Paul Haberlin v District Court Hamburg Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 09 February 2022 |
| Neutral Citation | [2022] EWHC 258 (Admin) |
| Docket Number | Case No: CO/2355/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 258 (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/2355/2021
Malcolm Hawkes (instructed by Brunskill Solicitors) for the Appellant
The Respondent did not appear and was not represented
Hearing date: 9.2.22
Judgment as delivered in open court at the hearing
Approved 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
Note: This judgment was produced and approved by the Judge, after using voice-recognition software during an ex tempore judgment.
Introduction
This is an in-person renewed application for permission to appeal in an extradition case. The Appellant is aged 53 and is wanted for extradition to Germany. That is in conjunction with an accusation European Arrest Warrant (“EAW”) issued in August 2019 and certified in October 2019. It relates to an alleged offence of tax evasion with a scale said to be €3 1/2m in unassessed German VAT, carrying a maximum sentence of 10 years imprisonment. Extradition was ordered by DJ Griffiths (“the Judge”) on 2 July 2021 after an oral hearing on 21 May 2021 at which all evidence was given by the Appellant, by Professor Iqbal (a consultant clinical psychologist) and by Dr Guler (giving expert evidence as to German law, having considered materials relating to the present case). Permission to appeal was refused on the papers by Cavanagh J on 26 November 2021. The Court has the benefit of very lengthy and detailed perfected grounds of appeal, reproduced within grounds of renewal, in the context of a lengthy and detailed judgment by the Judge.
Section 14
Permission to appeal is sought in relation to the passage of time and oppression or injustice (section 14 of the Extradition Act 2003). The Judge examined in detail the explanation as to why, following a judicial examination of a Mr Hourigan in February 2015, the German authorities' suspicions switched to a Mr Parkes, who in June 2017 identified the Appellant as the individual controlling the operations of the company called Blossom Capital which is at the heart of the alleged VAT evasion. The German domestic warrant against the Appellant was issued in October 2018 and the EAW in August 2019. The Judge unassailably found that to a large extent the passage of time had been explained by the requesting state authorities. There was no arguable error, in my judgment, in the Judge not finding that this was a case of “culpable” delay. But more importantly, the Judge unassailably, in my judgment, found that the thresholds of “oppression” or “injustice” by reason of the passage of time were not, in the circumstances, met. To a large extent the themes in this case relating to “oppression” are also relied on under the Article 8 ECHR ground of appeal to which I will turn. There is, in my judgment, no materiality in the point made orally today that one of the factors described in the Respondent's “Further Information” – namely the stated need to confirm the Appellant's place of birth – could be impugned within the evaluation so as to undermine the Judge's overall conclusion on this part of the case.
Article 8
The proposed appeal relating to Article 8 ECHR has at its heart three features:
i) One is the impact – on the Appellant, his wife and their daughter – of his extradition, in particular in the light of the mental health conditions and implications addressed in detail in the evidence of Professor Iqbal. One key and troubling aspect concerns a risk of suicide on the part of the Appellant's wife.
ii) A second key feature of the Article 8 analysis relates to refusals by the German authorities to proceed by interviewing the Appellant, rather than extraditing him. On that point, the position of the Appellant before the Judge – and before me – is that what was needed, in the circumstances, by the German authorities was a proper “review”, and then engagement through interviewing the Appellant.
iii) A third key feature is what is said to be a “manifestly weak” prosecution case against the Appellant in Germany. On that topic, reliance is placed on the ways in which Mr Parkes has been (in other proceedings) discredited; and on the nature of the evidence being relied on, from Mr Parkes and otherwise said to be “circumstantial”. All of that was addressed by Dr Guler in his evidence. His opinion was that in this case the relevant test for ‘suspicion’ had not been made out.
In his oral submissions today, Mr Hawkes has identified three key questions, corresponding to these features of the Article 8 analysis:
i) First, he says that the “impulse”/ “voluntary act” approach to suicide risk – which has been applied in section 25 cases on the authority of the Turner – is not an approach applicable to third party family members in the context of Article 8 proportionality. Mr Hawkes says that the Turner test is itself in doubt, even for section 25 purposes, by reference to a case called Modi v India [2021] EWHC 2257 (Admin), in which (he tells me) permission to appeal was given by Chamberlain J in August of last year, and which is pending before a Divisional Court. He submits that the Judge in this case arguably erred in law in dealing with the wife's suicide risk by applying the Turner “voluntary act” test. That argument is located by Mr Hawkes alongside other features of the case and in particular the severity on the evidence of the daughter's mental health condition, her current circumstances and the implications for her of her mother's...
To continue reading
Request your trial