AC-2023-LON-003019 - [2025] EWHC 1851 (Admin)

The Appellant’s wife is in a very difficult emotional state after the suicide of her father, her mother’s ongoing mental instability and the Appellant’s position. Breaking their bond might lead to tragic and horrendous outcomes. Her mental health is getting worse. Her father’s suicide was a devastating loss and Dor Cohen is grieving for him and concerned about her partner. She is on anti-depressants and at high risk of suicide (Letters from Dr Krichman, treating psychiatrist and psychoanalyst for 5 years dated 5 November 2023 and 4 May 2025).

The Appellant’s wife is suffering from a depressive illness, grieving for her father and caring for her depressed and disable mother. It is likely that her mental state will deteriorate if separated from her husband. She presents an elevated risk of suicide and if her husband is extradited her risk of suicide is likely to become very high (Report of Prof Forrester dated 2 March 2024).

The Appellant’s mental and physical health has deteriorated since the hearing before the District Judge (statement of Shir Cohen dated 10/6/25, produced on the second day of the appeal hearing).

The Appellant is still relying on his wife and family and multiple health care specialists. His conditions are as explained in the fresh medical reports (Appellant’s proof of evidence dated 7 May 2025).

Investigations in Germany against the Appellant have not yet concluded and further evidence is still needed (Statement of Stefanie Schott, German qualified lawyer, dated 19 April 2024). The German authorities have not proceeded against the Appellant’s co-defendant who remains in Israel (witness statement from Mr Yaslovitzh dated 8 May 2025).

The Respondent seeks permission to admit the following further information from the Judicial Authority in response to the Appellant’s applications to admit fresh evidence.

Pursuant to Section 27(4) Extradition Act 2003, the appeal court may allow the appeal if evidence is available that was not available at the extradition hearing and the result would have been different, resulting in the person’s discharge, if it had been adduced.

Evidence which was ‘not available at the extradition hearing’ means evidence which either did not exist at the time of the hearing or which was not at the disposal of the party wishing to adduce it and which could not with reasonable diligence have been obtained. This is a strict test, consonant with the parliamentary intent and that of the Framework Decision that extradition cases should be dealt with speedily and should not generally be held up by an attempt to introduce equivocal fresh evidence which was available to a diligent party at the extradition hearing (Hungary v Fenyvesi [2009] 4 All ER 324 at [32]).

The diagnoses of epilepsy and fibromyalgia have occurred since the hearing before the Judge. Whilst epilepsy is a serious condition it is apparent from the further information dated 27 May 2025 that the condition is managed fairly regularly in German prisons and there is a regime available. The Appellant will be housed with another prisoner who can seek help if necessary. There will be medical staff available to manage the condition. The therapy recommended in the German medical guidelines for the treatment of fibromyalgia is ‘guaranteed’.

The reports detailing a deterioration of the Appellant’s mental health are from the Appellant’s treating clinicians. Dr Zivor accepts in his report that he cannot present as being completely independent in this regard.

Much of the fresh evidence about the Appellant’s mental health is an extension of evidence already considered by the Judge. Whilst the impact of the Gaza war is a new external circumstance, the Judge had before her evidence of the Appellant’s significant mental health difficulties, which she acknowledged, but nonetheless considered could be managed in custody. In this regard the Judge attached weight to the Appellant’s refusal to take medication recommended by the experts and to instead embark upon an extensive course of physical therapy, including the pelvic wand which was found to have no scientific basis. In a similar vein, it is not clear whether the ketamine infusions commenced by the Appellant since the extradition hearing is treatment condoned by the consultant neurologists advising on the Appellant’s epilepsy. Dr Mavroudis does not recommend these as part of the current treatment or medication, nor describes it as part of the general management of epilepsy. The Appellant’s treating neurologist Dr Swayne does not appear to be aware of it and does not mention it.

It is apparent from the new material before this Court that developments in the Appellant’s physical health since the hearing are related to his mental health. Dr Mavroudis describes how ‘stress, sleep disturbances and anxiety are key triggers for seizures in Mr Cohen’s case. These factors are likely contributing to the persistence and increasing frequency of his seizures. Addressing these triggers is critical to improving his overall prognosis’. Dr Mavroudis considers the stress and protracted nature of the extradition proceedings is contributing to and exacerbating the epilepsy (39) (‘Anxiety linked to his ongoing legal proceedings appears to play a role’). The Appellant’s consultant rheumatologist, Dr Schreiber acknowledges fibromyalgia is a poorly understood condition but expresses the opinion that the prognosis is “most likely to reflect Mr Cohen’s mental health and state of mind”. Similarly, Dr Siddiqi observes in relation to the deterioration of the Appellant’s bowel condition that ‘only once his psychological state has been treated will Mr Cohen have a chance of reducing his physical symptoms’.

The same link was evident in the evidence before the judge who acknowledged that stress can make the Appellant’s physical conditions worse but found it would be for a relatively short time as he adjusts to being in prison as it was when he first went to prison in the UK. The Judge concluded that the UK prison authorities managed his condition and the German prison system would do the same.

The German authorities have been provided with the Appellant’s medical records (letter from Bamberg Public Prosecutor General’s Office, dated 5 May 2025). They have considered the latest medical updates and provided a response. Whilst Wurzberg Prison will not be able to guarantee long term wide ranging psychotherapeutic and psychosomatic treatment for PTSD, anxiety and fibromyalgia, the prison authorities have confirmed they will assess the Appellant’s ‘capacity for imprisonment’ on transfer:

“I should like to point out that the suspect will also be examined here, after he has been transferred to the Federal Republic of Germany, with regard to both his capacity for criminal liability during the period in which the crime was committed and also his capacity for imprisonment and legal proceedings and that during the course thereof the documents placed at our disposal will also be taken into consideration”

The Court’s attention was drawn to the following email sent to the District Judge by the Appellant’s solicitor after the hearing in September 2023:

“Further to a discussion in court, Dr Zivor agreed that he will assess Mr Cohen at least fortnightly (or as otherwise directed by him) by video or in person. If Dr Zivor considers there to be a serious and imminent risk of suicide, he will notify Mr Cohen’s family, his treating psychiatrist, Dr Bernat and, if necessary, the police. He will also inform Jennifer Harper and Kamila Kwincinska of Howard Kennedy LLP of the same. Dr Zivor will also notify Ms Harper and Ms Kwincinska if any steps are taken to admit Mr Cohen to hospital, voluntarily (eg if he advises Mr Cohen to attend hospital) or compulsorily.

Howard Kennedy LLP will inform the Prosecution and the Court if Dr Zivor notifies Ms Harper or Ms Kwincinska that there is a serious and imminent risk of Mr Cohen committing suicide and/or if any steps are taken to admit him to hospital, voluntarily or compulsorily.”

The Court was further informed that Dr Zivor has not activated the undertaking, from which it may be inferred that the Appellant has not been considered to be at imminent and serious risk of suicide since September 2023.

Professor Heger’s report suggests an increased risk of antisemitic perpetrators being imprisoned, arising in turn from a rise in antisemitic hate crime in Germany after the October 2023 attack by Hamas and the Appellant finding himself imprisoned with them. His report does not provide statistics as to the numbers imprisoned or likely to be imprisoned for antisemitic offending which means the Court cannot evaluate the extent to which conditions will be different from the position at the time of the hearing before the Judge. The report points to a verdict from 17 April 2025 where a perpetrator was subject to a more severe sentence because of the antisemitic element of the offence. However, this may be said to indicate the seriousness with which the German justice system takes preventing antisemitism and an illustration and fortification of the presumption that Germany provides reasonable state protection to all its minorities. The suggestion in the report that the Appellant faces a risk, from this specific individual (who still has two further court stages before the sentence becomes final), is speculative and takes no account of the expectation that the German prison authorities will manage such risks appropriately. The further information before the judge explained that:

“Over the past 20 years, no antisemitic attacks were recorded in the St. Georgen Bayreuth prison. There are also, today, prisoners of the Jewish faith in the St. Georgen-Bayreuth prison without any problems ever arising in this regard [¶46.6. iii].

The reliance on Dr Oehmichen’s addendum report ignores the findings of the judge that she lacks the necessary expertise. The part of Dr Oehmichen’s addendum which does not deal with antisemitism, but just deals with general prison conditions, fails the first limb of the Hungary v Fenyvesi [2009] EWHC 231 (Admin) test. There is no reason why such evidence could not have been adduced before with reasonable diligence.

The report from Professor Drenkhahn could and should have been produced at the extradition hearing. A request to admit fresh expert evidence needs to be considered with care to avoid the situation where after the first instance hearing an expert is discovered who more strongly supports the case being advanced on behalf of an appellant than the expert who was called at the first instance hearing and that the time of the appellate court is not consumed by an attempt to relitigate issues which have been determined at first instance (Hewitt & Woodland v Spain [2009] EWHC 2158 (Admin) at [¶22]). Dr Drenkhahn’s report provides background information on prisons in Germany and the three Bavarian prisons. It addresses suicide risk and self-harm; provides information about transferring to an external hospital; addresses contact with the Appellant’s family from prison; English speaking psychologists; how his physical health could be managed within the prison; his use of a crutch; measures that could be put in place to prevent an antisemitic attack and the availability of kosher food and other adjustments; access to medication like tramadol. In any event Professor Drenkhahn is candid about her lack of expertise “I have never been to a prison in Bavaria, so I have not witnessed life in Bavarian prisons myself” [introductory letter] and “I have no expertise in antisemitism research in Germany” [¶57].

The Court was told that the father of the Appellant’s wife (Dor Cohen) committed suicide shortly before the hearing before the judge, who heard Ms Cohen give evidence about the impacts of extradition. Her mental health difficulties are said by her treating physician to be due to the suicide of her father and the ongoing ill health of her mother, as well as to the Appellant’s situation. Since the hearing Dor Cohen has returned to Israel to care for her mother. She returns to the UK to support the Appellant for a week each month. The Judge acknowledged the emotional distress and difficulty for Dor Cohen and the family on extradition but concluded they will cope. Dor Cohen is not in a position of dependency on the Appellant. She is receiving therapeutic support and medication in Israel.

Accordingly, considered separately and together, the fresh evidence adduced by the Appellant is not capable of being decisive, so as to have resulted in the Judge deciding that extradition would be oppressive, unjust or a disproportionate interference with the Appellant’s private and family life. The fact that the Appellant’s co-accused is still at liberty in Israel and proceedings in Germany remain at an early stage does not elevate the actions of the Judicial Authority in seeking extradition from the UK into an abuse of the Court’s processes and this evidence is not therefore decisive. The Appellant’s applications to adduce fresh evidence are refused.

In FK v Germany [2017] EWHC 2160 (Admin) the Divisional Court affirmed the “decisiveness” test does not apply where one party seeks to put in new evidence with a view to defeating an appeal (¶35). The Court considered that “there is no restriction on the inherent jurisdiction of the High Court on appeal to admit further evidence from a respondent to an extradition appeal.” For such evidence it is ultimately a matter of whether it is “in the interests of justice” for it to be admitted (FK, ¶39-40). It is in the interests of justice for the Respondent’s fresh evidence to be admitted so as to assist the Court in assessing the Appellant’s fresh evidence.

The Judge was not wrong to order extradition. For the reasons set out above, the consequences of the Appellant’s head injury in 2018 are not such that it would be unjust, oppressive or disproportionate to extradite him. Nor are these extradition proceedings an abuse of process. The appeal is dismissed pursuant to section 27(1)(b) Extradition Act 2003.

As contemplated in discussions at the end of the appeal hearing, the parties are asked to liaise to consider how this judgment is communicated to the Appellant. The parties are directed to confirm that as indicated at the hearing, the undertaking from Dr Zivor to the Court in September 2023 remains in place. To the extent not already done, the Appellant’s medical records should be sent with him on extradition and delivered to those who will have custody during transfer and in subsequent detention (Polish Judicial Authority and Mariusz Wolkowicz [2013] EWHC 102 (Admin) at [¶10]).