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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ninedays v District Prosecutor's Office of Varna Bulgaria [2014] EWHC 4416 (Admin) (20 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4416.html Cite as: [2014] EWHC 4416 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 November 2014

1. LORD JUSTICE AIKENS: This is an appeal by William Ninedeys ("the appellant") from the decision and order of District Judge McPhee ("the DJ") dated 21 August 2014, whereby he ordered the surrender of the appellant pursuant to an European Arrest Warrant ("EAW") issued by the Judicial Authority of Bulgaria ("the JA") on 6 February 2012. The EAW was certified by the Serious Organised Crime Agency of the UK on 28 June 2013. Bulgaria, being a member of the European Union, is a category 1 territory for the purpose of the Extradition Act 2003 ("the EA"), so that Part 1 of the EA applies to this case.
2. The EAW in this case is a "conviction" warrant requesting the surrender of the appellant to serve a sentence of five years for one offence. That offence is akin to those of obtaining money by deception and money laundering offences under the Proceeds of Crime Act 2002. There is no dispute that the offence identified in the EAW, which I will have to examine in more detail shortly, constitutes an extradition offence for the purposes of the EA. In short, the appellant was convicted in his absence of receiving and using a sum totalling the equivalent of €636,301.76 in two bank accounts in Bulgaria where the money had been obtained through a "serious premeditated crime", viz document fraud, contrary to Article 212 of the Bulgarian penal code. There are two named victims.
3. At the Extradition Hearing before the DJ, the appellant challenged the EAW on six grounds. These were, in the order in which the DJ dealt with them in his judgment, that the surrender was barred because: (1) it would offend the rule against "double jeopardy" in relation to the sentence imposed: section 12 of the EA; (2) it would be unjust or oppressive to surrender the appellant because of the passage of time since he is alleged to have been unlawfully at large: section 14; (3) the appellant was not a fugitive from the Bulgarian proceedings but, under Bulgarian law, he would not be entitled to a retrial: section 20; (4) if surrendered, he would have to serve his five year sentence in appalling prison conditions that are such that surrender would be in breach of the appellant's rights under Article 3 of the European Convention on Human Rights ("the ECHR") not to be subjected to inhuman or degrading treatment or punishment; (5) if surrendered it would be a disproportionate interference with the appellant's and his ten year old daughter's family rights under Article 8 of the ECHR, both (4) and (5) coming within section 21 of the EA; and (6) the appellant's physical condition was such that it would be unjust or oppressive to extradite him: section 25. The DJ rejected each of those grounds in his judgment.
4. Before this court, in Malcolm Hawkes wishes to renew five of those challenges. They are based on: (1) double jeopardy; (2) no right to a retrial; (3) Article 3 and prison conditions; (4) Article 8 and rights to respect for family life; and (5) passage of time.
5. However, we invited counsel to address us first on the issue of double jeopardy. At the conclusion of the argument on that issue, we retired. We decided that the appeal should be allowed on that basis, for the reasons which I will give. Both counsel accepted that, in those circumstances, there was no point in us hearing argument on the further issues that Mr Hawkes had wished to pursue.

Double Jeopardy

6. Section 12 of the EA provides:

"Rule against double jeopardy.

A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption --

(a) that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;

(b) that the person were charged with the extradition offence in that part of the United Kingdom."

7. It is well established now, as a result of the decision of the Divisional Court in Fofana v Deputy Prosecutor Thubin Tribunal de Grande Instance to Meaux France [2006] EWHC 744 (Admin) that the phrase "double jeopardy" in section 12, upon its correct construction, embraces both limbs of the rule against double jeopardy as developed in the English case law. Thus a person's extradition will be barred under section 12 first, if he could plead autrefois acquit or autrefois convict in an English court in respect of the offence for which his surrender is sought under the EAW. Secondly, the person's extradition will be barred if he can establish that it will be an abuse of the process of the court to subject him to a prosecution of the offence for which his surrender is sought under the EAW because that prosecution, albeit for a different offence, is founded on the same, or substantially the same, facts as the previous charge and the trial which had led to a conviction or acquittal.
8. At paragraph 21 of the judgment of Auld LJ in the Fofana case, he quoted a passage from the speech of Lord Hutton in the case of the R v Z [2000] 1 AC 483 at 498, where Lord Hutton said:

"In my opinion, the speeches in the House [in the case of Connelly v DPP [1964] AC 125] recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded."

9. In my view, that passage emphasises the point that it is imperative to scrutinise closely the factual foundation of both the first "offence" of which the defendant was convicted (or acquitted) and that of the second offence and see whether they are, in truth, "founded on the same incident". Each case is going to turn ultimately on the particular facts involved.
10. The Fofana case concerned an "accusation" EAW. The present case concerns a "conviction" EAW. Section 12 does not indicate in terms whether it applies only to accusation EAWs or to both types of EAW. Nor is there anything in section 11 to indicate that section 12 only aplies to "accusation" EAWs. in my view, as a matter of principle, section 12 must apply to both types of EAW. The court in the requesting category 1 territory may have conducted a trial in ignorance of the prior criminal proceedings in another state, particularly if the trial in the category 1 territory seeking surrender was conducted in absentia of the requested person. Whether or not the category 1 territory knew of the prior criminal proceedings, it seems to me that it would only be just that the requested person could plead "double jeopardy" in respect of a sentence imposed by the requesting state if the doctrine applies on the facts.

The Facts

11. What is the factual position in this case? The appellant was first of all extradited from Bulgaria to Germany following his arrest on 22 August 2007 on an EAW issued in Germany. At the time he was found to be in possession of €315,000, or the equivalent. The indictment that the appellant faced was issued by the Karlsruhe Public Prosecutor's Office on 4 February 2008. It states the following:

"On the basis of its criminal investigations, the Public Prosecutor's Office charges the indicted person with the following counts:

1. On 04.04.2007 the accused, through a letter signed with the name of the account holder Nada Seidel, caused the Sparkasse Karlsruhe, Kaiserstraßer 223, 76133 Karlsruhe, to sell securities owned by the accountholder to the value of €206,031 and at the same time caused the transfer of the proceeds of this sale to an account held in his own name at the Bulgarian Postbank, Varna branch, BVL Kniaz, account number: 1462169411, SWIFT code: BPBIBGSF, IBAN: BG54BPB179451462169401. On the assumption, caused by the deceit that the accountholder had herself given the order, the Sparkasse undertook the transaction and transferred the sum of money to the designated account. The indicted person was aware that he had no right to this money.

2. On 20.04.2007, on the basis of a sell order sent by fax, in the same way, a parcel of shares to the value of €73,920 was sold by the Sparkasse Karlsruhe from the securities deposit of the accountholder Nada Seidel and the proceeds credited to the account belonging to the indicted person in Bulgaria. The indicted person was aware that he had no right to this money.

3. On 30.04.2007, again, a sell order signed with the name of the accountholder Nada Seidel was sent by fax, in order to cause the Sparkasse Karlsruhe to sell two parcels of shares with a total value of €1,564,400 and to transfer the proceeds of the sale to the account belonging to the indicted person at the Bulgarian Postbank, Varna branch. This order was not executed by the Sparkasse, once it had emerged from a telephone contact with the accountholder that she had not issued a sell order.

The indicted person is therefore charged:

through 3 legally independent acts.

in cases number 1 and number 2:

with having, with the intent of obtaining for himself an unlawful material benefit, damaged the property of another by causing an error by pretending false facts, whereby in each case he has caused a major financial loss;

in case number 3:

as envisaged by him, took steps which would lead directly to the completion of the offence, with the intent of obtaining for himself an unlawful material benefit, to damage the property of another by causing an error by pretending false facts;

punishable as:

fraud in two cases and attempted fraud in one case

in accordance with §§ 263(1), (2), (3) no. 2, 22, 23 and 53 Strafgesetzbuch [German Criminal Code]."

12. The judgment of the Karlsruhe court, dated 9 June 2008, set out the findings of the judge and the two lay assessors. In summary, the court found that, prior to 4 April 2007, an accomplice of the appellant persuaded the appellant to use his account of the Varna branch of the Postbank "to commit joint crimes of fraud". The judgment then details the way in which the accomplice gave instructions ostensibly on behalf of Ms Nada Seidel to the Sparkasse, Karlsruhe, to sell securities totalling some €284,000 in value. The money was then transferred to the appellant's Postbank account in Varna. The total sum of €279,957 was transferred as a result of the two sets of instructions given to the Sparkasse. It is recorded in the judgment that, after transfer, the appellant passed on a large sum of the money that had been received in his Postbank account to his accomplice. However, the appellant kept some of the funds for himself. The third attempt (which is also referred to in the indictment and in the judgment), which was to transfer a much larger sum as a result of sales of securities, was unsuccessful.
13. The judgment summed up the position as follows:

"The accused person is thus:

through three legally independent acts.

in cases 1 and 2:

having with the intent of obtaining for himself an unlawful material benefit, damaged the property of another by causing an error by pretending false facts, whereby in each case he has caused a major financial loss;

in case number 3:

as envisaged by him, took steps which would lead directly to the completion of the offence, with the intent of obtaining for himself an unlawful material benefit, to damage the property of another by causing an error by pretending false facts.

punishable as:

fraud in two cases and attempted fraud in one case

in accordance with §§ 263(1), (2), (3) no. 2, 22, 23 and 53 Strafgesetzbuch German Criminal Code."

14. The Karlsruhe court then addressed the issue of sentencing. It stated that the offences were "especially serious cases of fraud and attempted fraud" and that "not inconsiderable criminal energy" had been "inherent" in the realisation of the offences, not least because of the fact that they were committed abroad. However, the court found that there were also considerable mitigating factors, especially in the fact that the appellant had admitted the offences. Therefore the court sentenced the appellant to a total of 18 months' imprisonment. As he had been held on remand for so long and he was a foreign national, the sentence was suspended.
15. In my view, it is important to note what the judgment states was the part that the appellant took in this criminal activity. It was in making his account at the Postbank available to his accomplice. That was the place to which the funds realised on the sale of the securities would be sent. It appears from the German court's judgment that the appellant was not actively involved in the actual fraud on the victim's bank. The appellant did not compose or send the letters that purported to give the instructions to sell the securities, nor did he give the instruction to transfer the proceeds of sale to his account at the Postbank Varna. The part of the appellant was to provide his account to transfer a large part of the proceeds that came into his account into another account of his accomplice.
16. In short, on the findings of the German court, the part played by the appellant was concerned with the consequences of the original frauds that were perpetrated on the victim's bank by the appellant's accomplice.
17. The position in the subsequent Bulgarian proceedings is set out in the judgments of the courts through which this matter proceeded, all in the absence of the appellant. The adjudication of the Varna District Court makes it clear that it was dealing with two incidents. The first of these involved the victim Ms Seidel. There is no dispute that this is the same person as identified in the German proceedings, even though the spelling, or perhaps its transliteration, is different. The second victim was a lady called Victoria Infenva Mojekwu.
18. The adjudication of the Varna District Court in relation to both of these aspects is as follows:

"Guilty of the following crime: during the period April 17 2007 to May 3 2007 in the town of Varna, in the circumstances of the continuing offence, he received, kept and used property of significant amounts -- the sum of €284,995.75 ... through bank transfers which he received in his Euro account in the 'Bulgarian Postbank' ... while knowing that the latter property had been obtained through a serious premeditated crime -- document fraud, under Article 212 of the Penal Code, the victim being Nada Zaydel, and this case is particularly grave, due to which and on the grounds of Article 254, paragraph 5, read with paragraph 4, read with paragraph 2, read with Article 26, paragraph 1 of the Penal Code and Article 54 of the Penal Code, imposes imprisonment on him for a period of five years ...

On the grounds of Article 304 of the Code of Criminal Procedure, we judge the defendant, William Evans Ninedeys, not guilty of the following alleged crime during the period 17 August 2007 to 22 August 2007 in the town of Varna, in the circumstances of a continuing offence, he allegedly received, kept and used property of significant amounts, €351,406.01 ... through a bank transfer which he received in his Euro accounts in the 'Pireos Bulgaria Bank' ... while allegedly knowing the latter property to have been obtained through a serious premeditated crime, the victim being Victoria Infenva Mojekwu."

19. The District Court also issued "grounds" for its judgment, which set out the facts in some more detail. It is quite clear from these "grounds" that the Bulgarian court was well aware of the German proceeding and indeed used findings of the German court as the basis upon which to conclude that the appellant had been party to a "premeditated crime" against the victim Seidel.
20. However, as I have noted, the Varna court found that the appellant was not guilty of any crime in respect of the sums obtained from the account of Victoria Mojekwu. That conclusion was appealed by the prosecutor. The Court of Appeal allowed the prosecutor's appeal in respect of that matter. In the judgment of the Court of Appeal, having given its analysis, the court said:

"All of the aforesaid gives grounds for the appellate court to accept that, while the factual circumstances were correctly established, the court of first instance made wrong legal conclusions and has, respectively, wrongly acquitted the defendant Ninedeys for the following crime: during the period from 17 August 2007 to August 22 August 2007, he received, kept and used property of significant amounts -- €351,306.01 ... which he received into his Euro account in the 'Pireos Bulgaria Bank' ... while knowing that the latter property had been obtained through a serious premeditated crime, the victim being Victoria Infenva Mojekwu. The judgment ought to be amended in this part and the defendant ought to be found guilty with regard to it as well. With view to the lack of any request in the objection to increase the punishment imposed upon the defendant by the court of first instance/because the charge concerns a criminal crime/the present instance has no powers to reduce the punishment, finding the defendant Ninedeys guilty of the second deed as well regarding the victim Mojekwu."

21. It is clear, therefore, that there was no request by the prosecutor to increase the penalty or, if there was, the court found that it had no power to increase it because the two incidents were all regarded as "one continuous crime". The sentence was therefore confirmed at five years. It appears from the judgment that there was an attempt by the appellant's lawyer to reduce the sentence, but that was rejected by the Court of Appeal.
22. The matter then went on to the Court of Cassation on the ground that the Court of Appeal had erred on a point of law. The Court of Cassation dismissed the appeal. It found that the facts were correctly established and that, according to the Penal Code, both the objective and subjective elements of the crime had also been established. The judgment of the Court of Cassation continues:

"The knowledge of the defendant of the money's origin, that is that they have been acquired through serious intentional crime, is indisputable. This conclusion is supported not only by the conviction of a German court, which has entered into force, by which the defendant was convicted for committing a fraud under Article 212 of the Penal Code against the victim Nada Zaydel, but also by his entire behaviour relating to opening accounts in Bulgarian banks, the identical manner of drawing the incriminated sum, the rapid transfer of funds to persons outside Bulgaria and the obvious attempt to export the notes amounting to €316,000 found in suitcases, regarding which he initially denied being his.

The objection claimed that there is an evident unfairness of the punishment is also ungrounded."

