QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
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MR JUSTICE DAVID CLARKE
| PETER GRAF VON DER PAHLEN
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|LEOBEN HIGH COURT, AUSTRIA
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Melanie Cumberland (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 10 February 2009
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Lord Justice Scott Baker:
(1) commercial fraud contrary to Articles 146, 147 and 148 of the Austrian Criminal Code;
(2) embezzlement contrary to Article 153; and
(3) fraudulent faked bankruptcy contrary to Article 156, described by the prosecution as "fraudulent insolvency practices."
(a) particulars of the person's identity;
(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;
(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed it and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;
(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.
"a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person...."
"... in other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."
He then referred to the language of section 2(4)(c) and Dyson LJ's comment when the present case was before him ( EWHC 1672 (Admin)) that the language is not obscure and can be given its plain and ordinary meaning (para 21). Cranston J could see nothing inconsistent between the subsection and the Framework Decision. He said it was clear that there was no need to put any gloss on the language; for example that the language somehow connotes the specificity or lack of it demanded in the particulars for a count in an indictment. He added a point made first by Auld LJ in Fofana v Thubin  EWHC 744 (Admin) para 39 that the description in a European Arrest Warrant can often be expected to have been translated.
"How far does the warrant have to go? It would be unwise to attempt a prescriptive answer to this question and I do not do so. But I am in no doubt that the warrant in this case did not go far enough. In the first charge, the warrant gave no details of the identity of the victims of the fraud, the number and size of the advance payments (except that in aggregate they exceeded €50,000), or the nature of the fraudulent misrepresentation. Is it alleged that the appellant pretended to sell single family houses when he was in fact offering something else? Or is it that he pretended to sell single family houses when he was not offering anything for sale? A similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works.
In the second charge there are similar difficulties. What was the foreign property? How much money was unjustifiably taken? In answering the charge of obscurity, Ms Ezekiel submits that the whole of this charge must be read together, and that it contains only one allegation and not two, as suggested by Mr Summers. It seems to me that this is by no means clear. But what is clear is that the allegation is put on the basis that there was an obtaining of unjustified monies, dishonestly; or alternatively that the appellant "had intended to take it." How those two alternatives are to be understood without any amplification is totally unclear. No amplification or explanation is provided in the text of the charge."
"The first offence of obtaining money by deception is to be found at paragraphs 1 and 2 and at the last 11 lines of paragraph 7 commencing "it must be stated" and the inference that can be drawn from this is that this conduct amounts to what is commonly known as an advance fee fraud.
The second offence within charge 1 is obtaining services by deception, which is to be found at paragraph 3 where a precise list of sub-contractors or losers is identified and thus, the same inference as above is to be drawn.
The second charge is breach of trust or embezzlement, which appears at paragraphs 4 and 8. The modus operandi is set out at the first relevant paragraph, the evidence in the second, albeit aspects of that paragraph are impenetrable. I find that the words "or wanted so to do" do not create alternative offences."
She went on to say, applying the decision in Ektor, that she rejected the appellant's submissions.
Passage of time
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission) or (b) become unlawfully at large (where he is alleged to have been convicted of it)……..."
"My Lords, the passage of time to be considered is the time that passed between the date of the offence on April 5, 1973, and the date of the hearing in the Divisional Court on December 15, 1977, for that is the first occasion on which this ground for resisting extradition can be raised by the accused. So one must look at the complete chronology of events that I have summarised above and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cyprus if it had taken place with ordinary promptitude, has made it unjust or oppressive that he should be sent back to Cyprus to stand his trial now."
"Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "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. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."
"In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged. ... All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour the judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges."
"Mr Von Der Pahlen asserts that the documents from the building sites are the important documents, more so than any of the books, accounts etc in the possession of the requesting judicial authority. The owner of the offices from where Dragon Bau operated declared that the offices were empty. Mr Sikora had apparently left everything unsorted in a cupboard used for all sorts of purposes. Mrs Prudovic, however, took over as director and she appears still to be in existence now and available for the trial.
I accept Miss Cumberland's submissions that in the absence of any specific or particular defence being set out these missing documents are not so significant as to render any trial in Austria unfair. The defendant's memory of events, on the contrary, seems most clear."
"The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence not a precondition of the statutory exercise"
went on to say that:
"The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights.
In the present case there are the rights of family members other than the appellant to be considered. The District Judge put it this way at para 18 of her judgement:
"In the event of the defendant being removed, she and her two younger sons, it is argued, would find it difficult to cope and the boys may have to move to more local schools. Possibly the family would have to return to Germany where they have family. I accept that part of the defendant's evidence without reservation in which he sets out the remarkable achievements of his four children in UK educational establishments. In addition to the domestic problems he appears to be without work, blaming the breakdown of his companies upon local bad publicity that flowed from his earlier extradition proceedings. However, I bear in mind that the defendant has been in the United Kingdom for only six years and was, in 2002, prepared to disrupt the family life and education of his four sons in Germany in order to uproot them and bring them to Wales. I do not except that the current circumstances fall within those of Ashley Riddle, Cookeson or Hunt. For those reasons I reject the section 14 submissions and order the extradition of the defendant to Austria."
Mr Justice David Clarke: