Bar Cohen v Local Court at Bamberg, Germany

An extradition appeal under Extradition Act 2003 requires the appellate court to decide whether the extradition judge reached a wrong decision or whether qualifying fresh evidence would have required discharge.

For section 25, physical and mental health must be assessed cumulatively. The court considers the seriousness of the alleged offending, the risk of deterioration or suicide, the requested state’s ability to manage the person’s condition, and the public interest in extradition. The threshold for oppression is high. Article 8 requires a fact-sensitive balance between the interference with private and family life and the weighty public interest in extradition. Fresh evidence must be unavailable with reasonable diligence and capable of being decisive.

The applicant appealed against a District Judge’s order for his extradition to Germany on allegations of masterminding a cyber-trading fraud causing approximately €14 million loss.

He challenged the order on three grounds: oppression under section 25 of the Extradition Act 2003 because of his physical and mental health; disproportionate interference with Article 8 rights under section 21A; and abuse of process. He also sought to adduce substantial fresh medical, prison-condition and family evidence. The central issues were whether the District Judge had made an appealable error and whether the fresh evidence could have required discharge.

1. Appeal dismissed. The District Judge had not reached a wrong decision, and the applicant’s fresh evidence was not capable of being decisive. Extradition was ordered to proceed under section 27(1)(b) of the Extradition Act 2003.
2. Section 25 requires physical and mental health to be assessed cumulatively rather than in isolation. The District Judge was entitled to consider the likely deterioration in custody, the suicide risk, the applicant’s capacity to resist suicide, the availability of treatment, and the seriousness of the alleged offending.
3. The District Judge was entitled to prefer Professor Fazel’s evidence on the extent of the applicant’s depression and suicide risk. The court should adopt a rigorous, pragmatic and circumspect approach to medical evidence, particularly where the requested person has not given evidence and accounts have been mediated through treating clinicians: Bobbe v Poland [2017] EWHC 3161 (Admin).
4. In the absence of strong evidence to the contrary, a requesting European state is ordinarily presumed capable of taking steps to prevent suicide in custody: Polish Judicial Authority v Wolkowicz [2013] EWHC 102 (Admin). The information concerning medical assessment, psychiatric care, monitoring, hospital transfer and protection against antisemitic attacks was sufficient to support the District Judge’s conclusion.
5. The Article 8 assessment required a balance between the interference with private and family life and the public interest in extradition. That public interest was especially weighty given the seriousness and scale of the alleged financial offending. The District Judge had considered the applicant’s health, family circumstances and delay, and was entitled to conclude that extradition was proportionate.
6. The abuse-of-process challenge failed. There was a fundamental assumption that Germany was acting in good faith, and the seven-month period between notification of the applicant’s location in Israel and his arrest in the United Kingdom did not constitute cogent evidence of manipulation of the extradition process.
7. The applicant’s fresh evidence, considered separately and cumulatively, did not satisfy section 27(4). It did not show that the District Judge would have reached a different conclusion requiring discharge. The respondent’s fresh evidence was admitted in the interests of justice.

• High Court (Administrative Court): appeal against the District Judge’s extradition order dismissed; fresh evidence applications refused, save for the respondent’s further evidence admitted in the interests of justice.
• Westminster Magistrates’ Court: District Judge ordered extradition on 5 October 2023.