PAUL HABERLIN v DISTRICT COURT HAMBURG GERMANY

Permission to appeal in an extradition case requires a reasonably arguable ground showing a realistic prospect of success. In an Article 8 proportionality assessment, the court must evaluate the relevant impacts and circumstances in the round. The impulse or voluntary-act approach to suicide risk is not an on-off rule for assessing the suicide risk of family members. The extradition court is not required to examine the evidential file or apply a prima facie case test. A requesting state’s refusal to interview instead of extraditing will not be unlawful where the request has been considered and the case has been reviewed. Strong public-interest considerations arising from a clearly serious alleged offence may decisively outweigh the family impacts of extradition.

The appellant sought permission to appeal against an extradition order made by District Judge Griffiths on 2 July 2021. The extradition related to an accusation European Arrest Warrant issued by Germany concerning alleged VAT evasion. Permission was refused on the papers by Cavanagh J on 26 November 2021.

The renewed application relied on passage of time and oppression or injustice under section 14 of the Extradition Act 2003, and on Article 8 of the European Convention on Human Rights. The Article 8 arguments concerned family suicide risk and mental health impacts, the German authorities’ refusal to interview the appellant instead of seeking extradition, and the alleged weakness of the prosecution case.

1. Permission refused. The appellant had not shown any reasonably arguable error of law or a realistic prospect that a substantive appeal would succeed.
2. The judge below had been entitled to find that the passage of time was substantially explained by the German authorities and that the thresholds of oppression or injustice under section 14 of the Extradition Act 2003 were not met.
3. In assessing Article 8 proportionality, the judge had properly considered the evidence concerning the appellant, his wife and their daughter. The reference to the wife’s voluntary act in relation to alcohol was one strand of the evaluation. The Turner impulse or voluntary-act approach did not operate as an on-off switch for the suicide risk of a family member in an Article 8 case.
4. The German authorities’ refusal to interview the appellant did not disclose patent unreasonableness. The requests had been considered, and the case had been reviewed, including in light of the rejection of Mr Parkes’s evidence in other proceedings.
5. The extradition court was not required to assess the evidential basis of the German prosecution or apply a prima facie case test. The court was not to examine the prosecutors’ evidential file. The requesting authority had stated that Mr Parkes’s evidence was not the only evidence, and the judge was entitled to reject the contention that the prosecution was facially unsustainable.
6. Considering the matters distinctly and in combination, the strong public interest in extradition to face prosecution for a clearly serious alleged offence decisively outweighed the factors relied upon under Article 8.

• District Judge Griffiths: ordered extradition on 2 July 2021.
• Cavanagh J: refused permission to appeal on the papers on 26 November 2021.
• High Court (Administrative Court): refused the renewed application for permission to appeal on 9 February 2022.