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

Fecha: 25-Jul-2025

Mrs Justice Thornton DBE

Mrs Justice Thornton DBE:

Introduction

The Appellant, Bar Cohen, is an Israeli national. He appeals the order of the District Judge, dated 5 October 2023, for his extradition to Germany. The order was made pursuant to an accusation warrant issued by the Local Court of Bamberg, Germany, on 2 November 2022 and certified by the National Crime Agency on 3 November 2022.

The offending alleged against the Appellant is summarised in the decision of the District Judge as follows:

“The [Requested Person] is alleged to have been the leading mastermind of a cyber trading fraud which caused approximately €14 million loss. The TACA Warrant alleges as follows:
In late 2016, the Requested Person, together with someone called Yuval Shem Tov, decided to commit acts of fraud jointly and continuously through cyber trading.
The Requested Person and Yuval Shem Tov opened and operated call centres in Bulgaria (Sofia) and Israel (Tel Aviv). …Alongside Yuval Shem Tov, who was his “equal by his side” the Requested Person “was the head of the ring and its leading ‘mastermind’.
…The TACA Warrant sets out how, “on the orders of the accused the retention agents acted fraudulently to causes losses to accrue to customers in Germany.” The agents pretended to numerous customers in Germany, by phone and email, that they were working for a particular trading platform (eg Speartrader, Zuercher Capital, E Markets Trade, Alpha Financial Group, Geneva Capital Group, Zurich Financial Group and Pro Markets Group). They made false claims. They promised customers large profits even though they were specifically aware that there was no chance of the customers preserving their capital or receiving capital gains. At no point were investments actually made or options placed on behalf of the customers. Instead, the money distributed by customers “was immediately distributed in a complex money laundering network” throughout Europe. …”.

The Appellant was arrested at Heathrow Airport on 3 November 2022, having arrived from Israel with his wife to spend his honeymoon in the UK. He was remanded in custody at HMP Wandsworth for a short period before being released on bail.

The hearing before the District Judge at Westminster Magistrates’ Court took place over 4 days (11 – 14 September 2023). The application for permission to appeal the order for extradition was lodged on 11 October 2023. Three applications by the Appellant to adduce fresh evidence followed, dated 7 November 2023, 31 May 2024 and 12 May 2025. A Respondent’s Notice and application to adduce fresh evidence was served on 11 December 2023 and further fresh evidence on 4 June 2025. Permission to appeal was granted on all grounds on 20 February 2025. The fresh evidence was admitted de bene esse with the decision on admissibility to be considered at the substantive hearing of the appeal.

Before the Judge it was, and remains, common ground that in 2018 the Appellant suffered a significant head injury following a fall in Israel and required a series of serious operations. As a result, the Appellant has a number of ongoing physical and mental health issues. However, the extent of his difficulties was a core evidential dispute between the parties at the extradition hearing.

The three grounds of appeal are that the District Judge was wrong not to find:

extradition is oppressive by reason of the Appellant’s mental and physical health (s25 Extradition Act 2003);

extradition would constitute a disproportionate interference with the Appellant’s private and family life under Article 8 European Convention on Human Rights (ECHR) (s21A Extradition Act); and

extradition is an abuse of the Court’s process.

This judgment is in 8 main parts as follows:

I.	Introduction/overview	¶1 - 7
II.	The evidence before the District Judge	¶8 - 12
III.	The decision of the District Judge	¶13 - 23
IV.	The fresh evidence	¶24
V.	Legal framework	¶25
VI.	Analysis	¶26 - 47
VII.	The grounds of appeal	¶48 - 92
VIII.	Admission of the fresh evidence	¶93 - 125
IX.	Conclusion	¶126-127

II.

Evidence before the District Judge

The following written (and photographic) evidence was put before the District Judge:

The Appellant’s mental health:

letter from Professor Sagi Harnof MD, Chair of the Neurology Department at the Rabin Medical Centre, dated 6 November 2022;

ii.

clinical report of Gal Sela, neuropsychologist, dated October 2021;

iii.

clinical opinion from Dr Orit Stein-Reisner, expert in psychiatry, dated 18 January 2022;

iv.

letter from Tali Katz, the psychotherapist who treated the Appellant and kept detailed notes until October 2022, dated 19 July 2023;

report of Dr Stephen Attard, a forensic psychiatrist, dated 23 March 2023;

vi.

addendum report of Dr Attard, dated 6 September 2023

vii.

report of Dr Michael Watts, a consultant clinical neurophysiologist, dated 10 March 2023;

viii.

report of Dr Claudia Bernat, psychiatrist, dated 19 July 2023;

ix.

letter from Dr Michael Zivor, clinical psychologist, dated 25 June 2023;

letter from Dr Ahmed Toma, consultant neurosurgeon, dated 11 July 2023;

xi.

Witness Statements of Kamila Kwincinska, the senior paralegal at Howard Kennedy LLP acting for the Appellant, dated November 2022 and 30 March 2023;

xii.

Exhibit KK/1, showing injuries to the Appellant’s face following a self-harm incident;

xiii.

expert report of Professor Seena Fazel, a specialist in forensic psychiatry, dated 16 May 2023;

xiv.

addendum report of Professor Fazel, dated 24 August 2023;

xv.

statements of agreement of Dr Attard and Professor Fazel, dated 17 July 2023;

xvi.

photographs of injuries to the Appellant’s face;

The Appellant’s physical health:

xvii.

letter from Inbal Guy, physiotherapist, dated 10 November 2022;

xviii.

letter from Alex Shurygin, osteopath, dated 9 November 2022;

xix.

report of Mr Shahab Siddiqi, consultant colorectal surgeon, dated 7 July 2023;

xx.

addendum report of Mr Siddiqi, dated 7 September 2023;

xxi.

letter from Maria Elliott, Specialist Pelvic Health Physiotherapist, dated 6 July 2023;

xxii.

report of Ms Anna Henshaw, an occupational therapist, dated 14 March 2023;

xxiii.

report of Ms Kathryn McCarthy, consultant colorectal surgeon, dated 16 August 2023;

xxiv.

letter from Victoria Fury of Clairmont Health, received on 13 July 2023;

German prison conditions and risk of antisemitic attack:

xxv.

report of Dr Anna Oehmichen, a legal practitioner in Germany and specialist in German criminal law, dated 10 March 2023 and annex 1 to Dr Oehmichen’s report – Europass V;

xxvi.

addendum report of Dr Oehmichen, dated 8 September 2023;

The Appellant’s private and family life:

xxvii.

Proof of evidence of Bar Cohen dated 16 December 2022;

xxviii.

Witness Statements of the Appellant’s wife, Dor Nissan Cohen, dated 24 March 2023, 20 July 2023, 30 August 2023 and 6 September 2023;

xxix.

Witness Statement of the Appellant’s mother, Riky Cohen, dated 24 March 2023;

xxx.

Witness Statement of the Appellant’s sister, Shir Cohen, dated 24 March 2023;

Evidence relevant to alleged abuse of process by the German authorities:

xxxi.

report of Mr Nir Yaslovitzh, a practising attorney in Israel and specialist in Israeli criminal and extradition law, dated 26 March 2023;

xxxii.

addendum report of Mr Yaslovitzh, dated 6 September 2023;

xxxiii.

Articles 81-88 of Interpol’s Rules on the Processing of Data.

The Judge heard oral evidence tested under cross examination as follows. She heard evidence about the Appellant’s mental health from two consultant forensic psychiatrists; Dr Attard, instructed on behalf of the Appellant and Professor Fazel, instructed on behalf of the Respondent. She also heard from Dr Watts, a consultant clinical neuropsychologist instructed on behalf of the Appellant. Their evidence may be summarised as follows:

Dr Attard: In his opinion the Appellant was suffering from severe PTSD, depression and cognitive impairment, consequential on his brain injury. The Appellant was currently at moderate risk of suicide. Treatment with anti-depressant medication is likely to be of significant importance in ameliorating his symptoms of PTSD and reducing his risk of suicide but it is likely he will require significant psychological support in order to be able to take this step. In the event of extradition, it is likely that there would be a substantial deterioration in the Appellant’s mental state and a corresponding increase in his risk of self-harm and suicide. The Appellant would be at substantial risk of suicide. There would be a high risk that his capacity to resist the impulse to commit suicide would be removed or greatly reduced to the point that in legal terms the decision to commit suicide would not be a free and voluntary decision.

Dr Watts: The Appellant has capacity to make decisions including deciding not to take medication which in conjunction with the other therapies, would have a better outcome generally, in relation to his depression. Assuming equivalent medical care in prison in Germany to that in the UK, the Appellant’s mental health needs could be met in custody. There would be a very significant deterioration in his mental state within a prison setting but steps could be taken to keep him safe.

Professor Fazel: The Appellant was suffering from moderate depression. The Appellant’s suicide risk was elevated compared with other male prisoners of similar age. Ultimately, the risk would depend on how the Appellant is managed on extradition but it was not sufficiently severe so as to remove his capacity to resist suicide. The Appellant’s mental health needs could be met in a custodial setting assuming the standard of mental health care in a German prison is at least as good as that found in the UK.

10.

The Judge heard evidence about the Appellant’s physical health from Dr Siddiqi, a colorectal consultant, and Ms Henshaw, an occupational therapist, both of whom were instructed on behalf of the Appellant. She also heard from Ms McCarthy, consultant colorectal surgeon, instructed on behalf of the Judicial Authority. Their evidence may be summarised as follows.

Dr Siddiqi: the Appellant has global nervous system arousal and a variety of gastrointestinal disorders. Both conditions are linked to the Appellant’s mental health. Extradition would have a serious deleterious effect on the Appellant’s PTSD, mental health, global nervous system arousal, physical health, neuropathic pain and his gastrointestinal conditions. This would be due to the increase in environmental stresses and the loss of contact with his family, particularly his wife.

Ms Henshaw: The Appellant received significant therapy when living in Israel. Whilst she had not worked in a prison setting, she did not think the Appellant would have access to a similar amount of therapy in custody. If the Appellant does not receive the therapy input and pain relief he requires his condition is likely to deteriorate.

Ms McCarthy: There was no scientific evidence base to the Appellant’s use of a pelvic wand to treat his pelvic floor dysfunction. On the available evidence the Appellant has an undiagnosed colorectal disorder that requires investigation. She regularly treats patients detained in prison for pelvic floor dysfunction.

11.

The Judge heard evidence about prison conditions in Germany from Dr Oehmichen, a German lawyer instructed on behalf of the Appellant. Dr Oehmichen expressed the opinion that antisemitism has increased in Germany in recent years and it is likely this has also happened in prisons although no statistics are available. There is a real and imminent risk that the Appellant will face antisemitism in a Bavarian prison. Measures to protect the Appellant from suicide will either lead to him being isolated or disturbed at night by monitoring. Contact with relatives will be restricted and will lead to isolation, which will be detrimental to the Appellant’s health.

12.

The Appellant’s wife, Dor Cohen and his sister, Shir Cohen, gave evidence. Their witness statements describe the Appellant’s accident in 2018, his condition after the accident, his rehabilitation, Professor Fazel’s examination of the Appellant and the impact of the extradition proceedings on the Appellant’s family.

III.

Decision of the District Judge

13.

The Judge made the following findings:

The Appellant’s extradition was sought in relation to allegations of serious offending [¶17(ii)];

The Appellant had suffered a traumatic brain injury on 2 March 2018. He was very ill and required a number of operations over the next three years. As a result, he has a number of physical and mental health issues [¶17(viii)];

The extent of the Appellant’s physical and mental health issues was not agreed between the parties [¶17(iii)];

The Appellant did not give evidence so could not be asked about his account of the impacts of his brain injury on his physical and mental health [¶17(v)];

The Appellant was not as restricted day to day as he claimed to medical experts. He was able to go out and do things, although this may be variable day to day, depending upon the extent of his medical conditions [¶17(vi)];

The Appellant had self-harmed and had suicidal ideations [¶17(vii)];

The Appellant was not a fugitive [¶17(i)].

14.

Having heard evidence about the Appellant’s mental health, the Judge came to the following evaluation of the evidence before her:

The Appellant had mild to moderate depression and PTSD [¶41];

The Appellant and his wife saw Professor Fazel as somewhat hostile. They wanted to direct the examination of the Appellant which appeared to have been allowed by the experts instructed by the defence, but not by Professor Fazel [¶17(x)];

Professor Fazel was however professional in his interview and merely performing the task he had been asked to do [¶17(x)];

The presentation of the Appellant in his interview with Professor Fazel was different to that when he saw and spoke to experts instructed on his behalf [¶17(x)];

Both Dr Attard and Professor Fazel were credible witnesses. However, she preferred the evidence of Professor Fazel [¶17(x)];

The presentation of the Appellant in his interview with Professor Fazel may have been more realistic and given a truer picture of his mental health condition [¶17(x)];

The evidence of Professor Fazel took into account factors, such as the Appellant being able to go out, travel and engage with therapies, including whether to take medication, which Dr Attard had not given sufficient weight to [¶17(x)];

The Appellant’s mental disorder is not such that it removed his capacity to resist suicide [¶17(x)];

Even if she was wrong about the Appellant’s capacity, the German prison authorities would be able to take steps to keep the Appellant safe in prison and to ensure he did not commit suicide [¶17(x)];

The support of his family is important to the Appellant and to his mental health, but he would have contact with them from a German prison albeit on a more restricted basis. The German judicial authority could be made aware that initially on his remand the Appellant may find it difficult to adjust and they could take appropriate measures, including monitoring, to ensure he is kept safe. The Appellant would be housed with at least one other prisoner if his suicide risk increases. He would be monitored carefully and should a temporary period of the Appellant being kept alone be required this would be for as short a time as necessary [¶17(xii)].

15.

Having heard evidence about the Appellant’s physical health, the Judge came to the following evaluation of the evidence before her:

The Appellant had mobility issues, but these could be catered for in prison, as when he was remanded at HMP Wandsworth [¶17(xi)];

The Appellant did not need to use a pelvic wand for his bowel and bladder condition [¶17(xi)];

The Appellant would have sufficient therapy and treatment for his bowel and bladder condition in custody, albeit it would not be at the same level as the Appellant was currently receiving [¶17(xi)].

16.

Having heard evidence from Dr Oehmichen, instructed on behalf of the Appellant, about prison conditions, the Judge concluded that Dr Oehmichen was not an expert on prison conditions and her opinions were not admissible. In any event, there was no evidence to support her views. The Judicial Authority would take the necessary steps to keep the Appellant safe in prison.

17.

The Judge addressed the grounds of challenge before her as follows.

18.

Section 25 Extradition Act - she addressed the legal framework, citing s25 of the Extradition Act that a requested person should be discharged where his physical or mental condition is such that it would be unjust or oppressive to extradite him. She set out relevant caselaw on risk of suicide including the principles set down in Turner v USA [2012] EWHC 2426 (Admin) and Polish Authority v Wolkowicz [2013] EWHC 102 (Admin). She also cited Gromovs v Latvia [2014] EWHC 4155 (Admin); Vincenzo Suricov v Public Prosecuting Office of Bari, Italy [2018] EWHC 401 (Admin); Republic of South Africa v Dewani [2013] 1 WLR 82; Mikolajczyk v Poland [2010] EWHC 3505 (Admin); Magiera v Poland [2017] EWHC 2757 (Admin); Government of the United States of America v Assange [2021] EWHC 3313 (Admin); Modi v India [2022] EWHC 2829 (Admin); and Spanovic v Government of Croatia and Secretary of State for The Home Department [2009] EWHC 723 (Admin).

19.

The Judge approached her assessment by considering the cumulative impact of the Appellant’s mental and physical health [¶38]. Applying the principles in Turner, the Appellant did not currently lack capacity to resist the impulse to commit suicide and there was not a substantial risk that he would do so. The risk that the Appellant would succeed in committing suicide, whatever steps are taken, was not sufficiently great to result in a finding of oppression. In any event if she was wrong about that, the German prison authorities could cope properly with the person’s mental condition and the risk of suicide [¶44].

20.

The Appellant’s physical health difficulties could also be managed in prison in Germany, as they were in HMP Wandsworth. She could not ignore the serious nature of the alleged offending. The Appellant had failed to engage in recommended treatment, in particular he had refused to take medication for his mental health that would likely improve it. Accordingly, whilst the Appellant has significant mental and physical health conditions, it would not be unjust and/or oppressive to order extradition [¶ 38].

21.

Article 8 ECHR - the Judge directed herself to Article 8 of the European Convention on Human Rights and relevant caselaw including Norris v Government of USA (No2) [2010] UKSC 9; Celinksi & Others v Slovakian Judicial Authority [2015] EWHC 1274 (Admin); and HH v Italy [2012] UKSC 25, [2012] 3 WLR 90.

