Pillar-Neumann v Public Prosecutor's Office of Klagenfurt, Court of Appeal - Administrative Court, December 21, 2017, [2017] EWHC 3371 (Admin)

Resolution Date:December 21, 2017
Issuing Organization:Administrative Court
Actores:Pillar-Neumann v Public Prosecutor's Office of Klagenfurt
 
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Neutral Citation Number: [2017] EWHC 3371 (Admin)

Case No: CO/3090/2017

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2017

Before :

LORD JUSTICE HAMBLEN

And

MR JUSTICE SWEENEY

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Between :

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Abbas Lakha QC and Rebecca Hadgett (instructed by Edward Hayes LLP) for the Appellant

Saoirse Townshend (instructed by the Crown Prosecution Service Extradition Unit) for the Respondent

Hearing date: 12 December 2017

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Approved Judgment

Lord Justice Hamblen :

Introduction

  1. This is an appeal against the decision of District Judge Qureshi dated 26 June 2017 sitting in the Westminster Magistrates' Court whereby he ordered the Appellant's extradition to Austria pursuant to section 26 of the Extradition Act 2003 (``the Act'').

  2. The Appellant's extradition was ordered pursuant to a European Arrest Warrant issued by the Public Prosecutor's Office of Klagenfurt, Austria on 19 June 2009 (``the EAW''). The EAW seeks the return of the Appellant in relation to five offences said to amount to ``professional and severe fraud'' and ``embezzlement''.

  3. The EAW was certified by the National Crime Agency (``NCA'') on 30 September 2016; the Appellant was arrested on 20 January 2017; the final hearing took place on 11 May 2017 and judgment was given on 26 June 2017.

    Factual and Procedural Background

  4. The EAW alleges that the Appellant and her husband committed ``at least'' five offences, of fraud and embezzlement, between November 1997 and 2001. It is said that:

    ``I) They had the intention to get rich at the expense of Gertruda Josephine Derksen by deceiving her at occasions whose dates are not known more closely; it was their intention to cause damage to the latter's property whereby they committed these crimes with the intention to create for themselves, by repeatedly committing the crime, a continuous source of income, in particular

  5. between November 1997 and 2001 in Vienna, Austria and partly in Amsterdam, Netherlands, by pretending that certain pieces of furniture and jewellery would come from the household of the successor to the Austrian Throne, Arch Duke Franz Ferdinand, by talking Gertrude Derksen into purchasing 41 items for the of €1,121,518.74 (concerning the furniture) and at least of €981,917 (concerning the jewellery), i.e. they have thus caused damage to her property;

  6. by pretending that Lölling Castle (in Austria) had once belonged to the successor to the Austrian Throne, Arch Duke Franz Ferdinand, they also caused damage to the property of Gertruda Derksen amounting to €383,973, because they talked her into paying a commission as a compensation to the family Hohenberg.

  7. by pretending that Lölling Castle (in Austria) would be renovated by them and that they would take over the supervision of the construction project, thereby the two accused persons caused damage to Gertruda Derksen amounting to €164,502, by partly using forged documents and by faking money transfers to the builders;

    II) the two accused persons have also abused the authorisation to dispose of Gertruda Derksen's bank account with the account number 16802370442 at the Sparkasse Oberösterreich (Austrian bank) in Linz, in March 2000, by having unlawfully withdrawn at least €95,939.33.''

  8. In 1998 the Appellant married Nigel Pillar, a British citizen, and moved to live in the UK.

  9. In May 2002, civil proceedings were initiated by Mrs Derksen in England in relation to the same allegations as contained within the EAW and a freezing order was obtained against the Appellant and her husband.

  10. The Appellant has not visited Austria since 2002 and had to surrender her passport early on in the freezing order proceedings.

  11. The criminal investigation in Austria commenced in 2004, following a complaint made by Mrs Derksen to the Public Prosecutor's Office.

  12. On 30 March 2004, as a result of the civil proceedings, the Appellant was declared bankrupt. Her husband was declared bankrupt on 10 June 2004.

  13. On 3 May 2004, a preliminary investigation was launched at the Regional Court Klagenfurt and a domestic arrest warrant issued.

  14. On 8 October 2004, a European Arrest Warrant was issued for the Appellant (``EAW 1''). This was certified by the NCA on 28 November 2004.

  15. In November 2004, the Appellant learned of EAW1 and surrendered herself at Bow Street Magistrates Court.

  16. On 5 July 2006, the Appellant was discharged by the Divisional Court in relation to EAW 1, as the warrant failed to comply with the requirements of section 2(4) of the Act.

  17. The Appellant subsequently made no enquiries in Austria about the EAW proceedings against her. She continued her life in England, in the course of which she had to deal with the consequences of the civil proceedings and the bankruptcy of her and her husband. She also became a carer for her husband, whose mental health had deteriorated, and for her father-in-law who suffers from dementia.

  18. Meanwhile, on 4 March 2009, a second European Arrest Warrant was issued for the Appellant (``EAW 2''), but this was never certified. On 15 June 2009, the Fugitives Team at SOCA were advised by the CPS that the Respondent had submitted a draft revised EAW for consideration by the CPS via Eurojust. Counsel's advice on the draft EAW, dated 12 June 2009, was attached.

  19. On 19 June 2009, the EAW was issued.

  20. On 22 June 2009, Counsel's advice on the draft EAW was forwarded to the Respondent.

  21. On 23 August 2009, the EAW was received by the Fugitives Unit at SOCA. Copies were sent by SOCA to Eurojust on 25 August 2009.

  22. On 1 September 2009, the CPS e-mailed SOCA querying whether a response had been received from the Respondent regarding counsel's advice.

  23. On 14 September 2009, Eurojust e-mailed the CPS and SOCA to say that an agreement had been obtained from the Respondent to delay the re-issuing of the EAWs on the basis that further advice from counsel was being sought on the current EAW.

  24. On 4 March 2015, a Form A was received by the NCA from the Respondent through SIRENE channels. Alerts were validated but the EAW was not certified. Alerts were put on the PNC when SIRENE went live on 13 April 2015. On 30 September 2016, information was received of the possible location of the Respondent and the EAW was certified by the NCA.

  25. Details relating to the prolonged procedure concerning the EAW are set out in three ``Request for Further Information responses (`RFFIs')'' provided by the Respondent and a statement from Mr Jeff Thompson of the NCA.

  26. On 20 January 2017, the Appellant was arrested.

  27. The Appellant sought to challenge her extradition on the grounds that:

    (1) The warrant was invalid as it had expired and did not particularise the offences;

    (2) The offences were not extradition offences;

    (3) Extradition was barred as it would be unjust and/or oppressive by reason of the passage of time (s14 Extradition Act 2003); and

    (4) Extradition would amount to a breach of Article 8 ECHR.

    The judgment

  28. The judge found that the EAW was valid as the limitation period on its face was suspended whilst the Appellant was being searched for - [48]. Further, the number and places of the offences were sufficiently particularised - [49] to [52].

  29. The offences were extradition offences for the purposes of section 10 and sections 64(3)(a) and (5)(a) of the Act - [53].

  30. The Appellant was a fugitive and therefore unable to rely on the passage of time bar under section 14 of the Act. The second RFFI states that an application was made by the Appellant's legally authorised representative to inspect the files and on this basis the Judge found that she was fully aware of the proceedings. The Appellant's account that her father may have inspected the files was not credible as it was unlikely the Judicial Authority would have allowed him to do so and unlikely that her father would not have told her about it - [55].

  31. Even if, contrary to his finding of fact, the Appellant was not a fugitive, it would not be unjust to order extradition given that it was clear that the Appellant has a clear recollection of her dealings with the victim. The judge also found that evidence would be available from civil proceedings in which affidavits were filed and that there were procedures in the Judicial Authority to ensure evidence is admitted when witnesses are not available - [57].

  32. Similarly, it would not be oppressive to order extradition because:

    (1) The offences were very serious - [58a];

    (2) The first period of delay between the discharge of the first EAW on 5 July 2006 and the issue of the current EAW on 19 June 2009 was reasonable - [58b];

    (3) Although the second period of delay (between 2009 and 2016) was inadequately explained, this was just one factor in considering whether extradition was oppressive - [58b];

    (4) Any sense of security was mitigated by the fact that the Appellant was aware of criminal proceedings against her - [58c].

  33. Extradition was a proportionate interference with the Appellant and her family's right to private and family life ([64] to [67]), bearing in mind both the factors against extradition (in this case the delay, absence of previous convictions, and family circumstances) and those in favour (the public interest in honouring extradition arrangements, the finding that the Appellant was a fugitive; the seriousness of the offences; mutual trust and confidence between Member States) - [62] to [63].

    The Grounds of Appeal

  34. The Appellant appeals on the following four grounds:

    (1) The judge erred in law and in fact in finding that it would not be unjust to extradite the Appellant given the passage of time;

    (2) The judge erred in law and in fact in finding that it would not be oppressive to extradite the Appellant given the passage of time;

    (3) The judge erred in law and in fact in finding that the Appellant...

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