England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		10 October 2012

1. MR JUSTICE COLLINS: This is an appeal pursuant to Section 26 of the Extradition Act 2003 against the decision of District Judge Snow given on 13 March 2012 whereby he ordered the appellant's return to Germany to face three charges. The three charges in question concern essentially the same course of conduct which was the obtaining (or attempting to obtain) substantial sums of money from particular individuals who are named. Charges 2 and 3 relate to obtaining or attempting to obtain by violence of one sort or another and serious assaults, all said to be subsequent to an agreement reached or conspiracy made between the appellant and several accomplices, including two named accomplices, to take steps dishonestly to obtain money from the losers.
2. The appellant did not help himself by trying to allege that he was not the person named in the warrant. That was the main issue - indeed, it seems, largely the only issue - that was raised before the district judge. The district judge found - and the evidence was overwhelming - that he had been entirely untruthful. The way he put it was that the appllant had -

" ..... led us on a merry dance regarding his identity. I was satisfied that he was the person in the warrant and he lied in evidence. This was reinforced by his own lips when he said, 'I don't want to go back to Germany.' I do not know why he would have said that if he had never been before."

He went on:

"Because I think he is a perjurer, I find it hard to believe anything he says."

3. I think that there was an Article 8 point raised but the district judge rejected that, and it has not been pursued on this appeal.
4. What has been raised is an assertion that charge 1 in the warrant is bad because it does not give sufficient particulars to enable the appellant to know precisely what the charge involves and whether the conspiracy or the agreement or plan referred to in charge 1 goes beyond the offences involving the individuals, of which details are given in the course of the details of charge 1. Those particulars essentially marry in with the specific allegations of robbery, blackmail and assaults which are contained in charges 2 and 3.
5. The first point that has be considered is whether it is open to the appellant to raise these having regard to the provisions of Section 27 of the Act. I say that because - although I am clearly of the view that there is no bar to the raising of the issues - there are authorities which go either way. The first authority which indicated that it was open to the court to consider issues not raised below but which depend purely upon an argument of law is Hoholm v Government of Norway [2009] EWHC 1513 (Admin), a decision of the Divisional Court consisting of Lord Justice Stanley Burnton and Mr Justice Wilkie. The court there drew a distinction between the raising of issues depending upon fresh evidence, and the raising of issues which were pure points of law and decided that it was indeed open to the court to consider the latter.
6. That decision was considered by a subsequent Divisional Court in Khan v Government of United States of America [2010] EWHC 1127 Admin (a Part 2 case), the court then consisting of Lord Justice Thomas and Mr Justice Griffith Williams. The court disapproved the decision in Hoholm and decided that the restriction on the consideration of fresh evidence applied equally to a consideration of a point of law which did not depend upon evidence. The relevant provisions of the Act (which are contained in Part I at Section 27 and in Part II at Section 104 but those two sections are in identical terms) are, so far as material, as follows:

"27 .....

(2) The court may allow the appeal only if the conditions in sub-section (3) or the conditions in sub-section (4) are satisfied.

(3) The conditions are that —

(a) the ..... judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge."

7. Pausing there, that simply requires the court to look at the matters raised before the judge below and his answers to those questions. The court has to decide whether the answers given by the district judge were correct. If they were not, if they ought to have been different, then the individual's discharge has to be ordered. This is on an assumption that this is an appeal by the person whose extradition is in issue.
8. I go to the conditions in sub-section (4) which reads:

"(4) The conditions are that —

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the ..... judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge."

So (b) and (c) reflect what is in sub-section (3) (a) and (b). The only matter that is different and additional in sub-section (4) is that it concerns either an issue raised which was not raised at the hearing or evidence available which was not available at the hearing. It is apparent, and understandably so, that a distinction is there drawn between new evidence (and the question is whether it was or was not available) and a new issue (and the only question there is whether or not it was raised).

9. The authorities make clear that the question of availability of evidence is to be determined on what, broadly speaking, is a Ladd v Marshall approach. Essentially what has to be considered is whether it was reasonable for the appellant or his advisers not to have been aware of the evidence in question. It may be that it is truly evidence which was not available at the time because it refers to some subsequent matter which is material to the consideration of the appeal. But that does not apply to an issue. The court is only to have regard to that issue if it is one which would have resulted in the judge deciding the question differently. Of course before reaching that conclusion the court has to consider it and decide whether, indeed, it has that result. The same applies to any fresh evidence.
10. It seems to me in those circumstances that it is clear beyond any question that the section does not preclude consideration of argument relating to an issue, whether or not it was an issue which was known about in the sense that it could have been raised below. One must bear in mind that one is dealing here with liberty, and it may be liberty of a citizen of this country (albeit not in the present case but one is dealing with liberty of an individual). It would be wrong in my view in those circumstances to limit what can be argued in a way which is not clearly indicated by the statutory provisions. One also bears in mind that an appellant may not have been represented below and so may not have been aware of any particular argument that he could have raised based upon the material before the district judge. Equally, sometimes those who represent miss good points or clearly arguable points. It would be in my judgment entirely wrong to say simply because the point was not spotted below it cannot now be raised. Of course evidence is in a different category.
11. Accordingly, I am entirely satisfied that the decision of the Divisional Court in Khan was clearly wrong and I would not in those circumstances follow it. Mr Justice Bean, in Soltysiak v Judicial Authority of Poland [2011] EWHC 1338 Admin, refused to follow the decision in Khan. He refused on the basis that the observations in Khan were not part of the ratio because they considered the new point was a bad one. I can see at the attraction of approaching it in that way, but it seems to me that actually it was part of the ratio of Khan. The court went on to say that in any event the new point was a bad point. Mr Justice Bean went on to say that he was bound by Hoholm. He was wrong, with respect, so to decide because a decision of the Divisional Court does not bind a single judge who is dealing with a case at the same level. Of course it has to be given the greatest of respect and must be followed unless the judge is persuaded that it was clearly wrong. So much is decided in Tal. It is not, strictly speaking, a binding authority. In my judgment, it is clearly wrong.
12. I therefore have to consider whether the point is a good one. I go back to the offence or the charge to see what actually it says. It reads as follows:

"The person sought acted jointly with several accomplices, amongst them and separately prosecuted [two are named], with the aim of untruthfully promising third parties to granting a loan in order to obtain their bank details and then submit counterfeit or forged cheques in favour of such bank accounts and cash the wrongly credited amounts of money with the intent to enrich themselves. A gang of perpetrators conspired continuously to commit such criminal offences in order to obtain and maintain a substantial permanent source of income. In execution of this plan the separately prosecuted Soskich [one of the co-defendants] approached the witness [named] in accordance with this conspiracy in Berlin in June 2002, promising he would grant him a loan and demanded his bank details for the processing of the transaction. He gave Soskich the details of the bank account of his common law partner [named] with [the relevant bank] for which he was an authorised signatory. On 27 June 2002, a completely forged cheque of the Royal Bank of Canada for €289,000 was submitted as planned by a courier to the Berlin branch of the bank in question for crediting to the account of a witness. In accordance with the common criminal plan, this amount was to be withdrawn from the recipient account by the other witness and then handed over to Soskich."

The bank however did not pay out that amount because the forgery was noticed there. Then [charges] 2 and 3 deal with the attempts by assault and other means to get the money withdrawn.

13. Mr Jones submits that, on the face of it, appears to allege a very much wider conspiracy and details are not sufficiently given of the scope of that conspiracy. There is nothing as to time within which it was alleged to be committed, nor whether there were any other occasions upon which attempts were made to put it into effect or whether, indeed, there were any other actions which enabled it to be put into effect successfully.
14. Mr Grandison submits that the principle of specialty protects the appellant in this case because it would not be open to the German authorities, having regard to the manner in which this is drafted, to rely on evidence of other instances than those specified in the details given of the offence. Therefore there is no reason to fear, so far as the appellant is concerned, that a wider offence will be charged than that which relates to the agreement to commit the matters set out in charge 1. That is the answer to the submissions made by Mr Jones. That is the protection for the appellant. It will not be open to the Germans to go beyond what they have specified in charge 1 as the matters that they can rely on in court to show that the appellant agreed with the others to undertake the relevant course of conduct.
15. In those circumstances this appeal fails.
16. MR JONES: May I have an application for costs, to be assessed in the usual way?
17. MR JUSTICE COLLINS: Yes.