Ahmed v Swedish Economic Crime Authority

This is an appeal by Shiraz Ahmed (“the appellant”), now aged 39, against the order of District Judge Zani sitting in the Westminster Magistrates' Court on 16 May 2016 ordering his extradition to Sweden pursuant to an accusation European Arrest Warrant ("EAW"). The EAW was issued on 10 November 2015 and was certified on the same day by the National Crime Agency. The respondent judicial authority is Christina Rallsjö, a public prosecutor at the Swedish Economic Crime Authority. In response to questions raised on behalf of the appellant, she provided further information in a letter dated 3 March 2016. Sweden is a category 1 territory for the purposes of Part 1 of the Extradition Act 2003 (“the 2003 Act”): see The Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (SI 3333 of 2003) as amended.

In the present case, the EAW concerns allegations that the appellant and others were involved in a fraudulent missing trader VAT scheme relating to the purported purchase and sale of mobile telephones which risked the loss to the Swedish state of approximately 25 million Swedish kroner. Box (e) of the EAW states that the warrant related to two offences: ‘gross tax crime or complicity in gross tax crime’ and ‘gross bookkeeping crime or complicity in gross bookkeeping crime’, each of which carries a maximum sentence of six years on conviction. It is stated the first offence was committed by the appellant, Ibrahim Soleiman, who has been detained in Sweden since November 2015, and others, and the second offence by the appellant and Ibrahim Soleiman.

Permission to appeal against the order of the District Judge was sought on five grounds but was refused on the papers by William Davis J on 12 October 2016. At a hearing on 22 November 2016, King J granted permission on three of the grounds. These are that the EAW was made in order to interrogate and investigate the appellant rather than to prosecute him and was therefore invalid (“the section 2(3) question”); that the need for investigation of crucial matters meant that there had been no decision to charge and to try the appellant (“the section 12A question”); and that surrendering the appellant to Sweden would breach his rights under Articles 3 and 5 of the European Convention on Human Rights (“the ECHR question”). They can be summarised as follows.

The section 2(3) question: Section 2(3) of the 2003 Act requires the EAW to contain a statement that it is issued “with a view to [the] arrest and extradition [of the requested person] to the category 1 territory for the purpose of being prosecuted for the offence”. It was submitted by Mr Carter QC on behalf of the appellant that the language of the EAW requesting the appellant is equivocal, in particular in boxes (f) and (g), and that the extraneous evidence shows that the EAW was invalid because it was issued for an investigation and not for prosecution of the alleged crimes. Mr Carter maintained that the extrinsic evidence showed that the investigation was at a critical stage; that, while there was a “desire” to prosecute, on the material which the prosecutor had at the time the EAW was issued it could not be said that the appellant could be prosecuted or that a “decision to prosecute” had been made.

The section 12A question: Section 12A of the 2003 Act, inserted by section 156 of the Anti-Social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”), makes provision for a bar to extradition additional to those found in the Framework Decision designed to prevent premature requests for extradition. It provides that a person's extradition to a Category 1 territory is barred by reason of “absence of prosecution decision” if and only if: (a) it appears that there are reasonable grounds for believing that the competent authorities in the territory have not made a decision to charge or to try that person and the person's absence from that territory is not the sole reason for that failure; and (b) those representing the territory do not then prove that the authorities in the territory have made a decision to charge and a decision to try or, where one of those decisions has not been made, the person's absence from the territory is the sole reason for the failure to make such a decision.

The question is whether this bar to surrender applies in the appellant’s case. It has three limbs. The first is whether the Swedish authorities made a decision to charge the appellant. The second is whether they made a decision to try him. Assuming a negative answer to either of the other questions, the third question is whether the appellant’s absence from Sweden is the sole reason for the failure to make the decision to charge or to try him. At issue is the judge’s approach to the bar in section 12A and to the evidence. Mr Carter submitted the judge’s approach was erroneous. He maintained that the evidence about the position when the EAW was issued and when the judicial authority provided further information showed that, while “the purpose” of seeking the appellant’s extradition was to try him, the state of the investigation and what was said by the prosecutor about the information and evidence that was sought from this country through Mutual Legal Assistance and the EAW at the material times showed that no “decision” to try him had been made. The fact that the judicial authority had not interviewed the appellant prior to the extradition hearing despite his willingness to be interviewed showed that his absence from Sweden was not the only reason the decisions to charge and to try him had not been taken.

