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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Syed v Government of Switzerland & Anor [2024] EWHC 1959 (Admin) (31 July 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/1959.html Cite as: [2024] EWHC 1959 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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AHSAN ALI SYED |
Applicant |
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- and – |
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(1) GOVERNMENT OF SWITZERLAND (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondents |
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Nicholas Hearn and Hannah Burton (instructed by CPS) for the First Respondent
Catherine Brown (instructed by GLD) for the Second Respondent
Hearing dates: 23 July 2024
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Crown Copyright ©
Mr Justice Julian Knowles:
Introduction
Factual background
Grounds of appeal
a. the extradition request is inadequately particularised so that it is impossible to apply the dual criminality test (Ground 1);
b. the Applicant's extradition is barred on the ground of double jeopardy (s 80, EA 2003) (Ground 2);
c. the Applicant's extradition is barred by the passage of time (s 82, EA 2003) (Ground 3).
Discussion
"… It is clear that the scheme of the Act, and such authority as there is, lead to the very clear conclusion that in determining the issue of dual criminality the court examines the documents constituting the extradition request. It determines on the basis of that material whether the conduct alleged in the documents constitutes an offence under the law of England and Wales."
"It is not permissible for a requested person to put in evidence contradicting what is set out in the extradition request, unless he can bring himself within the very narrow exception to which we refer at paragraphs 14 and following below [ie, abuse of process]. The court must proceed to determine the issue of dual criminality on what is set out in the extradition request alone."
"20. Moreover, when requiring the District Judge to decide in a Part 2 case whether the offence specified in the request is an extradition offence, section 78(4)(b) does not limit him to the information contained in the originating request."
"The matters never came before a court as such, but it appears the prosecutor was acting in a judicial capacity which is common in countries which use an inquisitorial justice system. The Prosecutor examined detailed evidence before him and questioned witnesses. The requested person was interrogated in the process. The Bahraini prosecutor has given reasons why the prosecution should not proceed, essentially, he says that there is insufficient evidence to show that the case involves a fraudulent misrepresentation rather than a civil breach of contract."
"The Zurich Public Prosecutor's Office therefore clearly and unequivocally denies that a formal 'trial process' which ended in a dismissal charges was ever conducted in Bahrain regarding the accused SYED. Any such assertion is false. Any activity by the authorities in Bahrain was conducted independently and without coordination or consultation with the Swiss prosecution authorities. The same applies vice versa: The Swiss criminal authorities, i.e. the Zurich Public Prosecutor's Office, conducted the proceedings completely independently of the proceedings in Bahrain.
The Zurich Public Prosecutor's Office has concluded that, according to Swiss law, the criminal decision in Bahrain does not constitute an obstacle to prosecution in Switzerland, i.e. that the principles of "ne bis in idem" or "double jeopardy" do not apply. If the Zurich Public Prosecutor's Office had taken a different view, it would not have issued an arrest warrant for the accused SYED and would have closed the present proceedings."
"'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."
"It would be a breach of the Applicant's ECHR Article 8 rights to extradite him to Switzerland by reason of the revocation of his Turkish nationality, and the Turkish nationality of his wife and three daughters. (This revocation also strengthens the passage of time argument, above.)"
Conclusion