Ramola D/Posted 10/11/2019
Neelu Berry, pharmacist whistleblower, activist, and reporter, provides this news update this morning on what transpired at the Westminster Magistrates’ Court November 7, 2019 in the case of David Noakes providing lifesaving GcMAF to cancer patients and others, what it really means, and the text of the 20-page written judgment which Judge Tempia openly disclosed was handed to her from an alien party whom she did not name. Please see Open Travesty in UK…for context on this continuing saga of corruption, entrenched power, and the scandalous suppression of a vital cancer cure, GcMAF, by apparent organized crime syndicates operating within the halls of ill-gotten power under the facade of public-service institutions.
News Update from Neelu Berry | 11/11/2019
This is the mysterious text from an alien source which has been allegedly typed as written by Judge Nina Tempia, District Judge of Westminister Magistrates Court, handed to Citizen David Noakes in Court 1 at 10.30am by Judge Tempia, minutes after she confirmed, in front of 30 witnesses in the public gallery, that it was not written by her and therefore could not be changed by her even though there is perjury.
This alien judgement forgets to mention that GcMAF is a naturally occurring protein and therefore does not require licensing by FDA or MHRA or OCLAESP or any other synthetic drug manufacturer licensing authority.
There was a public outcry on the alien decision to extradite David Noakes in 10 days from 7th Nov 2019 and charge him costs even though his bank accounts are frozen and he is a victim of State Pension and Benefit Denial Frauds – he is homeless and penniless like all whistleblowers in the UK.
The UK State is assassinating 500 Cancer patients every day, in conspiracy with France state’s 500 and USA’s 2,500 deaths per day, totally unnecessarily, by denying GcMAF and GOleic.
PLEASE NOTE THE LIE
69.The RP is not of good character in the UK.
THE DAILY DEATHS OF CANCER PATIENTS IS OMITTED HERE
Factors against extradition
70. The RP has been diagnosed with Autism Spectrum Disorder.
71. The RP suffers from depression, type 2 diabetes and high blood pressure.
72. His eyesight deteriorated whilst in prison and he lost a significant amount of weight.
START
IN THE WESTMINSTER MAGISTRATES’ COURT
BETWEEN:
HIGH INSTANCE COURT OF PARIS, FRANCE
ISSUING JUDICIAL AUTHORITY
AND
DAVID NOAKES
REQUESTED PERSON
JUDGMENT
APPLICATION AND BACKGROUND
1. Mr David Noakes, the Requested Person, (“RP”) is sought by an
accusation extradition request under a European Arrest Warrant
(“EAW”) issued by the Public Prosecutor at the High Instance Court of
Paris, the Issuing Judicial Authority (“IJA”) on 9th March 2017. The
EAW was certified by the National Crime Agency (“NCA”) on 13th April
2017.
2. The warrant seeks the RP’s surrender to face trial for 9 offences
concerning the manufacture and sale, without requisite government
authorization, of a product called “GcMAF”, Globulin component
Macrophage Activating Factor.
3. France is designated a “territory 1” country under the Extradition Act
2003 (“EAW”).
4. The RP was arrested on the EAW on t5th April 2017 and appeared at
Westminster Magistrates’ Court on 17th April 2017. He did not consent
to his extradition and the hearing was opened. The RP was released on
conditional bail. He was then charged with offences in the UK which
concerned the sale of the same products which form the basis of the
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warrant and a money laundering offence. He pleaded guilty to the
offences and was sentenced to l5-months imprisonment on 27th
November 2018.
5. At the final hearing on 31st October 2019, the IJA was represented by
Mr Seifert and the RP represented himself after dismissing his legal
team. Mr Seifert told me the warrant the RP faces is an identical
warrant to that faced by Lynda Thyer alleging the same offences. Her
extradition was ordered on 4th May 2018. In a judgment dated 10th May
2019, Supperstone J, in the High Court, dismissed her appeal against
extradition.
6. At the final hearing the RP did not identify himself when he was asked
his name and date of birth, responding that he was a common man and
had a common law birth certificate. However, I was advised that
identity had not been an issue at the initial hearing on 17th April 2017.
7. I asked the RP if he had seen the Opening Note prepared on behalf of
the IJA and was told a copy had been given to him but he had refused
to receive it or to read it.
8. I asked the RP to confirm what the challenges were to his extradition
and he said the arguments he wished to raise were:
(a) This court did not have jurisdiction to deal with his case;
(b) Section 2 of the Act, in that the issuing prosecutor was corrupt, had
no authority to issue the warrant; that it was not based on evidence
and this court did not have jurisdiction to deal with the case;
(c) Double Jeopardy in that he had already served a prison sentence for
the same offences in the UK.
(d) Abuse of process, the warrant having been issued by a corrupt
public prosecutor
9. I asked him if he was going to rely on any further issues raised in the
skeleton argument prepared by his previous legal representatives and
I went through prison conditions, his personal circumstances and his
medical/psychological health. He reiterated that the only matters he
was relying on were those outlined above.
10. The RP made submissions and left court saying he did not want to stay
to be involved proceedings because the court did not have any power to
2
hear the case. He said he knew what the court’s decision would be and
would appeal. I told him the case would continue in his absence. He
left.
11. The RP was given bail to attend the next hearing on 7th November 2019
when my decision would be delivered.
12. I will deal with the submissions made by the parties when I deal with
the specific challenges raised. I will also go through the EA.
THE WARRANT
13. This is an accusation warrant and is based on a domestic arrest warrant
issued on 2nd March 2017 by Jean-Luc Gadaud, Vice President in
charge of Investigation at the High Instance Court of Paris for the
purpose of criminal prosecution.
14. The warrant states that the maximum sentence for the offences is 10
years imprisonment.
15. Box E sets out 9 offences. All the alleged offences were committed
between 1st June 2015 and 20th February 2017 in Cherbourg, Octeville,
Digosville and Saint-Pierre L’Eglise in the department of Manche 50,
France:
(1) The first offence is fraud in an organised gang and the Framework
List is ticked for “swindle”. The RP claimed the products “GcMAF”
and “GOleic” were medicines which could either prevent or cure
cancer, autism, AIDS, Lyme disease, herpes, multiple sclerosis,
psoriasis, Alzheimer’s and Parkinson’s. The products were sold over
the internet with the RP being in charge of a network which
manufactured and sold the unauthorised products around the
world.
(2) The second offence is set out at Box E (II) and concerned the illegal
practice of a pharmacist, whereby the RP carried out the operations
meant for a pharmacist without the necessary accreditation.
(3) The third offence is set out at Box E (II) and is the marketing or
distribution of the products described as medicines under the
names Gemaf and Goelic which had preventive and curative
qualities and were advertised over the internet.
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(4) The fourth offence is set at Box E (II) and concerns the advertising
of an unauthorised medicine under the name Gemaf and Goelic
over the internet whereby they were presented as having preventive
or curative qualities for specific illnesses.
(S) Offence 5 is set out at Box E (II) whereby, over the internet, the RP
is said to have fraudulency described the curative qualities of the
drugs. The substantive paragraph in Box E states that the products
were declared at customs as cosmetics.
(6) Offence 6 is set out at Box E (II) and alleges possession, in an
organised gang, of medical products, Gemaf and Goelic, to be used
by human beings without any legal support and no marketing
authorisation.
(7) Details of the seventh offence are found in Box E (II) and concerns
the employment by dissimulator of activity in an organised gang.
The RP did not have a registration number with the Trade and
Companies Register or Employment Repertoire, failed to fill in
registration forms with the health insurance or tax administration.
(8) Offence 8 is found in Box E (II) and relates to opening a
pharmaceutical establishment, namely laboratories to manufacture
medicines under the names of Gemaf and Goelic without
authorisation. The RP is said to have opened a laboratory and
packaging for the products in France.
(9) Details of offence 9 are to be found at Box E (II) and concerns
biomedical research without consent and without the authorisation
of the competent authority.
FURTHER INFORMATION – 3rd MAY 2017
16. This has been prepared by Jean-Luc Gadaud, the Vice President in
charge of the investigation at the High Instance Court in Paris.
17. The information contained in that document is relevant to section 12A
of the Act. I will deal with this as part of my assessment because I have
the information and I have to satisfy myself there are no bars to
extradition.
