Sandra Palka v The Local Court of Görlitz, Germany

This is an appeal pursuant to sections 26 and 27 of the Extradition Act 2003 (“the Act”) against the order for extradition made by DJ Pilling in a judgment delivered on 6 March 2025 (“the Judgment”) pursuant to an accusation warrant issued by the Local Court of Görlitz, Germany (“the Warrant”).

The Warrant relates to 19 alleged offences of conspiracy to steal, namely, 10 offences of aggravated gang theft and 9 offences of attempted aggravated gang theft between 31 August 2019 and 22 September 2019 in Görlitz and Bautzen, Germany.

Three grounds of appeal are maintained:

This being an appeal under the Extradition Act 2003, I will allow the appeal if the District Judge “ought to have decided… differently”: section 27(3). There is no challenge to findings of primary fact. I will allow the appeal if the District Judge was wrong on any of the points raised by the Grounds.

In the case of an accusation warrant, section 2 of the Act requires the warrant to contain the information required in subsection (4), including:

“(c)

particulars of the circumstances in which the person is alleged to have committed the offence, including the conduct alleged to constitute the offence, the time and place at which he is alleged to have committed the offence and any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence;”

The Warrant in this case contained the following information in Box E:

“This arrest warrant relates to the total of 19 offences.

Description of the circumstances in which the offence(s) was/were committed, including the time of the offence (date and time of day), place and degree of participation in the offence(s) by the requested person:

Time/period of time of the offence: 31 August 2019 until 22 September 2019

Place(s) of the offence: Görlitz and Bautzen

Facts of the case: Not later than on 30 August 2019 the accused persons Fraczek, Czaplinski, Palka and Sys joined forces to form a gang in order to manipulate cash points of Sparkasse [savings bank] Oberlausitz-Niederschlesien, Sparkasse Bautzen, Volksbank Bautzen and Sparda-Bank in the greater area of Görlitz and Bautzen to steal large amounts of cash money from these cashpoints, whereas the perpetrators changed in each case. From these revenues, a source of income of considerable amount and accessed for a longer time, the accused persons wanted to make a living.

According to their criminal plan the accused persons in each case at first affixed a cover on the output chute of the respective cash point so that the output chute did not open, although the cashpoint was operated properly by the bank customers. Due to this, the bank customers could not take their money from the chute after having used the cash point, and had to leave the bank office without taking the money along.

Afterwards, the accused persons removed the cover previously attached by them and took the money left there in order to permanently keep it for themselves.

Implementing this decision for committing a crime, the accused persons Fraczek, Czaplinski, Palka and Sys between 31 August 2019 and 22 September 2019 manipulated a total of 19 cashpoints in Bautzen, Obergurig, Großpostwitz, Reichenbach, Kodersdorf, Niesky, Doberschau-Gaußig, Hochkirch, Krauschwitz and Görlitz and in this connection were able to steal a total of Euro 2,865.00 cash from 10 cashpoints. The withdrawal from another 9 cashpoints failed, as the money in cash was drawn in by the cashpoint again.

Type of participation: perpetrator

Nature and legal classification of the offence(s) and the applicable statutory provision/code:

aggravated gang theft in 10 cases and attempted aggravated gang theft in 9 cases under Sections 242 subsection 1, 243 subsection 1 number 3, subsection 2, 244 subsection 1 number 2, 244 a subsection 1, 22, 23, 25 subsection 2, 52, 53 of the German Criminal Code”

The box for offences of organised theft or aggravated robbery was then ticked. The box for “participation in a criminal organisation” was not ticked. However, the District Judge found that this was because of an administrative error or oversight and was not a contradiction in how the Judicial Authority regarded the criminal behaviour alleged (Judgment para 20).

A request for further information was made in the extradition proceedings, asking for a chronology of the investigation and prosecution from the earliest date of offending until the date the Warrant was issued, amongst other questions.

This was responded to by the provision of Further Information on 22 September 2023. It included a copy of the final report issued by the police department showing their investigations and conclusions. This police report was dated 11 March 2021 and included the following description of the alleged crimes:

“During the period August 2019 to October 2019, 21 cases of attacks on ATMs took place in the area of responsibility of Görlitz Police Department. The perpetrators affix a fake ATM cash dispenser over the real cash dispenser. On the inside of this fake cash dispenser is a strip of double-sided sticky tape or glue. The fake dispenser causes the withdrawal of cash to be blocked through the money hitting the fake dispenser and sticking to the tape or glue on it. For technical reasons, the money is retracted into the ATM after a short time if it is not removed from the cash withdrawal slot. Hence, only a portion of the money sticks to the fake dispenser. In the cases involved here, the fake dispenser was left on the ATM for several hours. Multiple ATMs were attacked on each of the days of the offences. Attacks on a total of 21 branches took place on the following days: 31 August 2019, 1 September 2019, 22 September 2021, and 28 October 2019. Losses through theft amounted to 3,495.00 Euro and losses through damage to property amounted to 3,732.00 Euro.

On the basis of the existing surveillance camera images from the aggrieved banks, it has been possible to establish three males and one female as the perpetrators, each of whom took turns to commit the offences.”

The police report, following investigation, matched the photographic evidence to the identities of the three males and one female (the appellant, Sandra Palka) said to be “the perpetrators”, and gave their names, and dates and places of birth. The police report said that “the photograph on Palka’s identity card evidently shows the same person as the female seen on the surveillance camera images”.

The police report then identified 22 alleged crimes, starting with an offence on 22 September 2019, and continuing with 21 other offences between 31 August 2019 and 29 October 2019. For each case, the police report gave a procedure number, an offence date, the time in a range of a few hours or less (e.g. for Case 1 the time range was between 18.47 and 19.38), the location, the victim, the “suspects”, and the loss and damage (e.g. for Case 1 this was stated as “Theft losses none, Property damage 593.00 Euro; for Case 3 this was stated as “Theft losses 70,00 Euro, Property damage none”). The appellant was a named “suspect” in the police report in respect of the case on 22 September 2019, and also in respect of Case numbers 10, 11, 12, 13, 14, 15, 16, 17, and 18 (a total of 10 Cases) which were all on 22 September 2019.

The further information also attached a local arrest warrant dated 25 March 2021, from Görlitz, which named the appellant (Sandra Barbara Palka) as the sole accused who was the subject of the local warrant. It said that she was “strongly suspected” of the following offence:

“No later than 30 August 2019, the accused persons Fraczek, Czaplinski, Palka, and Sys formed a gang in order to take turns in manipulating ATMs belonging to the banks Sparkasse Oberlausitz-Niederschlesien, Sparkasse Bautzen, Volksbank Bautzen, and Sparda-Bank in the regions around Görlitz and Bautzen, and thereby to steal large amounts of cash from these machines. The accused wished to make a living from the proceeds, a source of some considerable income over an extended period.

In accordance with their criminal plan, the accused, in each case, first affixed a fake cash dispenser to the cash withdrawal slot of the respective ATM, so that the cash withdrawal slot would not open even though the bank customer had used the machine correctly. As a result, the bank customers could not take their money out of the withdrawal slot after using the ATM and had to leave the bank without any cash.

Afterwards, the accused removed the fake cash dispenser that they had previously affixed and took the cash left in the withdrawal slot with the aim of keeping it for themselves.”

The local arrest warrant then stated (with the name of the appellant, where it appears, highlighted for ease of reference):

“In implementing this criminal plan, the named persons committed the following offences:

1.

(Case 5)

on 1 September 2019, between 12.00 and 20.00, accused persons Czaplinski and Sys, at the ATM in 02627 Kubschutz (aggrieved party: Sparkasse Bautzen), theft losses 100.00 Euro,

2.

(Case 3)

on 1 September 2019, between 14.48 and 15.17, accused persons Czaplinski and Sys, at the ATM in 02625 Bautzen, Erich-Weinert-Strasse 30 (aggrieved party: Sparkasse Bautzen), theft losses 70.00 Euro,

3.

(Case 6)

on 1 September 2019, between 16.00 and 17.42, accused persons Czaplinski and Sys, at the ATM in 02692 Obergurig, Hauptstrasse 31a (aggrieved party: Sparkasse Bautzen), theft losses 810.00 Euro,

4.

(Case 7)

on 1 September 2019, between 16.21 and 16.40, accused persons Czaplinski and Sys, at the ATM in 02692 GroBpostwitz, Hauptstrasse 15 (aggrieved party: Sparkasse Bautzen), theft losses 5.00 Euro,

5.

(Case 8)

on 1 September 2019, between 18.29 and 18.58, accused persons Czaplinski and Sys, at the ATM in 02625 Bautzen, Niederkainaer Strasse 14 (aggrieved party: Sparkasse Bautzen), theft losses 450.00 Euro,

6.

(Case 11)

on 22 September 2019, between 09.24 and 10.58, accused persons Czaplinski, Fraczek, and Palka, at the ATM in 02625 Bautzen, Erich-Weinert-Strasse 30 (aggrieved party: Sparkasse Bautzen), theft losses 200.00 Euro,

7.

(Case 10)

on 22 September 2019, between 09.08 and 09.24, accused persons Czaplinski, Fraczek, and Palka, at the ATM in 02625 Bautzen, Goschwitzstrasse 25 (aggrieved party: Volksbank Bautzen), theft losses 20.00 Euro,

8.

(Case 14)

on 22 September 2019, between 07.26 and 13.03, accused persons Czaplinski, Fraczek, and Palka, at the ATM in 02894 Reichenbach, Görlitzer Strasse 2 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien), theft losses 50.00 Euro,

9.

(Case 13}

on 22 September 2019, between 06.42 and 13.24, accused persons Czaplinski, Fraczek, and Palka, at the ATM in 02923 Kodersdorf, Strasse der Einheit 19 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien), theft losses 440.00 Euro,

10.

(Case 12)

on 22 September 2019, between 07.26 and 09.00, accused persons Czaplinski, Fraczek, and Palka, at the ATM in 02906 Niesky, Görlitzer Strasse 2 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien), theft losses 720.00 Euro.

In the following cases, the accused persons Czaplinski and Sys, in collaboration with the jointly accused Fraczek and Palka, manipulated further ATMs in the manner described above with the intention of gaining possession of cash. However, in these cases the cash in the withdrawal slot was retrieved by the machine before the fake dispenser was removed by the accused, so that the accused could not obtain any money from the cash dispenser:

11.

(Case 1)

on 31 August 2019, between 18.47 and 19.38, accused persons Czaplinski and Sys, at the ATM in 02923 Kodersdorf, Strasse der Einheit 19 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien),

12.

(Case 4)

on 1 September 2019, between 17.29 and 18.30, accused persons Czaplinski and Sys, at the ATM in 02692 Doberschau-GauBig, Karl-Marx-Strasse 2 (aggrieved party: Sparkasse Bautzen),

13.

(Case 2)

on 1 September 2019, between 15.41 and 18.05, accused persons Czaplinski and Sys, at the ATM in 02625 Bautzen, Neusalzaer Strasse 32 (aggrieved party: Sparkasse Bautzen),

14.

(Case 9)

on 1 September 2019, between 18.42 and 19.39, accused persons Czaplinski and Sys, at the ATM in 02625 Bautzen, Gesundbrunnenring 62 (aggrieved party: Sparkasse Bautzen),

15.

(Case 18)

on 22 September 2019, between 10.30 and 11.50, accused persons Czaplinski, Fraczek and Palka, at the ATM in 02625 Bautzen, Niederkainaer Strasse 14 (aggrieved party: Sparkasse Bautzen),

16.

(Case 17)

on 22 September 2019, between 09.57 and 12.00, accused persons Czaplinski, Fraczek and Palka, at the ATM in 02625 Bautzen, Gesundbrunnenring 62 (aggrieved party: Sparkasse Bautzen),

17.

(Case 16)

on 22 September 2019, between 08.39 and 08.41, accused persons Czaplinski, Fraczek and Palka, at the ATM in 02627 Hochkirch, August-Bebel-Strasse 1 (aggrieved party: Sparkasse Bautzen),

18.

(Case 22)

on 22 September 2019, between 05.49 and 13.22, accused persons Czaplinski, Fraczek and Palka, at the ATM in 02957 Krauschwitz, Muskauer Strasse 13 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien),

19.

(Case 15)

on 22 September 2019, between 07.01 and 07.10, accused persons Czaplinski, Fraczek and Palka, at the ATM in 02828 Görlitz, Lausitzer Strasse 22 (aggrieved party: Sparkasse Oberlausitz-Niederschlesien),”

The appellant was, therefore, named in 11 of the cases. However, all 19 cases were the subject of the local arrest warrant; which was directed solely at her. The local arrest warrant continued, again linking the appellant to all 19 cases, as follows:

“The accused is therefore charged with having, through 19 separate actions in 10 cases (cases 3, 5, 6, 7, 8, 10, 11, 12, 13, 14) taken movable property belonging to another, and in 9 cases (cases 1, 2, 4, 9, 15, 16, 17, 18, 22) attempted to take movable property belonging to another with the intention of unlawfully appropriating it for herself or a third party while acting as a member of a gang whose purpose is the continued commission of robbery or theft, with the participation of another member of the gang, punishable as 10 counts of aggravated gang theft and 9 counts of attempted aggravated gang theft as defined in Sections 242 (1), 243 (1) number 3, (2), 244 (1) number 2, 244a (1), 22, 23, 25 (2), 52, 53 of the German Criminal Code (Strafgesetzbuch, StGB).

The urgent suspicion is based on the findings of the investigations conducted so far.”

On 30 July 2024, the Judicial Authority provided more Further Information in the form of a reasoned ruling by the Higher Regional Court of Dresden dated 28 June 2024 (“the Ruling”) dismissing an appeal by Ms Palka against the domestic warrant. This was the final court of appeal for her in Germany. Ms Palka was the sole appellant and references in the official translation of the Ruling to “the accused” were references to Ms Palka alone. Those said to be her accomplices were referred to as “the suspects”.

The Ruling of the Higher Regional Court of Dresden said:

“The arrest warrant accuses her of having formed a gang with three other accused persons at the latest on 30 August 2019 in order to steal cash by manipulating cash dispensers operated by various banks in the Görlitz and Bautzen greater area with alternating members of the gang and, as a result of this, obtaining for themselves a source of income of a fairly large magnitude for a fairly long time. To achieve this, the suspects glued a slot in front of the cash dispensers' banknote outlet point so that the latter was not accessible for customers and the cash was dispensed into the slot. The suspects then returned to each of the cash dispensers in a follow-up operation, dismantled the glued device and (if successful) stole the banknotes that were remaining there.

The arrest warrant for the accused is based on her involvement in two series of crimes. During the first series on 31 August 2019 and 1 September 2019, the suspects acquired amounts of cash ranging between EUR 5 and EUR 810 in five cases, with the total amounting to EUR 1,365.00. In four other cases, the suspects did not succeed in gaining access to any cash because the cash dispensers withdrew the bank notes in each case (or, however, no cash payments were instigated by customers). During the second series of crimes, which were committed on 22 September 2019, the suspects managed to obtain cash sums ranging between EUR 50 and EUR 720, with the total amounting to EUR 1,430.00. The suspects failed to gain access to any cash in five other cases.”

The Ruling noted that the appellant “challenged the strong suspicion directed against her” and it therefore examined the merits of that challenge. It dismissed it, and said “There are no grounds for the appeal.”

In giving detailed reasons for that comprehensive dismissal of the appeal, the Ruling included the following passage:

“a)

There are no doubts related to the strong suspicion regarding the appellant's involvement in the second series of crimes on 22 September 2019. In this respect, the Senate refers back to the convincing presentation made by the Regional Court in the contested court ruling.

It is true that the accused can only be seen on the photos from the video monitoring system at the Oberlausitz-Niederschlesien Sparkasse Bank branch at Görlitzer Strasse 2, 02906 Niesky (case 12). However, there are no indications that the accused may have only been involved in this crime. For it is implausible that the accused was not involved in the gang's collusion during this series of crimes, where the suspects drove to ten different sites overall on at least two occasions during a period of time amounting to about seven-and-a -half hours (from 5:49 a.m. to 1:24 p.m.). The accused's actions in performing the crime in Niesky does not in any way suggest that she was only present in person for this crime. According to the video photos, she was only drawn into the cash dispenser area at the Sparkasse bank in Niesky when the two male suspects were disturbed by a bank customer. Apparently, the accused assumed the role of preventing any further disturbance by additional customers and screening the co-suspects as they dismantled the glued device and removed the money - acting for outward purposes as if she was a customer. lt seems far-fetched to suggest that this action had not been discussed with the accused prior to the crimes being committed. It is immaterial whether the accused had taken on any other active tasks such as providing other shielding in front of other crime scenes or driving vehicles.

As far as the legal validity of the arrest warrant is concerned, it does not depend either on whether there was no strong suspicion that the accused was involved in the first series of crimes, i.e. the actions on 31 August 2019 and 1 September 2019, contrary to the assessment by the investigating judge at the local court and the appeals chamber at Görlitz Regional Court. According to the current state of the investigations, no indications can be recognised that the accused was already involved at this time. The time interval between this and the second series of crimes alone - i.e. no more than about three weeks - makes this appear possible. After other indications have not materialised in the intervening period so far, however, a strong suspicion in the sense of Section 112 Para. 1 of the German Code of Criminal Procedure does not exist.

In the overall assessment, there is therefore a strong suspicion that the accused, acting with others, as involved in ten wilful crimes, five of them attempted (cases 15, 16, 17, 18 and 22) and five of them committed (cases 10, 11, 12, 13 and 14), with the involvement of another member of the gang in stealing personal property that did not belong to them from another person, illegally appropriating this for themselves or for a third party and acting as a member of a gang, which had colluded to repeatedly commit robbery or theft (Section 244 Para. 1 No. 2 and Para. 2, Sections 22, 23, 25 Para. 2, Section 53 of the German Criminal Code).”

In her admirably clear and succinct judgment, after summarising the submissions made to her under section 2 of the Act, the District Judge dealt with the question of particularity as follows (Judgment paras 21-22):

“21.

Box E sets out the method allegedly employed by the group to commit the thefts. The precise evidence against her in respect of each alleged offence may be the same or may differ. There may be direct evidence linking her to some alleged offences but not others. There may be an informant or evidence obtained covertly which links the RP [the appellant, the Requested Person] to the conspiracy. The assessment of the evidence against the RP is not for this court. While the AW [Arrest Warrant] does not identify which members of the group took which actions on each occasion, it is clear that the case against the RP is that she has taken part, on a joint enterprise basis, in thefts or attempted thefts from cash machines with others on 19 separate occasions. I do not agree that there has been a “wholesale failure” and am sure to the high criminal standard that the required particulars have been provided.

22.

If I am wrong about that, then the further information dated 22 September 2023 would be sufficient to fill any lacunae. This contained the national arrest warrant issued by the Görlitz Local Court on 25 March 2021 along with the report of the Görlitz Police Department of 11 March 2021. The latter provides the exact time and location of each alleged theft from a cashpoint, along with the relevant suspect and the amount of any loss. The RP has not been caused the prejudice alleged by Miss Willocx; the information provided is sufficient to enable the court to consider the question of dual criminality for the purposes of section 10 EA, the information makes it entirely clear to the RP which alleged incidents her extradition is sought for. Any “uncertainty” or difference between the report of the Police Department and the national arrest warrant simply shows that the Public Prosecutor's Office reviewed the information provided by the police and charged 19 of the 21 incidents referred to it. The total value of the alleged thefts is of no particular consequence. I agree with Miss Beatty that it is entirely plausible that the value has been refined as the investigation has moved on.”

In support of the appeal, Ms Willocx pointed out that each offence falls to be considered as a separate Arrest Warrant, citing Malik v Germany [2018] EWHC 3479 (Admin) at para 14 and the Extradition Act 2003 (Multiple Offences Order) 2003 SI 2003/3150. She argued that the Warrant failed the requirements of section 2 of the Act and that the Further Information either did not satisfy them, or made things worse by introducing contradictions, or was impermissibly being relied upon to remedy a wholesale failure rather than merely, and permissibly, filling gaps or lacunae in the Warrant. She relied particularly (although not solely) on the summary of authority and statements of principle by the Divisional Court in Dhar v Netherlands [2012] EWHC 697 (Admin) at paras 61, 63-65. At paras 63-65 King J said:

“63.

It is well established that the subsection does not demand the specificity of a count on an indictment or of an allegation in a civil pleading (see Auld LJ in Fofana and Belise v The Deputy Prosecutor Thubin Tribunal de Grande Instance de Meaux [2006] EWHC 744 at paragraph 39). The court must be alive to the purpose of the legislation namely that of simplifying extradition procedures so as not to put too onerous a burden on the requesting judicial authorities. The court must have regard to the object that the conduct be expressed concisely and simply. There is no requirement that it be described in legal language.

64.

On the other hand it is equally established that the use of the introductory word "particulars" in the subsection means that "a broad omnibus description of the alleged criminal conduct", such as "obtaining property by deception" will not suffice (see Dyson LJ as he then was in Peter Von Der Pahlen v Government of Austria [2006] EWHC 1672 (Admin) at paragraph 21). Although the question "how far does the warrant have to go?" admits of no prescriptive answer (see again Dyson LJ at paragraph 20 in Von Der Pahlen), the particulars required must at the very least in my judgment enable the person sought by the warrant to know what offence he is said to have committed under the law of the requesting state and to have "an idea" of "the nature and extent of the allegations against him in relation to that offence" (to use the language of Cranston J in Ektor v National Prosecutor of Holland [2007] EWHC 3106 (Admin) at paragraph 7). The amount of detail required may turn on the nature of the offence.

65.

I would not go as far as the observations of Hickinbottom J in Sandi v The Croatia Court, Romania [2009] EWHC 3079 (Admin) at para 28 that "a significant level of particularisation is required to enable the person sought to be extradited to identify exactly what he might face at trial" if by the expression which I have emphasised is meant that the information provided must deign to every last detail of the case against the person. Further, of course, there is no requirement to set out the evidence against the person by which the particularised conduct is to be established at trial.”

At para 68, King J referred to:

“…the need when determining the adequacy of the particulars in a given case, and the significance of any lack of particulars complained of, to have regard to any potential prejudice to the Requested Person in the extradition process both in the requested state and upon his surrender to the requesting state. Clearly the particulars must be sufficient to enable him to consider whether any statutory bars may apply. Equally the particulars of the conduct alleged must be sufficiently clear and unambiguous to enable the Person to invoke the principle of speciality if on his surrender, he, for example, finds himself facing allegations in the requested state as regards his degree of participation in the alleged offence (for example being that of having the master role in a conspiracy) which go materially beyond that which was alleged in the EAW. I agree again with Cranston J (see Ektor at paragraph 7) that where dual criminality is involved the detail must also be sufficient to enable the transposition exercise to take place.”

In Pelka v Poland [2012] EWHC 3989 (Admin), Collins J said at para 6:

“Certainly, where involvement in a conspiracy is alleged, it is not necessary to include any great detail as to the precise acts committed in furtherance of the conspiracy. But, as a general proposition, it seems to me that a warrant ought to indicate, at least in brief terms, what is alleged to have constituted the involvement or the participation of the individual in question. It seems to me that, prima facie, simply to say there was a conspiracy and he conspired with others is to do whatever the end result of the offence is, is likely not to be sufficient.”

I agree with the District Judge on this point.

The Warrant does not simply state the nature of the crimes alleged; it provides the dates and locations. It states that the appellant “joined forces” with the three others named “to form a gang”. It is clearly accusing her of joint participation in a criminal enterprise “in order to manipulate cash points” in the places which are named “to steal large amounts of cash money from these cashpoints”. Whilst it states (consistently with the other descriptions of the alleged offending) that “the perpetrators changed in each case”, it is not thereby saying that the appellant was not always involved and criminally responsible as a member of the gang. It is certainly saying that she is a member of the gang criminally responsible in every case. She was a joint participant, even if the acts performed at the location of the cash points themselves were not always personally performed by her; she had “joined forces” with the “gang” each member of which was criminally responsible. The detail of the manipulation which the gang was formed to execute, and did execute, using various perpetrators in each case, is explained: the affixing of a cover on the output chute to intercept cash which was later retrieved instead of passing as it should have done to the victims who were attempting to withdraw it. The Warrant’s statement of the “nature and classification” of the 19 offences set out in the Warrant further confirms this: the offences are “aggravated gang theft” and “attempted aggravated gang theft”.

The crimes are gang crimes (under German criminal law) and to state that the appellant was not always the “perpetrator” was not in any way to suggest that she was not criminally responsible in every case. Nor did it introduce any element of confusion as to her role or her acts. It is not always possible to identify every word or action spoken or performed by a gang member in support of a conspiracy or a joint enterprise. It is not necessary to do so, either as a matter of English or (I suppose) German law (were the contrary to be asserted in respect of German law it would have to be proved as a fact by expert evidence, and it is not suggested in this appeal).

Much more detail was provided by the Further Information dated 22 September 2023. It provided for each case a more precise date and time, as well as the precise location and the amounts stolen and the values of property damaged. This did not introduce new crimes, and it did not make any change to the description given in the Warrant. Rather, it did what it was intended to do, and which it was legitimate for it to do, which was to provide more information along the same lines.

The police report attached to the Further Information dated 22 September 2023 demonstrated that reliance was placed, as a matter of evidence, on surveillance camera footage and on the successful identification of the alleged gang members from that footage, including the appellant. There was no doubt, from the description in the Warrant and the police report, about the way in which the aggravated gang thefts, or attempts, were committed, which was by the execution of the gang’s plan to intercept cash at the cash points by introducing a physical device to divert it from the customer. The allegation is, explicitly, that the appellant was part of the gang criminally responsible in every case, regardless of whether she was caught on camera in every case. The absence of the appellant’s name from those specifically named in every one of the detailed descriptions of the 19 cases did not suggest that she was not part of the joint participation; but only that she was not caught on camera. The inclusion of the 19 cases in the Warrant showed that the accusation is that she was part of the joint participation whether or not she was caught on camera.

The complaint that, if she was not caught on camera, she and the court have not been told what exactly she did is misconceived. She was part of the “gang” which had “joined forces” to do all these things, and where her precise acts were not known, it is not a valid criticism of the Warrant or the Further Information to say that they were not stated as part of the case. The modus operandi (as alleged) was the same in every case. The accusation is clearly made, and the evidence, so far as it exists at this stage, is indicated in the police report, but this court is not concerned with the evidence. Some of the cases may rely on circumstantial evidence and inferences to be drawn from the direct evidence of the camera footage (as the Dresden Ruling suggests), but the accusation is clear and consistent and it implicates the appellant in every one of the 19 cases, and not only those in which she was seen on camera.

Ms Willocx argued that the Ruling of the Higher Regional Court of Dresden found “strong suspicion” only in relation to the thefts on 22 September 2019, and that it stated that “no indications can be recognised that [she] was already involved” in the thefts on the earlier dates, 31 August and 1 September 2019. Ms Willocx suggested that this introduces confusion and contradiction by appearing to discount the cases in the Warrant and the police report attributed to those dates, and yet they remain in the Warrant. Extradition has to be specific to particular alleged offences and she argued that it should not be ordered in relation to offences which have been discredited by the Ruling.

This is not a correct reading of the Ruling. The purpose of the Ruling was to examine a challenge to the domestic warrant and it rejected the challenge wholesale. The reasoning turned, in part, on the German law requirement of “strong suspicion” and noted that it was sufficient if there were “strong suspicion” in some although not all of the cases. It found “strong suspicion” in some but not all cases. However, it will be the function of a criminal trial, and not an appeals process challenging a domestic warrant, to determine whether a case is proved, and it will do so on the basis of the evidence available to and deployed at that future trial. It was not the function of the Ruling to dismiss any charges, and it did not do so.

Ms Willocx also pointed out that there is a discrepancy between the charges stated in the Warrant (which are aggravated gang theft or attempted aggravated gang theft) and the charges identified in the Ruling upholding the domestic warrant (which are gang theft or attempted gang theft and not the aggravated versions of those offences). That is true. However, it does not mean the Warrant or the Further Information lack particularity. They are clear and consistent in alleging the aggravated offences. There is no suggestion, even in the Ruling, that the factual basis alleged in the Warrant and Further Information (and considered in the Ruling) does not support the aggravated offences. The Judicial Authority is entitled to and does pursue extradition on the basis of the aggravated offences, whatever the Ruling may have said in the context of a different legal process concerned with a different legal question, and which was not itself conducting or deciding the criminal proceedings.

Finally, the appellant argues that the precise amounts of theft losses vary between the Warrant, the police report and the Ruling. That is also true, but it does not mean there is a lack of particularity. The police report is an investigation report and there is nothing wrong with developing the case on loss and damage as the investigation proceeds further towards the trial. The detail that the appellant requires in order to understand and if appropriate challenge the Warrant does not include the precise amounts of loss and damage. The case is sufficiently clear and adequately particularised.

Section 10(2) of the Act requires the court to decide whether each of the offences specified in the Warrant is “an extradition offence”. Since this Warrant is an accusation warrant, section 64 of the Act defines what is meant by “an extradition offence”. Section 64(3)(b) imposes the condition that:

“the conduct would constitute an offence under the law of the relevant part of the United Kingdom if it occurred in that part of the United Kingdom”.

The District Judge dealt with the challenge to dual criminality in paras 24-27 of the Judgment as follows:

“Section 10 – dual criminality

24.

Miss Willocx submitted that the same lack of particulars concerning the RP’s conduct means that the JA has not proved to the criminal standard that the AW has been issued in respect of extradition offences in accordance with section 10 read with section 64(3) EA, save for one alleged offence referred to as case 12. She relied, in particular, on the fact that the RP is not alleged to have been present at each of the thefts or attempted thefts, and, when she had been identified, she had been present with only 2 not 3 of the co-defendants.

25.

The parties were in agreement that the conduct took place in Germany, that the maximum sentence available on conviction exceeds 12 months’ imprisonment and that the potential equivalent UK offences are:

(i)

Participating in the activities of an organised crime group, contrary to section 45 Serious Crime Act 2015; and/or

(ii)

Conspiracy to steal, contrary to common law; and/or

(iii)

10 offences of theft, contrary to section 1(1) and 7 Theft Act 1968 and 9 offences of attempted theft, contrary to section 1 Criminal Attempts Act 1981.

26.

As set out above, the conduct alleged against the RP is that she acted jointly as part of a group which committed or attempted to commit acts of theft, namely the dishonest appropriation of property belonging to another with the intention of permanently depriving them of it. The AW makes it clear that the RP and the 3 co-defendants “joined forces to form a gang” and was involved in a “criminal plan” and, having done so, are all equally liable for each theft or attempted theft regardless of which of them actually approached the cash machine and took the money. I am not required to engage in any examination of the evidence.

27.

I am satisfied so that I am sure that the AW has been issued in respect of extradition offences.”

Ms Willocx challenges this reasoning in an argument which she accepted was closely related to her arguments on Ground 1. She suggested that the Judge conflated the allegation and the conduct underlying it and has not recognised the requirement to describe conduct in conspiracy and joint enterprise cases, rather than just stating the offence as “conspiracy” or “joint enterprise” (Pelka para 6, quoted in para 22 above).

However, for the reasons I have given, I do not accept that in this case there is a lack of particularity about the conduct underlying the allegation. The offences are not merely stated. The facts are explained, including (where known) the appellant’s personal involvement as a perpetrator, her personal attendance at the scene (when caught on surveillance cameras) and her participation as a member of the gang performing essentially the same agreed acts in the same agreed way over a short period of time in the same places, even when she was not the perpetrator at the cash point or on camera at the scene.

That being so, it is common ground that the offences identified by the Judge establish the dual criminality required by section 10. The facts set out in the Warrant and the Further Information support a case of conspiracy to steal, contrary to common law, and theft and attempted theft, on a joint enterprise basis. They are not bare allegations of offences but include a modus operandi operated by the gang allegedly including the appellant, as demonstrated (in part) by her presence at the scene on numerous occasions documented by surveillance cameras and by inference in the other cases. They also meet the requirements of section 45 of the Serious Crime Act 2015 which provides:

“45 Offence of participating in activities of organised crime group

(1)

A person who participates in the criminal activities of an organised crime group commits an offence.

(2)

For this purpose, a person participates in the criminal activities of an organised crime group if the person takes part in any activities that the person knows or reasonably suspects—

The Judge was, therefore, not wrong to reject the challenge under section 10.

In the case of an accusation warrant, section 21A of the Act provides:

“21A Person not convicted: human rights and proportionality

(1)

(…) the judge must decide (…) in respect of the extradition of the person (“D”)—

(…)

(b)

whether the extradition would be disproportionate.

(2)

In deciding whether the extradition would be disproportionate, the judge must take into account the specified matters relating to proportionality (so far as the judge thinks it appropriate to do so); but the judge must not take any other matters into account.

(3)

These are the specified matters relating to proportionality—

(a)

the seriousness of the conduct alleged to constitute the extradition offence;

(b)

the likely penalty that would be imposed if D was found guilty of the extradition offence;

(c)

the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition of D.”

It has been suggested that “concern with proportionality in extradition has been enhanced following Brexit”: Dujka v Czech Republic [2023] EWHC 1842 (Admin) per Sir Ross Cranston at paras 22-23. The language of the Trade and Cooperation Agreement does reinforce the principle. However, the principle derives from section 21A of the Act which was inserted in 2014, well before Brexit. Soon after that, guidance on the question of proportionality was given by the Divisional Court in Miraszewski v Poland [2014] EWHC 4261 (Admin). This established that extradition may be disproportionate even if the offences concerned are not those listed in the Lord Chief Justice’s guidance in Criminal Practice Directions Amendment No 2 [2014] EWCA Crim 1569. The specified matters to be taken into account are the three listed in section 21A(3). The judge must “take into account” the three specified matters, and nothing else, because that is the language of the statute; there is no general proportionality ground for barring extradition: Blanchard v Spain [2021] EWHC 1776 (Admin) per Singh LJ at 108.

In Miraszewski v Poland [2014] EWHC 4261 (Admin), Pitchford LJ said at para 36 that maximum penalties are relevant but of limited assistance “because it is the seriousness of the requested person’s conduct that must be assessed”. He went on to say, at paras 37-39:

37.

Section 21A(3)(b) requires consideration of “the likely penalty that would be imposed if D was found guilty of the extradition offence”. Since what is being measured is the proportionality of a decision to extradite the requested person under compulsion of arrest, I consider that the principal focus of subsection (3)(b) is on the question whether it would be proportionate to order the extradition of a person who is not likely to receive a custodial sentence in the requesting state. The foundation stone for the Framework Decision is mutual respect and trust between member states. The courts of England and Wales do not treat as objectionable the possibility that sentence in the requesting state may be more severe than it would be in the UK. (…) However, in the extremely rare case when a particular penalty would be offensive to a domestic court in the circumstances of particular criminal conduct, it is in my view within the power of the judge to adjust the weight to be given to “the likely penalty” as a factor in the judgement of proportionality.

38.

It would be contrary to the objectives of the Framework Decision to bring mutual respect and reasonable expedition to the extradition process if in every case the judge had to require evidence of the likely penalty from the issuing state. Furthermore, the more borderline the case for a custodial sentence the less likely it is that the answer would be of any assistance to the domestic court. Article 49(3) of the Charter of Fundamental Rights of the European Union requires that the severity of penalties must not be disproportionate to the criminal offence. (…) In my judgment, the broad terms of subsection (3)(b) permit the judge to make the assessment on the information provided and, when specific information from the requesting state is absent, he is entitled to draw inferences from the contents of the EAW [European Arrest Warrant] and to apply domestic sentencing practice as a measure of likelihood. In a case in which the likelihood of a custodial penalty is impossible to predict the judge would be justified in placing weight on other subsection (3) factors. However, I do not exclude the possibility that in particular and unusual circumstances the judge may require further assistance before making the proportionality decision.

39.

While the focus of subsection (3)(b) is upon the likelihood of a custodial penalty it does not follow that the likelihood of a non-custodial penalty precludes the judge from deciding that extradition would be proportionate.”

The Judgment deals with the proportionality issue at paras 43-49:

“Section 21A EA(1)(b) – proportionality

43.

In deciding whether the extradition would be proportionate, I must take into account only the matters specified in section 1(c) so far as I think appropriate to do so.

44.

I agree with Miss Willocx that the total value of thefts is not high, but consider the seriousness of the alleged offending to be exacerbated by the involvement of a group who were prolific over a short period of time.

45.

In taking into account the likely penalty that would be imposed if the RP were found guilty of the extradition offence, I have to return to the issue of Mr Hof and his opinion evidence. I have already indicated that he is not an independent expert witness, and he is acting for the RP in Germany. He began his report by noting that sentencing in Germany is complicated. It is likely that there will be a range of sentences that could be considered if the RP were to be convicted. In this case, I have seen the decision of the Higher Regional Court of Dresden which makes it clear that “[i]n light of the significant criminal charges the accused can expect a prison sentence which can no longer be turned into a suspended sentence.” It follows that I must take into account the likely penalty for the RP would be immediate custody.

46.

If this does not amount to information from the JA which I should consider before looking to domestic sentencing, I have also considered the Sentencing Guideline for theft that would be applicable if that were the charge of which the RP was convicted for in the UK. There is no Guideline for participating in the activities of an organised crime group or for conspiracy.

47.

I disagree with Miss Willocx’s categorisation of the offending as falling within Medium Culpability and would determine the culpability as High. This is because there was significant planning, by forming the group, planning as a group and acting as a group, and the use of a device to block the bank machine. The starting point, for one offence, would be 1 year’s custody with a range of 26 weeks’ to 2 years’ custody. In the UK, it is likely that the offence would be aggravated by prevalence depending on the area in which the offence was committed. It is therefore likely that the RP would be sentenced to an immediate custodial sentence in excess of 1 year if convicted on all offences.

48.

Finally, in respect of the possibility of the relevant foreign authorities taking measures that would be less coercive than the extradition, a request had been made under section 21B for the RP to be interviewed via video link. That request was considered by the JA but ultimately rejected after the decision of the Higher Regional Court in Dresden. The proceedings in Germany have now moved on and the JA considers that there is no purpose in taking those measures at this stage. The parties have not identified any other alternative measures that would be appropriate in the circumstances.”

49.

In light of these matters, I have concluded that extradition would not be disproportionate.”

A number of features raise my assessment of the seriousness of the conduct alleged against the appellant in this case. The figure in the Warrant of 2,865 Euros in cash is a significant sum, although not a very large one. The appellant is charged with acting as part of a group, a “gang”, consisting of four people including herself. There was advance planning. There was a degree of sophistication in the method used, particularly the deployment of the device attached to the machines in order to make it appear that there was a simple malfunction when in fact cash was being harvested and retained, for subsequent collection by the gang. The offences alleged were spread over a number of occasions; this was not a single criminal act. They were also allegedly committed in more than one place. All of this tends to make the alleged conduct more serious.

So far as the likely penalty in Germany is concerned, the Judge had evidence from the appellant’s expert, Mr Hof, and the Ruling of the Higher Regional Court of Dresden attached to the Further Information.

Even though the Ruling focussed on the offences for which there was already evidence to support “strong suspicion”, which were only those allegedly committed on 22 September 2019, it said that “the accused can expect a prison sentence, which can no longer be turned into a suspended sentence”.

The Higher Regional Court of Dresden was the court of final appeal, and gave its Ruling after the appellant had failed in Görlitz Local Court (which issued the domestic warrant), and then on appeal to the appeals division of the Görlitz Regional Court. It was therefore a second tier court of appeal. Its opinion that the sentence would not be suspended is all the more authoritative because of its position at the top of the hierarchy.

The evidence of Mr Hof was not the evidence of an independent expert, because he was the appellant’s own lawyer in Germany. This meant that, while the Judge took his opinion into account, she gave it “limited weight in the context of his acting for the RP” (Judgment at para 16). That was a reasonable approach. Mr Hof said that there were no sentencing guidelines and “no solid basis for an answer” to the question of what the sentence was likely to be. He quoted the German Criminal Code which suggested to him “a penal range of six months to ten years imprisonment by the law”, the sentence not being capable of suspension if it exceeded one year. He suggested, based on the facts of case 1 in isolation, a sentence of between six months and one year. That is a significant sentence. He considered immediate custody “very unlikely” if conviction was for the single offence, but the appellant is charged with 19 offences. If convicted of all 19 offences, it was the opinion of Mr Hof that “even in that scenario a suspension is not excluded but maybe requires some additional efforts”; which suggests that he considered it possible but not likely. Indeed, he said that if any scenario made an immediate custodial sentence “rather likely” it was this one, in other words, the sentence to be passed if the appellant were convicted of all 19 offences listed in the Warrant.

The likely penalty in Germany does not in my judgment support the submission that extradition would be disproportionate. It is an immediate custodial sentence of significant, although not very long, duration.

I do not think the Judge’s application of the Sentencing Guideline for England and Wales was wrong. She placed the alleged offending in category A3, whereas Ms Willocx suggested that category B3 would be more appropriate to the alleged facts of the case. However, I agree with the Judge that the category A factor of sophistication and planning was present on the facts stated in the Warrant and the Further Information. That suggests a starting point of 1 year’s custody.

Moreover, that is a guideline for a single offence of simple theft. The Warrant alleges aggravated theft, and multiple cases, and the equivalent offences in this country include participating in the activities of an organised crime group, contrary to section 45 of the Serious Crime Act 2015, and/or conspiracy to steal, as well as simple theft. These would be sentenced more severely than theft on a single occasion by a single defendant acting alone.

I do not think, therefore, that the likely penalty supports the appellant’s case on proportionality.

The third consideration under section 21A(3) of the Act (the possibility of the German authorities taking measures that would be less coercive than the extradition) does not help the appellant in this case. No such measures are now being considered by the German authorities and none are suggested by the appellant now. The Ruling of the Higher Court of Dresden, after its prediction of an immediate custodial sentence, specifically rejected the possibility of less coercive measures.

Having considered the statutory factors, therefore, and assessing the alleged conduct in the round, I agree with the Judge that this is not a case in which extradition would be disproportionate.

It follows that all three Grounds have failed, and the appeal will be dismissed.