Volle v Public Prosecutor's Office, Kempten, Germany [2015] EWHC 1484 (Admin)

Case No CO/266/2015[2015] EWHC 1484 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 May 2015
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
ECKHARD VOLLEAppellantPUBLIC PROSECUTOR’S OFFICE, KEMPTEN, GERMANYRespondent
In the matter of an appeal against extradition pursuant to s.26 of the Extradition Act 2003
Mr Malcolm Hawkes (instructed by Lansbury Worthington) for AppellantMr Peter Caldwell (instructed by The Crown Prosecution Service) for RespondentHearing Hearing dates: 27 April 2015
JudgmentMr Justice Supperstone :
[1]This is an appeal by Dr Eckhard Volle under section 26 of the Extradition Act 2003 (“EA”) against an order made in the Westminster Magistrates Court on 14 January 2015 for his extradition to Germany, which is a Part 1 country. The Appellant is the subject of an accusation European Arrest Warrant (“EAW”) issued by the Respondent Judicial Authority (“JA”) by Senior Public Prosecutor Schatz of the Bavaria Public Prosecutor’s Office, Germany on 27 May 2014, alleging six offences of fraud. It was certified by the National Crime Agency on 23 June 2014.[2]The Appellant’s appeal against the decision was originally listed on 16 March 2015, but it was adjourned by consent. It was expected that during the period of the adjournment the Munich Higher Regional Court would rule on an application made on behalf of the Appellant challenging the issue of the EAW. That application failed and the request for extradition is maintained.[3]On 27 April 2015, at the adjourned hearing of the appeal, I heard submissions from Mr Malcolm Hawkes on behalf of the Appellant and Mr Peter Caldwell on behalf of the Respondent. At the conclusion of the hearing I reserved judgment and gave the parties permission to file further submissions and evidence in relation to the Appellant’s contention that section 21A(3)(c) of the EA, inserted by section 159 of the Anti-Social Behaviour, Crime and Policing Act 2014, requires less coercive measures than the extradition of the Appellant to be adopted in the present case. On 5 May 2015 I received further submissions and material on behalf of the Appellant and a further skeleton argument on behalf of the Respondent as to the availability of less coercive measures, including the European Supervision Order. The Judge’s Findings[4]The Appellant, a German national, is by profession a paediatric and neuro-radiologist. All six allegations date back to 2007 when he was living and working at his home address in Rieden. He commissioned various building works to enable him to offer MRI scans on a private basis. It is alleged that he dishonestly failed to meet payments of the full amounts due to various parties. The amounts involved exceed €100,000 in total. It is the Appellant’s case that he has not committed any criminal offences and that the amounts owed are civil debts.[5]The Appellant has been aware of potential criminal proceedings since 2009 when he received a letter from the office of the Bavaria Public Prosecutor. He responded to that letter and nominated a lawyer to represent him but he heard nothing thereafter and assumed the matter had been resolved. He has never sought to conceal his whereabouts from the JA.[6]The Appellant is separated from his wife but he still plays an active part in the lives of his younger sons who are aged 10 and 12 years respectively. They are at schools in the UK and he financially supports the family. Mr Julien Ott, the lawyer instructed to represent the Appellant’s interests in Germany, has been in contact with the JA in an attempt to secure agreement to a less coercive way of securing his return to Germany. The JA considers that the appropriate way to secure the Appellant’s attendance at court in Germany is through the execution of the EAW.[7]The judge was satisfied that the EAW is valid. She was also satisfied that the Appellant is not a classic fugitive. The judge stated “It is apparent that the Prosecuting Authority in Germany was not made aware of the allegations until 2009 by which time [he] was in the UK. I accept that he left Germany in 2008 for financial reasons and that he submitted a Document dated 7/10/08 notifying the German authorities of his address in the UK.”[8]The Appellant and his family moved home in October 2009. There is no evidence to contradict his assertion that he notified the Public Prosecutor’s Office of his new address. The judge found that “Given the history of failures to record information in this case” she accepted the Appellant’s evidence in this regard and was satisfied “that any subsequent inability to communicate with him was due to administrative incompetence”. However the judge found that the Appellant “should not have merely assumed that the proceedings he knew about would have come to an end in 2010 and that it was incumbent on him to establish the position through the lawyer he had nominated in October 2009”. The delay between 2007 and 2009 is not inordinate in the context of allegations of fraud. With regard to delay subsequent to 2009 the judge made the following finding:
“…is as a result of a combination of administrative incompetence on the part of the JA and the RP’s [Requested Person’s] own failure to ensure that matters he was aware of were resolved. Given the RP’s apparent unwillingness to face up to potential criminal allegations in Germany I do not find culpable delay on the part of the JA – incompetence contributed to the delay but such delay could have been avoided had the RP been proactive”
. In the circumstances of this case his assertion that it would be both unjust and oppressive as a result of the passage of time is without merit. He had adequate legal representation in Germany and he should have been aware that proceedings were ongoing and that the list of allegations had increased. … Furthermore there is nothing to satisfy me that it would be oppressive to order extradition as a result of any change in the RP’s circumstances. What changes there have been are unrelated to the passage of time. He has demonstrated that he is in a position to counter the allegations of Fraud. Any hardship he is likely to encounter will amount to no more than that inherent in the extradition process. The RP’s challenge under section 14 of the EA fails.” The RP’s challenge under section 14 of the EA fails.”[9]The judge then addressed her mind to section 20 and section 21A of the EA and considered whether an order to extradite Mr Volle would amount to a disproportionate interference with his rights and those of his family under Article 8 ECHR. In this regard the judge made the following material findings:
“The JA has made it clear that it does not intend to take measures that would be less coercive as it is of the view that none exist. This is as a result of the RP’s failure to respond to and address the pending prosecution. It is the RP’s own case that he made no attempt to establish the status of the proceedings he has known about since 2009 but rather buried his head in the sand. Mr Ott’s view that it would be possible simply to summons the RP is contradicted by the JA and on the evidence I have no alternative but to find that there is no possibility of less coercive measures being taken. In general terms there is no evidence to satisfy me to the requisite standard that extradition would result in anything other than the hardship that is sadly inherent in the extradition process. The RP will be separated from his sons and there may well be financial implications for the family but the boys are living with their mother and there is no evidence to satisfy me that they would be left destitute in the event of extradition. There is a weighty public interest in ensuring that this country honours its Treaty obligations by ensuring that those who are alleged to have been involved in criminality in other jurisdictions do not evade prosecution. In all the circumstances of this case I am not persuaded that extradition would be incompatible with the rights of the RP and his family under ECHR and his challenge under sections 20 and 21A fail.”

The grounds of appeal

[10]Mr Hawkes pursued two grounds of appeal before me: i) That the Appellant’s extradition would be oppressive due to the passage of time: EA, s.14 (ground 1); and ii) That the learned judge erred when she found that the Appellant’s extradition would not constitute a disproportionate interference with his and his family’s right to family life pursuant to s.21A of the EA and Article 8 ECHR (ground 2). The Parties’ Submissions and Discussion Ground 1: passage of time

The Parties’ Submissions and Discussion

[11]Mr Hawkes submits that there has been culpable, inexcusable delay in bringing matters to this stage which is not the fault of the Appellant. There will be further delay before any trial can take place during which period the Appellant will unnecessarily be remanded in custody for at least six months, post extradition, pending the outcome of the investigation. He is not a fugitive and he has been readily discoverable upon any reasonably diligent enquiry throughout the relevant period which is from the last date of the offence (17 December 2007) to the date of the extradition hearing, including the appeal which is over seven years.[12]The judge, Mr Hawkes contends, should also have had regard to the civil, contractual nature of the dispute which has led to the extradition request. The Appellant was advised that as a private individual a three-year time limit applied to any creditors’ petition for bankruptcy and that as three years have elapsed the debts were discharged.[13]Mr Hawkes submits that were the Appellant to be extradited he would face complete financial ruin and his family would suffer adversely and unnecessarily.[14]In his oral submissions Mr Hawkes did not pursue the contention that it would be unjust to order the Appellant’s extradition. His submission was that it would be oppressive to do so.[15]I reject this submission. The judge was entitled to find on the evidence before her that the JA’s failure to communicate with the Appellant subsequent to 2009 was as a result of a combination of administrative incompetence on the part of the JA and the Appellant’s own failure to be proactive, which he should have been in the circumstances. In so finding the judge rejected any allegation that the delay on the part of the JA had been culpable.[16]Further I accept Mr Caldwell’s submission that the fact that the Appellant may be refused bail on his return to Germany is not a factor that can be taken into account when considering passage of time under s.14. I also agree with Mr Caldwell that the breakdown of the Appellant’s marriage is not a change in circumstances consequent on the delay by the JA and accordingly it also is not a factor that can be taken into account under s.14. The vulnerability of his children is relevant when considering the Article 8 ECHR issue under ground 2.[17]In his Note dated 5 May 2015 (at paragraph 10) Mr Hawkes submits that had translated documents which the Appellant has produced since the hearing on 27 April 2015, in particular the letter of Frau Eger of 13 October 2009, been before the judge, she would have decided the issue of the JA’s culpability for the delay differently. However, in my view no good reason has been given as to why this evidence should now be admitted as fresh evidence, following the fully contested hearing on 13 May 2014.[18]Mr Hawkes submits that in the light of the letter of 13 October 2009 from Frau Eger the Appellant was entitled to rely upon notice from the Prosecutor that the allegations against him were placed on hold pending the outcome of an investigation into his claim that he had been the victim of embezzlement. However the Appellant has not previously in these proceedings suggested he relied upon any such representation. The contentions that he now makes in his further proof of evidence dated 5 May 2015 could have been advanced before the judge at the extradition hearing. In any event I am not satisfied that this evidence leads to any different conclusion on the issue of JA’s culpability.[19]In my judgment the judge was entitled to find on the evidence that the Appellant’s extradition would not be oppressive. Ground 2: s.21A of the EA, proportionality and Article 8 ECHR.[20]Section 21A of the EA provides, so far as material, as follows:
