FK v Stuttgart State Prosecutor's Office, Germany

The High Court may exercise its inherent jurisdiction to request clarifying information and admit further evidence from a respondent on an extradition appeal where this serves the interests of justice. The statutory fresh-evidence conditions governing a successful appeal do not govern evidence adduced to defeat an appeal. Earlier availability remains relevant, and requests must respect the statutory restrictions on appellants.

A European Arrest Warrant must sufficiently particularise each offence to identify the allegations, permit transposition and assess extradition bars. For passage-of-time oppression, the court considers each offence and any continuing course of conduct. A requested person cannot rely on a period during which the alleged offending was deliberately concealed. Oppression requires more than hardship and is assessed against the seriousness of the offending.

FK was the sole director of WAIFF Limited, an English company offering investment services. The Stuttgart State Prosecutor’s Office sought his extradition to Germany under an accusation European Arrest Warrant alleging 26 fraud offences. The remaining allegations concerned a scheme in which investors were promised secure investments and returns, while their funds were allegedly diverted from the outset. The alleged losses exceeded £1 million. District Judge Snow discharged FK on two charges because the warrant disclosed no conduct in Germany, but ordered extradition on the remaining 24 charges.

FK appealed on inadequate particularisation, dual criminality, passage-of-time oppression and interference with his family’s article 8 rights. Permission was granted on the first three grounds, and the article 8 application was renewed. FK lived with his wife and four children; evidence addressed mental health difficulties and the family’s dependence on his care. During the appeal, Sir Stephen Silber requested information about where the alleged conduct occurred. The central preliminary issue was whether the High Court could request and admit that information despite its earlier availability and the statutory restrictions on fresh evidence.

1. The appeal on Grounds 1–3 was dismissed, and permission to appeal on Ground 4 was refused. Hickinbottom LJ gave the judgment, with Green J agreeing.

2. The High Court retained its inherent jurisdiction to regulate procedure on extradition appeals. Sections 27(4) and 29(4) of the Extradition Act 2003 restricted fresh evidence tendered by an appellant seeking to overturn the decision, rather than evidence tendered by a respondent to defeat an appeal. Admission of respondent evidence depended on the interests of justice. Earlier availability was relevant, but did not impose an absolute prohibition. Evidence confirming a finding or clarifying ambiguity could readily satisfy that test: Fenyvesi explained; Elashmawy approved; Straszewski [2017] EWHC 844 followed (paras 31–40, 48–51).

3. The court could request clarification from either party, while respecting the statutory restrictions expressly and in spirit. The March request and resulting information were lawful and admissible. Admission caused no arguable prejudice. The court also stated that a requesting authority must respond under the duty of sincere cooperation. It left open whether exceptional admission of appellant evidence might be possible, including rebuttal evidence or evidence preventing fraud (paras 38, 42–43, 51).

4. A warrant required sufficient particulars of each offence, assessed as a whole and in context. The narrative and schedules identified the investors, transactions, payments and alleged misrepresentations. They described knowingly false investment promises made under a plan to divert funds. Dishonesty was the only legitimate inference. Representations could be implied when investment contracts were concluded; actual gain or loss was unnecessary for the domestic fraud offence. von der Pahlen was distinguishable on its facts (paras 54–65).

5. The section 64(3) conditions were satisfied. The original particulars supported the finding that relevant representations occurred in Germany, and the supplementary information confirmed that conclusion for all 24 charges. Transposed to England and Wales, those representations supplied the territorial connection necessary for fraud jurisdiction. The court additionally observed that the intended losses would fall in Germany (paras 67–74).

6. Oppression under section 14 required more than hardship. Each offence’s date and any associated course of conduct were relevant; neither the first nor last offence supplied an automatic starting rule. FK could not rely on time during which the alleged scheme concealed its wrongdoing. There was no evidence of official delay, and extradition was not oppressive whatever starting date was adopted. The serious offending outweighed the hardship shown. Family effects were considered on an assumption, without deciding their legal relevance under section 14 (paras 81–91).

7. The article 8 appeal inquiry was whether the District Judge’s proportionality conclusion was wrong. He had properly balanced the serious offending against mental health difficulties and risks to the children. The fourth child’s birth and likely further maternal depression made no substantial change. The contrary conclusion was not arguable (paras 94–99).

• High Court, Administrative Court, Divisional Court: In [2017] EWHC 2160 (Admin) , the court dismissed the substantive appeal on inadequate particularisation, dual criminality and passage of time. It refused renewed permission to appeal on article 8.
• High Court, Administrative Court: On 11 November 2016, Sir Stephen Silber granted permission on Grounds 1–3 and refused permission on Ground 4. Following a substantive hearing on 8 February 2017, he requested further information on 1 March 2017 and directed a fresh hearing before a Divisional Court. He refused an application to vary that order on 13 March 2017.
• Magistrates’ court: On 18 July 2016, District Judge Snow discharged FK on charges 25 and 26 and ordered extradition to Germany on charges 1–24 under Part 1 of the Extradition Act 2003.