The Public Prosecutor's Office of Landshut, Germany v Harjit Singh

JurisdictionEngland & Wales
JudgeLord Justice Hickinbottom,Mrs Justice Simler
Judgment Date17 January 2019
Neutral Citation[2019] EWHC 62 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date17 January 2019
Docket NumberCase No: CO/3110/2018

[2019] EWHC 62 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Hickinbottom

and

Mrs Justice Simler

Case No: CO/3110/2018

Between:
The Public Prosecutor's Office of Landshut, Germany
Appellant
and
Harjit Singh
Respondent

Gemma Lindfield (instructed by Crown Prosecution Service Extradition Unit) for the Appellant

Catherine Brown (instructed by Tuckers Solicitors LLP) for the Respondent

Hearing date: 17 January 2019

Approved Judgment

Lord Justice Hickinbottom

Introduction

1

This is an appeal under section 28 of the Extradition Act 2003 (“the 2003 Act”) against the decision of District Judge Baraitser of 2 August 2018 to discharge the Respondent from an accusation European Arrest Warrant (“EAW”) issued by the Appellant German Judicial Authority on 5 February 2014 and certified by the National Crime Agency (“the NCA”) on 24 March 2017. The Appellant seeks the Respondent's extradition to face an apparently single but multi-limbed charge, categorised in the EAW as “kidnapping, illegal restraint and hostage-taking” and “racketeering and extortion”.

2

Germany is a category 1 territory, and thus Part 1 of the 2003 Act applies. All statutory references in this judgment are to the 2003 Act.

3

The District Judge discharged the Respondent under section 21A(4) because she concluded that, for the purposes of section 21A(1)(b), his extradition would be incompatible with article 8 of the European Convention on Human Rights (“article 8”). The Appellant contends that that conclusion was wrong.

The Facts

4

The Respondent was born in Jalandhar, Punjab Province, India. In 1992, when he was about 27 years old, he left India, travelling through Kenya to Germany where he obtained permission to work and was employed in various farms and factories.

5

The charge arises out of the following alleged incident which occurred whilst he was living in Germany. At about 9.15pm on 25 May 1993, the Respondent and a man called Vinat Singh went to the apartment of the complainant, Schramm Pawanteep, where, without any justification, they demanded DM6000. The Respondent's wife and one-year old son (“X”) were present in the flat. The Respondent threatened that, if Mr Pawanteep did not pay the money, he would kill X. He went into X's room where he took X out of his cot and, taking a knife from his coat, he aimed it at the child's chest. Mr Pawanteep tried to free his son, who fell on the floor. There, Vinat Singh knelt over X, and held the knife to his chest, whilst the Respondent hit Mr Pawanteep. The child's mother managed to grab X, and take him from the room. The Respondent took a sabre off the wall and aimed a blow at the complainant, which Mr Pawanteep managed to parry centimetres from his head. The Respondent then repeatedly hit Mr Pawanteep with a stick, leaving him with bruising.

6

The Respondent was interviewed by the authorities on the day of the offence, and again on 28 July 1993. He was eventually charged as follows:

“Taking hostage in coincidence with attempted serious blackmail and use of force or threats against life or limb with dangerous bodily harm, each offence committed in joint perpetration, according to sections 239(b)(1), 253(1), 255, 250(1) No 2 and No 3, 232(1), 223(1), 223a(1) of the German Criminal Code…”.

7

Two applications that the Respondent be remanded in custody were refused. On 31 May 1994, at a hearing at which he was legally represented, he pleaded not guilty. The trial was listed for 9 June 1994. The Respondent was aware of the date, but he did not attend. The hearing appears to have been adjourned until 13 June 1994, when again he did not attend and a domestic warrant for his arrest and pre-trial detention was issued. On 20 June 1994, a national alert was issued. On 1 July 1994, an international alert was issued. There was no response to either alert.

8

Meanwhile, knowing that he faced the charge in Germany, the Respondent travelled to France and from there, covertly in the back of a lorry, to the United Kingdom where he arrived in about June 1994. On his own account, he left Germany permanently and had no intention of returning; and the District Judge found that he had left Germany in order to evade justice. The Respondent does not now seek to contend otherwise.

9

After his arrival in the United Kingdom, the Respondent applied for asylum. He was granted indefinite leave to remain, and, in about 2013, he was granted British citizenship. He has been married for 15 years, and has three children aged between eight and thirteen, all born in the United Kingdom. They have lived at the same address in rented property for the last 14 years. The Respondent works as a cleaner, morning and evening, six days a week – not on Saturdays – for a net monthly wage of £650. He has had his current employment for four years. His wife does not work. She occasionally suffers from depression. The Respondent himself has high cholesterol and blood pressure, and diabetes, which are controlled by medication. He has one minor unrelated conviction in this country.

