England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 October 2017

Mr Justice Julian Knowles:

Introduction

1. This is an appeal with the permission of Garnham J. following an oral renewal application on 12^th July 2017 by Trevor Heathfield, the Appellant, against the order for his extradition to Germany which was made by District Judge Bayne at Westminster Magistrates Court on 30^th January 2017. The Appellant is represented by Mr Caldwell and the Respondent Issuing Judicial Authority is represented by Mr Lloyd. I am grateful to both of them for their written and oral submissions.
2. The Appellant's extradition to Germany is sought pursuant to an accusation European arrest warrant ('EAW') issued by the Respondent on 27^th May 2015 and certified by the National Crime Agency on 17^th July 2015. The offences specified on the warrant are the failure to pay what are referred to as 'social welfare contributions' or 'social security contributions' (which, it is common ground, are the German equivalent of our National Insurance contributions), which is an offence contrary to s 266A of the German Criminal Code ('Non-payment and misuse of wages and salaries').
3. The conduct alleged against the Appellant is set out in Box E of the EAW and can be summarised as follows. The Appellant at the relevant times, namely 2007 - 2008, was the de facto manager or manager of an English company called Overdale Recruitment Limited ('Overdale'). A man called Gerald Crespi was also involved with the company. It is alleged that the Appellant knowingly failed to pay social security contributions in Germany for the company's employees for the period July 2007 to December 2008, and that the total sum not paid was €428,447.48.
4. Overdale had a branch office in Germany. A company called Defence Support Services ('DS2') was a contractor to the US Army in Germany responsible for maintaining its military vehicles. DS2 used employees supplied by various companies, including Overdale. It is alleged in the EAW that 'Overdale did not perform any noteworthy business activity in Great Britain. Merely the corporate management and the administration took place in Great Britain, while the supervision of the German employees took place at the branch office in Schnackenwerth.'
5. The essence of the alleged criminal conduct is that in 2007 and 2008 the Appellant either registered employees who were to work in Germany with the German social security authorities, but then did not pay their social security contributions for which he was liable, or else he failed to register the employees, with the consequence that he again did not pay their social security contributions. As I have said, the total sum alleged not to have been paid is €428,447.48. The EAW alleges 69 separate offences.

Proceedings before the district judge

6. As the district judge noted in para 9 of her judgment, the Appellant resisted extradition on the following grounds: (a) s 12 of the Extradition Act 2003 ('EA 2003') (double jeopardy); (b) s 14 (passage of time); (c) s 19B (forum); (d) s 21 and 21A (human rights).
7. The judge summarised the evidence at para 11 et seq of her judgment. The Appellant gave evidence in which he adopted the contents of his proof of evidence and was cross-examined. He said that in 2007 Overdale had acquired another company's business in Germany and the Netherlands and had set up a German office and acquired the business of DS2. Overdale recruited specialist mechanics in the UK for work on American military vehicles in Germany.
8. He gave evidence about meetings with HMRC to discuss matters relating to the payment of social security contributions in respect of temporary employees provided by Overdale to DS2 in Germany. He explained that HMRC can issue a certificate called an E101 which has the effect of relieving liability for social security contributions otherwise due in another EU member state. The certificate is evidence that the contribution is due in the UK. The Appellant said in evidence that Overdale applied for E101s for all of its employees in Germany, although certificates were not issued for all of them. E101s can be issued retrospectively to cover existing liabilities with the agreement of the foreign state. If it does not agree, no certificate can be issued and the foreign liability remains. At a meeting between HMRC and Overdale's representative, Mr Lee, he was told that Germany had rescinded an earlier agreement to the retrospective issuing of E101s with the consequence that liability in Germany for payment of social security contributions remained.
9. It is convenient at this point to deal with one point argued by Mr Caldwell. He submitted that there had been no loss, and that any loss which did occur in Germany was essentially their own fault (my words, not his) because Germany could have accepted HMRC's E101s. In my judgment this is not a good point. Germany was entitled to insist that the contributions due for workers in Germany be paid in Germany.
10. In his evidence the Appellant said that he been prosecuted in Germany and pleaded guilty in 2010 in relation to a failure to pay two different sorts of tax, wage tax and solidarity surcharge, and that he believed the allegations within the EAW had been encompassed within those earlier proceedings, for which he was sentenced to 12 months' imprisonment, suspended for three years, together with a financial penalty of €50 per day. He said that he had fulfilled his obligations and he therefore considered that it was unfair that he should be prosecuted again. He maintained that he did not know of the ongoing investigation in Germany into social security defaults.
11. In relation to the double jeopardy argument, the judge was referred to Fofana v. Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux, France [2006] EWHC 744 (Admin), a case to which I shall return. In summary, that case established that s 12 is engaged where the subsequent prosecution is for offences which are the same in fact and law as those previously prosecuted, and also following a trial for any offence which was founded on the same or substantially the same facts as an earlier prosecution, such that the court would normally stay the case as an abuse of process in the absence of special circumstances: see Beedie [1998] QB 356.
12. For the reasons she gave, the judge concluded that the allegations in the current EAW were not encompassed by the Appellant's earlier prosecution, which had been for defaults in relation to wage tax and the solidarity surcharge. She also found that from 2009 onwards the Appellant knew that there was an unresolved issue about the non-payment of social security contributions, and she disbelieved the Appellant's evidence that the tax had been paid elsewhere. For these reasons she held that extradition was not barred by reasons of double jeopardy.
13. In relation to the passage of time bar in s 14, the judge found that the Appellant would receive a fair trial in Germany and that it would not be oppressive to extradite him. Whilst not finding that he was a fugitive, she did conclude that he had been responsible for much of the delay because of what she termed his 'own obfuscation'.
14. In relation to the forum bar in s 19B the judge held that she was not persuaded that a substantial measure of the Appellant's relevant activity was performed in the UK, so that the threshold condition in s 19B(2)(a) was not made out. She held that although the workers were recruited in the UK, this was for the purposes of working in Germany. She also held that the other factors listed in s 19B(3) all pointed in the direction of Germany as being the appropriate venue for the Appellant's trial.
15. Finally, in relation to s 21A the judge held that the offence was serious and that extradition would not be disproportionate, having regard to the factors in s 21A(3). She also held that extradition was not incompatible with the Appellant's rights under Article 8 of the European Convention on Human Rights ('the ECHR').

The grounds of appeal

16. The Appellant's Perfected Grounds of Appeal and Skeleton Argument reargue all of the bars to extradition that were rejected by the district judge (save for proportionality). In granting permission to appeal Garnham J. said that he regarded Ground 1 (double jeopardy) as properly arguable, and granted leave on the other grounds, but commented that had they stood alone he doubted he would have done so. In the event I only required Mr Lloyd for the Respondent to address me in relation to Ground 1. In my judgment, for the reasons I will set out, there is manifestly little substance in Ground 2 (passage of time), Ground 3 (forum) and Ground 4 (Article 8).

Ground 1 - double jeopardy

17. The doctrine of ne bis in idem – that no person should be tried twice for the same crime - is a fundamental principle of law whose origins can be traced back to 355BC, when Demosthenes reasoned that 'the laws forbid the same man to be tried twice on the same issue' (Hunter, The Rule Against Double Jeopardy, (1984) Journal of Legal History 5). In the United States the rule is enshrined in the Double Jeopardy Clause of the Fifth Amendment to the Constitution:

"... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ..."

18. Protection against extradition for offences for which the defendant has already been tried has been a feature of extradition arrangements from the earliest times. For example, the 1876 extradition treaty between Great Britain and France provided in Article 11:

"The claim for extradition shall not be complied with if the individual claimed has been already tried for the same offence in the country whence the extradition is demanded …"

19. Section 12 of the EA 2003 contains the modern formulation of the ne bis in idem principle as it applies in Part 1 extradition cases:

"12  Rule against double jeopardy

A person's extradition to a category 1 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction on the assumption—

(a)     that the conduct constituting the extradition offence constituted an offence in the part of the United Kingdom where the judge exercises jurisdiction;

(b)     that the person were charged with the extradition offence in that part of the United Kingdom."

20. Section 12 gives effect to Article 3(2) of the Council Framework Decision of 13^th June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) ('the EAW Framework Decision'), which provides:

"The judicial authority of the Member State of execution (hereinafter 'executing judicial authority') shall refuse to execute the European arrest warrant in the following cases:

…

2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State …"

21. A defendant can rely on s 12 in circumstances where, if he were charged in the UK with the conduct for which his extradition is being sought, he could plead autrefois acquit or autrefois convict in the narrow sense in which the pleas were stated by the House of Lords in Connelly v. Director of Public Prosecutions [1964] AC 125 and Director of Public Prosecutions v. Humphreys [1977] AC 1, that is, where precisely the same offence is charged in the later proceedings. Section 12 is also engaged where the requesting state seeks to prosecute the defendant for an offence, the facts of which are so closely related to an offence for which he has already been prosecuted that it would be an abuse of process to prosecute him a second time.
22. These principles were authoritatively established in Fofana, supra, at paras 18 -21:

"[18] In summary the authorities establish two circumstances in English law that offend the principle of double jeopardy:

i) Following an acquittal or conviction for an offence, which is the same in fact and law – autrefois acquit or convict; and

ii) following a trial for any offence which was founded on "the same or substantially the same facts", where the court would normally consider it right to stay the prosecution as an abuse of process and/or unless the prosecution can show "special circumstances" why another trial should take place.

[19] In Connelly, their Lordships reached this position in practical, though not unanimously in formal, terms by, in the main, confining the notion of double jeopardy to the narrow pleas in bar of autrefois acquit or convict,but allowing for a wider discretionary bar through the medium of the protection afforded by the court's jurisdiction to stay a prosecution as an abuse of process. In Humphreys, where their Lordships sanctioned a prosecution for perjury based on the same facts plus evidence of perjury by the Defendant at an earlier failed prosecution for a driving offence, Lord Hailsham of St Marylebone indicated the second broader discretionary bar in the following passage at 41D-E:

'(10) Except where the formal pleas of autrefois acquit or convict are admissible, when it is the practice to empanel a jury, it is the duty of the court to examine the facts of the first trial in case of any dispute, and in any case it is the duty of the court to rule as a matter of law on the legal consequences deriving from such facts. In any case it is, therefore, for the court to determine whether on the facts found there is as a matter of law, a double jeopardy involved in the later proceedings and to direct a jury accordingly.'

[20] In R v Beedie [1998] QB 356, [1997] 3 WLR 758, [1997] 2 Cr App Rep 167, the Court of Appeal, Criminal Division, gave more formal expression and separation to the two routes to preventing a second prosecution where the charges and/or facts relied upon are the same or substantially the same, the first, where the charge also is the same, and the second, where the charge is different. It confined the principle or doctrine of  autrefois acquit or convict to the first, and allowed the court a 'discretion' to stay the proceeding where there are 'special circumstances'.

[21] The semantic bonds that so constrained their Lordships in Connelly and the Court of Appeal in Beedie to confine the notion of "double jeopardy" – the terminology now employed in ss 11 and 12 of the 2003 Act – to the absolute plea in bar of autrefois acquit or convict, were loosened by their Lordships, albeit indirectly, in R v Z [2000] 2 AC 483, [2000] 3 All ER 385, [2000] 3 WLR 117, so as to apply it to a case where, even though the charge is different, it is founded on the same or substantially the same facts as an earlier trial. Lord Hutton, considering the various speeches in Connelly and speaking for their Lordships, said at 497C-D:

'In my opinion the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the Defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded.'

[22] Thus, as Mr Pepper and Mr Watson submitted and Mr Caldwell agreed, the term 'double jeopardy', as a generality - and as used in the 2003 Act, given its wider European origins – should now be taken to include both the plea in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either constituent is a means of protecting a Defendant from 'double jeopardy'."

23. Mr Caldwell for the Appellant submits that in this case the second limb of the double jeopardy as formulated in Fofana, supra, is engaged, in that he says the prosecution which the Appellant now faces in Germany and the charges set out in the EAW arise out of the same or substantially the same facts which led to his conviction in 2010 for the non-payment of wage tax and the solidarity surcharge. He says the common 'incident' (to use Lord Hutton's word in R v Z, supra) was Overdale's obligation to meet the tax obligations of its employees working in Germany from July 2007 – December 2008. He accepts that there were different aspects of those obligations but says that the underlying failure was the same. He argues that it is abusive and oppressive now to prosecute the Appellant, some years later. He argues that the Appellant believed that all matters came to an end with his conviction in 2010, and relies on an email sent to him by his adviser Lars Kutzner of PwC (the well-known accountancy firm) in Germany on 27^th January 2010 in which Mr Kutzner forwarded the penalty order that he had received from the prosecutor (ie, the German court document setting out details of the wage tax and solidarity surcharge defaults) and wrote to the Appellant: 'there can not be any further prosecutions regarding any of these matters'. What 'these matters' were, was not specified.
24. On behalf of the Respondent Mr Lloyd submits that the judge was correct for the reasons she gave to reject the double jeopardy bar. She was entitled to make the findings of fact that she did and those findings ought to be respected by the appellate court: see Wiejak v. Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) at para 23 and Lendvai v. Veszpram City Court, Hungary [2009] EWHC 3431 (Admin) at para 1.29. He submits that the Appellant did not demonstrate before the district judge that he had been convicted previously in Germany for an offence which was the same in fact and law as the present allegations, nor had he been convicted following a trial which was founded on the same or substantially the same facts. Mr Lloyd pointed to the further information dated 24^th November 2016 from the Respondent which was before the district judge which stated that the Appellant did have a previous conviction in Germany but that that conviction was for 'other offences' and that:

"According to German law the now alleged cases of the non-payment of social security contributions are independent offences as compared to the offences of fiscal evasion of tax on salary and wages on which a judgment was passed on in the year 2010 (sic). Moreover, the offences of the non-payment of social security contributions were no point part of the conviction back then."

25. In my judgment Mr Lloyd is correct and the Appellant's prosecution for the offences on the EAW is not barred under s 12 of the EA 2003. The focus of the application of s 12 has to be on the facts that are said to give rise to the offences said to violate the principle of double jeopardy. The authorities which I have discussed show that the key question is whether those facts are the 'same or substantially the same' as the facts which gave rise to the earlier offences. In this case it cannot be said that that test is satisfied. The Appellant was under a number of different obligations so far as German tax and social security law was concerned. He was under a duty to pay wage tax and the solidarity surcharge and it was his failure to comply with that duty which gave rise to his 2010 conviction. Separately and distinctly, however, he was also under a duty to pay social security contributions, and it is his alleged failure to comply with that duty which has given rise to the offences for which is extradition is now sought. There are thus two separate episodes of conduct that are said to give rise to criminal offences in Germany. While it is quite true, as Mr Caldwell submitted, that they both arise out of the Appellant's involvement with Overdale in Germany, and that company's tax obligations, that is not sufficient in my judgment to establish the double jeopardy bar, because there were a number of separate and distinct obligations.
26. So far as the email from PwC is concerned, that does not amount to a representation from the prosecutor that the 2010 conviction encompassed the social security defaults. At most it can be said to be ambiguous, but given the context and given that the penal notice only refers to wage tax and solidarity surcharge, the reference to 'these matters' could not have been reasonably understood by the Appellant to refer to the failure to pay social security contributions. The judge found that at the relevant times from 2009 onwards the Appellant knew that there were ongoing issues in Germany concerning social security contributions (see at para 42 of the district judge's judgment: "The evidence is clear that the issue remains unresolved and that RP knew this was the case.")
27. In my judgment, therefore, the judge was right to reject the double jeopardy bar and I reject this ground of appeal.

Ground 2 - passage of time

28. Section 14 of the EA 2003 provides:

"A person's extradition to a Category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the offence (where he is accused of its commission …)"

29. In this section 'unjust' is directed to the risk of prejudice to the accused in the conduct of the trial whilst 'oppressive' is directed to the hardship to the accused resulting from changes in the circumstances that have occurred during the period to be taken into consideration: see Kakis v. Government of Cyprus [1978] 1 WLR 779. In Gomes and Goodyer v. Government of Trinidad and Tobago [2009] 1 WLR 1038 Lord Brown said at paras 31-33 that the law 'has moved on since Kakis, in part because of the developing abuse of process jurisdiction over the past 30 years.' At para 33 he said the central question where "injustice" was relied on was whether 'a fair trial is impossible'. In relation to oppression he said the test would not easily be satisfied and that 'hardship, a comparatively commonplace consequence of an order for extradition, is not enough.'
30. In my judgment the judge below was entirely correct in her s 14 analysis and was right to conclude that it would be neither unjust or oppressive to extradite the Appellant. Whilst a number of years have passed since the alleged offending, the Respondent provided a detailed explanation of the complexities of the investigation, and this information also showed that the Appellant had been actively involved in the investigation throughout. As the judge noted at para 55, his lawyers in Germany have been in regular communication with the tax authorities.
31. Germany is a signatory to the ECHR and it is to be assumed that the Appellant will receive a fair trial there: see Gomes, supra, at para 35: ('Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way.') Any difficulties caused by the passage of time will be taken account of and catered for by the German trial procedure. As to oppression, there is nothing in the evidence to show that the high test of oppression is met in this case.
32. I therefore dismiss this ground of appeal.

Ground 3 – forum

33. Section 19B of the EA 2003 as inserted by the Crime and Courts Act 2013 with effect from 14^th October 2013 provides:

"(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)     These are the specified matters relating to the interests of justice—

(a)     the place where most of the loss or harm resulting from the extradition offence occurred or was intended to occur;

(b)     the interests of any victims of the extradition offence;

(c)     any belief of a prosecutor that the United Kingdom, or a particular part of the United Kingdom, is not the most appropriate jurisdiction in which to prosecute D in respect of the conduct constituting the extradition offence;

(d)     were D to be prosecuted in a part of the United Kingdom for an offence that corresponds to the extradition offence, whether evidence necessary to prove the offence is or could be made available in the United Kingdom;

(e)     any delay that might result from proceeding in one jurisdiction rather than another;

(f)     the desirability and practicability of all prosecutions relating to the extradition offence taking place in one jurisdiction, having regard (in particular) to—

(i)     the jurisdictions in which witnesses, co-defendants and other suspects are located, and

(ii)     the practicability of the evidence of such persons being given in the United Kingdom or in jurisdictions outside the United Kingdom;

(g)     D's connections with the United Kingdom.

(4)     In deciding whether the extradition would not be in the interests of justice, the judge must have regard to the desirability of not requiring the disclosure of material which is subject to restrictions on disclosure in the category 1 territory concerned.

(5)     If, on an application by a prosecutor, it appears to the judge that the prosecutor has considered the offences for which D could be prosecuted in the United Kingdom, or a part of the United Kingdom, in respect of the conduct constituting the extradition offence, the judge must make that prosecutor a party to the proceedings on the question of whether D's extradition is barred by reason of forum.

(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."

34. On behalf of the Appellant Mr Caldwell submits that this section is engaged because Overdale was run from the UK and thus the defaults in paying social security contributions occurred in the UK and so, he argues, the threshold condition in s 19B(2)(a) is made out. He submits that having regard to the factors specified in s 19B(3), the interests of justice favour a trial in England and not in Germany. He points out that the evidence before the district judge was that much of the evidence which forms the prosecution's case against the Appellant was obtained by the prosecutors through requests for mutual legal assistance to the UK. He therefore prays in aid the factor in s 19B(3)(d) in particular as favouring a trial in the UK.
35. The judge dealt with the s 19B argument in her judgment from para 71 onwards. She held that a substantial measure of the Appellant's relevant activity was not performed in the UK and therefore the threshold condition in s 19B(2)(a) was not met. She said that the employees may well have been recruited by Overdale in the UK but it that it was abundantly clear that the intention was to provide workers for the German employment market and the actual work was carried out in Germany. As a result, the social security contributions were payable to the German authorities (absent any agreement to the contrary), and the failure to pay resulted in a loss to the German exchequer.
36. In my judgment the judge's reasoning was impeccable. Even assuming that Mr Caldwell is right and that the book-keeping for Overdale was done in the UK – and so the failure to pay social security contributions took place in the UK in the sense that no arrangements were made in the UK to make sure they were received in Germany – that does not lead to the conclusion that a significant portion of the relevant conduct occurred in the UK for the purposes of the forum bar. That is because in relation to trans-national crime the question of where the conduct took place can be a more complex and subtle question than the simple question of where the defendant was at the relevant time when he did the things said to amount to the offence.
37. In King's Prosecutor, Brussels v. Cando Armas [2006] 2 AC 1, Cando Armas was a member of an organised gang which was responsible for the systematic illegal immigration of Ecuadorean citizens towards Europe. This organisation was directed by him from London. Once they arrived in Belgium, Cando Armas took care of accommodation and fake passports for the illegal Ecuadorean immigrants. If necessary, the illegal immigrants were escorted to Great Britain. The appeal before the House of Lords concerned the application of the provisions of s 65 of the EA 2003 and whether the conduct was an extradition offence. It is not necessary in this judgment to set out all the details of the issues on the appeal, however part of the argument concerned where the conduct in question to place. Lord Hope of Craighead said at para 40:

"I would construe the word "conduct" in sections 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."

38. In my judgment the same approach is to be taken in relation to s 19B. Conduct can occur 'in' the foreign state even if the 'actings' took place in the UK. On the facts of the present case, the Appellant's actings – namely the decision not to pay social security contributions - may have taken place in the UK (I am prepared to assume in accordance with Mr Caldwell's submissions, which to be fair seem to be borne out by the EAW: see above) however, that does not mean that the criminal conduct was committed in the UK. Plainly the intended effects of those actings (namely the failure to pay social security contributions) were to be felt in Germany, and that is where the conduct took place for the purposes of s 19B.
39. But even if I am wrong about that, and I am required to have regard to the factors in s 19B(3) on the question of where the public interest lies, they plainly come down in favour of Germany being the appropriate venue. In other words, it would not 'not be in the interests of justice' (in the words of s 19B(1)) to extradite the Appellant. The harm occurred in Germany; the victims were the German tax paying public; neither the police nor the CPS or HMRC have initiated any investigation here; it would delay matters if there were to be trial here whereas the German prosecutions must be ready for trial (or virtually so); the evidence is in Germany; and Mr Crespi has already been tried in Germany. I accept that the Appellant has connections with the UK and lives here, and that the evidence was originally obtained from here. But those factors are in my judgment incapable of outweighing all of the factors which support the conclusion which common sense would also point to, namely, that this alleged fraud on the German exchequer should be tried in Germany.
40. This ground of appeal fails.

Ground 4 – Article 8

41. I turn, then, to the final ground of appeal. Mr Caldwell submits that judge was wrong to conclude that that extradition would not be a disproportionate interference with the Appellant's right to private and family life that is protected by Article 8 of the ECHR. He submits that the judge should have found that the factors against extradition, including the delay in issuing the EAW; what he says was the limited tax loss; the likelihood of no immediate custodial sentence; and the Appellant's established family life in the UK, outweighed the public interest in honouring extradition treaties, and should have found that extradition would be disproportionate.
42. The law in relation to Article 8 is heavily traversed and is set out in Norris v. Government of the United States of America (No 2) [2010] 2 AC 487; H(H) v. Deputy Prosecutor of the Italian Republic [2013] 1 AC 338 and Polish Judicial Authority v. Celinski (Practice Note) [2016] 1 WLR 551. The principles, in summary, are as follows. Article 8 provides a right to a private and family life which is qualified. The question is whether the interference with that right is outweighed by the public interest in extradition. There is no test of exceptionality. In the balance there is a constant and weighty public interest in extradition. People should have their trials and the United Kingdom should honour Treaty obligation. It is likely that the public interest in extradition will outweigh the Article 8 rights of a defendant or his family unless the consequences of the interference with family life will be exceptionally severe. Delay since commission of the crime may diminish the weigh to be attached to the public interest and the impact on private life. The test which the appellate court applies in relation to the decision of the district judge is whether that decision was wrong.
43. In my judgment the district judge's decision was not wrong. It was right. There is nothing in the facts of this case which could conceivably establish the sort of severe hardship which is necessary to establish a violation of Article 8.
44. It follows that I reject this final ground of appeal, and thus that this appeal is dismissed.