GUENTHER KLAR v COURT OF FIRST INSTANCE BRUSSELS (BELGIUM)

An extradition warrant must particularise the circumstances of each alleged offence, including the conduct, time and place, and the relevant foreign-law provision. The description need not resemble an indictment, but it must enable the requested person to understand the nature and extent of the allegations, consider statutory bars, invoke specialty and, where necessary, undertake the dual-criminality transposition exercise. A warrant may be read with supplementary information unless it is wholly deficient. Where the warrant and supplementary information identify the alleged fraud, money laundering conduct, participants, amount and temporal boundaries, the statutory requirement may be met. A bare reference to participation in or control of a criminal organisation, without identifying the alleged associates, agreement, organisation or role, is insufficient. The same deficiency may also prevent dual criminality from being established.

The appellant challenged an order for his extradition made by District Judge Zani on 14 January 2021. The European Arrest Warrant sought his return to Belgium for alleged tax fraud, money laundering and participation in or control of a criminal organisation. Leave was granted on three grounds concerning section 2(4)(c), sections 10 and 64, and section 12A of the Extradition Act 2003. The section 12A ground was conceded following Killoran v Belgium [2021] EWHC 2290 (Admin). The remaining issues were whether the warrant sufficiently particularised the alleged offences and whether the conduct identified permitted the dual-criminality exercise.

1. Appeal powers. Under section 27(3) of the Extradition Act 2003, the appellate court may allow the appeal only if the judge ought to have decided a question differently and discharge would have been required. The question was whether the judge’s decision was wrong: Poland v Celinksi [2015] EWHC 1274 (Admin), [2016] 1 WLR 551.
2. Particularity. Section 2(4)(c) requires particulars of the circumstances, conduct, time, place and foreign-law provision. The warrant need not contain the specificity of an indictment. It must, however, give the requested person an idea of the nature and extent of the allegations and sufficient information to consider bars, specialty and dual criminality. The required detail depends on the offence. A discernible temporal bracket is required, though it need not be precise.
3. The fraud allegations were sufficiently particularised. The warrant and further information explained the withholding-tax scheme, false documents and fictitious transactions, the entities involved, the appellant’s alleged leading role, the amount claimed and the period June 2012 to May 2016. The money-laundering allegation was also sufficiently described, since the warrant identified receipt of the proceeds and the further information added their use.
4. The particulars concerning participation in or control of a criminal organisation were wholly deficient. The warrant did not identify any other individual, agreement, organisation, or conduct amounting to participation or control. The further information did not cure the defect: the alleged members remained unidentified, the nature of any collaboration was unexplained, and the appellant’s role was unclear. The court could consider the further information because the warrant was not wholly blank, but it did not provide the necessary particulars.
5. Dual criminality. The court must identify the essence of the conduct constituting the foreign offence and transpose it into domestic law. Because no sufficiently particularised conduct was identified for the criminal-organisation offence, the necessary transposition could not be performed and sections 10 and 64 were not satisfied.
6. The appeal was dismissed concerning time and the fraud and money-laundering offences, but allowed concerning control over or participation in a criminal organisation. The court was to hear counsel on the appropriate order.

• High Court (Administrative Court): The appeal from the District Judge’s extradition order was dismissed in part and allowed in part. The court was to hear counsel on the appropriate form of order.