Daniela Antochi v Richterin Am Amstegericht of the Amstgericht Munchen (Munich), Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] EWHC 3092 (Admin) |
| Date | 17 November 2020 |
| Docket Number | Case No: CO/340/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3092 (Admin)
Mr Justice Fordham
Case No: CO/340/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mary Westcott (instructed by Lawrence & Co Solicitors) for the Appellant
Jonathan Swain (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 14 October 2020
FINAL JUDGMENT
I. INTRODUCTION
This appeal
This is a substantive appeal in an extradition case. The Appellant is 36 and is wanted for extradition to Germany. That request for extradition is in conjunction with an accusation European Arrest Warrant (EAW) issued on 29 May 2019. That EAW promptly replaced an earlier EAW issued on 18 September 2018 (after the Court of Justice of the EU had held on 27 May 2019 that the issuing authority did not constitute a ‘judicial authority’). The index offending of which the Appellant is accused in the EAW took place in March 2009. It involved a series of supermarket distraction thefts and cashpoint withdrawals. The Appellant's extradition to Germany was ordered by DJ Jabbitt (“the Judge”) on 24 January 2020 after an oral hearing on 19 December 2019. Permission to appeal was granted by Thornton J on 16 March 2020.
Mode of hearing
This was a remote hearing by BT conference call. Both Counsel were satisfied, as was I, that this mode of hearing involved no prejudice to the interests of their clients. The open justice principle was secured, through publication of the case and its start time in the cause list together with an email address usable by any member of the press or public who wished to observe the hearing. By having a remote hearing we eliminated any risk to any person from having to travel to or be present in a court-room. I am satisfied that a remote hearing was necessary and proportionate.
II. FACTUAL ANALYSIS
Whether evidence in chief set out in the judgment is to be taken as accepted
In this judgment I will start by addressing a number of topics relating to the facts and evidence in this case, before turning to analyse the three grounds of appeal. The first topic concerns whether evidence which the Judge set out in the judgment should be taken on this appeal as having been accepted. At the hearing the Judge heard live evidence from the Appellant and her mother, each of whom adopted their written statements as their evidence-in-chief. Each was cross-examined. The approach taken by the Judge in the judgment, so far as the evidence of the two witnesses was concerned, involved three stages. I will call them stages (a), (b) and (c). Stage (a) involved the Judge setting out in full the contents of the witness statements which were adopted as evidence-in-chief by the Appellant and her mother. Stage (b) involved the Judge recording certain points which were put to the witnesses in cross-examination. Stage (c) involved the Judge's reasoned analysis on the issues in the case, touching on the evidence as appropriate in the course of that analysis. That three-stage approach by the Judge raised a question for this Court dealing with this appeal. How should I approach the evidence of the witnesses, set out at stage (a)? Was the Judge to be taken as having accepted the evidence-in-chief recorded at stage (a), unless qualified by what was said at stage (c), read in the light of what he said as to stage (b)? I raised this question with both Counsel and the answer was common ground.
Mr Swain for the Respondent accepted that the Judge should for the purposes of this appeal be taken to have accepted, and found as facts, the contents of the witness statements set out at stage (a), except insofar as any feature of that evidence was subsequently the subject of clear (I interpose – that would include clear as a matter of necessary implication) rejection or qualification by the Judge at stage (c), in the light of stage (b). I put to Mr Swain that this would mean, in effect, approaching the Judge's judgment as though his stage (a) narrative of the witness evidence adopted in-chief had been followed by this statement (this is my encapsulation):
The Judge: “I accept all of the evidence which I have set out above, except where it is the subject to rejection or qualification within the reasons that follow” .
The Judge did not say this, but Mr Swain submits that I should proceed as though he had done so. Ms Westcott did not disagree with this approach, subject to specific controversies arising out of what were said to be ‘rejections’ or ‘qualifications’ by the Judge. I shall deal with those specific points separately, below. I accept Mr Swain's submissions and I will adopt this principled approach in the analysis which follows.
