Arain, R (on the application of) v Government of Germany & Anor

Extradition will breach Article 8 only in a wholly exceptional case where the interference is disproportionate to the legitimate aim of prosecution. In a multiple-offence case, an Article 8 objection must establish disproportionality in relation to every offence for which extradition is sought.

The requested court’s role under the Extradition Act 2003 is to compare the conduct described in the request with corresponding United Kingdom offences. It does not determine the offences for which the person may ultimately be prosecuted under foreign law. Speciality is secured by the requesting state’s law or arrangements, and cogent evidence is required before the court may conclude that those safeguards will not be honoured.

The claimant appealed against a District Judge’s decision under section 92 of the Extradition Act 2003 sending his case to Germany for an extradition decision, and against the Secretary of State’s subsequent order for extradition. The request concerned alleged German VAT fraud and participation in a criminal organisation.

The District Judge held that the criminal-organisation allegation was not an extradition offence because there was no comparable United Kingdom offence, but rejected the claimant’s Article 8 and speciality arguments. The central issues were whether the change in the extradition-offence ruling affected proportionality, and whether the Secretary of State could be satisfied that Germany would comply with the speciality rule.

1. Appeals dismissed. The District Judge had applied the correct Article 8 proportionality approach. Extradition for serious offences will be disproportionate only in exceptional circumstances.
2. The fact that one part of the alleged conduct did not constitute an offence in the United Kingdom did not affect the proportionality assessment. The alleged offences concerned conduct in Germany and substantial alleged losses there. Under sections 104 and 109 of the Extradition Act 2003, the argument could assist the claimant only if extradition was disproportionate in relation to every offence. Establishing possible disproportionality in relation to one offence was insufficient.
3. The speciality challenge failed. Article 14 of the European Convention on Extradition prohibited Germany from proceeding against the claimant for a pre-surrender offence other than that for which he was extradited. The court had to be satisfied that the treaty obligation would be honoured, but there was no evidence suggesting that Germany would fail to comply. The District Judge’s ruling would also be sent to Germany, making clear that the criminal-organisation conduct did not constitute an offence under United Kingdom law.
4. Sections 78(4)(b) and 137(2)(b) required the English court to examine the conduct described in the request and ask whether, if committed in the relevant part of the United Kingdom, it would constitute an offence punishable by at least 12 months’ imprisonment. The court and Secretary of State were not required to identify the offences for which the claimant could be prosecuted under German law.
5. The schedule attached to the Secretary of State’s order identified the corresponding United Kingdom offences. It did not purport to define the German charges or the scope of prosecution permitted under the speciality rule, and was not misleading.

The court declined to certify the proposed further questions. One had been conclusively answered by the House of Lords; the other had not been argued before the court and was in any event meaningless.

• High Court (Administrative Court): appeals under sections 103 and 108 of the Extradition Act 2003 dismissed. The District Judge’s decision and the Secretary of State’s extradition order were upheld.
• Bow Street Magistrates’ Court: District Judge Evans sent the case for an extradition decision and subsequently ruled that one allegation was not an extradition offence, while rejecting the Article 8 challenge.