be unjust or oppressive to return him.”

Mr Nicholls submits that in this case it would be oppressive and unjust to return the applicant. He points to the fact that fifteen years have now elapsed since the offence is alleged to have been committed. He further relies on the fact that two witness have died. He identifies the dates on which they died and the evidence which they would have given. It is right to point out that their evidence would only be corroborative of the evidence upon which the applicant relies, which he could give himself. Their evidence relates to matters within his knowledge.

30. In addition, although a long period of time has elapsed, it must be borne in mind, first, that these are serious charges. In relation to Charge 1, with which I am primarily concerned, the amount of money which is alleged to have been the subject of the fraud was very substantial indeed. The nature of what is alleged against him has been known by the applicant for a substantial time. It has been the subject of complex civil process in this jurisdiction before the Commercial Court between 1993 and 1999 (or thereabouts). There is no doubt, as is accepted by Mr Nicholls, that the applicant's alleged responsibility would largely depend upon documentary evidence rather than oral evidence.

31. Looking at the situation as a whole, I have come to the conclusion that it would not be unjust or oppressive to order the applicant's return. The lapse of time in a complex matter of this sort does not have as great a prejudicial effect upon him as it would be in different types of proceedings. It is accepted in this case that the Spanish authorities have not dragged their feet, or otherwise failed to proceed with due expedition. It is also accepted that they are acting in good faith. I have therefore come to the conclusion that the application for habeas corpus should be refused.

32. It should not be thought because of anything that I have said that the applicant is in fact guilty of the offences for which extradition is sought. My decision only means that he is liable to be extradited in regard to those proceedings. Nor am I deciding the issue of limitation or non-limitation. Subject to the decision of the Secretary of State (or any other court proceedings in this jurisdiction), any question of limitation in respect of the charges where there is a dispute will, in my view, be more satisfactorily determined by the Spanish courts.

33. MR JUSTICE MACKAY: I agree.

34. MR HINES: My Lord, in the circumstances I have an application for the respondent's costs. I have a figure of £4,395.

35. MR NICHOLLS: My Lord, I cannot resist that application.

36. THE LORD CHIEF JUSTICE: So be it. Thank you very much.