England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal under s.26 of the Extradition Act 2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2015

Mr Justice Supperstone :

Introduction

1. The Appellant appeals against a decision of District Judge Bayne (the "DJ") made on 19 August 2015 to order his extradition pursuant to an accusation European Arrest Warrant issued by the Regional Court in Salzburg in Austria on 3 June 2013 and certified by the National Crime Agency on 27 April 2015. The warrant relates to one alleged offence of counterfeiting. The Appellant is accused of taking possession of at least 31 reproduced €100 notes on 27 March 2007 or at an unknown previous time in Salzburg or in an unknown town in England with the intent of passing the bills as true and genuine currency.
2. At the extradition hearing the Appellant raised two issues pursuant to s.14 (passage of time) and s.21A (Article 8 ECHR only) of the Extradition Act 2003 ("the 2003 Act"). The Appellant does not pursue the passage of time argument on appeal but relies on three additional grounds pursuant to ss.10 (dual criminality), 19B (forum) and 21A (statutory proportionality) of the 2003 Act.
3. The Respondent does not object to the Appellant raising these three new grounds for the first time on appeal as he was unrepresented at the extradition hearing.
4. On 23 October 2015 Cranston J granted permission on all four grounds. I shall consider each ground in turn.

Ground 1: Dual Criminality (s.10)

5. The offence which is set out at Box E of the EAW is that the Appellant:

"is charged with having taken possession of at least 31 reproduced 100 Euro notes on March 27 2007 or at an unknown previous time in Salzburg or in an unknown town in England, in collaboration with Neil Green and unknown accomplices in agreement with the accessories to the counterfeiting… or with an intermediary, with the intent of passing the bills as true and genuine currency."

6. Section 64 of the 2003 Act, so far as is material, provides:

"(1) This section sets out whether a person's conduct constitutes an 'extradition offence' for the purposes of this Part in a case where the person—

(a) is accused in a category 1 territory of an offence constituted by the conduct…

(2) The conduct constitutes an extradition offence in relation to the category 1 territory if the conditions in sub-section (3) … are satisfied.

(3) The conditions in this sub-section are that—

(a) the conduct occurs in the category 1 territory…"

7. In Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, Lord Hope considered the approach to the issues of statutory construction appropriate to the construction of domestic legislation to extradition treaties. He said (at para 24):

"…the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures."

In relation to section 65(3)(a) concerning the place of the conduct Lord Hope (at para 34) said that there are two questions:

"(1) whether the person must be within the territory of the requesting state at the time of the conduct which he is alleged to have committed, and (2) whether the conduct must have occurred exclusively within that territory."

8. Lord Hope answered those questions (at para 25) as follows:

"… It is now well established the physical presence of the defendant in the territory is not required so long as the effect of his actions were intentionally felt there."

9. Having reviewed the relevant authorities Lord Hope said (at para 40):

"I would construe the word 'conduct' in section 65(2)(a) and 65(3)(a) of the 2003 Act in the light of these authorities. The conduct must occur 'in' the category 1 territory if the condition which is set out in these paragraphs is to be satisfied. But a purposive meaning must be given to the word 'conduct' in this context. It would impose a wholly artificial restriction on the extradition process if it were to be taken as meaning that all the conduct which resulted in the offence must have taken place exclusively within the category 1 territory. Actings elsewhere will be sufficient to constitute conduct in that territory so long as their intended effect was to bring about harm within that territory…"

10. In Hertel v The Government of Canada and another [2010] EWHC 2305 (Admin), the respondent had to establish that the conduct alleged would constitute the offence of cheating the Revenue. Laws LJ stated (at para 29):

"If the basis for doing so rests on three alternatives, then no single basis is securely established, unless it is said that any of the three is demonstrated without more. …"

Laws LJ continued (at para 30):

"If Mr Vallat [for the first respondent] can show no more than that any of the three scenarios might be made out if the alleged facts were replicated here, he will not have demonstrated that any of the three would be so made out; and therefore he would not have proved, to the standard required by s.206 of the 2003 Act, that … the conduct relied on by the respondent would, if perpetrated in England, constitute the common law offence of cheating the Revenue. Accordingly s.137(2)(b) [s.137(2) is the mirror provision to section 64(3) in part 2] would not be satisfied and the appellant would be entitled to be discharged."

11. Mr Daniel Sternberg, for the Appellant, submits that it is apparent from the face of the EAW that it is unclear as to where and when the conduct for which the Appellant is sought took place. The warrant states that the Appellant is charged with having possession of at least 31 reproduced €100 notes on March 27 2007 or at an unknown previous time in Salzburg or at an unknown town in England. It is accordingly apparent from the warrant that it is not known whether the conduct for which extradition is sought took place in England or Austria. The warrant makes no reference to whether harm was caused in Austria. The EAW does not say where he intended to pass the bills as currency. It is not possible to say where his acts caused harm, whether it was in Austria or England.
12. Therefore this conduct falls outside of the "framework list" of offences in the EAW. Section 64(5)(b) of the 2003 Act as amended cannot be satisfied. The judicial authority cannot show that the conduct occurred solely in the category 1 territory and no part of it occurred in the UK.
13. Mr Adam Payter, for the Respondent, submits that the EAW sets out that the Appellant had possession of the notes on 27 March 2007 in Salzburg in collaboration with one Neil Green with the intention to pass them into circulation. The equivalent offence under English law is under s.16 of the Forgery and Counterfeiting Act 1981 ("the 1981 Act"). Mr Payter adds that it is reasonable to assume that the intention would be to pass as genuine currency in a jurisdiction where it could be used as such, the currency here being Euros.
14. That the EAW contains an extradition offence under s.10 is put beyond doubt, Mr Payter submits, by the further information that has been provided by the judicial authority. On 6 December 2015 the Respondent confirmed that the Appellant was arrested in Salzburg on 27 March 2013. In answer to the question "Did Mr Sladen use or attempt to use the counterfeit Euros in Austria?", the answer given is "Yes". (Question 3). In answer to the question "Is it known when Mr Sladen arrived in Austria prior to the commission of the offence in the European Arrest Warrant? What was the purpose of his visit?", the answer given is "26 March 2007 (flight from Manchester to Salzburg City), tourist" (Question 4).
15. Mr Sternberg objected to the admission of this new evidence. In so doing he relied on the decision in Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) where the Respondent and the Judicial Authority wished to introduce further material concerning the current prison conditions in Italy. Aikens LJ, delivering the judgment of the court, said (at para 82):

"…we think that the analysis in the Fenyvesi decision is consistent with the concept that the appellate court should not allow parties carte blanche to adduce new material to bolster an existing decision in that party's favour, particularly if the material was 'available' in the court below in the sense discussed in Fenyvesi."

16. I accept Mr Payter's submission that the basis for admitting the new material in the present case is very different. Dual criminality was not an issue raised at the extradition hearing by the Appellant. He was not legally represented but at the initial hearing he did have the benefit of legal advice and, on his behalf, it was indicated that he would only seek to rely upon sections 14 and 21 of the 2003 Act. In the circumstances I am satisfied that there is a good reason why the information that has now been obtained was not sought at the time of the extradition hearing. In the interests of justice I grant permission for this new material to be admitted.
17. Mr Sternberg submits that the further information (see para 14 above) provides no answer as to where or when the Appellant received the currency or where or when he intended to use it. Euros can, Mr Sternberg observes, be exchanged into Sterling in the UK; it is speculative to suggest that they could only be used in Austria.
18. The starting point, Mr Payter submits, is that the conduct in the EAW is framed in terms of the possible times and locations that the Appellant first took possession of the currency. The conduct therefore describes three possible scenarios: (1) the Appellant took possession of the forged currency on 27 March 2007 in Salzburg; (2) the Appellant took possession of the forged currency at an earlier time in Salzburg; or (3) the Appellant took possession of the forged currency at an earlier time in England. It follows, submits Mr Payter, that the Appellant possessed (for the first time) or continued to possess the forged currency in Salzburg on the date of his arrest in Austria. The charge could not otherwise allege 27 March 2007 as one of the dates on which he took possession of the currency.
19. I accept Mr Payter's submission that applying the principles established by the authorities (see paras 7-10 above) the conduct and its intended harm occurred, in part at least, in Austria. I am satisfied that the conduct in the EAW amounts to an offence contrary s.16(1) of the 1981Act and it also satisfies the requirements of s.64(3) of the 2003 Act. I consider there was conduct in Austria which satisfied s.64(1)(a).
20. I reject Mr Sternberg's submission that the EAW is too vague to show an intention to cause harm in Austria. The commonsense interpretation of the further information is that he arrived in Austria on 26 March and that he used or attempted to use the counterfeit Euros in Austria on 27 March. Section 64(3)(a) does not require the conduct to occur exclusively in the Category 1 territory. So long as he physically possessed the notes in Austria and intended to use them in Austria s.64(3)(a) is satisfied.
21. In my judgment this ground of challenge fails. I am satisfied that the EAW does contain an extradition offence under s.10.

Ground 2: Forum (s.19B)

22. The Appellant contends that his extradition is barred under s.19B of the 2003 Act.
23. Section 19B provides, so far as is material:

"(1) The extradition of a person ('D') to a category 1 territory is barred by reason of forum if the extradition would not be in the interests of justice.

(2) For the purposes of this section, the extradition would not be in the interests of justice if the judge—

(a) decides that a substantial measure of D's relevant activity was performed in the United Kingdom; and

(b) decides, having regard to the specified matters relating to the interests of justice (and only those matters), that the extradition should not take place.

(3) [This sub-paragraph sets out the specified matters relating to the interests of justice]

…

(6) In this section 'D's relevant activity' means activity which is material to the commission of the extradition offence and which is alleged to have been performed by D."

24. Mr Sternberg acknowledges that his submission on this ground proceeds from his submissions on the first ground that there is a lack of clarity on the face of the EAW as to where the conduct for which the Appellant is sought occurred. He submits that it is apparent that at least as much conduct occurred in England as in Austria, to the extent that it is possible to infer where the conduct occurred. On that basis he submits that a substantial measure of the conduct alleged can be said to have occurred in England for the purposes of the threshold condition in section 19B(2).
25. I rejected Mr Sternberg's submissions under s.10 (see paras 19 and 20 above). Further I am not satisfied on the basis of the available evidence, namely the EAW and the additional information, that any conduct occurred in England; nor am I satisfied that any conduct that may have occurred in England was material to the commission of the offence. I accept Mr Payter's submission that the EAW posits receipt of the notes in England as a mere possibility.
26. Even if, contrary to my view, the threshold criterion is met, I am not satisfied that it would not be in the interests of justice to extradite the Appellant, having regard to the specified matters. I accept Mr Payter's submission that the intended harm is likely to have been in Austria given the time and location of the Appellant's arrest, and given that the currency is Euros. The Appellant was interviewed in respect of these matters by the Austrian authorities and the further information makes clear that the Austrian authorities were ready for a trial on 18 December 2009 when the Appellant failed to attend. There is no open CPS file in relation to the Appellant's conduct set out in the EAW. Any prosecution in this jurisdiction would inevitably lead to delay in concluding the proceedings.

Ground 3: Proportionality (s.21A)

27. Section 21A of the 2003 Act provides, so far as is material:

"(1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person ('D')—

(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;

(b) whether the extradition would be disproportionate.

(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3) These are the specified matters relating to proportionality—

(a) the seriousness of the conduct alleged to constitute the extradition offence;

(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D."

28. As to the seriousness of the conduct alleged, Mr Sternberg submits that the judge was wrong to characterise the offence in the EAW as a conspiracy. The EAW does not allege conspiracy but that the requested person acted together with others. Joint enterprise and conspiracy are separate forms of criminal liability under English law. Further, the judge did not consider the Criminal Practice Direction which is of relevance to this issue. In particular PD 17A.5 includes a table of offences where the judge should generally determine that extradition would be disproportionate under s.21A(4)(b) (PD17A.3). Mr Sternberg submits that the conduct in the EAW is a Minor Financial Offence for the purposes of the table at PD17A.5. There is, he submits, no evidence from which it can be inferred that there was any impact on any victim or that there was any indirect harm to others that was anything other than minor. Moreover the sum involved is small, and indeed the Appellant said that he was only in possession of one banknote.
29. I do not accept that the conduct is not serious judged, as is should be, in the first instance, against domestic standards (Miraszewski v District Court in Turun, Polish [2014] EWHC 4261 (Admin), per Pitchford LJ at para 36). That is so whether or not the conduct amounts to a conspiracy or a joint enterprise. I agree with Mr Payter that counterfeit currency is not a stated example of the broad category of "forgery" cited in the general guidance, no doubt because it is an offence which is viewed as serious in this jurisdiction (see R v Howard (1986) 82 Cr. App. R 262).
30. Second, Mr Sternberg submits that the judge was wrong to conclude that it is highly likely that the Appellant would receive a custodial penalty in this country. The offence did not involve sophisticated cross-border criminal activity, as the judge suggested. Mr Sternberg accepted that the sentence was likely to cross the custody threshold, but he submitted that whether or not it should be suspended would be a matter for the court. In any event the Appellant was unlikely, he submits, to face a very lengthy sentence (see R v Crick (1981) 3 Cr. App. R (S) 275).
31. There is no evidence, save for the maximum sentence of 10 years' imprisonment (according with the position in England and Wales), about the likely penalty in practice in Austria. In those circumstances the court is "entitled to draw inferences from the contents of the EAW and to apply domestic sentencing practice as a measure of likelihood" (Miraszewski, per Pitchford LJ at para 38). In my view Mr Payter is correct in his submission that it cannot be said that the Appellant is not likely to receive a custodial sentence; the highest it can be put is that applying domestic sentencing practice he might not.
32. Third, Mr Sternberg submits that the judge further erred in finding that the Appellant could not be subject to less coercive measures and that he had shown he was unwilling to comply with the judicial process in Austria. The Appellant's case is that if he had understood the summons that he had received in German and had been properly advised he would have attended the hearing in Austria when summonsed.
33. I do not accept this submission. The judge heard evidence from the Appellant and was entitled to make the findings that he did:

"It was made clear to him that he would be required to return to Austria in connection with the proceedings.

…

The RP accepts that he received what is highly likely to have been the summons and he accepts that he did absolutely nothing about it.

The obligation to co-operate with the judicial process had been placed upon him when he was released on Bail and it was incumbent upon him to be pro-active.

…

He must have known that a failure to respond to the correspondence he had received from Austria would have consequences and he could and should have availed himself of the legal representation he already had in Austria.

The RP has obviously simply stuck his head in the sand in the hope that this matter would go away…"

34. The Appellant breached his bail conditions, failed to attend his trial and became a fugitive from justice at this point. In these circumstances I do not consider there to be any real possibility of the Austrian authorities taking measures that would be less coercive than the extradition of the Appellant.
35. In my view the District Judge was correct to conclude that the extradition of the Appellant was not disproportionate.

Ground 4: Article 8 ECHR

36. The Appellant contends that the DJ's judgment contains two errors on the issue of Article 8. First, the DJ failed to carry out the balancing exercise required when considering whether extradition is proportionate under Article 8, following the judgment in Polish Judicial Authorities v Celinski [2015] EWHC 1274 (Admin), per Lord Thomas CJ at paras 15-17. Second, the DJ applied the wrong test in relation to Article 8. She stated in her judgment "For the balance to tip in favour of discharge in extradition proceedings the negative consequences must be exceptionally severe". This test may be derived from paragraph 8(7) of Lady Hale's judgment in HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338. However Mr Sternberg submits, if it is, it ignores paragraphs 6, 7 and in particular paragraph 8(2) of that judgment, where Lady Hale stated: "There is no test of exceptionality in either context".
37. Although the DJ's judgment refers to the relevant authorities and states that the court has carried out the appropriate balancing exercise, it does not set out the "pros" and "cons" in the "balance sheet" approach that Celinski requires. However the DJ plainly had regard to the relevant evidence on Article 8 and reached the conclusion that:

"Sadly, on the evidence, this family does not face anything more than the distress and disruption that is inherent in the extradition process and there is nothing to persuade the Court in the circumstances of this case that an order to extradite would be incompatible with the Article 8 rights of this RP and his family."

38. More serious is the second error identified by Mr Sternberg. Mr Payter accepts that the DJ was wrong to state the test as she did (see para 36 above). That being so it is necessary for me to carry out the appropriate balancing exercise afresh.
39. The general principles that apply are to be derived from the well-known leading authorities of Norris v Government of the United States of America (No.2) [2010] UKSC 9, HH and Celinski are not in issue.
40. Mr Sternberg summarises the Appellant's family and person circumstances at paragraphs 8 and 9 of his skeleton argument. At paragraph 9 he states:

"The Appellant has been in a relationship with his partner for over 12 years. She became pregnant, and gave birth to twin daughters 18 months ago. The Appellant is the father of those children. Both the Appellant and his partner work, he manages construction projects worth £1.5-£2m. The Appellant and his partner use their joint incomes to pay for childcare."

41. The DJ made findings that:

"There is no evidence of any financial hardship that might result from extradition although it is accepted the RP's salary may not continue to be paid.

The RP's brother and family live close to the family home in Nottingham and they are clearly in regular contact so there is emotional support in place for the RP's partner and children."

42. The DJ's judgment refers to the Appellant's "good character in this country". Factually that is not correct. The Appellant has 12 convictions for 21 offences committed between 1990 and 1999, including a number of convictions for theft, possessing an offensive weapon and assault occasioning actual bodily harm. Mr Payter seeks to rely on this evidence; Mr Sternberg objects to its admission. How the DJ came to make the error she did in this regard is not known. However there is in my view no good reason why this evidence should not be admitted on this appeal. The Appellant should not be able to rely on good character which he does not have.
43. Mr Payter acknowledges that the issue of delay needs to be addressed. The period from 2007-09 is properly explained, in my view, in information provided by the Respondent in response to the questions of 22 July 2015. Nevertheless Mr Payter accepts that as the Appellant was on bail to the UK there is some unaccounted delay between 2010 and 2013 during which an EAW could have been issued.
44. The DJ made the following findings in relation to delay:

"The JA has provided an explanation for the delay between the RP's release on 19/4/07 and the issuing of the Summons on 26/3/09. Whilst the progress of the matter does appear to be slow the Court does not find that there has been culpable delay on the part of the JA and accepts that cross-jurisdiction information had been requested and was awaited at this stage.

The RP accepts that he received what is highly likely to have been the summons and he accepts that he did absolutely nothing about it.

The obligation to co-operate with the judicial process had been placed upon him when he was released on Bail and it was incumbent upon him to be proactive.

He became a fugitive from justice at this point and any subsequent delay there has been can be laid squarely at his door."

45. The Appellant explains in his proof of evidence dated 16 September 2015, prepared for this appeal, why he believed matters in Austria were at an end. However I have no reason to depart from the findings of fact that the DJ was entitled to make, having heard the Appellant's evidence.
46. The general factors in favour of extradition are well known and summarised in the authorities (see para 39 above). The Appellant's extradition is sought to face trial for a serious offence. It is highly likely that the offence would lead to a custodial sentence in this jurisdiction. He is a fugitive having failed to abide by generous bail conditions. He established his family in full knowledge of the outstanding proceedings and his fugitive status.
47. Considering the arguments against surrender I have had regard to the interference that there will be to the Appellant's right to a private and family life. However this is not a case concerning the extradition of a sole carer of children. I agree with the DJ that "this family does not face anything more than the stress and disruption that is inherent in the extradition process" (see para 37 above). There has been some delay between 2009-10 and 2013. However, as Mr Payter observes, the Appellant created the circumstances which led to the delay by failing to attend his trial. He is a fugitive from justice and has not led a blameless life in this country, albeit the offences he has committed here were some years ago.
48. Having re-done the balancing exercise I have reached the same conclusion as that reached by the DJ, namely that an order to extradite the Appellant will not be incompatible with the Article 8 rights of the Appellant and his family.

Conclusion

49. For the reasons I have given this appeal is dismissed.