Craciun v Ministry of Justice Cyprus

MR JUSTICE GARNHM:

Mr Ion Craciun appeals with the leave of King J against the order for his extradition to Cyprus made by District Judge Coleman on 23 March 2016. Permission to appeal was granted in relation to two of the four grounds initially advanced. Those two grounds were, first, that the District Judge erred in finding that the conduct constituted an extradition offence, and second, that the District Judge erred in finding that the appellant's extradition was not barred by reason of the absence of a prosecution decision.

The background to this case can be shortly stated: on 20 June 2014 a European Arrest Warrant was issued. It is an accusation EAW based on warrants issued by the Larnaca District Court on 13 March 2012 and the Nicosia District Court issued on 6 February 2013. The warrant contains details of two cases involving allegations of what is called "advance fee fraud".

It is necessary to set out a little of what the EAW says about each of those two cases. As to the first case, the EAW says:

"Complaints were filed on 26/2/2011 ... at Larnaca police station by [the complainant's name is given] on behalf of a company as well others who are all farmers ... They sustained [their losses] between January and February 2011 and had fallen victims to computer fraud, and as a result they paid an amount of €34,075.97. As Mr Kailas explained, he had ordered three tractors of €57,000 total amount by means of a specific website on the internet. Further on, the website manager asked him to get in touch with another website which belonged to the company that would transport the three tractors in Cyprus. After he had made contact with the second website on the internet, he was asked to pay as an advance into a bank account in England the amount of 10 per cent of the total value, which he actually did on 16 February 2011 when he paid the amount of €6,810.97. Having checked the dispatch tracking number, it was found that the three tractors had been transported from New York to another town in France. Yet the claimant was asked to pay another amount of 15 per cent, which he carried out on 18/2/11, when he deposited the amount of €17.155 into the same bank account. Thereafter, after he checked he found out that the three tractors had been transported to Milan in Italy. Still, the claimant was asked to pay another amount of 15 per cent, and he deposited €10,110 into the same bank account on 25/2/11. Moreover, the claimant realised that he fell victim to fraud ... Investigations were made by means of Interpol, and it was found out that the bank account where the money had been sent by the claimant belonged to the suspect."

As to the second case, the EAW says the following:

"On 18/4/2011, Mr Marios Pasiolis ... Financial Manager of the company Hellenic Copper Mines Limited, complained that between February and March 2011 the company deposited the amount of £9,900 into the account of the company Shipping Worldwide Company to acquire an excavator, which they never sent. Yet the company receiving money was out of reach and closed the account with Barclays Bank in the United Kingdom. Therefore Mr Pasiolis went to the Economic Crime Investigation Bureau and made a deposition in which certain details were mentioned."

A little later the EAW says the following:

"After his company had made the order in written form, the other company, Transworld Cargos, changed the terms of payment and instead of 10 per cent of advance money and 90 per cent on delivery, they had to pay 35 per cent and 65 per cent. On 15/2/2011 this company was delivered an email from Shipping Worldwide Company in which they got instructions in order to pay 35 per cent of the digger value, namely £3,456, into bank account ending 4307 at Barclays Bank Plc UK, which they did on the same day by means of Eurobank [I interpolate] transfer from the bank account ending 1510. Next day, 16/2/2011, his company was informed via email by Shipping Worldwide Company that they had received the above-mentioned amount and asked them to pay the rest of 65% as they were new customers, and if they wanted the digger to be sent they had to pay the whole amount of money. On 28/2/11, Shipping Worldwide Company sent an email which informed the company that the number of the bank account where they would deposit the amount of 65% had been changed and the new bank account was one ending 1582 at the same Barclays Bank. Indeed, on 1/3/2011, his company transferred from the bank account which had been maintained in Eurobank Cyprus, account ending 1510, the amount of £6,435 (65 per cent) to the above-mentioned account number. After that, his company asked about the delivery of the digger and required the shipping papers, but Shipping Worldwide Company replied that they could not withdraw the second money order as the bank had blocked the bank account. They contacted Barclays Bank in the United Kingdom and the latter was not allowed to provide information for confidentiality reasons. Further on, they addressed to Eurobank Cyprus, which after having conducted an investigation on Barclays Bank in the UK, informed them that regarding the first money transfer of £3,465 the beneficiary of the bank account was not the same person as the name of Shipping Worldwide, and yet as concerns the second money transfer of £6,435, they mentioned that someone had withdrawn the money and closed the bank account."

(Quote unchecked)

A little later in the EAW the following appears:

"As following the dispatch sent by the unit for combating Money Laundering, the British investigator contacting the beneficiary of the bank account, Ion Catalin Craciun, through his lawyer, Grace France from the law firm AZ Law Solutions, but Ion Craciun was unwilling to contact the British investigator or to make a statement on the matter. On 6 February 2013 a court detention order was issued by the District Court of Nicosia against the above-mentioned suspect."

Against that background, Mr Henley for the appellant advances the two grounds of appeal. As to the first, he speaks to his detailed and helpful skeleton argument. Orally he emphasised that there was nothing to link Mr Craciun with the fraud beyond the fact that there was payment of monies, the product of the fraud, into his account. He suggested that the Cypriot judicial authorities were being particularly careful with what they said. He took me to the decision of the House of Lords in Norris v The USA [2008] UKHL 16 at paragraph 91, which reads as follows:

"The committee has reached the conclusion that the wider construction should prevail. In short, the conduct test should be applied consistently throughout the 2003 Act, the conduct relevant under Part 2 of the Act being that described in the documents constituting the request (the equivalent of the arrest warrant under Part 1), ignoring in both cases mere narrative background but taking account of such allegations as are relevant to the description of the corresponding United Kingdom offence."

He also refers me to Dabas v the High Court of Justice of Madrid, Spain, [2007] UKHL 6 at paragraph 48, which if I may say so respectfully is a passage in the speech of Lord Hope to similar effect.

I summarise therefore Mr Henley's submissions on the first ground that the allegation that these monies were paid into his bank account is insufficient in and of itself to justify any proper inference that Mr Craciun was guilty of any offence. Mr Henley says in particular there is insufficient there to make good the necessary mens rea of the offence of fraud and to support any allegation of dishonesty.

As to the second ground, namely that the District Judge erred in finding that the appellant's extradition was not barred by reason of the absence of prosecution decision, Mr Henley argued that the District Judge approached the question improperly. He said in effect that what she was doing was in effect to require the appellant to rebut a presumption that a prosecution decision had been made. He refers to a passage in the judgment of the District Judge under the heading "Section 12A". There, the District Judge said:

"The default position is that the two decisions have been made. Having considered the guidance and the decisions of both Kandola and Supergas, there are no reasonable grounds for me to believe the decision to charge or try has not been taken. There is no evidence which persuades me that I should depart from the default position, and the argument put forward by the RP is nothing more than mere assertion."

That, says Mr Henley, is improperly to reverse the burden so as to place it on the appellant. He refers to the passage in the EAW which I have already set out to the effect that British investigators contacted his client through his lawyer, Grace France, who gave Mr Craciun certain advice in consequence of which Mr Craciun declined to contact the British investigators.

Mr Henley submits that in those circumstances further enquiry was required by the respondent and that what was being advanced by the appellant was not mere assertion. Mr Henley submits that a fair reading of the EAW does not demonstrate that any prosecution decision had in fact been made. Instead, he says it demonstrates no more than that enquiries were continuing.

Ms Julia Farrant appears for the Cypriot authorities. She says in essence that the District Judge was right for the reasons she gave. She says that the District Judge was entitled to accept the argument advanced by Ms Farrant before her that if conduct took place outside the requesting state but has an intended effect within it, the court will consider the conduct took place in the state. The District Judge went on to say that the other requirements of section 64 were satisfied, and she was therefore satisfied that all the offences in the EAW are extradition offences, and there is ample detail in the warrant to satisfy section 2. Ms Farrant took me to some of that warrant to seek to make good that submission.

As to the second ground, Ms Farrant says there was no improper reversal of the burden in the analysis by the District Judge, but on the contrary she correctly identified the test set out in Kandola and applied it to the facts of this case.

I deal with the two grounds in turn: first, as to dual criminality, in my judgment it is plain that the conduct in question occurred in Cyprus, that the victims of the fraud resided in Cyprus and have suffered their financial loss in Cyprus. In my judgment, the conduct complained of would amount in English law to fraud by false representation contrary to section 2 of the Fraud Act 2006. The critical question is whether the EAW sufficiently exposes conduct on the part of the appellant that is sufficient necessarily to link him with the criminal behaviour. In my judgment, it is an inevitable inference of the fact that substantial sums of money, the product of these frauds, were paid into the appellant's bank account; that requests were made to deposit more monies into the accounts promptly after receipt of earlier payments and that on at least one occasion receipt was confirmed within 24 hours; that the appellant was directly involved in this criminality.

I regard it as frankly fanciful to suggest that the man whose account was being used for this purpose repeatedly and in respect of substantial sums of money in and out could be other than alleged to be intimately involved in the fraud. In my judgment, that inference is properly impelled from the facts alleged in the warrant. In those circumstances, I reject the first ground of appeal.

As to the second ground, I was taken by both counsel to the recent decision of the Divisional Court in Puceviciene v Lithuania [2016] EWHC 1862, a decision in which the Lord Chief Justice gave judgment. The following paragraphs are critical: at paragraph 51 the Lord Chief said this:

"We reiterate the guidance given in Kandola which we have summarised at paragraphs 13-15 as to the first stage of the inquiry. In many cases it will be clear from the terms of the warrant that the decisions have been made. That is the end of the matter, unless there is evidence which raises an issue as to whether the decisions have been taken.

I read on from paragraph 54:

"54. In explaining the requirements, it will be necessary to deal with the issue of formality and contingent or conditional decisions. We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review ... There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try.

[...] If that it is not clear from the EAW, the meaning of a decision to charge may have to be explained. In our view, a decision to charge is the decision which is made when there is sufficient evidence under the relevant procedural system to make an allegation that the defendant has committed the crime alleged.

[...]

56. A decision to try is simply a decision where the relevant decision maker ... has decided to go ahead with the process of taking to trial the defendant against whom the allegation is made."

Against that expression of the relevant principles, I turn to look at the EAW in this case. It begins with a preamble that reads:

"the current warrant has been issued by a competent judicial authority. It is therefore requested the apprehension and delivery of the person referred to below on purpose to conducting criminal prosecution or executing custodial sentence or measures involving deprivation of liberty." (Sic)

(Quote unchecked)

Thereafter in the body of the EAW the appellant is referred to on a number of occasions as a suspect. In my judgment, a fair reading of that EAW points irresistibly to a conclusion that a decision has been made to charge the appellant with the offence alleged.

I can see no error in the approach of the District Judge when she came to consider section 12A. She set out the relevant tests with precision and accuracy. She rightly identifies what the default position is, and contrary to the submissions of Mr Henley, I do not read the sentences of her judgment that follow as indicating that she treats the default position as a conclusion which it is for the appellant to rebut. Were that to be the reading of that paragraph of the judgment, it would fly in the face of the preceding paragraphs, which correctly state the appropriate approach. I repeat, I see nothing in that judgment that causes me to believe the District Judge adopted the wrong approach. She was content that the warrant indicated that the relevant prosecution decisions had been taken. In those circumstances, this appeal is rejected.

MR HENLEY: My Lord, just one thing. I completely misled you and mixed up my cases, unfortunately. Lord Goff was in the earlier case in (Inaudible), and quite unusually for those days it was a decision of the Committee of the House of Lords in Norris, no single judge.

MR JUSTICE GARNHAM: Oh, it was a judicial committee's decision, was it?

MR HENLEY: Yes. It is at paragraph 1. It says, "This is the composite opinion of the Committee."

MR JUSTICE GARNHAM: Yes. Then I direct that the transcript, if one is prepared, is amended so as to make those corrections, and I am very grateful to Mr Henley for pointing them out. Thank you.

MR HENLEY: I have no further (Inaudible).

MR JUSTICE GARNHAM: No. Thank you very much.

Anything else?

MS FARRANT: No, my Lord.

MR JUSTICE GARNHAM: Thank you both very much. My genuine thanks to you for making intelligible an area of law which I am only slowly becoming familiar with. Thank you very much.