Woodbridge v The Head Attorney General of the District of Moenchengladbach, Germany [2016] EWHC 2428 (Admin)

Case No CO/3246/2015[2016] EWHC 2428 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05 October 2016
Before
LORD JUSTICE BEANMRS JUSTICE CARR
Between
STEVEN WOODBRIDGEAppellantTHE HEAD ATTORNEY GENERAL OF THE DISTRICT OF MOENCHENGLADBACH, GERMANYRespondent
Ben Cooper (instructed by Neumans) for AppellantDaniel Sternberg (instructed by CPS Extradition Unit) for RespondentHearing Hearing dates: 22 April and 28 September 2016
JudgmentLord Justice Bean :
[1]This is the judgment of the Court, to which we have both contributed.[2]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.[3]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.[4]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 18th 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.[5]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.[6]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.[7]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.[8]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.[9]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 19th April 2016 and a medical report of 21st 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?

[10]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.[11]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.

(b) ”

[12]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.”
[13]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 clear on the face of the warrant itself.”
[14]The application of these principles to a German EAW was considered by Mitting J in Ali v Public Prosecutor of Bavaria, Germany [2014]EWCA 3881 (Admin), where he said:- “11. In my judgment, the matter should be approached as one of principle. The German judicial authorities can be taken to understand the fundamental principles underlying the Framework Decision. That decision is intended to facilitate the easy and speedy extradition of individuals from one Member State to another for two and only two purposes: to prosecute them and to require them to serve the unexpired term of a sentence of imprisonment imposed upon them, hence respectively the shorthand "accusation and conviction warrants". … 13. [As] Aikens LJ explained in Asztaslos v Hungary [2011] 1 WLR 252 at paragraph 28, the warrant must be construed as a whole. A glance at this warrant will demonstrate that it is not a conviction warrant. Therefore, what the German authorities are certifying is that it is an accusation warrant. It is a warrant issued to secure the surrender of the Appellant for the purpose of conducting a criminal prosecution against him.14. Its terms are consistent with that. The Appellant is described in the original German text as a "beschuldigter" which, in commonly used dictionaries, is translated as "accused", for which "defendant" is a perfectly acceptable synonym. Both words signify that the individual thus named is the subject of a process of criminal prosecution in a civil law state.15. Secondly, the original German description of the underlying type of warrant is "untersuchungshaftbefehl". That is a composite German word. "Haftbefehl" means warrant. "Untersuchung" can be translated into English as "examination, scrutiny or investigation".16. Anyone reading this warrant in, as my Lord put it, a "cosmopolitan" sense and not with the narrow focus of an English lawyer would immediately appreciate that this is a warrant issued at the start of a civil law criminal process in which the investigating judge or judge of the first instance is commencing the prosecution against the individual. In civil law systems, the defendant or accused is engaged at the earliest stage in the process and is invited to put his arguments and, if he chooses, evidence for consideration by the investigating judge.17. For an English court to apply a narrow English construction of a single phrase used in what is described on its face as an accusation warrant "investigation arrest warrant" as indicating that the German authorities might only require the extradition of the Appellant to be questioned as a suspect would be, in my judgment, to assume a degree of ignorance on the part of the German judicial authorities, or even of bad faith, which is simply not warranted.18. If the German judicial authority had been unwise enough to use the process for the purpose of questioning a suspect, they would, no doubt, have included in the German text the German word for suspect, "Verdächtige". Accordingly, I have no doubt at all that this warrant is properly issued for the purpose of conducting a criminal prosecution against the Appellant.”[15]We agree with what Mitting J said. Ground 1 has no substance. It had been fully argued by Mr Cooper on behalf of the appellant at the first hearing before us, but at the second hearing he conceded that in the light of the decision in Puceviciene (see below) it had become unsustainable.

Ground 2: has a decision been made to charge the appellant?

[16]Section 12A of the Act provides:- “(1) A person's extradition to a category 1 territory is barred by reason of absence of prosecution decision if (and only if)—(a) it appears to the appropriate judge that there are reasonable grounds for believing that— (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person's absence from the category 1 territory is not the sole reason for that failure, and(b) those representing the category 1 territory do not prove that— (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure. 2 In this section “to charge” and “to try”, in relation to a person and an extradition offence, mean— (a) to charge the person with the offence in the category 1 territory, and (b) to try the person for the offence in the category 1 territory.” (a) it appears to the appropriate judge that there are reasonable grounds for believing that— (i) the competent authorities in the category 1 territory have not made a decision to charge or have not made a decision to try (or have made neither of those decisions), and (ii) the person's absence from the category 1 territory is not the sole reason for that failure, and (b) those representing the category 1 territory do not prove that— (i) the competent authorities in the category 1 territory have made a decision to charge and a decision to try, or (ii) in a case where one of those decisions has not been made (or neither of them has been made), the person's absence from the category 1 territory is the sole reason for that failure. (a) to charge the person with the offence in the category 1 territory, and (b) to try the person for the offence in the category 1 territory.”[17]Mr Cooper submitted originally that there were reasonable grounds to believe that a decision to charge Mr Woodbridge had not been made; that in reality he was only wanted for questioning; and the reason for that was not solely due to his absence from Germany. He relied on observations by this court in Kandola and Droma v Germany [2015] 1 WLR 5097 and the description of German criminal procedure set out in the judgment of Aikens LJ at [36] to [38]. Mr Cooper submitted that it was clear from this decision that in order for a case to proceed to trial, German law and criminal procedure requires that the investigation and interrogation is complete; and that in this case the investigation was incomplete at the time the EAW was issued and at the time of the extradition hearing. It must follow, he argued, that no decision had been made by the competent authority that Mr Woodbridge should stand trial; and any purported intention by the public prosecutor that he should stand trial is irrelevant for the purposes of deciding whether ‘the competent authority has made a decision to try’.[18]At the time of the hearing before us on 22April 2016 a Divisional Court comprising Lord Thomas of Cwmgiedd CJ, Burnett LJ and Ouseley J had reserved judgment in three cases (Puceviciene v Lithuanian Judicial Authority; Conrath v German Judicial Authority; Savov v Czech Judicial Authority) which raised the issue of the correct interpretation of section 12A. We therefore reserved judgment ourselves in order to give the parties the opportunity to make further submissions on this ground following the handing down of the decision in those three cases. We subsequently decided to hold a further oral hearing in view of the evolving medical evidence concerning both the Appellant and his wife.[19]The decision in Puceviciene, Conrath andSavov was handed down on 22 July 2016: [2016] EWHC 1862 (Admin). At [54] the court said:
“We see no reason why any formality is required in relation to the making of a decision, as a prosecutor is entitled to make a decision to try a defendant before implementing any formal steps necessary, unless the procedural law of the requesting state prevents informality. Furthermore, in our view, a decision to try is nonetheless a decision to try even if it is conditional or subject to review. ….There will, for example, be a decision to try, even if it is taken subject to the completion, after extradition, of formal stages, such as an interview and subject to those stages not causing a reversal of the decision already made even informally, to charge and try.”