The ECHR question: The third question is whether extradition would be compatible with the appellant’s rights under Articles 3 and 5 of the ECHR, and whether the judge erred in concluding that it would be compatible with those rights. Section 21A of the 2003 Act, inserted by section 157 of the 2014 Act, requires a judge considering extradition to decide whether the extradition would be compatible with the rights under the ECHR and whether it would be disproportionate. Section 21A(4) requires the judge considering the EAW to order the discharge of the requested person if he or she finds that the extradition would not be compatible with those rights or would be disproportionate.

Mr Carter submitted that the regime in Sweden for pre-trial detention which involves extended isolation and restrictions on the receipt of mail and exercise falls systemically short of the standards required by the prohibition in Article 3 of the ECHR of “inhuman or degrading treatment”. He maintained that the conditions in which individuals such as the appellant would be held are not susceptible to effective challenge in the courts, and thus he faces the real risk of a breach of his right under Article 5(4) of the ECHR as well as an inability to secure redress for conditions which amount to a breach of Article 3. Mr Carter relied on, in particular, a report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment dated February 2016, but also referred to other reports including those by the Office of the UN Human Rights Commissioner in March 2016 expressing concern about the absence of a limit for pre-trial detention and the US Department of State in 2015 about restrictive conditions. He relied on what he described as Sweden’s failure to respond to criticism of its pre-trial detention regime for a period of some 24 years.

Before turning to the details of the EAW and the challenges to the judge’s approach and conclusions, I observe that the 2003 Act implements the EU Council's Framework Decision on the European Arrest Warrant, (2002/584/JHA of 13 June 2002) which created a fast-track extradition arrangement within the EU. Recital (10) to the Framework Decision states: “[t]he mechanism of the European arrest warrant is based on a high level of confidence between Member States. …” and Article 1(2) provides that “Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision”. In Zakrzewski v Regional Court in Lodz, Poland [2013] UKSC 2 , [2013] 1 WLR 324 the Supreme Court stated that in the case of a valid EAW one of the two safeguards against an unjustified extradition is this mutual trust between states and the assumption that if statements and information in the EAW are incorrect either the warrant will be withdrawn or it will be corrected by the provision of further information, with or without a request by the English court. The other, which it was not suggested arises in this case, is the power of the English court to prevent abuse of its process. As well as proceeding on the basis that the statements of judicial authorities which have issued a valid EAW should be accepted unless there is clear evidence of bad faith or impropriety, Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) shows that this court proceeds on the basis of a strong presumption that Member States of the EU and the Council of Europe and the Courts of those states will fulfil their obligations under the ECHR.

For the detailed reasons I give in section IV of this judgment as to the operation of these principles in the particular circumstances of the appellant’s case, I have concluded that this appeal should be dismissed on all three grounds.

The opening words of the EAW contain the statement that is in the template form in the annex to the Framework Decision. This is that the requesting judicial authority requests “that the person mentioned below be arrested and surrendered for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order”. Box (b) states that the warrant is based on an “arrest warrant issued in absentia” by the Södertörns District Court on 10 November 2015. The offences relate to a company, Virotel AB.

The first of the two offences specified in box (e) is gross tax crime contrary to section 4 of the Swedish Tax Offence Act 1971 and chapter 23 section 4 of the Swedish Penal Code or complicity in such. It is alleged that the appellant and others, including Ibrahim Soleiman, committed gross tax crimes in Stockholm and Malmo in Sweden involving Virotel AB between October 2014 and November 2015. Box (e) states that Mr Soleiman, as representative of Virotel AB, intentionally submitted or had another person submit Virotel’s tax declarations to the Swedish tax authorities claiming VAT deductions based on false invoices by fictitious companies; the missing traders. It is stated that the appellant took part by representing the foreign sellers UKGT Ltd and UKGT SIA; participating in the execution of the fraud; involvement including directing and controlling the cash flows of the missing trader companies; issuing false invoices, and concealing the fact that Virotel AB was the actual buyer. The potential loss to the state was stated to be about 25 million Swedish Kroner.

