Gregory Connor v Public Prosecutor's Office Augsburg, Germany

Hearing dates: 23 March 2018

Judgment Approved

INTRODUCTION

These are three appeals against decisions of District Judge Zani, each given on 20 December 2017, in the Westminster Magistrates' Court ordering the extradition of each of the three appellants to Germany. Permission to appeal was originally refused on the papers by Sweeney J. By order dated 19 September 2017, Sir Ross Cranston ordered that there be an oral hearing of the renewed application for permission to appeal with the substantive hearing following immediately if permission to appeal is granted. In the event, full argument was heard on 23 March 2018.

In brief, the three appellants are each the subject of a European Arrest Warrant (“EAW”) seeking their extradition to Germany for offences connected with VAT fraud in Germany. The appellants each contend that the district judge erred in deciding that the particulars of the offences given in the EAWs are sufficient to meet the requirements of section 2 of the Extradition Act 2003 (“the 2003 Act”). They contend that the particulars are not adequate and, consequently, that the EAWs in their cases are not valid. In addition, the appellants contend that the German authorities now no longer seek extradition in relation to all of the offences set out in the EAW and contend that it would, therefore, be an abuse of process to extradite them in relation to any of the offences included in the EAWs. The respondent contends that the particulars do meet the requirements of the 2003 Act. They further submit, if necessary, that any issue concerning the offences for which the appellants are to be returned to Germany can be dealt with by allowing the appeal in respect of any offences where extradition is no longer sought and dismissing the appeal in respect of the other offences.

THE LEGAL FRAMEWORK

Part 1 of the 2003 Act deals with extradition to territories designated as a category 1 territory. Germany is designated as a category 1 territory. Part 1 applies where a designated authority receives a Part 1 warrant in respect of a person. Section 2 of the 2003 Act provides, so far as material in relation to cases where a person is accused (but has not yet been convicted) of an offence, that:

“(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—

(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or

(b) the statement referred to in subsection (5) and the information referred to in subsection (6).

“(3) The statement is one that—

(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and

(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.

“(4) The information is—

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.”

There are provisions providing for the accused person to be brought before an appropriate judge. That judge (and the High Court on appeal if necessary) will need to determine if the EAW complies with section 2 of the Act and is valid: see Boudhiba v Central Examining Court No.5 of the National Court of Justice Madrid [2007] 1 W.L.R. 12 Section 10 of the 2003 Act provides that where a person is brought before the appropriate judge, that judge must determine whether the offence is an extradition offence within the meaning of the Act. If so, there are a series of further questions that the judge must consider including whether there are any statutory bars to extradition (section 11 of the 2003 Act), whether there has been a decision to charge or to try the accused person (section 12A of the 2003 act) and whether extradition is barred because there are no speciality arrangements in place in the category 1 territory. Speciality arrangements are, broadly, arrangements ensuring that the person is only prosecuted in respect of an offence for which he is extradited or which arises out of the same facts, or where the appropriate judge consents or in certain other categories of case (see section 17 of the 2003 Act). There are also provisions requiring the appropriate judge to consider whether extradition would be compatible with rights derived from the European Convention on Human Rights and would be proportionate (section 21A of the 2003 Act) or whether it would be unjust to extradite the person because of his physical or mental condition (section 25 of the 2003 Act).

Section 26 of the 2003 Act provides for an appeal to the High Court if permission to appeal is granted. Section 27 of the 2003 Act provides that:

“ 27 Court's powers on appeal under section 26

“(1) On an appeal under section 26 the High Court may—

(a) allow the appeal;

(b) dismiss the appeal.

“(2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

“(3) The conditions are that—

(a) the appropriate judge ought to have decided a question before him at the extradition hearing differently;

(b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

“(4) The conditions are that—

(a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently;

(c) if he had decided the question in that way, he would have been required to order the person's discharge.

“(5) If the court allows the appeal it must—

(a) order the person's discharge;

(b) quash the order for his extradition.”

The provisions of the 2003 Act refer to an offence. An EAW may, however, deal with more than one offence. Article 1 of the Extradition Act 2003 (Multiple Offences) Order 2003 (“the Order”) provides that unless the context requires otherwise any reference in the 2003 Act to an offence is to be construed as a reference to offences. Specific modifications are made to particular provisions so that, by way of example, an appropriate judge must consider under section 10 whether any of the offences are extradition offences and, if one or more are not, may order discharge in respect of those offences only (see, for example, Brodziak v Circuit court in Warsaw Poland, and others [2013] EWHC 3394 (Admin.)). Section 27(5) of the 2003 Act is modified by Article 7 of the Order so that where the High Court allows an appeal it must “in relation to each offence” order the person's discharge and quash the order for his extradition.

THE FACTS

The EAWs

The first and third appellants are both the subject of EAWs in respect of a particular VAT fraud alleged to have been perpetrated in Germany. In relation to the first appellant, Gregory Connor, the warrant is said to relate to 266 offences. In essence, it is said that companies outside Germany (referred to as the missing traders) purportedly sold goods to other companies (referred to as buffer companies). The invoices showed that VAT had been included within the purchase price when in fact it had not. The buffer companies then purported to sell the goods abroad and wrongfully claimed tax refunds from the German authorities for the amount of tax allegedly paid in respect of those goods. The companies claiming to have sold the goods never themselves accounted to the German authorities for tax. As a result, tax refunds were claimed for amounts of tax which had never been paid to the German authorities.

The EAW in Connor's case is dated 12 November 2015 and was issued by the Public Prosecutor's Office in Augsburg. It was certified by the National Crime Agency on 17 November 2015. It relates to 266 offences. The EAW begins by stating that the accused persons, including Connor, established a criminal association in 2010 to manage a VAT carousel fraud which caused a loss in Germany of over 60 million euros. It stated that the carousel was operated by three organisations known as “the English Crew”, “Truesay” and “DJ”. The English Crew involved Connor amongst others. It said that the English Crew were responsible for procuring and controlling the companies who purported to sell to companies in Germany and who were supposed to declare VAT due in Germany but which did not do. They are also said to have procured and controlled the companies which purchased the...