Steven Woodbridge v The Head Attorney General of the District of Moenchengladbach, Germany

Hearing dates: 22 April and 28 September 2016

This is the judgment of the Court, to which we have both contributed.

By a European Arrest Warrant ('EAW') issued on 16 April 2014 the Head Attorney General of the district of Moenchengladbach, Germany ('the Judicial Authority'), the respondent to this appeal, seeks the extradition of the appellant Steven Woodbridge. The Judicial Authority seeks his extradition to stand trial for eighteen offences of fraud, and one of breach of legal duty in relation to failing to file for bankruptcy, allegedly committed in Moenchengladbach, Germany from 3 March 2009 to 12 August 2010. The EAW was certified by the National Crime Agency on 22 May 2014. District Judge Snow ordered the appellant's extradition in a written judgment delivered on 2 July 2015.

Box B of the EAW records that the arrest warrant for Mr. Woodbridge's arrest was issued by the Moenchengladbach Circuit Court on 17 January 2014. Box C of the EAW records that the maximum sentence on conviction for the offences on the EAW is 10 years imprisonment for each of offences 1–18 and 3 years for offence 19, up to a maximum of 15 years for all counts.

In Box E of the EAW, it is alleged that Mr Woodbridge worked as the general manger of a company called Industrie-Spedition GmbH in Moenchengladbach between 3 March 2009 and 12 August 2010. During this time, he transferred funds intended for the settlement of client invoices from an account numbered 190920900 with Commerzbank AG to a Barclays Bank account in England. The total amount he is said to have transferred totalled €2.461 million. The EAW records the dates of each offence and the amounts transferred between 20 April 2009 and 11 October 2010. The 18 ^th offence occurred on 11 October 2010: he withdrew €83,689.18 from the escrow account number 817866301 with Commerzbank AG and deposited it in the escrow account of Messers NXP in violation of an agreement. The nineteenth offence occurred in 2009: having made withdrawals which led to the accumulation of debt by the company before 2010 he failed to file for bankruptcy in 2009 in breach of his duty to do so. This conduct amounts to eighteen offences of fraud pursuant to sections 263 and 266 of the German Criminal Code and an offence contrary to paragraph 15a of the Bankruptcy regulations. The Framework list at box E.1 of the EAW has been marked for Fraud.

Mr. Woodbridge was arrested on this EAW on 23 December 2014. He appeared at an initial hearing that day. No issues were taken regarding his prompt production or service of the EAW, nor did he dispute being the person named on the warrant. He did not consent to his extradition. The extradition hearing was opened on that day. He was remanded on conditional bail. The extradition hearing took place before DJ Snow on 2 July 2015. Mr. Woodbridge gave evidence. Both sides made submissions on whether extradition was barred by absence of prosecution decision under section 12A of the 2003 Act and whether it was compatible with his and his family's rights under article 8 ECHR. The judge reserved judgment until later that day and handed down a written judgment. The defence's arguments were rejected and extradition was ordered. Mr. Woodbridge was again granted bail.

The district judge found that the offences set out in the warrant were extradition offences within the meaning of sections 10 and 64(5) of the Extradition Act 2003 ("the Act"). There was no dispute on that issue before him and there has been none before us. He made the following further findings:-

1) The EAW complied with section 2 of the Act;

2) Extradition was not barred under section 12A of the Act by reason of the absence of a prosecution decision;

3) Extradition would not be incompatible with the Appellants and his family's Article 8 rights;

4) It would not be disproportionate to order the Appellant's surrender to Germany.

He therefore made such an order pursuant to 21A (5) of the 2003 Act.

By an Amended Notice of Appeal Mr Cooper (who did not appear below) challenges the district judge's order on four grounds:-

1) The EAW was not compliant with Section 2 because it was not issued "for the purpose of [Mr Woodbridge] being prosecuted";

2) Extradition is barred under section 12A because there are reasonable grounds for believing that the German authorities have not made a decision to charge or a decision to try Mr Woodbridge;

3) Extradition would be incompatible with the Article 8 rights of Mr Woodbridge, his wife and children;

4) The district judge erred in finding that Mr Woodbridge's physical condition was not such that it would be unjust or oppressive to extradite him (section 25(2) of the Act) without adjourning pursuant to section 25(3)(b) until after Mr Woodbridge had undergone an operation for atrial fibrillation.

