THE ADMINISTRATIVE COURT
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SWEENEY
| Marianne Pillar-Neumann
|- and -
|Public Prosecutor's Office of Klagenfurt
Saoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 12 December 2017
Crown Copyright ©
Lord Justice Hamblen :
Factual and Procedural Background
"I) They had the intention to get rich at the expense of Gertruda Josephine Derksen by deceiving her at occasions whose dates are not known more closely; it was their intention to cause damage to the latter's property whereby they committed these crimes with the intention to create for themselves, by repeatedly committing the crime, a continuous source of income, in particular
1. between November 1997 and 2001 in Vienna, Austria and partly in Amsterdam, Netherlands, by pretending that certain pieces of furniture and jewellery would come from the household of the successor to the Austrian Throne, Arch Duke Franz Ferdinand, by talking Gertrude Derksen into purchasing 41 items for the of €1,121,518.74 (concerning the furniture) and at least of €981,917 (concerning the jewellery), i.e. they have thus caused damage to her property;
2. by pretending that Lölling Castle (in Austria) had once belonged to the successor to the Austrian Throne, Arch Duke Franz Ferdinand, they also caused damage to the property of Gertruda Derksen amounting to €383,973, because they talked her into paying a commission as a compensation to the family Hohenberg.
3. by pretending that Lölling Castle (in Austria) would be renovated by them and that they would take over the supervision of the construction project, thereby the two accused persons caused damage to Gertruda Derksen amounting to €164,502, by partly using forged documents and by faking money transfers to the builders;
II) the two accused persons have also abused the authorisation to dispose of Gertruda Derksen's bank account with the account number 16802370442 at the Sparkasse Oberösterreich (Austrian bank) in Linz, in March 2000, by having unlawfully withdrawn at least €95,939.33."
(1) The warrant was invalid as it had expired and did not particularise the offences;
(2) The offences were not extradition offences;
(3) Extradition was barred as it would be unjust and/or oppressive by reason of the passage of time (s14 Extradition Act 2003); and
(4) Extradition would amount to a breach of Article 8 ECHR.
(1) The offences were very serious - [58a];
(2) The first period of delay between the discharge of the first EAW on 5 July 2006 and the issue of the current EAW on 19 June 2009 was reasonable - [58b];
(3) Although the second period of delay (between 2009 and 2016) was inadequately explained, this was just one factor in considering whether extradition was oppressive - [58b];
(4) Any sense of security was mitigated by the fact that the Appellant was aware of criminal proceedings against her - [58c].
The Grounds of Appeal
(1) The judge erred in law and in fact in finding that it would not be unjust to extradite the Appellant given the passage of time;
(2) The judge erred in law and in fact in finding that it would not be oppressive to extradite the Appellant given the passage of time;
(3) The judge erred in law and in fact in finding that the Appellant was not entitled to raise the passage of time bar to extradition pursuant to section 14 of the Act as she was a fugitive; and
(4) The judge erred in law and in fact in finding that the interference with the Appellant's Article 8 rights in extraditing the Appellant is both necessary and proportionate.
The statutory framework
"27 Court's powers on appeal under section 26
(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."
"14 Passage of time
A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
(a) committed the extradition offence (where he is accused of its commission), or
(b) become unlawfully at large (where he is alleged to have been convicted of it)".
"25 Physical or mental condition
(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied.
(2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him.
(3) The judge must—
(a) order the person's discharge, or
(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied."
The application to adduce fresh evidence
"By letter of September 07th, 2004, Anthony Edwards, the legal representative of the aforementioned, informed the Austrian authorities that Marianne PILLAR-NEUMANN would not go to Austria to face criminal proceedings"
"As we have discovered, you have initiated a criminal investigation in Austria…
We would like to emphasise that our clients are certainly prepared to cooperate with your findings and do not wish to conceal anything; however this assistance can only be provided in England.
Should you wish to travel here, naturally we will arrange an appointment for you, or alternatively, should you wish to instruct English police, we can arrange an appointment…"
Ground 3 – Whether the judge was right to find that the Appellant was a fugitive
"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him".
"58. "Fugitive" is not a statutory term but a concept developed in the case law, in particular in Gomes's case  1 WLR 1038 which elaborates the principle stated in Kakis's case  1 WLR 779. In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person's status as a fugitive must be established to the criminal standard; Gomes's case, para.27.
 .... Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis…."
Grounds 1 and 2
""Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into account; but there is room for overlapping and between them they would cover all cases where to return him would not be fair."
"….All the circumstances must be considered in order to judge whether the unjust / oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No.4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges."
(1) The test of oppressiveness and of the likelihood of injustice are not easily satisfied; oppressiveness is more than mere hardship and whether the passage of time had made it unjust to extradite the fugitive depends upon whether a fair trial would be impossible. Council of Europe countries should readily be assumed capable of protecting an accused person against an unjust trial and the burden is on the defendant to establish the contrary – see Gomes v. Government of the Republic of Trinidad and Tobago  1 WLR 1038 at -.
(2) Oppression requires personal or family hardship greater than that inevitably inherent in the act of extradition when facing what is likely to be a long criminal trial process in another country – see Norris v The Government of the USA  EWHC 71 (Admin) per Auld LJ at .
(3) "Oppression cannot be considered in isolation from the nature of the offence or offences for which extradition is sought. The more serious the offence, the greater the public interest there is likely to be in extradition taking place." – see Hutton v The Government of Australia  EWHC 564 at  per Scott Baker LJ.
(4) "The mere fact of delay is unlikely in most cases, indeed the vast majority of cases, to justify a decision that to return would be oppressive. There must be something more than mere delay." – see Kila v Governor of HMP Brixton  EWHC 2824 (Admin) at  per Collins J; Jacek Brzeski v Regional Court in Gdansk Poland  EWHC 1138 (Admin) at .
"1) On the one hand, further investigations were carried out during that time, in particular through the questioning of witnesses, and on the other hand, a repeated issuing of the request for extradition was considered to be futile with reference to the judgement of the High Court of Justice dated 5th July, 2006.
2) Between the issuing of the two European Arrest Warrants, it was attempted with the help of Eurojust, to obtain an improved version of the European Arrest Warrant that would meet the requirements of the UK authorities."
(1) While it specified that the offences were linked to Castle Schloss Lolling, EAW 1 failed to specify explicitly which jurisdiction the offences had occurred in; and
(2) While it specified that one aspect of the alleged conduct is said to have commenced in 1997, EAW 1 failed to specify the time frame of the entire alleged conspiracy.
"Mr Caldwell submits that in the present case the request is based on the contents of an information by way of complaint provided by Mrs Derksen to the Austrian authorities. The appellants, he said, have had access to this document throughout these proceedings. Indeed it is contained within their bundle for these proceedings. He says that in it the allegations against the appellants are set out in great detail. He submits that the offences alleged in the warrant relate to exactly the same conduct, and that the requirements of section 2(4) are thereby satisfied."
(1) The loss of documentation evidencing the contract(s) between the Appellant and the complainant in this matter;
(2) Contemporaneous reports of the restoration work in issue;
(3) Relevant statements of account and invoices;
(4) Evidence going towards whether the Appellant and her husband in fact made false representations to the complainant; and
(5) Original sale listings for the property in issue.
(1) Dr Christian Ransmayer (Austrian lawyer)
(2) Mr Eduard Neumann (Appellant's father)
(3) Mr Herbert Fischer (Head of Elin Union Klagenfurt, an electrical supplier)
(4) Mr Julius Eberhart (jewellery sales agent)
(5) Patience Pillar (mother of Appellant's husband)
"The reasons for the delay and the consequences of the delay were part of the circumstances that the Minister was bound to have regard to in deciding whether it was just, after all this time, to uproot this citizen and send him to another country to face his trial. In leaving those matters to the foreign court he failed to give sufficient regard to the applicant's rights and to the protection that the extradition process was intended to afford him. In so acting, he failed to take into account matters which the statutory question required him to take into account, and so clearly misdirected himself.
The reason he gives for that is that the "lapse of time" was "not such as would make it inappropriate" to leave those matters to the American court. We find that quite startling. Of the reported cases only R. v. Secretary of State for the home Department ex parte Sinclair ( Imm. AR 293) rivals this case in length of delay. If it is not appropriate in this case for the Minister to consider the reasons for and consequences of such delay, how many years are necessary?
Wherever law is practised, justice is reproached by delay. There is a real danger that those of us who have spent a lifetime in the law become enured to delay. So too laymen associate the law with delay, and their expectation of it may harden them to the fact of it. So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face trial in another state for matters at least nine years stale without examination of the reasons for the length of that delay or the consequences of it.
So it is we are left with a delay period (when the Minister considered it) of nine to nearly 12 years, with yet some time to pass before trial. It is salutary to look back over one's own life to evaluate the real length of that period, so as not to regard it just as a figure on a piece of paper. And when in all the circumstances of this case, we additionally consider the six years of false security included in that period, and then set that against the bland few lines dealing with lapse of time in the affidavit in support of the Minister's decision (see para 4, quoted above), we conclude that the Minister's decision cannot stand. We judge the irresistible inference to be drawn from the facts in this case is that it would be unjust and oppressive to surrender the applicant, and that the Minister could not properly have reached any other conclusion."
"I diagnosed Marianne with an extreme stress reaction causing anxiety, depression, insomnia, panic attacks and suicidal ideation on 7th August 2017….
Since the end of June 2017, I have sadly watched my patient deteriorate before my very eyes. She has lost weight, is visibly shaking, does not go out, is not able to sleep, cleans the family home obsessively from 2am most nights to try and fight off the insomnia, is found in hysterics if the doorbell rings / phone rings and is not really able to leave her bedroom much. I am truly concerned about the level of stress this court case has put my patient under and the lasting impact it will have upon her physical health….
Marianne has an extreme form of stress reaction which has led to a diagnosis of depression with suicidal ideation. She is in the high risk category and is experiencing all of the hallmark features for a severe and potentially life-threatening depression. Prior to the extradition order Marianne was fit and well….
I cannot stress strongly enough that my patient is not medically fit and an extradition to Austria will be life threatening to her mental state and the mental state of her husband and father-in-law…"
"3. Mrs Pillar-Neumann developed symptoms of emotional distress following her arrest in January 2017. She believed at the time that the matter was resolved as it was discharged by the High Court in 2006, following the years of financial and emotional losses her family suffered.
5. Having examined Mrs Pillar-Neumann on the 20th November 2017, I concluded that her symptoms fulfil the criteria for Depressive Episode, moderate to severe, with somatic syndrome, ICD-10 F32.11 (Classification of Mental and Behavioural Disorders). Her depressive disorder is complicated by prominent anxiety and panic attacks (episodic paroxysmal anxiety). There is also evidence of Dissociative (conversion) disorder, namely Dissociative fugue, ICD-10 F44.1
6. Her symptoms are severe and well defined and include pervasive low mood, loss of interest and enjoyment, low energy and increased fatigability, a degree of cognitive impairment often observed in those who suffer with depression and poor sleep. Her so-called, somatic features include anhedonia, reduced reactivity of affect and emotional bluntness, poor appetite and weight loss, diurnal variation of mood, psycho-motor retardation and disturbed sleep. I could not elicit any psychotic symptoms apart from some paranoid ideas which she experienced over the last 2-3 months. Her suicidal ideation, together with her being closed and guarded about her suicidal plans during examination, are of most concern and I intend to contact her GP in order to share my concerns and discuss the management plan.
8. Mrs Pillar-Neumann has been experiencing the symptoms described above for at least five months and her social and basic functioning has been significantly affected. Her condition is undoubtedly caused by her lack of ability to cope with so called acute on chronic stress – the renewed threat of extradition and incarceration following years of legal proceedings against her partner and herself and her potential extradition would be an ultimate loss.
9. I am concerned that Mrs Pillar-Neumann's ability to comprehend the course of proceedings and ability to instruct her legal representative is currently compromised. This is due to her being in a state of either high autonomic arousal (anxiety and panic attack) with agitated and muddled thinking, or in a state of cognitive retardation….
10. Regarding the consequences of her extradition to Austria, my view is that this will have a detrimental effect on her mental health and her condition is likely to deteriorate further. It is more than likely that if detained in custody and lose the support of her spouse, she will be at substantial risk of suicide. It appears that she has been deterred from acting on her suicidal thoughts thus far, by her commitment to her family and protecting them from the pain she would inflict on them by taking her life. However, her feelings of worthlessness, hopelessness and indifference, as well as feelings of being a burden to everybody, are a prominent feature of her current presentation and inevitably affect her decision making."
Mr Justice Sweeney: