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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 691 (Admin)
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MAUREEN ADEBAYO
|- and -
|CENTRAL INVESTIGTION COURT NO 3 MADRID (SPAIN)
David Ball (instructed by CPS) for the Respondent
Hearing date: 16.3.23
Crown Copyright ©
MR JUSTICE FORDHAM:
The Section 2 Issue (Particulars)
particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which [they are] alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence.
In FK v Germany  EWHC 2160 (Admin) the Court said (at §54):
About the particularisation required by these provisions, the following propositions, regularly repeated in the authorities … are uncontroversial. There is a particularly high level of mutual trust, confidence and respect between states which are parties to the Framework Decision. The object of the EAW process is to remove the complexity and potential for delay in extradition between such states. There is consequently no requirement for full and exhaustive particularisation, the appropriate level of particularisation being dependent upon the circumstances of the specific case. In assessing whether a description is adequate, the EAW should be considered as a whole. However, sufficient circumstances must be set out to enable the requested person and the requested state (i) to identify the offence with which the requested person is charged; (ii) to understand, with a reasonable certainty, the substance of the allegations against the requested person and in particular when and where the offence is said to have been committed, and what he is said to have done; (iii) to perform a transposition exercise, when dual criminality is in issue; and (iv) to determine whether any compulsory or optional barriers to extradition apply. Where a request for extradition is made in respect of more than one offence, each offence must be adequately particularised.
[i] Continual swindling, set forth in Article 74, 249 and 250-1.5 of the Criminal Code, [ii] receiving stolen goods and/or money laundering, set forth in Articles 298 and 301 of the Criminal Code, and [iii] participation in a criminal organisation, set forth in Article 570 bis of the Criminal Code.
Investigations conducted so far provide rational indications of criminal activity, through which it is possible to establish the following facts:
 The current investigation is being carried out on a criminal organisation dedicated to swindling and money laundering.
 They are criminal activities that adopt one of the deceptions used in the so called "Nigerian letters" criminal modality: fraudulent offering of transactions for an apparent money gain.
 The investigated Maureen MOWUNMI ADEBAYO is engaged in the criminal organisation, playing the role of a "mule", which consists of knowingly providing the organisation with bank accounts, in her own name or in the name of legal entities of which she is the administrator, so as to receive the fraudulent transfers made by the victims, and then making further transfers or withdrawals of cash; in this way, the profits made from the criminal activity committed are channelled, facilitating the circulation of the fraudulent economic benefit and its laundering, with full knowledge of the illicit origin of the funds.
 The charged person, Maureen MOWUNMI ADEBAYO, following the methodology used by this organisation, after receiving a transfer from Klaus Dieter MULLER, transfers the money to someone called Gladys, with the aim of moving the money between different accounts, generally belonging to people from her country, thus making it more difficult its tracking. These people, called mules, sometimes hold a network of bank accounts, either in their own name or in the name of various companies, as in the case of Maureen MOWUNMI ADEBAYO, who is the sole administrator of ALKABIR GLOBAL SERVICES and of the company M.A.M Holding Incorporations S.L.
 Documents received from the banks with the accounts held by legal entities or companies related to this charged person show transactions for which she uses three accounts in two banks.
 In short, international transfers and revenues received by Maureen MOWUNMI ADEBAYO from illicit origin amount to, at least, €30,915.33.
The present investigation deals with deception through the use of 'Nigerian letters'. The defendant Maureen MOWUNMI ADEBAYO is related to the Criminal organization where she provided bank accounts for the organization. This way she received fraudulent transfers from the victims. Each time she received a money remittance, she would make another transfer in order to make it difficult to follow the money. At the end the income received with fraudulent origin, adds up to at least a total of 30.915,33 euros.
 Maureen Mowunmi ADEBAYO, with NIE Y-1697661-E, born on 11/08/1968 in Lagos (Nigeria) sole administrator of the company that owns the described Cajastur account, it is about which, following the methodology used by this After receiving the transfer from Klaus Dieter MÜLLER, the organization makes a transfer to Gladys JOHNSON with NIE X-3286801-D, born on 07/15/1974 in Delta (Nigeria), with the aim of moving the money between different accounts , generally of compatriots, and thus make it difficult to follow.
 The banking operations described are consistent with the modus operandi that the organization has been using to receive money from alleged victims of fraud, through social engineering. In this way, those investigated would make use of psychological techniques and social skills used in a conscious and premeditated way, to manipulate and produce deception in order to get potential victims to carry out acts to their own detriment, consisting of making bank transfers.
 The involvement of the affiliate stems from the relevant effects intervened against the defendant SAMSON EBERE, alias "Bigi" with NIE X-2913442-D. Among them are documents related to the Cajastur entity in relation to banking operations of the account 20480323173404001679 in the name of the company ALKABIR GLOBAL SERVICES S.L. as of 07/23/2014. The transactions include the receipt of a transfer dated 07/22/14 for the amount of €12,000 from the sender of Klaus Dieter Müller, followed by the sending on the same day of another transfer for the amount of €10,000 to Gladys Johnson.
 This people. called mules, are sometimes holders of a network of bank accounts, either in their name or in the name of various companies, as is the case of the so-called Maureen Mowunmi ADEBAYO, which appears as the sole administrator of the aforementioned ALKABIR GLOBAL SERV1CES and of the company MAM HOLDING INCORPORATIONS SL, establishing a police record for this person for reasons such as Usurpation of Civil Status, Fraud, Money Laundering, Documentary Falsehood and Illicit Association.
 TRANSFER NUMBER 01 On 08/19/2013, MAUREEN MOWUNMI ADEBAYO receives in this account by international transfer, the amount of 2,884.33 euros, from SWIFT BOFAUS3NXXX, from the account / 0000149342257, belonging to the entity BANK OF AMERICA, NA. Located in (NEW YORK, NY) with MARY HADDEN METCALF as payer, being the concept "transfer: Foreign Currency".
 TRANSFER NUMBER 02 On 09/13/2013, MAUREEN MOWUNMI ADEBAYO receives in this account by international transfer, the amount of 3,031.00 euros, from SWIFT DEUTDEFFXXX, from the account / 1000151545661, belonging to the entity DEUTSCHE BANK AG. Located in GERMANY stating as payer KATHLEEN M MILLER, the concept being "transf: IN YOUR FAVOR".
 TRANSFER NUMBER 03 On 09/25/2013, MAUREEN MOWUNMI ADEBAYO receives in this account by international transfer, the amount of 5,000.00 euros, from SWIFT DEUTDEFFXXX, from the account / DE826007002409, belonging to the entity DEUTSCHE BANK PRIVAT located in GERMANY stating as payer RUDNER, WOLFGANG, the concept being "transf: IN YOUR FAVOR".
i) FI#1 paragraph  (§6 above) stands alone in providing the relevant description of this "fraud" offence, identifying the all-important "conduct which is said to constitute the offence" (Biri v Hungary  EWHC 50 (Admin)  4 WLR 50 §32). This offence is clearly distinct from the second offence (receiving or money laundering). The fraud is the conduct of 'tricking people into making a bank transfer'. It is what the Respondent's Notice describes as the Appellant's "involvement … which goes further … than her involvement as a mule". Paragraph  of FI#1 puts it as follows:
… the modus operandi that the organization has been using to receive money from alleged victims of fraud, through social engineering… [where] those investigated would make use of psychological techniques and social skills used in a conscious and premeditated way, to manipulate and produce deception in order to get potential victims to carry out acts to their own detriment, consisting of making bank transfers.
