House of Lords - Extradition: UK law and practice - Select Committee on Extradition Law

Extradition: UK law and practice - Select Committee on Extradition Law Contents

APPENDIX 5: CASE SUMMARIES

BH (AP) and another v The Lord Advocate and another (2012) UKSC 24

The case of BH involved the extradition of a husband and wife to the US on charges to import to the US "chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose."[472]

The case was complicated by the fact that the wife, Mrs H, was the mother of six children who lived with the couple. The youngest two children had been conceived and born while the extradition proceedings were underway.

In addition, Mr H had had two other children prior to his relationship with Mrs H, both of whom had previously been removed from his care and, in one case, sexual abuse had been alleged. In the light of this background, and prior to the birth of the youngest three of the children, Mr H had been ordered to have no contact with the older three of Mrs H's children. In 2011, Mr and Mrs H's relationship ended.

The case revolved around the impact on the six children of Mr and Mrs H's extradition and whether the potential breach of the children's Article 8 rights would outweigh the public interest in extraditing Mr and Mrs H.

Both the High Court of Justiciary and the Supreme Court held that the impact on the children of extraditing Mr H "did not come close to meriting his discharge". In the case of Mrs H the judgment was more finely balanced. Both courts concluded that though it would be in the interests of the children not to be separated from their mother, this did not outweigh the public interest in ordering her extradition.

As discussed in paragraphs 158-61 of Chapter 4, the courts differed in their interpretation of how the facts of this case were to be judged in the light of case law with regard to considering prosecution in the UK.

The case was heard by the Supreme Court simultaneously with that of HH (see below).

Dibden

Dibden v Tribunal De Grande Instance De Lille France (2014) EWHC 3074 (Admin)

The case of Daniel Dibden was the first to make substantive use of the forum provisions of the 2003 Act as the basis of an appeal against extradition.

Mr Dibden was charged with being a principal participant in the smuggling of drugs from the Netherlands to the UK via France. There were also two co-accused who were arrested in France with over 60kg of amphetamines and 6kg of cocaine, which they intended to transport to the UK in a microlight aeroplane.

Mr Dibden, who was based in the UK throughout the relevant period, was charged by the French authorities with importing illegal substances as part of an organised gang and the acquisition and transportation of narcotic drugs.

Extradition was ordered and appealed. Both Mr Dibden and the Issuing State recognised that "a substantial measure of his activity was performed in the UK".[473] However the defence disagreed with the way in which the judge had balanced the "specified matters relating to the interests of justice" contained in section 19B(3) of the 2003 Act.

The defence argued that extradition would go against the interests of justice as:

· the drugs were intended for use in the UK;

· the defendant resided in the UK;

· much of the evidence in this case was based in the UK;

· prosecution in France would cause unnecessary delay in the transfer and translation of evidence; and

· Mr Dibden had a 13-week-old son.

The Issuing State, France, argued that although the offence was intended to cause harm in the UK, it was a trans-national offence with significant harm occurring in France and the Netherlands. With regard to trial proceedings, the strength of the UK-based evidence was unclear and it was not yet known whether it would be sufficient to prove the offences. It was also argued that the trial for these offences should occur in France because, as a general principle, all prosecutions for related crimes should happen in one jurisdiction and proceedings in France were already well advanced for linked offences.

The appeal was dismissed and extradition was ordered.

Paul and Sandra Dunham

Paul Dunham, Sandra Dunham v Government of the United States (2014) EWHC 334 (Admin)

Between 2002 and 2009, Mr and Mrs Dunham worked for an electronics company in the US, Pace Inc. The company also operated in the UK. Mr and Mrs Dunham were accused of having "defrauded their employer by the dishonest misuse of company credit cards and by rendering dishonest claims for expense on the basis that they had been incurred on the companies' behalf".[474] Both Mr and Mrs Dunham were in their late 50s. They had lived and worked in the UK all of their lives, apart from seven years in the US during which time the offences were said to have taken place.

Following disagreements with the owner of Pace Inc. and its UK operation, Pace Europe, Mr and Mrs Dunham left the company and returned to the UK. Civil proceedings were then started against them in the US by Pace Inc. for fraud and gross misconduct. Mr and Mrs Dunham denied the charges. The trial in relation to these charges was heard in the US on 28 June 2010. Mr and Mrs Dunham were absent from these proceedings. They were found guilty and were ordered to pay damages of $5,382,780.90. Pace Inc. then sought to enforce this ruling on the Dunhams in the UK. The Dunhams resisted this but were ultimately ordered by the High Court to pay $1,794,260.30.

In the meantime, criminal proceedings commenced in the US in relation to the same offences. A request for their extradition was made in April 2012 and they were arrested in the UK on 13 November 2012.

The Dunhams resisted their extradition on a number of grounds:

(1) that it constituted an abuse of process as it reflected a personal vendetta by Eric Seigel, the son of the owner of Pace Inc. and Pace Europe;

(2) that the offences were not sufficiently serious to merit extradition (they were described as being "only an expenses fraud");[475]

(3) that the charge of conspiracy to defraud could not have been brought against them if the conduct had occurred in the UK as Mr and Mrs Dunham were the only people indicted and therefore there could be no conspiracy;

(4) that there had been an unreasonable delay between the offences and the extradition request; and

(5) that the psychiatric and medical conditions of Mr and Mrs Dunham meant that extradition would be a disproportionate breach of their Article 8 rights.

It was only this final argument to which the courts attached significant weight.

The courts heard medical evidence that the threat of extradition meant that Mr and Mrs Dunham suffered from moderate to severe depression. In Mr Dunham's case in particular, this condition would worsen if he were extradited and detained in a 'supermax' prison like Chesapeake Detention Facility (CDF). Having already attempted suicide in the course of the extradition proceedings, it was reported that there was a high likelihood of his trying again and succeeding.

The judge, Mr Justice Simon, concluded:

"In summary, and without seeking to minimise Mr Dunham's mental condition, the medical evidence shows that he is suffering from an Adjustment Disorder due to a high degree of stress associated with uncertainty and apprehension arising out of the legal proceedings and the prospect of extradition. This has been in existence since the start of the civil legal proceedings. The stated intention to commit suicide is not linked to his mental condition, but appears to be a rational choice that the Dunhams have said they will make if they are ordered to be extradited … [Mr Dunham's] mental condition does not approach the threshold … that it would be unjust or oppressive to order extradition … The CDF regime is plainly harsh; and the treatment of Mr Dunham's mental condition might be unsatisfactorily perfunctory, although it is unlikely that his life would be at risk. On the other hand it is not clear that he would be detained at CDF, and the evidence about the other facilities is very limited … So far as Mrs Dunham is concerned, her mental condition is not so serious as her husband's, and there is no real evidence that her detention before trial would not be adequately addressed."[476]

Their appeal was therefore dismissed and their extradition ordered.

The written evidence from Mr and Mrs Dunham[477] and from their constituency MP, Andrea Leadsom MP[478] provide descriptions of the impact of the process of extradition, including an attempted suicide by both Mr and Mrs Dunham. They also provide details of the time the couple spent on remand in the US, on bail and Mr Dunham's ongoing heart condition.

On 10 December 2014, Mr and Mrs Dunham agreed to a plea bargain. Both pleaded guilty to conspiracy to commit wire fraud. Mr Dunham also pleaded guilty to a separate charge of money laundering.

Paul Dunham's agreement stated that it was contingent on his wife agreeing a separate plea bargain. Paul Dunham was originally indicted with 13 offences, but under the terms of the plea bargain he was charged with two offences with a maximum of 20 years imprisonment. He was sentenced to four years in prison followed by three years of supervised release. Mrs Dunham pleaded guilty to one charge and was sentenced to 60 days in prison, 42 of which had already been served on remand. The remainder of her sentence was to be served in home detention.

HH & Ors v Deputy Prosecutor of the Italian Republic, Genoa & Ors (2012) UKSC 25

The case of HH involved three appeals against extradition to Italy on Article 8 grounds. Two of the appellants, HH and PH, were married with three young children (HH being the mother of the children and PH, the father). The other appellant, F-K, had five children. The appeals argued that extradition would be a disproportionate breach of the Article 8 rights of the children. The Supreme Court considered the case in the light of an earlier case, Norris v US, which found that:

"the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition."[479]

The Court in Norris also found that the impact of extradition should not be viewed only from the Requested Person's point of view; the effect on family members may also be considered relevant. For example:

"If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee".[480]

In her judgment on HH, Baroness Hale concluded there was no overall test of exceptionality in extradition law. This view was drawn from the judgment in Norris in which Lord Hope had said that the courts should not seek to set "a threshold which must be surmounted before it can be held in any case that the article 8 right would be violated". Also in Norris, Lord Mance said that to approach Article 8 considerations in this way risked diverting "attention from consideration of the potential impact of extradition on the particular persons involved and their private and family life towards a search for factors (particularly external factors) which can be regarded as out of the run of the mill." Baroness Hale emphasised that the proper approach to such questions was to judge whether "the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition." She noted that the public interest in extradition was unlikely to be outweighed unless its impact was "exceptionally severe". She also said that when reaching this judgment on the balance between the impact of extradition and the public interest, the courts would take into account matters such as the severity of the crime and the passage of time (see Box 3).

In the case of F-K, Baroness Hale noted:

"During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born … At neither time did the parents have any reason to believe that the Polish authorities were seeking the mother's return."[481]

On those grounds, the Court unanimously found that extradition would be a disproportionate breach of F-K's Article 8 rights.

With regard to the cases of HH and PH, Baroness Hale said, "The circumstances in this case can properly be described as exceptional. The effect upon the children … of extraditing both their parents will be exceptionally severe." She therefore considered whether both HH, the mother of the children, and PH, their father, should be extradited. In her view, HH's extradition could not be discharged on Article 8 grounds because, on the one hand, her mental capacity made her unlikely to be able to look after her children alone and, on the other, the Italian authorities considered her offences to be more serious than those of PH. In common, therefore, with all the other members of the Court she dismissed HH's appeal.

Baroness Hale dissented, however, in the case of PH the husband; she would have allowed his appeal on the basis that his offences were less serious and the effect of extraditing both parents would be "exceptionally severe". The other six members of the Court concluded that the strong public interest in extradition outweighed the painful and damaging effects of separation for the children and dismissed her appeal too.

McKinnon

McKinnon v Government of the United States of America and another (2008) UKHL 59

In 2001-02, Gary McKinnon gained unauthorised access from his home computer in London to 97 US Government computers, including those of the Army, Navy, Air Force, NASA and the Department of Defence. He deleted critical operating system files, significantly disrupting government functions and leaving the network vulnerable to other intruders. He also copied data and files onto his own computers. The US alleged his conduct was intentional and calculated to influence the US Government by intimidation and coercion. It damaged computers by impairing the integrity, availability and operation of programmes, systems, information and data, rendering them unreliable. The cost of repair was alleged to total over $700,000.

Analysis of Mr McKinnon's home computer confirmed the allegations and in interview under caution he admitted responsibility (although not that he had caused damage). He stated his ultimate goal was access to the US military classified information network. He admitted leaving a note on one army computer reading:

"US foreign policy is akin to government-sponsored terrorism these days … It was not a mistake that there was a huge security stand down on September 11 last year … I am SOLO. I will continue to disrupt at the highest levels …"

Between 2002-03 plea-bargaining discussions took place before an extradition request was made. US prosecutors indicated that if Mr McKinnon were to go to the US voluntarily and plead guilty it was likely a sentence of 3-4 years would be passed and, after serving 6-12 months, he would be repatriated to complete his sentence in the UK. In this event he might serve only 18 months to two years in total. If, however, he chose not to cooperate and were then extradited and convicted, he might expect to receive a sentence of 8-10 years, possibly longer, and would not be repatriated to the UK for any part of it.

The predicted sentences were so widely different because of the different bases upon which the prosecutor proposed to put the case. Upon a plea of guilty, the prosecutor was prepared to put the damage resulting from his actions in a lower bracket than they believed they could prove, including nothing for the losses resulting from the inability for a time to access the computers and overlooking too the disruption to US Government functions and the significant endangering of national security.

The plea bargain was refused and, in 2004, the US formally requested Mr McKinnon's extradition.

In 2006, the District Judge recommended extradition and sent the matter to the Secretary of State for a final decision whether to order extradition, as was the procedure at the time. The extradition order was made and appealed. The High Court dismissed the appeal in 2007.

In 2008, the House of Lords granted leave to appeal in respect of one question: whether the plea bargain, including the threat that there would be no possibility of serving part of his sentence in the UK if he resisted extradition, constituted "an abuse of process requiring the defendant's discharge from the extradition proceedings."[482]

The appellant argued that for some defendants, the very process of comparing the two alternatives offered under a plea bargain would create pressure to tender a guilty plea. It was argued that despite his resistance to the offer, the fact of the "deal" was an abuse of process, calculated to interfere with the extradition proceedings.

In his judgment, Lord Brown of Eaton-under-Heywood concluded:

"In one sense all discounts for pleas of guilty could be said to subject the defendant to pressure, and the greater the discount the greater the pressure. But the discount would have to be very substantially more generous than anything promised here … before it constituted unlawful pressure such as to vitiate the process. So too would the predicted consequences of non-cooperation need to go significantly beyond what could properly be regarded as the defendant's just desserts on conviction for that to constitute unlawful pressure."[483]

The House of Lords therefore dismissed the appeal.

In August 2008, Mr McKinnon lost his appeal to the ECtHR and his lawyers revealed he had recently been diagnosed with Asperger's Syndrome, adding: "The offences for which our client's extradition is sought were committed on British soil and we maintain that any prosecution ought to be carried out by the appropriate British authorities." New representations were made to the then Home Secretary, who decided to order extradition.

In 2009, Mr McKinnon signed a confession, and offered to face trial in the UK. The CPS declined to prosecute indicating that the criminality alleged to have occurred in the US far exceeded the evidence of criminality in the UK.

Mr McKinnon launched a judicial review of the Home Secretary's decision to order extradition despite his Asperger's Syndrome and requested leave of the High Court to appeal to the Supreme Court. His request to appeal to the Supreme Court was declined.

In 2009, the Home Office sought and received assurances that Mr McKinnon's medical needs would be met in the US.

In 2010, permission to judicially review the Home Secretary's decision to order extradition was granted. The Home Secretary, Theresa May MP, announced she would adjourn her decision on extradition.

In 2012, following further medical assessment of Mr McKinnon's medical condition, the Home Secretary decided to refuse to order extradition.

Mitchell

In May 1994, Graham Mitchell and a friend, Warren Tozer, were on holiday in the Algarve. Whilst there they were arrested by Portuguese police investigating a serious assault on Andre Jorling, a 26-year-old German. Mr Jorling had sustained severe injuries after falling off a 12ft-high sea wall. He was left paralysed from the waist down. Mr Mitchell and Mr Tozer were accused of attempted murder.

Mr Mitchell was held in pre-trial detention for a year. At trial, both he and Mr Tozer were found not guilty and released. On his return to the UK Mr Mitchell was treated for post-traumatic stress related to his detention in Portugal.

In 1996, Portugal's Supreme Court quashed Mr Mitchell's acquittal and ordered a new trial. In 2008, the Portuguese authorities submitted an EAW to secure Mr Mitchell's return to face the same attempted murder charges. The EAW was certified by the Serious Organised Crime Agency (then the designated certifying authority) in November 2009. Of none of these developments had Mr Mitchell been made aware. In March 2012, Mr Mitchell was arrested at his home and extradition proceedings began in Westminster Magistrates' Court.

In May 2012, the Portuguese authorities withdrew the EAW request.

NatWest 3 (David Bermingham, Gary Mulgrew and Giles Darby)

R. (on application of Bermingham and others) v Director of the Serious Fraud Office, the Attorney General and the Secretary of State for the Home Department (2006) EWHC 200 (Admin)

David Bermingham, Gary Mulgrew and Giles Darby (often referred to as the NatWest 3) worked for NatWest Bank's investment banking arm in 2000. They were British citizens, resident in the UK. NatWest had offices in London and Texas. Enron was a company based in Houston, Texas, managed by Mr Michael Kopper and Mr Andrew Fastow. Enron was a client of NatWest Bank.

A company called LJM Swap Sub, owned by Mr Kopper and Mr Fastow, was based in the Cayman Islands. NatWest Bank and Enron were advised to invest in JLM Swap Sub, which they did. The value of LJM Swap Sub was thought to be low until, in early 2000, there was a marked increase. On 29th January 2000, Mr Bermingham sent an email (relied on by the US prosecutor) to his NatWest colleague Mr Darby, saying:

"One last thing. An unexpected change of circumstances re LJM [Swap Sub]. We have always assumed that the swap sub assets have nil value, because of the mark to market value of the Rhythm Net Put. This was true up to about 10 days ago, when Enron became a virtual company, and its shares went through $60. I ran the numbers last night, and I would say there is quite some value there now. The trick will be in capturing it. I have a couple of ideas, but it may be good if I don't share them with anyone until we know our fate!!!"

It was alleged the NatWest 3 travelled to Houston, Texas, in February 2000 to meet Mr Fastow to explore ways of unlocking the value in LJM Swap Sub for their own benefit. The prosecution relied on material contained in contemporary e-mails to show that the defendants concealed the meeting from Kevin Howard, NatWest Bank's manager with responsibility for the Enron account.

Prosecutors also alleged that between February and August 2000 the NatWest 3 dishonestly advised their employer to sell its stake in LJM Swab Sub for $1 million, despite knowing it was worth significantly more. At their recommendation, NatWest Bank agreed to sell its interest in Swap Sub for $1 million.

The NatWest 3 left NatWest Bank and bought interests in LJM Swap Sub. Mr Kopper fraudulently told Enron that the owners of LJM Swap Sub had agreed to sell their share to Enron in exchange for $30 million. Enron paid $30 million for LJM Swap Sub. LJM Swap Sub gave $1 million to NatWest Bank and the co-defendants shared the remainder.

As a result of their participation, the NatWest 3 received approximately $7.3 million between them. Mr Kopper and Mr Fastow shared approximately $12.3 million (they were subsequently also prosecuted in the US). The remaining $10 million went to another investor bank not implicated in any wrongdoing.

The indictment made reference to the means of communication in which evidence of the conspiracy to defraud was contained: a fax from Houston to London; five communications from the UK to Texas; and one electronic transfer from Houston to the Cayman Islands. These communications were represented by specific charges (counts one to seven) but all related to the same conspiracy.

The US requested the extradition of the NatWest 3 in 2004, shortly after the 2003 Act came into force. Following a number of attempts to resist extradition—including bringing legal proceedings against the Serious Fraud Office for not prosecuting them in the UK (which would have prevented their extradition)—the NatWest 3 were extradited to the US in 2006.

In November 2007, the defendants agreed to plead guilty to count four relating to the email from London to Houston containing the final LJM Swap Sub sale documents. They undertook to repay $7.3 million and were sentenced in February 2008 to 37 months' imprisonment. They were transferred back to the UK in November 2008 to serve the remainder of their sentence. The three were released in August 2010.

O'Dwyer

Richard O'Dwyer's extradition was requested by the US in 2011 on two charges:

(1) conspiracy to commit copyright infringement; and

(2) criminal infringement of copyright.

Both offences were punishable by a maximum term of imprisonment of 5 years.

The elements of criminal infringement of copyright are:

(a) a copyright is infringed;

(b) such infringement is wilfully and knowingly done; and

(c) such infringement is done for the purpose of commercial advantage and private financial gain, or by making material available on a computer-based network accessible to members of the public, knowing that the work was intended for commercial distribution.

It was alleged that in 2007 Mr O'Dwyer conspired with individuals based in the US to offer links to third-party websites that illegally hosted thousands of copyrighted films and television programmes to the public throughout the world (including the US), free of charge and without authorisation from copyright holders.

Mr O'Dwyer's website linking users to the films and television programmes was called TVShack.net and was hosted in the Netherlands. Co-conspirators assisted the operation and maintenance of the website.

Although TVShack was free for users, Mr O'Dwyer allegedly earned money from hosting advertising.

In order to demonstrate that Mr O'Dwyer's website constituted criminal infringement of copyright, prosecutors relied on a response issued by TVShack when users complained that the illegally obtainable material was too slow to download:

"you're saving quite a lot of money (especially when putting several visits together or seasons together) by having to wait a little bit of time."

In June 2010, a US judge ordered the domain name TVShack.net be seized for operating in violation of US copyright laws. Within a day, the domain name and its contents had been changed to TVShack.cc.

In extradition proceedings the defence argued the request should be refused because the conduct had not been criminal (asserting the website was akin to a search engine such as Yahoo! or Google) or, alternatively, that the prosecution should be brought in the UK because TVShack had been hosted on a server in the Netherlands.

Extradition was ordered and appealed. In 2012, Mr O'Dwyer announced he had voluntarily travelled to the US and signed a deferred prosecution agreement to avoid extradition, and the risk of a criminal record. He was ordered to pay a fine of £20,000.

VB v Rwanda

VB & Others v Westminster Magistrates' Court, The Government of Rwanda & Others (2014) UKSC 59

In this case, four individuals were sought for extradition to Rwanda to face charges of genocide, murder and crimes against humanity carried out during the Rwandan civil war in 1994. Rwanda had previously sought the extradition of the four defendants but the District Judge had found that, although there was a prima facie case sufficient to warrant their extradition to Rwanda, there was a real risk of a flagrant denial of justice.

