Arain, R (on the application of) v Government of Germany & Anor [2006] EWHC 1702 (Admin)

Case No CO/8827/2005[2006] EWHC 1702 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 15th March 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE MOSES
MR JUSTICE STANLEY BURNTON
Between
THE QUEEN ON THE APPLICATION OFClaimantMOHAMMED YOUSEF ARAINClaimant-v-
Between
GOVERNMENT OF GERMANYDefendantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JAMES HINES appeared for CLAIMANTMISS CLAIR DOBBIN appeared for FIRST DEFENDANTMR HUGO KEITH appeared for SECOND DEFENDANT
J U D G M E N TWednesday, 15th March 2006

LORD JUSTICE MOSES:

[1]This is an appeal against the order of District Judge Evans on 23rd August 2005 pursuant to section 92 of the Extradition Act 2003 ("the 2003 Act") to send this applicant's case for extradition to the Federal Republic of Germany for his decision as to whether the appellant should be extradited. Following representations from the appellant, the Secretary of State ordered that the appellant should be so extradited on 25th October 2005. This appellant appeals against both those decisions. Accordingly, he appeals both under section 103 and 108 of the 2003 Act.[2]The facts which gave rise to the request for extradition from the Federal Republic of Germany were that it was alleged that this appellant, with others, had been involved in VAT fraud in Germany. According to the request, he was strongly suspected of being involved in an organisation formed in the territory of the UK since 2001 for the purpose of obtaining input tax reimbursements. He was strongly suspected of contributing substantially to the success of a carousel fraud by using a German company and evading VAT in Germany. The allegation continued by contending that in pursuit of that purpose he had filed materially incorrect Value Added Tax returns for 2002 for the benefit of that German company. It further alleged that those offences of filing incorrect Value Added Tax returns were punishable under 369(1), 370, 370(a) and section 25(2) of the German Tax Code and section 25(2) of the German Criminal Code. It was further alleged that he was strongly suspected of having formed a foreign organisation, the purpose of which is to commit crimes or to have been involved in such organisation as a member, contrary to section 129, 129b of the German Criminal Code.[3]The German Government in pursuing the case for the purposes of the hearing before the District Judge at Bow Street Magistrates' Court set out what has become well-known as a form of fraud of VAT by the import and export of mobile phones within the European Union, invoicing either missing or hijacked trailers for the purposes of claiming input tax but evading the payment of output tax. Very substantial sums in Euros were said to have been the product of such fraud.[4]The District Judge had, amongst other things, to be satisfied of a number of matters pursuant to section 78 of the 2003 Act. Under section 78(4)(b) he was required to decide whether the offences specified in the request were extradition offences. Extradition offences are defined in section 137. For the purposes of this appeal, it is unnecessary to set out all the terms of section 137.

(b) :

"'The conduct' would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom."
[5]There was no dispute about any of the other matters set out in section 137. On 29th June 2005 the District Judge ruled that all the offences specified in the request were extradition offences for the purposes of section 78(4)(b). Accordingly, he proceeded correctly to consider under section 87 whether the applicant's extradition would violate his rights enshrined under Article 8 of the European Convention. That issue was argued on behalf of the appellant on 4th August 2005. The District Judge made no ruling on those submissions for the purposes of section 87, nor did he give his reasons supporting his conclusion under section 78 until 23rd August 2005. On that day he ruled, relevantly, as follows:
"One of the charges Mr Arain faces in Germany is forming a (foreign) organisation the purpose of which is to commit crimes or to have been involved with such organisation as a member and such conduct is criminalised in Germany by section 129 and 129b of the German Criminal Code attracting a sentence of up to 5 years' imprisonment. There is no comparable UK offence for such conduct. That charge is not an extradition offence within the meaning of section 137. He should not face such a charge if returned to Germany."
[6]The District Judge then went on to consider the submissions relating to Article 8. He said:
"The second issue is whether Mr Arain's extradition would be compatible with his Convention rights within the meaning of the Human Rights Act 1998 [section 87 of the 2003 Act]. It is submitted that his extradition represents a breach of Article 8. Article 8 is engaged by the act of extradition. Article 8 provides a qualified right, a fair balance needs to be struck between Mr Arain's right to respect for his private and family life and the right of a public authority (in this instance the Bow Street Magistrates' Court) to interfere with this right where such interference is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ... Again, the submissions for Mr Arain are set out in the skeleton and the government has responded. I accept the government's submissions and reject those of Mr Arain."
[7]The District Judge went on to consider Mr Arain's circumstances and, applying the decision in Launder, to which I shall turn later, concluded that only in exceptional circumstances would the extradition of the person who faced trial on charges of serious offences be unjustified or disproportionate. He found no such exceptional circumstances in this case.[8]The first ground of appeal is that the District Judge should have permitted the appellant to argue his Article 8 point for the purposes of section 87 of the 2003 Act in the light of the ruling that part of the conduct on which the extradition request was based would not have constituted an offence in any part of the United Kingdom and thus the offence specified was not an extradition offence. The argument continues that if the District Judge had permitted submissions to be made in the light of his change of heart, the District Judge would have concluded that extradition for all the offences was disproportionate and would have ordered his discharge pursuant to section 87(2).[9]To assess that submission it is necessary to consider the appellant's case under Article 8. He gave evidence before the District Judge and we have the benefit of a written statement, on which, no doubt, his oral evidence was based. This pointed out that he was born and raised in Pakistan and was 45 years old. His wife, Shahida, was a Pakistani national and they had been married under Pakistani law. He had four children, ranging between the ages of teenagers and the age of 7. His wife and he had friends in the Rochdale area of Greater Manchester where they lived. The eldest daughter was at college in Bury and all the four children were integrated well and their English was improving. He pointed out that his family was completely financially dependent upon him, and his wife had difficulties in speaking English and could not drive. He further described his earlier history, it not being apparent quite how long he has lived in this country, pointing out that he had lived in Germany, had married there, although his marriage to this wife, Shahida, in Pakistan persisted and he had a son there. He is a German national with a German passport. He pointed out that extradition would have a devastating effect on his family in the United Kingdom and it would be likely that his family would be repatriated to Pakistan. They would not be able, he asserts, to visit him in Germany.[10]The District Judge applied the correct test as to whether it would be disproportionate to extradite this appellant, having regard to his family life in the United Kingdom. It had been argued before the District Judge that extradition would not be in accordance with the law within the autonomous Convention meaning, nor necessary in a democratic society for the prevention of disorder or crime. Neither of those arguments were pursued before us, but the proportionality argument, in the limited way I have described, was pursued. It was not suggested, as I have said, that the District Judge misinterpreted the correct approach to proportionality. Indeed, it followed that which was summarised by Laws LJ in Bermingham [2006] EWHC 200 at paragraph 118. Extradition would only be disproportionate in exceptional cases.[11]As Laws LJ says:
"Where proposed extradition is properly constituted according to the domestic law of the sending State and the relevant bilateral treaty, and its execution is resisted on Article 8 grounds, a wholly exceptional case would in my judgment have to be shown to justify a finding that the extradition would on the particular facts be disproportionate to its legitimate aim."
[12]It is, in my view, impossible to see how the fact that the appellant would be extradited for conduct disclosing a large number of offences if that conduct had been committed in the United Kingdom would be proportionate but disproportionate because part of that conduct did not disclose an offence within the United Kingdom. In short, the change of mind by the District Judge between June and August could have had no impact whatever on the propriety of the decision that it was not disproportionate to extradite this appellant. It made no difference whatever to that decision. The offences related to conduct in Germany in respect of which it was alleged that there were substantial losers. There were no proceedings nor charges pending in the United Kingdom. In those circumstances, it is impossible to see how the fact that part of the conduct alleged did not amount to an offence in the United Kingdom had any relevance whatever to the breaking of the bond between this appellant and his family. It shall be borne in mind that both under section 104 and 109 of the 2003 Act, pursuant to the Extradition 2003 Multiple Offences Order 2003/3150, this submission would only avail the appellant if he could establish that it would be disproportionate to extradite him in relation to each and every offence. If it was not disproportionate to extradite in relation to all the offences then it would not avail this appellant to establish it might have been disproportionate to extradite him in relation to one.[13]The second ground advanced on behalf of this appellant by Mr Hines is said to be the inadequacy of arrangements in this particular case in relation to this appellant to protect him against being charged in Germany for the offence under paragraph 129 and 129b of the German Criminal Code, namely forming an organisation, the purpose of which was to commit a crime. The argument runs that the offences attached to a schedule to which the Secretary of State referred in his order for extradition dated 23rd October 2005 might lead the Federal Republic of Germany to think that the offence under 129 was one in respect of which he had been extradited.[14]In order to understand the argument it is necessary to consider what Mr Hines said about it in writing. He says that the schedule is extremely widely drawn and contains 23 charges. He continues by noting that if the appellant is extradited, the German court will note the breadth of the English courts and note that none of the English charges were discharged by the court or by the Secretary of State.[15]He goes on to submit that:
"In order to to be an effective speciality arrangement with the category 2 territory (here Germany) the schedule attached to the order ought to indicate the offences in respect of which Mr Arain is being extradited by reference to the offences specified in the request, namely the German offences."
[16]It seems to be argued that unless the Secretary of State made clear that this appellant would not be extradited in respect of an offence under the German Criminal Code paragraph 129 and 129b, the Secretary of State could not be satisfied that the Federal Republic of Germany would not try him in respect of that offence. The argument is mounted for the purposes of section 95 of the 2003 Act which states:
"(1) the Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements within the category 2 territory" and continues under sub-section 3: "
There are speciality arrangements with a category 2 territory if and only if under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if (a) the offences falling within sub-section (4) ... "[17]Sub-section (4) reads:
"The offences are (a) the offence in respect of which the person is extradited."
[18]The argument advanced by Mr Hines is open to a number of fatal objections. Firstly, by Article 14 of the European Convention on Extradition (Paris 13 XII 1957), to which both the Federal Republic and European Kingdom are signatories:
"Rule of Speciality Article 14-1 A person who has been extradited shall not be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order for any offence committed prior to his surrender other than that for which he was extradited."
[19]There is no basis for saying that the Federal Republic of Germany would not comply with that obligation. True it is that it is for this court to be satisfied that there will be such compliance (see, for example, Ouseley J in Welsh and Thresher v Secretary of State for the Home Department and the Government of the USA [2006] EWHC 156 (Admin) at para 135 and Silber J in R(Allison) v Secretary of State for the Home Department [2001] EWHC Admin 506 at paras 22-24.) There is not one shred of evidence that the Federal Republic will not comply with its treaty obligations. Secondly, the Secretary of State has confirmed that a copy of the District Judge's judgment will be sent. That makes it clear that the conduct identified in relation to the request for extradition referring to offences under 129 and 129b of the German Criminal Code are not offences under the United Kingdom law (see paragraph 5 of the ruling). That was confirmed in a letter dated 25th October 2005 from the Home Office. No evidence has been advanced to suggest that that will be ignored.[20]The third fallacy in the criticism advanced relates to the District Judge's obligations for the purposes of section 78(4)(b) and section 137(2)(b) of the 2003 Act. That obligation is to focus on the conduct described by the requesting State and to determine whether, if that conduct was committed in the United Kingdom, it would under the law of the relevant part of the United Kingdom be punishable for 12 months or more. The limit of the District Judge's obligation and the limitations of his ruling is as to whether such conduct would amount to an offence in the law of the United Kingdom had it been committed here. It is not for the English court or for the Secretary of State to say for what this appellant should be prosecuted under German law once he has been extradited. That will be a matter for the law of that country and for the arrangements into which that country has been entered. All the English court or the Secretary of State can do is to satisfy itself that that law or those arrangements would not be honoured for the purposes of this court's obligations under section 95. That was always the position under the previous extradition law.[21]The purpose of the schedule was to identify to the appellant what English offences would be said to be committed had the conduct been committed within this jurisdiction. (See, for example, Woolf LJ, as he then was, in Re Naghdi [1990] 1 WLR 317, 322B and C, and Lloyd LJ, as he then was, in R v Governor of Pentonville Prison ex parte Osman [1990] 1 WLR 277, 302G, in which he points out that the Magistrate was not concerned whether an offence is made out under the relevant foreign law.) There is no basis for suggesting in this case that the schedule which was attached to the Secretary of State's order would be misleading. That schedule does no more than express the limits of that which the District Judge and the Secretary of State were obliged to do, namely to identify the offences under English law to which the appellant's conduct would give rise if the conduct had been committed in the United Kingdom. That schedule does not purport, and should not purport, to identify those offences for which the appellant may be prosecuted under German law in compliance with the speciality rule. Compliance with that rule is a matter for the Federal Republic of Germany authorities and its courts. All, as I have said, that an English court may do is to consider whether there is a law or arrangements exist which protect the speciality rule and whether, if advanced, there is cogent evidence in a particular case that any law or arrangement will not be followed.[22]Fourthly, the list of offences does not, in any event, suggest that the conduct of forming an organisation for a criminal purpose would give rise to a criminal offence in England. Accordingly, I reject the suggestion that the Secretary of State should have been satisfied that there were no speciality arrangements within the meaning of section 95(1) and (3) of the 2003 Act. I would accordingly, for my part, dismiss these appeals.

MR JUSTICE STANLEY BURNTON: I agree.

[24]MR KEITH: My Lord, arising out of that decision of the court, the Secretary of State would ask for an order on costs. Your Lordships both now have, happily, a copy of the entire Act. Could your Lordships turn to section 133. Like many provisions in the Act, I am afraid the provision is rather obscure, but essentially it deals with costs where extradition is ordered. If your Lordship's turn to 133(1)(b), where the High Court dismisses an appeal under section 103 or 108, 133(3) deals with the position if your Lordship dismisses the appeal and refuses to discharge but sends him back to the District Judge.

LORD JUSTICE MOSES: We have not.

[26]MR KEITH: Which you have not. 133(4) is the sub-section which applies in this case, which is that the High Court may make such orders as it considers just and reasonable --

LORD JUSTICE MOSES: You are asking for costs.

[28]MR KEITH: My Lord, we make a modest request for £500 to reflect the work done for the Secretary of State in contesting what your Lordships have described as a fallacious argument.[29]MISS DOBBIN: My Lord, may I similarly make an application for costs under the same provision.

LORD JUSTICE MOSES: Why should you get two sets of costs?

[31]MISS DOBBIN: It so entitles the requesting State. There were separate issues. It is a modest application for £600.

LORD JUSTICE MOSES: Where does it say that both sides can get costs? It says "just and reasonable".

[33]MISS DOBBIN: My Lord, both parties --

LORD JUSTICE MOSES: You are asking for 600.

[35]MISS DOBBIN: Yes.

LORD JUSTICE MOSES: Thank you very much.

[37]MR HINES: It is a matter for your Lordships.

LORD JUSTICE MOSES: You do not take any point about them both applying.

[39]MR HINES: I agree that it comes within your Lordships' discretion to grant both.

LORD JUSTICE MOSES: It is not like an order for judicial review where you normally only get one set.

[41]MR HINES: Sadly not. I agree it is a matter for your Lordships.

LORD JUSTICE MOSES: Why could not one counsel appear for both Secretary of State and the requesting State? You do not seem to be climbing onto my bandwagon!

[43]MR HINES: I did lodge two appeals.

LORD JUSTICE MOSES: Of course you did. That is very fair.

[45]MR HINES: If your Lordships were to draw the analogy from the judicial review, then I know your Lordships will grant one set of costs. If not, your Lordships will grant two.

LORD JUSTICE MOSES: I know both sides had to be here, but what I am only jibbing at is one counsel could have appeared for Germany and the Secretary of State; their interests were identical, or does it look bad?

[47]MR HINES: Particularly where I had limited the issues in the light of the Bermingham decision.

LORD JUSTICE MOSES: They always do give two sets. There are always two counsel. I am just jibbing at that.

[49]MR KEITH: My Lord, there are always two parties.

MR JUSTICE STANLEY BURNTON: Three parties.

LORD JUSTICE MOSES: So it looks better.

[52]MR KEITH: I am always assisted by hearing additional argument from Miss Dobbin, but the truthful answer is the two functions are different and the parties have different roles and in fact --

LORD JUSTICE MOSES: I mean, he is on your side, it is just me being difficult.

[54]MR KEITH: -- to have those separate interests represented by the other party. The Secretary of State owes his primary duty to the common law provisions of the Act, but they are not necessarily synonymous.

LORD JUSTICE MOSES:

[55]We will order two sets of costs, one in £500, one in £600. You are cheaper than Miss Dobbin! That is that point. Then you have got a point on the certificate.[56]MR HINES: My Lord, the point on the certificate emanates from the argument advanced below and to be advanced in this court under section 137 of the Act. It is the extradition offence.

LORD JUSTICE MOSES: If Bermingham is wrongly decided, if Bermingham goes to the Lords -- have they got leave yet?

[58]MR HINES: No.

LORD JUSTICE MOSES: They have just applied. If either there or in the House of Lords, they get leave, and if they succeed in the House of Lords --

[60]MR HINES: That is right, but there is, in fact, another point in this case which does not appear in either Cando Armas or, indeed, in Bermingham. Can I explain it by reference to one page of the judgment of Bermingham and a brief look at the facts in this case. Can I take your Lordships to paragraph 81 in the decision of this court in Bermingham where the analysis of extradition offences is set out. To summarise, the prosecution in that case relied on 137(2), the same as in this case. The critical concept observed is the defendant's conduct.[61]Can I then invite your Lordships to observe under paragraph 82(a) that in the House of Lords case of Cando Armas a part of the conduct against Miss Armas took place in Belgium, part in the United Kingdom. The argument is about whether it needed totally to be in the territory of the requesting State, the answer being that it was enough if some was in and some out. In paragraph 83, in this case, namely Bermingham, likewise, part of the conduct alleged by the prosecution took place in the category 2 territory, part in the United Kingdom. There is then an analysis of Lord Hope's judgment and the interpretation of the word "in" being conduct in the category 2 territory or outside the category 2 territory. The significant factor in the Cando Armas case and in the Bermingham case is that there is part conduct by the defendants in the category 2 territory and, indeed, in the United Kingdom.[62]The position in this case is, in fact, different. When one examines the allegation made against Mr Arain for submitting these VAT returns in Germany, it is not alleged that he submitted them. In other words, the conduct is not allegedly his conduct, but rather the conduct of his ex-wife through the company. It is clear that the allegation made is that he was acting jointly with his wife, he being in the United Kingdom at all times. So whilst it is true in this case that the conduct constituting the offences specified in the request happened in the category 2 territory, it is not the conduct at all of Mr Arain. So the point is, again, different.[63]Section 137 requires it to be the conduct of the defendant. In the first words, the section applies in relation to the conduct "of a person" and, as your Lordships have just seen, that has been interpreted throughout by the House of Lords and, indeed, in Bermingham as being the defendant's conduct. So the question then becomes for your Lordships' consideration a certified question.

LORD JUSTICE MOSES: I do not understand why this was not raised in front of the District Judge and in front of us.

[65]MR HINES: I concede that, as it stands, the decision may appear to be binding on this court.

LORD JUSTICE MOSES: Which decision?

MR JUSTICE STANLEY BURNTON: You have just distinguished Bermingham, have you not?

LORD JUSTICE MOSES: You have just said that Bermingham does not apply because his conduct was partly in the requesting State category 2 territory and part in the UK. Here you are saying you cannot extradite to Germany because his conduct was all within the United Kingdom. There was no conduct in Germany. That seems to be a good point for the District Judge had you thought of it at the time.

[69]MR HINES: My Lord, the law as it stood at the time I was addressing the District Judge was -- I did, in fact, raise it before the District Judge, is the answer. It is in the skeleton argument before the District Judge.

LORD JUSTICE MOSES: And he rejected it.

[71]MR HINES: He rejected it.

LORD JUSTICE MOSES: And then you did not appeal against that ground.

[73]MR HINES: I did appeal against that one, but I conceded in the light of the Bermingham decision and the Cando Armas.

LORD JUSTICE MOSES: So what you want to do is withdraw that concession?

[75]MR HINES: My Lords, in my submission, I took the view that the proper approach in the light of those decisions was to seek certification from your Lordships should the House of Lords wish to review this. Your Lordship seems to be suggesting that I should have maintained my argument.

LORD JUSTICE MOSES: Yes. Anyway, what is the certificate?

[77]MR HINES: What I was asking for is the question being, where all of the conduct constituted the offence for which extradition was requested -- I drafted it out for your Lordships.

MR JUSTICE STANLEY BURNTON: Let us have a look at it. (Handed).

LORD JUSTICE MOSES: Thank you very much.

[80]MR JUSTICE STANLEY BURNTON: My recollection is that in the Divisional Court in Cando Armas we left open the question of whether conduct occurred in a State if it had consequences in that State.[81]MR HINES: Yes. The argument --

MR JUSTICE STANLEY BURNTON: We did, did we not?

[83]MR HINES: Yes.[84]MR JUSTICE STANLEY BURNTON: It does seem a bit absurd that if someone in England sends a VAT form to Germany and asks for payment of millions of pounds which the Germans then remit to a bank even, say, in Germany, that is not conduct.

LORD JUSTICE MOSES: Can we just look at this? (Pause.)

[86]MR HINES: (2) was a second proposed question which was in accordance with the law --

LORD JUSTICE MOSES: But that is the one that Laws LJ rejected in Bermingham. Is it the subject of any appeal to the House of Lords?

[88]MR HINES: Not in this form. There is a question about Article 8 in which he is considering certification.

LORD JUSTICE MOSES: Thank you very much. Do you want to say anything about this? One of you.

[90]MR KEITH: May I?

LORD JUSTICE MOSES: Yes, Mr Keith.

[92]MR KEITH: Miss Dobbin brings to my attention that my Lord and Stanley Burnton J rightly observed this was a point raised in Cando Armas. The House of Lords resolved it, and that can be seen at paragraph 35 of the decision of their Lordships.

LORD JUSTICE MOSES: Where is that?

[94]MR KEITH: That is in Miss Dobbin's bundle.

LORD JUSTICE MOSES: Page?

[96]MISS DOBBIN: 1094, the second part.

LORD JUSTICE MOSES: This is Cando Armas?

[98]MR KEITH: Cando Armas, right at the top of page 1094, tab 4:
"... the test of whether conduct occurs in the category 1 territory is satisfied for the purposes of section 65(3) so long as its effects were intentionally felt there ..."
[99]But there is a second answer, which is this: As my Lords rightly observed, the whole point is that the conduct occurred in both states. In Cando Armas the conduct occurred in Belgium. The issue was, was it right in section 65 when the conduct was also alleged to have occurred in the United Kingdom? So both cases are completely distinguishable on their facts and have no application to the argument that my learned friend raised in paragraph 1 of his proposed certified questions.

LORD JUSTICE MOSES: Which he has not pursued.

[101]MR KEITH: Which he has not pursued. He raised it with the District Judge but did not raise it with your Lordships. It would be absolutely improper use of the certification process --

LORD JUSTICE MOSES: It is impossible because we have given no decision on that.

[103]MR KEITH: Indeed, and their Lordships could not possibly deal with such a point, assuming leave had been granted.

MR JUSTICE STANLEY BURNTON: The other members of the House of Lords agreed with Lord Hope.

[105]MR KEITH: They did. The second question, in the case of Bermingham, in which I, in fact, represented the Attorney, when this issue was specifically raised, Article 8 arose in two ways. One is, was there a system, or should there be a system, for determining under the rubric of Article 8 the question of appropriate forum? Even if there was not, was it a breach of Article 8 to return the Bermingham three to the United States of America? There is a certified question in relation to Article 8 generally, but this question, "Should there be a system for determining the appropriate forum?" was raised and rejected by Laws LJ --

LORD JUSTICE MOSES: Where is it rejected?

[107]MR KEITH: I think, from memory, it starts at paragraph 112.

MR JUSTICE STANLEY BURNTON: In Bermingham?

[109]MR KEITH: In Bermingham. "... I turn to Article 8, where the real burden of Mr Jones' human rights case lies. Here there is no doubt that the proposed extradition would constitute an interference with the defendants' rights under Article 8. ... The only issue remaining is whether it would be a proportionate interference."[110]At paragraph 118 he addresses again the question of proportionality and makes the point set out by their Lordships in Ullah, obligation in touch with operation means that in all sorts of cases extradition will be proportionate.[111]At 121, he agreed with the submission that the District Judge should have under the general rule of Article 8 regard to where the defendant might have been prosecuted because he said that that might tip the balance in favour of the conclusion that extradition abroad would amount to disproportionate interference with Article 8 rights. But in the first part of the judgment, the judicial review, which was based solely upon the notion that there should be a general right to a forum non conveniens argument --[112]MR JUSTICE STANLEY BURNTON: At the moment it appears to me that the second question here is absolutely hopeless because the question of appropriate forum may go to proportionality, but it certainly cannot go to whether extradition is in accordance with the law.[113]MR KEITH: No, I did not address your Lordship on that, but I can say, because it is not a point that was raised before your Lordship in argument, but what I can say is if it is suggested to you that there is a live point here that you must keep alive, it has not been certified.

LORD JUSTICE MOSES: Yes, thank you. Anything you want to say?

[115]MR HINES: That is because a certification has not concluded.

LORD JUSTICE MOSES: Anyway, those are the points you want to certify.

[117]MR HINES: My Lords, yes. The judgment of Lord Bingham, such as it was, does of course appear to bind this court in the first instance, but the fact is that he was looking at conduct in both the requesting and the requested State, both here and there. It is really on that basis that I did not pursue the argument but asked for certification, as I do, in the light of the facts of this case.

LORD JUSTICE MOSES: Thank you very much.

[119]No, we will not certify either of these cases. The first question, namely whether because the VAT invoices were submitted by this appellant's former wife and he at all times acted within the United Kingdom precludes him from being extradited for an extradition offence, was answered conclusively in the House of Lords by Lord Bingham and there is no basis for us to certify that. The second was not argued before us. It seems to have been disposed of, insofar as there was any argument, by Laws LJ in Bermingham and, to my mind, is completely meaningless anyway.

MR JUSTICE STANLEY BURNTON: I entirely agree.