R Adedeji v Public Prosecutor's Office Germany
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins |
| Judgment Date | 10 October 2012 |
| Neutral Citation | [2012] EWHC 3237 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2896/2012 |
| Date | 10 October 2012 |
[2012] EWHC 3237 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Collins
CO/2896/2012
Mr Daniel Jones (instructed by Morgan Hall) appeared on behalf of the Appellant
Mr Myles Grandison (instructed by Crown Prosecution Service) appeared on behalf of the Respondent
This is an appeal pursuant to Section 26 of the Extradition Act 2003 against the decision of District Judge Snow given on 13 March 2012 whereby he ordered the appellant's return to Germany to face three charges. The three charges in question concern essentially the same course of conduct which was the obtaining (or attempting to obtain) substantial sums of money from particular individuals who are named. Charges 2 and 3 relate to obtaining or attempting to obtain by violence of one sort or another and serious assaults, all said to be subsequent to an agreement reached or conspiracy made between the appellant and several accomplices, including two named accomplices, to take steps dishonestly to obtain money from the losers.
The appellant did not help himself by trying to allege that he was not the person named in the warrant. That was the main issue—indeed, it seems, largely the only issue—that was raised before the district judge. The district judge found—and the evidence was overwhelming—that he had been entirely untruthful. The way he put it was that the appllant had -
" ….. led us on a merry dance regarding his identity. I was satisfied that he was the person in the warrant and he lied in evidence. This was reinforced by his own lips when he said, 'I don't want to go back to Germany.' I do not know why he would have said that if he had never been before."
He went on:
"Because I think he is a perjurer, I find it hard to believe anything he says."
I think that there was an Article 8 point raised but the district judge rejected that, and it has not been pursued on this appeal.
What has been raised is an assertion that charge 1 in the warrant is bad because it does not give sufficient particulars to enable the appellant to know precisely what the charge involves and whether the conspiracy or the agreement or plan referred to in charge 1 goes beyond the offences involving the individuals, of which details are given in the course of the details of charge 1. Those particulars essentially marry in with the specific allegations of robbery, blackmail and assaults which are contained in charges 2 and 3.
The first point that has be considered is whether it is open to the appellant to raise these having regard to the provisions of Section 27 of the Act. I say that because—although I am clearly of the view that there is no bar to the raising of the issues—there are authorities which go either way. The first authority which indicated that it was open to the court to consider issues not raised below but which depend purely upon an argument of law is Hoholm v Government of Norway [2009] EWHC 1513 (Admin), a decision of the Divisional Court consisting of Lord Justice Stanley Burnton and Mr Justice Wilkie. The court there drew a distinction between the raising of issues depending upon fresh evidence, and the raising of issues which were pure points of law and decided that it was indeed open to the court to consider the latter.
That decision was considered by a subsequent Divisional Court in Khan v Government of United States of America [2010] EWHC 1127 Admin (a Part 2 case), the court then consisting of Lord Justice Thomas and Mr Justice Griffith Williams. The court disapproved the decision in Hoholm and decided that the restriction on the consideration of fresh evidence applied equally to a consideration of a point of law which did not depend upon evidence. The relevant provisions of the Act (which are contained in Part I at Section 27 and in Part II at Section 104 but those two sections are in identical terms) are, so far as material, as follows:
"27 …..
(2) The court may allow the appeal only if the conditions in sub-section (3) or the conditions in sub-section (4) are satisfied.
(3) The conditions are that—
(a) the ….. 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."
Pausing there, that simply requires the court to look at the matters raised before the judge below and his answers to those questions. The court has to decide whether the answers given by the district judge were correct. If they were not, if they ought to have been different, then the individual's discharge has to be ordered. This is on an assumption that this is an appeal by the person...
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Paul Dunham and Another v Government of the United States
...tension is reflected in two short passages taken from decisions of this Court. First, the observations of Collins J in R (Adedeji) v. Public Prosecutor's Office Germany [2012] EWHC 3237 (Admin) at [10], It would be in my judgment wrong to say simply because a point was not spotted below it ......
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