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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Von Der Pahlen v Leoben High Court, Austria [2009] EWHC 383 (Admin) (04 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/383.html Cite as: [2009] Lloyd's Rep FC 320, [2009] EWHC 383 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/03/2009

Lord Justice Scott Baker:

1. This is the second attempt by the Leoben Regional Court in Austria to extradite the appellant Peter Graf von der Pahlen, the first attempt having failed when, on 27 June 2006 the appellant was discharged by the High Court because the European Arrest Warrant ("EAW") contained inadequate particulars pursuant to section 2(4)(c) of the Extradition Act 2003 ("the Act"). The decision is reported at [2006] EWHC 1672 (Admin).
2. On 17 December 2007 the Leoben Regional Court issued a new warrant. The matter came before Deputy Senior District Judge Daphne Wickham who ordered the appellant's extradition to Austria on 10 October 2008. The warrant accused the appellant of three offences:

(1) commercial fraud contrary to Articles 146, 147 and 148 of the Austrian Criminal Code;

(2) embezzlement contrary to Article 153; and

(3) fraudulent faked bankruptcy contrary to Article 156, described by the prosecution as "fraudulent insolvency practices."

3. The District Judge was satisfied that there were sufficient particulars of charges 1 and 2 to satisfy section 2(4)(c), but in respect of the third charge she was not. Ms Cumberland, for the respondent, had sought to persuade this court to overturn the judge's decision on the third charge but she has indicated she no longer wishes to proceed under the respondent's notice, so we are left with the appellant's appeal in respect of charges one and two.

The facts

4. The conduct giving rise to this warrant spans the period October 2003 to July 2005 and is alleged to have occurred in Austria. The appellant is a 43 year old German national and an engineering graduate. He is a specialist in the marketing, sale and construction of environmentally sound family houses. He is the managing director of My Home is My Castle Ltd ("MHIMC"), a company which was incorporated in the United Kingdom on 4 December 2003 and is based in Pembrokeshire. He has lived in Wales since October 2002, having moved there from Austria with his wife and four children to pursue a new business venture. On 4 September 2002, he had set up and incorporated in the United Kingdom Dr Livingstone & Feuker Ltd ("Livingstone") for the marketing, sale and construction of environmentally sound houses in the United Kingdom, Germany and Austria. On 14 March 2003 he resigned as director and Wolfgang Ochmann was appointed in his place. This arrangement lasted until 9 July 2003 when Mr Ochmann left Livingstone following a police report in the United Kingdom, Germany and Denmark that he had stolen €30,000 from the company. The appellant thereupon resumed his role as director – indeed as managing director.
5. Following the theft, shareholder confidence evaporated and Livingstone collapsed. The shares were transferred to a holding company, Red Dragon Administration Ltd, which was incorporated as a limited company in the United Kingdom in September 2003.
6. The appellant, together with Wolfgang Sikora, who is an experienced surveyor, decided to start another business, and on 25 October 2003, incorporated Dragon Bau GmbH in Austria. The appellant was registered as a temporary director. Dragon Bau took over Livingstone's work in progress. It was intended that Dragon Bau would operate in Germany and Austria under Mr Sikora's direction, and that MHIMC would operate in the United Kingdom under the control of the appellant.
7. The appellant ceased to be a director of Dragon Bau and became an adviser to the company on 30 December 2003. On 28 June 2004, Mr Sikora was dismissed as company director of Dragon Bau and replaced by Ms Prudovic. In October or November 2004 an official complaint was made against the appellant in relation to offences allegedly committed by him in 2003. The Leoben public prosecutor and the Leoben High Court conducted a comprehensive investigation into the subject matter of the complaint. This led to the commencement of criminal proceedings against the appellant on 29 December 2004 and the issue of the first warrant.
8. The first point in the appellant's grounds of appeal relates to the provision in section 2(4)(b) of the Act that the warrant should contain particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence. The appellant complains that the EAW now relied on should contain particulars of the warrant held deficient by this court on 27 June 2006.
9. The meaning of section 2(4)(b) was considered with care by this court in some depth in two cases last November under the name of Louca [2008] EWHC 907 (Admin) and resolved against the appellant's contention. The court was a three-judge divisional court and certified the point as one of general public importance but refused leave to appeal. A decision is awaited from the House of Lords on the leave application. Mr Summers, who has appeared for the appellant, has not argued the point, accepting that for the present at least, the law is settled against the appellant. Ms Cumberland, for the respondent, submits that even in the event that leave to appeal is granted in Louca and the appeal allowed, this case would still be distinguishable on the facts.
10. At the conclusion of the hearing before us it was agreed that a decision as to this ground of appeal is to wait our judgement on the other grounds.

Inadequate particulars

11. The first point argued by Mr Summers is that the warrant contains inadequate particulars. The defect that was fatal to the first warrant has still not, so it is alleged, been remedied. A warrant that is an arrest warrant must contain under section 2(3) a statement that the person in respect of whom the warrant is issued is accused in the category 1 territory of the commission of an offence specified in the warrant, and that the warrant is issued with a view to his arrest and extradition for the purpose of being prosecuted for the offence. It is not disputed that this requirement is met in the present case. However, under section 2(4) the warrant is also required to contain the following information:

(a) particulars of the person's identity;

(b) particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence;

(c) particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed it and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;

(d) particulars of the sentence which may be imposed under the law of the category 1 territory in respect of the offence if the person is convicted of it.

12. There is no issue in the present case about (a) and (d) and, as I have said, it is accepted that at least for the purposes of argument before us, the law on (b) has been determined in Louca. In summary, what section 2(4)(c) requires is that the warrant should tell the appellant what he is said to have done wrong, when and where he did it and what law he has contravened.
13. Section 2(4)(c) has been a fruitful source of litigation in extradition cases, but both sides agree that the law is now correctly stated by Cranston J (with whom Richards LJ agreed) in Ektor v National Public Prosecutor of Holland [2007] EWHC 3106 (Admin). Cranston J referred to Article 8 of the Council Framework Decision which is headed: "Content and Form of European Arrest Warrant" and, in particular, to Article 8(1)(e) which provides that it must contain:

"a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person...."

He said:

"... in other words, the Council Framework Decision requires the warrant to set out a description, not in legal language, of how the alleged offence is said to have occurred. In particular, the description must include when and where the offence is said to have happened and what involvement the person named in the warrant had. As with any European instrument, these requirements must be read in the light of its objectives. A balance must be struck between, in this case, the need on the one hand for an adequate description to inform the person, and on the other the object of simplifying extradition procedures. The person sought by the warrant needs to know what offence he is said to have committed and to have an idea of the nature and extent of the allegations against him in relation to that offence. The amount of detail may turn on the nature of the offence. Where dual criminality is involved, the detail must also be sufficient to enable the transposition exercise to take place."

He then referred to the language of section 2(4)(c) and Dyson LJ's comment when the present case was before him ([2006] EWHC 1672 (Admin)) that the language is not obscure and can be given its plain and ordinary meaning (para 21). Cranston J could see nothing inconsistent between the subsection and the Framework Decision. He said it was clear that there was no need to put any gloss on the language; for example that the language somehow connotes the specificity or lack of it demanded in the particulars for a count in an indictment. He added a point made first by Auld LJ in Fofana v Thubin [2006] EWHC 744 (Admin) para 39 that the description in a European Arrest Warrant can often be expected to have been translated.

14. Mr Summers submits that the present case alleges a complex fraud and a sufficient degree of particularity is required to enable the appellant to understand what he is alleged to have done. He accepts it is not necessary to compare the present warrant with the earlier one that this court concluded was deficient, but says it helps to look at what was missing in the earlier warrant and see if it has been remedied. Dyson LJ on the last occasion said this at paras 22 and 23:

"How far does the warrant have to go? It would be unwise to attempt a prescriptive answer to this question and I do not do so. But I am in no doubt that the warrant in this case did not go far enough. In the first charge, the warrant gave no details of the identity of the victims of the fraud, the number and size of the advance payments (except that in aggregate they exceeded €50,000), or the nature of the fraudulent misrepresentation. Is it alleged that the appellant pretended to sell single family houses when he was in fact offering something else? Or is it that he pretended to sell single family houses when he was not offering anything for sale? A similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works.

In the second charge there are similar difficulties. What was the foreign property? How much money was unjustifiably taken? In answering the charge of obscurity, Ms Ezekiel submits that the whole of this charge must be read together, and that it contains only one allegation and not two, as suggested by Mr Summers. It seems to me that this is by no means clear. But what is clear is that the allegation is put on the basis that there was an obtaining of unjustified monies, dishonestly; or alternatively that the appellant "had intended to take it." How those two alternatives are to be understood without any amplification is totally unclear. No amplification or explanation is provided in the text of the charge."

15. District Judge Wickham dealt with the adequacy of the particulars quite shortly. She said:

"The first offence of obtaining money by deception is to be found at paragraphs 1 and 2 and at the last 11 lines of paragraph 7 commencing "it must be stated" and the inference that can be drawn from this is that this conduct amounts to what is commonly known as an advance fee fraud.

The second offence within charge 1 is obtaining services by deception, which is to be found at paragraph 3 where a precise list of sub-contractors or losers is identified and thus, the same inference as above is to be drawn.

The second charge is breach of trust or embezzlement, which appears at paragraphs 4 and 8. The modus operandi is set out at the first relevant paragraph, the evidence in the second, albeit aspects of that paragraph are impenetrable. I find that the words "or wanted so to do" do not create alternative offences."

She went on to say, applying the decision in Ektor, that she rejected the appellant's submissions.

16. Mr Summers submits that while the new warrant on the first charge does identify the victims of the fraud and identifies that the aggregate of advance payment exceeded €50,000, it does not specify sufficiently the nature of the fraudulent misrepresentation. Is it, he asks, alleged that the appellant pretended to sell single family homes when he was in fact offering something else; or is it that he pretended to sell single family houses when he was not offering anything for sale? He says a similar question arises in relation to the alleged intended arranging for building contracts, delivery of materials and professional construction works.
17. Turning to the warrant itself, it alleges that the appellant "misled various construction promoters by deception concerning facts." It then refers to "the pretence of selling and constructing detached single family houses" and identifies four individuals with the amount of the advance payment and the date of payment in each case.
18. The second limb of the first charge alleges the misleading of subcontractors of Dragon Bau GmbH by pretending to be an ordering entity that was willing and able to settle payments and carry out action, "namely the brokering of building contracts, deliveries of materials and the performance of professional works." The warrant then refers to a total loss in excess of €50,000 and identifies the victims by name, date and amount.
19. It seems to me that the warrant amply deals with the matters that were previously troubling this court, namely the identity of the victims, the number and size of the advance payments and the nature of the fraudulent misrepresentations.
20. As to the second charge of embezzlement, the allegation here is that between 24 October 2003 and 16 February 2004, as director and authorised signatory for Dragon Bau GmbH the appellant carried out or wanted to carry out unjustified withdrawals in favour of MHIMC, Clifford Administration Ltd and Paris London Ltd with a loss exceeding €50,000 to Dragon Bau GmbH. Later in the warrant various sums are identified as being transferred. These are:

€43,000.00

€71,625.83

€28,650.33

€14,325.17

€156,601.33

21. Further, an attempt to transfer €87,000 was reversed. A second and improved translation of the warrant describes the appellant as having knowingly misused other people's money by making unwarranted withdrawals from the business account of Dragon Bau GmbH. The warrant describes the period over which this was done (four months), the amount involved, and the modus operandi.
22. In my judgment the District Judge was correct to conclude that the provisions of section 2(4)(c) were complied with in respect of both of these charges. Again, there was quite sufficient information to tell the appellant what he was said to have done wrong, when and where he had done it and what law he had contravened.

Passage of time

23. The appellant's remaining grounds of appeal relate to section 14 of the Act. This section, which is headed, "Passage of Time," provides as amended:

"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have (a) committed the extradition offence (where he is accused of its commission) or (b) become unlawfully at large (where he is alleged to have been convicted of it)……..."

24. This point was taken at the earlier hearing before Dyson LJ and Walker J but they did not decide it or make any observations about it as the appeal succeeded on the grounds of the inadequacy of the particulars of the offences. A further period of over 2½ years has passed since their decision.
25. Mr Summers puts his submissions on the passage of time under three headings. First he says the appellant has been lulled into a false sense of security; secondly it would be unjust for him to be extradited now as he cannot have a fair trial because key evidence has gone and thirdly it would be oppressive for him to be extradited.
26. The leading authority on delay is the well-known case of Kakis v Government of the Republic of Cyprus [1978] 1 WLR 772. Lord Diplock said at 782G:

"My Lords, the passage of time to be considered is the time that passed between the date of the offence on April 5, 1973, and the date of the hearing in the Divisional Court on December 15, 1977, for that is the first occasion on which this ground for resisting extradition can be raised by the accused. So one must look at the complete chronology of events that I have summarised above and consider whether the happening of such of those events, as would not have happened before the trial of the accused in Cyprus if it had taken place with ordinary promptitude, has made it unjust or oppressive that he should be sent back to Cyprus to stand his trial now."

"Unjust" 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. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

27. Laws LJ looked at the question of delay in some depth in La Torre v The Republic of Italy [2007] EWHC 1370 (Admin) and after considering the authorities said at para 37:

"In my view the proper approach in this area of the law is, with respect, relatively straightforward. I think that there is perhaps a danger that in the search for a just result the court may be inclined to stray too far from the simple words of the statute: the question is whether "it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence". That is, of course, the starting point. There are then Lord Diplock's observations in Kakis (at 782), which describe the overlapping scope of "unjust" and "oppressive". Next, the words of the Act do not justify a conclusion that any delay not explained by the requesting State must necessarily be taken to show fault on the State's part such as to entitle the putative extraditee to be discharged. ... All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour the judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4)). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges."

28. In the present case the last of the offences alleged to have been committed by the appellant was in 2005 (the subcontractor Roman Hallas had been misled re the first charge) and the present warrant was issued on 17 December 2007. In Norris v Government of United States [2008] 1 AC 920 a delay of three years and four months was not regarded by the House of Lords as 'strikingly long' (see para 106) and not such as to make it prima facie likely that significant relevant witnesses or documents might no longer be available.
29. It is true that the House of Lords in Norris seemed to have regarded the end point of the delay as the moment of arrest rather than, as in Kakis, the date of the hearing but nothing turns in the present case on the difference.
30. The criminal conduct alleged in the present case dates back at the earliest to late 2003 and I do not regard any culpable delay as attaching either to the appellant or the respondent. One is simply dealing therefore with the passage of time which I do not regard as particularly long. It is true that after the decision of the Divisional Court in June 2006 there was quite a long delay while an accountant was instructed and witness statements were obtained before a domestic warrant leading to the EAW was issued in December 2007, but the appellant can have been under no illusions that further proceedings would be forthcoming following the failure of the first warrant.
31. The main plank in the appellant's case under the first two headings, however, goes back before the earlier hearing to January 2005. He contends that material supportive to his defence that would have been available then is no longer available now. The appellant says that on or about 5 January 2005 he learned that there was a police investigation that involved Dragon Bau. He discovered that the Austrian police had interviewed clients of Dragon Bau, Dragon Bau's sales agent, as well as directors and their accountant. He says he telephoned and spoke to officer Preiniger and offered to be interviewed. He says he was told it was not necessary for him to go to Austria. The fact of the telephone conversation is admitted, but there is a dispute about what was said and, in particular, that the appellant offered to go to Austria but was told it was unnecessary. The appellant followed this conversation with a letter of 12 January 2005 to officer Preiniger which refers to the earlier telephone conversation but seems to me to give away nothing of any interest to the police. It ends with an invitation to Preiniger to contact him if he wants any more information. The appellant heard no more until he was arrested on 12 March 2006.
32. What the appellant says is that Livingstone has been taken off the company's register and the Livingstone files were all disposed of in mid-2005 and that these included documentation relating to the stages of ongoing building projects taken over by Dragon Bau. Dragon Bau became involved in September 2005. Its office contained files relating to each project (including clients and contractors) and contained such information as copies of the contracts, payment plans, architectural drawings, calculations, correspondence, invoices, and reminders, complaints relating to non-payments, delivery notes and so forth. Insofar as contractors were not paid in full (which the appellant says was only where there was an appropriate deduction for defects etc) the records would have demonstrated this. All houses had long been completed and defects remedied. He says his Austrian lawyer told him that police had not retained these records.
33. Ms Cumberland points out that the appellant had instructed a lawyer from the outset. From January 2005 he knew there was a likelihood of proceedings and there is no evidence that he instructed his lawyer to gather the documentary material at that stage. If the allegations of fraud are true it would of course be in the appellant's interest to be able to say that crucial documents were no longer available.
34. The District Judge did not accept the appellant's evidence that he was told he need not go to Austria or was lulled by the absence of a reply to his letter of 12 January 2005 into believing that no further action would be taken. He declined a request to go to Austria. He continued, she said, to be linked to the companies throughout the period, was meticulous in his work and would not have let the matter rest unanswered. She went on:

"Mr Von Der Pahlen asserts that the documents from the building sites are the important documents, more so than any of the books, accounts etc in the possession of the requesting judicial authority. The owner of the offices from where Dragon Bau operated declared that the offices were empty. Mr Sikora had apparently left everything unsorted in a cupboard used for all sorts of purposes. Mrs Prudovic, however, took over as director and she appears still to be in existence now and available for the trial.

I accept Miss Cumberland's submissions that in the absence of any specific or particular defence being set out these missing documents are not so significant as to render any trial in Austria unfair. The defendant's memory of events, on the contrary, seems most clear."

35. The District Judge heard the evidence, including that of the appellant. There is no basis in my view for interfering with her conclusions that any missing documents were of sufficient significance to render a trial in Austria unfair or that he was prejudiced by being lulled into a false sense of security. As Sedley LJ observed in Wiejak v Olsztyn Circuit Court of Poland [2007] EWHC 2123 (Admin) at para 23 the court has to consider the District Judge's reasons with great care in order to decide whether it differs from her, and that her fact findings, at least where she has heard evidence, should ordinarily be respected in their entirety.
36. The appellant has not disclosed, indeed he is not obliged to disclose, what his defence is to the charges for which extradition is sought. In the absence of disclosure as to the nature of the defence, it is only possible to deal with a contention that he will be prejudiced in his trial in the most general terms. For my part I am unpersuaded that the passage of time has caused any significant prejudice to a fair trial. The limitation period for the offences in the warrant (see section (f)) is 10 years and there is no assertion by the appellant that the Austrian procedure lacks safeguards to ensure a fair trial.

Oppression

37. The appellant's case is that he left Austria in 2002, before the alleged offences and has established a settled life for himself and his family in Wales. He is married with four boys; the eldest runs his own business, the second is in tertiary education and the younger ones, aged approximately 16 and 13, are at school in Swansea. They are about the same age as the elder children were when they were uprooted and brought from Germany to Wales. The appellant is self-employed as a structural engineer and he has never sought to hide his whereabouts. His wife, Ira, does not enjoy good health. In late 2007 her condition worsened and she was diagnosed to be suffering from cervical spondylosis. She is reliant on his help to perform simple tasks. In February 2008 she was diagnosed with carpal tunnel syndrome. She also suffers from depression, has panic attacks and is fearful of crowds. She has a cocktail of drugs and relies heavily for care on the appellant, and she is unable to provide the care she would wish for her two younger children without assistance.
38. The appellant's case on oppression is based on his wife's condition, more particularly, as Mr Summers submits, on the deterioration in her condition.
39. The District Judge makes no reference to Article 8 of the ECHR, no doubt for the very good reason that Mr Summers did not expressly rely on it. Nevertheless, it was in my view engaged on the facts of this case, albeit subsumed within the matters that fell to be considered under section 14. The District Judge was of course obliged, as are we, to consider whether the appellant's extradition would be compatible with the Convention rights. In this regard we were referred to Ruiz and others v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2008] 1 WLR 2798. At para 57 Dyson LJ, having referred to Sedley LJ's observation in AG (Eritrea) v S.S.H.D. [2008] 2 All ER 28, para 31 that:

"The fact that in the great majority of cases the demands of immigration control are likely to make removal proportionate and so compatible with article 8 is a consequence not a precondition of the statutory exercise"

went on to say that:

"The same applies in relation to extradition. What is required is that the court should decide whether the interference with a person's right to respect for his private or (as the case may be) family life which would result from his or her extradition is proportionate to the legitimate aim of honouring extradition treaties with other states. It is clear that great weight should be accorded to the legitimate aim of honouring extradition treaties made with other states. Thus, although it is wrong to apply an exceptionality test, in an extradition case there will have to be striking and unusual facts to lead to the conclusion that it is disproportionate to interfere with an extraditee's article 8 rights.

In the present case there are the rights of family members other than the appellant to be considered. The District Judge put it this way at para 18 of her judgement:

"In the event of the defendant being removed, she and her two younger sons, it is argued, would find it difficult to cope and the boys may have to move to more local schools. Possibly the family would have to return to Germany where they have family. I accept that part of the defendant's evidence without reservation in which he sets out the remarkable achievements of his four children in UK educational establishments. In addition to the domestic problems he appears to be without work, blaming the breakdown of his companies upon local bad publicity that flowed from his earlier extradition proceedings. However, I bear in mind that the defendant has been in the United Kingdom for only six years and was, in 2002, prepared to disrupt the family life and education of his four sons in Germany in order to uproot them and bring them to Wales. I do not except that the current circumstances fall within those of Ashley Riddle, Cookeson or Hunt. For those reasons I reject the section 14 submissions and order the extradition of the defendant to Austria."

40. We were told that the appellant is now working and, that apart, it is difficult to take issue with anything the District Judge said in this paragraph although the appellant says the only living member of the family in Germany is his mother-in-law who is in an institution. I too have considered carefully the medical evidence relating to the appellant's wife. As Lord Diplock pointed out in Kakis at 784G the question is whether the changes in the circumstances of the appellant (in this case his wife's health) that have occurred during the relevant period are such as would render his return to stand his trial oppressive. Whilst it is true that there has been some recent deterioration in his wife's health, problems with her health are long-standing and go back many years. It seems to me that the District Judge was right to determine that it would not be either unjust or oppressive to return the appellant by reason of the passage of time that has passed since the alleged commission of the offences.
41. I would therefore dismiss this appeal on all grounds, including ground 1 which was not argued in the light of this court's decision in Louca.

Mr Justice David Clarke:

42. I agree.