22.

The Judge listed the factors in favour of extradition and the factors against extradition before turning to the balancing exercise. There is a high public interest in honouring extradition arrangements. The Appellant has significant mental health issues. He also has physical health issues. Extradition would increase his risk of suicide. Whilst difficult, the Appellant would cope with the support of his close family and his risks could be managed in custody. His family would suffer emotional distress, but they would rally round and support themselves and him. The alleged offending was undoubtedly serious. There had been a delay by the German judicial authorities after the issue of the Interpol red notice. The delay was short (7 months), but it had consequences for the Appellant in that he was arrested in the UK and the delay weighed in his favour. Nonetheless there was a very high public interest in extradition and extradition would not be disproportionate [¶67].

23.

Abuse of process - the Judge directed herself by reference to the criteria in USA v Tollman [2006] EWHC 2256 (Admin), Symeou v Greece [2009] EWHC 897 (Admin) and Belbin v France [2015] EWHC 149 (Admin). She rejected the submission that the Judicial Authority had deliberately delayed seeking the Appellant’s extradition from Israel and waited until he was in the UK before arresting him, thereby usurping the statutory regime. The Judicial Authority had not usurped the statutory regime and the conduct complained of was not capable of amounting to an abuse of process. The delay between the Judicial Authority being asked for information and arrest was only seven months which was not long in the context of extradition proceedings. The fact of the matter was that the Appellant had travelled to the UK whereupon he was arrested.

IV.

Fresh evidence

24.

The appellant applies to admit the following fresh evidence which is set out below according to subject matter:

The appellant’s mental health:

Letter from Dr Claudia Bernat dated 29 April 2025;

ii.

Witness statement of Dr Michael Zivor dated 26 March 2024;

iii.

Letter from Dr Michael Zivor dated 20 April 2025;

iv.

Letter from Dr R Yadhunanthanan dated 7 May 2025;

Witness Statement of Peter Crascall dated 2 May 2025:

The appellant’s physical health:

Second addendum report of Mr Shahab Siddiqi dated 7 November 2023;

ii.

Letter from Maria Elliott, physiotherapist, dated 6 July 2023;

iii.

Expert report of Dr Benjamin Schreiber dated 14 August 2024;

iv.

Expert report of Dr Ioannis Mavroudis dated 24 February 2025;

Royal Free Hospital discharge summary letters dated 14 April 2024, 15 April 2024 and 3 May 2024;

viii.

Expert report of Dr Navneet Singh dated 23 May 2024;

ix.

Letter from Dr Orlando Swayne dated 24 January 2024 and Medical Report of Dr Orlando Swayne dated 29 April 2025;

German prison conditions and risk of antisemitic attack:

Reports of Professor Dr Martin Heger dated 28 March 2024 and 2 May 2025;

ii.

RIAS Monitoring Report dated 18 October 2023;

iii.

RIAS Monitoring Report dated 30 November 2023;

Expert report of Professor Kirstin Drenkhahn dated 1 March 2024;

vi.

Second addendum report of Dr Anna Oehmichen dated 6 November 2023;

The appellant’s private and family life:

Letter from Dr Eli Krichman, Psychiatrist and Psychoanalyst, concerning Dor Cohen dated 5 November 2023 and 4 May 2025;

ii.

Expert report of Professor Andrew Forrester dated 2 March 2024;

iii.

Witness Statement of Stefanie Schott dated 19 April 2024;

Evidence relevant to abuse of process:

Witness of Statement of Mr Yaslovitzh dated 8 May 2025.

Legal Framework

25.

Section 27 of Extradition Act provides that:

(1)

On an appeal under section 26 the High Court may—

(a)

allow the appeal;

(b)

dismiss the appeal.

(2)

The court may allow the appeal only if the conditions in subsection (3) or the conditions in subsection (4) are satisfied.

(3)

The conditions are that—

(a)

the appropriate Judge ought to have decided a question before him at the extradition hearing differently;

(b)

if he had decided the question in the way he ought to have done, he would have been required to order the person's discharge.

(4)

The conditions are that—

(a)

an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;

(b)

the issue or evidence would have resulted in the appropriate Judge deciding a question before him at the extradition hearing differently;

(c)

if he had decided the question in that way, he would have been required to order the person's discharge.

VI.

Analysis