Evidence concerning the circumstances regarding the alleged offending
One area of contention between the parties concerned what this Court should make of the evidence of the Appellant and her mother, in light of what the Judge said at stage (c), so far as concerns the circumstances surrounding the alleged offending in March 2009. The Judge said this: “in terms of my findings of fact, the [Appellant] is wanted on an accusation warrant for alleged involvement, with two others in 2009, in so-called ‘distraction thefts’, some involving elderly women, and also the fraudulent withdrawal of cash with stolen debit cards. Plainly the alleged offending is reasonably serious”. The Judge then added this ‘qualification’:
“It would be a matter for the German court as to what weight it attaches to her account of why she participated in the alleged offending.”
The Judge later said “the [Appellant] has made submissions [as] to participation in the offending”, adding this ‘qualification’:
“… whether her account, if accepted, amounts to duress or is mitigation, is a matter for the German criminal justice system.”
This was the context for a dispute about whether this Court should take any account of the factual description given by the Appellant in her evidence and corroborated by her mother, recorded as their evidence in-chief by the Judge at stage (a) in the judgment, regarding the circumstances in which the Appellant came to be involved in the March 2009 distraction thefts and cashpoint withdrawals.
Ms Westcott submitted that, in the particular circumstances of the present case, the Court – in addressing the issues in the appeal – should take into account, and rely on, the Appellant (and her mother)'s evidence at the Judge's stage (a) regarding the circumstances of the alleged criminal conduct in March 2009. Mr Swain identified two specific ‘no go’ areas for this Court, in relation to the stage (a) evidence of the Appellant and her mother. (1) I should not go behind the Judge's two ‘qualifications’ (which I have just set out), for the reasons I described in the previous section of this judgment. (2) I should not go behind anything expressly stated as alleged against the Appellant on the face of the EAW, for reasons of appropriate mutual respect for the Respondent and the German judicial process. Mr Swain's two specific ‘no go’ areas would, in my judgment, have this consequence (this is my encapsulation):
Mr Swain's two specific ‘no go’ areas:
(1) It is not appropriate for this Court – based on the evidence set out by the Judge at stage (a) – to conclude that this is a case (i) where the Appellant was acting under duress, and so was not guilty of any crime, in March 2009; or (ii) where a court would sentence the Appellant, if convicted of criminal offences in March 2009, based on an acceptance of her account as mitigation .
(2) It is not appropriate for this Court – based on the evidence set out by the Judge at stage (a) – to conclude that the Appellant in her conduct in March 2009 lacked an “intent to procure for herself the source of revenues of some importance and of some duration by the continuous committing of these offences” (that being expressly stated in the EAW) .
I accept Mr Swain's submissions. In my judgment, they constitute a principled basis on which to proceed. That is how I shall proceed.
But that is as far as this point goes. There is, in my judgment, no wider ‘no go’ area. The account given by the Appellant and her mother, recorded by the Judge at stage (a), regarding the background and circumstances can and should be taken into account – to the extent relevant to the issues on this appeal – provided that to do is consistent with Mr Swain's two specific ‘no-go areas’ with the consequence that I have described. Contents of documents can also (except insofar as for good reason disputed) be relied on, as can the contents of the EAW (including the recognition within it that the Appellant was acting at the “direction” of Mr Carbune). I am satisfied that this is the correct approach. It involves following the Judge's judgment (in the principled way I have described), and the EAW, respecting the functions of the German judicial authorities, but also properly discharging my own.
Mr Swain's submissions at times ranged much more broadly and suggested a wider ‘no go area’. He suggested that (i) any and all evidence about the background or circumstances of the alleged offending and (ii) any and all factors which would fall to be considered and evaluated by a sentencing court if the Appellant were to be convicted of the alleged offending, were in principle areas of ‘forbidden territory’ and should not in principle be taken into account by this Court. I cannot accept that wider submission. I have explained the principled approach. In my judgment, where there is evidence which was recorded by the Judge and is taken to have been accepted by him, and where there is evidence from documents which are not for good reason disputed, and where relevant...
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