4
18. The information states that the RP was informed of the investigation
and summonsed to appear before investigators. He failed to do so
despite agreeing to attend. He sent his solicitor who indicated he was
waiting for a EAW. Because of his voluntary absence a domestic arrest
warrant was issued on 2nd March 2017 as this was the only way he could
be brought to France because his precise address was unknown and it
appeared he was refusing to appear at court on a summons. The French
authorities considered him to “be on the run”.
19. According to the French code of penal practice, the French magistrate
cannot proceed with the investigation of a person without having
allowed him the possibility of hearing from him in the presence of his
solicitor. He cannot be questioned unless he is physically present and
therefore his absence has prevented him putting forward an
explanation about the allegations against him.
20.The information also sets out the RP’s role in the commission of the
offences. In December 2015 the UK Medicines and Healthcare Products
Regulatory Agency (“MHRA”) informed the central office of
Environment and Public Health Matters that the products, GcMAF and
GOleic, were being manufactured and marketed from France via the
internet throughout the world without marketing authorisation.
21. ERUOJUST was involved with several investigatory bodies throughout
Europe. The RP’s production sites were dismantled in the UK and he
reinstalled them in France and other European countries.
22. The RP directed the network in charge of manufacturing, packaging
and selling the non-authorised products around the world. He also
relied on several companies registered in the Netherlands.
23. The financial investigation revealed the flow of money between the
companies and persons in France. The packaging site and
manufacturing laboratory was set up in France following the
dismantling of sites in Great Britain. The RP personally delivered the
products from the Cherbourg Maupertuis airport aboard his private
aircraft.
24.The RP employed several accomplices in Guernsey to manage the
orders and financial flows. The daily running of the business on French
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territory was managed by the RP’s partner, Lynda Thyer, in whose
home was found accounting documents in respect of the manufacturing
and sales activities in her home during a search. During an operation in
Cherbourg on 20th February 2017 a number of items were seized,
including, amongst other things, cash, a hidden laboratory and stock
which was ready to be shipped, with an estimated sales value of
3,150,000 Euros.
25. In the past 18 months more than 5,400 packages had been sold from
France’ The products were declared at customs as cosmetics valued at
15 Euros and were generally sold for a 450 Euros for a 02 ml bottle and
each package contained several vials.
26. The warrant only concerns conduct which occurred in France from lsr
June 2015 and 2oth February 2oL7 and not those acts concerned in the
investigation and therefore there is no risk of double prosecution.
27. The investigation was initiated in paris or1 7th April zot6after British
authorities informed the French authorities that the Rp,s activities
were continuing in France after the dismantling of his activities in
Great Britain.
28. An Investigating Magistrate was appointed to pursue an investigation
after an introductory indictment was issued on 8th December 2016.
29. Sufficient charges were collected against the RP during 2016 and were
confirmed in February 2017 when several of his accomplices were
arrested.
30. In response to the question as to why there has been a delay in issuing a
decision to prosecute being made, the information states that it is solely
the RP’s refusal to appear by summons before the French authorities
that accounts for the fact that he is not currently under investigation.
31. The RP was contacted by telephone and e mail. He answered e mails
but never told the authorities his address.
32. The information also sets out the maximum sentences for the nine
offences of which the RP is accused:
(1) Aggravated fraud in an organised gang: 10 years.
(2) Aggravated deception in an organised gang: 7 years.
(3) Illegal practice of a pharmacy: 2 years.
6
(4) Marketing without authorisation to market medicine with these
circumstances that the acts were carried out by internet and by an
organised gang and of nature to entail danger for humans;7 years
(5) Advertising of products qualified as unauthorised medicines with
these circumstances that the acts were carried out by internet and
by an organised gang and of nature to entail danger for humans; 7
years.
(6) Holding in an organised Bang, without the pertinent supporting
documents, products qualified as medicines for human usage: act
deemed as contraband importation: 10 years.
(7) Opening of pharmaceutical establishments without the
authorisation of the National Agency for the Safety of Medicine and
Health Products: 2 years.
(8) Biomedical research without authorisation: 3 years.
(g) Concealed work (absence of declaration of employees and activity)
in an organised gang: 10 years.
33.A record of the investigation into the RP and Ms Thyer has been
provided:
(1) On 24th February 2017 they were called on their mobile phones and
invited to attend the investigators’ office to be interviewed on 28th
February 2017. They agreed to attend and the invitation was
formally sent to them to the e mail addresses they supplied. On 27th
February 2017 they were contacted by telephone as they had not
confirmed they would be attending. On this occasion they were
telephoned. The RP failed to answer his phone and Ms Thyer
requested a delay which was refused. A further e mail was sent.
Their UK solicitor responded and said they would be interviewed
in the presence of their legal representative and requested more
time to instruct a specialist lawyer.
(2) On 1st March zorT Jeremie Manchuel appeared before a judicial
police officer. Neither the RP nor Ms Thyer attended the
appointment and their lawyer informed that the RP had been
arrested the previous week in the UK and given their fear of being
7
prosecuted for the same offences in France and the UK, they would
prefer to contest extradition to France.
FURTHER INFORMATION – 19th AUGUST 2019
34. This information has been supplied to confirm which prison the RP will
be accommodated in if he is extradited and the conditions he will face. I
have set this out because it is information that is before me and I will
deal with this in my judgment.
35. The document confirms the following:
(1) If extradited, the RP will be detained and either Fleur-Merogis or
Fresnes, men’s district.
(2) He will be accommodated in at least 3m2 and will be housed in a
cell of 9 or 1om2 including sanitary annexes, which were designed
for one person.
(3) At Fresnes Prison single cells measures between 9 and 1om2
including sanitary facilities. Each detainee will have a minimum of
4m2 excluding sanitary facilities. Fresnes has two cells which
measures between 14 and 1om2 and can accommodate inmates with
reduced mobility.
(4) At Fleury-Mergois the short stay prison has cells which measures
between 9 and 10m2 and have at least 4m2 per person. In double
cells each detainee has at least 6m2. For those with reduced
mobility there are larger cells.
(5) The document also contains information about the amount of time
detainees are out of their cells, visiting sessions, activities,
mealtimes, and the control of rodents and bed bugs.
EVIDENCE
36. I have read the warrant, further information dated 3rd May 2017 and
19th August 2019, the IJA’s Opening Note dated 18th September 2019,
the RP’s proof of evidence dated 27th June 2019, documents setting out
the RP’s submissions dated 10th, 16th and 19th October 2019 and
undated documents headed “In the Westminster Magistrates’ Court on
3rst October 2019″,”The European Arrest Warrant is unconstitutional”,
8
“Neither Lyn Thyer nor I (David Noakes) were involved with GcMAF in
France”, the Magna Carta, “Common law courts Great Britain and
International dated 3rst August 2019, common law birth certificate and
psychiatric report dated 24th June 2019 and Dr Forrester’s psychiatric
report dated 26th June 2019 and the sentencing remarks of HHJ
Lorraine-Smith at Southwark Crown Court. I was also referred to the
judgment of Supperstone J in Lynda Thyer V Public Prosecutor at the
High Instance Court of Paris, France [2019] EWHC 1185 (Admin).
JURISDICTION OF THIS COURT
37.I am satisfied I have the power to determine this case. I do not accpet
the submission that under the Magna Carta (clause 38) I do not have
jurisdiction, because I am an appropriate judge under the Extradition
Act 2003 and I have to consider statutes passed by Parliament.
FINDINGS
38. I have read the RP’s proof of evidence dated 27th June 2019 in which
he states that during the course of the domestic proceedings he was
diagnosed as being autistic. He suffers from type z diabetes and high
blood pressure. His eyesight deteriorated whilst in prison and he lost a
significant amount of weight.
39.Mr Seifert told the court that the RP had been diagnosed with Autism
Spectrum Disorder. I have read Dr Forrester’s report dated 24th June
2019. This has not been tested and is of limited weight. I have not
heard from the RP about his personal circumstances because he did not
give evidence. Dr Forrester diagnosed the RP as having Autism
Spectrum Disorder and, at the time the report was prepared, was
suffering from a depressive illness. It also stated that if extradited to
France he is likely to continue to require clinical support, investigation
and treatment as he did when he was in Wandsworth prison. He was
not suicidal whilst in Wandsworth prison. He presented at the time of
the report as having an elevated but low risk of suicide.
40.There has been no delay in this case. There has been a long
investigation by the French authorities. The investigation started on 7th
9
April 2016. An introductory indictment was issued on 8th December
2016 and there were sufficient charges to place the RP under
investigation during zot6 and confirmed in February 2017. A EAW was
issued because he refused to appear by way of summons before the
French authorities.
