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Cite as: [2017] EWHC 2160 (Admin)

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		Neutral Citation Number: [2017] EWHC 2160 (Admin)
		Case No: CO/3687/2016

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

Royal Courts of Justice
Strand, London, WC2A 2LL

19/09/17

B e f o r e :

LORD JUSTICE HICKINBOTTOM
and
MR JUSTICE GREEN
____________________

Between:

	FK	Appellant
	- and -
	STUTTGART STATE PROSECUTOR'S OFFICE, GERMANY	Respondent

____________________

Hugh Southey QC and Graeme L Hall (instructed by Shah Law Chambers) for the Appellant
Julian B Knowles QC and Jonathan Swain (instructed by Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 25 July 2017
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Hickinbottom :

Introduction

This is an appeal against the decision of District Judge Snow of 18 July 2016 to order the Appellant's extradition to Germany. Germany is a category 1 territory, and thus Part 1 of the Extradition Act 2003 ("the 2003 Act") applies. All statutory references in this judgment are to the 2003 Act, except where otherwise appears.

The application for the Appellant's extradition is based upon an accusation European Arrest Warrant ("EAW") issued on 21 March 2016 by the Stuttgart State Prosecutor's Office, Germany, which is the appropriate judicial authority. It seeks the Appellant's extradition to face 26 charges of fraud, with alleged aggregate losses to the victims of just over £1m. Following a full hearing, the District Judge discharged the warrant on two charges but, dismissing the challenges to the remaining 24 charges, ordered the Appellant's surrender.

The Appellant relies upon four grounds of appeal, namely that the District Judge was wrong not to conclude that:

i) The EAW was inadequately particularised (section 2(4)(c) of the 2003 Act) (Ground 1).

ii) The EAW does not describe any extradition offences (sections 10 and 64) (Ground 2).

iii) Due to the passage of time, the Appellant's extradition would be oppressive (section 14) (Ground 3).

iv) The extradition of the Appellant would constitute a disproportionate interference with the rights of the Appellant and his family members under article 8 of the European Convention on Human Rights ("the ECHR") (section 21A) (Ground 4).

On 11 November 2016, Sir Stephen Silber sitting as a High Court Judge granted permission to appeal on all grounds save for Ground 4. Consequently, before this court now is the substantive appeal on Grounds 1-3, and the renewed application for permission on Ground 4.

Before us, Hugh Southey QC and Graeme Hall appeared for the Appellant, and Julian Knowles QC and Jonathan Swain for the Respondent requesting judicial authority. We are grateful to all for their contribution.

The Factual Background

The Appellant was born on 7 July 1958. He is therefore now 59 years of age. He was born in Liechtenstein, and has lived mainly in Germany, but also in the United States. He regularly visited the United Kingdom from about 1992, and from about 2007 decided to reside here. His brother still lives in Liechtenstein. His mother and two sisters live in Germany.

In 2006, the Appellant set up a company, WAIFF Limited ("WAIFF"), registered in England and Wales. He was the sole director. In his statement dated 11 May 2016 in response to the extradition proceedings, he said that the company offered its customers investment advice and services. Funds provided by customers would be invested by the company for a percentage commission; or, alternatively, investment would be made through a silent partnership contract of which WAIFF was a party. Investments were short term (up to three and a half years), medium term (three and a half to seven and a half years) or long term (over seven and a half years). He said that all WAIFF contracts with customers were made in London; he invested all the monies that customers gave him to invest; and, once invested, he had no access to the monies. He made the decision to close the business in late 2014, because he was under stress and he was unable to maintain the short-term investments at a profitable level.

The Appellant married his wife ("Mrs K") on 5 July 2013, having met her the previous year. Mrs K is 24. She has lived in the United Kingdom all her life. She has two daughters, both under the age of ten, from a previous relationship. The Appellant and she have a further two young children, one born just a few weeks ago. Neither the Appellant nor his wife is currently working. They are on benefits.

On 3 September 2015, a domestic warrant was issued in Stuttgart Local Court for the Appellant's arrest in respect of 26 offences of "especially serious fraud" contrary to section 263 of the German Criminal Code. An EAW was issued by the Respondent on 29 September 2015, which was certified by the National Crime Agency ("the NCA") on 5 November 2015.

The EAW was served on the Appellant at his home on 10 November 2015. The EAW identified the Appellant as the requested person; and referred to the 26 offences, described as "swindling", allegedly committed between 28 August 2007 and November 2014 in Böblingen, London and Wiesbaden, offences for which it was said the maximum sentence was ten years' imprisonment. On 31 March 2016, the Appellant was formally discharged from that EAW; but immediately arrested under a new EAW, issued on 21 March 2016 and certified by the NCA on 24 March 2016.

In respect of charges 1-24, each of the EAWs set out the "Facts of the matter" in identical terms, as translated, as follows:

"From the middle of 2007, the [Appellant], managing director of WAIFF…, in London, 9 Brightfield Road, acting personally (in 15 cases, of which in 4 cases jointly with an agent) or (in 9 cases) via at least 9 different, currently known by name, agents offered a total of 65 investors in 24 cases allegedly lucrative investments via WAIFF…. The Investors could choose between a silent participation in WAIFF… with interest rates of 9% or 12%, depending on the term, and a so-called 'short-term investment' with a minimum interest rate of 3.8%. The [Appellant] and the agents instructed by the [Appellant] emphasised the security of the investment that was guaranteed with the investment strategy, serious business partners as well as security and control mechanisms. The absolute security of the investment was emphasised in advertised prospectuses and information leaflets and customers were led to believe that the invested capital was fully secured by the 'gold deposits'. However, neither the contract documents nor the prospectus and information material stated how the promised returns of 12% would be realised. From the end of 2013, the [Appellant] and agents stated that WAIFF… was also involved in the area of 'extraction, production, processing of precious natural resources, valuable metals, so-called rare earths'. Trusting the security of the investment and the promised returns, 65 investors concluded agreements with WAIFF… for a silent participation or a 'short-term investment' between 28 August 2007 and November 2014, making payments in cash or to various accounts, namely to the account of the [Appellant] at Vereingte Volksbank Aktiengesellschaft Böblingen…, to the account of Emporenta Aktiengesellschaft, whose sole shareholder and Chairman of the Executive Board was that of the [Appellant] since February 2010, at Deutsche Bank Aktiengesellschaft, Butehude…, to the account of Barclays Bank PLC, London… and, from 2011, to the account of MJM Treuhandgesellschaft at Naussauische Sparkasse Wiesbaden held for WAIFF… and Emorenta Aktiengesellschaft… totalling EUR 1,171,859.39 and a further CHF 82,000. In fact, investors' funds were not invested for profit at any point in time but, as planned by the [Appellant] from the start, used for the own purposes of the [Appellant] or for maintaining and financing business operations of WAIFF… and Emporenta Aktiengesellschaft. In doing so, the [Appellant] realised a substantial source of income over a significant period of time. With the payment of their capital and premium, the investors incurred a loss in this amount as the funds, as planned by the [Appellant] from the start, were never invested. To the extent any payments or repayments were made to individual customers, these originated exclusively from newly acquired capital received from other investors."

As part of the "Facts of the matter" relied upon, the March 2016 EAW additionally had a schedule attached, which, in respect of each "penal act", set out (i) the name of the alleged victim, (ii) the town in which the victim lived, (iii) the date of the conclusion of the contract, (iv) the date of remittance or period, and (v) the payments including premium. The address of each victim was in Germany. Each payment was in euros, save for two which were in Swiss francs. The list was split into three parts, namely cases in which "conclusion of contract by [the Appellant] personally" (Appendix 1); cases in which "conclusion of contract by broker Dieter Schorn, Rudersberg, in each case through dormant equity holding in WAIFF…" (Appendix 2); and cases in which "conclusion of contract through dormant equity holding in WAIFF… through other brokers as well as investors who in turn solicited new customers" (Appendix 3).

Charge 25 involved the allegation that, in 2009, the Appellant had led an individual in London to believe that she could lucratively invest in a fund which he controlled; but, in accordance with a pre-determined plan, he used the money invested for his own purposes. Charge 26 involved an allegation that the Appellant procured €250,000 from a man in St Leonards-on-Sea, "at an unknown point in time", by untruthfully leading him to believe that it would be invested in a gold mine in California.

At the hearing before the District Judge, the Respondent conceded that, in relation to charges 25 and 26, the EAW contained no indication that any of the alleged conduct occurred in Germany; and that, consequently, the judge could not be satisfied that they were extradition offences. The District Judge discharged the Appellant on those two charges. However, on 18 July 2016, he dismissed each challenge in relation to the remaining charges; and ordered the Appellant's extradition on them.

On 22 July 2016, the Appellant lodged an appeal. As I have indicated, on 11 November 2016, Sir Stephen Silber granted permission to appeal on all grounds save for Ground 4. On 16 November 2016, the Appellant renewed his application for permission in relation to that ground.

On the grounds for which permission had been given, there was a substantive hearing on 8 February 2017, again before Sir Stephen Silber, following which the judge, who appears to have had some concern about where the alleged conduct had occurred, indicated that he was considering requesting further information from the requesting authority. He invited written submissions; and, on 15 and 17 February 2017, the Appellant lodged submissions to the effect that the High Court had no jurisdiction to obtain or admit further information in these circumstances.

However, by an order dated 1 March 2017, Sir Stephen Silber asked the requesting authority to provide the following further information, namely:

"In respect of each of the transactions numbered 1-24 on the Schedule to the EAW, precisely what 'conduct' is alleged to have occurred in Germany, identifying each and every fact relied on."

He also gave directions for revised skeleton arguments to be filed following receipt of that information; and that the substantive hearing be heard afresh by a Divisional Court. An application by the Appellant to vary that Order was refused, by the same judge, on 13 March 2017.

The requesting authority responded to the request of 1 March 2017 on 17 March 2017. In respect of the transactions in charges 1-24, the response confirmed that:

"In fact, the transactions relevant to the proceedings were only carried out in Germany. For those reasons, an address in… Wiesbaden was provided as a 'contract address in Germany' for the business transactions. The address was that of a virtual office rented by office services company, Eurobean GmbH, that provided an address and telephone lines as well as receipt of mail and, if required, the use of an office.…

Regarding offences no 1 - no 24, it can be said that all the contracts of WAIFF… in Germany were concluded with investors in Germany. For the customers listed in Appendix 1…, the [Appellant] presented himself personally and held the discussions…".

It continued that agents (including Mr Schorn) were portrayed as having various directorship posts within the company. All were resident in Germany. In respect of both Appendix 2 and 3, all the contracts "were concluded in Germany". The customers paid in cash or by means of cash transfer to various banks in Germany – the method of payment was added to the schedule – with "customer payments… only occasionally made to an account at Barclays Bank PLC London". The response said that the Appellant relocated from Böblingen to the United Kingdom in 2011; but was in Germany frequently thereafter, as the withdrawals from his Barclays Bank account showed. The further information included a revised copy of the schedule to the EAW, with columns showing the account to which payment was transferred and the investment type added.

Further Information in Extradition Cases: The Jurisdiction of the High Court

As I have indicated, before Sir Stephen Silber, an issue of some importance arose, namely whether, on an extradition appeal, this court has power to request and/or admit information from a respondent requesting authority in the circumstances in which he requested information in this case. Mr Southey submits that it does not, on the basis of the following line of argument.

The 2003 Act gives effect to the Council Framework Decision of 11 June 2002 ("the Framework Decision") which established the EAW process.

By article 15(3) of the Framework Decision, the requesting authority may at any time forward additional "useful information" to "the executing judicial authority"; and article 15(2) provides that, if "the executing judicial authority" finds the information it receives from the requesting authority to be insufficient to allow it to decide on surrender, "it shall request that the necessary supplementary information… be furnished…". Article 15(2) imposes an obligation to request information – it does not purport exclusively to define the power to do so – but, in any event, article 6(2) defines "executing judicial authority" in terms of "the judicial authority of the executing Member State which is competent to execute the [EAW] by virtue of the law of that State." By a formal notification by the Permanent Representative of the United Kingdom to the Council of the European Union dated 22 December 2003, the "executing judicial authority" for England and Wales for those purposes is said to be "a District Judge (Magistrates' Court) designated by the Lord Chancellor". This is reflected in the 2003 Act, under which an extradition hearing is to be conducted by "an appropriate judge" (section 9), namely, in England and Wales, "a District Judge (Magistrates' Courts) designated for the purposes…" (section 67(1)(a)). It is now well-established that the district judge conducting extradition proceedings under Part 1 of the 2003 Act can seek from the issuing judicial authority information to fill lacunae in an EAW (see, e.g., Goluchowski v District Court in Elblag, Poland [2016] UKSC 36, and Alexander v Public Prosecutor's Office, Marseilles; Di Benedetto v Court of Palermo, Italy [2017] EWHC 1392 ("Alexander") especially at [57]-[81]). However, it is common ground before us that the High Court is not an "executing judicial authority".

The High Court's jurisdiction in extradition proceedings derives from the 2003 Act. A requested person may appeal to the High Court against an order for extradition under Part 1, under section 26. The "Court's powers on appeal under section 26" are set out in section 27, which, so far as material, provides:

"(1) On an appeal under section 26 the High Court may –

(a) allow the appeal;

(b) dismiss the appeal.

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

(3) The conditions are that –

(a) the appropriate 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.

(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 appropriate 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.

(5) If the court allows the appeal it must –

(a) order the person's discharge;

(b) quash the order for his extradition."

A requesting authority may also appeal against an order discharging the defendant, under section 28. The court's powers on such an appeal are set out in section 29. They are generally similar to section 27: in particular, the conditions in section 27(4)(a) and (b) are replicated in section 29(4)(a) and (b). I will refer to those as "the sub-section (4) conditions". By section 29(5), where an appeal by a requesting authority is successful, the High Court must quash the order, and remit the matter to the district judge with a direction to proceed as he would have been required to do if he had determined the relevant question correctly. The High Court, not being an "executing judicial authority", cannot itself make an extradition order.

The role of the High Court on an extradition appeal is therefore, as Mr Southey emphasised, essentially one of review; and is narrower than on a conventional criminal or civil appeal (see Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551 ("Celinski") at [18] per Lord Thomas of Cwmgiedd LCJ). The admission of further evidence is notably restricted by the sub-section 4 conditions.

Those conditions were considered by this court (Sir Anthony May P and Silber J) in Szombathely City Court v Fenyvesi [2009] EWHC 231 (Admin) ("Fenyvesi"), which concluded (at [32]) that, in the light of the statutory provisions, fresh evidence can only be admitted on an appeal to the High Court where the evidence did not exist at the time of the hearing before the district judge (or was not at the disposal of the party wishing to adduce it and could not have been obtained with reasonable diligence) and, if it had been given, it would have been decisive in the sense that it would have resulted in the district judge deciding the relevant question differently and consequently deciding the appeal differently.

The "only possible exception" to application of the Fenyvesi criteria, Mr Southey submits, is in relation to human rights issues. Where to extradite a requested person would breach the human rights of him and/or his family members as the result of a change of circumstances since the appeal before the district judge, Mr Southey accepts that the court may – indeed, must – admit evidence of that change of circumstance, both from the requested person and, in response, from the requesting authority. As I understood his submissions, Mr Southey was ambivalent as to whether the admission of evidence from the requested person in those circumstances was a true exercise of the court's inherent jurisdiction; or whether it was simply a necessary consequence of section 6(1) of the Human Rights Act 1998 which makes it unlawful for any public authority (including this court) to act in a way which is incompatible with an ECHR right. However, the court would appear to admit evidence in response in the exercise of its inherent jurisdiction, as, not to do so, would clearly be contrary to the interests of justice. In any event, save for that possible exception, he contends that the court has no power – express, implied or inherent – to admit evidence that does not comply with the Fenyvesi criteria.

In this case, the Fenyvesi criteria could not be satisfied: at the time of the hearing before the District Judge, the requested information concerning where the alleged conduct took place clearly did exist; or was, at least, at the disposal of the requesting authority and with reasonable diligence could have been obtained. Therefore, it is said that this court has no jurisdiction to admit the further information supplied by the requesting authority in March 2017; and we should ignore it.

In support of that contention, Mr Southey further submitted:

i) To allow fresh evidence to be requested and/or admitted by the High Court on an extradition appeal from a district judge, would be inconsistent with article 17(1) of the Framework Decision, which requires procedures under an EAW to be "dealt with and executed as a matter of urgency"; as well as rule 50.2(b) of the Criminal Procedure Rules ("the CrimPR"), which provides that, in exercising a power in extradition proceedings, "the court must have regard to the importance of… the conduct of extradition proceedings in accordance with international obligations, including the obligations to deal swiftly with extradition requests".

ii) Insofar as the High Court has an inherent jurisdiction to admit further evidence, it should not be exercised in circumstances wider than those in which evidence is admitted by (e.g.) the Court of Appeal (Civil Division), where the criteria set out in Ladd v Marshall [1954] 3 All ER 745 restrict the admission of such evidence to that which could not have been obtained with reasonable diligence for the initial trial and which, if given and believed, would probably have an important influence on the result of the case, though it need not be decisive. In this case, those criteria would not be satisfied because, with reasonable diligence, the evidence could have been obtained for the initial hearing before the District Judge.

iii) Parliament has assigned responsibility for the "conduct of extradition proceedings" to the Crown Prosecution Service ("the CPS") (section 190 of the 2003 Act). In reviewing an extradition decision taken by the magistrates' court, the High Court must act impartially and independently. Asking a respondent requesting authority to obtain further evidence involves the court "taking on the role of the CPS"; and gives rise to an appearance of bias in favour of the respondent.

iv) It also gives rise to an inequality of arms, as the statutory framework expressly prevents an appellant requested person from seeking new evidence. Article 47 of the Charter of Fundamental Rights of the European Union applies to extradition proceedings; so that standards equivalent to those imposed by article 6 of the ECHR apply. The principle of equality of arms thus applies. An aspect of that principle is that parties to litigation must have the same opportunity to submit evidence. As the 2003 Act plainly prevents an appellant from submitting further evidence where the Fenyvesi criteria are not satisfied, a respondent too must be similarly constrained.

v) The recent decision of this court (Lloyd Jones LJ and Nicola Davies J) in Straszewski v District Court in Bydogszcz, Poland [2017] EWHC 844 ("Straszewski"), which held that evidence from a respondent in an extradition appeal may be admitted if it is in the interests of justice to do so, was wrong; and plainly so, such that it should not be followed.

For those reasons, Mr Southey submitted that Sir Stephen Silber was wrong to request the further information that he did; and this court should not admit it.

Those submissions were put by Mr Southey with his usual vigour and tenacity; but, despite his efforts, I do not find them compelling, for the following reasons.

The High Court has an inherent jurisdiction to regulate its own procedure. The jurisdiction may be limited by statutory provision; but, generally, it incorporates the power to take any procedural step that is necessary or expedient in the interests of justice. It is now supported by the overriding objective of dealing with cases justly, found in rule 1.1(1) of both the Crim PR and the Civil Procedure Rules. The CrimPR apply to extradition cases.

In assigning extradition appeals from the magistrates' court to the High Court in the 2003 Act, as Mitting J observed in Mroz v Regional Court in Kielcach, Poland [2013] EWHC 1334 (Admin) at [4], Parliament must be taken to have understood and accepted that that inherent jurisdiction would apply to such appeals, subject only to any provision within the statutory scheme which restricts it. Mitting J referred to only "express provision" in this regard. I accept that it is possible, at least in theory, for this court's inherent jurisdiction to be excluded or restricted by implication; but, given that the jurisdiction is only exercised in the interests of justice, such a restriction could be implied only if there were a very clear indication that that was the legislative intention.

In imposing the sub-section 4 conditions, Parliament has expressly restricted the scope for an appellant before this court to submit new evidence. As it is implicit that Parliament must have intended that all appeals be dealt with justly, essentially, in those provisions, Parliament has predetermined as a general proposition that, unless the relevant conditions (as explained in Fenyvesi) are satisfied, the interests of justice are met by not allowing an appellant to seek to admit further evidence. The mutual trust and confidence between states that are bound by the Framework Decision, and the need for Part 1 extradition proceedings to be dealt with expeditiously and with finality, provide an obvious and justifiable foundation for such a predetermination.

However, the sub-section 4 conditions do not apply in this case, because they are the necessary conditions upon which this court may allow an appeal. They concern the circumstances in which an appellant, whether requested person or requesting authority, might seek to have fresh evidence admitted with a view to persuading this court that the district judge was wrong. They do not apply to the different question of the circumstances in which a respondent to an appeal in this court might seek to have fresh evidence admitted; or, indeed, the circumstances in which the court might seek information from one of the parties by way of clarification.

Similarly, as this court (Aikens LJ, Ouseley and Mitting JJ) observed in Elashmawy v Court of Brescia, Italy [2015] EWHC 28 (Admin) at [82]-[83] – somewhat timidly, but, in my respectful view, quite rightly – the Fenyvesi criteria, which concern the sub-section 4 conditions, do not apply to a case in which one party seeks to put in new evidence with a view to defeating an appeal. Those criteria – like the conditions themselves – relate to the circumstances in which a party seeks to put in new evidence with a view to succeeding on appeal.

I do not consider that the absence of an express statutory provision restricting a respondent to an appeal to this court from seeking to have new evidence admitted to have been accidental. Such a restriction, if it were indeed the legislative intention, would have been easy enough to include. It could and, in my view, would have been included.

Certainly, I do not consider that the statutory scheme looked at as a whole drives one to conclude that, outside the express restrictions in section 27 and 29 of the 2003 Act, as a matter of implication, Parliament intended the High Court's inherent jurisdiction to allow in fresh evidence to be excluded or for it to be restricted to evidence that strictly satisfies the Fenyvesi criteria. I find Mr Southey's submissions as to why that conclusion should be drawn to be unpersuasive.

Given the different nature of an extradition appeal, I do not consider that the approach taken in other appellate schemes (including Ladd v Marshall) to be helpful. The suggestion that to allow a respondent to put in further evidence that would fail to satisfy the Fenyvesi criteria would be to give the requesting authority/CPS an unfair advantage has no substance: the proposition applies to any respondent, whether it be the requesting authority or the requested person. Allowing a respondent to submit further evidence in support of the district judge's findings, far from delaying a matter, would often if not usually expedite it: it would avoid the situation where an EAW is discharged on the basis of some defect that could be cured by the provision of further information, only to be reissued with that information included. Nor do I accept that an appellant has less than a full opportunity to present evidence in relation to an EAW – that opportunity, given equally to both parties, arises before the district judge. Furthermore, if information were to be provided by the respondent which, the court considers, it is in the interests of justice to admit, the court would be likely to conclude that it would be in the interests of justice also to admit evidence in response or rebuttal. The statutory provisions merely avoid a party that loses before the district judge – whether that party be requested person or requesting authority – having a second bite of the cherry. They are therefore supportive of the principle of finality, and generally of the broad principles that underlie the Framework Directive. It is not contrary to the letter or spirit of article 6 of the ECHR, or the common law requirements for a fair trial, to allow a party on an appeal to submit further information in support of a decision of the district judge where (for example) that information might confirm a finding of fact made by the district judge, whilst proscribing an unsuccessful party from submitting further evidence in support of the proposition he was wrong. It is noteworthy that, in this case, Mr Southey expressly confirmed that the Appellant had suffered no arguable prejudice from the admission of the further information provided by the requesting authority in March 2017 following the court's request.

For those reasons, in my view, there is no restriction on the inherent jurisdiction of the High Court on appeal to admit further evidence from a respondent to an extradition appeal. It is open to a respondent to apply to this court to exercise its inherent jurisdiction and admit further evidence in support of an extradition decision of a district judge.

I endorse the observation of Aikens LJ in Elashmawy (at [82]), that this does not allow such a party carte blanche to adduce new material to bolster an existing decision in his favour, particularly if the material was "available" before the district judge. "Availability" of evidence in the sense discussed in Fenyvesi is still a relevant factor in this context; but it is only one of several material considerations. The court will assess such an application to admit further evidence against the measure of whether it in the interests of justice to admit it. There is no other restriction on the exercise of the court's inherent jurisdiction in this regard. Although whether admission of the evidence is in the interests of justice will be quintessentially dependent upon the circumstances of the particular case involving an exercise of judgment by the court, where the new evidence sought to be admitted merely confirms a factual finding made by the district judge, or clarifies an issue of fact or law that might otherwise be ambiguous or unclear, it may be straightforward to persuade the court that it is in the interests of justice to admit it.

Two further things flow from the fact that the court has the inherent jurisdiction to admit evidence on an extradition appeal.

First, although this appeal does not raise any issue as to the circumstances in which the court may exercise its inherent jurisdiction to allow an application from an appellant to admit further evidence – and, in the absence of argument on the point, nothing I say should be regarded as definitive on the issue – I would not myself rule out the possibility of the exercise of the jurisdiction to admit such evidence. Mr Southey himself appears to accept that the jurisdiction can be exercised to admit evidence in response (a proposition generally supported by R v Hanratty [2002] EWCA Crim 1141, in which the Court of Appeal (Criminal Division) allowed the admission of DNA evidence in rebuttal of fresh evidence introduced by an appellant in a criminal appeal). It may also be that the court could properly exercise that jurisdiction if, for example, not to do so would enable a fraud to be perpetrated. However, given the statutory restriction, the circumstances in which the admission of such evidence might be appropriate will be rare.

Second, I am firmly of the view that, if this court considers that it would be in the interests of justice for further information from the requesting authority or requested person to be provided, whether the request is directed towards appellant or respondent, then it has the power to request such information. When a request is made, the requesting authority is under a duty to respond as part of the duty of sincere cooperation as between member states. In exercising the power to request information, there is no restriction on the court, save that it must bear in mind the statutory restrictions on fresh evidence in appeals in sections 27 and 29, and respect the will of Parliament in that regard by not making a request that improperly offends that restriction, expressly or in spirit. A genuine request by this court for information to clarify an arguable ambiguity in the relevant law or evidence is unlikely to be offensive.

With respect to the submissions of Mr Southey, I do not find the proposition – that, on an extradition appeal, the High Court may request and/or admit further evidence from a respondent that the statutory provisions do not expressly exclude and which it considers necessary to deal with the appeal justly – to be remarkable, or indeed a proposition open to serious argument. The proposition holds good despite the terms of section 27 and 29 of the 2003 Act in which, as I have described, Parliament has effectively predetermined that generally, because of the comity between states that are bound by the Framework Decision and the need for Part 1 extradition proceedings to be dealt with expeditiously, the admission of fresh evidence by an appellant will not be in the interests of justice unless the conditions set out in those statutory provisions, as explained in Fenyvesi, are satisfied.

Mr Knowles, who is particularly experienced in extradition matters, said that, in his experience, it is not unusual for requesting authorities to apply to add to the information in the EAW to support the decision of a district judge to extradite a requested person, and for this court to request such information of its own motion. That is also my experience.

