DF v Amtsgericht Nürnberg, Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 25 August 2022 |
| Neutral Citation | [2022] EWHC 2224 (Admin) |
| Docket Number | Case No: CO/1828/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2224 (Admin)
THE HONOURABLE Mr Justice Murray
Case No: CO/1828/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr James Stansfeld (instructed by Tuckers Solicitors) for the Appellant
Mr Stefan Hyman (instructed by CPS Extradition Unit) for the Respondent
Hearing date: 1 December 2021
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 25 August 2022 at 10:30 am.
This is an appeal from the order of DJ(MC) McGarva dated 18 May 2021 (“the Order”), ordering the extradition to Germany of the appellant, DF, under section 21A(5) of the Extradition Act 2003 (“the 2003 Act”). His reasons for making this order are set out in his judgment dated 18 May 2021 (“the Judgment”).
The respondent judicial authority is the Amtsgericht Nürnberg, Germany.
DF brings this appeal under section 26 of the 2003 Act, leave to appeal having been granted by Dove J on 7 October 2021.
Grounds of appeal
DF appeals the Order on the following grounds:
i) The judge was wrong to conclude that extradition would not be unjust and/or oppressive by reason of the passage of time pursuant to section 14 of the 2003 Act.
ii) The judge was wrong to conclude that extradition amounts to a proportionate interference with DF's and his family's right to a private and family life pursuant to Article 8 of the ECHR.
Anonymity of the appellant, his sister, and her children
DF has applied for anonymisation of the appellant, his sister and her four children. The application was made for the protection of the children. Mr James Stansfeld, counsel for DF, submitted that it is necessary to anonymise the appellant's sister's name and the appellant's name in order for the protection of the children to be effective. DF does not seek any reporting restrictions. He seeks only that the identities of the children be protected by not publishing them in this judgment.
Mr Stansfeld drew the court's attention to the judgment of Lane J in BM v Ireland [2020] EWHC 648 (Admin), in which Lane J made an order for the identity of the appellant and his children, T and M, to be withheld from publication in the judgment. No further derogations from the principle of open justice were sought. In that case, T suffered from a serious, life-limiting congenital medical condition.
As will be seen, the four children at the centre of this case range in age from 3 to 8 years old. Each suffers from severe learning difficulties, with accompanying behavioural issues of varying degrees of severity. These learning difficulties and behavioural issues present considerable challenges for their care and management. Their mother has significant physical and mental health problems. The children's father left home about two years prior to the appeal hearing following separation from their mother and their subsequent Islamic divorce. He provides no practical or financial support for the children. It is not disputed that for some years (since roughly 2016), and to an enhanced degree over the past few years since their father's departure, the appellant has been heavily involved in the care and management of the children.
The respondent does not oppose the anonymity application.
I note the particular importance of open justice in the area of extradition. Lane J observes in BM v Ireland that the mere existence of children as part of the circumstances of a case where a person's extradition is sought, having been convicted of a criminal offence abroad, is unlikely to be sufficient to justify anonymisation of that person in a judgment. A very good case, indeed, will need to be made. He was satisfied that BM v Ireland was such a case.
In this case, the appellant has not been convicted in Germany. His extradition is sought so that he can stand trial. A fortiori, the principles summarised by Lane J apply. I am satisfied that there is a very good case for withholding the appellant's name in this judgment, as well as those of his sister and her four children, in order to protect his sister's children.
In this judgment, I will refer to the appellant as “DF” and his sister as “CG”. The four children are:
i) a boy, “MG”, born in 2011;
ii) a girl, “NG”, born in 2012;
iii) a girl, “OG”, born in 2015; and
iv) a boy, “PG”, born in 2018.
CG is two years younger than DF. DF has two other sisters who play a role in the circumstances of this case, and it is necessary to anonymise them in order to protect the identity of CG and her children. I will refer to the elder sister of DF and CG as “BF”. The other sister is younger than CG. I will refer to her as “EH”.
Introduction of new evidence
DF has applied for new evidence not before the judge at the extradition hearing to be admitted on this appeal, namely:
i) a letter dated 16 November 2021 from Ms Lyann Fergus, a social worker in the City of Westminster's Disabled Children's Team, who has been involved with CG and her children, concerning the potential impact of the extradition of DF on CG's children and on CG and her ability to care for her children;
ii) a witness statement of CG (her third in these proceedings, the copy in the appeal bundle being undated and unsigned), together with two exhibits:
a) a letter dated 2 November 2011 from Ms Aimee Di Marco, a consultant endocrine surgeon at Hammersmith Hospital, Department of Thyroid and Endocrine Surgery, to CG's NHS general practitioner (GP) regarding CG's medical condition;
b) a letter dated 5 August 2021 from Ms Valia Chatzichristou, an IAPT Step 3 Counsellor at the charity Mind in Brent, Wandsworth and Westminster, concerning CG's mental health;
iii) a witness statement of DF (his second in these proceedings, the copy in the appeal bundle being undated and unsigned); and
iv) a letter dated 19 November 2021 from CG's NHS GP summarising CG's medical history and, more briefly, medical problems affecting each of her children.
The principles that apply to the admissibility of new evidence on appeal in the context of extradition appeals are, unsurprisingly, similar to the principles that apply in other contexts. The principles applicable in this context were set out by the Divisional Court in Hungary v Fenyvesi [2009] EWHC 231 (Admin), [2009] 4 All ER 324 (QBD).
In Fenyvesi at [4], the Divisional Court described the underlying policy as being that “fresh evidence may be received when it is just to do so; or perhaps when it would be unjust not to do so”. In respect of evidence “that was not available at the extradition hearing”, the Divisional Court held at [32] that a requested person must demonstrate that:
“… the evidence … either did not exist at the time of the extradition hearing, or … was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained.”
As to the general approach to be taken, the Divisional Court in Fenyvesi gave the following guidance at [35]:
“Even for defendants, the court will not readily admit fresh evidence which they should have adduced before the district judge and which is tendered to try to repair holes which should have been plugged before the district judge, simply because it has a human rights label attached to it. The threshold remains high. The court must still be satisfied that the evidence would have resulted in the judge deciding the relevant question differently, so that he would not have ordered the defendant's discharge. In short, the fresh evidence must be decisive.” (emphasis added)
In Zabolotnyi v Hungary [2021] UKSC 14, [2021] 1 WLR 2569 (SC), the Supreme Court affirmed the Fenyvesi principles at [56]–[61].
I have read the additional evidence de bene esse. I assume that signed and dated copies of the third witness statement of CG and the second witness statement of DF have been filed and served. I will return to the additional evidence at the end of this judgment.
The factual background – the alleged offence
I will first summarise the factual background to the alleged offence in 2002 regarding which the respondent is seeking DF's extradition to Germany. I will then summarise the factual background of DF's history since 2002 and his current family circumstances to the extent that they are relevant to his grounds of appeal.
DF is accused of being the man who, on 17 November 2002 at about 9:45pm, after having paid for and had sexual relations with a prostitute in her room at a property in Frauentormauer in Nürnberg and immediately before leaving, assaulted her by punching her in the face with both fists, causing her to fall back on the bed. He then demanded his money back. When she tried to stand up, he hit her with a bottle causing her to lose consciousness. He then stole €265 in cash from her suitcase. The complainant suffered a triple fracture of her lower jaw, a massive haematoma on her left cheek, and an injury of about 4cm to her head.
The offence that DF is accused of having committed is classified in the European Arrest Warrant (EAW) issued on 15 October 2020 as “aggravated robbery in unity with dangerous bodily harm” ( besonders schwerer Raub in Tateinheit mit gefährlicher Körperverletzung).
The complainant, then 37 years old, was interviewed on the day of the assault. She provided a description of her attacker. She told police that he was English-speaking and that he had told her that he lived in England. Two suspects were arrested that day and brought before her for identification, but she did not identify either as her attacker. Forensic evidence in the form of fingerprints and DNA, including traces of sperm on a condom...
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