[20]In the light of this decision, we regard the point of law argued in ground 2 as unsustainable. Again, Mr Cooper realistically conceded as much at the second oral hearing before us.[21]We regard it as clear from the terms of the EAW in the present case that a bill of indictment has been issued by the German authorities and that a decision has been made at least to charge and try Mr Woodbridge. We agree with District Judge Snow, who said in paragraphs 16 to 18 of his ruling of 2nd July 2015:- “16. The EAW sets out [on] page 2 that it has been issued by a competent legal authority for the purposes of conducting a criminal prosecution or executing a custodial sentence (the latter cannot apply). It describes in Box E that “this warrant relates to 19 criminal indictments”. It gives the date the offence took place, it gives the scene of the crime, it states that during the “crime spree”, and describes the level of the accused as “perpetrator”. It describes the classification of the offences as “Professional commission of the crime.17. I approach the contents of the EAW on the basis of mutual trust and respect. The domestic warrant was issued on one ground. I am concerned with the reasons why the RP’s surrender is sought. The wording of Box E is quite clear.18. Applying the burden set out at paragraph 30 of [Kandola] the RP has not established that the EAW is unclear as to whether there are reasonable grounds for believing that the JA have not made a decision to charge or try the RP.”[22]We therefore reject Ground 2. Ground 4: Does Mr Woodbridge’s current state of health make it unjust or oppressive for him to be extradited?[23]Section 25 of the Act provides:- “(1) This section applies if at any time in the extradition hearing it appears to the judge that the condition in subsection (2) is satisfied. (2) The condition is that the physical or mental condition of the person in respect of whom the Part 1 warrant is issued is such that it would be unjust or oppressive to extradite him. (3) The judge must-(a) order the person’s discharge, or(b) adjourn the extradition hearing until it appears to him that the condition in subsection (2) is no longer satisfied.”[24]District Judge Snow found that Mr Woodbridge:- “suffers from poor health including hypertension, hyperlipidaemia, hiatus hernia and constant diarrhoea (the cause is currently being investigated). He also suffers from atrial fibrillation and is due to have a scan on 9th July which is likely to lead to an urgent operation. The RP accepts that he would receive appropriate treatment for his health in Germany but asserts that the treatment would be inferior to the treatment he would receive from the UK doctors who know of and are currently treating him.”[25]It is not entirely clear whether submissions to the District Judge based on the appellant’s own state of health were made in support of an argument under section 25, article 8 or both. In any event, on the evidence before him, the District Judge’s decision was clearly right. But matters have moved on. Although section 25 refers to a decision under the section being made “at any time in the extradition hearing” it is common ground that we should take into account reliable up to date evidence as to Mr Woodbridge’s physical condition rather than considering the position as it was in July 2015.[26]The appellant was admitted to the Harefield Hospital for the purposes of an ablation procedure on 1st March 2016. His blood INR levels increased to a point where the treating consultant decided to postpone the operation, which was then rescheduled for 31st May 2016. A medical report of Dr David Gareth Jones, consultant cardiologist, dated 20th April 2016 states:- “From a cardiac perspective I expect he would be fit to travel in the short term… the anticipated recovery period after ablation is variable according to the amount of ablation required and whether there is swelling or discomfort and the femoral or venous access sites. In the absence of significant haematoma he should be mobile between 24-48 hours and would be able to drive after 48 hours. However we recommend avoiding significant cardiovascular exertion in the 6-8 week post ablation recovery period while cardiac inflammation is settling. Most patients however can return to work within 1-2 weeks after the procedure.”[27]Mr Cooper did not argue in his oral submissions on 22 April that once Mr Woodbridge had had the ablation procedure, section 25 would create a bar to his extradition. He was plainly right to not to press the point.[28]Before the adjourned hearing further medical evidence was provided to us in relation to Mr Woodbridge’s medical condition. In summary, he has now undergone the ablation procedure successfully. However, recently he has been suffering from fatigue, daytime somnolence, dizziness on standing and fleeting chest discomfort with a short dull ache which is not exercise-related. It is not clear whether these symptoms relate to a cardiac issue. Further investigations are in hand and further surgery is a possibility if all non-cardiac related causes are ruled out. His bowel condition remains undiagnosed.