Merely by way of example, in Maric v County Court in Osijek, Croatia [2016] EWHC 3526 (Admin), the requesting authority sought the extradition of the requested person to face a charge of a war crime against civilian population. The alleged offence occurred in 1991. The requested person was indicted, with over fifty other men, in 2001. A domestic arrest warrant was issued that year. The EAW was not issued until 2015. On the application to extradite, there was a challenge on the basis that it would be unjust or oppressive to extradite the requested person by reason of the passage of time; and so extradition was barred under section 14 of the 2003 Act. The district judge ordered extradition. The requested person appealed. In giving permission to appeal, Mitting J expressed concern that the district judge had considered oppression, but not the test of injustice; and he thought that the section 14 issue should be considered at a substantive appeal with any further information that the respondent authority might file and serve. In the event, in response to that invitation, the authority filed and served further information as to what had happened between 2001 and 2015. At the substantive hearing, I admitted that further evidence: indeed, as in other cases such as Alexander (see [103]-[104]), it was not suggested that the court had no jurisdiction to request or receive the further information, or that, in the circumstances of the case, I should not admit it.

In Straszewski, the requesting authority sought the requested person's extradition under a conviction EAW to serve a sentence of three years in respect of ten thefts of and from motor vehicles. The sentence was initially suspended for seven years, on various conditions including a requirement that the requested person remain in contact with his probation officer. He failed to do so. The EAW did not specifically refer to the suspended sentence having been activated; but merely said that there was a remaining sentence to be served of three years. Before the district judge there was a debate as to whether the EAW was defective by not recording the activation of the sentence. However, she found that the requested person would have known about that activation; and she ordered the requested person's extradition. Following the hearing, further information was sought from the requesting authority, which confirmed that the sentence was activated at a court hearing of which the defendant had been properly notified at the address for service that he had given, in accordance with Polish law.

The court, echoing the experience to which I have alluded, said (at [32]) that this court "frequently seeks further information from requesting judicial authorities". It dismissed the argument that the court's discretion to admit evidence from a respondent was restricted to circumstances in which a refusal may result in a breach of a requested person's human rights or where the court requires information as to the domestic law of the requesting state (which, in that case, had been conceded as circumstances in which information could properly be sought). The court adopted an interests of justice test; and concluded that, to exclude the evidence relating to the activation of the suspended sentence in that case "would be to impose an artificiality upon these proceedings which is inconsistent with the concept of justice" (at [34]). The court, without determining whether there had in fact been a defect in the EAW, expressed itself satisfied that the evidence should be admitted "which [had] the effect of curing any deficiency in the EAW".

In each of those cases, as I understand it, this court requested further information from the requesting authority to clarify a matter of fact, in circumstances in which the district judge had made a finding but the evidential basis of that finding was, at least arguably, ambiguous. In the event, the further information provided by the requesting authority supported the finding of fact made by the district judge; although, of course, it is possible that it would not have supported it, or would even have undermined it. However, in my view, neither request by this court nor the subsequent admission of the further information provided as a result of the request, each driven by the overriding objective of rule 1.1 of the CrimPR to deal with cases justly, arguably undermined the statutory restrictions imposed by sections 27 and 29 of the 2003 Act, either expressly or in spirit. Indeed, given that the court has the jurisdiction to request and admit such evidence, not to request and admit such evidence when the court considers it is in the interests of justice to do so would not only be contrary to the CrimPR, but a curious and perverse course for a court to take.

Straszewski is a judgment of this court, in which the issue raised by Mr Southey was specifically argued and determined. Consequently, as Mr Southey frankly accepted, it is binding upon us unless we consider it to be plainly wrong. However, I do not consider it to be wrong; indeed, as will be apparent from the analysis above, I consider it to be right, and plainly so.

For the reasons I have given, in my judgment, the extradition scheme does not impel the conclusion that the inherent jurisdiction of the court is restricted in the way for which Mr Southey contends. In particular, so far as this appeal is concerned, the March 2017 request by Sir Stephen Silber for the requesting authority to provide further information about where the conduct which founds the alleged offences occurred, in my view, fell within the proper exercise of the court's inherent jurisdiction; it was not offensive to the statutory restrictions on evidence admissible in this appeal; and the information provided in response to the request is admissible.

Ground 1: Inadequate Particularisation (section 2(4)(c))

Article 8.1 of the Framework Decision, headed "Contents and form of the [EAW]", sets out the information which an EAW must contain, including (as paragraph (e)):

"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."

Section 2(4)(c) of the 2003 Act gives effect to this provision, albeit without precisely replicating its terms. For the purposes of this appeal, any divergence is immaterial. Under that sub-section of the 2003 Act, an EAW must include:

"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 the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute and offence."

About the particularisation required by these provisions, the following propositions, regularly repeated in the authorities (see, e.g., King v Public Prosecutors of Villefranche sur Saône, France [2015] EWHC 3670 (Admin) at [16] and following; and Alexander at [83]) are uncontroversial. There is a particularly high level of mutual trust, confidence and respect between states which are parties to the Framework Decision. The object of the EAW process is to remove the complexity and potential for delay in extradition between such states. There is consequently no requirement for full and exhaustive particularisation, the appropriate level of particularisation being dependent upon the circumstances of the specific case. In assessing whether a description is adequate, the EAW should be considered as a whole. However, sufficient circumstances must be set out to enable the requested person and the requested state (i) to identify the offence with which the requested person is charged; (ii) to understand, with a reasonable certainty, the substance of the allegations against the requested person and in particular when and where the offence is said to have been committed, and what he is said to have done; (iii) to perform a transposition exercise, when dual criminality is in issue; and (iv) to determine whether any compulsory or optional barriers to extradition apply. Where a request for extradition is made in respect of more than one offence, each offence must be adequately particularised.

Because there is a need for the EAW to provide sufficient particulars to enable a transposition exercise to be performed, there is some overlap between the requirements of section 2(4)(c) and those of sections 10 and 64. Each require that the description of the alleged conduct reveals the basic elements of an offence in the requested state. If the conduct does not particularise an offence, then section 2(4)(c) is not satisfied, and the EAW is void. If the description of conduct reveals the basic elements of an offence, then that provision is satisfied; but the dual criminality provisions of sections 10 and 64 require the court to go on to consider matters such as whether, if the conduct occurred in the England and Wales, there would be territorial jurisdiction to prosecute for an offence here.

In this extradition application, it is the requesting authority's case that the Appellant's alleged relevant conduct occurred in Germany; and, if it had occurred in England and Wales, although it would also amount to a criminal conspiracy, it would have amounted to an offence under section 2, read with section 1, of the Fraud Act 2006 ("the Fraud Act"). In this regard, the requesting authority has pinned its colours to the mast: it relies only upon that domestic statutory offence.

Section 2 of the Fraud Act, so far as material, provides:

"(1) A person in breach of this section if he –

(a) dishonestly makes a false representation, and

(b) intends, by making the representation –

(i) to make gain for himself or another, or

(ii) to cause loss to another or to expose another to a risk of loss.

(2) A representation is false if –

(a) it is untrue or misleading, and

(b) the person making it knows that it is, or might be, untrue or misleading.

…

(4) A representation may be express or implied…".

The actus reus of such a fraud is simply the making of a false representation. A representation is "made" as soon as it is uttered. For the offence to be committed, no gain or loss need result. The mens rea is equally clear: the representation must be "false" (i.e., as a result of the definition in section 2(2)(b), made in circumstances in which the person making it knows that it is, or might be, untrue or misleading), and it must be "dishonest".

Mr Southey submitted that the description of the conduct in the EAW does not reveal the basic elements of an offence under section 2 of the Fraud Act, so that the requirements of section 2(4)(c) are not satisfied. He dealt with the location of the offending under Ground 2, as will I. Otherwise, as Ground 1, he submitted that the description of conduct set out neither the actus reus of an offence under section 2 of the Fraud Act, nor the mens rea. He submitted that the only representation to investors relied upon in the description is that short term investors would receive a return of 3.8%: no other contractual terms or representations are suggested or relied upon. There is nothing to indicate that that representation, when made, was false, untrue or misleading: indeed, the particulars confirm that, at least initially, investors did receive returns, which (it is said) demonstrates that the representation was not false at the time it was made. The particulars do not suggest that any representation was made which precluded the Appellant from investing the money given over by customers in his own business, or "for his own purposes": and, in any event, it is unclear in which of the 24 alleged offences the money was invested in his own business or "for his own purposes". The description does not use such terms as "dishonesty", "misleading" or "deception"; and, Mr Southey submits, the District Judge was wrong to find that the particulars impelled dishonesty on the part of the Appellant as the only reasonable inference.

However, I am wholly unpersuaded by these submissions, which are, in my view, unrealistically critical of the particulars in the EAW.

The description of conduct in the EAW, clearly and unequivocally, describes a classic Ponzi scheme, i.e. a scam based upon the "rob Peter to pay Paul" principle, in which high rates of return with low risk are promised to investors, but returns are predominantly or wholly funded, not by any legitimate or even existing business or financial activity, but rather from capital invested by later investors. The apparent returns on such a basis are, indeed, often high rate; but they are of distinctly restricted duration, because the customer's funds are not "invested" at all and the scam is unsustainable over the longer term.

The description of the Appellant's alleged conduct is of such a scam. Far from being unparticularised and unclear, it is detailed and unequivocal. It is alleged that the Appellant (or his agents, as instructed by him) represented to each customer that their money would be invested, at high rates of return, and would be fully secured by "gold deposits". It is alleged that, contrary to those representations – and leaving aside the representations as to rates of return and security:

"… funds were not invested for profit at any point in time but, as planned by the [Appellant] from the start, used for the own purposes of the [Appellant] or for maintaining the business operations of WAIFF…. With the payment of their capital and premium, the investors incurred a loss in this amount as the funds, as planned by the [Appellant] from the start, were never invested…" (emphasis added).

The description thus makes clear that it is alleged that the Appellant represented to the customers that their money would be invested, but, as he intended from the outset, it was never invested at all. It was certainly not invested, as he represented it would be, in business or financial activities that would yield the investors the promised rates of return; or with the full security that he represented would back the investment. The actus reus of representations that were false "from the start" (i.e. made at a time when the Appellant knew that they were untrue or misleading) is clearly alleged. And, given the allegation that the Appellant made the representations at a time when he knew they were untrue, the District Judge did not arguably err in concluding, as he did (at [19] of his ruling), that "the allegations impel an inference that the [Appellant] acted dishonestly". On the basis of the Appellant's alleged conduct as described in the EAW, that was the only legitimate inference that could be drawn.

Nor does von der Pahlen v Government of Austria [2006] EWHC 1672 (Admin), upon which Mr Southey relied, assist the Appellant's cause. In that case, the extradition of the requested person was sought to face three charges of "severe and professional fraud" in Austria. This court found there were a number of deficiencies in the description of the conduct in the EAW. One charge did not identify the alleged victims, the number and size of the relevant advanced payments (except the aggregate exceeded €50,000), or the nature of the fraudulent misrepresentation (see [22]). The second and third charges had similar defects, but also suffered from lacking clarity and from being linguistically obscure (see [23]-[24]). Dyson LJ, giving the judgment of the court, made clear that he was not intending to establish any point of general principle; he rather emphasised that each case was fact-specific, and that, in terms of particularity, he had no doubt that the EAW in that case "did not go far enough". I respectfully agree.

