Adedeji, R (on the application of) v Public Prosecutor's Office Germany

On an appeal under Extradition Act 2003, a court may consider a new legal issue not raised at the extradition hearing. Section 27 distinguishes a new issue from fresh evidence: the issue is admissible if it could have caused the district judge to reach a different answer requiring discharge. Fresh evidence is subject to an availability test. A single judge is not bound by a decision of the Divisional Court, although such a decision ordinarily commands great respect and should be followed unless clearly wrong. An extradition charge must provide adequate particulars, but the principle of specialty may protect the requested person against reliance on conduct beyond that specified in the warrant.

The appellant appealed under section 26 of the Extradition Act 2003 against District Judge Snow’s order of 13 March 2012 for his return to Germany on three charges. The charges concerned an alleged agreement to obtain money by deception, followed by robbery, blackmail and assaults.

The appellant challenged the adequacy of the particulars of charge 1, contending that it alleged a wider conspiracy without identifying its duration, other instances or the extent of the alleged criminal plan. The respondent argued that the principle of specialty prevented Germany from relying on matters beyond those particularised. The preliminary issue was whether the point could be raised on appeal although it had not been raised before the district judge.

1. Appeal dismissed. The challenge to the particulars of charge 1 could be considered despite not having been raised below.
2. Section 27(3) requires the appellate court to consider whether the district judge ought to have answered a question differently and, if so, whether discharge would have been required. Section 27(4) adds a condition for a new issue or fresh evidence. The statutory distinction is material: fresh evidence must not have been available at the extradition hearing, whereas a new legal issue need only be one which, if considered, would have produced a different answer requiring discharge.
3. The availability of evidence is assessed broadly in accordance with the approach in Ladd v Marshall. That approach does not apply to a new issue of law.
4. The court followed the reasoning in Hoholm v Government of Norway [2009] EWHC 1513 (Admin) and declined to follow Khan v Government of United States of America [2010] EWHC 1127 Admin, which had treated the restriction on fresh evidence as applying equally to an unraised point of law. The judge regarded Khan as clearly wrong. A Divisional Court decision does not bind a single judge at the same level, though it should ordinarily be followed unless clearly wrong.
5. On the merits, charge 1, read with charges 2 and 3, sufficiently identified the relevant course of conduct. The principle of specialty protected the appellant because the German authorities could not rely at trial on instances beyond those specified in the warrant. The appeal therefore failed.

• District Judge Snow: on 13 March 2012 ordered the appellant’s return to Germany on three charges.
• High Court (Administrative Court): dismissed the appeal under section 26 of the Extradition Act 2003.