[29]As the District Judge found, Mr Woodbridge does suffer from poor health but it falls well short in our view of satisfying section 25(2) or of requiring a further adjournment under section 25(3)(b). There is no suggestion that appropriate medical treatment would not be available in Germany. In truth, and certainly by the time of the second oral hearing before us, it was no part of the case for Mr Woodbridge that his health alone would justify his discharge from extradition either by reference to section 25 or article 8 grounds. Rather his medical position is to be considered as a factor in combination with his wife’s state of health, which became the central plank of his appeal, and to which we now turn. Ground 3: In view of Mrs Woodbridge’s medical condition and the family circumstances, would extradition contravene ECHR Article 8?[30]As indicated above, Mrs Woodbridge has been diagnosed recently with and treated for cancer. The medical report of Dr Thanvi, consultant clinical oncologist, written the day before the first oral hearing in this court, stated:- “Mrs Woodbridge has a self detected right breast cancer which was found to be metastatic in her lymph nodes and axilla. We started her on neo adjuvant chemotherapy which is the treatment given prior to surgery. Unfortunately this proved quite toxic with her requiring frequent admissions to hospital and feeling quite unwell. The chemotherapy however had the desirable effect on the tumour and we interrupted the course and [she] went for surgery on the 21st March 2016. Unfortunately the wound has still not healed and there is a large cavity at the site of the operation which requires frequent visits to the hospital for dressing etc and she may require another little operation in the coming days. This is a very difficult period for the Woodbridge household and in particular Mr Woodbridge who is always present with his wife and has to take care of the young children. Moving forward, once the wound has healed, which may take a few weeks, it is planned for further chemotherapy and of course then there will be a course of radiotherapy which at my conservative estimate will be another six months if not longer and during this period I do not think Mrs Woodbridge will be able to look after her children in the absence of her husband. It has to be reiterated that my treatment intention is cure but given the advanced nature of the local disease at presentation, we will have to watch her very closely in the coming months and years.”[31]Mr Cooper submitted at the hearing before us on 22April that (if we were not minded to order his client’s discharge on any other ground) we should either allow the appeal and order Mr Woodbridge’s discharge on Article 8 grounds or adjourn the appeal until Mrs Woodbridge had completed the courses of treatment identified by Dr Thanvi.[32]In the event, because of the need to await the decision in Puceviciene as well as to consider arguments based on the current state of health of the Woodbridges, we listed the case for further oral hearing on 28 September 2016 and gave directions for the service of up to date evidence. On the eve of that hearing a report on Mrs Woodbridge was submitted, again from Dr Thanvi.[33]Dr Thanvi confirms that Mrs Woodbridge has had node positive triple negative breast cancer which has been treated with chemotherapy, surgery and more chemotherapy. She has now completed her chemotherapy and started her radiotherapy which she expects to complete by 6th/7th October 2016. Dr Thanvi expects her to recover from the radiotherapy within six weeks of its completion. It is not possible to estimate the precise prognosis but with node sensitivity and the triple negative nature there is a risk of recurrence in the future. As a result of the surgery, Mrs Woodbridge has also developed lymphoedema in her right arm in particular, which causes her pain and discomfort and restricts her ability to do housework, for example. Dr Thanvi states that Mr Woodbridge’s absence from the household would impact both physically and emotionally on Mrs Woodbridge.[34]We refer also to the evidence before us relating to the general family situation, and in particular to Mr and Mrs Woodbridge’s children. Mr and Mrs Woodbridge have 12 year old twin daughters, one of whom is diabetic and sometimes becomes unwell at school. Additionally, Mrs Woodbridge’s father died last year and her 81 year old mother is now seriously ill with advanced myeloid leukaemia. Her daughters have been struggling to cope with recent family events. Mr Woodbridge helps with their care and running the household in circumstances where Mrs Woodbridge is exhausted or in pain. There are no friends or family who could provide the amount of help and support that Mr Woodbridge does. He is the pillar of the family.[35]Mr Sternberg submitted that we should dismiss this appeal, alternatively, if we took the view that extradition today was disproportionate but that the medical position was in a state of flux, that we should not allow the appeal but rather adjourn it for a short further period to allow Mrs Woodbridge’s treatment to complete and then review the situation again. Mr Cooper, as his primary argument, objected to such a course of action; the stage has been reached, he submitted, where finality is required. But he submitted that, if we were against his argument that the appeal should be allowed outright, we should adjourn at least until Mrs Woodbridge has had two months to recover from the course of radiotherapy due to finish on 7 October.[36]Whilst we do not doubt that there is jurisdiction to grant a further adjournment, we consider that this stage of the process has gone on for long enough. The decision of the district judge was promulgated more than a year ago. Mrs Woodbridge has had her surgery and chemotherapy and her radiotherapy is due to finish this week. There will then be a further recovery period, but for the foreseeable future the position is resolved. There will, sadly, always be a risk of recurrence. We should grapple with the merits of the appeal now.[37]We note at this stage that it was accepted by Mr Cooper at the hearing on 22 April that if the only bar to extradition is incompatibility with Article 8 rights because of the present state of Mrs Woodbridge’s health, it would be open to the German authorities to issue a further EAW if her health improves. We agree with the decision of this court (Burnett LJ and Cranston J) in Auzins v Latvia [2016] EWHC 802 (Admin)) and in particular with paragraphs [40] and [42] where Burnett LJ said:- “… assessments of a person’s physical or mental condition for the purposes of section 25 of the 2003 Act involve a judgment at the time of the proceedings, albeit with evidence of prognosis. Any conclusion reached may be confounded by changes in the medical condition over time, regardless of whether the ability of the receiving state to provide appropriate treatment is also in issue. … It is impossible to contend that the EAW scheme contemplates that a requesting state can seek the surrender of an individual only once from one Member State by reference to circumstances prevailing at the time it takes to enforce the EAW, and is precluded from doing so later in the same or a different Member State if circumstances change.” He observed at [46] that factual matters relied upon by a requested person successfully to resist extradition on Article 8 grounds may change, and that in such a case it is not an abuse of process for the requesting state to return a second time to seek the surrender of the requested person.[38]The two leading cases on the application of Article 8 to extradition proceedings are Norris v Government of the United States of America (No. 2) [2010] 2 AC 487 and HH v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 AC 338; in Polish Judicial Authority v Celinski [2016] 1 WLR 551 Lord Thomas CJ said that it is not helpful to the proper conduct of extradition proceedings for the practice of citing any other authorities on the application of Article 8 to continue. The effect of Norris was conveniently summarised by Baroness Hale of Richmond at [8] of HH as follows:- “(1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”[39]At [130] of HH

Lord Judge CJ commented to similar effect :

“…Accordingly, while for generations making allowances for the interests of dependent children,….the need to impose appropriate sentences in accordance with established, and now statutory provisions, is unchanged. As Hughes LJ has recently explained in R v Boakye [2013] 1 Cr App R (S) 6, para 32 : “The position of children in a defendant’s family may indeed be relevant, but it will be rare that their interests can prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.”
This observation mirrors observations to the same effect in Norris in the context of extradition.” “The position of children in a defendant’s family may indeed be relevant, but it will be rare that their interests can prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so.”[40]The facts of F-K v Polish Judicial Authority, one of the appeals before the Supreme Court in HH are instructive. Mr and Mrs F-K had five children aged 21, 17, 13, 8 and 3 years 10 months. The mother’s extradition to Poland was sought on an EAW alleging offences of dishonesty which Lady Hale described as being “of no great gravity”: the total amounts involved appear to have been of the order of £10,000, or slightly more depending on the value of a car which was the subject of one of the charges. The Supreme Court unanimously allowed Mrs F-K’s appeal, but it is important to note their reasoning. Lady Hale said at [44] to [48]:- “44 If we were only concerned with the three oldest children, things would be different. They would be very unhappy at the loss of their mother, and might suffer some educational setbacks as a result, but they would be able to get on with their lives with the help of their father, who is determined to keep the family together. They would be able to recall their mother while she was away, even if they were only able to see her rarely, and they would be able to look forward to her coming back. As Dr Armstrong points out, the consequences for the two youngest would be far more severe. E, in particular, would be deprived of her primary attachment figure while she is still under the age of four. Such losses can have lasting effects upon a child's development and it does not appear that her father would have the psychological resources to fill the gap or that help would be available from the social or other services to support the family. The eight-year-old would also suffer from the loss of her