As Mr Knowles submitted, the Appellant's case is clearly distinguishable from von der Pahlen on its facts. As I have indicated (paragraphs 11-12 above), the description of conduct narrative was supplemented by the schedule which, unlike the EAW in von der Pahlen, clearly identifies each of the alleged victims, the dates on which the contracts were concluded, the dates of payments, and the loss suffered. It also sets out the cases in which the Appellant was the individual who negotiated the contract, and where he used an agent. Mr Southey complains that the schedule does not specify precisely when and where the relevant representations were made; but, again, I find that an unrealistic submission, given the nature of the fraud alleged, i.e. one in which customers handed over money to the Appellant or his agents to be invested in circumstances in which the Appellant never had any intention of investing those funds. Although I appreciate that an offence under section 2 of the Fraud Act is committed as soon as the relevant misrepresentation is made, in this case it is clear that, at the time of each contract, there was an implied (if not an express) representation that the investor's monies would be invested. Without such an active representation, at that time, the investor would not have handed over his or her money. In any event, as I understand his evidence before the District Judge, the Appellant does not suggest that such representations were not made prior to the contracts being entered into: he simply says that they were true, or he believed them to be true.

For those reasons, I do not find Ground 1 to have been made good.

Ground 2: Dual Criminality (sections 10 and 64),

By section 10 of the 2003 Act, it is a prerequisite of an extradition order being made that the offence specified in the EAW is "an extradition offence", which, for an accusation warrant, is defined in the "dual criminality" provisions of section 64 which describes three sets of conditions, one of which has to be satisfied. It is common ground that the conditions set out in section 64(4) and (5) are not satisfied in this case, the latter because one condition is that "no part of the conduct occurs in the United Kingdom" and the EAW described the conduct taking place in, amongst other places, London.

The third set of conditions, described in section 64(3), are as follows:

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

(b) the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom;

(c) the conduct is punishable under the law of the category 1 territory with imprisonment… for a term of 12 months or a greater punishment."

It is uncontroversial that (c) is satisfied: the EAW indicates a maximum sentence of 10 years' imprisonment.

However, the jurisdiction of the courts of England and Wales for an offence under section 2 of the Fraud Act is dependent upon "any act or omission or other event (including any result of one or more of the acts or omissions) proof of which is required for conviction purposes" having taken place in England and Wales (sections 1(2)(bb) and 2 of the Criminal Justice Act 1993 as amended); and, therefore, conditions (a) and (b) are only satisfied if some of the relevant conduct comprising a basic element of a section 2 Fraud Act offence occurred in Germany. Mr Southey submits that the description of the offences in the EAW does not impel the inference that at least one constituent element of each (or, indeed, any) of the 24 offences took place in Germany.

Mr Southey accepted that it is sufficient to constitute conduct in a territory if the relevant acts were intended to effect harm in that territory (see Office of the King's Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 at [40] per Lord Hope of Craighead: Lord Hope's observations were in respect of section 65 and conviction EAWs, but Mr Southey accepted that they equally applied to section 64 and accusation EAWs). However, he submitted that (i) an offence under section 2 of the Fraud Act did not require harm to be occasioned, or even intended; and (ii) in any event, the EAW did not impel the inference that harm, in the form of loss to victims, was intended to occur in Germany.

Consequently, Mr Southey submitted that the conditions in neither section 64(3)(a) nor (b) is satisfied; and, thus, the requirement for dual criminality in sections 10 and 64, in respect of any of the offences, is not satisfied.

However:

i) In my judgment, on the basis of the description of conduct in the EAW before him, the District Judge was entitled to find, as he did, that relevant conduct occurred in Germany (see [25] of his ruling). Crucially, each of the alleged victims was resident in Germany, and almost all the payments were paid in euros (the balance being in Swiss francs). The nature of the alleged scam, and the amounts of individual payments, strongly suggest that, in each case, any discussions about the proposed "investment", and thus any representations made, would have been in Germany.

ii) In any event, the further information provided by the requesting authority in March 2017 makes clear that it is alleged that the relevant misrepresentations were made in Germany. It is clear that it is alleged that, in relation to all 24 charges, "[T]he transactions relevant to the proceedings were only carried out in Germany…". The further information states, on more than one occasion, that all contracts were concluded in Germany; and that, for the customers listed in Appendix 1, "... [the Appellant] presented himself personally and held the discussions". He was, the information said, frequently in Germany even after he had relocated to the United Kingdom in 2011. For those in Appendix 2, the contract negotiations were carried out by Mr Schorn, "resident in Rudersberg". In respect of the agents who negotiated the contracts in Appendix 3 cases, "All these persons acted in Germany".

iii) Yet further, insofar as it is relevant, it is clear that the intended harm, in terms of loss to victims, was intended to occur in Germany. All the victims were resident in Germany and, even without the further information, there is no real suggestion that the loss was to fall geographically elsewhere. Again, the District Judge was entitled to find, as he did (see [25]), that the intended harm was to fall in Germany.

For those reasons, I am satisfied that the District Judge did not err in concluding that the offences charged in charges 1-24 were extradition offences within the meaning of section 64(3) of the 2003 Act. Ground 2 fails.

Ground 3: Passage of Time (section 14)

Section 14 of the 2003 Act, so far as relevant to this appeal, provides that:

"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 ... committed the extradition offence ...".