R(on the application of PILLAR) v BOW STREET MAGISTRATES COURT R PILLAR v the PROVINCIAL COURT AT KLANGENFURT AUSTRIA R PILLAR v the PROVINCIAL COURT AT KLAGENFURT and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR JUSTICE FORBES |
| Judgment Date | 05 July 2006 |
| Neutral Citation | [2006] EWHC 1886 (Admin) |
| Date | 05 July 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4006/2006, |
[2006] EWHC 1886 (Admin)
IN THE HIGH COURT OF JUSTICE
THE DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice May
Mr Justice Forbes
CO/4006/2006,
CO/3867/2006
MR S HILLIAR (for application)(instructed by …) appeared on behlaf of the APPLICANT
MISS C DOBBIN (for appeal) (instructed by TV EDWARDS, LONDON E1 4TP) appeared on behalf of the CLAIMANT
MR P CALDWELL (instructed by CPS London EC4M 7EX) appeared on behalf of the DEFENDANT
Nigel Pillar and Marrion Pillar have various grounds upon which they challenge decisions of district judges at Bow Street in extradition proceedings in response to a category 1 European arrest warrant proceeding from the Provincial Court at Klagenfurt in Austria. There is an appeal for each of them against the decision of District Judge Anthony Evans, on 2 May 2006, and an application by Nigel Pillar for judicial review of an antecedent decision of the same district judge on 19 April 2006.
This earlier decision was under section 25 of the Extradition Act 2003 at which it was contended unsuccessfully, on behalf of Nigel Pillar, that his physical and mental condition was such that it would be unjust or oppressive to extradite him. The second decision rejected various contentions why an extradition order should not be made.
Section 26 of the 2003 Act provides that a person against whom an Extradition Order is made may appeal to the High Court. Such an appeal may be brought on a question of law or fact. By section 27 the court may allow the appeal in a variety of wordily expressed circumstances, which really add up to saying that the district judge's decision was wrong. A preliminary point is taken as to the validity of the warrants and it is not in issue but that if the warrants are incompetent the proceedings depending on them fall.
The brief background is as follows: there were protracted civil proceedings in this jurisdiction in the Chancery Division in which one of two claimants was Gertruda Josephine Maria Derksen and two of several defendants were Mr and Mrs Pillar. A fairly detailed account of these complicated proceedings may be found in a judgment of Hart J of 12 December 2003, [2003] EWHC 3050 Ch when he dealt with an application for a stay of those proceedings and applications for default judgment, or summary judgment, against Mr Pillar. Paragraph 6 of Hart J's judgment reads as follows:
"The first claimant ("Mrs Derksen") is a Dutch lady of considerable wealth. The second claimant is a Dutch company owned by her and used as her alter ego. In November 1997 Mrs Derksen met Mr Pillar, a jewellery dealer, at an antiques fair in Vienna and purchased some jewellery from him. They thereafter became close friends and numerous transactions in relation to jewellery in particular took place between them. Arising out of that relationship the claimants allege that they became victims of a series of frauds practised on them by Mr Pillar, either alone or in combination with Mrs Pillar and the third defendant ("Mr Pell") who was Mr Pillar's book-keeper. The Particulars of Claim narrate these frauds under seven different heads, namely,"
and I simply give the headings of the seven allegations: (1) was "The Ten Percent fraud": 2), was "The Jewellery Fraud"; (3) was "The Furniture Fraud"; (4) was "The Liverpool Road Fraud", 5) was "The Schloss Lolling Fraud"; (6) "The Schloss Lolling Renovation Fraud"; and (7) "The Swiss Investment Fraud". There is within the judgment of Hart J a description of the various allegations under these seven headings.
The conduct, which was alleged in those proceedings, was alleged to have taken place between approximately 1997 and approximately 2001. In their outline the chronology of the civil proceedings included that on 24 May 2002 a search order, or a Norwich Pharmacol order was applied for against Mr and Mrs Pillar. The claim form was served on 27 May 2002 on which date, or there about, the search order was executed. Things proceeded. A freezing order was imposed.
On 30 March 2004, the appellants were declared bankrupt and so it was that the English civil proceedings petered out and the Austrian criminal proceedings were instigated by a detailed complaint to Austrian prosecuting and judicial authorities by Mrs Derksen, a copy of which we have in English translation emanating from Mrs Pillar. This appears, on superficial examination, to rely on much the same matters as were alleged in the English civil proceedings. It was on 12 August 2004 that an order emanated from the Provincial Court at Klagenfurt. The warrants were European arrest warrants and the warrants in question contained statements of fact in paragraph E translated into English as follows:
"On request of the public prosecutor's office of Klagenfurt, dated 3rd May 2004, and based on the contents of the complaint of the Criminal Investigation Department of the Provincial Police Headquarters (LGK) for Carinthia, dated 26th April 2004, judicial investigations have been carried on against the aforementioned person upon suspicion of serious professional fraud. During the building activities of the castle "Schloss Lolling", Christian Friedel in colloboration with the suspected submitted, at that time, to the injured person, Gertruda Derksen invoices increased by 30%. Furthermore, she was deceived with regard to the sale of the castle "Schloss Lolling" because of false statements concerning the owner as well as concerning the relationship of the suspected with the owner. Moreover, since 1997, in this context, false indications of origin have been given by the accused regarding the sale of 41 objects of antique furniture and a great number of jewellery and ornaments. Thereby, the person who suffered the loss was deceived as to the origin and by paying an excessive price she was injured to her property. According to the indication of the injured person, the damage sum amounts to approximately 2 million euro."
There then follows in the warrants extracts from the Austrian penal code specifying particular offences.
There are a number of grounds of appeal, the first of which is that the European arrest warrants, that formed the basis of the extradition proceedings, were defective and as such the order for extradition had no lawful basis. The court has considered this ground of appeal first.
So far as the proceedings before the district judges were concerned, an initial application was made on 17 January 2005 before District Judge Pratt to discharge the appellants on the basis that the warrants were defective and void from the start. The district judge did not accede to that application. We do not have any copy or transcript of his reasons for doing so. We are told that they were short. The matter was adjourned. We are told that at a further hearing before District Judge Pratt the appellants, through counsel, sought to reopen the question of the validity of the warrants, but he declined to do so.
The application having been adjourned to consider whether extradition ought not to take place by reason of the passage of time, District Judge Pratt unfortunately subsequently became indisposed and the case was transferred to District Judge Anthony Evans. The issue as to validity was not retaken by him on the agreed basis that the validity of the warrant was a wholly discrete issue. It was evidentially distinct from the bars to an extradition that were otherwise argued, and there was no proper basis for asking the court to remake what was, in essence, a decision of the same court. Accordingly, although on 2 May 2006 District Judge Evans ruled on other grounds that the appellant's extradition was not barred by reason of passage of time, or because it was oppressive or unjust, District Judge Evans himself made no judgment separate from that of Judge Pratt as to the validity of the warrant.
It is contended by Miss Dobbin, on behalf of the appellants, that the European arrest warrants issued in respect of the appellants are defective because they do not comply with the requirements of the Extradition Act 2003 and as such are void. Before turning to the 2003 Act itself, I should observe that the Act was passed in response to the European Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States 2002/584/JHA. Emanating from that the required contents of a warrant are set out in section 2(4) of the 2003 Act. Where a warrant contains a statement that the person is sought as an accused, the warrant must contain:
"(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."
These requirements correspond with those in Article 8 of the Framework Decision...
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