Arain v (1) Government of Germany and (2) Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MOSES,MR JUSTICE STANLEY BURNTON |
| Judgment Date | 15 March 2006 |
| Neutral Citation | [2006] EWHC 1702 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8827/2005 |
| Date | 15 March 2006 |
[2006] EWHC 1702 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Lord Justice Moses
Mr Justice Stanley Burnton
CO/8827/2005
MR JAMES HINES appeared on behalf of the CLAIMANT
MISS CLAIR DOBBIN appeared on behalf of the FIRST DEFENDANT
MR HUGO KEITH appeared on behalf of the SECOND DEFENDANT
Wednesday, 15 th March 2006
This is an appeal against the order of District Judge Evans on 23rd August 2005 pursuant to section 92 of the Extradition Act 2003 ("the 2003 Act") to send this applicant's case for extradition to the Federal Republic of Germany for his decision as to whether the appellant should be extradited. Following representations from the appellant, the Secretary of State ordered that the appellant should be so extradited on 25th October 2005. This appellant appeals against both those decisions. Accordingly, he appeals both under section 103 and 108 of the 2003 Act.
The facts which gave rise to the request for extradition from the Federal Republic of Germany were that it was alleged that this appellant, with others, had been involved in VAT fraud in Germany. According to the request, he was strongly suspected of being involved in an organisation formed in the territory of the UK since 2001 for the purpose of obtaining input tax reimbursements. He was strongly suspected of contributing substantially to the success of a carousel fraud by using a German company and evading VAT in Germany. The allegation continued by contending that in pursuit of that purpose he had filed materially incorrect Value Added Tax returns for 2002 for the benefit of that German company. It further alleged that those offences of filing incorrect Value Added Tax returns were punishable under 369(1), 370, 370(a) and section 25(2) of the German Tax Code and section 25(2) of the German Criminal Code. It was further alleged that he was strongly suspected of having formed a foreign organisation, the purpose of which is to commit crimes or to have been involved in such organisation as a member, contrary to section 129, 129b of the German Criminal Code.
The German Government in pursuing the case for the purposes of the hearing before the District Judge at Bow Street Magistrates' Court set out what has become well-known as a form of fraud of VAT by the import and export of mobile phones within the European Union, invoicing either missing or hijacked trailers for the purposes of claiming input tax but evading the payment of output tax. Very substantial sums in Euros were said to have been the product of such fraud.
The District Judge had, amongst other things, to be satisfied of a number of matters pursuant to section 78 of the 2003 Act. Under section 78(4)(b) he was required to decide whether the offences specified in the request were extradition offences. Extradition offences are defined in section 137. For the purposes of this appeal, it is unnecessary to set out all the terms of section 137. The matter in controversy was whether, pursuant to section 137(2)(b):
"'The conduct' would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom."
There was no dispute about any of the other matters set out in section 137. On 29th June 2005 the District Judge ruled that all the offences specified in the request were extradition offences for the purposes of section 78(4)(b). Accordingly, he proceeded correctly to consider under section 87 whether the applicant's extradition would violate his rights enshrined under Article 8 of the European Convention. That issue was argued on behalf of the appellant on 4th August 2005. The District Judge made no ruling on those submissions for the purposes of section 87, nor did he give his reasons supporting his conclusion under section 78 until 23rd August 2005. On that day he ruled, relevantly, as follows:
"One of the charges Mr Arain faces in Germany is forming a (foreign) organisation the purpose of which is to commit crimes or to have been involved with such organisation as a member and such conduct is criminalised in Germany by section 129 and 129b of the German Criminal Code attracting a sentence of up to 5 years' imprisonment. There is no comparable UK offence for such conduct. That charge is not an extradition offence within the meaning of section 137. He should not face such a charge if returned to Germany."
The District Judge then went on to consider the submissions relating to Article 8. He said:
"The second issue is whether Mr Arain's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998 [section 87 of the 2003 Act]. It is submitted that his extradition represents a breach of Article 8. Article 8 is engaged by the act of extradition. Article 8 provides a qualified right, a fair balance needs to be struck between Mr Arain's right to respect for his private and family life and the right of a public authority (in this instance the Bow Street Magistrates' Court) to interfere with this right where such interference is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime …
Again, the submissions for Mr Arain are set out in the skeleton and the government has responded. I accept the government's submissions and reject those of Mr Arain."
The District Judge went on to consider Mr Arain's circumstances and, applying the decision in Launder, to which I shall turn later, concluded that only in exceptional circumstances would the extradition of the person who faced trial on charges of serious offences be unjustified or disproportionate. He found no such exceptional circumstances in this case.
The first ground of appeal is that the District Judge should have permitted the appellant to argue his Article 8 point for the purposes of section 87 of the 2003 Act in the light of the ruling that part of the conduct on which the extradition request was based would not have constituted an offence in any part of the United Kingdom and thus the offence specified was not an extradition offence. The argument continues that if the District Judge had permitted submissions to be made in the light of his change of heart, the District Judge would have concluded that extradition for all the offences was disproportionate and would have ordered his discharge pursuant to section 87(2).
To assess that submission it is necessary to consider the appellant's case under Article 8. He gave evidence before the District Judge and we have the benefit of a written statement, on which, no doubt, his oral evidence was based. This pointed out that he was born and raised in Pakistan and was 45 years old. His wife, Shahida, was a Pakistani national and they had been married under Pakistani law. He had four children, ranging between the ages of teenagers and the age of 7. His wife and he had friends in the Rochdale area of Greater Manchester where they lived. The eldest daughter was at college in Bury and all the four children were integrated well and their English was improving. He pointed out that his family was completely financially dependent upon him, and his wife had difficulties in speaking English and could not drive. He further described his earlier history, it not being apparent quite how long he has lived in this country, pointing out that he had lived in Germany, had married there, although his marriage to this wife, Shahida, in Pakistan persisted and he had a son there. He is a German national with a German passport. He pointed out that extradition would have a devastating effect on his family in the United Kingdom and it would be likely that his family would be repatriated to Pakistan. They would not be able, he asserts, to visit him in Germany.
The District Judge applied the correct test as to whether it would be disproportionate to extradite this appellant, having regard to his family life in the United Kingdom. It had been argued before the District Judge that extradition would not be in accordance with the law within the autonomous Convention meaning, nor necessary in a democratic society for the prevention of disorder or crime. Neither of those arguments were pursued before us, but the proportionality argument, in the limited way I have described, was pursued. It was not suggested, as I have said, that the District Judge misinterpreted the correct approach to proportionality. Indeed, it followed that which was summarised by Laws LJ in Bermingham [2006] EWHC 200 at paragraph 118. Extradition would only be disproportionate in exceptional cases.
As Laws LJ says:
"Where proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim."
It is, in my view, impossible to see how the fact that the appellant would be extradited for conduct disclosing a large number of offences if that conduct had been committed in the United Kingdom would be proportionate but disproportionate because part of that conduct did not disclose an offence within the United Kingdom. In short, the change of...
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