The second of the two offences specified in box (e) is gross bookkeeping crime contrary to chapter 11 section 5 of the Swedish Penal Code together with chapter 23 section 4 of the Swedish Penal Code or complicity in such. The circumstance of the alleged offences and the time, place and degree of participation in the offences by the appellant are stated to be that the appellant issued and provided Mr Soleiman with false invoices showing a total of 118 million Swedish Kroner, which Mr Soleiman wrongfully and neglecting his bookkeeping obligations entered in Virotel AB’s accounting records, creating misleading accounts so that the course of the business could not be assessed from the accounts.

Box (f) states “in order to protect the Swedish criminal investigation, we request Mr Shiraz be refused visitors, the use of a telephone, to interact with others or to receive letters or any other items of mail”. Box (g) states that the warrant pertains also to the seizure and handing over of property which maybe required as evidence. This refers to mobile telephones, computers, other digital data storage devices and other written documents.

Before the District Judge, evidence on behalf of the appellant was given by Staffan Bergqvist, the appellant’s Swedish criminal defence lawyer, Daniel Roos, a Swedish lawyer who specialises in criminal defence, the appellant, his wife, Ms Asiah Ahmed, and his sister, Ms Shazma Ahmed. The judicial authority provided further information dealing with the matters in the two Swedish lawyers’ evidence in a letter dated 3 March 2016 from Christina Rallsjö, the public prosecutor at the Swedish Economic Crime Authority who issued the EAW.

The appellant and his family gave evidence about their concerns should the appellant be detained, his mother’s ill health, and the emotional and financial reliance of the mother, wife and sister on the appellant.

The two Swedish lawyers state that they believe that the prosecutor has not made a decision to prosecute. Mr Bergqvist states that the prosecutor has decided to start an investigation and to file a motion to have the appellant detained and extradited, and that he believes the prosecutor will need to obtain more evidence. Mr Roos states that the decision to prosecute has not been taken because that decision must be taken after the person of interest has been interviewed. They both comment on the pre-trial detention and isolation to which the appellant may be subject and its conditions. Mr Bergqvist states that this could be for longer than 6-8 weeks, and Mr Roos states that there is no limit to such detention which may be at least 6 months.

The judicial authority’s letter states that the English term “decision to charge” is “not directly applicable to the Swedish law of procedure”, and disagrees that “decision to charge” is the same as “prosecute” in Swedish law. Ms Rallsjö states that she considers that presentation of the offences to the Södertörns District Court, and the Court’s detention order, and the fact the EAW has been issued and the appellant notified of the charges against him constitutes a “decision to charge”. She states that she decided that the appellant “should stand trial for the offences” and that “it was with this intent” that she “decided on issuing the EAW in relation to these offences”.

The judicial authority’s letter also deals with questions raised as to pre-trial detention and the criticism to which Sweden has been subject for its use of such detention and the absence of a maximum period. The letter states that the appellant will face a high risk of pre-trial detention if surrendered. As to isolation it is stated that while the prosecutor has a right after a court’s decision to impose restrictions on a detained person if there is a risk that he or she will impede the inquiry, in the appellant’s case there will be no restrictions on him regarding contact with the outside world by watching TV, reading newspapers, books, magazines etc and that he will also be able to send and receive letters but all correspondence will be read through by the prosecutor. As to telephone calls and having visitors, a request must be made and the letter states that it is very rare that a visit or a telephone call is denied, although they would occur in the presence of an investigator. The letter states that it is also possible for a person in pre-trial detention to request to be with another detained person selected by officials at the detention centre for a few hours a day. The letter states that in theory there is no maximum period for pre-trial detention, but the court has to reconsider the detention every other week at a court hearing. At such hearings the principle of proportionality is considered and the prosecutor has to inform the court about the progress of the investigation and why it is still necessary to keep the person detained.

(a) The section 2(3) question: “for the purpose of being prosecuted”: After reviewing a number of the authorities, the judge rejected the argument (summarised at [66]) that the EAW in this case was sought for the purposes of interrogation with a view to obtaining evidence for a prosecution and not “for the purpose of being prosecuted”. He stated (at [67]) that, adopting a cosmopolitan approach to the EAW and its language, the requirements of section 2(3) were satisfied. He added that, while reference to extraneous information and evidence is not to be encouraged, if such information is to be considered, the information provided by the judicial authority makes clear that the appellant’s return is sought to face trial.

The first stage of Mr Carter’s submissions on this was that the EAW does not unequivocally show that its purpose is for the appellant to be prosecuted for the offences identified in it. In the light of the decision in Kandola v Generalstaatwaltschaft Frankfurt Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097 at [58] he was unable to rely on the declaration at the beginning of the EAW set out at [11] above. It is plain from the EAW that no trial has taken place and that this is an accusation EAW. At the core of his argument was the reference in box (f) to what was needed “in order to protect the Swedish criminal investigation”, and that box (g) contemplated handing over mobile telephones and other items which may be required as evidence. He submitted that these show that the real reason for issuing the EAW was for the purpose of an investigation with a view to obtaining evidence for a prosecution rather than for the purpose of being prosecuted.

I reject these submissions. It is clear from the decisions of this court in Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) (presided over by the then President of the Queen’s Bench Division), Puceviciene v Prosecutor General’s Office of the Republic of Lithuania [2016] EWHC 1862 (Admin), [2016] 1 WLR 4937 (presided over by the Lord Chief Justice), and Pakstys v Prosecutor General of the Republic of Lithuania [2017] EWHC 47 (Admin) that it is possible for an investigation to continue although a decision to prosecute has been made.

Assange’s case (at [140]) approved the statement in Judicial Authority of the Court of First Instance, Hasselt, Belgium v Bartlett [2010] EWHC 1390 (Admin) at [50] that “the investigation must have reached the stage at which the requesting judicial authority is satisfied that [the requested person] faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial”. Sir John Thomas PQBD stated that the terms of the EAW in Assange’s case:

Since the EAW is unequivocal, it is not necessary to consider the extraneous material. But since the judge did so and we heard full submissions on it (which often elided the question whether the EAW is equivocal and the meaning of the extraneous evidence), I deal with it shortly. I start by observing that the way the argument on behalf of the appellant was structured in substance sought to use the extrinsic evidence to introduce a possible doubt as to the purpose for which the EAW was issued in the way that this court in Asztaslos v Szekszard City Court Hungary [2010] EWHC 237 (Admin), [2011] 1 WLR 252 at [38(6)] said should not happen. Indeed, the written and oral submissions on behalf of the appellant sought to do this by transposing terms of law from the Swedish criminal process in translation without taking account of the fact that in Sweden those words do not have the same meaning as they do in English proceedings. This is contrary to the longstanding guidance, dating back to In re Ismail [1999] 1 AC 320 at 326 – 327 per Lord Steyn that it is necessary to adopt a “cosmopolitan” approach and to consider the relevant question as a matter of substance rather than as a matter of form: see also Assange v Swedish Prosecution Authority at [135] – [136] (in relation to the term “accused”).

The judge did not, as was suggested, disregard the evidence of Messrs Bergquvist and Roos: he set it out at [13] – [33]. Moreover, he was entitled to rely on the judicial authority’s statement (see [18] above) that she decided that the appellant should stand trial for the offences and that it was with this intent that she decided on issuing the EAW. As was stated in Puceviciene v Prosecutor General’s Office of the Republic of Lithuania [2016] EWHC 1862 (Admin), [2016] 1 WLR 4937 at [58] the statement of the judicial authority as to the making of the decisions should be accepted by the judge considering the matter unless there is clear evidence of bad faith or impropriety. There is no evidence of bad faith or impropriety, let alone clear evidence, and the judge was entitled to prefer the evidence of the judicial authority to that of Messrs Bergquvist and Roos.

