Irene Ellert v Judge of the Director of Public Prosecutions of the Copenhagen District Court (Denmark)

On a renewed application for permission to appeal in an extradition case, a ground is reasonably arguable only where there is a realistic legal prospect that the statutory or Convention threshold has been met. The presumption of adequate medical care in the requesting state may answer health-based oppression arguments. Article 8 requires a principled balancing exercise, in which the seriousness of the alleged offending is central. A possibility of less coercive measures does not make extradition inappropriate where the requesting authorities have considered and refused the proposed alternative. Dual criminality does not require a prosecution to identify the precise predicate offence where the allegation is that the property was criminal property and the available case is that the transactions were unlawful. Particularisation is adequate where the EAW and further information fairly, properly and accurately identify the alleged conduct, even if the requesting authorities later sequence the prosecution.

The appellant was wanted for extradition to Denmark under an accusation European Arrest Warrant issued in June 2020. Extradition was ordered by District Judge Hamilton on 25 January 2021, and permission to appeal was refused on the papers by Johnson J on 28 May 2021.

The appellant renewed her application for permission to appeal, relying on her thyroid cancer diagnosis, possible less coercive measures including an interview in the United Kingdom, family circumstances under Article 8 of the European Convention on Human Rights, passage of time, dual criminality under section 64 of the Extradition Act 2003, and alleged inadequate particularisation under section 2. The central issue was whether any proposed ground was reasonably arguable.

1. Disposition. The renewed application for permission to appeal was refused. Permission to adduce fresh evidence was also refused because it was incapable of being decisive. The application for a stay or suspension was refused.
2. Health and less coercive measures. The presumption of adequate medical care in Denmark provided a complete and legally adequate answer to the health concerns relied upon under section 25 of the Extradition Act 2003. It was not reasonably arguable that extradition was oppressive. Nor was it reasonably arguable under section 21A that extradition had become inappropriate because of the possibility of an interview or other less coercive measure. The Danish authorities had addressed the interview proposal and had refused to conduct it while the renewed application remained outstanding.
3. Article 8 and passage of time. The family circumstances, including the appellant’s cancer diagnosis, her partner’s controlled leukaemia, their daughter’s position and the appellant’s immigration status, did not create a realistic prospect that extradition would be disproportionate. The seriousness of the alleged money laundering, the maximum Danish sentence and the public interest in prosecution decisively outweighed the competing considerations. The passage of time did not meet the high threshold for oppression under section 14.
4. Dual criminality. The absence of a specified predicate offence did not make the case reasonably arguable under section 64. Section 328 of the Proceeds of Crime Act 2002 required the property to be criminal property, but did not require the prosecution to identify whether it derived from one particular type of crime where the allegation was that it derived from unlawful rather than benign dealings.
5. Particularisation. Section 2 standards were met. The EAW and further information fairly identified the alleged companies, period, amounts, purpose of the transactions and the appellant’s alleged facilitating role. The authorities’ intention to begin with six companies did not limit the extradition case or render its particulars misleading.

• High Court (Administrative Court): Permission to appeal was refused on the papers by Johnson J on 28 May 2021. On renewal, the application was refused by Mr Justice Fordham on 7 December 2021.
• District Judge: District Judge Hamilton ordered extradition on 25 January 2021 after a hearing on 22 December 2020.