Rottman v Governor of HMP Brixton & Anor

In extradition proceedings, the court determines whether an extradition crime is disclosed from the requesting state’s warrant and the particulars supplied with the request. Foreign judgments concerning separately tried co-accused, and expert evidence about their effect, cannot be used to establish that the requesting state’s allegations are false or that no offence is disclosed.

Such material may nevertheless be relevant to the High Court’s original jurisdiction to prevent a return which would be unjust or oppressive. That jurisdiction is not engaged merely because another defendant has been acquitted, particularly where the requesting state maintains that the applicant remains liable to prosecution.

For dual criminality, the court must reproduce the equivalent conduct in the United Kingdom. Fraudulent trading by a foreign company may be equivalent to fraudulent trading by a company formed and registered under the Companies Act 1985. A transaction alleged to be an outright dishonest taking may disclose theft despite being structured through loans or connected transactions.

The applicant challenged his committal by the Bow Street Magistrates Court for extradition to Germany under the Extradition Act 1989. Germany alleged conspiracy, fraudulent trading and theft arising from the acquisition and subsequent dealings of WBB Wärmeanlagenbau GmbH.

The applicant relied on criminal and civil judgments in Germany concerning two co-accused. Those judgments rejected central allegations against the co-accused, and expert evidence was adduced concerning their effect under German law. The applicant also argued that several counts did not satisfy the United Kingdom limb of dual criminality and that the passage of time made return unjust or oppressive.

The central issues were whether the German judgments could affect review of the committal or the existence of an extradition crime, whether the challenged counts disclosed equivalent English offences, and whether return should be refused under section 11(3) of the 1989 Act.

1. Application dismissed, with costs. The court could not use the German judgments or the opinion of Dr Wagner to impugn the District Judge’s committal decision. Under Re Evans [1994] 1 WLR 1006, the committal court considers the conduct, foreign law and warrant contained in the extradition request. The German judgments were decisions concerning separately tried co-accused and did not form part of the request.
2. The same material could be considered under the High Court’s original jurisdiction under section 11(3)(b) and (c) of the Extradition Act 1989. However, the applicant had not shown that return would be unjust or oppressive. He had not been tried in Germany, the German criminal court retained an inquisitorial jurisdiction to assess his own conduct, and the prosecutor and another court division maintained that there remained a strong suspicion of criminality. The civil judgment did not bind the criminal courts.
3. The court rejected the submission that fraudulent trading under section 458 of the Companies Act 1985 could concern only a United Kingdom company. Applying the approach in Cox v Army Council [1963] AC 48, the relevant hypothesis was fraudulent trading in the United Kingdom through a company formed and registered there. That was the equivalent of the alleged fraudulent trading in Germany through a German company.
4. Counts 3 and 12 therefore disclosed extradition crimes. Counts 5, 7, 8 and 9 also disclosed allegations equivalent to theft because the warrant alleged dishonest outright takings, notwithstanding the use of loans, re-transfer arrangements or purported claims.
5. Count 10 did not disclose theft. The warrant alleged only transfer of a chose in action and no appropriation of property belonging to another. Applying R v Preddy [1996] AC 815, the count did not satisfy the English-law requirement. The court reviewed the District Judge’s error and ordered deletion of Count 10.
6. The twelve-year period did not independently make return unjust or oppressive. The complexity of the allegations and the timing of the investigation did not establish unjustified delay or oppressive hardship.

1. Bow Street Magistrates Court: on 14 March 2002, District Judge Eleri Rees committed the applicant on twelve charges under section 9(8) of the Extradition Act 1989.
2. High Court (Administrative Court): the application for habeas corpus and review was dismissed with costs. Count 10 was deleted because it did not disclose an extradition crime.