Rehan Malik v Public Prosecutors Office in Augsberg, Germany
| Jurisdiction | England & Wales |
| Judge | Mrs Justice McGowan |
| Judgment Date | 19 December 2018 |
| Neutral Citation | [2018] EWHC 3479 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1789/2017; CO/1791/2017; CO/1802/2017; CO/1837/2017; CO/1854/2017 & CO/2132/2017 |
| Date | 19 December 2018 |
[2018] EWHC 3479 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice McGowan
Case No: CO/1789/2017; CO/1791/2017; CO/1802/2017; CO/1837/2017; CO/1854/2017 & CO/2132/2017
Mr Ben Keith (instructed by McMillian Williams Solicitors Ltd) for the Appellant Malik.
Ms Saoirse Townsend (instructed by McMillian Williams Solicitors Ltd) for the Appellants Iftikhar and Iqbal.
Mr James Stansfeld (instructed by Shearman Bowen Solicitors) for the Appellant Dhillon.
Mr Jonathan Swain (instructed by Shah Law Group) for the Appellant Ali.
Mr Mark Smith (instructed by Criminal Defence Solicitors) for the Appellant Khan
Ms Helen Malcolm QC (instructed by Hallinan Blackburn Gittings & Nott) for the Appellant Thiara.
Mr Ben Lloyd and Ms Florence Iveson (instructed by the Crown Prosecution Service) for the Respondent
Hearing date: 10th May 2018
Approved Judgment
Introduction
These are now five appeals against decisions of District Judge Snow. A number of cases have arisen from an investigation into revenue fraud in Germany, the fraud is alleged to have been committed between 2010 and 2012 and to have caused losses in the region of 60m Euros. Appeals in the cases of Lewis, Smith, Drake and Sohail were withdrawn, at an earlier stage, by consent. The appeal of Din was dismissed by Lang J on 13 March 2017. The cases of Shammas, Herbert and Connor were dismissed by Lewis J on 17 April 2018, see below. The cases of Waseem Khan and Gurjinder Thiara were argued before me but they are no longer being pursued as the appellants have withdrawn their appeals and have made arrangements with the authorities to return to Germany.
The cases arise out of the same criminal proceedings in Germany as R v (Connor, Shammas & Herbert) v Public Prosecutor's Office, Ausburg, Germany [2018] EWHC 829 (Admin). It was submitted that I should not follow the decision in Connor and there was to be an appeal to the Supreme Court in that case. I have taken the unusual course of delaying the hand down of this judgment awaiting news of the progress or determination of that appeal and the resolution of discussions between the parties. That was done because these Appellants are alleged to have been involved in the same alleged offending as Connor et al. There is, in fact, no appeal. The application to certify a question of public importance was refused.
In R (T) v Secretary of State for the Home Department [2016] EWHC 1550 (Admin) I rejected an application to stay proceedings until an appeal in a similar case had been resolved.
“The general principle argued by the defendant today, and accepted by this court, is that there are inevitably going to be cases making their way from this court to the Court of Appeal, and sometimes beyond, which will raise some or sufficient factual links to the instant case for there to be a basis for saying this case should await the outcome of the decision in that other case. This court could simply not function if that happened on a regular and consistent basis. There will be cases so closely linked, factually and legally, that it is the proper course to stay them and await the outcome of a hearing in the Court of Appeal but, in my view, this is not such a closely linked case.”
This was cited and followed by Cranston J in R (Mahmoud) v Secretary of State for the Home Department [2016] EWHC 2934 (Admin).
A stay was not sought in this case but it was appropriate to delay judgment to await information on any other allied case that was to have been appealed, as these cases are so closely linked. There are no appeals extant that have been brought to my attention.
The five appellants are each the subject of a European Arrest Warrant (“EAW”) seeking their extradition to Germany to be tried for offences related to a revenue fraud in Germany. In particular, they submit because the German authorities no longer seek extradition in relation to all the offences set out in the warrants, they contend that it would be an abuse of process to extradite them in relation to any of the offences remaining in the warrant.
Having issued the EAWs the Judicial Authority sought, by Further Information on 23 June 2017, to reduce the number of offences for which each Appellant is to be prosecuted on the German indictments.
Goss J granted permission to appeal on Ground 1A relating to section 2 of the Extradition Act 2003, (“the 2003 Act”). This is a challenge on the issue of the number of offences alleged against each appellant. This was limited to the extent of resolving any ambiguity as to which offences fall within and outside the scope of the extradition order in cases where the further information served on 23 June 2017 purports to reduce, rather than increase, the number of offences for which extradition is sought. He refused permission on the other grounds.
The issues to be determined are;
i) Whether the EAWs issued against the appellants comply with s.2(3)(b) and 4(c) of the Act and whether the requesting state's attempt to change the number of offences for which the appellants face extradition is legally permissible. Ground 1A, upon which permission has been granted.
ii) Whether the EAWs issued against the appellants comply with the requirements of s. 2(4)(c) of the Act. Ground 1B for which permission is sought.
iii) Whether the EAWs disclose extradition offences as required by s.10 and s.64(3) of the act. Ground 2 for which permission is sought.
Background
Extradition is an essential part of the comity of nations. It demonstrates the cooperation between states in the resolution of criminal allegations, said to have been committed by individuals who have subsequently left the jurisdiction. A state must be able to seek the return for trial, and if necessary, punishment, of those who are alleged to have broken the law in the requesting state. The state of whom the request is made must, subject to following all proper safeguards, comply with that request. An individual who is the subject of such a request is entitled to the full protection of those proper safeguards. All requests must be justified and clear. All requested persons must know why they are to be extradited and tried and/or punished. The burden is on the requesting state to demonstrate sufficient clarity, and upon the state of whom the request is made to ensure that all requests meet proper standards. There are differences in the description and categorisation of criminal offences between states. Those differences are to be acknowledged and respected within the safeguards established by domestic and international law.
Extradition is not a licence to a requesting state to seek the return of individuals for trial against whom there is insufficient evidence to meet a proper test; or on offences which cannot be shown to meet international standards; or where the process is not guaranteed to comply with the minimum international requirements of a fair trial. The same international standards are applied to requests for the return of individuals to serve sentences.
Nor is extradition a series of legal complexities designed to frustrate the legitimate requests of states for the return of individuals to stand trial when all proper safeguards are met. It is not a procedure in which technical arguments of little or no substance should succeed.
Law
Part 1 of the 2003 Act deals with extradition to territories designated as a category 1 territory. Germany is a category 1 territory. Part 1 applies where a designated authority receives a Part 1 warrant seeking the extradition of a named person. Section 2 deals with the issue of arrest warrants:
2 Part 1 warrant and certificate
(1) This section applies if the designated authority receives a Part 1 warrant in respect of a person.
(2) A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory and which contains—
(a) the statement referred to in subsection (3) and the information referred to in subsection (4), or
(b) the statement referred to in subsection (5) and the information referred to in subsection (6).
(3) The statement is one that—
(a) the person in respect of whom the Part 1 warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and
(b) the Part 1 warrant is issued with a view to his arrest and extradition to the category 1 territory for the purpose of being prosecuted for the offence.
(4) The information is—
(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.
The issue of whether the EAW complies with section 2 is to be determined by the appropriate judge: a District Judge at first instance, a High Court Judge on appeal. The court must further determine that the offence is an extradition offence, under section 10; whether there is a statutory bar to extradition, under section 11; and whether the lack of speciality arrangements should prevent extradition. There is also a...
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