On 11 August 2015 Irwin J, after consideration of the case on the papers granted permission on grounds 1, 2 and 4, but refused permission on ground 3.

In October 2015 Mr Woodbridge's wife, Hayley Woodbridge, was unfortunately diagnosed with breast cancer. At the first hearing in this court on 22 April 2016 we had information in a witness statement from her of 19 ^th April 2016 and a medical report of 21 ^st April 2016 from a consultant clinical oncologist, Dr Thanvi, who has been treating her. This was clearly relevant evidence as to matters which had arisen since the hearing before the district judge and quite rightly Mr Sternberg for the respondents did not object to its admission. Updated medical evidence was obtained prior to the adjourned hearing on 28 September 2016. We heard full argument on ground 3 together with the other grounds and we grant permission on ground 3. In this judgment we will consider it last, after grounds 1, 2 and 4.

Ground 1 – Was the EAW issued for the purpose of prosecution?

This issue under s 2 of the 2003 Act was not raised before the district judge, but it goes to jurisdiction and does not depend on evidence other than that which was considered by the district judge in relation to s 12A, namely the contents of the EAW itself (together with its translation into English) and the undisputed evidence of Mr Woodbridge that he has not been interviewed by the German authorities. In these circumstances, in accordance with the decision of this court in Hoholm v Norway [2009] EWHC 1513 (Admin), it was right that we should consider the point and Mr Sternberg did not suggest otherwise.

In Office of the King's Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 Lord Scott of Foscote said (at [54]):

"Extradition for the purpose of interrogation with a view to obtaining evidence for a prosecution, whether of the extradited individual or of anyone else, is not a legitimate purpose of an arrest warrant. But the judicial authority in the requested state cannot inquire into the purpose of the extradition. It is therefore necessary for there to be an unequivocal statement of that purpose in the arrest warrant itself. Hence the requirement in section 2(3)(b)."

Aikens LJ reviewed the authorities on section 2(3) of the Act in Asztaslos v Szekszard City Court, Hungary, [2011] 1 WLR 252. He stated (at [19]):

"first, the phrases "is accused … of the commission of an offence" in paragraph (a), and "for the purpose of being prosecuted" in paragraph (b), are not to be treated as terms of art. Secondly, it is a question of fact whether the surrender sought is of an accused person and for the purpose of the requested person being prosecuted. Thirdly, it would be wrong to approach the construction of the phrases "accused" etc and "for the purposes of being prosecuted" solely from the perspective of English (or Scottish or Northern Irish) criminal procedure; in particular from the point of view of the formal acts of the laying of an information or the preferring of an indictment. Fourthly, it is necessary to adopt a purposive construction of the words "accused … of the commission of an offence" and "for the purpose of being prosecuted" to accommodate the differences between legal systems. Lastly, the question of whether a person is "accused" and is to be surrendered "for the purpose of being prosecuted" will require an intense focus on the facts in each case."

Aikens LJ then asked in what circumstances (if any) should the court consider extrinsic evidence when it appears to the court that it is an "accusation case", but there is an issue between the parties on whether the purpose of the surrender sought by the EAW is, in fact, for the purpose of the requested person being prosecuted as an accused person, as opposed to being for the purpose of questioning with a view to possible prosecution thereafter at [20 – 38]. He summarised the authorities, as follows, at [38]:

"(3) […] the court will look at the wording of the warrant as a whole to decide whether the warrant indicates, unequivocally, that the purpose of the warrant is for the purpose of the requested person being prosecuted for the offences identified.

(4) The court must construe the words in section 2(3)(a) and (b) in a "cosmopolitan" sense and not just in terms of the stages of English criminal procedure.

[…]

(6) Only if the wording of the warrant is equivocal should the court consider examining extrinsic evidence to decide on the purpose of the warrant. But it should not look at extrinsic material to introduce a possible doubt as to the purpose where it is...