Hamburg Landgericht (Germany) v John Parkes
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Mr Justice Chamberlain |
| Judgment Date | 21 June 2021 |
| Neutral Citation | [2021] EWHC 1655 (Admin) |
| Date | 21 June 2021 |
| Docket Number | Case No: CO/3691/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Males
and
Mr Justice Chamberlain
Case No: CO/3691/2020
Rupert Bowers QC and Kate O'Raghallaigh (instructed by National Legal Service, Solicitors) for the Appellant
Rosemary Davidson (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent
Hearing date: 15 th June 2021
Approved Judgment
On 2 nd October 2020 District Judge Godfrey ordered the extradition of the Appellant, John Parkes, to Germany where he faces an allegation of tax evasion contrary to Article 370 of the German Fiscal Code. He appeals against this order, with the permission of Mr Justice Julian Knowles, on three grounds as follows:
(1) that extradition would be contrary to his rights under Article 8 ECHR (Extradition Act 2003, section 21);
(2) that it would be unjust or oppressive to extradite him by reason of his physical or mental condition (section 25); and
(3) that the District Judge was wrong to rely on an unsigned proof of evidence submitted by the Appellant, who did not give oral evidence at the hearing before him.
At the hearing below the Appellant also resisted extradition on the grounds that this would be disproportionate in view of the availability of less coercive measures (section 21A) and that the issue of the European Arrest Warrant amounted to an abuse of process. Those grounds are no longer pursued.
The background
The Appellant is 65 years old. As a young man he worked as a fireman until he fell from a roof and suffered spinal injury which has resulted in back problems and the development of arthritis. Since then he has worked as a lorry driver and in the office organising the logistical management of transport businesses. He is separated from his wife, but has a partner whom he met online in 2017.
The EAW pursuant to which the Appellant's extradition is sought was issued on 18 th February 2020. It is an accusation warrant which alleges that the Appellant committed tax evasion in his capacity as the de facto managing director of a company called Blossom Capital GmbH in Hamburg, by failing to submit a tax return for the year 2012 to the competent tax office, despite the company having issued invoices for the sale of copper cathodes to a company called Mila AG based in Duisberg. The tax evaded is said to amount to €3,508,569.88. The offence carries a maximum penalty of 10 years' imprisonment.
In the proof of evidence whose status is in issue on this appeal the Appellant gives an account of the circumstances in which he became involved with Blossom Capital GmbH. In outline, he says that he was offered a job by a contact of a friend that he knew from working in the transport industry and that he made a substantial investment in purchasing the company. The job was to run the company organising transport throughout Europe. For this purpose he took an office in Hamburg but, he says, he became suspicious that his associates were keeping things from him and eventually he discovered that they were conducting a VAT fraud. He wanted nothing to do with this and decided not to return to Germany. He was repaid some of the money which he had invested, but was left substantially out of pocket. He was effectively locked out of the company, whose email passwords and phone numbers were changed.
The Appellant says that some years later, after extradition proceedings commenced, he was shown documents from the company's accountants, Hansa Partners, which purported to bear his signature and to date from the period after he had ceased to be involved with the company, but these were forgeries. Similarly, the bank account opened in his name at Commerzbank after he had left Germany had nothing to do with him. He contacted Hansa Partners and Commerzbank to ask for copies of these forged documents, but they refused to provide them. The Appellant says that this is because they knew that they had not done proper due diligence and had thereby facilitated a fraud by not checking with whom they were dealing.
The EAW is the second such warrant to have been issued. An EAW relating to the same conduct was issued on 26 th October 2015. The Appellant contested his extradition on numerous grounds, but on 1 st December 2016 District Judge Zani ordered him to be extradited. Permission to appeal to the High Court was refused on the papers, but was subsequently granted in order to enable the Appellant to surrender voluntarily. On 9 th June 2017 the German Judicial Authority confirmed that his extradition was no longer sought and he was discharged on 20 th June 2017. In the course of the proceedings on this first EAW the Appellant submitted a proof of evidence, which he confirmed on oath, which gave a materially different account of the circumstances in which he had become involved with Blossom Capital GmbH. In short, this account asserted that the Appellant never conducted any business for this company and that he resigned from it in January 2012.
A hearing took place in the Hamburg court on 7 th June 2017 which the Appellant attended. It appears to be common ground that the Appellant's German lawyer entered a guilty plea on his behalf, but the Appellant says in his current proof that this was done without his knowledge or approval and that his lawyer (whom he does not name) told him that this was necessary in order to get a suspended sentence, and that it was too late to do anything about it. It appears that the Appellant also provided a bail security in the sum of €20,000 and gave written authorisation for his German lawyer to receive summonses on his behalf.
The Appellant says that thereafter he telephoned his German lawyer many times and sent even more emails to him to find out about the proceedings, but that the lawyer's only response was to ask for more money from time to time, although the Appellant did meet him on a few occasions when the lawyer travelled to London. It was at one of these meetings that he learned of the existence of the supposedly forged documents held by the German authorities.
Further Information from the Judicial Authority dated 8 th July 2020 states that the Appellant was summoned on 16 th August 2019 to attend a hearing on 15 th November 2019 and was informed that failure to comply with this summons could result in a warrant being issued for his arrest. The Appellant, however, says that he only heard about this hearing in November 2019 when he got a text from the German lawyer saying that he needed to be in court in Hamburg in three days' time. He says that by this point his physical and mental health had deteriorated, so he asked his GP to write a letter to explain that he was not fit to travel. The GP's letter, dated 12 th November 2019, reads in its entirety as follows:
“I confirm that I am the General Practitioner for Mr Parkes. He is suffering with severe Osteoarthritis and Anxiety with Depression. I do not feel he is able to travel or attend court.”
We have before us, although it was not before the District Judge, a statement from the German lawyer, Mr Axel Bertram, confirming that he faxed this letter to the Hamburg court on 13 th November 2019, together with a request for an adjournment of the hearing fixed for 15 th November 2019. Mr Bertram confirms also that he has represented the Appellant since 15 th August 2016. He must, therefore, be the same German lawyer who, according to the Appellant, entered a guilty plea without the Appellant's knowledge or approval, failed to do anything about it when told that the Appellant did not agree to enter such a plea, repeatedly ignored the Appellant's telephone calls and emails seeking further information about the proceedings, and failed to give him proper notice of the hearing on 15 th November 2019. Unfortunately, however, Mr Bertram does not address any of these matters in his statement and it is not apparent whether he is even aware of the Appellant's serious allegations against him.
At the hearing on 15 th November 2019 the Hamburg court did not accept that the Appellant had a valid reason for his non-attendance and issued a warrant for his arrest. The Appellant appealed that decision to the Regional court but his appeal was dismissed on 30 th January 2020. This was followed by the issue of the current EAW on 18 th February 2020.
The decision of the District Judge
Service of the Appellant's proof of evidence
An initial hearing took place before District Judge Zani on 18 th May 2020. In accordance with standard practice in extradition cases, District Judge Zani gave directions for the service of a proof of evidence and for skeleton arguments. The Appellant filed the proof of evidence to which I have referred, which was unsigned and contained no declaration of truth. The proof of evidence, together with a skeleton argument signed by the Appellant's solicitor Mr Noam Almaz who represented him at the hearing, was included in the bundle provided to the court for the purpose of pre-reading.
The Appellant attended the final hearing on 9 th September 2020, but was not called to give oral evidence and, as a result, did not formally adopt his proof or confirm its contents on oath. This was because Ms Rosemary Davidson appearing for the JA had indicated that the Appellant's credibility was in issue on a number of points. She made clear that the Appellant's account in his proof of the reasons for his failure to attend...
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