Irene Ellert v Judge of the Director of Public Prosecutions of the Copenhagen District Court (Denmark)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] EWHC 3309 (Admin) |
| Docket Number | Case No: CO/346/2021 |
| Year | 2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3309 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Fordham
Case No: CO/346/2021
Malcolm Hawkes (instructed by National Legal Service) for the Appellant
Richard Evans (instructed by CPS) for the Respondent
Hearing date: 2/12/21
Final Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
Introduction
This is a renewed application for permission to appeal in an extradition case. The hearing was in-person at the Royal Courts of Justice.
Mode of judgment
Ordinarily I would have proceeded to give an ex tempore judgment. Unfortunately, the time taken by oral submissions meant that the case used far more time than had been allocated to it. Submissions only concluded at 13:20. I had another hearing fixed for 2pm. In these circumstances I was invited by Mr Hawkes, with the support of Mr Evans, to produce my ruling in writing rather than seek to find a later time slot in court to deliver it orally. I have acceded, on this occasion, to that request. I do not regard this as a precedent, for me or any other judge.
Context
The Appellant is aged 49 and is wanted for extradition to Denmark. That is in conjunction with an accusation European Arrest Warrant (EAW) issued on 3 June 2020 and certified on 17 June 2020 on which she was arrested on 11 July 2020 before being released on bail. The description of the alleged offending is the subject of “further information” dated 8 September 2020. Extradition was ordered by DJ Hamilton (“the Judge”) on 25 January 2021 after an oral hearing on 22 December 2020. Permission to appeal was refused on the papers by Johnson J on 28 May 2021.
The Danish authorities allege that a large-scale money laundering enterprise was carried out over a significant period of time, by a number of perpetrating participants, between around 2008 and 2016. Their case is that 52 shell corporations were created for money laundering purposes. Those shell companies received €4.3 billion into accounts opened at an Estonian branch of a Danish bank by virtue of over 9,000 transactions; and then €4.3 billion was transferred out of those accounts by reason of more than 26,000 transactions. In part of a summary of the prosecution case adopted by the Judge in the judgment, which part Mr Hawkes for the Appellant accepts accurately reflects the EAW and further information, the Danish prosecutor's case includes that:
the purpose of these transactions was to hide the origin of the money. It is alleged that the [Appellant] facilitated the transactions and benefited from them .
The Appellant accepts that she introduced clients to the bank and that she registered 23 of the companies. She strongly protests her innocence. Her position is that she would be able to ‘put this matter to rest’ at the interview which is the next stage of the prosecutorial process. That interview is a stage which the Respondent had originally agreed to undertake in the summer of this year while the Appellant was in this country, an offer which was subsequently withdrawn.
Section 25
The first ground of appeal raised is section 25 of the Extradition Act 2003 and the contention that extradition would be oppressive by reason of the Appellant's health condition. This argument is advanced by reference to fresh evidence and an application to amend the grounds of appeal, filed yesterday. It is opposed by the Respondent on the basis that this proposed new ground is not reasonably arguable and the proposed fresh evidence is incapable of being decisive. The position had been that in a witness statement given in the extradition proceedings in August 2020 the Appellant had described a thyroid problem which was potentially cancerous. The Judge referred to the Appellant's “possibly cancerous lumps in her neck which may require treatment” and recorded that the Appellant had explained in her oral evidence “that the lumps or nodules will be removed and then subjected to a biopsy”. The biopsy took place in September 2021 and it has now been confirmed (27 November 2021) that the Appellant has a diagnosis of thyroid cancer. Mr Hawkes submits that the legally correct application of section 25 would now yield a stay of some six months until a review has been undertaken and greater clarity achieved. He submits that the current medical position is plainly very serious; that steps will now be taken whereby the relevant clinician team will identify and agree a treatment plan; that continuity of care is an imperative; and that in all the circumstances extradition at the present time crosses the threshold of being oppressive. He emphasises for the purposes of today that the test is whether that is reasonably arguable.
In my judgment, this does not constitute a reasonably arguable ground of appeal. I accept the submission of Mr Evans that the presumption of adequate medical care in Denmark provides a clear, complete and legally adequate answer to the serious concerns arising out of the biopsy and diagnosis, including as to the identification and implementation of a treatment plan, and including as a matter of next steps over the coming months. It is not, in my judgment, reasonably arguable that extradition, at this stage, would meet the applicable legal threshold of being “oppressive” on grounds of the Appellant's health condition and situation.
Section 21A
The next ground of appeal identified is section 21A of the 2003 Act. Mr Hawkes submits that it is reasonably arguable that extradition should not proceed on the ground that there is the possibility of less coercive measures. He relies on two features of the case in particular. The first is the interview step which it is common ground would be the next step in the prosecutorial process. Mr Hawkes points to the fact that the Respondent had agreed to conduct an interview while the Appellant was in the United Kingdom, in the summer of this year and in the context of an extant appeal against the Judge's January 2021 decision. He submits that in withdrawing the offer, the Respondent was “evidently mistaken” as to the timeframe for a hearing of the renewed application for permission to appeal following Johnson J's refusal in May 2021. He submits that the interview is a key component of the process which “would put this matter to rest”, on the Appellant's case that she can demonstrate that she has committed no crime, such that extradition would not be necessary. Secondly, Mr Hawkes tells me this morning about an application which has been filed in Denmark today to bring this matter to a conclusion, which he tells me it is anticipated will lead to a ruling within four weeks. Like the fresh evidence relating to the medical position I have been prepared, for the purposes of this application for permission to appeal, to accept what Mr Hawkes tells me so far as that very recent development is concerned and to take it into account, as I do.
In my judgment it is not reasonably arguable that extradition has become legally inappropriate for the purposes of section 21A by virtue of the possibility of less coercive measures. The interview is clearly the next step in the process. Clearly, I can make no finding or assessment that it will stand to “put this matter to rest”; nor can I conclude with confidence that it could not do so. The critical point, in my judgment, is that it is plain that the authorities squarely addressed the question of whether they were prepared to conduct the interview with the Appellant in the UK. The previous willingness to do so hardened into a refusal once Johnson J refused permission to appeal on the papers. The Respondent has not been prepared to go ahead with such an interview while this renewed application has been outstanding. The question is whether it is reasonably arguable that the Appellant is not extraditable today by reference to the possibility of less coercive measures. I am quite satisfied that that is not a reasonably arguable proposition.
Article 8
The next ground of appeal addressed by Counsel was Article 8 ECHR. On this part of the case Mr Hawkes emphasises the Appellant's recent thyroid cancer diagnosis, to which I have referred. He also emphasises the ill-health of the Appellant's partner who as the Judge recorded “has a serious health condition which is currently being controlled with medication”; namely what has been described as a type of controlled leukaemia. Mr Hawkes emphasises the serious implications for their 12 year old daughter who will be placed in the invidious position by her mother's extradition of needing to rely on her father as sole carer, in...
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