QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE SIMLER
| THE PUBLIC PROSECUTOR'S OFFICE OF LANDSHUT, GERMANY
|- and -
for the Appellant
Catherine Brown (instructed by Tuckers Solicitors LLP) for the Respondent
Hearing date: 17 January 2019
Crown Copyright ©
Lord Justice Hickinbottom :
"Taking hostage in coincidence with attempted serious blackmail and use of force or threats against life or limb with dangerous bodily harm, each offence committed in joint perpetration, according to sections 239(b)(1), 253(1), 255, 250(1) No 2 and No 3, 232(1), 223(1), 223a(1) of the German Criminal Code…".
"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. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.
As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude."
In this case, as I have already indicated, the District Judge, applying Kakis, found that the Respondent had deliberately placed himself beyond the reaches of the Appellant Judicial Authority in order to evade justice – and was thus a fugitive – and, for the purposes of section 14, there were no exceptional circumstances such that delay would render extradition "oppressive". That is not the subject of any appeal.
"(1) If the judge is required to proceed under this section…, the judge must decide both of the following questions in respect of the extradition of the person ("D")—
(a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998;
(b) whether the extradition would be disproportionate.
(2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.
(3) These are the specified matters relating to proportionality—
(a) the seriousness of the conduct alleged to constitute the extradition offence;
(b) the likely penalty that would be imposed if D was found guilty of the extradition offence;
(c) the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.
(4) The judge must order D's discharge if the judge makes one or both of these decisions—
(a) that the extradition would not be compatible with the Convention rights;
(b) that the extradition would be disproportionate.
(5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions—
(a) that the extradition would be compatible with the Convention rights;
(b) that the extradition would not be disproportionate…".
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life.
(2) There is no test of exceptionality in either context.
(3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition.
(4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back.
(5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved.
(6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life.
(7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe."
The District Judge indicated that she was applying the principles set out in Norris and HH (see paragraph 41 of her judgment).
"93. There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).
94. As to category (iv), there will be a number of cases where an appellate court may think that there is no right answer, in the sense that reasonable judges could differ in their conclusions. As with many evaluative assessments, cases raising an issue on proportionality will include those where the answer is in a grey area, as well as those where the answer is in a black or a white area. An appellate court is much less likely to conclude that category (iv) applies in cases where the trial judge's decision was not based on his assessment of the witnesses' reliability or likely future conduct. So far as category (v) is concerned, the appellate judge should think very carefully about the benefit the trial judge had in seeing the witnesses and hearing the evidence, which are factors whose significance depends on the particular case. However, if, after such anxious consideration, an appellate judge adheres to her view that the trial judge's decision was wrong, then I think that she should allow the appeal."
Where the District Judge has erred in his or her approach, then this court itself will engage in that balancing exercise afresh.
The District Judge's Decision
i) The District Judge said that, since his arrival in the United Kingdom nearly 25 years ago, the Respondent's circumstances "have changed beyond recognition" (paragraph 42). She briefly set out those circumstances, which I have already described (see paragraph 9 above).
ii) Of delay, she noted the following (at paragraph 43):"a. Whereas a national arrest warrant was issued in 1994 and a 'national alert' was issued on 1 July 1994, an EAW was not issued until 5 February 2014.b. On 27 January 2014 it was discovered by the German authorities that some of the offences alleged had become statute-barred and as a result a 'new adjusted arrest warrant' was issued. I have no evidence for why an EAW was issued very shortly afterwards but given the timing, it is reasonable to infer this related to the adjusted warrant. By that time twenty years had passed. There is no explanation for why the EAW was not issued earlier.c. It is likely that a timely issuing of the EAW would have led to [the Respondent's] discovery in the UK. He has necessarily been in close contact with the UK authorities regarding his status here. He claimed asylum in 1994/95, he was granted indefinite leave to remain and British citizenship in 2013/14 and he has travelled in and out of the UK on approximately four occasions using his British passport.d. The EAW was not certified by the NCA until 24 March 2017. There is no explanation for the delay between issue and certification of this warrant.e. In my view the delay since these allegations have arisen has both diminished the weight to be attached to the public interest and increased the impact upon [the Respondent's] private and family life."
iii) The District Judge acknowledged the gravity of the offence charged, and set out the specific aggravating features in some detail (paragraph 44).
iv) She acknowledged that the Respondent was, as she had found, a fugitive (paragraph 45).
v) She acknowledged the "constant and weighty public interest in extradition", and in the honouring of international obligations (paragraph 46).
"I have taken account of these competing considerations in order to determine whether the public interest in extradition outweighs the interference with the article 8 rights of [the Respondent] and his family. In my judgment, the delay in issuing and certifying this EAW overrides the otherwise strong public interest in extradition. It diminishes the weight to be attached to the public interest and has increased the impact upon [the Respondent's] private and family life."
The Grounds of Challenge
i) So far as at least the Respondent is concerned, that family life has been built up whilst he has been in full knowledge of the outstanding serious charge against him in Germany.
ii) Whilst the separation necessarily implicit in his extradition to Germany to face this charge would no doubt be distressing for him and his family, the evidence in relation to their family and private life is thin.
iii) His wife does not work, and he works in the mornings and evenings six days per week. His wife appears to play the major part in the children's care; and, as the District Judge found (see paragraph 47 of her judgment), if the Respondent were extradited, there is no reason to suppose that she would not continue to care for the children. Whilst extradition would mean that he would not be earning, the family income is not high (£650 per month net), and his wife would be entitled to benefits. As the District Judge said (again, paragraph 47), the state is capable of providing for families who are left in need due to extradition: indeed, it has an obligation to make provision. Despite the finding of the District Judge, there is simply no evidence that the loss of his earnings, whilst he faces the charge in Germany, would be cause real financial hardship for his family.
iv) The evidence from the Respondent and his wife is that she suffers from bouts of depression, but there is no medical evidence to suggest that these are debilitating or require medication or that they would be significantly worse if he were extradited.
v) Of course, the best interests of the children are a primary consideration. It is, no doubt, in their best interests for their father not to be extradited. However, there is no evidence that the Respondent's children would be adversely affected any more than the temporary removal of a parent to face criminal charges abroad would inevitably cause. The same applies to his wife. Ms Brown frankly accepted that to be the case.
i) The District Judge, rightly, recognised the particularly serious nature of the allegations against the Respondent. It is said that the Respondent with another man entered the complainant's home and threatened his baby with a knife, the baby was dropped on the floor and the complainant was himself both threatened with a knife, attacked with another bladed weapon and beaten with a third a second weapon. Where, as here, the alleged offence is particularly serious, the public interest starts at a particularly high level.
ii) There is the public interest in the state fulfilling its international obligations, and in extraditing individuals to face charges in other countries. Those are always a factor of some considerable weight, but (as emphasised in Celinski: see paragraph 22 above) particularly in Part 1 cases, where the principle of mutual confidence and respect between EU territories is especially strong.
iii) The Respondent has been a fugitive from justice since he failed to attend his trial in June 1994. As Ms Lindfield put it, he has since then been keeping his head down. As Lord Thomas made clear in Celinski (at [48(iii)]), where delay in extradition is attributable to flight and fugtivism (especially when under a different name and date of birth), that significantly reduces the weight that can be given to any private or family life acquired in the UK. Here, the Respondent was not only a fugitive, but was in fact living in the UK under a different name from that in the EAW and with a different asserted date of birth.
iv) The Respondent has a conviction in this country, albeit of a minor nature. This is clearly of little, if any, weight.
Mrs Justice Simler: