Pillar-Neumann v Public Prosecutor's Office of Klagenfurt [2017] EWHC 3371 (Admin)

[2017] EWHC 3371 (Admin)Case No CO/3090/2017IN THE HIGH COURT OF JUSTICETHE ADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/12/2017
Before
LORD JUSTICE HAMBLENMR JUSTICE SWEENEY
Between
Marianne Pillar-NeumannAppellantPublic Prosecutor's Office of KlagenfurtRespondent
Abbas Lakha QC and Rebecca Hadgett (instructed by Edward Hayes LLP) for AppellantSaoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for RespondentHearing Hearing date: 12 December 2017
Approved Judgment

Introduction

[1]This is an appeal against the decision of District Judge Qureshi dated 26 June 2017 sitting in the Westminster Magistrates’ Court whereby he ordered the Appellant’s extradition to Austria pursuant to section 26 of the Extradition Act 2003 (“the Act”).[2]The Appellant’s extradition was ordered pursuant to a European Arrest Warrant issued by the Public Prosecutor’s Office of Klagenfurt, Austria on 19 June 2009 (“the EAW”). The EAW seeks the return of the Appellant in relation to five offences said to amount to “professional and severe fraud” and “embezzlement”.[3]The EAW was certified by the National Crime Agency (“NCA”) on 30 September 2016; the Appellant was arrested on 20 January 2017; the final hearing took place on 11 May 2017 and judgment was given on 26 June 2017.

Factual and Procedural Background

[4]The EAW alleges that the Appellant and her husband committed “at least” five offences, of fraud and embezzlement, between November 1997 and 2001. It is said that:
“I) They had the intention to get rich at the expense of Gertruda Josephine Derksen by deceiving her at occasions whose dates are not known more closely; it was their intention to cause damage to the latter’s property whereby they committed these crimes with the intention to create for themselves, by repeatedly committing the crime, a continuous source of income, in particular 1. between November 1997 and 2001 in Vienna, Austria and partly in Amsterdam, Netherlands, by pretending that certain pieces of furniture and jewellery would come from the household of the successor to the Austrian Throne, Arch Duke Franz Ferdinand, by talking Gertrude Derksen into purchasing 41 items for the of €1,121,518.74 (concerning the furniture) and at least of €981,917 (concerning the jewellery), i.e. they have thus caused damage to her property; 2. by pretending that Lölling Castle (in Austria) had once belonged to the successor to the Austrian Throne, Arch Duke Franz Ferdinand, they also caused damage to the property of Gertruda Derksen amounting to €383,973, because they talked her into paying a commission as a compensation to the family Hohenberg. 3. by pretending that Lölling Castle (in Austria) would be renovated by them and that they would take over the supervision of the construction project, thereby the two accused persons caused damage to Gertruda Derksen amounting to €164,502, by partly using forged documents and by faking money transfers to the builders; II) the two accused persons have also abused the authorisation to dispose of Gertruda Derksen’s bank account with the account number 16802370442 at the Sparkasse Oberösterreich (Austrian bank) in Linz, in March 2000, by having unlawfully withdrawn at least €95,939.33.”
[5]In 1998 the Appellant married Nigel Pillar, a British citizen, and moved to live in the UK.[6]In May 2002, civil proceedings were initiated by Mrs Derksen in England in relation to the same allegations as contained within the EAW and a freezing order was obtained against the Appellant and her husband.[7]The Appellant has not visited Austria since 2002 and had to surrender her passport early on in the freezing order proceedings.[8]The criminal investigation in Austria commenced in 2004, following a complaint made by Mrs Derksen to the Public Prosecutor’s Office.[9]On 30 March 2004, as a result of the civil proceedings, the Appellant was declared bankrupt. Her husband was declared bankrupt on 10 June 2004.[10]On 3 May 2004, a preliminary investigation was launched at the Regional Court Klagenfurt and a domestic arrest warrant issued.[11]On 8 October 2004, a European Arrest Warrant was issued for the Appellant (“EAW 1”). This was certified by the NCA on 28 November 2004.[12]In November 2004, the Appellant learned of EAW1 and surrendered herself at Bow Street Magistrates Court.[13]On 5 July 2006, the Appellant was discharged by the Divisional Court in relation to EAW 1, as the warrant failed to comply with the requirements of section 2(4) of the Act.[14]The Appellant subsequently made no enquiries in Austria about the EAW proceedings against her. She continued her life in England, in the course of which she had to deal with the consequences of the civil proceedings and the bankruptcy of her and her husband. She also became a carer for her husband, whose mental health had deteriorated, and for her father-in-law who suffers from dementia.[15]Meanwhile, on 4 March 2009, a second European Arrest Warrant was issued for the Appellant (“EAW 2”), but this was never certified. On 15 June 2009, the Fugitives Team at SOCA were advised by the CPS that the Respondent had submitted a draft revised EAW for consideration by the CPS via Eurojust. Counsel’s advice on the draft EAW, dated 12 June 2009, was attached.[16]On 19 June 2009, the EAW was issued.[17]On 22 June 2009, Counsel’s advice on the draft EAW was forwarded to the Respondent.[18]On 23 August 2009, the EAW was received by the Fugitives Unit at SOCA. Copies were sent by SOCA to Eurojust on 25 August 2009.[19]On 1 September 2009, the CPS e-mailed SOCA querying whether a response had been received from the Respondent regarding counsel’s advice.[20]On 14 September 2009, Eurojust e-mailed the CPS and SOCA to say that an agreement had been obtained from the Respondent to delay the re-issuing of the EAWs on the basis that further advice from counsel was being sought on the current EAW.[21]On 4 March 2015, a Form A was received by the NCA from the Respondent through SIRENE channels. Alerts were validated but the EAW was not certified. Alerts were put on the PNC when SIRENE went live on 13 April 2015. On 30 September 2016, information was received of the possible location of the Respondent and the EAW was certified by the NCA.[22]Details relating to the prolonged procedure concerning the EAW are set out in three “Request for Further Information responses (‘RFFIs’)” provided by the Respondent and a statement from Mr Jeff Thompson of the NCA.[23]On 20 January 2017, the Appellant was arrested.[24]The Appellant sought to challenge her extradition on the grounds that:(1) The warrant was invalid as it had expired and did not particularise the offences;(2) The offences were not extradition offences;(3) Extradition was barred as it would be unjust and/or oppressive by reason of the passage of time (s14 Extradition Act 2003); and(4) Extradition would amount to a breach of Article 8 ECHR.

The judgment

[25]The judge found that the EAW was valid as the limitation period on its face was suspended whilst the Appellant was being searched for - [48]. Further, the number and places of the offences were sufficiently particularised - [49] to [52].[26]The offences were extradition offences for the purposes of section 10 and sections 64(3)(a) and (5)(a) of the Act - [53].[27]The Appellant was a fugitive and therefore unable to rely on the passage of time bar under section 14 of the Act. The second RFFI states that an application was made by the Appellant’s legally authorised representative to inspect the files and on this basis the Judge found that she was fully aware of the proceedings. The Appellant’s account that her father may have inspected the files was not credible as it was unlikely the Judicial Authority would have allowed him to do so and unlikely that her father would not have told her about it - [55].[28]Even if, contrary to his finding of fact, the Appellant was not a fugitive, it would not be unjust to order extradition given that it was clear that the Appellant has a clear recollection of her dealings with the victim. The judge also found that evidence would be available from civil proceedings in which affidavits were filed and that there were procedures in the Judicial Authority to ensure evidence is admitted when witnesses are not available - [57].[29]Similarly, it would not be oppressive to order extradition because:(1) The offences were very serious - [58a];(2) The first period of delay between the discharge of the first EAW on 5 July 2006 and the issue of the current EAW on 19 June 2009 was reasonable - [58b];(3) Although the second period of delay (between 2009 and 2016) was inadequately explained, this was just one factor in considering whether extradition was oppressive - [58b];(4) Any sense of security was mitigated by the fact that the Appellant was aware of criminal proceedings against her - [58c].[30]Extradition was a proportionate interference with the Appellant and her family’s right to private and family life ([64] to [67]), bearing in mind both the factors against extradition (in this case the delay, absence of previous convictions, and family circumstances) and those in favour (the public interest in honouring extradition arrangements, the finding that the Appellant was a fugitive; the seriousness of the offences; mutual trust and confidence between Member States) - [62] to [63].

The Grounds of Appeal

[31]The Appellant appeals on the following four grounds:(1) The judge erred in law and in fact in finding that it would not be unjust to extradite the Appellant given the passage of time;(2) The judge erred in law and in fact in finding that it would not be oppressive to extradite the Appellant given the passage of time;(3) The judge erred in law and in fact in finding that the Appellant was not entitled to raise the passage of time bar to extradition pursuant to section 14 of the Act as she was a fugitive; and(4) The judge erred in law and in fact in finding that the interference with the Appellant’s Article 8 rights in extraditing the Appellant is both necessary and proportionate.[32]Permission to appeal on all these grounds was granted on 3 October 2017 by Sir Wyn Williams sitting as High Court judge.[33]Since the decision of the judge, the Appellant has suffered a significant decline in her mental health and seeks to raise a fifth ground of appeal: that it would be unjust or oppressive to extradite her due to her medical condition pursuant to section 25 of the Act.[34]The Appellant also applies for permission to adduce fresh evidence relating to her medical condition consisting of a letter from her GP, Dr Blaikley, dated 8 November 2017 and a report, dated 30 November 2017, from a forensic psychiatrist, Dr Volkonskaia.

The statutory framework

[35]Section 27 of the Act addresses the Court’s powers on appeal and the circumstances in which an appeal may be allowed on the basis of evidence not available at the extradition hearing. It provides that:
“27 Court's powers on appeal under section 26 (1) On an appeal under section 26 the High Court may— (a) allow the appeal; (b) dismiss the appeal. (2) The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied. (3) The conditions are that— (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (4) The conditions are that— (a) an issue is raised that was not raised at the extradition hearingor evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (5) If the court allows the appeal it must— (a) order the person's discharge; (b) quash the order for his extradition.” (a) allow the appeal; (b) dismiss the appeal. (a) the appropriate judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge. (a) an issue is raised that was not raised at the extradition hearingor evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the appropriate judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person's discharge. (a) order the person's discharge; (b) quash the order for his extradition.”
[36]Section 14 of the Act deals with the circumstances in which extradition is barred by reason of the passage of time. It provides that: “14 Passage of time 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)”.[37]Section 25 deals with the circumstances in which extradition will not be ordered on account of a person’s medical condition. It provides that:
“25 Physical or mental condition (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.” (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.”

The application to adduce fresh evidence

[38]In relation to fresh evidence it is accepted that the Appellant needs to satisfy the test as set out in Hungary v Fenyvesi [2009] EWHC 231 (Admin), [2009] All ER 324.[39]In that case it was held that the admission of fresh evidence needs to be considered against the background of the conditions for a successful appeal on the grounds of fresh evidence set out in section 29(4) of the Act, namely whether the evidence:(1) “was not available at the extradition hearing” and(2) “would have resulted in the judge deciding the relevant question differently.”[40]In relation to (1), it was stated that “evidence which was “not available at the extradition hearing” means evidence which either did not exist at the time of the extradition hearing, or which was not at the disposal of the party wishing to adduce it and which he could not with reasonable diligence have obtained” – at [32].[41]In relation to (2), it was stated that “the court needs to decide that, if the evidence had been adduced, the result would have been different resulting in the person's discharge. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision, that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing” – [32]. “In short, the fresh evidence must be decisive” – [35].[42]In many cases, however, it will not be possible to determine whether or not the fresh evidence is decisive until all the evidence has been considered. All that can be said on an initial consideration is that it might be decisive. In those circumstances, as the Respondent accepted, the appropriate course is for the court to receive the evidence contingently and decide later in the proceedings whether formally to admit it or not – see [10] and [33].[43]As also noted in Fenyevsi at [34] a degree of latitude may be allowed where what might otherwise be a breach of the ECHR may be avoided by the admission of the fresh evidence.[44]With regard to the new medical evidence, the evidence is that on 2 November 2017 the Appellant met with her legal representatives and, for the first time, disclosed a serious decline in her mental health since the decision to extradite her had been made. A medical report was obtained from Dr Blaikley on 8 November 2017. This report details her diagnosis in August 2017 of “extreme stress reaction causing anxiety, depression, insomnia, panic attacks and suicidal ideation”.[45]As a result, a forensic psychiatrist, Dr Volkonskaia, was instructed to prepare a report on the Appellant and her mental health. Dr Volkonskaia’s report, dated 30 November 2017, diagnosed the Appellant with moderate to severe depression with somatic syndrome, complicated by prominent anxiety and panic attacks and with evidence of dissociative (conversion) disorder. Dr Volkonskaia concludes that extradition will have a “detrimental effect on [the Appellant’s] mental health and her condition is likely to deteriorate further. It is more than likely that if detained in custody and lose the support of her spouse, she will be at significant risk of suicide”.[46]The Respondent accepts that this evidence was not available at first instance since it relates to later events. It is submitted, however, that it is not decisive. I am satisfied that this evidence might be decisive and that it should accordingly be considered contingently.[47]The second category of “fresh” evidence which is sought to be relied upon consists of a file of the late Dr Ransmayr, an Austrian lawyer who had acted for the Appellant’s family. The file contained four documents: an unsigned power of attorney, a letter to Mr and Mrs Neumann (the Appellant’s parents), a letter to Mrs Neumann (the Appellant’s mother) and a letter from Dr Ransmayr to TV Edwards LLP, the Appellant’s English solicitor at the time. The Appellant submitted an unsigned additional witness statement on 23 June 2017 in relation to these documents. A signed version of the statement and the documents contained in Dr Ransmayr’s file (redacted where appropriate for legal professional privilege) were put before the judge on 26 June 2017, the day judgment was given.[48]It is contended that the evidence is significant as it clarifies the Appellant’s position regarding her knowledge of proceedings in Austria during 2004 and confirms that the Appellant conveyed to the Respondent that she was willing to be interviewed in England. It is said that the Appellant had begun the enquiries that ultimately resulted in the production of these documents several months earlier, on 28 March 2017.[49]The Appellant also seeks to admit a letter dated 7 September 2004 from TV Edwards to the Regional Court of Klagenfurt. This letter was referred to by the Respondent in its second RFFI in terms which were relied upon by the judge, but which the Appellant contends were misleading in the light of the letter now provided. This letter was produced shortly before the present hearing.[50]In relation to the TV Edwards letter, the Respondent accepts that if the court considers that this shows the RFFI to be misleading then it should be before the court in any event and indeed that it would be its duty to ensure this was done.[51]The RFFI stated:
“By letter of September 07th, 2004, Anthony Edwards, the legal representative of the aforementioned, informed the Austrian authorities that Marianne PILLAR-NEUMANN would not go to Austria to face criminal proceedings”
[52]This passage was heavily relied upon by the judge in reaching his conclusion that the Appellant was aware of criminal proceedings, was refusing to surrender and was a fugitive and therefore not entitled to rely on the section 14 time bar.[53]The letter states:
“As we have discovered, you have initiated a criminal investigation in Austria… We would like to emphasise that our clients are certainly prepared to cooperate with your findings and do not wish to conceal anything; however this assistance can only be provided in England. Should you wish to travel here, naturally we will arrange an appointment for you, or alternatively, should you wish to instruct English police, we can arrange an appointment…”
[54]The Appellant submits that the letter shows the RFFI to be inaccurate, incomplete and misleading. It was inaccurate because the letter referred to knowledge of a “criminal investigation”, not criminal proceedings. It was incomplete because it made no mention of the offer of co-operation made. For either or both these reasons it was misleading. I consider that there is force in these submissions and that the letter should be before the court.[55]With regard to the Appellant’s statement of 23 June 2017 and its exhibits this was “available” at first instance since the Appellant sought permission from the judge to adduce it.[56]The judge declined to consider the Appellant’s additional material. He stated that enquiries should have been made earlier and the Appellant was under an obligation to serve evidence to be relied upon promptly and effectively.[57]It is submitted that the judge was wrong to exclude this evidence and in particular that he failed to have any regard to the significance of its contents or to appreciate that the documents were served very promptly in light of when they were received by the Appellant.[58]I agree with the Respondent that the judge was entitled, in the exercise of his discretion, to refuse to admit this further evidence given, in particular, the lengthy duration of the proceedings (6 months); the fact that the RFFI which alerted the Appellant to the issue was served in February 2017; that the documents were served very late (over a month after the conclusion of the hearing and just before judgment) without adequate good reason and the lack of opportunity for the Respondent to respond. I also agree with the Respondent that since this was evidence which was available at first instance it should not now be admitted as “fresh” evidence and that the Appellant should not be allowed to circumvent the judge’s ruling by seeking to admit it as such evidence.[59]It is to be noted, however, that the point about the Appellant’s willingness to co-operate can in any event be made in the light of the admission of the TV Edwards letter.[60]I propose to address this ground of appeal first as it impacts on the other grounds.[61]Save for in exceptional circumstances, delay which is caused by the requested person cannot be relied upon in relation to the passage of time under section 14.[62]As stated by Lord Diplock in Kakis v Government of Cyprus [1978] 1 WLR 779 at page 783:
“Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him”
. See also, Lord Brown in Gomes v. Government of the Republic of Trinidad and Tobago [2009] UKHL 21,[2009] 1 WLR 1038 at [21] and [26].[63]In circumstances such as those described by Lord Diplock, the requested person will be regarded as a “fugitive”, although that is not a statutory term. As Lloyd-Jones LJ explained in Wisniewski and Ors v Poland [2016] EWHC 386, [2016] 1 WLR 3750 (Admin) at [58]-[59]: "58. "Fugitive" is not a statutory term but a concept developed in the case law, in particular in Gomes’s case [2009] 1 WLR 1038 which elaborates the principle stated in Kakis’s case [1978] 1 WLR 779. In the context of Part 1 of the 2003 Act it describes a status which precludes reliance on the passage of time under section 14. Before this rule can apply, a person's status as a fugitive must be established to the criminal standard; Gomes’s case, para.27. [59] .... Where a person has knowingly placed himself beyond the reach of a legal process he cannot invoke the passage of time resulting from such conduct on his part to support the existence of a statutory bar to extradition. Rather than seeking to provide a comprehensive definition of a fugitive for this purpose, it is likely to be more fruitful to consider the applicability of this principle on a case by case basis….”[64]The essential question is therefore whether the Requested Person has knowingly placed himself beyond the reach of legal process. Fleeing the country, concealing whereabouts or evading arrest are examples of so doing.[65]In the present case, the Appellant has been resident in this country, as the wife of a British citizen, since 1998, six years before the criminal investigation began. The UK is her home.[66]She has throughout lived in this country openly. She has taken no steps to conceal her identity or her location. She has been on the electoral role and has paid council tax and utility bills.[67]The Respondent argues, and the judge found, that the Appellant is a fugitive because in 2004 she became aware that a domestic warrant for her arrest had been issued in Austria and that, by failing to leave her home in the UK and to go to Austria, so that she could be arrested pursuant to that warrant, she was evading arrest and was therefore a fugitive.[68]In my judgment, even if she was aware of the domestic warrant, which is disputed, lawfully remaining in her established country of residence does not mean she was evading arrest or was a fugitive.[69]She was not fleeing the country or concealing her whereabouts. She was not taking any positive steps to evade or avoid arrest. She was simply carrying on living in her country of residence, as she was lawfully entitled to do.[70]Nor was she knowingly placing herself beyond the reach of a legal process. She took no positive steps to place herself anywhere. The Respondent’s case is that she was somehow obliged to place herself within the reach of a legal process instituted in another country and to leave and give up her home and lawful residence in the UK in order to do so. Not surprisingly, we have been shown no case in which it has been found, or even suggested, that failing to act in this way makes someone a fugitive.[71]In fact, she could not have returned to Austria in any event as she had no passport.[72]In the context of a European Arrest Warrant, it is unsurprisingly not suggested that a person who fails to give himself up, go to the country seeking extradition and submit to arrest there is evading arrest or acting as a fugitive, but that is where the logic of the Respondent’s argument leads.[73]For all these reasons I have no doubt that the judge was wrong to find to the criminal standard that the Appellant was a fugitive. If so, there is no bar to her relying on the passage of time under section 14.

Grounds 1 and 2

[74]The meaning of the words “unjust” and “oppressive” were considered by Lord Diplock in relation to the very similar provision in s.8(3) of the Fugitive Offenders Act 1967 in Kakis at 782: ““Unjust” I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, “oppressive” as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into account; but there is room for overlapping and between them they would cover all cases where to return him would not be fair.”[75]In Kakis, relevant factors in assessing whether extradition is unjust or oppressive included whether a false sense of security has been engendered in the Requested Person during the years that had elapsed – see Lord Scarman, at 790.[76]In La Torre v Italy [2007] EWHC 1370, Laws LJ observed as follows at [37]:
“….All the circumstances must be considered in order to judge whether the unjust / oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No.4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee’s part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges.”
[77]The Respondent stressed the following points in relation to the authorities on section 14:(1) The test of oppressiveness and of the likelihood of injustice are not easily satisfied; oppressiveness is more than mere hardship and whether the passage of time had made it unjust to extradite the fugitive depends upon whether a fair trial would be impossible. Council of Europe countries should readily be assumed capable of protecting an accused person against an unjust trial and the burden is on the defendant to establish the contrary – see Gomes v. Government of the Republic of Trinidad and Tobago [2009] 1 WLR 1038 at [31]-[37].(2) Oppression requires personal or family hardship greater than that inevitably inherent in the act of extradition when facing what is likely to be a long criminal trial process in another country – see Norris v The Government of the USA [2007] EWHC 71 (Admin) per Auld LJ at [154].(3) “Oppression cannot be considered in isolation from the nature of the offence or offences for which extradition is sought. The more serious the offence, the greater the public interest there is likely to be in extradition taking place.” – see Hutton v The Government of Australia [2009] EWHC 564 at [14] per Scott Baker LJ.(4) “The mere fact of delay is unlikely in most cases, indeed the vast majority of cases, to justify a decision that to return would be oppressive. There must be something more than mere delay.” – see Kila v Governor of HMP Brixton [2004] EWHC 2824 (Admin) at [18] per Collins J; Jacek Brzeski v Regional Court in Gdansk Poland [2012] EWHC 1138 (Admin) at [22].[78]I propose to address first the issue of culpable delay. The judge found that there was culpable delay from June 2009 (when the EAW was issued) to September 2016 (when it was certified by the NCA). He found this “unexplained” delay was “clear culpable delay”.[79]The judge further found, however, that there was no culpable delay between July 2006 (when EAW 1 was discharged) and June 2009 (when the extant EAW was issued). He found this period of delay to be reasonable in the circumstances. This finding is challenged by the Appellants.[80]The explanation given for this delay in the third RFFI was that:
“1) On the one hand, further investigations were carried out during that time, in particular through the questioning of witnesses, and on the other hand, a repeated issuing of the request for extradition was considered to be futile with reference to the judgement of the High Court of Justice dated 5th July, 2006. 2) Between the issuing of the two European Arrest Warrants, it was attempted with the help of Eurojust, to obtain an improved version of the European Arrest Warrant that would meet the requirements of the UK authorities.”
[81]The adequacy of this explanation needs to be considered against the background of the reasons for the discharge of EAW1.[82]EAW 1 was discharged for having insufficient particulars. As is made clear at [16-17, 19] and [25] of R (on the application of Pillar) v The Provincial Court at Klagenfurt Austria [2006] EWHC 1886 (Admin), there were two issues with the particulars in EAW 1:(1) While it specified that the offences were linked to Castle Schloss Lolling, EAW 1 failed to specify explicitly which jurisdiction the offences had occurred in; and(2) While it specified that one aspect of the alleged conduct is said to have commenced in 1997, EAW 1 failed to specify the time frame of the entire alleged conspiracy.[83]I agree with the Appellant that it is apparent that these were technical errors and that the Respondent was in a position to remedy these matters promptly. During the High Court proceedings in 2006, counsel for the Respondent argued that defects in the warrant could be remedied by reference to the underlying, detailed complaint which had been provided to the Appellant by the Respondent.

Lord Justice May sets out the Respondent’s position during that hearing at [23] as follows:

“Mr Caldwell submits that in the present case the request is based on the contents of an information by way of complaint provided by Mrs Derksen to the Austrian authorities. The appellants, he said, have had access to this document throughout these proceedings. Indeed it is contained within their bundle for these proceedings. He says that in it the allegations against the appellants are set out in great detail. He submits that the offences alleged in the warrant relate to exactly the same conduct, and that the requirements of section 2(4) are thereby satisfied.”
[84]The court concluded that it was unable to make good the deficiencies in the warrant by reference to the detail provided in the complaint, but it did not suggest that the necessary detail was not contained in the complaint. It was the Respondent’s own case that it was. In these circumstances, it is plain that the deficiencies in EAW1 could have been simply and swiftly remedied and there is no explanation of why this was not done.[85]Although the RFFI makes reference to further investigations, the detail provided in EAW 1 and the complaint shows that the Respondent was already very advanced in the investigation of the offences by the time of issuing EAW 1 warrant and it is not explained what the product of this further investigation was or how it assisted in ensuring that the particulars of the subsequent warrant were sufficient. On the basis of the Respondent’s own case before this court, the requisite particulars could have been provided on the basis of the existing investigation and complaint.[86]One also has to bear in mind that by 2006 the events which were the subject matter of the complaint were already well in the past, having taken place 5 to 9 years before. It was obviously important for the Respondent, if it wished to proceed with an EAW, to rectify the deficiencies promptly. It patently failed to do so.[87]In my judgment, the judge was therefore wrong to find that the delay up until June 2009 was not culpable. Whilst the Respondent obviously needed some time to consider its position, this should not have taken long and the bulk of the period from July 2006 to June 2009 should be regarded as being culpable delay, meaning an overall period of culpable delay of about 10 years.[88]The next matter to be addressed is whether the Appellant was lulled into a false sense of security, an important consideration, as the caselaw makes clear.[89]It was the Appellant’s evidence that she came to believe that the “nightmare” she was facing was over. This is borne out by the fact that all the papers relating to the civil proceedings were destroyed when the Appellant’s father had to downsize his accommodation and no longer had room to store them. This would not have been allowed to happen if it had been thought that proceedings were continuing.[90]The Appellant was aware that EAW1 had been discharged on technical grounds that could be easily remedied and proceedings reinstated. Her expectation at the time would have been that this is what would be done. When it did not happen within a relatively short period she would reasonably have considered that it may well not happen, and the longer time went on the more convinced she would have been. Whilst it is correct that she made no inquiries as to the re-issue of proceedings, it was not incumbent on her to do so. I am therefore satisfied that the delay did give rise to a false sense of security, and that it did so relatively early in the 10-year period of culpable delay.[91]The judge found that any false sense of security was “mitigated” by the fact that the Appellant was aware of the criminal proceedings in 2004. This is illogical. The false sense of security built up after the discharge of EAW1 in 2006. What had happened before the EAW1 proceedings is immaterial. It had no bearing on the likelihood of EAW proceedings being re-instated.[92]The issue of oppression therefore falls to be considered against the background of 10 years of culpable delay, in relation to criminal proceedings which would now take place some 20 years after the events in question, and in respect of which a false sense of security was engendered reasonably early in the 10-year period of culpable delay. It is also relevant that, as the judge observed, these are serious offences and therefore the greater the public interest in extradition.[93]Leaving aside for the moment the new medical evidence, there is no doubt that the revival of serious criminal proceedings after many years of believing they were at an end would be likely to have a devastating effect on the Appellant, and her family, and cause real hardship, and this is borne out by the evidence.[94]The civil proceedings had already led to the bankruptcy of the Appellant and her husband and caused him to have a mental breakdown. The prospect of this being followed by extradition of her alone to face criminal proceedings in Austria would understandably have been a “nightmare”. She reasonably believed that “nightmare” was over and that she and her family could pick up the pieces of their lives.[95]In the particular circumstances of this case, the hardship caused to the Appellant has been significantly increased because she is facing extradition to face proceedings which, due to the Respondent’s culpable delay, she reasonably believes she will not now be in a position to defend properly. A strong sense of security has been transformed into an abject sense of insecurity and defencelessness.[96]The alleged offences turn to a significant extent on disputed matters of recollection. She would now have to address those disputed issues some 20 years after the events in question and without the benefit of any reasonably contemporaneous statement. Her evidence for the civil proceedings had been destroyed together with all the files relating to those proceedings. No interview had been carried out or statement taken by the Respondent, despite the Appellant’s willingness for that to be done in this country in 2004.[97]The documents which the Appellant would have wished to rely upon to support her defence (and refresh her recollection) have been lost or destroyed. Extensive examples of these are given in the unchallenged proofs of evidence of the Appellant and her husband. These include:(1) The loss of documentation evidencing the contract(s) between the Appellant and the complainant in this matter;(2) Contemporaneous reports of the restoration work in issue;(3) Relevant statements of account and invoices;(4) Evidence going towards whether the Appellant and her husband in fact made false representations to the complainant; and(5) Original sale listings for the property in issue.[98]In addition, the following witnesses who would have been able to give evidence relevant to the Appellant’s defence have died in the long intervening period since the events in question:(1) Dr Christian Ransmayer (Austrian lawyer)(2) Mr Eduard Neumann (Appellant’s father)(3) Mr Herbert Fischer (Head of Elin Union Klagenfurt, an electrical supplier)(4) Mr Julius Eberhart (jewellery sales agent)(5) Patience Pillar (mother of Appellant’s husband)[99]The evidential difficulties which the Appellant faces due to the culpable delay are exacerbated by the fact that the Appellant’s husband, who would clearly be an important witness, would be unable to attend any trial in Austria as there is still a warrant for his arrest. His personal assistant, Mr Nigel Pell, is also said to be untraceable.[100]Yet further, it appears that prosecution witnesses “were interrogated in writing” and if they were not available to attend the hearing “it is permissible… to read the minutes of the witness interrogation”. This raises the prospect of the Appellant being unable to question prosecution witnesses. The prosecution has statements from its witnesses which can be relied upon if they cannot attend trial. The Appellant has no extant statements for herself or other defence witnesses, many of whom are dead or otherwise unavailable to give evidence.[101]In R v Secretary of State ex. p. Patel (1995) 7 Admin LR 56 the appellant was alleged to have committed dishonesty offences in the United States between 9 and 12 years earlier and delay had led him to believe for 6 years that the attempt to extradite him had been discontinued. The Divisional Court allowed the appellant’s application for judicial review of the Secretary of State’s decision to extradite him. In giving judgment Henry LJ commented as follows at 71-2:
“The reasons for the delay and the consequences of the delay were part of the circumstances that the Minister was bound to have regard to in deciding whether it was just, after all this time, to uproot this citizen and send him to another country to face his trial. In leaving those matters to the foreign court he failed to give sufficient regard to the applicant’s rights and to the protection that the extradition process was intended to afford him. In so acting, he failed to take into account matters which the statutory question required him to take into account, and so clearly misdirected himself. The reason he gives for that is that the “lapse of time” was “not such as would make it inappropriate” to leave those matters to the American court. We find that quite startling. Of the reported cases only R. v. Secretary of State for the home Department ex parte Sinclair ([1992] Imm. AR 293) rivals this case in length of delay. If it is not appropriate in this case for the Minister to consider the reasons for and consequences of such delay, how many years are necessary? Wherever law is practised, justice is reproached by delay. There is a real danger that those of us who have spent a lifetime in the law become enured to delay. So too laymen associate the law with delay, and their expectation of it may harden them to the fact of it. So the years trip off the tongue, and so we reach a position where a citizen may be surrendered to face trial in another state for matters at least nine years stale without examination of the reasons for the length of that delay or the consequences of it. …. So it is we are left with a delay period (when the Minister considered it) of nine to nearly 12 years, with yet some time to pass before trial. It is salutary to look back over one’s own life to evaluate the real length of that period, so as not to regard it just as a figure on a piece of paper. And when in all the circumstances of this case, we additionally consider the six years of false security included in that period, and then set that against the bland few lines dealing with lapse of time in the affidavit in support of the Minister’s decision (see para 4, quoted above), we conclude that the Minister’s decision cannot stand. We judge the irresistible inference to be drawn from the facts in this case is that it would be unjust and oppressive to surrender the applicant, and that the Minister could not properly have reached any other conclusion.”
[102]While each case turns on its own facts, that case also concerned dishonesty offences in relation to which oral evidence would be very important; concerned events 9 to 12 years before (as opposed to 16 to 20 years before); a false sense of security; and a delay of six years (as opposed to about 10 years). Henry LJ noted that only one case rivalled that case in length of delay and we have been shown no case that comes close to rivalling the present case for delay.[103]In my judgment, the judge erred in his determination of the issue of oppression. In particular, he erred in that he considered the culpable delay to be 7 years rather than 10 years; he had no regard to the length of time since the events in issue; he concluded that the false sense of security had been mitigated for illogical reasons and did not give that important consideration appropriate weight, and he had no regard to the hardship caused by the Appellant’s reasonable perception of being unable now properly to defend the proceedings.[104]For all the reasons set out above, in my judgment the hardship which would be caused by extradition in this case is extreme and far greater than that caused by the mere fact of delay or that inherent in the act of extradition. In all the circumstances, I have no doubt that it would be oppressive and unfair to extradite the Appellant given the passage of time, notwithstanding the seriousness of the alleged offending and that this is a difficult test to satisfy. I therefore conclude that the judge ought to have decided this question differently.[105]I would accordingly allow the appeal on ground 2.[106]If there was any doubt about that conclusion it would be appropriate to have regard to the new medical evidence and to consider whether this tilts the balance and is therefore decisive. I consider that it would be so decisive.[107]The medical evidence shows that the Appellant has suffered a serious and concerning decline in her mental health since the order for her extradition in June 2017. This evidence demonstrates the extreme hardship caused by the loss of the false sense of security engendered by the judge’s decision to extradite.[108]The evidence of Dr Blaikley includes the following:
“I diagnosed Marianne with an extreme stress reaction causing anxiety, depression, insomnia, panic attacks and suicidal ideation on 7th August 2017…. Since the end of June 2017, I have sadly watched my patient deteriorate before my very eyes. She has lost weight, is visibly shaking, does not go out, is not able to sleep, cleans the family home obsessively from 2am most nights to try and fight off the insomnia, is found in hysterics if the doorbell rings / phone rings and is not really able to leave her bedroom much. I am truly concerned about the level of stress this court case has put my patient under and the lasting impact it will have upon her physical health…. Marianne has an extreme form of stress reaction which has led to a diagnosis of depression with suicidal ideation. She is in the high risk category and is experiencing all of the hallmark features for a severe and potentially life-threatening depression. Prior to the extradition order Marianne was fit and well…. I cannot stress strongly enough that my patient is not medically fit and an extradition to Austria will be life threatening to her mental state and the mental state of her husband and father-in-law…”
[109]The evidence of Dr Volkonskaia includes the following:
“3. Mrs Pillar-Neumann developed symptoms of emotional distress following her arrest in January 2017. She believed at the time that the matter was resolved as it was discharged by the High Court in 2006, following the years of financial and emotional losses her family suffered. …. 5. Having examined Mrs Pillar-Neumann on the 20th November 2017, I concluded that her symptoms fulfil the criteria for Depressive Episode, moderate to severe, with somatic syndrome, ICD-10 F32.11 (Classification of Mental and Behavioural Disorders). Her depressive disorder is complicated by prominent anxiety and panic attacks (episodic paroxysmal anxiety). There is also evidence of Dissociative (conversion) disorder, namely Dissociative fugue, ICD-10 F44.1 6. Her symptoms are severe and well defined and include pervasive low mood, loss of interest and enjoyment, low energy and increased fatigability, a degree of cognitive impairment often observed in those who suffer with depression and poor sleep. Her so-called, somatic features include anhedonia, reduced reactivity of affect and emotional bluntness, poor appetite and weight loss, diurnal variation of mood, psycho-motor retardation and disturbed sleep. I could not elicit any psychotic symptoms apart from some paranoid ideas which she experienced over the last 2-3 months. Her suicidal ideation, together with her being closed and guarded about her suicidal plans during examination, are of most concern and I intend to contact her GP in order to share my concerns and discuss the management plan. ….. 8. Mrs Pillar-Neumann has been experiencing the symptoms described above for at least five months and her social and basic functioning has been significantly affected. Her condition is undoubtedly caused by her lack of ability to cope with so called acute on chronic stress – the renewed threat of extradition and incarceration following years of legal proceedings against her partner and herself and her potential extradition would be an ultimate loss. 9. I am concerned that Mrs Pillar-Neumann’s ability to comprehend the course of proceedings and ability to instruct her legal representative is currently compromised. This is due to her being in a state of either high autonomic arousal (anxiety and panic attack) with agitated and muddled thinking, or in a state of cognitive retardation…. 10. Regarding the consequences of her extradition to Austria, my view is that this will have a detrimental effect on her mental health and her condition is likely to deteriorate further. It is more than likely that if detained in custody and lose the support of her spouse, she will be at substantial risk of suicide. It appears that she has been deterred from acting on her suicidal thoughts thus far, by her commitment to her family and protecting them from the pain she would inflict on them by taking her life. However, her feelings of worthlessness, hopelessness and indifference, as well as feelings of being a burden to everybody, are a prominent feature of her current presentation and inevitably affect her decision making.”
[110]The Appellant does not seek to introduce any evidence to establish that measures could not be put in place to care for her in Austria. However, Dr Volkonskaia’s conclusions suggest that her suicidal thoughts have so far been mainly inhibited by her commitment to her family. Dr Volkonskaia’s concern is that detention and separation from her husband would remove this deterrent and place her at a significant risk of suicide. In such circumstances, any suicide attempt could be said to be a consequence of her diagnosed medical conditions, in particular her severe symptoms of depression, rather than a voluntary act.[111]In my judgment, if the other evidence in the case does not establish oppression by itself, the addition of this further medical evidence does so.[112]I therefore conclude that the appeal should be allowed and that the Appellant’s extradition is barred under section 14 of the Act because it would be oppressive to extradite her by reason of the passage of time.[113]In those circumstances, it is not necessary to address the further grounds raised, namely injustice (ground 1), Article 8 (ground 4) or section 25 (ground 5). It should, however, be noted that, as the Respondent realistically acknowledges, if oppression is established then the Appellant is likely to have a strong, if not unanswerable, case under Article 8 that extradition would not be proportionate.

Conclusion

[114]For the reasons outlined above I would allow the appeal.[115]I agree.

Cited in 17 later judgments

and 8 more of the most senior