Flagrant miscarriage of justice overturned: victim of identity theft finally discharged on appeal in French extradition request

Ben Cooper QC and Malcolm Hawkes have successfully secured the discharge of an Appellant who was wrongly convicted of committing offences of fraud, which were carried out by someone who had stolen his passport and identity.

At a French court in 2015, entirely unknown to the Appellant, he was tried, convicted and sentenced to 3 years imprisonment for offences of fraud and money laundering committed between 2011 – 2013. Out of the blue, he was arrested in the UK in March 2018 and immediately protested in court that he knew nothing about this case and that this was a case of mistaken and stolen identity. The court remanded him in custody for 5 days before he was released under restrictive bail conditions.

Although the extradition request was issued in his name, with all his correct details, there was one glaring error: the copy of the Appellant’s passport supplied by the French authorities had obviously been doctored. That passport had been reported lost and was cancelled 5 years before the offences were even committed. Yet the EAW was not withdrawn.

Instead, the French authorities supplied arrest photographs and fingerprints of the man they claimed was the Appellant who was arrested in France in 2013. However, not only had the Appellant never been to France, the photographs were obviously not of him; a later forensic comparison proved there was no match between the fingerprints.

Yet the French authorities still insisted that the Appellant must be extradited in order to argue stolen identity, from custody, as his defence at a re-trial in France. The district judge at the Westminster Magistrates Court agreed and ordered his extradition and that decision was appealed.

The CPS instructed Queen’s Counsel to insist on the Appellant’s extradition and even argued that the Appellant’s evidence of his mother’s identity – her passport and birth certificate – was doubtful, as she was ‘too old’ to have given birth to him when she did.

After the Appellant pressed the judicial authority for disclosure of further identity evidence in its possession, three days before the High Court judgment was supposed to be formally handed-down, the judicial authority finally conceded that there was reason to believe the person in the 2013 photograph was involved in the offending and the Appellant an innocent party. The French authorities had disclosed a link between the person arrested in France in 2013 and some of the offending in the extradition request.

In a very rare move, the High Court withdrew its draft judgment and directed the parties to submit further argument on identity.

Even so, the judicial authority still argued that the Appellant must be extradited to France.

In response, the Appellant applied to the High Court for a writ of habeas corpus, challenging the validity of the request which had become an investigation, to bring the case to an end. A few hours before the judicial authority were required to respond to that application, it announced that the French authorities finally admitted that the Appellant was ‘probably’ not the offender and the EAW was withdrawn.

This case raised troubling questions about the conduct of the prosecution of the EAW. The French authorities should have reviewed the materials in its possession properly before ever issuing the extradition request. The case also raises the unanswered question as to why, for over 2½ years the judicial authority doggedly insisted the Appellant must be extradited to raise identity as a defence in France despite overwhelming evidence that they had got the wrong man.

In Choudhary v France, Ben Cooper QC and Malcolm Hawkes were instructed by West Midlands Solicitors.