“21A ‘Person not convicted: human rights and proportionality (1) If the judge is required to proceed under this section (by virtue of section 11), the judge must decide both of the following questions in respect of the extradition of the person (‘D’)— (a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; (b) whether the extradition would be disproportionate. (2) In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it is appropriate to do so); but the judge must not take any other matters into account. (3) These are the specified matters relating to proportionality— (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant authorities taking measures that would be less coercive than the extradition of D. (4) The judge must order D’s discharge if the judge makes one or both of these decisions— (a) that the extradition would not be compatible with the Convention rights; (b) that the extradition would be disproportionate. (5) The judge must order D to be extradited to the category 1 territory in which the warrant was issued if the judge makes both of these decisions— (a) that the extradition would be compatible with the Convention rights; (b) that the extradition would not be disproportionate.” (a) whether the extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998; (b) whether the extradition would be disproportionate. (a) the seriousness of the conduct alleged to constitute the extradition offence; (b) the likely penalty that would be imposed if D was found guilty of the extradition offence; (c) the possibility of the relevant authorities taking measures that would be less coercive than the extradition of D. (a) that the extradition would not be compatible with the Convention rights; (b) that the extradition would be disproportionate. (a) that the extradition would be compatible with the Convention rights; (b) that the extradition would not be disproportionate.”
[21]There is no basis for interfering with the judge’s findings under s.21A(3)(a) (seriousness of the conduct alleged) and (b) (the likely penalty on conviction). It is only s.21A(3)(c) (less coercive measures) that is in issue.[22]In summary Mr Hawkes submits that there are in the present case ready alternatives to extradition. Service of a summons or use of a European Supervision Order, he suggests, would secure the Appellant’s attendance for questioning and/or any trial without the severe consequences inherent in extradition. Accordingly his extradition is disproportionate, having regard in particular to his Article 8 rights and those of his children.[23]The use of a European Supervision Order would permit the Appellant to remain at liberty pending the date for any trial, if indeed one ever takes place, as opposed to a period of six months in custody. He has been on bail, subject to conditions, since his arrest in 2013. There is no good reason, Mr Hawkes contends, to think that he would not comply with the terms of any order imposed; and, if he did not do so, a fresh EAW could be issued to which he would be unlikely to have any answer.[24]Mr Hawkes submits in his Note (at paragraph 24) that “the failure of the German authorities to request an ESO is highly concerning”. He suggests that the correspondence the Appellant now relies upon in translation, and in particular the letter of Frau Eger of 13 October 2009 “underscores” how the failure properly to consider the less coercive measures available render the Appellant’s extradition both oppressive and a disproportionate interference with his, and his family’s Article 8 rights (Note, para 12).[25]Mr Caldwell submits that the decision whether or not to admit an accused to supervision rather than to remand him or her in custody is for the issuing judicial authority to make. In Miraszewski v District Court in Torun, Poland [2014] EWHC 4261 (Admin) Pitchford LJ stated at paragraph 41:
“It would be a reasonable assumption in most cases that the requesting state has, pursuant to its obligations under Article 5(3) ECHR, already considered the taking of less coercive measures. I accept the submission made by Mr Summers QC that there is an evidential burden on the requested person to identify less coercive measures that would be appropriate in the circumstances.”
[26]I accept Mr Caldwell’s submission that, having regard to the history of this case, it may be inferred that at the time that the EAW was issued the JA decided not to request consideration of an ESO. Indeed the judge noted that the JA made it clear that it considers that the appropriate way to secure the Appellant’s appearance at court in Germany is through the execution of the EAW (see para 9 above). In my judgment there is no less coercive measure in the form of an ESO available.[27]I can discern no error of law in the judge’s finding that the Appellant’s extradition would not constitute a disproportionate interference with his and his family’s Article 8 right to family life. The judge had regard to the principles in Norris v USA [2010] UKSC 9 and HH v Italy and others [2012] UKSC 25, and made findings of fact that on the evidence she was entitled to make, in particular in relation to the Appellant’s sons (see para 9 above).

Conclusion

[28]For the reasons I have given this appeal is dismissed.

Cited in 1 later judgment