FK v Stuttgart State Prosecutor's Office, Germany

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Hickinbottom,Mr Justice Green
Judgment Date19 September 2017
Neutral Citation[2017] EWHC 2160 (Admin)
Docket NumberCase No: CO/3687/2016

[2017] EWHC 2160 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hickinbottom

and

Mr Justice Green

Case No: CO/3687/2016

Between:
FK
Appellant
and
Stuttgart State Prosecutor's Office, Germany
Respondent

Hugh Southey QC and Graeme L Hall (instructed by Shah Law Chambers) for the Appellant

Julian B Knowles QC and Jonathan Swain (instructed by Crown Prosecution Service Extradition Unit) for the Respondent

Hearing date: 25 July 2017

Lord Justice Hickinbottom

Introduction

1

This is an appeal against the decision of District Judge Snow of 18 July 2016 to order the Appellant's extradition to Germany. Germany is a category 1 territory, and thus Part 1 of the Extradition Act 2003 ("the 2003 Act") applies. All statutory references in this judgment are to the 2003 Act, except where otherwise appears.

2

The application for the Appellant's extradition is based upon an accusation European Arrest Warrant ("EAW") issued on 21 March 2016 by the Stuttgart State Prosecutor's Office, Germany, which is the appropriate judicial authority. It seeks the Appellant's extradition to face 26 charges of fraud, with alleged aggregate losses to the victims of just over £1m. Following a full hearing, the District Judge discharged the warrant on two charges but, dismissing the challenges to the remaining 24 charges, ordered the Appellant's surrender.

3

The Appellant relies upon four grounds of appeal, namely that the District Judge was wrong not to conclude that:

i) The EAW was inadequately particularised (section 2(4)(c) of the 2003 Act) (Ground 1).

ii) The EAW does not describe any extradition offences (sections 10 and 64) (Ground 2).

iii) Due to the passage of time, the Appellant's extradition would be oppressive (section 14) (Ground 3).

iv) The extradition of the Appellant would constitute a disproportionate interference with the rights of the Appellant and his family members under article 8 of the European Convention on Human Rights ("the ECHR") (section 21A) (Ground 4).

4

On 11 November 2016, Sir Stephen Silber sitting as a High Court Judge granted permission to appeal on all grounds save for Ground 4. Consequently, before this court now is the substantive appeal on Grounds 1–3, and the renewed application for permission on Ground 4.

5

Before us, Hugh Southey QC and Graeme Hall appeared for the Appellant, and Julian Knowles QC and Jonathan Swain for the Respondent requesting judicial authority. We are grateful to all for their contribution.

The Factual Background

6

The Appellant was born on 7 July 1958. He is therefore now 59 years of age. He was born in Liechtenstein, and has lived mainly in Germany, but also in the United States. He regularly visited the United Kingdom from about 1992, and from about 2007 decided to reside here. His brother still lives in Liechtenstein. His mother and two sisters live in Germany.

7

In 2006, the Appellant set up a company, WAIFF Limited ("WAIFF"), registered in England and Wales. He was the sole director. In his statement dated 11 May 2016 in response to the extradition proceedings, he said that the company offered its customers investment advice and services. Funds provided by customers would be invested by the company for a percentage commission; or, alternatively, investment would be made through a silent partnership contract of which WAIFF was a party. Investments were short term (up to three and a half years), medium term (three and a half to seven and a half years) or long term (over seven and a half years). He said that all WAIFF contracts with customers were made in London; he invested all the monies that customers gave him to invest; and, once invested, he had no access to the monies. He made the decision to close the business in late 2014, because he was under stress and he was unable to maintain the short-term investments at a profitable level.

8

The Appellant married his wife ("Mrs K") on 5 July 2013, having met her the previous year. Mrs K is 24. She has lived in the United Kingdom all her life. She has two daughters, both under the age of ten, from a previous relationship. The Appellant and she have a further two young children, one born just a few weeks ago. Neither the Appellant nor his wife is currently working. They are on benefits.

9

On 3 September 2015, a domestic warrant was issued in Stuttgart Local Court for the Appellant's arrest in respect of 26 offences of "especially serious fraud" contrary to section 263 of the German Criminal Code. An EAW was issued by the Respondent on 29 September 2015, which was certified by the National Crime Agency ("the NCA") on 5 November 2015.