10

On 27 January 2014, at the Appellant's request, a new domestic arrest warrant was issued by the German authorities, because parts of the offence had become statute barred; and, on 5 February 2014, an EAW was issued. At that time the German authorities still did not know the place or even the country where the Respondent was living. We understand that the EAW was circulated in German, and an English translation was not provided. The Respondent's name and date of birth were different in the EAW from those in his formal British documents such as his passport. However, the NCA certified that warrant on 24 March 2017.

11

The Respondent was arrested in the United Kingdom on 10 April 2018. The circumstances of the arrest are described by the arresting police officer, PC John Evans. He was made aware that the Respondent was travelling to Birmingham Airport from Delhi, and that he was wanted under an EAW. It is uncertain how and when the person with the passport in a different name and with a different birthday was identified with the subject of the EAW. In any event, the Respondent was arrested, and identified as the subject of the EAW by his fingerprints. He was remanded on conditional bail. On 1 June 2018, a defence application to adjourn the hearing was refused; and, on 11 July 2018, the extradition hearing took place before District Judge Baraitser.

12

On 2 August 2018, as I have described, the District Judge gave judgment discharging the Respondent on the basis that surrender would be incompatible with the rights of the Respondent and his family members under article 8.

13

She rejected all other grounds of appeal, including the submission that surrender of the Respondent was barred under section 14 because it would be unjust or oppressive to extradite him by reason of the passage of time. In doing so, she applied the well-established proposition derived from such cases as Kakis v Government of Cyprus [1978] 1 WLR 779, Gomes and Goodyer v Government of Trinidad and Tobago [2009] UKHL 21; [2009] 1 WLR 1038 and, more recently, Wisniewski v Poland [2016] EWHC 386 (Admin) that, where a person has knowingly places himself beyond the reach of legal process, he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. As Lord Diplock said in Kakis (at page 783A-C):

“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them.

As respects delay which is not brought about by the acts of the accused himself, however, the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude.”

In this case, as I have already indicated, the District Judge, applying Kakis, found that the Respondent had deliberately placed himself beyond the reaches of the Appellant Judicial Authority in order to evade justice – and was thus a fugitive – and, for the purposes of section 14, there were no exceptional circumstances such that delay would render extradition “oppressive”. That is not the subject of any appeal.

14

An appeal was lodged by the Appellant on 7 August 2018, on several interrelated grounds. It is said that, in circumstances in which the Respondent was a fugitive and the German authorities did not know where he was living, the District Judge erred in finding that there had been “culpable” delay in issuing and certifying the EAW. She also erred in failing to address the matters raised by Lord Thomas of Cwmgiedd LCJ in, or perform the proportionality balancing exercise as required by, Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin); [2016] 1 WLR 551 notably at [9]–[15]. Reflecting that failure, it was submitted that she wrongly found that the delay in issuing and certifying the EAW “overrides” the otherwise strong public interest in extraditing those charged or convicted of criminal offences.

15

Permission to appeal was granted by King J on 5 November 2018, with the observation that there is “clearly an arguable issue on the way that the judge approached the...

To continue reading

Request your trial
5 cases
  • General Prosecutors Office of Latvia and Marius Ancevskis
    • United Kingdom
    • Queen's Bench Division (Northern Ireland)
    • 10 December 2021
    ...was considered in Konecny: Kortas v Poland [2017] EWHC 1356 (Admin), T v Poland [2017] EWHC 1978 (Admin) and Germany v Singh [2019] EWHC 62 (Admin). Each of these cases (it is said) concerned fugitives who were precluded from relying upon section 14 by reason of the decisions in Kakis and G......
  • Harry Clarke v The High Court of Ireland
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 6 July 2020
    ...In those circumstances, Ms Brown submitted, the Court needed to conduct the balancing exercise afresh, relying on Germany v Singh [2019] EWHC 62 (Admin) at paragraph 25, and Zorzi v Attorney General Appeal Court of Paris (France) [2019] EWHC 2062 (Admin) at paragraph 38 Ms Brown submitted......
  • Virgiliu Ionut Popa v President of the Tulcea Court, Romania
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 18 June 2020
    ...me that it is not for this court readily to take the view that delay is culpable or unexplained. He referred me to Germany v Singh [2019] EWHC 62 (Admin) at [35]; La Torre v Republic of Italy [2007] EWHC 1370 (Admin) at [37] per Laws LJ; to Richards LJ's observation at [13] in Zielinski v......
  • Daniel Lamaj v Court of Appeal of Ancona (Italy)
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 17 June 2021
    ...delay in the Article 8 balancing exercise, Mr Hoskins draws attention to the decision of the Divisional Court in Public Prosecutor's Office of Landshut Germany v. Harjit Singh [2019] EWHC 62 (Admin). In that case Hickinbottom LJ said at [41]: “The district judge appears to have considered ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT