Bar Cohen v Local Court at Bamberg, Germany [2025] EWHC 1851 (Admin)

[2025] EWHC 1851 (Admin)Case No AC-2023-LON-003019
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25 July 2025
Before
Mrs Justice Thornton DBE
Between
Bar CohenApplicantLocal Court at Bamberg, GermanyRespondent
Edward Fitzgerald KC and Rebecca Hill (instructed by Howard Kennedy LLP) for ApplicantPeter Caldwell KC and David Ball (instructed by the Crown Prosecution Service Extradition Unit) for RespondentHearing Hearing dates: 10 June 2025 – 11 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 25 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE THORNTON DBE
[1]The Appellant, Bar Cohen, is an Israeli national. He appeals the order of the District Judge, dated 5 October 2023, for his extradition to Germany. The order was made pursuant to an accusation warrant issued by the Local Court of Bamberg, Germany, on 2 November 2022 and certified by the National Crime Agency on 3 November 2022.[2]The offending alleged against the Appellant is summarised in the decision of the District

Judge as follows:

“The [Requested Person] is alleged to have been the leading mastermind of a cyber trading fraud which caused approximately €14 million loss. The TACA Warrant alleges as follows: In late 2016, the Requested Person, together with someone called Yuval Shem Tov, decided to commit acts of fraud jointly and continuously through cyber trading. The Requested Person and Yuval Shem Tov opened and operated call centres in Bulgaria (Sofia) and Israel (Tel Aviv). …Alongside Yuval Shem Tov, who was his “equal by his side” the Requested Person “was the head of the ring and its leading ‘mastermind’. …The TACA Warrant sets out how, “on the orders of the accused the retention agents acted fraudulently to causes losses to accrue to customers in Germany.”
The agents pretended to numerous customers in Germany, by phone and email, that they were working for a particular trading platform (eg Speartrader, Zuercher Capital, E Markets Trade, Alpha Financial Group, Geneva Capital Group, Zurich Financial Group and Pro Markets Group). They made false claims. They promised customers large profits even though they were specifically aware that there was no chance of the customers preserving their capital or receiving capital gains. At no point were investments actually made or options placed on behalf of the customers. Instead, the money distributed by customers “was immediately distributed in a complex money laundering network” throughout Europe. …”.[3]The Appellant was arrested at Heathrow Airport on 3 November 2022, having arrived from Israel with his wife to spend his honeymoon in the UK. He was remanded in custody at HMP Wandsworth for a short period before being released on bail.[4]The hearing before the District Judge at Westminster Magistrates’ Court took place over 4 days (11 – 14 September 2023). The application for permission to appeal the order for extradition was lodged on 11 October 2023. Three applications by the Appellant to adduce fresh evidence followed, dated 7 November 2023, 31 May 2024 and 12 May 2025. A Respondent’s Notice and application to adduce fresh evidence was served on 11 December 2023 and further fresh evidence on 4 June 2025. Permission to appeal was granted on all grounds on 20 February 2025. The fresh evidence was admitted de bene esse with the decision on admissibility to be considered at the substantive hearing of the appeal.[5]Before the Judge it was, and remains, common ground that in 2018 the Appellant suffered a significant head injury following a fall in Israel and required a series of serious operations. As a result, the Appellant has a number of ongoing physical and mental health issues. However, the extent of his difficulties was a core evidential dispute between the parties at the extradition hearing.[6]The three grounds of appeal are that the District Judge was wrong not to find:a. extradition is oppressive by reason of the Appellant’s mental and physical health (s25 Extradition Act 2003);b. extradition would constitute a disproportionate interference with the Appellant’s private and family life under Article 8 European Convention on Human Rights (ECHR) (s21A Extradition Act); andc. extradition is an abuse of the Court’s process.[7]This judgment is in 8 main parts as follows: I. Introduction/overview ¶1 - 7 II. The evidence before the District Judge ¶8 - 12 III. The decision of the District Judge ¶13 - 23 IV. The fresh evidence ¶24 V. Legal framework ¶25 VI. Analysis ¶26 - 47 VII. The grounds of appeal ¶48 - 92 VIII. Admission of the fresh evidence ¶93 - 125 IX. Conclusion ¶126-127 II. Evidence before the District Judge[8]The following written (and photographic) evidence was put before the District Judge:a. The Appellant’s mental health: i. letter from Professor Sagi Harnof MD, Chair of the Neurology Department at the Rabin Medical Centre, dated 6 November 2022; ii. clinical report of Gal Sela, neuropsychologist, dated October 2021; iii. clinical opinion from Dr Orit Stein-Reisner, expert in psychiatry, dated 18 January 2022; iv. letter from Tali Katz, the psychotherapist who treated the Appellant and kept detailed notes until October 2022, dated 19 July 2023; v. report of Dr Stephen Attard, a forensic psychiatrist, dated 23 March 2023; vi. addendum report of Dr Attard, dated 6 September 2023 vii. report of Dr Michael Watts, a consultant clinical neurophysiologist, dated 10 March 2023; viii. report of Dr Claudia Bernat, psychiatrist, dated 19 July 2023; ix. letter from Dr Michael Zivor, clinical psychologist, dated 25 June 2023; x. letter from Dr Ahmed Toma, consultant neurosurgeon, dated 11 July 2023; xi. Witness Statements of Kamila Kwincinska, the senior paralegal at Howard Kennedy LLP acting for the Appellant, dated November 2022 and 30 March 2023; xii. Exhibit KK/1, showing injuries to the Appellant’s face following a self-harm incident; xiii. expert report of Professor Seena Fazel, a specialist in forensic psychiatry, dated 16 May 2023; xiv. addendum report of Professor Fazel, dated 24 August 2023; xv. statements of agreement of Dr Attard and Professor Fazel, dated 17 July 2023; xvi. photographs of injuries to the Appellant’s face;b. The Appellant’s physical health: xvii. letter from Inbal Guy, physiotherapist, dated 10 November 2022; xviii. letter from Alex Shurygin, osteopath, dated 9 November 2022; xix. report of Mr Shahab Siddiqi, consultant colorectal surgeon, dated 7 July 2023; xx. addendum report of Mr Siddiqi, dated 7 September 2023; xxi. letter from Maria Elliott, Specialist Pelvic Health Physiotherapist, dated 6 July 2023; xxii. report of Ms Anna Henshaw, an occupational therapist, dated 14 March 2023; xxiii. report of Ms Kathryn McCarthy, consultant colorectal surgeon, dated 16 August 2023; xxiv. letter from Victoria Fury of Clairmont Health, received on 13 July 2023;c. German prison conditions and risk of antisemitic attack: xxv. report of Dr Anna Oehmichen, a legal practitioner in Germany and specialist in German criminal law, dated 10 March 2023 and annex 1 to Dr Oehmichen’s report – Europass V; xxvi. addendum report of Dr Oehmichen, dated 8 September 2023;d. The Appellant’s private and family life: xxvii. Proof of evidence of Bar Cohen dated 16 December 2022; xxviii. Witness Statements of the Appellant’s wife, Dor Nissan Cohen, dated 24 March 2023, 20 July 2023, 30 August 2023 and 6 September 2023; xxix. Witness Statement of the Appellant’s mother, Riky Cohen, dated 24 March 2023; xxx. Witness Statement of the Appellant’s sister, Shir Cohen, dated 24 March 2023;e. Evidence relevant to alleged abuse of process by the German authorities: xxxi. report of Mr Nir Yaslovitzh, a practising attorney in Israel and specialist in Israeli criminal and extradition law, dated 26 March 2023; xxxii. addendum report of Mr Yaslovitzh, dated 6 September 2023; xxxiii. Articles 81-88 of Interpol’s Rules on the Processing of Data.[9]The Judge heard oral evidence tested under cross examination as follows. She heard evidence about the Appellant’s mental health from two consultant forensic psychiatrists; Dr Attard, instructed on behalf of the Appellant and Professor Fazel, instructed on behalf of the Respondent. She also heard from Dr Watts, a consultant clinical neuropsychologist instructed on behalf of the Appellant. Their evidence may be summarised as follows: a) Dr Attard: In his opinion the Appellant was suffering from severe PTSD, depression and cognitive impairment, consequential on his brain injury. The Appellant was currently at moderate risk of suicide. Treatment with anti-depressant medication is likely to be of significant importance in ameliorating his symptoms of PTSD and reducing his risk of suicide but it is likely he will require significant psychological support in order to be able to take this step. In the event of extradition, it is likely that there would be a substantial deterioration in the Appellant’s mental state and a corresponding increase in his risk of self-harm and suicide. The Appellant would be at substantial risk of suicide. There would be a high risk that his capacity to resist the impulse to commit suicide would be removed or greatly reduced to the point that in legal terms the decision to commit suicide would not be a free and voluntary decision. b) Dr Watts: The Appellant has capacity to make decisions including deciding not to take medication which in conjunction with the other therapies, would have a better outcome generally, in relation to his depression. Assuming equivalent medical care in prison in Germany to that in the UK, the Appellant’s mental health needs could be met in custody. There would be a very significant deterioration in his mental state within a prison setting but steps could be taken to keep him safe. c) Professor Fazel: The Appellant was suffering from moderate depression. The Appellant’s suicide risk was elevated compared with other male prisoners of similar age. Ultimately, the risk would depend on how the Appellant is managed on extradition but it was not sufficiently severe so as to remove his capacity to resist suicide. The Appellant’s mental health needs could be met in a custodial setting assuming the standard of mental health care in a German prison is at least as good as that found in the UK.[10]The Judge heard evidence about the Appellant’s physical health from Dr Siddiqi, a colorectal consultant, and Ms Henshaw, an occupational therapist, both of whom were instructed on behalf of the Appellant. She also heard from Ms McCarthy, consultant colorectal surgeon, instructed on behalf of the Judicial Authority. Their evidence may be summarised as follows. a) Dr Siddiqi: the Appellant has global nervous system arousal and a variety of gastrointestinal disorders. Both conditions are linked to the Appellant’s mental health. Extradition would have a serious deleterious effect on the Appellant’s PTSD, mental health, global nervous system arousal, physical health, neuropathic pain and his gastrointestinal conditions. This would be due to the increase in environmental stresses and the loss of contact with his family, particularly his wife. b) Ms Henshaw: The Appellant received significant therapy when living in Israel. Whilst she had not worked in a prison setting, she did not think the Appellant would have access to a similar amount of therapy in custody. If the Appellant does not receive the therapy input and pain relief he requires his condition is likely to deteriorate. c) Ms McCarthy: There was no scientific evidence base to the Appellant’s use of a pelvic wand to treat his pelvic floor dysfunction. On the available evidence the Appellant has an undiagnosed colorectal disorder that requires investigation. She regularly treats patients detained in prison for pelvic floor dysfunction.[11]The Judge heard evidence about prison conditions in Germany from Dr Oehmichen, a German lawyer instructed on behalf of the Appellant. Dr Oehmichen expressed the opinion that antisemitism has increased in Germany in recent years and it is likely this has also happened in prisons although no statistics are available. There is a real and imminent risk that the Appellant will face antisemitism in a Bavarian prison. Measures to protect the Appellant from suicide will either lead to him being isolated or disturbed at night by monitoring. Contact with relatives will be restricted and will lead to isolation, which will be detrimental to the Appellant’s health.[12]The Appellant’s wife, Dor Cohen and his sister, Shir Cohen, gave evidence. Their witness statements describe the Appellant’s accident in 2018, his condition after the accident, his rehabilitation, Professor Fazel’s examination of the Appellant and the impact of the extradition proceedings on the Appellant’s family. III. Decision of the District Judge

The Judge made the following findings:

[13]a. The Appellant’s extradition was sought in relation to allegations of serious offending [¶17(ii)];b. The Appellant had suffered a traumatic brain injury on 2 March 2018. He was very ill and required a number of operations over the next three years. As a result, he has a number of physical and mental health issues [¶17(viii)];c. The extent of the Appellant’s physical and mental health issues was not agreed between the parties [¶17(iii)];d. The Appellant did not give evidence so could not be asked about his account of the impacts of his brain injury on his physical and mental health [¶17(v)];e. The Appellant was not as restricted day to day as he claimed to medical experts. He was able to go out and do things, although this may be variable day to day, depending upon the extent of his medical conditions [¶17(vi)];f. The Appellant had self-harmed and had suicidal ideations [¶17(vii)];g. The Appellant was not a fugitive [¶17(i)].[14]Having heard evidence about the Appellant’s mental health, the Judge came to the following evaluation of the evidence before her:a. The Appellant had mild to moderate depression and PTSD [¶41];b. The Appellant and his wife saw Professor Fazel as somewhat hostile. They wanted to direct the examination of the Appellant which appeared to have been allowed by the experts instructed by the defence, but not by Professor Fazel [¶17(x)];c. Professor Fazel was however professional in his interview and merely performing the task he had been asked to do [¶17(x)];d. The presentation of the Appellant in his interview with Professor Fazel was different to that when he saw and spoke to experts instructed on his behalf [¶17(x)];e. Both Dr Attard and Professor Fazel were credible witnesses. However, she preferred the evidence of Professor Fazel [¶17(x)];f. The presentation of the Appellant in his interview with Professor Fazel may have been more realistic and given a truer picture of his mental health condition [¶17(x)];g. The evidence of Professor Fazel took into account factors, such as the Appellant being able to go out, travel and engage with therapies, including whether to take medication, which Dr Attard had not given sufficient weight to [¶17(x)];h. The Appellant’s mental disorder is not such that it removed his capacity to resist suicide [¶17(x)];i. Even if she was wrong about the Appellant’s capacity, the German prison authorities would be able to take steps to keep the Appellant safe in prison and to ensure he did not commit suicide [¶17(x)];j. The support of his family is important to the Appellant and to his mental health, but he would have contact with them from a German prison albeit on a more restricted basis. The German judicial authority could be made aware that initially on his remand the Appellant may find it difficult to adjust and they could take appropriate measures, including monitoring, to ensure he is kept safe. The Appellant would be housed with at least one other prisoner if his suicide risk increases. He would be monitored carefully and should a temporary period of the Appellant being kept alone be required this would be for as short a time as necessary [¶17(xii)].[15]Having heard evidence about the Appellant’s physical health, the Judge came to the following evaluation of the evidence before her:a. The Appellant had mobility issues, but these could be catered for in prison, as when he was remanded at HMP Wandsworth [¶17(xi)];b. The Appellant did not need to use a pelvic wand for his bowel and bladder condition [¶17(xi)];c. The Appellant would have sufficient therapy and treatment for his bowel and bladder condition in custody, albeit it would not be at the same level as the Appellant was currently receiving [¶17(xi)].[16]Having heard evidence from Dr Oehmichen, instructed on behalf of the Appellant, about prison conditions, the Judge concluded that Dr Oehmichen was not an expert on prison conditions and her opinions were not admissible. In any event, there was no evidence to support her views. The Judicial Authority would take the necessary steps to keep the Appellant safe in prison.

The Judge addressed the grounds of challenge before her as follows.

[18]Section 25 Extradition Act - she addressed the legal framework, citing s25 of the Extradition Act that a requested person should be discharged where his physical or mental condition is such that it would be unjust or oppressive to extradite him. She set out relevant caselaw on risk of suicide including the principles set down in Turner v USA [2012] EWHC 2426 (Admin) and Polish Authority v Wolkowicz [2013] EWHC 102 (Admin). She also cited Gromovs v Latvia [2014] EWHC 4155 (Admin); Vincenzo Suricov v Public Prosecuting Office of Bari, Italy [2018] EWHC 401 (Admin); Republic of South Africa v Dewani [2013] 1 WLR 82; Mikolajczyk v Poland [2010] EWHC 3505 (Admin); Magiera v Poland [2017] EWHC 2757 (Admin); Government of the United States of America v Assange [2021] EWHC 3313 (Admin); Modi v India [2022] EWHC 2829 (Admin); and Spanovic v Government of Croatia and Secretary of State for The Home Department [2009] EWHC 723 (Admin).[19]The Judge approached her assessment by considering the cumulative impact of the Appellant’s mental and physical health [¶38]. Applying the principles in Turner, the Appellant did not currently lack capacity to resist the impulse to commit suicide and there was not a substantial risk that he would do so. The risk that the Appellant would succeed in committing suicide, whatever steps are taken, was not sufficiently great to result in a finding of oppression. In any event if she was wrong about that, the German prison authorities could cope properly with the person’s mental condition and the risk of suicide [¶44].[20]The Appellant’s physical health difficulties could also be managed in prison in Germany, as they were in HMP Wandsworth. She could not ignore the serious nature of the alleged offending. The Appellant had failed to engage in recommended treatment, in particular he had refused to take medication for his mental health that would likely improve it. Accordingly, whilst the Appellant has significant mental and physical health conditions, it would not be unjust and/or oppressive to order extradition [¶ 38].[21]Article 8 ECHR - the Judge directed herself to Article 8 of the European Convention on Human Rights and relevant caselaw including Norris v Government of USA (No2) [2010] UKSC 9; Celinksi & Others v Slovakian Judicial Authority [2015] EWHC 1274 (Admin); and HH v Italy [2012] UKSC 25, [2012] 3 WLR 90.[22]The Judge listed the factors in favour of extradition and the factors against extradition before turning to the balancing exercise. There is a high public interest in honouring extradition arrangements. The Appellant has significant mental health issues. He also has physical health issues. Extradition would increase his risk of suicide. Whilst difficult, the Appellant would cope with the support of his close family and his risks could be managed in custody. His family would suffer emotional distress, but they would rally round and support themselves and him. The alleged offending was undoubtedly serious. There had been a delay by the German judicial authorities after the issue of the Interpol red notice. The delay was short (7 months), but it had consequences for the Appellant in that he was arrested in the UK and the delay weighed in his favour. Nonetheless there was a very high public interest in extradition and extradition would not be disproportionate [¶67].[23]Abuse of process - the Judge directed herself by reference to the criteria in USA v Tollman [2006] EWHC 2256 (Admin), Symeou v Greece [2009] EWHC 897 (Admin) and Belbin v France [2015] EWHC 149 (Admin). She rejected the submission that the Judicial Authority had deliberately delayed seeking the Appellant’s extradition from Israel and waited until he was in the UK before arresting him, thereby usurping the statutory regime. The Judicial Authority had not usurped the statutory regime and the conduct complained of was not capable of amounting to an abuse of process. The delay between the Judicial Authority being asked for information and arrest was only seven months which was not long in the context of extradition proceedings. The fact of the matter was that the Appellant had travelled to the UK whereupon he was arrested. IV. Fresh evidence[24]The appellant applies to admit the following fresh evidence which is set out below according to subject matter:a. The appellant’s mental health: i. Letter from Dr Claudia Bernat dated 29 April 2025; ii. Witness statement of Dr Michael Zivor dated 26 March 2024; iii. Letter from Dr Michael Zivor dated 20 April 2025; iv. Letter from Dr R Yadhunanthanan dated 7 May 2025; v. Witness Statement of Peter Crascall dated 2 May 2025:b. The appellant’s physical health: i. Second addendum report of Mr Shahab Siddiqi dated 7 November 2023; ii. Letter from Maria Elliott, physiotherapist, dated 6 July 2023; iii. Expert report of Dr Benjamin Schreiber dated 14 August 2024; iv. Expert report of Dr Ioannis Mavroudis dated 24 February 2025; v. Royal Free Hospital discharge summary letters dated 14 April 2024, 15 April 2024 and 3 May 2024; viii. Expert report of Dr Navneet Singh dated 23 May 2024; ix. Letter from Dr Orlando Swayne dated 24 January 2024 and Medical Report of Dr Orlando Swayne dated 29 April 2025;c. German prison conditions and risk of antisemitic attack: i. Reports of Professor Dr Martin Heger dated 28 March 2024 and 2 May 2025; ii. RIAS Monitoring Report dated 18 October 2023; iii. RIAS Monitoring Report dated 30 November 2023; v. Expert report of Professor Kirstin Drenkhahn dated 1 March 2024; vi. Second addendum report of Dr Anna Oehmichen dated 6 November 2023;d. The appellant’s private and family life: i. Letter from Dr Eli Krichman, Psychiatrist and Psychoanalyst, concerning Dor Cohen dated 5 November 2023 and 4 May 2025; ii. Expert report of Professor Andrew Forrester dated 2 March 2024; iii. Witness Statement of Stefanie Schott dated 19 April 2024;e. Evidence relevant to abuse of process: i. Witness of Statement of Mr Yaslovitzh dated 8 May 2025. V. Legal Framework[25]Section 27 of Extradition Act provides that:(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 hearing or 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. VI. Analysis

The extent of the Appellant’s mental and physical health difficulties

[26]Before the Judge, the Appellant’s brain injury and consequent physical and mental health difficulties were common ground. The extent of those difficulties was however a core evidential issue between the parties.[27]Having heard evidence, the Judge made two findings which underpin much of her subsequent analysis and which were challenged by Mr Fitzgerald on behalf of the Appellant. She found firstly that the Appellant was not as restricted in his day-to-day activities as he claimed to the medical experts. Secondly, she preferred the evidence of Professor Fazel about the extent of the Appellant’s mental health difficulties to that of Dr Attard.[28]It is appropriate to assess the findings against the evidential backdrop before the Judge.

The evidential backdrop

[29]The Appellant relied on reports from specialists in Israel, including a report from Gal Sela a neuropsychologist (dated October 2021) and a clinical opinion from Dr Orit Stein-Reisner, a specialist in psychiatry, dated 18 January 2022. The reports had been produced in the context of contested litigation in Israel about the extent of the Appellant’s disabilities after his accident in 2018. The report of Dr Gal Sala concludes by saying:
“In light of his difficulties it is recommended to set his disability levels at 25%”
. The report of Dr Reisner refers to “-40% permanent disability in accordance with adjusted Section 34(a)(d) of the National Insurance Institute regulations….”. On inquiry this Court was informed that the Judge was aware of the Israeli litigation, which is ongoing.[30]In producing his report, Dr Attard, a forensic psychiatrist instructed on behalf of the Appellant, relied, amongst others, on the reports of Dr Stein-Reisner and Gala Sela. He also relied on the Appellant’s account of relevant matters and observations from the Appellant’s solicitor. Dr Watts, a clinical neuropsychologist relied, in part, on the reports of Gal Sela and Dr Stein Reisner as well as the Appellant’s account of matters.[31]Professor Fazel was instructed on behalf of the Judicial Authority. He identified the ‘medico-legal context’ in which the Israeli reports had been produced. He also considered there to be a disparity between the medical evidence of the Appellant’s difficulties and the Appellant’s actions in travelling to the UK for his honeymoon in November 2022. The Appellant’s actions were, he said, “...not consistent with someone with a severe mental health condition, where typically individuals are too unwell to travel, work at all or motivated to attend cultural activities”.[32]Professor Fazel explained his approach to the assessment of the Appellant’s mental health as follows: “5.1 I note that some of the medical reports included in the case papers were instructed by legal representatives acting for Mr Cohen for specific medico-legal reasons. It is not clear if there have been other commissioned reports that have not been included in the medical bundles. In coming to my clinical opinion, I have considered these reports, but also placed weight on those assessments that are independent of this process, including those conducted in hospital and at HMP Wandsworth”.[33]In relation to the Appellant’s time in HMP Wandsworth Professor Fazel said as follows: “3.10 I read through Mr Cohen’s prison medical records. These are important in so far as the mental health assessments are outside of a direct medico-legal context (ie not undertaken for the purposes of a report in relation to extradition). On reception to HMP Wandsworth Mr Cohen said that he did not find any sounds startle him, reported no previous episodes of self-harm and he also stated that he would “never kill himself due to religious beliefs” (4/11/22 page 225). He was referred and reviewed by the primary mental health team. Mr Cohen appeared in low mood on 5/11/22 and was assaulted by a cellmate on 7/11/22, when he sustained some bruising to an eye and his lip. He reported being depressed and experiencing low mood on 8/11/22 with suicidal thoughts: ‘verging on tears at times’. In this comprehensive assessment, Mr Cohen did not bring up flashbacks. On 9/11/22, he was described as ‘bright and stable’, with no weight loss (10/11/22). He was referred to psychiatry in a non-urgent manner, which was the 4-week waiting list. On 16/11/22, he was described as anxious and denied suicidal thoughts. I did not find any mention of any self harm episode in prison (and it is possible that it was not reported to healthcare staff). Mr Cohen left prison around a week later. The overall clinical picture is quite mixed with a variable mental state, and despite the assault, Mr Cohen was not thought to require urgent psychiatric treatment or assessment by a psychiatrist”.[34]Professor Fazel assessed the Appellant during an interview with him and his wife. The Appellant and his wife took issue with the approach adopted by Professor Fazel at the interview, as explained by Dor Cohen in her witness statements: “Bar was crying, punched a wall and shouted that Professor Fazel wasn’t letting him fully explain his answers …. When we returned to the room Bar tried telling Professor Fazel about some matters that were important to him including his medical history, PTSD and recent self-harm and suicide attempts but Professor Fazel stopped Bar…saying there was not enough time to discuss these and they’re not important…” (second statement of Dor Cohen). “Professor Fazel seemed unaware of Bar’s full surgeries history so Bar tried to explain it to him but Professor Fazel interrupted him saying it’s not important and that he had enough information” (third statement of Dor Cohen). “…Bar tried to further explain the position to Professor Fazel but he said he didn’t need this information...” (third statement of Dor Cohen). “Professor Fazel seemed unaware of Bar’s full surgeries history so Bar tried to explain it to him but Professor Fazel interrupted him saying it’s not important and that he had enough information” (third statement of Dor Cohen). “…Bar tried to further explain the position to Professor Fazel but he said he didn’t need this information...” (third statement of Dor Cohen).[35]The Appellant’s proof dated 16 December 2022 describes the Appellant as struggling with leaving the house, not being able to do anything on his own and needing the help of his wife and mother.[36]The Appellant did not give evidence at the hearing in September 2023. The Judge did not draw an adverse inference in this regard but she addressed the implications as follows: “This is important as the RP made statements to medical experts about his medical conditions and they how they affected him but these accounts were not able to be challenged as he did not give evidence. In particular, he was not able to be asked about accounts he gave about being unable to go out and needing constant help and supervision from his family. Yet, it was clear from other accounts, that he was doing things, such as he got married and he travelled to the UK for his honeymoon, where he was planning on going out to restaurants and to a concert at the O2…..”[¶17(v)].[37]Mr Fitzgerald criticised the Judge’s reference to the Appellant’s ‘accounts’ in the paragraph cited above from the Judge’s ruling as too vague. He submitted the Judge had confused the Appellant’s condition prior to his honeymoon with his subsequent decline and more relevant condition at the time he was assessed by the medical experts. There is, he said, a recurrent theme throughout the judgment that the Appellant had made a significant recovery from his injury which fails to focus on his condition at the date of the hearing (September 2023) and his likely state if extradited. The Appellant’s ability to work in Israel, to marry (in 2021) and later travel to the UK for honeymoon were not of primary relevancesince the key issue was the Appellant’s mental state at the time of the hearing and during 2023, after many incidents of self-harm. The Judge had engaged in a series of temporal leaps, from the Appellant’s period of activity in 2019 to his marriage in June 2021, and to his embarking on a honeymoon in 2022, as if these undermined findings about his grave mental condition at the time of the hearing in September 2023. Moreover, the Judge failed to recognise that even at those earlier stages, the Appellant’s condition was extremely patchy and at all times since 2019 fraught with traumatic flashbacks, panic attacks and more recently impulsive, self-harming behaviours.[38]The report of Dr Stein Reisner dated 18 January 2022 described the Appellant as having deteriorated after further surgery in 2020 and experiencing “a severe crisis and a deterioration in his condition in every regard which continues to this day”. His treating psychotherapist, Tali Katz, records feelings of hopelessness, sleepless nights and nightmares throughout the months from February to October 2022. Dor Cohen records her husband having a panic attack in July 2022. Yet, despite these apparent difficulties the Appellant embarked upon a honeymoon to the UK in November 2022. He had booked tickets for a concert at the O2 Arena and made plans for other cultural activities, before the plans were cut short by his arrest at Heathrow airport. The Judge had before her the opinion of Professor Fazel that the Appellant’s activities were not consistent with an individual in the grip of severe mental health difficulties, as suggested by the above-mentioned reports. The Judge was entitled to contrast the account in the Appellant’s proof and the medical reports of the Appellant’s physical and mental health difficulties with the Appellant’s actions during the same period and to conclude he was not as restricted in his activities as he had claimed.[39]In oral submissions Mr Fitzgerald embarked on a forensic assessment of the relevant medical reports to submit that they are, on analysis, consistent with the Appellant’s actions. He also criticised Professor Fazel for alleged errors in his factual understanding of the Appellant’s history. However, the Judge was not making forensic findings in this regard. She was simply directing herself as to the need to exercise caution in her approach to the evidence. By not giving evidence at the hearing the Appellant’s account of the extent of his health difficulties had been largely mediated through the evidence of his treating clinicians who were not called to give evidence and whose evidence could not be tested. Some, at least, of the medical reports from Israel had been produced in the context of contested litigation about the extent of the Appellant’s health difficulties. Her approach was legitimate: “60 . …national authorities and their courts must apply a rigorous yet pragmatic and circumspect approach to the evaluation of evidence. Case C-578/16 PPU CK et ors v Republic of Slovenija (16 February 2017) (“CK”) is not authority for the proposition that the authorities or the courts must accept without question or challenge the evidence of a requested person that his or her condition is so serious that any act of transfer to enable that person to face justice in a state where he or she has committed or allegedly committed a crime should suffice to prevent transfer ….. 64 the Court was conscious that those opposing removal might exaggerate their condition or make statements to medical experts designed to generate the evidence needed to defeat the threatened removal. …. The authorities (and the courts) are bound to form their own considered judgment not only of the quality of the evidence before but also as to the risk that it has been exaggerated for forensic ends.” (Bobbe v Poland [2017] EWHC 3161 (Admin)). The Judge’s preference for the evidence of Professor Fazel[40]The Judge concluded that Dr Attard and Professor Fazel were both credible witnesses but she preferred the evidence of Professor Fazel. She explained her reasons as follows:
“I did however note that the presentation of RP in his interview with Professor Fazel was somewhat different to that when he saw and spoke to experts instructed on behalf of the RP. I find that this is important, as it was clear, based on subsequent complaints made by the RP and his wife, that they saw Professor Fazel as somewhat hostile. For the avoidance of doubt, I do not find that Professor Fazel was anything other than professional in his interview and that he was merely performing the task he had been asked to do. That said, the RP and his wife clearly wanted to direct the way in which the interview took place, which seems to have been allowed by the experts instructed by the defence, but Professor Fazel did not allow this. Therefore, I find that this means that the presentation of the RP in this interview may have been more realistic and given a truer picture of the RP’s mental health condition.”
[41]Mr Fitzgerald submitted that these reasons were irrational. They suggested that Dr Attard had permitted the Appellant to direct the interviews yet Dr Attard and Dr Watts had considered, and discounted, the possibility of malingering. The Judge had failed to address the significance of finding the Appellant had PTSD which was contrary to the opinion of Professor Fazel. The Professor’s opinion in this regard was contrary to the opinion of all the other medical experts. The fact of his atypical and unsustainable view should have called into question his wider analysis of the Appellant’s condition. The Judge had made a ‘core error’ in this regard because Dr Attard’s evidence was that patients with a history of both PTSD and depression have a suicide rate higher than that associated with the presence of one condition alone. Professor Fazel had given inadequate reasons for rejecting the views of the other medical experts some of whom had treated the Appellant for years whilst he had had limited opportunity to observe and examine the Appellant. Factual inaccuracies founded a number of his conclusions and he had failed to engage with the gravity and impact of the Appellant’s brain injury.[42]The hearing before the Judge lasted four days and she heard evidence tested under cross examination which this Court has not had the benefit of hearing. It is well established that an appeal court should be slow to interfere with findings reached by a Judge after hearing evidence. Whilst the general proposition may be said to be tempered in the case of expert evidence and written reports, it is apparent that the expert evidence developed in material ways during oral examination. For example, Professor Fazel conceded that Appellant’s depression was moderate rather than mild and Dr Watts accepted the Appellant’s suicide risk would be manageable in the German prison environment if treatment was the same as in a UK custodial setting.[43]The Judge explained her reasons for preferring Professor Fazel’s evidence. Her reasoning is consistent with her earlier self-direction about the need to take a cautious approach to the evidence before her.[44]Having heard the evidence, the Judge was entitled to rejected Professor Fazal’s opinion that the Appellant was not suffering from PTSD whilst nonetheless accepting his opinion that the Appellant had mild to moderate depression which was not such as to remove his capacity to resist the impulse to commit suicide. The Appellant’s own expert, Dr Attard, expresses the opinion that the evidence in the literature clearly suggests a strong link between depression and suicide risk [¶143].[45]In his report Professor Fazel explained that he had reached a view about the severity of the Appellant’s depression based in part on the Appellant’s decision not to take anti-depressant medication but to engage instead in therapy [¶ 5.3]. In coming to her assessment of the Appellant’s mental health difficulties it is apparent the Judge attached particular weight to the Appellant’s decision in this regard: “I bear in mind, as set out above, that the RP has failed to engage in treatment which has been recommended. I cannot ignore the fact that the RP is able to take medication for his mental health that would likely improve it but he has refused to do this.” [¶52].[46]The Appellant’s own experts agreed with Professor Fazel that medication would improve the Appellant’s mental health. Dr Attard explained that treatment with anti-depressant medication is likely to be of significant importance in ameliorating the symptoms of PTSD and reducing the risk of suicide. In oral evidence Dr Watts accepted the Appellant had capacity to make decisions including deciding not to take medication which in conjunction with the other therapies, would have a better outcome generally, in relation to his depression. In response, Mr Fitzgerald highlighted the Appellant’s reason for not taking the medication, said to be his PTSD, but there is no indication before the Court that the Appellant has sought the psychological support to assist him in taking the medication as recommended by Dr Attard.[47]The Judge was entitled to prefer the evidence of Professor Fazal. VII. Grounds of Appeal Ground 1 – Section 25 Legal framework

Ground 1 – Section 25

[48]Section 25 of the 2003 Act provides as follows:
"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."
[49]The concept of extradition being " unjust or oppressive " has a long history in extradition law. As explained in Kakis v The Government of the Republic of Cyprus [1978] 1 WLR 772 , by Lord Diplock at pages 782-783: "…"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 consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair…"[50]Under established principles whether there is "oppression" or "injustice" is to be determined by the nature and gravity of the conduct alleged and the enduring public interest in extradition and prevention of safe havens (Government of the Republic of South Africa v Dewani (No. 1) [2013] 1 W.L.R. 82 at [¶74]).[51]The law relating to oppression and suicide risk is set out in a series of well-known propositions at [28] of the judgment in Turner v Government of the United States of America [2012] EWHC 2426 (Admin) and developed, in relation to the management of risk, in Polish Judicial Authority v Wolkowicz and others [2013] EWHC 102 (Admin) at [10]. It is not necessary to repeat the analysis. It will rarely be necessary to look outside the two authorities for the applicable principles (Government of the United States of America v Assange [2021] EWHC 3313 (Admin) [2022] 4 WLR 11).

Submissions on behalf of the Appellant

[52]Mr Fitzgerald submitted the District Judge was wrong to find extradition was consistent with s25 of the Act. He identified the following failings which, individually or collectively, led to the Judge making a decision that was wrong:a. The Judge wrongly focussed on suicide risk rather than the cumulative impact of the Appellant’s mental and physical health and the gravity of the inevitable deterioration on extradition.b. The Judge wrongly preferred the evidence of Professor Fazel on suicide risk.c. The Judge unreasonably concluded that there was no substantial risk the Appellant would commit suicide.d. The Judge wrongly found the Appellant could control the impulse to commit suicide and the risk could be managed on extradition.e. The Judge wrongly relied upon Dr Watt’s supposed assumptions about safeguards within the German prison estate.f. The Judge reached an unreasonable conclusion on the impact of extradition and incarceration on the Appellant’s physical health.g. She wrongly ignored the totality of Dr Oehmichen’s evidence on the inadequacy of healthcare within the German prison estate.[53]In addition, Mr Fitzgerald submitted the decision in Modi v Government of India [2022] EWHC 2829 (Admin) refines the Turner tests in two significant ways. Firstly, it makes clear there is no mandatory requirement for an irresistible impulse to commit suicide, provided the urge to commit suicide arises from mental disorder and not from a rational decision to take the requested person’s life [¶128-129]. Secondly, the decision explains the interplay between the ‘whatever steps are taken test’ in paragraph 3 of Turner and the separate considerations of the reasonableness or adequacy of the preventative steps taken in the requesting state at paragraph 6 of Turner ([¶116]). The Appellant’s condition after extradition would be so serious and his long history of impulsive self-harm and suicide attempts were such that he would sooner or later commit suicide whatever steps were taken. In any event the detection and prevention of his impulsive suicidal tendencies would be extremely difficult. This was Dr Attard’s evidence and the Judge never properly addressed this point.

Analysis of Ground 1

[54]Mr Fitzgerald’s criticism that theJudge wrongly focussed on suicide risk rather than the cumulative impact of the Appellants mental and physical health and the gravity of the inevitable deterioration on extradition is not borne out by a reading of the judgment.[55]In her recitation of the legal framework, the Judge directed herself to Surico v Public Prosecuting Office of Bari Italy [2018] EWHC 401 (Admin)) for the proposition that it is not just the risk of suicide the court needs to consider. If the evidence discloses that extradition may result in a deterioration in a person’s mental health so that they will become seriously unwell if they are extradited then that might serve to establish the necessary oppression for the purposes of section 25 [¶42]. The Judge reminded herself of the general guidance that the s.25 test is a fact specific process which requires having regard to ‘all the relevant circumstances’ (South Africa v Dewani [2013] 1 WLR 82, at [¶73]).[56]Significantly, she directed herself as follows:
“There was an issue raised at the end of the final hearing about whether section 25 applies to the physical or mental health of the RP or whether I can consider the physical and mental health of the RP together. In other words whether section 25 should be read to look at the physical health of the RP and the mental health of the RP separately and not both together, on a cumulative basis. I find that whilst the Act does refer to the mental or physical health of the RP I cannot consider those in isolation and I have to consider both. In other words whist the physical health of the RP on its own or indeed the mental health of the RP alone may not be sufficient to find it would be unjust and/or oppressive to extradite the RP, the two considered together could amount to a finding of injustice and/or oppression.”
[57]The Judge noted the evidence on behalf of the Appellant about the likely deterioration in his condition on extradition. This included Dr Attard’s evidence of a likely ‘substantial deterioration’ [¶17(x)], Dr Watts’ evidence of the risk of a ‘very significant deterioration’ in a prison setting [¶17(x)], Dr Siddiqi’s evidence, that, ‘if the RP’s mental health deteriorated then his physical condition would get worse.’ [¶17(x)] and Ms Henshaw’s evidence that having limited or no access to therapy would result in a ‘significant deterioration in his level of function’ [¶17(x)]. She accepted that extradition would likely result in a deterioration of his mental health and also his physical health to some extent [¶63]. Nonetheless, having heard the evidence she concluded that the mental and physical deterioration could be managed in custody.[58]For reasons explained above in paragraphs [¶42-45] the Judge was entitled to prefer the evidence of Professor Fazel that the Appellant’s suicide risk did not amount to a substantial risk and the Appellant’s mental disorder was not such as to remove his capacity to resist suicide. The Judge explained her reasons for rejecting Dr Attard’s evidence, which reflect the ‘rigorous yet pragmatic and circumspect’ approach to the evidence required of her (Bobbe v Poland [2017] EWHC 3161 (Admin) at [¶60]): “in relation to the issue of capacity, I do prefer the evidence of Professor Fazel as he has taken into account factors, such as the RP being able to go out, travel and engage with therapies, including whether to take medication, which I do not feel that Dr Attard placed sufficient weight to. Therefore, I find that the RP does have capacity. In other words, I find that the RP’s mental disorder is not such that it removes his capacity to resist suicide. I note that Dr Attard in his evidence said that there would be a high risk that the RP’s capacity or ability to resist the impulse or desire to commit suicide would be removed or greatly reduced to the point that his decision to commit suicide would not be a free and voluntary decision, should the RP be extradited. That said, I do not find that appropriate weight was given by Dr Attard in this case to the choices that the RP makes in relation to his treatment, therapies etc. I do not find that the RP’s capacity to resist the impulse to commit suicide would be removed in this case”.[59]The Judge did not misdirect herself by considering suicide had to be an overwhelming prospect before a finding of oppression arises. Her reference to the analysis of the Court in Gromovs v Latvia [2014] EWHC 4155 (Admin) comes after her lengthy citation of the caselaw including Turner v Government of the USA [2012] EWHC 2426 (Admin) and Polish Judicial Authority v Wolkowitz and others [2013] EWHC 102 (Admin) as well as her citation from Government of the United States of America v Assange [2021] EWHC 3313 (Admin; [2022] 4 WLR 11) that it is unnecessary to refer to cases other than Turner v Government of the USA and Wolkowitz and others. Collins J’s analysis at [¶10] of Gromovs underscores the principle that a finding that extradition should be barred because of suicide risk should not be lightly made. Read fairly and in context, the Judge treats the analysis of the Court in Gromovs as consistent with the propositions in Turner and as simply as further expression of her findings.[60]Despite finding there was no substantial risk the Appellant would commit suicide, the Judge went on, consistently with Turner and Wolkowicz to consider whether the risk to the Appellant could be managed within the German prison estate.[61]When a requested person is received by a requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary (Wolkowicz v Regional Court in Bialystock, Poland [2013] EWHC 102 at [¶10]).[62]There is no strong evidence to the contrary in the present case. Professor Fazel concluded that, ultimately, the Appellant’s suicide risk would depend upon how the Appellant was managed on extradition. The Appellant’s mental health needs could be met in a custodial setting assuming the standard of mental health care in a German prison is at least as good as that found in the UK. The Appellant’s own expert, Dr Watts, agreed with Professor Fazel’s view that the Appellant could be kept safe in custody, evidence to which the Judge attached weight: “That said, even if I am wrong about that, the issue is what steps can be taken in German prisons by the authorities. Professor Fazel was of the view that, assuming the German JA have similar provisions to that in UK prisons, they would be able to take steps to keep him safe. I agree. I also bear in mind that this was the oral evidence of Dr Watts, which I will turn to next. …… Dr Watts stated that he assumed that there would be an equivalent of medical care in person in Germany to that in the UK and that the German JA would transfer the RP to a hospital in forensic setting, which would address the RP’s needs if that was needed. ….. Dr Watts explained that the RP’s ability to manage day to day, with no family, would be better within the community and that if the RP were in a prison setting without family support would be a huge impact on him. He stated that there would be a very significant deterioration in the RP’s mental state within a prison setting. That said, he told me that prisons can take steps to keep the RP safe in prison, such as monitoring the RP closely and undertaking Mental Health assessment, providing the RP with psychological support and ultimately a transfer to hospital if that was deemed necessary. I find that this is important. As it is clear to me, despite the evidence of Dr Attard, that the RP can, and would be, kept safe in prison…… and that they would be able to take steps to ensure he did not commit suicide”.[63]Mr Fitzgerald criticised the Judge for accepting the assumption of Dr Watts about the nature of healthcare in the German prison system. However, the assumptions were supported by further information from the Judicial Authority (5 May 2023) before the Judge. On arrival at Wurzberg Prison, the Appellant will undergo an initial medical and psychiatric examination. The accommodation to which he will be assigned would depend on his mental state. A facility for one-to-one meeting with the prison psychologist will be available. There will also be an option of seeing a psychiatrist who can prescribe medication. Even if a prisoner does not pro-actively seek out assistance, an appointment can be arranged for him in the event of concerns about mental health. A prisoner will be regularly visited by the prison psychologist if there are concerns about suicide risk. If a prisoner is classed as latently suicidal, he will be housed together with at least one other remand prisoner. If an initial medical and psychiatric examination is not possible on the day of arrival the prisoner will be placed in a specially secured room in the psychiatric ward if there is an existing suicide risk or acute suicidal tendency. Camera monitored detention rooms are available in the psychiatric ward for individual or communal accommodation. The cameras have night vision.[64]Mr Fitzgerald submitted the Judge’s finding that the Appellant would not be placed in isolation was based on a misreading of the further information. Further, the Judge should not have rejected Dr Oehmichen’s evidence as a whole, even if certain aspects were inadmissible (which was not accepted). The Judge wrongly discounted Dr Oehmichen’s evidence that if the Appellant was found to be a suicide risk he would be placed in isolation and could be subject to mechanical restraint. Her evidence in this regard turned on a recitation of German law which was within her expertise. Her evidence about the significant limits on family visits (2 hours a month) and phone calls (two phone calls of 20 minutes a month) on remand at Wurzburg prison was unchallenged. There would be even further restriction in relation to the post remand period. One of the concerns raised by Dr Oehmichen was that it was ‘common practice’ for someone subject to constant observation for suicide risk concerns to have the light turned on in their room overnight every 15 minutes, and the flap noisily opened. This was said to have a ‘significant impact on the inmate’s mental wellbeing.’ It meant those subject to an acute suicide risk would find it almost impossible to have an undisturbed night’s sleep, rendering their mental condition even more precarious.[65]The Judge was entitled to conclude that Dr Oehmichen was not an expert on the German prison estate (Brazuks v Latvia [2014] EWHC 1021 (Admin) at [42]). Dr Oehmichen is a German criminal defence lawyer. She does not have direct personal experience of German prison conditions. The Judge explained her difficulty with Dr Oehmichen’s evidence was that much of it was outside her experience as a lawyer. The Judge’s ruling records Dr Oehmichen as conceding in cross examination that she did not have prior expertise on inter-prisoner violence and antisemitism and had only researched the issues for the purposes of her report for the Appellant. The Judge was right to find Dr Oehmichen was not entitled to express an opinion on prison conditions as she had not inspected prisons in the way required for someone to be an expert. Whilst Dr Oehmichen was entitled to assist the Court by providing the relevant open source material, the Judge found she had cited the relevant material selectively: “Further it was a concern to me that not all relevant documents had been referred to by her. For example, she had not referred to the response of the German JA to the CPT report which is of course a highly relevant and important part of any open source material”.[66]The Judge accepted the support of his family is important to the Appellant. She also accepted that family visits would be restricted, as in a UK prison. Nonetheless, she found, as she was entitled to on the evidence, that the Appellant, would have contact, albeit on a more restricted basis [¶17(xii)]. The further information from the Judicial Authority confirmed that the relevant prison has night vision capable camera monitored rooms in the psychiatric ward so Dr Oehmichen’s concern about observations to manage the Appellant’s suicide risk disturbing him is not borne out. The Judge acknowledged the Appellant could find himself alone in a specially secured room in the event of acute suicidal tendencies but concluded that the Judicial Authority would take the necessary steps to keep the Appellant safe and that, ‘they would monitor this carefully and should a temporary period of the RP being kept alone be required, this would be for as short a time as necessary.[67]In relation to concerns about antisemitism, the further information from the Judicial Authority did not support Dr Oehmichen’s concerns: “In order to prevent any antisemitic attack, the prisoner would at the beginning of his detention be offered the opportunity to contact the staff responsible for him at any time if he observes any signs of antisemitic behaviour on the part of fellow prisoners. The staff would be ordered to be particularly vigilant if there is any suspicion of an antisemitic attack; the prisoner’s environment is observed by the ward officers. In order to avoid altercations, Jewish prisoners, for example, are generally not housed together with Muslim prisoners in a detention room at Wurzburg Prison. This serves as a preventative measure to ensure that even discussions about religion and faith are prevented, at least in the detention area. The ward officers are also sensitised and pay special attention to any specific developments in this direction, which they then report to the department management. In the present case, central placement would take place in the remand centre in order to enable close monitoring by the officers stationed there. Should antisemitic incidents nevertheless occur, the offenders would be physically separated from then on. In addition, disciplinary measures would be consistently taken and criminal charges would be filed against the perpetrators” [¶46.5iii]. … …. A general precautionary separate accommodation of Jewish prisoners in a specially protected area does not take place and is not considered necessary. However, if there were any concrete indications of such a risk, a separation of prisoners suspected of having antisemitic bias could be considered. Over the past 20 years, no antisemitic attacks were recorded in the St. Georgen Bayreuth prison. There are also, today, prisoners of the Jewish faith in the St. Georgen-Bayreuth prison without any problems ever arising in this regard” [¶46.6. iii].[68]Given the Judge was entitled to reject the Appellant’s case that he would commit suicide whatever steps were taken by the prison authorities, it is not necessary to consider whether or not the decision in Modi refines the Turner principles in this regard or whether the decision is to be considered as a case ‘demonstrating the practical approach to be adopted to the principles identified in Turner.’ (Hegary v Spain [2014] EWHC 1280 (Admin) at [¶16].[69]Mr Fitzgerald submitted the Judge reached an unreasonable conclusion as to the impact of extradition and incarceration on the Appellant’s physical health. Ms McCarthy did not examine the Appellant and did not seriously dispute the diagnoses of Mr Siddiqi as to pelvic floor dyssynergia and complex pain syndrome. The Judge wrongly focused on the pelvic wand and the Appellant’s experience in HMP Wandsworth which could not have reasonably provided the Judge with reassurance. Further the Judge failed to have any, or any proper regard, to the complex interrelationship of the Appellant’s medical conditions.[70]Having heard evidence about the Appellant’s physical health

the Judge concluded as follows:

“whilst I accept that the RP has mobility issues and uses a crutch to mobilise, this could be catered for in prison as it was when he was remanded at HMP Wandsworth … The more problematic issue for the RP is his bowel/bladder condition. …..Therefore, I find that the wand has no benefit to the RP and he does not need this….. The RP, whilst I accept he has difficulties, coped whilst he was in prison. His physical conditions were managed in prison, albeit for a fairly short period of time. Nevertheless, I find that this is important. I also note the evidence of Ms McCarthy, which is that these conditions can be managed in prison, with visits to professionals as and when required. I accept that the RP is not going to have the same level of therapy as he currently received but he will, I find, have sufficient therapy and treatment for his condition to be managed”
. Further, whilst I accept the evidence that stress can make his physical conditions worse, I find that this would be for relatively short time as he adjusts to being in prison in Germany, as it was when he first went to prison in the UK. The UK prison authorities managed his condition and I find the German prison system would do the same. I note that the RP did not require hospitalization for any of his conditions when he was remanded in the UK and I find that the prison system in Germany would take such steps as necessary to manage his condition”.[71]The Judge was entitled to proceed on the basis of the evidence of Ms McCarthy that the Appellant’s condition can be managed in prison. There was no challenge to her evidence in this regard. The Appellant’s remand in HMP Wandsworth provided objectively verifiable evidence of how the Appellant managed in custody (Bobbe v Poland [2017] EWHC 3161 (Admin)). She acknowledged the remand in HMP Wandsworth was short. The prison records paint a different picture to the Appellant’s accounts of his difficulties in several material respects. The Appellant told Dr Attard he did not empty his bowels for 11 days in prison but the prison records demonstrate the Appellant did not report any difficulty opening his bowels during his time there. The Appellant’s proof describes blood seeping from his ear after an antisemitic attack by his cellmate. The only relevant reference in the prison medical records is to a diagnosis of a bleed from an ear infection several days earlier on his arrival in custody.[72]As the Judge found, the Appellant has chosen not to take medication recommended by Professor Fazel, Dr Attard and Dr Watts to improve his mental health. He has the means to call, instead, upon a wide range of privately funded therapy services to relieve his symptoms which will not be available in a prison setting in either the UK or Germany. This cannot form the basis for finding extradition will be oppressive. The threshold for the demonstration of oppression was described in Mikolajczyk v Wroclaw District Court [2010] EWHC 3503 at [¶16] as follows:
"It is important to understand how section 25, and allied arguments under Article 3 and Article 8, should be approached. It is not necessary for the requesting state to demonstrate that it will replicate the conditions which an appellant enjoys, either in prison in the United Kingdom or out of prison in the United Kingdom. The threshold for showing that it would be oppressive to extradite someone on account of their physical condition is necessarily a high one… It is of course possible that treatment will be less satisfactory in Poland than in the United Kingdom, but the question is whether the difference in treatment would mean that extradition was oppressive. It is for the appellant to demonstrate that that is so."
[73]The Judge’s conclusion that the German prison authorities can manage the Appellant’s health and his suicide risk was not wrong. In coming to her assessment that extradition would not be oppressive or unjust she was entitled to take into account the seriousness of the alleged offending (“there is a public interest in giving effect to treaty obligations and this is an important factor to have in mind” Turner v Government of the USA [2012] EWHC 2426 (Admin) at [¶28]).[74]The flaws contended for by Mr Fitzgerald are not made out and the judge was entitled to conclude that extradition would not be oppressive or unjust. The fresh evidence is considered below. Ground 2: Article 8 European Convention on Human Rights The legal framework

Ground 2: Article 8 European Convention on Human Rights

[75]The question raised by Article 8 ECHR in the extradition context is whether the interference with the private and family life of the person whose extradition is sought is outweighed by the public interest in extradition. There is a constant and weighty public interest in extradition, ensuring that those accused of crimes should be brought to trial and in the UK honouring its international obligations. That public interest will always carry great weight, but the weight will vary according to the nature and seriousness of the crime involved. Each case turns on its own facts as found by the Judge and the balancing of the considerations referred to above. Whilst there is no test of exceptionality “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”. The test is always whether the gravity of interference with family life is justified by the gravity of the public interest pursued Norris v Government of the USA (No.2) [2010] UKSC 9, [2010] 2 AC 487 and HH v Italy [2012] UKSC 25, [2-12] 3 WLR 90 at [¶8].[76]The single question for the appellate court is whether or not the District Judge made the wrong decision. The test laid down in Love v USA 2018 EWHC 172 Admin [25- 26] is whether crucial factors should have been weighed so significantly differently that the decision should be considered wrong. Findings of fact, especially if evidence has been heard, must ordinarily be respected. The focus must be on the outcome, that is on the decision itself. Although the District Judge’s reasons must be considered with care, errors and omissions do not of themselves necessarily show that the decision on proportionality itself was wrong (Celinski v Poland [ 2016] 1 W.L.R. 551).

Submissions on behalf of the Appellant

[77]Mr Fitzgerald submitted that in conducting the balancing exercise the Judge was obviously and seriously mistaken in a number of respects. She failed to attribute the proper weight to the unique and compelling combination of features in this case and her decision was wrong. She failed to adequately reflect the extreme gravity of the Appellant’s condition and the high risk of suicide and certainty of deterioration. Even if the threshold for oppression under section 25 was not met, the very real risk of suicide and certainty of deterioration remain highly relevant to the lower test on proportionality under Article 8. The Judge failed to reflect the disastrous effect of extradition on the Appellant’s family and did not give any real recognition to the effect on each member of the family. The Judge failed to reflect the significant difference between financial offending and violent offending. The decision not to seek the Appellant’s extradition from Israel and the opportunistic application to seek his extradition from the UK under a more favourable regime made the current extradition request all the more disproportionate. The lack of urgency in seeking the Appellant’s extradition from Israel was relevant to the public interest in obtaining his extradition from the UK. The Judge failed to give any weight to this unexplained delay.

Analysis of Ground 2

[78]Mr Fitzgerald did not seek to challenge the Judge’s assessment of the legal framework and relevant general principles to be applied. He accepted that the judge conducted the ‘balance sheet’ exercise required by Celinski. He did not suggest the Judge failed to take a crucial factor into account. The suggestion was made in written submissions that the Judge failed to reflect the significant difference in seriousness between financial offending and other offences, particularly those of violence. Reliance was placed in this regard on the case of Lysiak v Poland [2015] EWHC 3098 but the relevant reference at ¶42 of the judgment cannot be read as establishing any general proposition to this effect. Lysiak was concerned with fraud worth approximately £130,000 (as opposed to €14 million in the present case). More recently, in El-Khouri v USA [2023] EWHC 1879 (Admin), a case involving insider trading, the Divisional Court declined to contrast the seriousness of financial crime and violence and drug-related offences [¶96].[79]The focus of Mr Fitzgerald’s submissions was on the weight afforded by the judge to the factors she identified. An appeal can only succeed on this basis if crucial factors should have been weighed so significantly differently that the decision should be considered wrong (Love v USA [2018] EWHC 172 (Admin) [26].[80]The Judge acknowledged the Appellant’s brain injury and its lasting effects. She acknowledged his significant mental health issues; the likelihood of a deterioration in his mental and physical health on extradition with consequent difficulties. She acknowledged his increased risk of suicide on extradition. Nonetheless she found the Appellant had made a significant recovery from his accident and he would cope in custody, with the support of his family. The prison would take the necessary steps to keep him safe. The Judge acknowledged the emotional distress to the Appellant’s family and the difficulties they would face on extradition. She acknowledged their closeness as a family but found they would rally round and support one another and the Appellant as they had been doing since his arrest in the UK. The family had the financial means and will to support one another.[81]On the evidence before her and for reasons explored earlier in this judgment, the Judge was entitled to conclude the Appellant was not as restricted in his daily activities as claimed. She was entitled to prefer the evidence of Professor Fazel about the extent of the Appellant’s mental health difficulties. She was entitled to consider the German prison authorities will be able to manage the risks associated with the Appellant’s health and to take account of the support provided by the Appellant’s wife, mother and his sister since his arrest.[82]The Judge acknowledged the consequences to the Appellant of the delay by the German authorities in seeking extradition after issuing the Interpol red notice. She considered this weighed in the Appellant’s favour in the balancing exercise. Nonetheless she was entitled to conclude the delay was short, particularly given the complexity of the alleged offending.[83]The Judge was not wrong therefore to conclude that the gravity of the interference with the Appellant’s private and family life was outweighed by the gravity of the public interest pursued in seeking extradition for allegations of serious financial offending across Europe, with an estimated loss of 14 million Euros and said to have been masterminded by the Appellant.[84]The fresh evidence is addressed below. Ground 3 Abuse of process Legal framework

Ground 3 Abuse of process

[85]A judge conducting extradition proceedings has jurisdiction, and a duty, to consider an allegation that the procedures of the court are being manipulated to oppress or unfairly to prejudice a defendant before the court. Nonetheless, a judge should be alert to the possibility of allegations of abuse of process being made by way of delaying tactics (R v Liverpool Stipendiary Magistrate ex parte Ellison [1990] RTR 220 and Tollman v USA [2006] EWHC 2256 (Admin)).[86]In the extradition context, the starting-point for any allegation is the fundamental assumption that the requesting state is acting in good faith. This is a premise of effective relations between sovereign States. The assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence where it is presented. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force (Ahmed v USA [2006] EWHC 2929. In the present case there is, in addition, a well-recognised relationship of mutual trust and confidence arising from the fact that Germany is an EU Member State and signatory of the ECHR as well as the Trade and Cooperation Agreement and Framework Decision (see Krolik v Poland[2013] 1 WLR 490 at [¶5]. Cogent evidence of abuse will therefore be required to displace the premise of mutual trust between judicial authorities (Belbin v France [2015] EWHC 149 (Admin)).

Submissions

[87]On behalf of the Appellant Ms Hill submitted that a prima facie case of abuse arises from the failure of the German authorities to provide the prima facie evidence required by Israeli law and requested by the Israeli authorities and their subsequent refusal to explain the failure to seek the Appellant’s extradition from Israel. The Judge was wrong to conclude otherwise. Ms Hill pointed to Article 87 of the Interpol Rules on the Processing of Data (2019) which provides that after being notified of the location of a suspected person the requesting country ‘shall act immediately’ and ‘ensure the swift transmission of data and supporting documents’ requested.

Analysis of Ground 3

[88]The agreed chronology of relevant matters is as follows:a. 14 March 2022: the German National Central Bureau posted an alert on the Schengen Information system (SIS II) seeking information from Schengen countries about the Appellant.b. 22 March 2022: German National Central Bureau issued an Interpol red notice, with worldwide effect, seeking information about the Appellant.c. 29 March 2022: Interpol Jerusalem confirmed via email that an individual matching the name and date of birth of the Appellant was in Israel. The email went on to explain that in order for the Israeli Ministry of Justice to consider the request for provisional arrest pending extradition a formal extradition request was required, including prima facie evidence via diplomatic channels.d. 2 November 2022: UK Interpol emailed the German National Central Bureau notifying them the Appellant was due to arrive in the UKe. 3 November 2022: the Appellant was arrested on arrival at Heathrow Airport.[89]The Judicial Authority placed an alert on the EU Schengen Information System (“SIS II”) prior to issuing the Interpol diffusion request on 22 March 2022. That order of priorities indicates that seeking extradition from the EU/UK had been considered from the outset. The effect of placing the SIS II alert was that whenever the Requested Person entered an EU Member State the alert was always going to be triggered. The chain of events which led to the issuing of the TACA Warrant began on 14 March 2022 when the SIS II alert was placed. Ms Hill did not seek to suggest that there was anything improper about the SIS alert being placed.[90]The Judge was entitled to conclude that the seven month gap between Interpol Jerusalem notifying the German authorities of the Appellant’s presence in Israel and his subsequent arrest was relatively short in the context of extradition proceedings. Article 87b of Interpol’s data processing rules refers to the requesting authorities acting ‘immediately’ after a suspect has been located. However, the Article also refers to doing so “within time limits specified for the case in question”. No information was put before this Court as to the relevant time limit. However, in assessing delay, it is relevant to consider the complexity of the alleged offending which relates to cyber trading and a money laundering network throughout Europe over a period of approximately five years. Moreover, as the Judge observed in her ruling, the fact of the matter is the Appellant precipitated his arrest by leaving Israel to travel to the UK.[91]The Appellant’s extradition has been sought pursuant to the safeguards provided by the Extradition Act and the Trade and Cooperation Agreement. As was common ground, there is no obligation on the part of the prosecuting authorities to pursue extradition from Israel and a person under investigation is not entitled to be arrested in his home country.[92]The Judge was entitled to conclude that the material falls far short of the cogent evidence required to justify a finding that the conduct was capable of amounting to an abuse of process and did not call for a response from the Judicial Authority (Tollman v USA [2006] EWHC 2256 (Admin) at [84]). VIII. Fresh evidence[93]The Appellant seeks permission to adduce the fresh evidence listed at paragraph [24] above and which may be summarised as set out below.

Diagnosis of epilepsy

[94]Since the hearing before the Judge the Appellant has been diagnosed with epilepsy, of moderate to severe frequency, occurring 2 – 3 times weekly (report of consultant neurologist, Dr Mavroudis, dated 24 February 2025 and letters from Dr Swayne consultant neurologist dated 24 January 2024 and 29 April 2025). The condition could become life threatening in custody. The Appellant’s condition may stabilise if he remains in a supported environment at home with access to specialist care. In a custodial setting his condition is likely to deteriorate significantly due to stress, the possibility of delays in specialist care and environmental instability (Report of Dr Mavroudis).

Fibromyalgia

[95]The Appellant suffers from severe fibromyalgia which is a poorly understood condition, with symptoms of generalised pain, tenderness, severe fatigue, reduced cognitive performance and poor sleep. The condition is most likely to reflect the Appellant’s mental health and state of mind. Extradition will make the condition worse (Dr Schreiber, a Consultant rheumatologist dated 14 August 2024).

Colorectal/pelvic floor conditions

[96]The Appellant’s physical condition has worsened. His symptoms would be exacerbated even further by a custodial setting (Mr Siddiqi, colorectal surgeon, update report dated 7 November 2023).

Hospitalisation

[97]The Appellant’s medical condition has necessitated hospitalization on at least three occasions (The Royal Free Hospital discharge summary letters, dated 14 April 2024, 15 April 2024, 3 May 2024).

The need for physiotherapy

[98]The Appellant’s physical health and mental wellbeing has deteriorated. An ‘ideal treatment plan’ is provided (Report from Maria Elliot, a physiotherapist dated 28 April 2025).

Risks of a further head injury

[99]Whilst the Appellant has made a good neurological recovery his previous head injury will make the impact of any further head injury more serious (Mr Singh, a consultant neurosurgeon (23 May 2024).

The Appellant’s mental health

[100]The Appellant’s mental health has deteriorated significantly since the hearing in September 2023. Medical cannabis and ketamine infusions provide the most substantial relief (letter from Dr Bernat, treating consultant psychiatrist dated 29/4/25). The Gaza war has had a significant impact on his wellbeing. He is struggling with suicidal ideation. His family are the only protective factor. On average he has approx. 3 – 4 incidents of significant panic attacks/self-harm once a week (Dr Zivor, treating clinical psychologist (26/3/24)). The risk of suicide is still high and the protective factor is his family (Dr Zivor (20/4/25)). The Appellant is taking ketamine and his condition is rapidly worsening and the level of care required far exceeds what is feasible in a UK outpatient setting (Dr Yadhunanthanan, Lead Clinician at Save Minds Royal Free Hospital (7 May 2025)). The impact of not seeing his wife and family is considerable for the Appellant (letter from Peter Crascall, a self-employed nurse consultant dated 2/5/25). Mr Crascall has not seen the Appellant’s seizures himself but the Appellant has told him about them.

Prison conditions – antisemitism

[101]There has been an increase in antisemitic attacks in Germany following the Hamas attack in October 2023 and the Israeli response. A relatively large number of these attacks have taken place in Bavaria where the Appellant will be in custody. The majority of attacks are attributable to Muslim extremists. The expectation is that more people will be imprisoned for antisemitic offences in prison which will lead in turn to an increase in antisemitic prisoners. The situation has got worse over the last year (Report of Professor Heger, professor of criminal law at Humbold University, dated 28 March 2024 with an updating report dated 2 May 2025. Professor Heger agrees with the report of Dr Oehmichen put before the District Judge).[102]Prisons in Bavaria adopt a conservative regime for communications between prisoners and families. There is a lack of provision for transfer to a psychiatric hospital for mental health purposes (Dr Drenkhahn, Professor of criminal law and criminology at Berlin University (1 March 2024)).[103]The risk of antisemitic behaviour has increased particularly in the aftermath of the Hamas attack on Isreal in October 2023 (Second addendum report of Dr Oehmichen (6 November 2023)).

The Appellant’s family

[104]The Appellant’s wife is in a very difficult emotional state after the suicide of her father, her mother’s ongoing mental instability and the Appellant’s position. Breaking their bond might lead to tragic and horrendous outcomes. Her mental health is getting worse. Her father’s suicide was a devastating loss and Dor Cohen is grieving for him and concerned about her partner. She is on anti-depressants and at high risk of suicide (Letters from Dr Krichman, treating psychiatrist and psychoanalyst for 5 years dated 5 November 2023 and 4 May 2025).[105]The Appellant’s wife is suffering from a depressive illness, grieving for her father and caring for her depressed and disable mother. It is likely that her mental state will deteriorate if separated from her husband. She presents an elevated risk of suicide and if her husband is extradited her risk of suicide is likely to become very high (Report of Prof Forrester dated 2 March 2024). The Appellant[106]The Appellant’s mental and physical health has deteriorated since the hearing before the District Judge (statement of Shir Cohen dated 10/6/25, produced on the second day of the appeal hearing).[107]The Appellant is still relying on his wife and family and multiple health care specialists. His conditions are as explained in the fresh medical reports (Appellant’s proof of evidence dated 7 May 2025). The investigation into the Appellant by the German authorities[108]Investigations in Germany against the Appellant have not yet concluded and further evidence is still needed (Statement of Stefanie Schott, German qualified lawyer, dated 19 April 2024). The German authorities have not proceeded against the Appellant’s co-defendant who remains in Israel (witness statement from Mr Yaslovitzh dated 8 May 2025). The Respondent’s application to admit fresh evidence[109]The Respondent seeks permission to admit the following further information from the Judicial Authority in response to the Appellant’s applications to admit fresh evidence. i) Letter from Bamburg Public Prosecutor General’s Office, dated 5 May 2025 confirming receipt of the Appellant’s medical reports and stating that a translation will be arranged in the event of extradition. ii) Letter from Bamburg Public Prosecutor’s General Office, dated 27 May 2025, which responds to the further information provided in the Appellant’s letter dated 20 May 2025 as follows.a. In the event of extradition the Appellant will be committed to Wurzberg Prison for pre-trial detention in view of the state of his health. The prison is equipped with both a hospital for the inpatient treatment of prisoners and a special psychiatric ward for the inpatient treatment of prisoners requiring psychiatric or neurological treatment.b. The Appellant’s epilepsy can be managed in prison. The Appellant would be administered the relevant medication and epileptic prisoners are always housed together with other prisoners which ensures that if a prisoner has an acute epileptic attack medical assistance can be called for immediately. The recommended treatment for fibromyalgia would be guaranteed. The infirmary at Wurzberg prison is staffed by nurses around the block and a doctor can be contacted any time via video link which means medical emergencies can be responded to at any time.c. Long-term, wide ranging psychotherapeutic and psychosomatic treatment of PTSD, anxiety disorders and fibromyalgia cannot be guaranteed. Analysis of the fresh evidence[110]Pursuant to Section 27(4) Extradition Act 2003, the appeal court may allow the appeal if evidence is available that was not available at the extradition hearing and the result would have been different, resulting in the person’s discharge, if it had been adduced.[111]Evidence which was ‘not available at the extradition hearing’ means evidence which either did not exist at the time of the hearing or which was not at the disposal of the party wishing to adduce it and which could not with reasonable diligence have been obtained. 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 (Hungary v Fenyvesi [2009] 4 All ER 324 at [32]).[112]The diagnoses of epilepsy and fibromyalgia have occurred since the hearing before the Judge. Whilst epilepsy is a serious condition it is apparent from the further information dated 27 May 2025 that the condition is managed fairly regularly in German prisons and there is a regime available. The Appellant will be housed with another prisoner who can seek help if necessary. There will be medical staff available to manage the condition. The therapy recommended in the German medical guidelines for the treatment of fibromyalgia is ‘guaranteed’.[113]The reports detailing a deterioration of the Appellant’s mental health are from the Appellant’s treating clinicians. Dr Zivor accepts in his report that he cannot present as being completely independent in this regard.[114]Much of the fresh evidence about the Appellant’s mental health is an extension of evidence already considered by the Judge. Whilst the impact of the Gaza war is a new external circumstance, the Judge had before her evidence of the Appellant’s significant mental health difficulties, which she acknowledged, but nonetheless considered could be managed in custody. In this regard the Judge attached weight to the Appellant’s refusal to take medication recommended by the experts and to instead embark upon an extensive course of physical therapy, including the pelvic wand which was found to have no scientific basis. In a similar vein, it is not clear whether the ketamine infusions commenced by the Appellant since the extradition hearing is treatment condoned by the consultant neurologists advising on the Appellant’s epilepsy. Dr Mavroudis does not recommend these as part of the current treatment or medication, nor describes it as part of the general management of epilepsy. The Appellant’s treating neurologist Dr Swayne does not appear to be aware of it and does not mention it.[115]It is apparent from the new material before this Court that developments in the Appellant’s physical health since the hearing are related to his mental health. Dr Mavroudis describes how ‘stress, sleep disturbances and anxiety are key triggers for seizures in Mr Cohen’s case. These factors are likely contributing to the persistence and increasing frequency of his seizures. Addressing these triggers is critical to improving his overall prognosis’. Dr Mavroudis considers the stress and protracted nature of the extradition proceedings is contributing to and exacerbating the epilepsy (39) (‘Anxiety linked to his ongoing legal proceedings appears to play a role’). The Appellant’s consultant rheumatologist, Dr Schreiber acknowledges fibromyalgia is a poorly understood condition but expresses the opinion that the prognosis is “most likely to reflect Mr Cohen’s mental health and state of mind”. Similarly, Dr Siddiqi observes in relation to the deterioration of the Appellant’s bowel condition that ‘only once his psychological state has been treated will Mr Cohen have a chance of reducing his physical symptoms’.[116]The same link was evident in the evidence before the judge who acknowledged that stress can make the Appellant’s physical conditions worse but found it would be for a relatively short time as he adjusts to being in prison as it was when he first went to prison in the UK. The Judge concluded that the UK prison authorities managed his condition and the German prison system would do the same.[117]The German authorities have been provided with the Appellant’s medical records (letter from Bamberg Public Prosecutor General’s Office, dated 5 May 2025). They have considered the latest medical updates and provided a response. Whilst Wurzberg Prison will not be able to guarantee long term wide ranging psychotherapeutic and psychosomatic treatment for PTSD, anxiety and fibromyalgia, the prison authorities have confirmed they will assess the Appellant’s ‘capacity for imprisonment’ on transfer:
“I should like to point out that the suspect will also be examined here, after he has been transferred to the Federal Republic of Germany, with regard to both his capacity for criminal liability during the period in which the crime was committed and also his capacity for imprisonment and legal proceedings and that during the course thereof the documents placed at our disposal will also be taken into consideration”
[118]The Court’s attention was drawn to the following email sent to the District

Judge by the Appellant’s solicitor after the hearing in September 2023:

“Further to a discussion in court, Dr Zivor agreed that he will assess Mr Cohen at least fortnightly (or as otherwise directed by him) by video or in person. If Dr Zivor considers there to be a serious and imminent risk of suicide, he will notify Mr Cohen’s family, his treating psychiatrist, Dr Bernat and, if necessary, the police. He will also inform Jennifer Harper and Kamila Kwincinska of Howard Kennedy LLP of the same. Dr Zivor will also notify Ms Harper and Ms Kwincinska if any steps are taken to admit Mr Cohen to hospital, voluntarily (eg if he advises Mr Cohen to attend hospital) or compulsorily. Howard Kennedy LLP will inform the Prosecution and the Court if Dr Zivor notifies Ms Harper or Ms Kwincinska that there is a serious and imminent risk of Mr Cohen committing suicide and/or if any steps are taken to admit him to hospital, voluntarily or compulsorily.”
Howard Kennedy LLP will inform the Prosecution and the Court if Dr Zivor notifies Ms Harper or Ms Kwincinska that there is a serious and imminent risk of Mr Cohen committing suicide and/or if any steps are taken to admit him to hospital, voluntarily or compulsorily.”[119]The Court was further informed that Dr Zivor has not activated the undertaking, from which it may be inferred that the Appellant has not been considered to be at imminent and serious risk of suicide since September 2023.[120]Professor Heger’s report suggests an increased risk of antisemitic perpetrators being imprisoned, arising in turn from a rise in antisemitic hate crime in Germany after the October 2023 attack by Hamas and the Appellant finding himself imprisoned with them. His report does not provide statistics as to the numbers imprisoned or likely to be imprisoned for antisemitic offending which means the Court cannot evaluate the extent to which conditions will be different from the position at the time of the hearing before the Judge. The report points to a verdict from 17 April 2025 where a perpetrator was subject to a more severe sentence because of the antisemitic element of the offence. However, this may be said to indicate the seriousness with which the German justice system takes preventing antisemitism and an illustration and fortification of the presumption that Germany provides reasonable state protection to all its minorities. The suggestion in the report that the Appellant faces a risk, from this specific individual (who still has two further court stages before the sentence becomes final), is speculative and takes no account of the expectation that the German prison authorities will manage such risks appropriately. The further information before the judge explained that: “Over the past 20 years, no antisemitic attacks were recorded in the St. Georgen Bayreuth prison. There are also, today, prisoners of the Jewish faith in the St. Georgen-Bayreuth prison without any problems ever arising in this regard [¶46.6. iii].[121]The reliance on Dr Oehmichen’s addendum report ignores the findings of the judge that she lacks the necessary expertise. The part of Dr Oehmichen’s addendum which does not deal with antisemitism, but just deals with general prison conditions, fails the first limb of the Hungary v Fenyvesi [2009] EWHC 231 (Admin) test. There is no reason why such evidence could not have been adduced before with reasonable diligence.[122]The report from Professor Drenkhahn could and should have been produced at the extradition hearing. A request to admit fresh expert evidence needs to be considered with care to avoid the situation where after the first instance hearing an expert is discovered who more strongly supports the case being advanced on behalf of an appellant than the expert who was called at the first instance hearing and that the time of the appellate court is not consumed by an attempt to relitigate issues which have been determined at first instance (Hewitt & Woodland v Spain [2009] EWHC 2158 (Admin) at [¶22]). Dr Drenkhahn’s report provides background information on prisons in Germany and the three Bavarian prisons. It addresses suicide risk and self-harm; provides information about transferring to an external hospital; addresses contact with the Appellant’s family from prison; English speaking psychologists; how his physical health could be managed within the prison; his use of a crutch; measures that could be put in place to prevent an antisemitic attack and the availability of kosher food and other adjustments; access to medication like tramadol. In any event Professor Drenkhahn is candid about her lack of expertise “I have never been to a prison in Bavaria, so I have not witnessed life in Bavarian prisons myself” [introductory letter] and “I have no expertise in antisemitism research in Germany” [¶57].[123]The Court was told that the father of the Appellant’s wife (Dor Cohen) committed suicide shortly before the hearing before the judge, who heard Ms Cohen give evidence about the impacts of extradition. Her mental health difficulties are said by her treating physician to be due to the suicide of her father and the ongoing ill health of her mother, as well as to the Appellant’s situation. Since the hearing Dor Cohen has returned to Israel to care for her mother. She returns to the UK to support the Appellant for a week each month. The Judge acknowledged the emotional distress and difficulty for Dor Cohen and the family on extradition but concluded they will cope. Dor Cohen is not in a position of dependency on the Appellant. She is receiving therapeutic support and medication in Israel.[124]Accordingly, considered separately and together, the fresh evidence adduced by the Appellant is not capable of being decisive, so as to have resulted in the Judge deciding that extradition would be oppressive, unjust or a disproportionate interference with the Appellant’s private and family life. The fact that the Appellant’s co-accused is still at liberty in Israel and proceedings in Germany remain at an early stage does not elevate the actions of the Judicial Authority in seeking extradition from the UK into an abuse of the Court’s processes and this evidence is not therefore decisive. The Appellant’s applications to adduce fresh evidence are refused.[125]In FK v Germany [2017] EWHC 2160 (Admin) the Divisional Court affirmed the “decisiveness” test does not apply where one party seeks to put in new evidence with a view to defeating an appeal (¶35). The Court considered that “there is no restriction on the inherent jurisdiction of the High Court on appeal to admit further evidence from a respondent to an extradition appeal.” For such evidence it is ultimately a matter of whether it is “in the interests of justice” for it to be admitted (FK, ¶39-40). It is in the interests of justice for the Respondent’s fresh evidence to be admitted so as to assist the Court in assessing the Appellant’s fresh evidence. IX. Conclusion[126]The Judge was not wrong to order extradition. For the reasons set out above, the consequences of the Appellant’s head injury in 2018 are not such that it would be unjust, oppressive or disproportionate to extradite him. Nor are these extradition proceedings an abuse of process. The appeal is dismissed pursuant to section 27(1)(b) Extradition Act 2003.[127]As contemplated in discussions at the end of the appeal hearing, the parties are asked to liaise to consider how this judgment is communicated to the Appellant. The parties are directed to confirm that as indicated at the hearing, the undertaking from Dr Zivor to the Court in September 2023 remains in place. To the extent not already done, the Appellant’s medical records should be sent with him on extradition and delivered to those who will have custody during transfer and in subsequent detention (Polish Judicial Authority and Mariusz Wolkowicz [2013] EWHC 102 (Admin) at [¶10]).