Practice and Procedure


PUBLISHED August 6, 2003

The applicant was discharged from being extradited to Switzerland on charges of obtaining property by deception as the complainant was not making her accusation in good faith in the interests of justice. The first complainant was bringing his accusation in good faith and she would therefore not be discharged from those charges.Application for a writ of habeas corpus under s.11(3) Extradition Act 1989. On 21 January 2002 the applicant appeared before Bow Magistrates' Court as the government of Switzerland sought her extradition for trial in Geneva on 27 charges of obtaining property by deception and one of theft involving two complainants. She was committed by the district judge. The applicant ('S') was a businesswoman who was developing a perfume. In 1997 the first complainant ('R') was approached by S and agreed to enter into business with her on the development and marketing of the perfume. S set up bank accounts for the new company and it was agreed that S and R would invest in it equally. On 29 January 2001 R found that he was the only who placed funds in the account and that S had been transferring large sums to her own personal account. R brought civil and criminal proceedings against S. S contended that there was no deceit and that the company was a genuine commercial venture as R knew all along as an agreement dated 10 October 1997 reflected. R stated that there was no such agreement. The second complainant ('B') was a wealthy businesswoman who was approached by S in 2000 and agreed to invest in an entertainment agency. B stated that she would not have entered into the contract unless R was an investor, which S allegedly assured her. She placed substantial sums of money into the company and on being asked to transfer a further $25 million, she made enquiries and discovered that S was deceiving her and that R was not an investor in the company. B filed a civil claim and a criminal complaint against S. S again contended that this was a genuine commercial venture, that she did not assure B that R was an investor and that an experienced businesswoman would never have entered into the agreement in such terms if the facts had been as she claimed. The Swiss civil courts accepted this argument and lifted a freezing order that had been imposed at the suit of B. Since the proceedings began, negotiations had taken place between all the parties that if S paid back the sums owed B and R would withdraw their criminal complaints. S contended that during this process B and R exerted improper pressure on her. On 20 June 2001 S was arrested in London and was remanded in the first respondent's prison for one week. The applicant applied for a writ of habeas corpus. She argued that: (i) the accusations had been made so they could be used as a bargaining tool in the civil complaints; (ii) the accusations made against her were not made in good faith in the interests of justice; and (iii) it would be unjust or oppressive to return her to Switzerland.HELD: (1) There was a serious triable issue in both the civil and criminal proceedings in relation to R and the October 1997 document. This led to the conclusion that S had not established that R acted in bad faith when he filed his criminal complaint. The chronology did not bear out S's contention that R used the criminal complaint as a bargaining tool in relation to his civil claim as the proposed settlement to withdraw the complaints was introduced at a late stage in negotiations and at the request of S's lawyers. The essence of R's accusation was not made in bad faith. (2) There were two factors about B's accusation that caused concern: her complaint that she would not have entered the contract if R was not to be an investor was not borne out by the agreement she signed; and she had failed to persuade the Swiss civil courts to grant her a freezing order over S's assets. B's accusation was not made in good faith in the interests of justice. Extradition was being sought on the basis of an alleged deception which was at variance with the express agreement between the parties. (3) In these circumstances it was oppressive to return S to Switzerland on B's charges and she must be discharged in relation to them, but not in relation to R's charges.Judgment accordingly.

[2003] EWHC 1940 (Admin)