10

The EAW was served on the Appellant at his home on 10 November 2015. The EAW identified the Appellant as the requested person; and referred to the 26 offences, described as "swindling", allegedly committed between 28 August 2007 and November 2014 in Böblingen, London and Wiesbaden, offences for which it was said the maximum sentence was ten years' imprisonment. On 31 March 2016, the Appellant was formally discharged from that EAW; but immediately arrested under a new EAW, issued on 21 March 2016 and certified by the NCA on 24 March 2016.

11

In respect of charges 1–24, each of the EAWs set out the "Facts of the matter" in identical terms, as translated, as follows:

"From the middle of 2007, the [Appellant], managing director of WAIFF…, in London, 9 Brightfield Road, acting personally (in 15 cases, of which in 4 cases jointly with an agent) or (in 9 cases) via at least 9 different, currently known by name, agents offered a total of 65 investors in 24 cases allegedly lucrative investments via WAIFF…. The Investors could choose between a silent participation in WAIFF… with interest rates of 9% or 12%, depending on the term, and a so-called 'short-term investment' with a minimum interest rate of 3.8%. The [Appellant] and the agents instructed by the [Appellant] emphasised the security of the investment that was guaranteed with the investment strategy, serious business partners as well as security and control mechanisms. The absolute security of the investment was emphasised in advertised prospectuses and information leaflets and customers were led to believe that the invested capital was fully secured by the 'gold deposits'. However, neither the contract documents nor the prospectus and information material stated how the promised returns of 12% would be realised. From the end of 2013, the [Appellant] and agents stated that WAIFF… was also involved in the area of 'extraction, production, processing of precious natural resources, valuable metals, so-called rare earths'. Trusting the security of the investment and the promised returns, 65 investors concluded agreements with WAIFF… for a silent participation or a 'short-term investment' between 28 August 2007 and November 2014, making payments in cash or to various accounts, namely to the account of the [Appellant] at Vereingte Volksbank Aktiengesellschaft Böblingen…, to the account of Emporenta Aktiengesellschaft, whose sole shareholder and Chairman of the Executive Board was that of the [Appellant] since February 2010, at Deutsche Bank Aktiengesellschaft, Butehude…, to the account of Barclays Bank PLC, London… and, from 2011, to the account of MJM Treuhandgesellschaft at Naussauische Sparkasse Wiesbaden held for WAIFF… and Emorenta Aktiengesellschaft… totalling EUR 1,171,859.39 and a further CHF 82,000. In fact, investors' funds were not invested for profit at any point in time but, as planned by the [Appellant] from the start, used for the own purposes of the [Appellant] or for maintaining and financing business operations of WAIFF… and Emporenta Aktiengesellschaft. In doing so, the [Appellant] realised a substantial source of income over a significant period of time. With the payment of their capital and premium, the investors incurred a loss in this amount as the funds, as planned by the [Appellant] from the start, were never invested. To the extent any payments or repayments were made to individual customers, these originated exclusively from newly acquired capital received from other investors."

12

As part of the "Facts of the matter" relied upon, the March 2016 EAW additionally had a schedule attached, which, in respect of each "penal act", set out (i) the name of the alleged victim, (ii) the town in which the victim lived, (iii) the date of the conclusion of the contract, (iv) the date of remittance or period, and (v) the payments including premium. The address of each victim was in Germany. Each payment was in euros, save for two which were in Swiss francs. The list was split into three parts, namely cases in which "conclusion of contract by [the Appellant] personally" (Appendix 1); cases in which "conclusion of contract by broker Dieter Schorn, Rudersberg, in each case through dormant equity holding in WAIFF…" (Appendix 2); and cases in which "conclusion of contract through dormant equity holding in WAIFF… through other brokers as well as investors who in turn solicited new customers" (Appendix 3).

13

Charge 25 involved the allegation that, in 2009, the Appellant had led an individual in London to believe that she could lucratively invest in a fund which he controlled; but, in accordance with a pre-determined plan, he used the money invested for his own purposes. Charge 26 involved an allegation that the Appellant procured €250,000 from a man in St Leonards-on-Sea, "at an unknown point in time", by untruthfully leading him to believe that it would be invested in a gold mine in California.

14

At the hearing before the District Judge, the Respondent conceded that, in relation to charges 25 and 26, the EAW contained no indication that any of the alleged conduct occurred in Germany; and that, consequently, the judge...

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