In this second extradition request, the four defendants again claimed that if they were extradited they would be at risk of serious human rights breaches. The defence also argued that some of the evidence to support this claim could put others in Rwanda at risk of similar breaches. The Supreme Court was asked to rule on whether such sensitive information could be heard in closed proceedings or subjected to disclosure conditions. The Court ruled that there was no statutory basis for such procedure and that they would be contrary to the principles of open justice (see Chapter 5). However, Lord Toulson entered a dissenting judgment. He noted that the District Judge had read the evidence concerned and had found it to be relevant and important. He noted the tension between avoiding prejudice to the Issuing State if the Court agreed to non-disclosure and the fact that appellants were likely to suffer a denial of their human rights if the Court shut its eyes to their evidence, "In my view that is unacceptable. The evidential problem is very real, but it is not a satisfactory answer simply to apply a blindfold to the evidence. To refuse to consider it has the same practical effect as assuming the evidence to be untrue, which cannot be assumed." He therefore concluded that an exception to the principle of open justice ought to be made where not ordering a closed material hearing or not prohibiting disclosure to the Issuing State would facilitate a foreseeable and potentially serious breach of human rights.

Symeou

Andrew Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece (2009) EWHC 897 (Admin)

Andrew Symeou was extradited to Greece on an EAW to stand trial for manslaughter following an alleged altercation in a night club on the Greek island, Zakynthos. It was alleged that on 20 July 2007 he had punched another British man who had remonstrated with Mr Symeou for urinating on the floor of the club. The man fell to the ground, hitting his head. He suffered brain injuries from which he died two days later. Mr Symeou left Greece at the end of his holiday. In June 2008 an EAW issued by the Greek authorities was certified and, on 26 June 2008, Mr Symeou was arrested at his home.

Following a hearing at Westminster Magistrates' Court on 30 October 2008, Mr Symeou's extradition was ordered. Mr Symeou appealed the decision. His appeal was heard at the High Court on 12 March 2009. Mr Symeou's appeal was dismissed and he was subsequently extradited to Greece. He was held in pre-trial detention until, on 17 June 2011, the Greek courts acquitted him of the charges and he returned to the UK.

The two main arguments put forward during Mr Smyeou's appeal were concerned with abuse of process. As noted in paragraph 19, although abuse of process is not a statutory bar to extradition included in the 2003 Act, it is settled case law that such a bar can be applied. Mr Symeou argued abuse of process on two grounds: that the case against him was based on false testimony and witness statements obtained by intimidation and that domestic Greek criminal procedures had not been followed meaning that the EAW was invalid.

Part of the Greek case against Mr Symeou relied on witness statement from two of his friends on holiday with him testifying that he had punched the victim. However, it was alleged that the Greek police had written their statements and that they had been coerced into signing them. There were also discrepancies in statements from other witnesses and inconsistencies between evidence presented to the Greek police and evidence heard during the coroner's inquiry in the UK.

Neither the District Court nor the High Court ruled conclusively whether, in their view, there had been coercion of witnesses and manufacturing of evidence by the Greek police. In his ruling, Mr Justice Ouseley clarified that such a determination was beyond the scope of abuse of process which "concerns abuse of the extradition process by the prosecuting authorities … [it] does not extend to considering misconduct or bad faith by the police".[484] Such matters were for the courts in the Issuing State to consider and "decide whether evidence was improperly obtained".[485] Mr Justice Ouseley added:

486

Regarding the argument that Greek criminal justice procedures had not been followed in relation to the issuing of the EAW, Mr Justice Ouseley noted that there was contradictory evidence on the matter from Greek legal experts but, again, it would be for the Greek court to address the issue. He accepted the possibility that a failure to follow domestic criminal procedures could in some cases constitute an abuse of process on the prosecutor's behalf but the facts of Mr Syemou's case "could not show an absence of the assumed good faith, such as an attempt to pervert the system to obtain an extradition which could not otherwise have been maintained, or to obtain the return of the Appellant for some collateral purpose."[487]

Tappin

Christopher Tappin v The Government of the United States of America (2012) EWHC 22 (Admin)

In 2007, the US charged Christopher Tappin and others with the commission of three offences:

(1) conspiracy to export batteries;

(2) attempting to export, and aiding and abetting the attempted export of, the batteries; and

(3) conspiring to conduct illegal financial transactions in transferring funds to pay for the batteries.

In 2010, the US submitted an extradition request to the UK for his surrender to stand trial.

The facts alleged were that Mr Tappin and another UK citizen operated an export business in Cyprus, and that they conspired with Mr Gibson, a US citizen, to export and sell material requiring a licence.

MGE was a shell company established by the US Department of Homeland Security, Immigration and Customs Enforcement, and staffed with its employees. MGE monitored and investigated suspicious activities of companies or individuals seeking to circumvent prohibitions on exporting technology requiring a licence.

It was alleged that, in 2005, a potential buyer of licensable technology contacted MGE asking to buy licensable technology (surveillance equipment) and avoiding licence controls. The buyer said Mr Gibson would be in contact. When Mr Gibson contacted MGE he confirmed his intention to avoid licence requirements, in particular he asked about Hawk missile batteries.

In 2006, Mr Gibson met an MGE agent in New York to see the technology and Hawk batteries before purchase and shipping. Mr Gibson said Mr Tappin would arrange collection of the materials. Mr Gibson was arrested (unbeknown to Mr Tappin) and agreed to share emails between them with the authorities. Their emails detailed the negotiations for the purchase of Hawk Missile batteries and other licensable technology, and the problems of ordering the batteries in the US. Mr Gibson was to purchase the batteries, whilst Mr Tappin was to arrange shipping in exchange for 50% of the profits from the sale of batteries.

Mr Gibson explained to MGE that the batteries were to be shipped from the US to The Netherlands and then on to Iran; they had used that route for prior illegal exports of US technology to Iran. The route via The Netherlands avoided the UK prohibition on exporting military components to Iran. He confessed he was buying the technology and Hawk batteries for a long-standing Iranian customer in Teheran.

Mr Tappin told MGE he wanted to proceed with the order and requested a quotation for the price of five batteries. He gave a telephone contact number in the UK that matched that which Mr Gibson had given for Mr Tappin. Mr Gibson contacted the Iranian customer at the request of MGE, who said that in Gibson's absence he was dealing directly with Mr Tappin for the purchase of both the licensable technology and the Hawk Missile batteries.

In October 2006, Mr Tappin contacted MGE to negotiate a purchase price. Mr Tappin devised the cover that the batteries were for electroplating by a Dutch chemical company. He gave MGE the shipping details, asking the batteries be addressed to Senator International BV, Schipol Airport, The Netherlands ("Senator"), and that the licensable technology be sent to him in the UK. Mr Tappin agreed to submit a purchase order describing the batteries in a manner of his choosing reflected in the invoice, but with a true invoice describing the batteries correctly for the end user in Iran.

MGE's agents gave Mr Tappin an opportunity to withdraw from the transaction on 19 October 2006, but he persisted saying he would be placing more orders for this type of battery once these were shipped.

On 26 October, Mr Tappin was told that a US Customs and Borders Protection officer had detained the licensable technology destined for the UK. Senator was also told the batteries had been detained. One of MGE's agents told Mr Tappin not to worry and that if Customs contacted him he should say he ordered what was indicated on the shippers' export declaration.

In a conversation with US customs officer on the 1 November, Mr Tappin said the licensable technology was destined for an oil company in Norway. He said he did not know whether it was licensable or not, that being a decision for the exporter. The following day, Mr Tappin emailed customs officers to say the Norwegian company was called Kvaerner, a name which in fact appeared in emails and facsimiles between Mr Gibson and Mr Tappin as a cover for Iranian exports.

On the 7 November, Mr Tappin contacted MGE to ask what explanation he could give US customs' officers about the batteries' use. He was told by MGE their only use was for the Hawk Missile system. Mr Tappin suggested a possible automotive use and asked MGE's agent about describing the batteries for use in electroplating. He told the MGE agent that he wanted their stories to match. It was that same day that Mr Tappin informed Senator that the batteries were destined for a Dutch chemicals company, that they were for electroplating, and that he did not know of any licensing restrictions in Europe which applied to them.

Mr Tappin then told MGE they would be contacted by a Mr Caldwell. When Mr Caldwell contacted MGE he described himself as Mr Tappin's agent, and agreed to buy batteries from MGE in a domestic US sale so that he and Mr Tappin could export them by January 2007. Shortly thereafter, Mr Tappin contacted MGE to ask whether the difficulties with US customs had been overcome, and discussed future orders.

Mr Tappin and the others were charged with criminal offences in the US. Following his guilty plea, Mr Gibson was sentenced to two years' imprisonment in February 2007. A jury convicted Mr Caldwell of aiding and abetting the illegal export of Hawk missile batteries in June 2007 and, later that year, he was sentenced to 20 months' imprisonment. Nothing happened in relation to Mr Tappin until December 2009. Throughout the process he denied the allegations. He contended that he was the victim of the unlawful conduct of US agents working for MGE who, he asserts, acted deceitfully in order to ensnare and entrap him.

The arguments raised on appeal were:

· oppression: that extradition should be barred by virtue of the passage of time since the offence;

· Article 8: that there was an "exceptionally compelling" feature about the effect of extradition on the family unit that made it disproportionate;

· whether the offence constituted an extradition offence and lack of dual criminality;

· abuse of process: that the US prosecutors had abused their power by bringing a prosecution based on entrapment and that it was an abuse of the process of the UK extradition court to maintain the request.

The appeal was dismissed on every ground.

Mr Tappin was extradited to the US on 24 February 2012. He was held in pre-trial detention in Otero County jail in New Mexico until he was granted bail on 25 April 2012. On 1 November 2012, Mr Tappin pleaded guilty as part of a plea bargain. The original charges against him could have resulted in up to 35 years in prison. Under the terms of the plea bargain he pleaded guilty to one indictment and was sentenced to 33 months in prison and was fined $11,357. On 28 September 2013, he was returned to the UK to serve the remaining 14 months of his sentence at HM Prison Wandsworth.

Mariusz Wolkowicz

Polish Judicial Authority v Mariusz Wolkowicz (alias Del Ponti) (2013) EWHC 102 (Admin)

On 26 May 2011, the Polish authorities issued a conviction EAW against Mr Wolkowicz. The EAW related to 24 different offences including burglary, forgery, theft, assault, robbery and several offences of escaping from custody and failing to surrender. He had been sentenced to a total of 14 years imprisonment and had at least nine years left to serve. Towards the end of the proceedings in relation to the initial EAW, the Polish authorities also issued an accusation EAW in relation to obtaining a pecuniary advantage by deception by selling fake gold rings.

Mr Wolkowicz was arrested in the UK on unrelated matters under the alias Del Ponti. According to Mr Wolkowicz he had moved to the UK to join family members as he was disabled and hoped to receive better medical treatment in the UK.

In both Westminster Magistrates' Court and the High Court, it was argued that Mr Wolkowicz's extradition would be disproportionate due to his medical conditions. The courts heard expert evidence from two urologists, a neurologist and a psychiatrist. In addition, Mr Wolkowicz commenced judicial review proceedings in relation to his detention on remand. These proceedings included evidence from a second psychiatrist.

The High Court found that although Mr Wolkowicz's physical and mental conditions were genuine (though there was conflicting evidence about the severity of his psychiatric condition), this did not amount to sufficient reason to prevent his extradition. The Court noted that the District Judge had been "satisfied with the observations of the Polish Judicial Authority that there was no evidence that any penal institution had failed to provide proper medical care for Wolkowicz",[488] including his mental health and the risk of suicide, his urological condition and the fact that he was largely wheelchair bound. He also noted that there was "no evidence at all to impugn the ability of the Polish authorities"[489] to take suitable steps to mitigate the risk of Mr Wolkowicz committing suicide. Extradition was therefore ordered.

Upon his return to Poland, Mr Wolkowicz alleges that he was badly treated by the prison authorities. His transit from the UK to Poland was not suitable to his condition. He was moved several times from one prison to another. He was placed in cells that were inappropriate for a wheelchair user. He received inadequate medical care.

In view of their inability to ensure his proper treatment, the Polish authorities decided to release Mr Wolkowicz as further detention could pose a risk to his life or cause serious damage to his health.

Mr Wolkowicz has since commenced proceedings in the ECtHR against the Polish and UK authorities. Assurances were given to the UK authorities that he would receive a suitable standard of treatment in Poland, which he alleges were not honoured.

472 BH (AP) and another v The Lord Advocate and another (2012) UKSC 24 at 1 Back

473 As per the forum bar in the Extradition Act 2003, section 19B(2)(a) Back

474 Paul Dunham, Sandra Dunham v Government of the United States (2014) EWHC 334 (Admin) at 6 Back

475 Paul Dunham, Sandra Dunham v Government of the United States (2014) EWHC 334 (Admin) at 35 Back

476 Paul Dunham, Sandra Dunham v Government of the United States (2014) EWHC 334 (Admin) at 57-60 Back

477 Written evidence from Paul and Sandra Dunham (EXL0047) Back

478 Written evidence from Andrea Leadsom MP (EXL0085) Back

479 Norris v United States (2010) UKSC 9 at 56 Back

480 Norris v United States (2010) UKSC 9 at 65 Back

481 HH & Ors v Deputy Prosecutor of the Italian Republic, Genoa & Ors (2012) UKSC 25 at 47 Back

482 McKinnon v Government of the United States of America and another (2008) UKHL 59 at 9 Back

483 McKinnon v Government of the United States of America and another (2008) UKHL 59 at 38 Back