ON APPEAL FROM BOW STREET
MAGISTRATES COURT (DISTRICT
JUDGE ELERI REES)
London, WC2A 2LL
B e f o r e :
MR. JUSTICE MOSES
| Michael Rottman
|- and -
|The Governor of HMP Brixton and
The Government of Germany
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J. Hardy (instructed by Crown Prosecution Service) for the Respondents
Crown Copyright ©
Mr Justice Moses:
This is the judgment of the court.
The statutory scheme
"Where extradition procedures under Part III of this Act are available as between the United Kingdom and a foreign state, a person in the United Kingdom who –
(a) is accused in that state of the commission of an extradition crime….may be arrested and returned to that state in accordance with those procedures".
By Section 2(1) an "extradition crime", for the purposes of the instant application, means conduct in the territory of Germany which, if it had occurred in the United Kingdom, would be punishable with imprisonment for a term of 12 months or more and which, however described in Germany, is punishable under German law for a term of 12 months or more. Thus, the jurisdictional fact that the applicant is accused of an extradition crime must be established and that crime must constitute an offence both in England and in Germany.
"Where an authority to proceed has been issued in respect of the person arrested and the Court of Committal is satisfied, after hearing any representations made in support of the extradition request on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied:
a) where that person is accused of the offence, unless an order in council giving effect to a general extradition arrangements under which the extradition request was made otherwise provides, that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him……the court…..shall commit him to custody or on bail
(i) to await the Secretary of State's decision as to his return."
"Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that
(a) by reason of the trivial nature of the offence; or
(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or
(c) because the accusation against him is not made in good faith in the interests of justice,
it would, having regard to all the circumstances, be unjust or oppressive to return him."
The Committal Charges, the German Charges and the Decisions of the German Courts
"Charge 1: MICHAEL KARL ROTTMANN, between 29th day of August 1990 and the 28th day of February 1991, conspired together with others named KESSLER, HAEBERLIN, LANGNER and VOIGT to defraud the board of management of the Treuhandanstalt by acquiring from it the share holding in WWB Warmeanlagenbau GmbH at a price that was substantially below the true market price by:
(i) dishonestly misrepresenting the commercial value, size and stability of the purchasing company, namely Chematec AG; and
(ii) dishonestly causing the board of management of the Treuhandanstalt to materially under-value the equity capital of WWB Warmeanlagenbau GmbH.
Charge 2: MICHAEL KARL ROTTMAN, between the 26th day of February 1991 and the 16th day of December 1994, conspired together with others named KESSLER, HAEBERLIN, LANGER, VOIGT, SCHÃFER and PORUBA to defraud the shareholders of and investors in WBB Warmeanlagenbau GmbH by:
(i) dishonestly entering into contracts on behalf of the company which were disadvantageous to the company;
(ii) dishonestly divesting the company of its assets by lending company funds at terms which were disadvantageous to the company;
(iii) dishonestly divesting the company of its assets by selling company properties at substantially less than true market value of those properties; and
(iv) dishonestly making purchases on behalf of the company at prices substantially in excess of the true market value of the items so purchased.
Committal Charge 3 is the substantive equivalent of Charge 2 but it also covers the German Charges 5 and 6. It alleges that the applicant:-
"Between the 26th day of February 1991 and the 16th day of December 1994, was knowingly a party to the carrying on of the business of (WWB) for a fraudulent purpose, namely to achieve unlawful personal enrichment at the expense of the company by……."
The particulars are identical to those referred to in committal Count 2.
Impact of the decision of the Landgericht and Kammergericht
"The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this convention, all persons against whom the competent authorities of the requesting party are proceeding for an offence …" (Article 1).
Thus the United Kingdom is under an obligation to surrender to Germany those persons against whom the German prosecuting authorities are proceeding for an offence. There is no doubt but that, despite the decisions of the Landgericht and Kammergericht, the German prosecuting authorities intend to prosecute the applicant for the offences set out in the warrant of arrest. The Convention is designed to provide a speedy and simple system for extradition.
"(1). Particulars of the conduct which constitutes an offence in the requesting state;
(2) Particulars of the law of the requesting state under which the conduct is punishable;
(3) The warrant of arrest issued by the requesting state.
(4) The authority to proceed issued by the Secretary of State specifying the offence under the law of the United Kingdom…(1013b)"
Lord Templeman continued:-
"For the purposes of the court of committal, the conduct or facts are those set forth in the request for extradition; the relevant law of the requesting state is that set forth in the request for extradition; the relevant law of the United Kingdom is pointed out in the authority to proceed…. The accused cannot adduce evidence about foreign law. The text of the foreign law as presented and translated by the information furnished with the extradition request by the foreign government. The accused may submit that under the law of the United Kingdom and under the law of the foreign state as established by the extradition request the conduct alleged against him would not amount to a serious crime in either country. It is for the magistrate to accept or reject that submission. Evidence of foreign law is irrelevant. If the accused is extradited it will be for the foreign court to decide whether in fact foreign law has been broken." (See page 1013 d-f).
Later Lord Templemann said:-
"If the presentation of the law of the foreign state set forth in the request for extradition were inaccurate or incomplete in a relevant and material respect and the correct law could not be presented by agreement and then the accused could have his remedy in habeas corpus proceedings….
In my opinion where requests for extradition for alleged acts of violence, theft, fraud or the like courts should be slow to pay heed to any representations that such acts do not constitute offences under foreign law." (See page 1014 c-f).
The effect of the German Court's Judgments on this Court's originating jurisdiction under Section 11(3)(b) and (c)
"Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trials itself, and "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 is important to note that the statute in Section 11(3)(b) refers not to delay but to events, which have occurred between the date of the alleged offence and the date of the habeas corpus challenge, as Hale L.J. pointed out in argument. In the instant case, so Miss Montgomery QC contends, the judgments of the German courts have been delivered and reveal that the applicant will not be convicted in Germany. She draws comfort from two decisions of this court where events had occurred which established, beyond argument, that the applicant whose extradition was sought could not be convicted in the requesting state. In Gale v Governor of HMP Holloway  EWHC Admin 430, the applicant was accused of laundering the proceeds of drugs trafficking. But between the time of the original arrest and the habeas corpus application, her husband had been acquitted of the predicate offences by the court of trial in Portugal. It was conceded that the applicant could not be convicted of the matters in respect of which her extradition had been requested. The sole question for the Divisional Court was whether there was machinery available to this court to order her discharge. The court engaged the provisions of Section 11(3)(b) as a mechanism for ordering the applicant's discharge. At paragraph 13 Laws L.J. said:-
"This case (Kakis v Government of the Republic of Cyprus)  1 WLR 779)…I take to be authority for the proposition that Section 11(3)(b) is not merely concerned with the impact of delay, but it is, or in an appropriate case may be, concerned also with the impact of any events happening in the time since the alleged offence which were relevant to the question of whether it would be unjust or oppressive to return the person concerned."
Similarly, in Re Neumann  EWHC Admin 8, it was accepted that relevant limitation periods in Germany had expired. The applicant could therefore neither be prosecuted in respect of the accusation case against him nor punished in respect of the conviction case against him. Again the court used the mechanism of Section 11(3). In neither case was there any issue as to foreign law. The only issue was the legal mechanism by which an academic extradition exercise could be prevented.
"Has reached the conclusion that there is still strong suspicion of a criminal offence for all the cases in the warrant of arrest".
Counts 3 and 12 – fraudulent trading
"Between the 7th day December 1994 and 16th day of December 1994, was knowingly a party to the carrying on of the business of WBB with intent to defraud creditors".
"If any business of a company is carried on with intent to defraud creditors of the company…or for any fraudulent purpose, every person who was knowingly a party to the carrying on of the business in that manner is liable to imprisonment……".
"Company" is defined by Section 735(1)(a) of the 1985 Act:-
""Company" means a company formed and registered under this Act, ……".
"The essence of the offence lies in driving without due care and attention on a road to which the public have access. I see no difficulty in at least this degree of translation. Nor should the issue be confused by saying that in England and (say Germany) the traffic regulations are different. A driver shows due care and attention by observing the regulations, which prevail in the country where he is driving. Nor, again, does it appear to be relevant that the Road Traffic Act contains numerous provisions in which "road" can only have a sensible meaning if it is confined to roads in England, and other provisions, for example, in regard to the Menai Bridge, which by their nature can have no application except to a particular subject matter. It appears to me that here at least in the negative sense is the test of the applicability of the section. If the act is of its nature one that can only be committed in England, the section cannot operate. I need say no more than that it is otherwise with such acts as driving without due care……all such acts have what for want of a better expression, I will call a character of universality". (See page 68).
Lord Reid said:-
"(Section 70 of the Army Act 1955) must require that we can imagine another act committed in England which is similar in all relevant respects. With many types of offence, that is easy. For example, murder and theft are the same all the world over. At the other end of the scale there are acts or omissions so closely connected with the conditions which are peculiar to England, or at least which are absent in the place where the act was committed, that it will be impossible to find the necessary degree of similarity between the act or omission committed abroad and any act or omission which could be committed in England." (Page 72).
Lord Radcliff said:-
"First, it is, in my opinion, an abuse of language to say that in this statute a "road means English road" as a "matter of construction". It means, I think, road pure and simple as defined by the Road Traffic Act and the more correct proposition is to say that the statute itself has no application except to acts done on the roads of England. But secondly, it is just because the Road Traffic Act, in common with virtually every other offence-creating enactment, has this limited application that Section 70 requires the making of a hypothesis that the act, which did not in fact take place on an English road, was committed in England or where what takes place on the roads is subject to the provisions of the Road Traffic Act."
We should pause to observe that road was defined in the Road Traffic Act 1960, Section 257(1) as:
"Any highway and any other road to which the public has access" Lord Radcliff continued "….the application of the law was limited to English roads, not by reason of any definition within the Road Traffic Act but rather by reason of the general limitation of the jurisdiction of an English statute to events taking place within England."
Counts 5 and 7: do they disclose allegations of theft?
Counts 8 and 9 of the committal charges
Charge 10 in the warrant of arrest
LADY JUSTICE HALE: For the reasons given in the judgment of the court which is handed down today, this application is dismissed.
MR HARDY: My Lady, the applicant is not legally aided. It follows that I have an application for costs.
MISS WOOD: I have no objections to that application.
LADY JUSTICE HALE: This application is dismissed with costs.