England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24th April 2009

1. MR JUSTICE DAVIS: The appellant, Mr Trenk, seeks to challenge a decision of District Judge Evans made on 18th December 2008 in the Magistrates' Court ordering him to be extradited to the Czech Republic pursuant to a European Arrest Warrant which is dated 1st August 2007.
2. Briefly, the appellant, Mr Trenk, is a Czech national born on 2nd May 1953 and currently is, and for some time has been, residing at an address in Manchester. The European Arrest Warrant seeks his return to the Czech Republic in relation to an offence of swindling, allegedly committed on 31st May 2002. The Czech Republic, of course, has been designated a Category 1 territory for the purposes of the Extradition Act 2003 and it is not disputed that Part 1 of that Act is applicable here. For the purposes of this present appeal, the relevant section is section 2. That requires, for the purposes of the warrant, that it must contain a statement that the person in respect of whom the Part 1 warrant is issued is accused in a Category 1 territory of the commission of an offence specified in the warrant and the Part 1 warrant was issued with a view to his arrest and extradition to the Category 1 territory for the purpose of being prosecuted for the offence. So both limbs of the section must be satisfied.
3. The appellant appeals against the decision of the District Judge, contending that the District Judge was wrong and ought to have decided the matter differently. I should make one preliminary point. There is not before the court a transcript of the District Judge's full reasons. What has been placed before the court is a short note, prepared by counsel and agreed between them, of the District Judge's reasons; but that has not been put before the District Judge for his approval. That is not satisfactory and for future purposes if for some reason an authorised transcript of the reasoning is not available, at the very least the District Judge concerned should be given an opportunity to approve the note of his judgment. For present purposes, both sides have been content for me to proceed today on the footing of their note of judgment, and it is common ground that the District Judge's reasons were very shortly stated indeed.
4. The arrest warrant itself provides that:

"This warrant has been issued by a competent judicial authority. The person mentioned below is accused in the territory of the Czech Republic of an offence/offences specified in the warrant. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution for the offence(s)."

Then in the formal boxes to the warrant under (b) "Decision on which the warrant is based":

"1. Arrest warrant or judicial decision having the same effect: warrant of arrest

Type: preliminary procedure."

Then the offence is specified in box (e), and it may be pointed out that the alleged offence is specified with some degree of particularity. What in fact is said at the start of the description is this:

"It is presumed that the named person committed the above mentioned offence . . . "

Details thereafter being given. The arrest warrant, I might add, is signed by a Czech criminal judge.

5. The essential issue is whether or not this case has crossed the boundary from investigation into prosecution. Both counsel are agreed on that. It is not seriously disputed that here the appellant may be described as an accused; but what is very much in issue is whether his extradition is for the purposes of prosecution. Further, these matters are common ground: first, that by no standard has the applicant been charged, although it is accepted that that of itself cannot be conclusive of the issue before me; second, he is at least wanted for questioning; and third, it cannot be disputed but that, by the standards of Czech criminal law, the preparatory proceedings leading up to a possible charge have not been concluded.
6. Miss Nice, appearing on behalf of the respondent, accepts that the European Arrest Warrant cannot, of itself, be conclusive of the matter. She accepts that it is for the country seeking extradition to establish its case that an individual should appropriately be extradited, although she does draw attention to the wording of the European Arrest Warrant and to the fact that the charge is particularised and that it is signed by a judge.
7. Perhaps appreciating that the matter, on the face of the arrest warrant, was not altogether clear, a number of requests have been directed to the Czech authorities seeking further information. A series of questions were posed for the Czech authorities to answer, and the answers were given in a document signed by a judge. The answers are in these terms:

"1. The above named Vladimir Trenk was accused of committing a crime of credit fraud . . .

2. At the present time the investigation against the accused has not been completed yet because the above named person must be interrogated concerning the case as the accused.

3. Up to the present time it has not been possible to charge Vladimir Trenk in this case. A result of the investigation will show whether he will be charged or not.

4. Surrender of Vladimir Trenk based on the European Arrest Warrant is intended for the purpose of the prosecution.

5. The investigation against the named person still continues and will be ended only after the interrogation of the named person.

6. It is a warrant for arrest in order to complete the preparatory procedure and to proceed with the prosecution in connection with the given criminal activity.

7. The warrant of arrest against Vladimir Trenk was issued on July 13th 2006 by the District Court in Plzen-Mesto.

8. The warrant of arrest was issued for the reason that there was a suspicion that the accused had stayed abroad in order to avoid prosecution . . . "

9. On April 25th 2006 Vladimir Trenk was brought at the border crossing in Rozvadov where he was handed the order about instituting the prosecution regarding this case . . . "

The position, by way of background, seems to be that what is styled "notice of institution of prosecution" was issued on a date in 2003 and then that was served on Mr Trenk on a date in 2006. It appeared to be served at a time when he was seeking to leave the Czech Republic.

8. One only has to consider those answers to see just how vague and unclear the position is on the face of it. It might be said that the answer at paragraph 4, "Surrender of Vladimir Trenk based on the European Arrest Warrant is intended for the purposes of the prosecution", is of itself clear enough on its face; but, set in the context of the other answers, it is by no means clear. The other answers would tend to indicate that what is desired is that he be questioned further before a decision is made as to whether or not to prosecute him.
9. That there was ambiguity in this answer I think can be taken to be accepted by those representing the respondent in the United Kingdom because they posed yet further requests for information. A further answer, again signed by a judge, stated that a warrant of arrest may be issued only in case the prosecution has been issued; ie, after the order of instituting the prosecution has been received by the accused, and that happened on 25th April 2006. Again, what is actually connoted in substance by "the institution of prosecution" under Czech law is not made clear in that response.
10. A yet further detailed answer to a request for more information was given on 19th September 2008. That in terms stated that the criminal prosecution of the accused was instituted on the basis of the order of the commencement of prosecution pursuant to the criminal code on 25th July 2003. It then goes on:

"Subjectively [sic] the prosecution against the accused was commenced only on the date of the actual handover of this order on April 25th 2006."

A little further on it is indicated that the applicant allegedly gave an informal promise that he would contact the police bodies "in order to be properly questioned concerning the case". Of course, it is the position that the applicant has not been questioned at all, just because he has been abroad ever since: although interestingly in that letter it was suggested that it was not even possible to proceed by means of cooperation on the basis of letters rogatory -- which indicates, perhaps, an intention to try and gain more information. Then at paragraph 3 of that letter it is said:

"The reasons why the accused Trenk has not still been charged should be qualified especially by a supervising prosecuting attorney because he/she only can decide about filing an action. The Court cannot intervene in this power in any way. However, based on the file documents that the Court has at disposal at the present time for needs of issuing the European Arrest Warrant and the follow-up proceedings it is obvious that charges have not been brought especially for the reason of failing to reach the accused who should have already been questioned within the preparatory procedure so that the prosecuting attorney could judge legitimacy of suspicion of the committed crime also on the basis of a testimony given by the accused and on that account also legitimacy of a possible charge. Only after bringing charges to a competent local court a hearing of the case would be commenced."

11. Pausing there, that makes clear, as is made clear elsewhere, that before a criminal charge can be brought the prosecuting attorney first must judge the legitimacy of the suspicion of the committed crime. It seems to me that there is considerable force in the observation of Mr Jones here that while there may be a abundance of material to show the police had reasonable grounds for suspicion (and indeed the material shows that they could not have sought to arrest Mr Trenk had they not had reasonable suspicion under Czech law), still it remains for the prosecuting attorney to assess the materials before deciding whether or not the reasonable suspicion was justified and charges should be brought. That has not happened here.
12. That is further confirmed by other aspects of this lengthy letter. For example, in paragraph 4 it is said that:

"The preparatory procedure (ie, criminal proceedings prior to bringing charges) is instituted by issuing an order of the prosecution and its serving to an accused person. Criminal prosecution can be instituted only if there is a justified suspicion a crime has been committed and it was committed by a particular person."

Pausing there, that, by a very broad analogy, may not be so very far away from the procedures in this country where ordinarily an arrest can only take place on the basis of reasonable suspicion. A little further on it is said:

"After evaluation of the evidence situation the prosecuting attorney weighs whether the proved facts of the case really competently substantiate the suspicion of committing a crime by a particular person. If he/she comes to a positive conclusion, he/she brings charges to a local competent court."

There are various other paragraphs to that effect which in the interests of time I will not read out although I have had full regard to them.

13. Again, a series of further requests were made and were answered. For example, on 10th October 2008 a further answer was given under the signature of a Czech judge, amongst other things saying this:

"First of all, I would like to point out that in fact all the questions referred to the ongoing preparatory procedure which would be concluded at the moment of bringing an action. It has not happened yet. Therefore, a major part of powers and competencies still rests with the police and the prosecuting attorney . . . However, the court always acts upon a prosecuting attorney's proposal only. The court is not active of its own accord."

Indeed, it goes on to indicate that, from the position of the judge, he is not able to answer many of the questions asked. So one can infer that the matter has not yet progressed to the stage of a judicial investigation or examination.

14. Finally, on the 11th November 2008, under the further signature of a judge, this is said, amongst other things:

"(a) In the Czech Republic the prosecution has already been conducted against the accused Trenk since July 25th 2003. His status is an accused person. The court cannot decide whether or not an action is brought. This is decided by a prosecuting attorney. The prosecution of the accused is still in the stage of preparatory inquiries . . . "

15. Miss Nice has also referred me to the provisions of section 405 of the Czech Criminal Code, which indicates that a European Arrest Warrant may be issued by the judge on a proposal from the public prosecutor in the case of preliminary proceedings, or by the presiding judge in the case of court proceedings. That is what the provision provides, but what it leaves entirely open is at what stage of the preliminary proceedings such issue may properly take place.
16. I have been referred to a number of authorities. Again in the interests of time I will not read out the relevant extracts from them, but the authorities which seem to me of particular relevance for present purposes are the cases of Ismail [1999] AC 320, Vey v The Office of the Public Prosecutor of the County Court of Montluçon, France [2006] EWHC 760 (Admin) and McCormack v Tribunal de Grande Instance, Quimper, France [2008] EWHC 1453 (Admin).

17. Ismail sets out the general approach that this court should adopt. True it is that Ismail was a decision under the previous Act, but nevertheless what is said there remains relevant and instructive. I accept that a broad, generous and purposive approach to construction should be adopted in this context, and likewise this court should adopt a cosmopolitan approach and should not seek practically to apply an English and Welsh kind of approach to different systems which prevail elsewhere in Europe.

17. Reviewing the materials that have been put before me, it seems to me that it simply is not established that this case has crossed the boundary from investigation into prosecution. Miss Nice, at one stage in her argument, was in effect reduced to submitting that "the notice of institution of prosecution" under the Czech procedure was, of itself, enough to show that the boundary had been crossed. But one only has to look at the answers given by the Czech authorities to realise that the concept of notice of institution of prosecution simply does not have its literal meaning as translated, in the sense that it does not mean that a "prosecution", in any substantive sense of the word, has actually started in the Czech Republic. On the contrary, it is in substance a formal initiation of the investigatory process, by way of preliminary procedures, enabling Mr Trenk to be arrested in consequence.
18. I might have been more impressed by Miss Nice's submission had someone troubled to place before the court the actual notice of institution of prosecution that was served in this case. No doubt Mr Trenk has long since destroyed the copy served on him, but one would have thought there should be a file copy somewhere. However, there is absolutely nothing before this court to show what that notice actually said. Nor is there any detail or elaborated explanation as to what that procedure involves: although, as I read the materials, at least one can deduce that it is nothing like the bringing of charges. Indeed it obviously is not, because (as I have already indicated) charges can in the Czech Republic only follow, first, after the necessary preliminary procedures, second, after the necessary preparatory procedures and third, at the conclusion of the preparatory procedures, when a prosecuting attorney has reviewed the evidence and decided that charges should be brought. None of that has happened here. Miss Nice points out that has not happened here just because Mr Trenk has chosen to absent himself from the Czech Republic. So be it. That does not justify the court in departing from the requirements of the 2003 Act. The position is thus different from, for example, McCormack where police and Public Prosecutor had concluded their investigations and had passed the matter on by requisitoire introductif to the examining Magistrate.
19. It seems to me, reading such materials as have been placed before the court, that what is sought to be done here is to question Mr Trenk further to enable the prosecuting authority to decide whether or not a sufficient case has been established to justify placing the matter before a judge and bringing charges. It may well be that the police have formed their own preliminary view on that in the Czech Republic but that, under Czech law, is not the test. It is the prosecuting attorney who has to decide whether a case can be commenced. That has not happened just because questioning of Mr Trenk has not taken place. Indeed, it is clear enough to me that the reason why Mr Trenk is required to be extradited to the Czech Republic is to enable him to be questioned further to see whether or not charges can or should be brought.
20. Accordingly, and expressing myself relatively shortly, it does seem to me, with all respect, that the District Judge did reach a conclusion which he should not have reached and he ought to have decided this matter differently. Therefore I will allow this appeal.
21. MR JONES: My Lord, I am very much obliged. There are two small matters. If the court allows the appeal then you must order the appellant's discharge under section 27(5)(a).
22. MR JUSTICE DAVIS: Yes.
23. MR JONES: I would also ask for an order for detailed assessment of my costs.
24. MR JUSTICE DAVIS: For Legal Aid purposes?
25. MR JONES: It is a detailed assessment of the costs of this appeal, which is an order which is routinely made.
26. MR JUSTICE DAVIS: Two things. Your client is legally aided and he needs an order in that regard?
27. MR JONES: Yes.
28. MR JUSTICE DAVIS: Are you also asking for an order for costs against Miss Nice?
29. MR JONES: No, my Lord.
30. MR JUSTICE DAVIS: Anything else? Thank you both very much. Miss Nice, may I respectfully suggest that if there are any other Czech cases where this kind of point is raised, counsel might be well advised to get more detail of the notice of institution of prosecution.