The submissions and my conclusions

23. The submission of Mr Malcolm Hawkes on behalf of the appellant is that, with regard to the matter concerning the victim Seidel, there can be no doubt that the conduct on which the two convictions, German and Bulgarian, are based arise out of the same incident. That is clear, he submits, from the judgments given in the courts in both countries. The sentence is a single sentence and it cannot be severed. There is no means of saying that the appellant should not be surrendered for the Seidel part of the sentence but somehow be surrendered for the Mojekwu part. Accordingly, Mr Hawkes submits the appellant should be discharged.
24. Ms Wilkes, on behalf of the District Prosecutor's Office of Varna, submits that, upon analysis of the indictment and the judgment of the German proceedings, that court was dealing with the antecedent fraud on the victim Seidel and that the relevant crime under German law was completed at the moment that the funds left her account in Germany. Therefore, any element of the activity of the appellant in relation to receiving money in his Postbank in Varna and his actions thereafter were not relevant to the German conviction as a matter of law. Ms Wilkes accepts that the reference to those activities in the German judgment are part of the overall facts and that they may have been relevant to the German sentence. Ms Wilkes submits that it is clear that the Bulgarian offence and conviction were concerned with the receipt of the funds and their use thereafter by the appellant, who withdrew funds from the Postbank account and dealt with them as he wished.
25. Ms Wilkes also submitted that, even if this court concluded that there was "double jeopardy" in relation to the Seidel matter, it could still surrender the appellant to be dealt with in relation to the Mojekwu matter. She submitted that this court could safely leave it to the Bulgarian court to decide how that issue should be dealt with in sentencing terms.
26. Both counsel referred us to the decision of this court in Brodziak v Circuit Court of Warsaw Poland [2013] EWHC 3394 (Admin). In that case this court had to deal with the question of whether there should be surrender on a "conviction" warrant in circumstances where there was one composite sentence that had been imposed but it had been imposed in respect of a number of offences, some of which were not extradition offences. The particular issue was whether, if surrendered, a person would be required to serve a sentence that related in part to a non-extradition offence, thus infringing the rule on speciality. This court held, broadly, that person could be surrendered in those circumstances, provided that the court was satisfied (as it was in that case) that the speciality rules would be observed, so that no part of a sentence that related to a non-extradition offence would be served.
27. My analysis of the present case is as follows: first, I am satisfied that the finding of the German court as to the part played by the appellant in the offence for which he was convicted in Germany related to agreeing to take part in the fraud on Ms Seidel and in making his Postbank account available, so that the fraud could be successfully carried out by removing the funds to that account. Otherwise there would have been no way of completing the fraudulent transaction successfully. It was obviously also relevant to the court's conclusion that the appellant thereafter dealt with the money in his Bulgarian account. Secondly, the Bulgarian offence, although focussed more on what happened in Bulgaria, relied on the fact that there had been a "premeditated crime" carried out in relation to obtaining the securities in Germany. Thirdly, therefore, with regard to Ms Seidel's matter, the conduct relied upon by the Bulgarian court did arise out of the same incident when looked at overall. Fourthly, in respect of that incident, the appellant was sentenced by the German court and by the Bulgarian court. Fifthly, it is important to note that, when the Bulgarian Court of Appeal reversed the lower court's finding in relation to the Mojekwu incident, it did not add to the existing sentence of five years.
28. The result of this analysis in my view is, therefore, this: there is double jeopardy in relation to the Seidel matter. There is not, in relation to the facts, double jeopardy in relation to the Mojekwu matter. However, if we were to surrender the appellant only in respect of the latter matter, it would be ostensibly for no useful purpose; that is because no part of the Bulgarian sentence relates to that matter because the sentence was not increased when the Court of Appeal convicted him on the second matter. Thus, it seems to me, the appellant could be subjected to "double jeopardy" if he were to be surrendered to Bulgaria because, assuming he were to exercise his right to a re-trial, there might be the danger of him being given a substantive sentence in respect of the Mojekwu aspect of the case, when previously the courts had not imposed any additional sentence in relation to that matter upon his conviction on appeal. Equally, if the appellant did not exercise his right to re-trial, then it seems to me there is the danger of him having to serve the sentence of five years in respect of the Mojekwu aspect of the case, when that part of it had not attracted any sentence from the Bulgarian courts.
29. I entirely accept that this is an unusual situation. It is not precisely the situation that arose in the Brodziak case because here there is no element of a composite sentence that is attributable to the Mojekwu matter at all. If any question of "speciality" arose, it would have to be resolved on the basis of the appellant serving no sentence in respect to that of the Mojekwu part of his offence. If there was any danger of a sentence being imposed on a retrial, that would be double jeopardy in relation to that sentence.
30. Accordingly, in the very particular circumstances of this case, I have concluded that the extradition of the appellant would offend against the rule of double jeopardy. I would therefore allow the appeal on this ground and discharge the appellant.
31. MR JUSTICE NICOL: I agree entirely.
32. I also found useful the case of the R v Greaves [2010] EWCA Crim 709 2011 1 Cr App R (S) 8. The immediate context of that case was very different. It was an appeal against sentence to the Court of Appeal Criminal Division. It concerned consecutive sentences which had been passed for money laundering offences and the criminal activity on which the money laundering offences were based.
33. At paragraph 24 of his judgment, Jack J summarised the relevant principles. He said:

"A offences contrary to sections 327 to 329 of the Proceeds of Crime Act are separate 'free standing' offences to the offences, or offence, which gives rise to the criminal property with which the Proceeds of Crime Act is concerned ...

(c) where the offenders are one and the same, if the conduct involved in the Proceeds of Crime Act offence in reality adds nothing to the culpability of the conduct involved in primary offences, there should be no additional penalty. A person should not be punished twice for the same conduct. That can be achieved either by imposing no separate penalty on the Proceeds of Crime Act offence or by concurrent sentence, where the primary sentence is imprisonment."

34. The phrase "a person should not be punished twice for the same conduct" is the same principle behind the double jeopardy prohibition that operates in extradition. There is inevitably a close factual analysis which is required to decide whether the money laundering aspect does add to the culpability of the underlying predicate offence.
35. In my judgment, and for precisely the same reasons that my Lord has given, I consider that in the particular facts of this case the money laundering offences with which the appellant was charged in Bulgaria did not add to the culpability of the underlying offence for which he had already been convicted and sentenced in the German proceedings.
36. I too would therefore allow the appeal on the double jeopardy ground.
37. LORD JUSTICE AIKENS: Thank you.
38. Is there anything from either of you?
39. MR HAWKES: Nothing arising. Thank you, my Lords.
40. MS WILKES: Thank you, my Lords.
41. LORD JUSTICE AIKENS: Thank you both very much indeed for your helpful arguments and for your very helpful written submissions as well.