It is true that different alleged criminal offences may overlap and be "closely interconnected" (as in Tappin v USA  EWHC 22 (Admin) at §§39, 46). For example, as would be the case where the same conduct is described alternatively as fraud, theft or obtaining by deception; or where the same conduct is described alternatively as receiving stolen property and money laundering. But here there is distinct conduct constituting the offence of fraud but wholly lacking in particulars far as the appellant's alleged conduct is concerned.
ii) So, that is the fraud. But there are no particulars at all of any such incident in which the Appellant is said to have acted in this way: to 'trick any person into making a bank transfer'. Transfers are described in September 2013 and July 2014 (EAW box [e] paragraph ; FI#1 paragraphs -). But, in relation to those transfers, no participation in the fraud (tricking the individual into making the transfer) is attributed to the Appellant. The expansive outlines are vague and generic making specialty protection ineffective and illusory. There are "insufficient particulars", of a nature as would leave the Appellant – post-surrender – in a position where she would be "unable to assert … her entitlement to Specialty Protection" (M & B v Italy  EWHC 1808 (Admin)  ACD 98 §47), a protection which operates by asking "whether there is a sufficient correspondence" between the EAW offence and one identified post-surrender (Leymann Case C-388-08 1.12.08 §59).
iii) There are further problems. Even if the Appellant's alleged participation did not involve an act by her of 'tricking a person into making a bank transfer', there still need to be particulars describing those acts by whoever did them. The Appellant needs to be told in what she is said to have been 'participating'. There is no specific description of any incident. There is no description of any specific representation made, by whom, to whom, when or with what purpose. Further, no chain of knowledge and therefore secondary participation is described. Then there is this problem. The EAW refers to a possible 6 year sentence. But that would involve a swindled amount exceeding €50,000 or a "large number of people" swindled (Article 250 of the Criminal Code). But EAW box [e] paragraph  and FI#1 paragraphs - identify only four specific victims (in date sequence: Metcalf, Miller, Rudner and Muller) and EAW box [e] paragraph  and the SI identify only an aggregate amount of "at least €30,915.33".
iv) As to when the alleged fraud offending took place, section 2(4)(c) requires "particulars of … the time at which [the Appellant] is alleged to have committed the offence", "sufficient … to enable [her] to understand with a reasonable certainty when the offence is said to have been committed" (FK at §54). That, in principle, requires a specified date or specified date range.
v) As to where the alleged offending took place, section 2(4)(c) requires "particulars of … the place at which [the Appellant] is alleged to have committed the offence", "sufficient… to enable [her] to understand with a reasonable degree of certainty… where the offence is said to have been committed" (FK §54). Even leaving aside any question of whether there was any element which took place in the territory of Spain, and recognising that the transferred funds of three named victims (Metcalf, Miller and Rudner) are described as having been in the US and Germany, clarity of particulars is needed as to where the Appellant's alleged offending is said to have taken place.
vi) Whether any part of the offending was in Spain has a particular relevance in the context of being able to "perform a transposition exercise, when dual criminality is in issue" (FK §54). As the Respondent accepted before the Judge and in the Respondent's Notice, viewing this as the "extraterritorial" offence of "fraud" (which 'tricking individuals to make bank transfers' must be), dual criminality would need some of the relevant conduct to have taken place in Spain (cf. FK §70). It follows that it is essential that the particulars spell out the conduct said to have taken place in Spain.
vii) However, as to whether any conduct took place in Spain, nothing in the EAW/SI/FI describes conduct in Spain. It is impossible to "infer" such conduct from the EAW/SI/FI, and wrong in principle to seek to do so from "external" evidence. It is true that in Mlynarik v Czech Republic  EWHC 3312 (Admin)  ACD 16 at §17 and Hughes v Sweden  EWHC 2707 (Admin) at §8, Courts were prepared to derive 'gap-filling' assistance from a requested person's own evidence or conduct. Those cases are distinguishable (being about dual criminality). They are also wrongly decided on this point. That is because dual criminality engages section 66(1A) of the 2003 Act with its deliberate focus on the conduct specified in the EAW, codifying the principle in Shlesinger v USA  EWHC 2671 (Admin) at §12. The Judge was therefore wrong to accept arguments relying on "Cajastur" and the "Cajastur account" (FI#1 paragraphs , ) as describing a Spanish bank and Spanish bank account, derived from extraneous open source material. The Judge was also wrong to accept an argument relying on the Appellant's own evidence that she was in Spain at the material times, and an evidenced Spanish conviction for a December 2015 offence (cf. Bober v Poland  EWHC 1409 (Admin) §34). The Respondent is wrong on this appeal now to rely on "Cajastur" as a Spanish sounding name (cf. Bober §33). As to the EAW/SI/FI, no sound inference can be derived from the fact (recorded in FI#2) that the Spanish Supreme Court in February 2017 decided that the Spanish courts have criminal jurisdiction (cf. Bober §32); or from the fact that there was a letter of request from the German authorities specifically inviting the Spanish to carry out an investigation. The Judge was wrong to accept that the allegation against the Appellant involves alleged receipt of transferred monies into Spanish bank accounts operated or controlled by her; still less to the criminal standard.
The High Court has repeatedly stated that, in effect, the requested person merely needs to be made aware of what it is that he is said to have done wrong and what crime(s) he is to be tried for in the event that extradition were to be ordered.
The Judge also referenced section 206 and the need to be satisfied that the required particulars are made out to the criminal standard. He made reference to a number of authorities including judicial observations about: the importance of identifying one or more "episodes of conduct" constituting each of the foreign offences (Biri §32); and the importance of particulars being sufficient to enable an accused person to be able adequately to secure the protection of the specialty rule, post-surrender (citing Dhar §63). None of the Judge's discussion of any of this has been criticised by Mr Tinsley.
i) The Judge's (accurate and uncriticised) summary of the EAW at the beginning of his judgment was this:
The details of the criminal conduct in the EAW can be summarised as follows: [a]The Spanish conducted an investigation into a criminal organisation dedicated to swindling and money laundering by a "Nigerian Letters" method of fraudulently offering transactions for monetary gain; [b] Ms Adebayo acted as a "mule" for the criminal organisation (and thereby was engaged with it). [c] She knowingly provided the criminal organisation with bank details of three accounts held at two banks comprising personal account(s) and two accounts held by business entities (Alkabir Global Services and MAM Holding Incorporations S.L) she was associated with; [d] These accounts received fraudulent transfers made by victims; [e] Thereafter, she then made further transfers or withdrew cash with full knowledge or the illicit origin of the frauds. [f] After receiving a transfer from Klaus Dieter Müller, she transferred money to another person (named 'Gladys') with the aim of moving it between accounts belonging to people from Nigeria and making it more difficult to trace. [g] The RPs received 30,915.33 Euros of money of illicit origin.
ii) The Judge's (accurate and uncriticised) summary of FI#1 included this description of FI#1 paragraph , being that:
The criminal organisation would use 'psychological techniques and social skills used in a conscious and premeditated way, to manipulate and produce deception in order to get potential victims to carry out acts to their own detriment, consisting of making bank transfers'.
Mr Tinsley's argument treats this paragraph, which the Judge was right in characterising as the description of what "the criminal organisation" was doing, as constituting an unparticularised alleged course of conduct on the part of the Appellant. But it is not.
iii) The submission which the Judge carefully recorded in the Judgment, and which he accepted in the context of the description of the "fraud", was as follows:
[T]he description of the fraud does relate to MA. She is said to be involved in receiving the proceeds of the fraud directly from the victims in relation to at least four offences. Furthermore, this receipt was said to have been in the full knowledge of the deceitful way in which the money was obtained and it is submitted that it is not necessary to point out that the receipt of the monies is a crucial element of the successful completion of the fraud. Her involvement on the totality of the information is said to have gone further than her involvement as a mule.
iv) If I posit the Appellant straightforwardly asking:
What courses of conduct are alleged against me?
The answer is equally straightforward.
You knowingly made bank accounts (of yours or under your control) available to an organised group, for them to use in fraudulently inducing bank transfers for bogus transactions. You then knowingly received moneys into those bank accounts – including transfers direct from victims – knowing the 'illicit origination' of those bank transfers. You also knowingly received transfers and made transfers, in and out of those accounts, to dissipate and distance amounts received from bank transfers with this illicit origination'.
I have used the phrase "illicit origination" deliberately. The EAW/FI speaks of known "illicit origin" (EAW box [e] paragraphs  and ). But, plainly, that cannot be a description of the victims' bank accounts, as the 'source' from which the transfers are said to have originated. The known "illicit origin" is how the transfers originated. That is, that the organised group was using the Appellant's controlled bank accounts as a destination – including a direct destination – for bank transfers 'made by victims to their own detriment', as a result of 'the conscious and premeditated manipulation and deception' by members of 'the criminal organisation'. The Appellant did not undertake that premeditated manipulation and deception. But she knew that premeditated manipulation and deception was the 'illicit origination' of the transfers.
v) Mr Tinsley's arguments seize on the description of the Appellant being alleged to have had an involvement "further" than as a mule. But that does not mean she is being alleged to have been a perpetrator of the 'trickery': the 'conscious and premeditated manipulation producing the deception to get a victim to carry out a detrimental bank transfer'. This is clear from the Judge's summary of the submission which he accepted (§12iii above). It is also clear from §§44a-b of the Respondent's Notice on this appeal. To set the scene, §11 of the Perfected Grounds of Appeal, like Mr Tinsley's oral argument, had focused on paragraph  of FI#1. The response (Respondent's Notice §§44a-b) said this:
The description of the fraud goes beyond the extract given the Applicant at paragraph 11 of the Perfected Grounds (albeit that this description alone does describe a clear fraud). The totality of the information in the EAW and FI should be considered, for example describing the conduct as 'carding', the description of the underlying legislation and the Framework List being marked for 'swindling'. Furthermore, there are four instances of specific transfers directly from the victims of the fraud into her account which evidently constitute a crucial part of the fraud, being the immediate fruits thereof. The description of the fraud does relate to the Applicant and her role within this is clearly specified. She is clearly involved in receiving the proceeds of the fraud directly from the victims on the four specific occasions. Furthermore, this receipt was in the full knowledge of the deceitful way in which the money was allegedly obtained. It is otiose to point out that the receipt of the monies is a crucial element of the successful completion of the fraud. Her involvement on the totality of the information goes further, therefore, than her involvement as a mule.
i) In FI#1 (part and parcel of EAW) there is reference to "Cajastur" and the "Cajastur account". The point made by the Judge goes very much further than this being a "Spanish sounding name". After all, so is Santander, as Mr Tinsley points out. The point is that "Cajastur" is a Spanish bank (Google it). The phrase "Cajastur account" is describing an account in a Spanish bank. That is what those words mean in the EAW. I do not think that is filling a lacuna. It is an interpretation of the words. It is an interpretation, using a sensible aid to interpretation, to understand what it is it is being said in the EAW. It is not "reading in". Suppose a UK EAW accused someone of a burglary at "the Shard". A Spanish extradition judge might need no assistance to understand that locational significance. But if help were needed, it would be in explaining and understanding what the words mean. If I am wrong, and this is gap-filling, I do not see it as offending against the meaning or purpose of any provision or principle. Added to that is the feature described in FI#2 that the Spanish Supreme Court has made a decision that the conduct engages the criminal jurisdiction of the Spanish criminal courts, a point convincingly relied on in Bober §32, and one which is not based on any extraneous material.
ii) In any event, provided always that all relevant purposes of section 2 particularisation are satisfied and secured, I cannot see why points arising from the requested person's own evidenced lived experience should be disregarded. At the heart of the function of section 2 particularisation is the idea of the requested person being in a sufficiently informed position to know the substance of the allegations being made against them. Their own evidenced position could be relevant to whether they are unable to understand what is being said. I have not been persuaded that Mlynarik and Hughes are wrongly decided or distinguishable because they are concerned with section 10. I cannot accept the suggestion that the principle codified in section 66(1A) was overlooked, not least because that principle derives from Shlesinger at §12, which featured in Mlynarik at §23. I see no error of approach in the Judge taking into account that the Appellant, on the evidence, was resident in Spain at the times of the alleged receipt of moneys into bank accounts which she controlled.
The Section 21A(1)(b) Issue (Statutory Proportionality)
21A Person not convicted: human rights and proportionality (1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ("D")— (a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; (b) whether the extradition would be disproportionate. (2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account. (3) These are the specified matters relating to proportionality— (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D. (4) The judge must order D's discharge if the judge makes one or both of these decisions— (a) that the extradition would not be compatible with the Convention rights; (b) that the extradition would be disproportionate. (5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions— (a) that the extradition would be compatible with the Convention rights; (b) that the extradition would not be disproportionate…
The Article 8 Issue (Private and Family Life)
i) There was no error of law or approach in the Judge's Article 8 assessment. The familiar trilogy of authorities (Norris, HH and Celinski) were all identified. The Judge faithfully applied the Article 8 'balance-sheet' and 'balancing' exercise. The Judge had regard to the relevant features. That included the Appellant's settled position in the UK since December 2016 her employment and accommodation and her absence of UK convictions. It included taking full account of the fact that she is not a fugitive. The Judge had regard to the position of the daughter and granddaughters and the payments being sent to Nigeria. He had regard to the position of the mother. He also weighed in the balance the fact that it is not inevitable that there would be imprisonment on conviction. But having said all that, he explained that there was the strong public interest consideration in favour of extradition; the seriousness of the alleged offences; the previous conviction in Spain; the limited nature of the ties to the UK; the absence of any evidence from the Appellant's UK-based husband; and the position as to the expiry of her leave to remain in September 2022.
ii) So far as the payments to Nigeria were concerned, the Judge identified discrepancies in the evidence. Foremost among this was an affidavit from the daughter which clearly states amounts of regular monthly payments. The documentary evidence, including the putative fresh evidence before me, does not substantiate those claimed amounts. One of the problems with that is that it gives rise to doubts about the veracity of what is being said in the evidence. There is clearly a real prospect of material exaggeration. The daughter's written statement – which was not accepted and on which she was not being cross-examined – was rightly approached with caution by the Judge. There was no evidence about the two brothers, also living in Nigeria. Looking at the putative fresh evidence before me, it now emphasises that the recently deceased brother was providing a material degree of care for the mother until the fatal farm accident in February 2023. The evidence that was before the Judge made no mention of the mother being cared for, to any extent, by that brother. His support has featured now in the evidence, to make a point about significant care no longer being available. That again raises obvious question marks about the veracity of the evidence as a whole. It also brings into sharp focus what the position of the other brother is on which there is still no evidence. Unlike the hearing before the judge with oral evidence from the Appellant and cross-examination, this Court on appeal is being asked to accept recent documents at face value. Circumspection is appropriate.
iii) Taking at their highest all the matters capable of weighing against extradition, and in combination, including the contention that the less coercive measure of an interview would be a viable next step alternative, I am unable to conclude that the outcome at which the Judge arrived on Article 8 was the wrong one. On the contrary, I am entirely satisfied that the Judge was correct. The alleged offences are serious matters. They can be expected, on a conviction, to lead to a significant period of custody. There are strong public interest considerations in favour of extradition, which decisively outweigh the features capable of weighing against it. The putative fresh evidence is incapable of being decisive and I will formally refuse permission to adduce it. This final ground of appeal therefore fails and with it the appeal as a whole.