“Content and Form of European Arrest Warrant” and, in particular, to Article 8(1)(e) which provides that it must contain: “a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person....”
“... in other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place.”
“How far does the warrant have to go? It would be unwise to attempt a prescriptive answer to this question and I do not do so. But I am in no doubt that the warrant in this case did not go far enough. In the first charge, the warrant gave no details of the identity of the victims of the fraud, the number and size of the advance payments (except that in aggregate they exceeded€50,000 ), or the nature of the fraudulent misrepresentation. Is it alleged that the appellant pretended to sell single family houses when he was in fact offering something else? Or is it that he pretended to sell single family houses when he was not offering anything for sale? A similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works. In the second charge there are similar difficulties. What was the foreign property? How much money was unjustifiably taken? In answering the charge of obscurity, Ms Ezekiel submits that the whole of this charge must be read together, and that it contains only one allegation and not two, as suggested by Mr Summers. It seems to me that this is by no means clear. But what is clear is that the allegation is put on the basis that there was an obtaining of unjustified monies, dishonestly; or alternatively that the appellant “had intended to take it.”
“The first offence of obtaining money by deception is to be found at paragraphs 1 and 2 and at the last 11 lines of paragraph 7 commencing “it must be stated” and the inference that can be drawn from this is that this conduct amounts to what is commonly known as an advance fee fraud. The second offence within charge 1 is obtaining services by deception, which is to be found at paragraph 3 where a precise list of sub-contractors or losers is identified and thus, the same inference as above is to be drawn. The second charge is breach of trust or embezzlement, which appears at paragraphs 4 and 8. The modus operandi is set out at the first relevant paragraph, the evidence in the second, albeit aspects of that paragraph are impenetrable. I find that the words “or wanted so to do” do not create alternative offences.”
“A person’s extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission) or (b) become unlawfully at large (where he is alleged to have been convicted of it)……...”
“My Lords, the passage of time to be considered is the time that passed between the date of the offence on April 5, 1973, and the date of the hearing in the Divisional Court on December 15, 1977, for that is the first occasion on which this ground for resisting extradition can be raised by the accused. So one must look at the complete chronology of events that I have summarised above and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cyprus if it had taken place with ordinary promptitude, has made it unjust or oppressive that he should be sent back to Cyprus to stand his trial now.” “Unjust”
“In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether “it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence”
“Mr Von Der Pahlen asserts that the documents from the building sites are the important documents, more so than any of the books, accounts etc in the possession of the requesting judicial authority. The owner of the offices from where Dragon Bau operated declared that the offices were empty. Mr Sikora had apparently left everything unsorted in a cupboard used for all sorts of purposes. Mrs Prudovic, however, took over as director and she appears still to be in existence now and available for the trial. I accept Miss Cumberland’s submissions that in the absence of any specific or particular defence being set out these missing documents are not so significant as to render any trial in Austria unfair. The defendant’s memory of events, on the contrary, seems most clear.”
“The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence not a precondition of the statutory exercise” went on to say that: “The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights. In the present case there are the rights of family members other than the appellant to be considered. The District Judge put it this way at para 18 of her judgement: “In the event of the defendant being removed, she and her two younger sons, it is argued, would find it difficult to cope and the boys may have to move to more local schools. Possibly the family would have to return to Germany where they have family. I accept that part of the defendant’s evidence without reservation in which he sets out the remarkable achievements of his four children in UK educational establishments. In addition to the domestic problems he appears to be without work, blaming the breakdown of his companies upon local bad publicity that flowed from his earlier extradition proceedings. However, I bear in mind that the defendant has been in the United Kingdom for only six years and was, in 2002, prepared to disrupt the family life and education of his four sons in Germany in order to uproot them and bring them to Wales. I do not except that the current circumstances fall within those of Ashley Riddle, Cookeson or Hunt. For those reasons I reject the section 14 submissions and order the extradition of the defendant to Austria.” “The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person’s right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee’s article 8 rights. In the present case there are the rights of family members other than the appellant to be considered. The District Judge put it this way at para 18 of her judgement: “In the event of the defendant being removed, she and her two younger sons, it is argued, would find it difficult to cope and the boys may have to move to more local schools. Possibly the family would have to return to Germany where they have family. I accept that part of the defendant’s evidence without reservation in which he sets out the remarkable achievements of his four children in UK educational establishments. In addition to the domestic problems he appears to be without work, blaming the breakdown of his companies upon local bad publicity that flowed from his earlier extradition proceedings. However, I bear in mind that the defendant has been in the United Kingdom for only six years and was, in 2002, prepared to disrupt the family life and education of his four sons in Germany in order to uproot them and bring them to Wales. I do not except that the current circumstances fall within those of Ashley Riddle, Cookeson or Hunt. For those reasons I reject the section 14 submissions and order the extradition of the defendant to Austria.”