SECTIONS 2, 10 AND 64 EA
41. The RP argued that Mr Gaudaud, who issued the warrant, has no
evidence to support the allegations, they were figments of his
imagination and therefore fundamentally flawed. The warrant is illegal
under law because clause 38 of the Magna Carta states that no one can
be arrested without evidence. Mr Gaudaud committed perjury when he
recorded in Ms Thyer’s warrant that she had received 11,000,000
Euros when in fact, Supperstone J found the amount to be 11,000
Euros. Mr Gaudaud has copied the offences alleged against the RP into
the warrant issued for Ms Thyer and their roles were different. He had
also been convicted in the common law for perjury. The RP also argued
that the case of Metric Martyrs has to be followed by this court which
held that habeas corpus and Magna Carta can “trump” the EA 2oo3.
42. In response Mr Seifert referred me to his skeleton argument in which
he had set out the offences and the equivalent offences in the UK and
the judgment of Supperstone J, who considered whether the warrant
issued against Ms Thyer was valid. He submitted it was exactly the
same warrant as that faced by the RP. He also submitted that Mr
Gaudaud had been convicted by a common law court in the UK which
had no jurisdiction in either the UK or Europe. Mr Gaudaud, as the
Vice President at the High Instance Court in Paris, is a judicial
authority and can issue this warrant. This was not considered in the
CJEU cases of OG(C-508/18) and PI(C-82/19PPU). Similarly, there is
no merit in the argument advanced about the Magna Carta because the
Council Framework Decision 2002 has authority in law and the UK has
to consider the EA and the Framework Decision 2002. The EA is
considered by this court, the High Court and the Supreme Court.
10
43. I am satisfied this court has jurisdiction to deal with the warrant. This
court has to consider the statute before it which is the EA 2003 and the
Council Framework Decision 2002. There is no evidence before me that
Mr Gaudaud has issued the warrant because of any malfeasance on his
part. The conviction by the common law court is not relevant as it is a
court not known to this one. The CJEU cases do not relate to France
and I am satisfied so I am sure that Mr Gaudaud is an appropriate
issuing judicial authority, as submitted by Mr Seifert.
44.I am also satisfied so I am sure the warrant complies with section 2(4)
of the Act. This is because, as set out above, it sets out the particulars of
the RP’s identity; particulars of the warrant on which the EAW is
based; particulars of the circumstances in which the RP is alleged to
have committed the offences, including the alleged conduct; the time
and place where the offences were allegedly committed, the relevant
provision of law in the category 1 territory and the particulars of the
circumstances for each offence.
45. Under section 10 of the Act I must decide whether the offences are
extradition offences and this is informed by section 64 of the Act.
46.I am satisfied from reading the warrant and Mr Seifert’s submissions
that the warrant reveals dual criminality as follows;
(1) Offence 1 – fraud by false representation contrary to section 2 of the
Fraud Act 2003. See above at paragraph 15(1) for details about the
offence. The conduct occurs in France; none of it occurs in the UK; a
certificate issued by the appropriate authority shows it falls within
the Framework Decision as “swindle” and carries a maximum
sentence of 10 years imprisonment (section 64(5);
(2) Offence 2 – illegal practice of a pharmacist is an offence contrary to
38(4) of the Pharmacy Order 2010. Please see above at paragraph
15(2) for details of the offence. The conduct occurs in France, it
would constituent an offence in the UK and the maximum penalty is
2 years imprisonment (section 64(5);
(3) Offence 3 – marketing or distribution of an unauthorised medicine.
See above at paragraph 15(3) for details of the offence. This conduct
occurs in France, would be an offence in the UK contrary to
11
Regulation 46(1) of the Human Medicines Regulations 2012 and is
punishable with imprisonment of a maximum 7 years (section
64(3);
(4) Offence 4 – advertising an unauthorised medicine. See above at
paragraph 15(4) for details of the offence. This conduct occurs in
France, would be an offence in the UK contrary to Regulation 46(1)
of the Human Medicines Regulations 2012 and is punishable to a
maximum sentence of imprisonment of 7 years (section 64(3);
(5) Offence 5 – deception or fraud on the nature and substantial
qualities of the goods. See above at paragraph 15(5) for details of the
offence. This conduct occurs in France, and would constitute an
offence under section 2 of the Fraud Act 2006. The maximum
penalty of imprisonment is 10 years (section 64(3)).
