The Public Prosecutor's Office of Landshut, Germany v Singh

In an extradition case engaging article 8, delay is not a decisive factor merely because it is lengthy or partly unexplained. The court must assess its effect on the private and family lives affected and on the public interest in extradition. The public interest is particularly strong where the accusation is serious, the requested person is a fugitive, and extradition is sought under Part 1 of the Extradition Act 2003. A structured balance-sheet approach is generally appropriate. An appellate court reviews the lower court’s proportionality conclusion, but must conduct the assessment afresh where the lower court materially erred in approach. On the facts, article 8 did not outweigh the public interest in extradition.

The Public Prosecutor’s Office of Landshut appealed under section 28 of the Extradition Act 2003 against District Judge Baraitser’s decision of 2 August 2018 discharging Singh from an accusation warrant and European Arrest Warrant issued by the German authorities. The District Judge accepted that extradition would not be disproportionate under section 21A(1)(b), but held under section 21A(1)(a) that surrender would be incompatible with Singh’s and his family’s article 8 rights.

The appeal concerned the treatment of delay in issuing and certifying the European Arrest Warrant, the significance of Singh’s flight from Germany, and whether the article 8 proportionality exercise had been properly performed.

1. Appeal allowed. The District Judge had materially erred in treating the delay as culpable state delay of 20 years. European Arrest Warrants were unavailable to Germany until 2004, so the relevant possible delay in issuing the warrant was no more than 10 years. Singh’s flight to evade trial, his failure to disclose his whereabouts, and the different name and date of birth used in the warrant were material considerations.
2. Whether delay is culpable is fact-sensitive. Unexplained delay is not necessarily culpable. Any state culpability would not itself determine proportionality. Delay must be assessed by its effect on the article 8 rights of the individual and family members and on the public interest in extradition.
3. The District Judge’s conclusion that delay “overrides” the public interest showed that she had not adequately balanced the competing factors or explained why the balance moved from one strongly favouring extradition to one against it. A structured balance-sheet approach, as described in Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin), should generally be adopted, although no particular format is mandatory.
4. The appellate function is review rather than a general rehearing. However, where the lower court has materially erred in approach, the appellate court must perform the proportionality assessment afresh. The seriousness of the alleged conduct, the strong public interest in honouring extradition obligations, and Singh’s fugitive status outweighed the comparatively thin evidence of exceptional interference with his family and private life. The children’s best interests were a primary consideration, but did not alter the result.
5. The finding that extradition was incompatible with article 8 was wrong. The order discharging Singh was quashed and the matter was remitted to the District Judge under section 29(5), with a direction to proceed as required if the article 8 question had been decided correctly.

• High Court (Administrative Court): The appeal against the District Judge’s decision of 2 August 2018 was allowed. The discharge order was quashed and the case was remitted to the court below.