mother, might well blame herself for it, and would find it hard to look forward to her return. It is not an abuse of language to describe the effects upon these two children as exceptionally severe. …45. Against that, there is the constant factor of the need to honour our obligations under the Framework Decision. But as these are subject to the need to respect fundamental rights, they do not absolve us of the duty to weigh the competing interests as required by article 8. The various offences for which extradition is sought are by no means trivial. But they are offences of dishonesty which can properly be described as "of no great gravity". Furthermore, we can take notice of the fact that no prosecutorial discretion is exercised by the Polish authorities when deciding whether or not to apply for the issue of an EAW, no matter how comparatively minor the offences, how much time has elapsed since they were committed, and how respectable the life which the offender has led since then. The European Commission has criticised the lack of a proportionality check in some states before issuing an EAW: it is not suggested that an article 8 proportionality check is required, but that there should be some relationship of proportionality between the offending and the consequences.46. The delay in this case has been considerable. There was some delay between the offences themselves and the bringing of the Polish prosecutions; there was further delay between the appellant's failure to attend court in Poland and the issue of the domestic arrest warrants; even further delay between the issue of the domestic arrest warrants and the requests for the EAWs; and again between the issue of the EAWs and the appellant's arrest in March 2010. While the district judge did find that the appellant fled Poland in order to avoid prosecution, and thus was not entitled to rely upon passage of time as a bar for the purpose of section 14 of the 2003 Act, the overall length of the delay is relevant to the article 8 question. Whatever the reasons, it does not suggest any urgency about bringing the appellant to justice, which is also some indication of the importance attached to her offending.47. During that lapse of time, the appellant and her family have made a new, useful and blameless life for themselves in this country. Two more children have been born. D must have been conceived approximately eleven months after the family arrived here and E more than four years after that. At neither time did the parents have any reason to believe that the Polish authorities were seeking the mother's return. Whatever the relevance of deliberately conceiving children in order to strengthen the case against extradition (which does arise in the next case) it does not arise on the facts of this case.48. In all the circumstances, the public interest in returning the appellant to face trial and sentence upon the charges in these two warrants is not such as to justify the inevitable severe harm to the interests of the two youngest children in doing so. I would allow this appeal.” [emphasis added][41]We appreciate that Mrs Woodbridge has been undergoing treatment for cancer, whereas Mr F-K, the fugitive’s husband in the Supreme Court case, was in good health; and we also appreciate that one of the Woodbridges’ 12 year old twin daughters is diabetic. Nevertheless there are, to our minds, three substantial differences between the F-K case and the present one which are adverse to Mr Cooper’s submissions.[42]Firstly, the offences alleged against Mrs F-K were far less serious than those alleged against Mr Woodbridge. The amount involved in the present case is of the order of 200 times greater. Secondly, the Polish authorities in the F-K case had been guilty of considerable delay. Thirdly, the Supreme Court attached particular importance to the likely effect on the two youngest children and consequences of the youngest child being “deprived of her primary attachment figure while she is still under the age of four”. This was what led to Lady Hale saying that it was not an abuse of language to describe the effects of extradition of their mother upon the two youngest children as exceptionally severe. The twin daughters here are of secondary school age and, whilst not seeking to minimise the difficulties involved, can care for each other and, to an extent, for their mother.[43]If Mr Woodbridge is extradited to Germany while his wife is still undergoing treatment for cancer or recovering from that treatment and its side-effects, that will undoubtedly cause hardship and distress both to her and to their 12 year old twins. Mr Woodbridge is also himself not in good health. But we do not think it can be said that the consequences for them will be exceptionally severe.[44]The interference with the private and family lives of Mr and Mrs Woodbridge and their children that would be caused by Mr Woodbridge’s removal to Germany is not in our judgment disproportionate. Given the gravity of the alleged offending in particular, this is not one of those rare cases where the interests of either Mrs Woodbridge or the children of the family outweigh the “constant and weighty public interest in extradition” emphasised in both Norris and HH.[45]For all these reasons we dismiss the appeal.