(6) Offence 6 – possession, in an organised gang, of medical product
used for human use without any legal supporting. See above at
paragraph 15(6) for details of the offence. The conduct occurs in
France. This would be an offence in the UK contrary to Regulation
46 (3) of the Human Medicines Regulations 2012 which prohibits
possession of items with the intention of selling them. The
maximum term of imprisonment for the offence is 10 years (section
64(3)).
(7) Offence 7 – this concerns the concealed employment by
dissimulation of activity in an organised gang. Please see paragraph
15(7) for details of the offence. This conduct would amount to
cheating the public revenue, contrary to common law and I was
referred to the case of Steed [2011] EWHA Crim 75 where it was
stated at paragraph 11, that, “cheating consists of any form of
fraudulent conduct, whether by making positive false
representations…..or by concealing or omitting to disclose liability
or income taith the result that money is diverted from the Revenue
and the Revenue is deprived of money to which it is entitled”. The
French authorities were deprived of tax by operating his business in
this way. The conduct occurs in France and is punishable with
imprisonment of a maximum 10 years (section 64(3)).
12
(8) Offence B – operating a pharmaceutical establishment, a laboratory
without authorisation. See above at paragraph 15 (8) for details of
the offence. The conduct would amount to a breach of Regulation 3
of the Pharmacy Order 2010, which defines a person who practices
as a pharmacist: “For the purposes of this Order, a person practices
as a pharmacist or a pharmacy technician if, whilst acting in the
capacity of or purporting to be a pharmacist or a pharmacy
technician, that person undertakes any work or gives any advice
in relation to the preparation, assembly, dispensing, sole, supply
or use of medicines, the science of medicines, the practice of
pharmacy or the provision of healthcare”. This offence is akin to an
offence under section SB(+) of the same order as in offence 2. The
conduct occurs in France and is punishable with a maximum term
of imprisonment of 2 years (section 64(3)).
(9) Offence 9 – biomedical research without consent. This is akin to an
offence contrary to Regulation 49 of the Medicines for Human Use
(Clinical Trials) Regulations 2oo4which states it is an offence to
contravene Regulation re because in this case no ethics committee
has given a favourable opinion in relation to a clinical trial, contrary
to section 12(1)(a) and 12(3)(a) of the Regulations. The laboratory
used in Ms Thyer’s house was being used to carry out the
experiments. The conduct occurs in France and the maximum
sentence is 9 years (section 64(3)).
47.The warrant is valid; it complies with section 2 of the Act and there is
dual criminality as required by section 10 of the Act as informed by
section 63 of the Act.
48. This challenge fails.
SECTION 11 – STATUTORY BARS TO EXTRADITON
49. Under section 11 of the Act I have to decide if the RP’s extradition is
barred by reason of those matters contained in the Act. In this case the
RP raises double jeopardy under section 12. He does not raise bars
under section 12A, absence of prosecution decision, section 13,
extraneous considerations, section 14, passage of time, section 15, the
13
person’s age, section 17, speciality, sections 19 and 19A and 19B, earlier
extradition from territory and section 19B, forum.
50. Section 20, retrial rights does not apply as this is an accusation
warrant.
51. I will deal with the bar under section 12, double jeopardy as this has
been raised and I will satisfy myself whether there is a bar under 21A,
absence of prosecution decision, because I have received information
about this from the IJA.
SECTION 12 – DOUBLE JEOPARDY – REASONS AND DECISION
52. This provides: “A person’s extradition to a category 1 territory is
barred by reason of the rule against double jeopardy if (and only if) it
appears that he would be entitled to be discharged under any rule of
law relating to pervious acquittal or convict on the assumption –
(a) That the conduct constituting the extradition offence constituted an
offence in the part of the United Kingdom where the judge
exercises jurisdiction;
b) That the person were charged with the extradition offence in that
part of the United Kingdom.
53. In his arguments before me, the RP submitted that he had already been
sentenced to 15 months imprisonment in the UK for the same offences
and the warrant is illegal under the Lisbon Treaty and ECTHR and the
French authorities have issued the warrant to get around the law.
54. In response, Mr Seifert referred to the cases of Fofana v Deputy
Prosecutor Thubin Tribunal de Grande instance de Meaux, France
[2006] EWHC 744 (Admin) and Dar v Staatsanwaltschat Frankfurt
am Mein [2016] EWHC 2405 (Admin). In Fofana the Divisional Court
looked at double jeopardy irl the context of extradition. I must assess
whether the RP has been previously acquitted or convicted of the same
offence, or an offence arising out of the same or substantially the same
facts as those set out in the warrant. He submitted that the offences the
RP faced at Southwark Crown Court were different to those he faces in
the warrant. Of the 7 offences faced at Southwark, the dates they were
said to have been committed were different to those in the EAW. with
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only one, count 7, money laundering having occurred between 1st
January 2012 and 1st September 2015. This overlaps the time line of
those offences in the warrant. However, the RP does not face any
allegation of money laundering in the EAW.
55. I am satisfied so I am sure that there is no overlap in the conduct
alleged in the warrant and those the RP faced at Southwark. In relation
to the one alleged offence which is said to have been committed in the
same timeline, the RP is not requested for an offence of money
laundering. He has been convicted of a completely separate course of
conduct in the UK and this bar to extradition fails.
SECTION 12A – DECISION TO PROSECUTE _ REASONS AND
DECISION
56. There are two stages to the application of this section. The first stage is
that I must have reasonable grounds for believing that (1) the
competent authorities in the category 1 territory have not made a
decision to charge or have not made a decision to try (or have made
neither of those decisions), and (2) the person’s absence from the
category r territory is not the sole reason for that failure.
57. If the RP is able to satisfy the judge as to both (1) and (2) above, I must
then move on to consider the second stage which states, at section
12A(1)(b), that the RP’s extradition will be barred unless the
prosecution is able to prove to the criminal standard that, (i) the
competent authorities in the category 1 territory have made a decision
to charge and a decision to try, or (ii) in a case where one of those
decisions has not been made (or neither of them has been made), the
person’s absence from the category r territory is the sole reason for that
failure.
58. This challenge has not been raised but, as already stated, I will deal
with it because the IJA have addressed this in their further
information. The recent decision of Knowles, J in Jacek Litwinczuk v
Poland sub nom Jqcek Litwinczuk v Circuit Court in Szczecin, Poland
[2019] 2019 EWHC 2745 (Admin) states that the further information
provided in that case was to be regarded as incorporated in the EAW; it
15
was not separate and distinct but was part and parcel of the same
document. Therefore, I have considered the further information
provided together with the warrant and, it seems to me, that the further
information clearly confirms that the investigation is at an advanced
stage. In 2016 there was sufficient information to place the RP under
investigation and to pursue an introductory indictment on 8th
December 2016. Nevertheless, the statement in the further information
that it is “solely his (the RP’s) refusal to appear by summons before the
French authorities that account for the fact that he is not currently
place under investigation” requires me to make the finding that the
decision to charge and the decision to try have not yet been made. This
is because the further information unequivocally states the decision has
not been made solely because of his absence in the jurisdiction. My
decision is supported by a similar finding made in the Divisional Court
in respect of the co-accused’s case, Ms Thyer, in respect of the same
allegations.
59. The IJA have proved this to the criminal standard and accordingly, this
challenge fails.
CONVENTION RIGHTS
60. I have to consider whether extradition would be compatible with a RP’s
rights under the European Convention on Human Rights. The RP has
not raised any issues that extradition will breach his Convention rights
but I will deal with Article 3, prison conditions, because I have received
information from IJA and I will deal with Article 8 under section 21A.
ARTICLE 9 – DECISION
61. The information I have received from the IJA (see above at paragraphs
34-35) confirms that, if extradited, the RP will be detained at either
Fleury-Merogis or Fresnes, men’s district. I am satisfied that these
prisons have conditions which are Article 3 compliant.
SECTION 21A – ARTICLE 8 AND PROPORTIONALITY – DECISION
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62. Under this section I must decide both of the following questions,
whether the extradition of the RP would be compatible with the
Convention rights within the meaning of the Human Rights Act 1998;
whether the extradition would be disproportionate. In deciding
whether extradition would be disproportional, I must take into account
the specified matters relating to proportionality, so far as I think it
appropriate to do so and they are:
(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.
20 Article 8 was considered in the cases of Norris v Government of the
United States of America (No 2) [2010] UKSC 9 and further considered
in HH v Deputy Prosecutor of the ltalian Republic, Genoa [2012]
UKSC 25. The approach required of a District Judge was considered in
Polish Judiical Authorities v Celinski and. Others [2015] EWHC 1274
(Admin).
Factors in favour of extradition
63. The strong public interest in upholding extradition treaties is very high
and that the UK should not be regarded as a haven for those seeking to
avoid criminal proceedings in other countries.
64. The decisions of the Judicial Authority of a Member State making a
request should be accorded the proper degree of mutual confidence and
respect.
65. The independence of prosecutorial decisions must be borne in mind
when considering issues under Article B.
66.The allegations are serious involving the selling of medical products
that were unauthorised. There was a system for the manufacturing and
distribution of the products which were sold over the internet.
67. Any sentence is likely to be substantial.
68.There has been no delay in this case (see paragraph 40 above).
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69.The RP is not of good character in the UK.
Factors against extradition
70. The RP has been diagnosed with Autism Spectrum Disorder.
71. The RP suffers from depression, type 2 diabetes and high blood
pressure.
72. His eyesight deteriorated whilst in prison and he lost a significant
amount of weight.
Decision
73. The RP’s Article 8 rights are engaged. I have undertaken the balancing
exercise and, on the evidence before me, there is nothing to suggest
that the impact of extradition would not be proportionate to the RP’s
Convention rights, particularly in light of the very serious offences for
which he is sought.
PROPORTIONALITY
74. The alleged offences are serious, manufacturing, marketing and selling
products which are sold as cures for illnesses and conditions without
the appropriate authorisation.
75. If the RP is found guilty I have no doubt a sentence of imprisonment is
likely to be imposed, given the time frame of the offences and the
sophisticated nature of the enterprise.
76. No evidence has been adduced as to the less coercive measures the
French authorities could have taken but it is clear from the further
information that the RP was invited to go to France to see the
authorities and failed to do so after initially agreeing to attend,
resulting in the EAW being issued.
ABUSE OF PROCESS
77.The RP submitted the warrant has been issued on an improperly
motivated basis in that it has been brought by the MHRA which had
directors of GlaxcoKline on its board and exists to protect the profits
for chemotherapy and other chemical drugs; the former being $200
18
million. He also submitted this court did not have jurisdiction to hear
the case as it was not properly constituted.
78. In response Mr Seifert referred to his skeleton argument and further
submitted the warrant has been issued by u judicial authority in France,
certified by the NCA and an appropriate judge under the EA has
considered it.
79. Abuse of process arguments can only be used if all other bars to
extradition have failed. It is a residual, implied jurisdiction.
80. Procedural steps have to be followed when an allegation of abuse of
process has been alleged; first to identity with specificity what I alleged
to constitute the abuse, second to satisfy the court hat the matter
complained of is capable of amounting to an abuse and third to satisfy
the court that there are reasonable grounds for believing that such
conduct has occurred (Hayes v Malta [2009] EWHC 880 (Admin).
81. The RP has to satisfy me that not only is the issue capable of being
raised but that there are reasonable grounds for believing the abuse has
occurred. This requires cogent evidence.
82. I do not find that that any cogent evident has been adduced to support
this challenge. There are no reasonable grounds to believe that any
abusive conduct has occurred. The warrant has been issued by a
competent judicial authority; two different investigations have been
conducted; there is no evidence to suggest the warrant has been issued
on an improperly motivated basis; the conduct in France occurred
between 1st June 2015 and 20th February 2017 and none of the conduct
occurred in the UK.
83. For these reasons I also reject this challenge.
CONCLUSION
84. I have found the warrant is valid under seciotn 2 of the Act and that the
conduct amounts to extradition offences under section 10 of the Act as
informed by section 64.
85. There are no bars to extradition.
86. Extradition would be compatible with the Convention rights and would
not be disproportionate.
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87. There is no abuse of process.
88. Therefore, I order the RP’s extradition to France pursuant to section
21A (5) of the Act.
District Judge (Magistrates’ Court) Tempia.
Appropriate Judge.
7th November 2019.
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