The section 12A question: The judge stated (at [70] - [71]) that the first stage of the two stage test in Kandola v Generalstaatwaltschaft Frankfurt, Germany [2015] EWHC 619 (Admin), [2015] 1 WLR 5097 involves consideration of whether there are reasonable grounds for believing that at least one of two decisions, that is the decision to charge and the decision to try the requested person, had not been taken. If that is so, the second stage is to ask whether either of the decisions have been taken and, if not, whether the absence of the requested person from the category one territory is the sole reason for that failure. The judge stated (see [79] - [80]) that, if it is clear from the terms of the EAW itself read as a whole that the decisions had been taken, the judge should look no further because he or she “is entitled to rely on the statements made in an EAW by a fellow Judicial Authority” and must treat any statement of the relevant judicial authority “with a high degree of trust and confidence”. He concluded (at [87]) that in this case “there is insufficient evidence to consider that either of the decisions (to charge and/or to try) has not been taken. That therefore, is an end to the argument”.

In case he was wrong on that, the judge also considered whether the two decisions had in fact been taken and whether, if they had not, the sole reason for the failure was the appellant’s absence from Sweden. He referred to the judicial authority’s letter (albeit mistakenly stating that it was dated 6 March 2016 rather than 3 March 2016) in which Ms Rallsjö stated that she did not accept the position taken by Daniel Roos and a person named as Per Branting that the decision to charge is the same as the decision to prosecute. He referred to the decision of Bashir Ahmed v Public Prosecutor of Landshut Germany [2016] EWHC 400 (Admin) in which it was stated that it cannot be said that a decision to charge has not been taken because there has been no formal decision to charge. He then stated (at [89]) that the prosecutor’s position was clear: “she says she has taken the decision to charge and that [Shiraz Ahmed] is to face trial in Sweden for the allegations set out in the EAW” (emphasis in original). His conclusion (at [92] and [93]) is that the unequivocal information provided by the judicial authority was that the decision to charge has been taken and that the appellant is wanted to stand trial for the matters in the EAW, and that section 12A does not act as a bar to this extradition request.

The judge also stated (at [91]) that the appellant had failed to discharge the burden upon him “to demonstrate that there are reasonable grounds to believe that the absence of [Shiraz Ahmed] from Sweden is the sole reason for either of the decisions (to charge and try) not to have been taken”. Since section 12A(1)(a)(ii) states that the bar to extradition applies if “the person’s absence from the Category 1 territory is not the sole reason for” the failure to make the decisions, it would appear that the judge omitted the word “not” from the passage from [91] that I have set out.

The approach to section 12A of the 2003 Act was considered in Puceviciene v Prosecutor General’s Office of the Republic of Lithuania to which I have referred at [23] and [25] above and the present appeal was stayed pending judgment in that case. Puceviciene’s case shows:

There is “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”: [54].

“[A] decision to try is nonetheless a decision to try even if it conditional or subject to review”; and there will be a decision to try “even if it is taken subject to the completion, after extradition, of formal stages, such as an interview…”: [54].

“As the decision [to charge] can be conditional upon hearing what the defendant has to say, such a decision can have been made even if it is necessary to put the allegation to the defendant and hear what he has to say before confirming the decision and proceeding to make the charge”: [55].

“In some systems, it may be the case that the decision to make the allegation that the person has committed a criminal offence will also be a decision that the matter will proceed to trial, subject to hearing what the defendant has to say or to subsequent review”: [56];

“[T]he provision of expert evidence from lawyers should be very rare indeed. It is no part of the function of the extradition court to embark upon an investigation of the legal niceties in the jurisdiction of the requesting judicial authority. It should not seek to resolve apparent conflicts of opinion about the meaning of foreign law”: [62].

For the reasons I have given when discussing “the section 2(3) question”, there is nothing equivocal about the EAW in this case. I have referred (see [18] and [27] above) to the clear statement by the prosecutor that she had made her decision and that there is no evidence at all let alone “clear evidence” of bad faith or impropriety on her part as this court has required if it is to reject statements by the judicial authority that it has made the decisions. The judge was correct to find that there were no reasonable grounds for believing that the decisions to charge and to try had not been made. The authorities show that a decision to charge and to try can have been made even where it is conditional or subject to review. The complexity of the case and the indication by the prosecutor in this case that, at the time the EAW was issued, multiple interviews may be required does not undermine her statement that she had made the decision to bring the appellant to trial. Nor does the fact that, at the time the warrant was issued, progress might be affected by the cases of the others involved (for example, the co-defendant Ibrahim Soleiman) preclude the taking of a decision to charge and try. In this case, that possibility will not materialise because Ibrahim Soleiman has since been prosecuted and convicted.

The ECHR question: The judge rejected the submission that the extradition would not be compatible with the appellant’s rights under Article’s 3, 5 and 8. I deal only with Articles 3 and 5 because permission to appeal was not granted on the ground concerning Article 8.

In respect of Article 3, the judge stated (at [98] - [99]) that the restrictions that the judicial authority had stated were likely to apply to Shiraz Ahmed in the event of his return and detention in Sweden did not come close to satisfying the test in Krolik v Regional Court in Czestochowa, Poland [2012] EWHC 2357 (Admin), [2013] 1 WLR 490 to the effect that there is, effectively, an international consensus of opinion that rebuts the presumption that the requesting territory will abide by its international obligations. In respect of Article 5 and the length of pre-trial detention, the judge stated (at [101] - [102]) that the further information made it clear that the appellant would have the unequivocal right to ask that his continued detention is examined by a court every two weeks and that the judge was satisfied that any deprivation would be in accordance with the procedure set out in Swedish law and subject to this regular examination by a Swedish court. As to proportionality, at [121] the judge stated that as the allegations are serious and the conduct would likely result in a prison sentence of some length in the United Kingdom, extradition is not disproportionate in this case. For those reasons the judge concluded at [122] that the extradition of the appellant would be entirely compatible with his Convention Rights and that, as a signatory to the ECHR, he was satisfied that Sweden would abide by its obligations.

I have referred to the principles of mutual confidence and equivalent protection by states which are members of the Council of Europe and of the EU and the statement in Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) at [50] that such states “are presumed to be able and willing to fulfil their obligations under the ECHR in the absence of clear, cogent and compelling evidence to the contrary”. What needs to be shown is “a real risk of the requested person being subjected to torture or inhuman or degrading treatment or punishment”. It was also stated that the presumption is of even greater importance and strength in the case of Member States of the EU. Elashmawy’s case re-iterated the approach stated in Krolik v Regional Court in Czestochowa, Poland [2012] EWHC 2357 (Admin), [2013] 1 WLR 490 in which it was stated that what was required was evidence of an international consensus rebutting the presumption of compliance.

On the evidence before him, in particular the information provided by the judicial authority in the further information of 3 March 2016, the judge was correct to conclude that the conditions of detention to which the appellant will be subject do not risk breaching his rights under Articles 3 and 5 of the ECHR. The argument that he will be held in extended isolation and restrictions which constitute inhuman or degrading treatment or punishment, and that the conditions in which he will held are not susceptible of “effective challenge” is utterly unarguable. Although lack of contact with others might be capable of amounting to a violation of Article 3, the evidence of access to information to newspapers and correspondence and association with other prisoners, albeit subject to supervision, does not suggest that the appellant will be in solitary confinement. I do not consider that the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which makes recommendations about detention conditions in Sweden, and in particular the fact that pre-trial detention is without limits, and about visitors, constitutes an international consensus of the sort required. There have been no pilot judgments against Sweden in the European Court of Human Rights which decide that Sweden systematically violates Article 3 Rights by pre-trial detention with restriction. The arguments based on Article 5 are also untenable given the supervision of a competent court with a review every two weeks including consideration of the proportionality of the detention.

For the reasons I have given I would dismiss this appeal.

I agree.