Dhar v National Office of the Public Prosecution Service the Netherlands

A European Arrest Warrant must state the alleged conduct clearly enough for the requested person to understand, with reasonable certainty, what he is said to have done and, where knowledge is an ingredient, why the necessary knowledge is alleged. The description must also permit the court to determine dual criminality.

Concise particulars suffice, but a critical allegation cannot remain materially ambiguous. For money laundering, the alleged facts must show that the property was already criminal property when the relevant dealing or arrangement occurred. The principle of transposition cannot convert conduct which is lawful domestically into criminal conduct when that conduct is capable of occurring here.

The appellant challenged a District Judge’s order for his extradition to the Netherlands under Part 1 of the Extradition Act 2003. An accusation European Arrest Warrant alleged that he had participated in money laundering connected with an illegal Hawalla banking operation and suspected drug traffickers.

The appeal concerned whether the Dutch Public Prosecution Service was a judicial authority; whether information added to the warrant before certification formed part of it; whether the alleged conduct was adequately particularised under section 2(4)(c); and whether the conduct satisfied the dual criminality requirement in section 64(3)(b).

1. Appeal allowed and discharge ordered. The warrant failed to contain the information required by section 2(4)(c) of the Extradition Act 2003. The specified offence was also not an extradition offence under section 64(3). The appellant was therefore discharged under section 27(5) (King J, Moore-Bick LJ agreeing) (paras 106–119).
2. A prosecution authority designated by a Member State may qualify as a judicial authority. The expression must be construed in the context of the Framework Decision and the diversity of national arrangements. Designation is not necessarily conclusive where the authority is self-evidently outside the broad meaning of judicial authority, as an executive ministry would be. Nothing showed that the Dutch Public Prosecution Service fell outside the permitted category (paras 41–47, 109–111).
3. A certificate under section 2(7) or (8) certifies that the issuing body has the function of issuing arrest warrants. It does not conclusively certify that the body is a judicial authority under section 2(2). That issue may therefore be raised in an extradition appeal. A challenge contradicting the certified fact that the body possesses the issuing function would require judicial review (paras 34–40, 47–48).
4. The formal validity of a warrant is assessed when the designated authority certifies it and the execution procedure begins. Before certification, the issuing authority may amend a warrant on its face to supply omitted information. Such an integral amendment is not extraneous information (paras 49–58, 112–113).
5. Section 2(4)(c) does not require the detail of an indictment or civil pleading. It nevertheless requires clear particulars of the substance of the allegation, including the requested person’s conduct, participation, time and place. The assessment balances concise and simple description against the need to avoid unfair prejudice and to permit consideration of statutory bars, speciality and dual criminality (paras 59–70, 117).
6. The critical allegation concerning funds received in the United Kingdom was ambiguous about their source, their connection with drug trafficking, whether they were already proceeds of crime, and the appellant’s role and knowledge. The general allegation of membership of a money laundering conspiracy did not cure those defects. The warrant was consequently invalid under section 2(4)(c) (paras 80–84, 114–117).
7. Dual criminality depends on the conduct alleged, rather than correspondence between the foreign and domestic offences. The allegations did not show that the property was already criminal property when dealt with, or support an inference of an agreement to launder criminal proceeds or traffic in drugs. Transposition could not turn Hawalla banking, which was capable of being lawfully conducted here, into an unlicensed domestic financial activity (paras 85–102, 118–119).

1. High Court (Administrative Court): The appeal was allowed. The extradition order was displaced and the appellant was discharged.
2. City of Westminster Magistrates’ Court: On 7 September 2011 District Judge Tubbs ordered the appellant’s extradition to the Netherlands for prosecution for money laundering.