Challenging INTERPOL Red Notices: what do the CCF's decisions tell us? Part One - Merits Of The Case
In some countries, issuing a cheque with insufficient funds causing the cheque to bounce is classified as a criminal offence and countries such as the UAE routinely request Red Notices for those charged with and convicted of such an offence. Many of the applications for deletion which are made to the CCF concern these types of cases and the published decisions illustrate the key principles which are engaged.
INTERPOL’s Rules on the Processing of Data (“RPD”) require all data processed by INTERPOL to be ‘of interest for the purposes of international police cooperation’ and, in the case of Red Notices, related to an offence which amounts to a ‘serious ordinary-law crime’ and not a private or administrative matter. Where the offence concerns an unfunded cheque, INTERPOL’s minimum criteria for publication of a Red Notice are that the value of the cheque is at least $10,000 or the case involves the issuance of multiple cheques of any value on several occasions in a repetitive manner.
The mere fact of somebody having insufficient funding in their bank account to honour a cheque is very unlikely to satisfy these requirements. Something more is required, such as dishonesty or a fraudulent intent. This is demonstrated by one of the CCF’s decisions from 2019, in which the applicant argued that his financial difficulties had given rise to an honest inability to meet his financial obligations. He was in the process of reaching a settlement with the other party and claimed that this showed a lack of criminal intent. Whilst the minimum value threshold had been met, the CCF noted that issuing unfunded cheques is rarely recognised as a crime in most countries and so extradition would be blocked in most jurisdictions. The CCF agreed with the applicant that there was a lack of evidence suggesting he had acted with malicious or fraudulent intent, thereby giving rise to serious doubts that the Red Notice was in the interests of international police cooperation, as required by the RPD. Although criminalised in the requesting state, the CCF did not consider the offence a serious ordinary law crime. Furthermore, the CCF was guided by Article 11 of The International Covenant on Civil and Political Rights, which states that ‘No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation’, which includes a debt. The Red Notice was deleted.
The CCF took a different approach in an earlier case from 2018, where the applicant was subject to five separate Red Notices all issued at the request of the same country for unfunded cheques. The applicant argued that the cases related to a private dispute which should be resolved before the civil courts and that the Red Notices should therefore be deleted. Whilst noting the same general principles as set out above, the CCF in this instance felt that the fact the applicant had been convicted of the same criminal act in five different cases, all involving significant amounts, may have illustrated a fraudulent intent which would give rise to other offences which were recognised in many countries (fraud, for example). The CCF decided not to remove the Red Notice.
Notwithstanding this important distinction, a substantial number of Red Notices are still published every year in bounced cheque cases which plainly do not meet INTERPOL’s requirement for ‘serious ordinary law crimes’. INTERPOL’s limited resources mean that requests for publication by member states often receive inadequate scrutiny and it is only when the requested person submits a request for deletion that proper consideration is given to the question of whether the Red Notice is compliant with INTERPOL’s rules. This invariably comes after months, and often years, of serious harm to that person’s reputation, freedom to travel and other aspects of their life. For example, in the 2019 case mentioned above, the applicant had been suspended from his employment and faced the possibility of termination after his employer was notified of his lack of security clearance because of the Red Notice.
For further information on the issues raised in this blog, please contact a member of our International Crime and Extradition team.
Will Hayes is a Associate (Barrister) in the Criminal Litigation team and represents individuals and corporate clients in a range of criminal cases. He has represented clients in cases covering the full spectrum of general crime, cases with an international dimension and represents clients defending extradition requests and challenging Interpol Red Notices. Will has a particular interest in legal professional privilege (LPP) and has developed a comprehensive understanding of the law and its practical application.
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